National Industrial Court of Nigeria

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HONOURABLE JUSTICE K.D. DAMULAK

DATED THIS 3^RD DAY OF DECEMBER, 2025

SUIT NO: NICN/AK/03/2024

BETWEEN:

MR YAKUBU KEHINDE …………………... APPLICANT/RESPONDENT

AND

1. VIECE CHANCELLOR,

(BAMIDELE OLUMILUWA UNIVERSITY

OF EDUCATION, SCIENCE AND TECNOLOGY

IKERE -EKITI )

2. THE GOVERNING COUNCIL,

(BAMIDELE OLUMILUWA UNIVERSITY

OF EDUCATION, SCIENCE AND TECNOLOGY

IKERE -EKITI )

3. BAMIDELE OLUMILUWA UNIVERSITY

OF EDUCATION, SCIENCE AND TECHNOLOGY .…RESPONDENTS/APLLICANTS

IKERE -EKITI )

4. THE REGISTRAR.

(BAMIDELE OLUMILUWA UNIVERSITY

OF EDUCATION, SCIENCE AND TECNOLOGY

IKERE -EKITI )

REPRESENTATION

M.P. Ogele Esq for the Claimant

N.T. Ape Esq. for the Defendant

RULING

INTRODUCTION

1. The claimant respondent in this motion, as applicant, took out a motion on notice on 2/3/2024 against the respondents, now applicants in this motion. The main relief sought in the motion is an order of certiorari quashing the dismissal of the applicant/respondent by a letter dated 11^th day of December, 2023 and an order that the letter of dismissal served on the applicant dated 11^th day of December, 2023 is null and void and of no effect whatsoever.

2. Upon service, the respondent applicant filed a memorandum of appearance and a counter affidavit via a motion of 4/11/2024 and on the same date filed this notice of preliminary objection paying the court for;

I. An order declining jurisdiction for want of same.

II. An order dismissing this suit as it is statute barred.

3. The grounds are failure to comply with order 48 Rule 5 of the rules of this court and filing of the suit outside the statutory three months prescribed by the Public Protection Act.

4. The notice is supported by a 6 paragraph affidavit bringing out the complaints in the grounds.

5. In his written address, learned respondent/applicants counsel submitted that Order 48 Rule 5 (1) is clear to the effect that the period for an application for certiorari is three months from the date of the proceedings sought to be quashed.

6. That the suit was filed outside the three months prescribed by the Public Officers Protection Act and so it is statute barred.

7. The applicant/respondent filed a counter affidavit of 10 paragraphs on 27/1/2025. In his written address, learned counsel for the applicant/respondent submitted that the application is incompetent because Rule 48 (7) specify that;

A person wishing to oppose the granting of the order prayed in the originating process shall within seven (7) working days after receipt of the originating process file an affidavit in answer to the claim of the claimant

8. Counsel submitted that the public officers protection Act does not apply to;

a. A claim for recovery of land

b. A claim based on breach of contract of employment

c. A claim for work and labour done

d. Where the public officer acted outside color and tenor of his duties.

e. Where the wrong complained is a continuing wrong

f. Where an employer duty to employee is in issue.

Counsel also relied on N.R.M.A.F.C V JOHNSON (2019) NWLR (PART 16566

9. That the filing of this process did not offend order 48 R1 because communication between the applicant and respondent (exhibits A, B and C) revived the day to file the action (the cause of action).

COURTS DECISION

10. I have considered the motion for certiorari filed on 21/3/2024. Paragraph 23 avers that at the end of the second Panel, the applicant was dismissed. The dismissal letter was attached as exhibit N. The said exhibit N is dated 11/12/2023. Three months under the public protection Act or order 48 Rule 5(1) of the Rules of this court would expire on 11/3/2023.

11. Now, in his written address, learned counsel for the applicant/respondent submitted that the application is incompetent because Rule 48 (7) specify that;

12. It is not certain what the applicant/respondent counsel meant by rule 48 (7). I had assumed he meant order 48 Rule 7 of the Rules of this court but order 48 Rule 7 did not say what the counsel reproduced. I cannot help counsel on this issue. The objection on this point by the applicant respondent counsel is discountenanced.

13. Now counsel said the communication between applicant and respondents in his attached exhibits A, B and C, revived the cause of action.

14. The law relating to revival of cause of action is that even after the limitation clock starts ticking, it comes to a hold and restarts ticking where there is communication between the parties and the other party admits the claim of the claimant in the said communication, otherwise, the limitation clock does not stop.

15. The law does not prohibit or stop parties from negotiation but it does not prevent or stop the hand of the limitation clock from ticking unless the negotiation results in an acceptance of the indebtedness or claim in which case the limitation clock restarts from that point. See GOODWILL COMPANY LTD VS CALABAR CEMENT COMPANY LTD(IN LIQUIDATION&ORS) (2009) LPELR 8351 (CA) and ISA VS NNPC (2020) LPELR -49772 (CA) where the court held as follows;

The law is settled by a long line of judicial decisions over time that that the time within which an action can be brought would run notwithstanding that the parties to the dispute are involved in settlement, negotiation or arbitration. Such negotiation, settlement, or arbitration or other alternative extra judicial resolution of the dispute does not prevent or stop the period of limitation stipulated by statute from running.

16. I have seen exhibit A, B, and C, they are dated 18/12/2023, 16/2/2024 and 30/4/2024. Exhibit C, the pre-action notice of 16/2/2024 cannot revive a cause of action where revival of cause of action is applicable. Exhibit B dated 30/4/2024 was served after the action was filed on 21/3/2024 so even where revival of cause of action is applicable, this exhibit is not applicable.

17. Exhibit A is an “appeal for reinstatement to my duty post” written by the applicant/respondent and it is dated 18/12/2023. This document alone, without any positive response from the respondent/applicant cannot revive the cause of action. The response is dated 30/4/2024 after this action was filed on 21/3/2024 and it said “your appeal lacked merit and council could not rescind its earlier decision”. Even in circumstances where communication can revive a cause of action, it is only a reply admitting the claim of the claimant before the filing of the suit that can do so, not one refusing the appeal as in this case.

18. Now, order 48 Rule 5 (1) of the Rules of this court provides as follows;

5(1) An application for judicial review shall be brought within three months of the date of occurrence of the subject of the application and no leave of court shall be required for that purpose.

19. For a start, this application for a certiorari is an application for judicial review. The date of the occurrence of the subject of application is 18/12/2023. This application was filed on 21/3/2024, about thirteen months after the date of the occurrence of the dismissal. I have already held that the communication between parties after the dismissal of the applicant/respondent did not stop the hand of the limitation clock. For this reason, the suit is incompetent for coming outside the three months prescribed by order 48 Rule 5(1) of the NICN Rules, 2017.

20. Secondly, the Public Officers Protection Act, which is replicated by the public Officers Protection Law of Ekiti state. Prescribe a three months period for the institution of cases from the date of the cause of action.

21. Learned applicant/respondent counsel argued that the public officers protection Act does not apply to;

a. A claim for recovery of land

b. A claim based on breach of contract of employment

c. A claim for work and labour done

d. Where the public officer acted outside color and tenor of his duties.

e. Where the wrong complained is a continuing wrong

f. Where an employer duty to employee is in issue.

Counsel also relied on N.R.M.A.F.C V JOHNSON (2019) NWLR (PART 16566).

22. It appears to me that counsel is unaware of the ongoing undulation on decisions of the appellate courts and especially the Supreme Court on the applicability of the Public Officers Protection Act and limitation laws to claims based on breach of contract of employment. N.R.M.A.F.C V JOHNSON relied upon by counsel is a 2019 decision and now an old decision on the matter and is no longer the position of the law as regards applicability of public Officers Protection Act/Law to cases of breach of contract of employment.

23. The latest decisions of the Supreme Court on this matter are OKORONKWO V INDEPENDENT NATIONAL ELECTORAL COMMISSION (2025) 8 NWLR (PART 1991) 131 and DR.MOSES U. ANOLAM V FUTO & ORS (2025) LPELR – 80027(SC) where the Apex Court held that the Public Officers Protection Act applies to cases of breach of contract of employment, whether statutory or contractual.

24. For all the above, this notice of preliminary objection succeeds and the motion on notice filed on 21/3//2024 for an order of certiorari quashing the dismissal of the applicant/respondent is hereby struck out for being filed outside the three months prescribed by Order48 Rule 5 of the NICN Rules, 2017 and section 2 of the Ekiti State Public Officers Protection Law.

25. This is the ruling of the court and it is entered accordingly.

.................................................

HONOURABLE JUSTICE K.D.DAMULAK

PRESIDING JUDGE

Color

WD