IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP, PHD, OFR PRESIDENT, NATIONAL INDUSTRIAL COURT OF NIGERIA

DATE: 25 JULY 2023                                                                    

SUIT NO. NICN/ABJ/77/2023

BETWEEN

Goddy Esezobor Obainoke                                                   -                                        Applicant

AND

National Drug Law Enforcement Agency                         -                                     Respondent

REPRESENTATION

Okwudili Abanum, for the applicant.

V. O. Asuzu, for the respondent.

RULING

INTRODUCTION

1.  The applicant filed this suit on 21 March 2023 vide a motion on notice pursuant to Order 48 Rules 1 to 6 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017), section 104 of the Evidence Act and under the inherent jurisdiction of Court. By this motion on notice, the applicant is “praying for Judicial Review in terms of the following orders”:

(1)  An order of mandamus compelling the respondent to show cause why the decision or proceedings of the Senior Staff Disciplinary Committee and the Governing Board of the respondent purportedly terminating the employment of the applicant vide a letter with reference No. NDLEA/CON/24/VOL.VII/680 dated 5th of May 2015 should not be reviewed and/or set aside.

(2)  A declaration that the purported termination of the employment of the applicant vide a letter with reference No. NDLEA/CON/24/VOL.VII/680 dated 5th of May 2015 and affirmation of of the said purported termination of appointment of the applicant vide letters with Ref. Nos. NDLEA/SN/SP/1322/1/87 dated the 2nd of December 2022 and NDLEA/SN/CON/1322/VOL.1/88 dated the 23rd day of January 2023 respectively are illegal, null and void and of no effect whatsoever.

(3)  An order directing the respondent forthwith to unconditionally reinstate the applicant to the service of the respondent and accord him all his rights and entitlements for the purported illegal termination of his appointment since the 5th day of May 2015.

(4)  And for such further or other orders this honourable court may deem fit to make in the circumstances of the application.

2.  In support of the motion on notice is a statement of fact, the applicant’s affidavit in support of the application, and a written address.

3.    On 15 May 2023, the defendant entered a formal conditional appearance and also filed a notice of preliminary objection as to the competence of the suit. The preliminary objection was filed pursuant to section 6(6)(a) and (b) of the 1999 Constitution, section 2(a) of the Public Officers Protection Act LFN 2004 and Order 17 of the NICN Rules 2017. The grounds of the preliminary objection are:

(a)   The suit is statute-barred by virtue of section 2(a) of the Public Officers Protection Act, which provides that cases against public officers and offices are to be brought within three months after the supposed cause of action arose.

(b)     The action is grossly incompetent and thus robs the Honourable Court of the jurisdiction to entertain same.

4.  In support of the preliminary objection is an affidavit and a written address.

5.  In reaction to the preliminary objection, the applicant filed a written address in reply.

6.  At the Court’s sitting of 16 May 2023, the Court had noted that the applicant’s case was one for judicial review, and was filed on 21 March 2023. And that the act sought to be reviewed is the proceedings/decision of the Senior Staff Disciplinary Committee and the Governing Board of the respondent purportedly terminating the employment of the applicant vide a letter dated 5 May 2015. The Court went on to note that this was way outside of the 3 months allowed by Order 48 Rule 5(1) of the NICN Rules 2017. That this raises the question of the competence of the suit i.e. whether the suit is not thereby statute-barred. Parties, starting with the applicant, were asked to address the Court on this issue.

7.   In compliance, the applicant filed on 21 June 2023 a further written address on point of law. The respondent on its part filed on 22 June 2023 a written address on the effect of Order 48 Rule 5(1) of the NICN Rules 2017, which address also doubled as the respondent’s reply on points of law to the applicant’s reaction to the preliminary objection.

SUBMISSIONS OF THE RESPONDENT IN SUPPORT OF THE PRELIMINARY OBJECTION

8.  To the respondent, the applicant did not file this suit within time. The respondent proceeded to submit a sole issue for determination: whether the applicant/respondent’s action is statute-barred and thus robs the Court of jurisdiction to entertain the suit. The argument of the respondent is that by section 2(a) of the Public Officers Protection Act, the applicant is way out of the 3 months allowed (for over 8 years) having instituted this suit on 21 March 2015 when the alleged cause of action complained of occurred sometime in April 2015, citing FIRN v. Gold [2007] 11 NWLR (Pt. 1044) — no page was supplied. Accordingly, that this suit is statute-barred and so ought to be dismissed. The respondent then urged the Court to dismiss the suit.

9.  On the effect of Order 48 Rule 5(1) of the NICN Rules 2017, the respondent submitted that the provision is mandatory and is a condition precedent for instituting an application for judicial review. citing Amokeodo v. IGP & ors [1999] LPELR-468(SC) and Int’l Standard Ltd v. Unilever (Nig) Plc [2009] LPELR-8778(CA) on the use of the words “shall” in a statute. That the applicant did not bring his application within 3 months, which is the time stipulated by the NICN Rule 2017 as well as the Public Officers Protection Act. Accordingly, that this suit is statute- barred, incompetent and robs the Court of jurisdiction, and so ought to be dismissed, citing Karshi & ors v. Gwagwa & ors [2022] LPELR-57544(SC).

10.  The respondent went on that the applicant argues that by virtue of Exhibit GEO 14 attached to the applicant’s application the respondent reaffirmed the termination of the applicant’s employment, which was done in 2015. That this position is misconceived. That the applicant wrote to the respondent stating that he accepts the termination of his employment but he pleads that punishment be commuted to retirement. That the exhibit referred to by the applicant, which is a letter from the respondent, is a response to his appeal that his punishment be commuted to retirement instead, which was refused. That it is not reaffirmation of the termination of his employment, urging the Court to so hold.

SUBMISSIONS OF THE APPLICANT IN OPPOSITION TO THE PRELIMINARY OBJECTION

11.   The applicant adopted the sole issue submitted for determination by the respondent; and submitted that this Court has the jurisdiction to determine this matter. That the submission of the respondent that in virtue of section 2(a) of the Public Officers Protection Act LFN 2004 this Court lacks the jurisdiction to entertain this matter is misplaced. To the applicant, the respondent cannot pick and choose which part of section 2(a) of the Public Officers Protection Act to rely on. That by section 2(a) of the Public Officers Protection Act, when the act complained of continues in damages and injuries, the three months envisaged shall not apply as the act complained of still exists and has a continuance of effect. That applicant had deposed to the fact that the respondent continued to bombard him with letters amounting to continuous damage and injury, referring to Exhibit GEO 15. Accordingly, that the three months envisaged under the Act started to run from 23 January 2023 when the last communication from the respondent was served on the applicant, which letter confirmed the purported dismissal of the applicant. That the period from 23 January 2023 to 21 March 2023, the date this suit was filed, is not up to three months. Accordingly, that the dismissal of the applicant was not complete as at April 2015 when all that led to the dismissal was still being reviewed. As such, the applicant was only properly dismissed on 23 January 2023, not April 2015. The applicant then referred to a number of case law authorities on the essence of the Public Officers Protection Act: Obasanjo v. Euro Bogga (Nig) Ltd [2023] 2 NWLR (Pt. 1868) 253, Ibrahim v. JSC, Kaduna State [1998] 14 NWLR (Pt.

584) 1, Fajimolu v. Unilorin [2007] 2 NWLR (Pt. 1017) 74, Aroyame v. Governor of Edo State & anor [2023] 1 NWLR (Pt. 1866) 54 and Abacha v. AG, Federation [2021] 10 NWLR (Pt. 1783) 129.

12.   The applicant continued that given Abacha v. AG, Federation, acts of brazen impunity and recklessness will not be covered by section 2(a) of the Public Officers Protection Act. That the respondent’s action in terminating the applicant’s employment was a display of power which is ultimately abused. That more worrisome is is the fact that the actual perpetrators of the alleged offences have been reinstated to the employment of the respondent. That the second relief sought by the applicant prays the Court to upturn the termination of the applicant’s employment same being illegal, null, void and of no effect whatsoever. That illegality of the respondents action is being challenged before this Court in the substantive action. That such illegality perpetrated by the respondent clothes this Court with jurisdiction, citing University of Ife v. Govt of Kwara State & ors [2012] LPELR-14326(CA), Verner v. Federal University of Technology, Yola [2017] LPELR-43001(CA) and Ajao v. Permanent Secretary, Ministry of Economic Planning Budget Civil Service Pensions Office & anor [2016] LPELR-41407(CA).

13.  It is the further submission of the applicant that paragraph 7 of the affidavit in support of the preliminary objection offends section 115(2) of the Evidence Act 2011. That the said paragraph contains legal argument and ought to be struck out, referring to Orji v. Zaria Industries Ltd [1992] 1 NWLR (Pt. 216) 122 SC, and urging the Court to so do.

14.   The applicant concluded by urging the Court to hold that the preliminary objection lacks merit as section 2(a) of the Public Officers Protection Act is not absolute. That in the face of illegality, and instances of continuous damage or injury, the said provision cannot avail the respondent, urging the Court to dismiss the preliminary objection in the interest of justice.

15.  On whether this Court has jurisdiction in view of non-compliance with Order 48 Rule 5(1) of the NICN Rules 2017, the issue raised suo motu by the Court, the applicant reiterated that this suit was commenced on 21 March 2023 vide judicial review procedure as provided in the NICN Rules. But that the question is whether the procedure adopted was instituted within three months of the occurrence of the termination complained of.

16.   Referring to Exhibit GEO 9 (the letter of termination) attached to the affidavit in support of the applicant’s motion on notice, the applicant submitted that 5 May 2015 is the date of the occurrence of the act complained about in the judicial review application. However, that by Exhibits GEO 14 and GEO 15 dated 2 December 2022 and 23 January 2023 respectively, the acts herein complained about continued with the reaffirmation of the termination of the applicant’s employment. That it was pursuant to Exhibits GEO 14 and GEO 15 that the applicant commenced this action vide judicial review, which is a specialised procedure that must be strictly adhered to, citing Onwaogwugwu v. President FRN [2007] 6 NWLR (Pt. 1030) 237.

17.   The applicant went on to refer to Order 48 Rule 7(5) of the NICN Rules 2017, and then submitted that this Court is given the power to proceed with the suit as though same was commenced by writ of summons. Also that this Court has the discretion in appropriate cases to refuse application for judicial review and order proceedings to continue as if it was begun by writ of summons, referring to LSJSC v. Kufo [2008] 17 NWLR (Pt. 1117) 525 at 544 and 550 and

CBN v. Amao [2010] 16 NWLR (Pt. 1219) 271 SC. The applicant then prayed the Court not to strike out the suit but to order that trial should be conducted as though the matter was initially commenced by complaint.

18.   Furthermore, that the word “shall” used in Order 48 Rule 5(1) of the NICN Rules 2017 should be interpreted as directory and not mandatory, citing Yirom v. Rakaintangbe & anor [2018] LPELR- CA/YL/89/2017 and Dangote Textile Products Ltd v. Hascon Associates Nigeria Ltd [2019] LPELR-20665(SC).

19.  The applicant concluded by urging the Court to use its discretion judicially and judiciously in his favour by either continuing the suit under the judicial review procedure or proceed to hear same as though it was commenced by complaint.

COURT’S  DECISION

20.  I took time to consider the processes and submissions of the parties. The key issue before the Court is whether the applicant’s suit is statute-barred; and here, it is as to section 2(a) of the Public Officers Protection Act and Order 48 Rule 5(1) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 (NICN Rules 2017). Under both provisions, in determining whether an action is statute-barred, it is the originating processes that the court is mandated to look at. In the instant case, it is the applicant’s motion on notice together with the statement of fact and the applicant’s affidavit in support of the motion on notice including the accompanying exhibits.

21.  In doing this, the following questions arise: what is the cause of action? When did the cause of action arise? When was the suit filed? In filing the suit, was the suit filed outside of the time allowed by law?

22.   In determining the cause of action, and when the cause of action occurred, it is only the claimant’s originating processes that must be looked at. See Gbenga v. APC [2020] 14 NWLR (Pt. 1744) 248, PDP v. Uche & ors [2023] LPELR-59604(SC). What then is a cause of action? His Lordship Jauro, JSC delivering the leading judgment in Useni v. Atta & ors [2023] LPELR-59880(SC), referring to Nweke v. Unizik Awka [2017] 18 NWLR (Pt. 1598) 454, Owodunni v. Reg. Trustees of CCC [2000] 10 NWLR (Pt. 676) and Sanda v. Kukawa Local Government [1991] 2 NWLR (Pt. 174) 379, stated thus:

For the purpose of limitation of action, time starts to run when all the facts which constitute the Plaintiff's cause of action have happened. In other words, the time starts to run when the cause of action accrues. Now, what does cause of action mean? Cause of action means the fact or combination of facts which gives rise to a right to sue. It is the 'factual situation’ stated by the Plaintiff which, if substantiated, entitles him to a remedy against the Defendant; the factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person.

23.   By Oko-Jaja v. FCSC & ors [2022] LPELR-57627(CA), “the phrase ‘cause of action’ has been variously defined in judicial decisions as the fact or combination of facts which give rise to a right to sue, which consists of the wrongful act of the defendant which gives the claimant the right to complain and the damage consequent, due to the wrongful act”.

24.  Where there is a statute of limitation of action, as in the instant case, time begins to run from the date that the cause of action accrued; and a cause of action accrues on the date in which the incident giving rise to the cause of action occurs. See Steve C. Okebu v. Delta State Judicial Service Commission & anor [2023] LPELR-60590(CA) and Gbenga v. APC [2020] 14 NWLR (Pt. 1744) 248. An action commenced outside of the time allowed by the statute is said to be statute-barred. Although the right of action exists, it remains unenforceable and the right is extinguished for all time. See Gbenga v. APC [2020] 14 NWLR (Pt. 1744) 248 and Nigerian Army & anor v. Maha [2023] LPELR-59711(CA).

25.   In the instant case, what is the applicant’s cause of action? On the face of the applicants motion on notice, the applicant said he is “praying for judicial review in terms of the following orders…” And the very first order he prayed for is: “AN ORDERR OF MANDAMUS compelling the respondent to show cause why the decision or proceedings of the Senior Staff Disciplinary Committee and the Governing Board of the respondent purportedly terminating the employment of the applicant vide a letter with reference No. NDLEA/CON/24/VOL.VII/680 dated 5th of May 2015 should not be reviewed and/or set aside”. What the applicant wants reviewed and so set aside is “the decision or proceedings of the Senior Staff Disciplinary Committee and the Governing Board of the respondent purportedly terminating the employment of the applicant vide a letter with reference No. NDLEA/CON/24/VOL.VII/680 dated 5th of May 2015”. By Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 - 6 SC (Pt. II) 47, “A claim is circumscribed by the reliefs claimed”. Relief (3), which is a prayer for “an order directing the respondent forthwith to unconditionally reinstate the applicant to the service of the respondent and accord him all his rights and entitlements for the purported illegal termination of his appointment since the 5th day of May 2015”, uses 5 May 2015 as the baseline period for which the applicant wants his reinstatement to take effect.

26.   Relief (1) claimed by the applicant is supported by paragraph 3 of the statement of fact in support of the application, which deals with the grounds upon which the application is brought. In fact paragraph 3(g), which is the last paragraph of the statement of fact simply states that there is manifest fundamental defect in the disciplinary procedure adopted and decision meted out to the applicant as he duly complied with constituted authority in attending the course at the Command and Staff College, Jaji using official funds provided by the then State Commander, Muhammed Kaka Jibrin. There is no recitation whatsoever of any communication between the applicant and the respondent his as to punishment vide termination of employment in 2015.

27.   Paragraph 13 of the applicant’s affidavit in support of the motion on notion reiterates that it was on 5 May 2015 that the applicant was served with the purported “Native of Punishment”

wherein the applicant’s employment was terminated (Exhibit GEO 9). In paragraphs 14, 15, 19, 20, 21, 22, 23 and 24, the applicant would go on to recount how he appealed against his termination but to no avail. It is this unsuccessful appeal that the applicant makes out as continuance of injury or damage. This is reflective in relief (2) wherein the applicant in praying that his termination be declared null and void, he stated that the said termination was affirmed by Exhibits GEO 14 and GEO 15. Whether this is correct, I will return to shortly.

28.   From all of this, this action being one for judicial review as acknowledged by the applicant himself and evinced by relief (1), the cause of action in this suit is “the decision or proceedings of the Senior Staff Disciplinary Committee and the Governing Board of the respondent purportedly terminating the employment of the applicant vide a letter with reference No. NDLEA/CON/24/VOL.VII/680 dated 5th of May 2015”. It is this decision which culminated in the letter of 5 May 2015 that the applicant wants this Court to review. I so find. An action for judicial review is one for the review of administrative actions, which in the instant case is the decision of the Senior Staff Disciplinary Committee and the Governing Board of the respondent. This is what brought the applicant to this Court. Reliefs (2), (3) and (4) as claimed by the applicant are incidental to this main relief (1). I so hold.

29.  This being so, the cause of action of the applicant arose when the letter of 5 May 2015 was issued to the applicant given that that was when the applicant could come to court to ventilate his grievance. The applicant did not, however, come to court until 21 March 2023 when he filed the instant motion on notice. This means that the applicant waited for nearly 8 years before approaching the court. This is way out of the 3 months allowed by section 2(a) of the Public Officers Protection Act.

30.    Before now, this Court had held that the limitation law did not apply to employment contracts. See, for instance, Mr Victor Omotosho Ekundayo v. Federal Inland Revenue Service (FIRS) & 2 ors unreported Suit No. NICN/ABJ/82/2021, the judgment of which was delivered on 23 February 2022. We found support in this stance in the decision of His Lordship Hon. Justice Ariwoola, JSC (as he then was, and now CJN) in National Revenue Mobilisation Allocation and Fiscal Commission & 2 ors v. Ajibola Johnson & 10 ors [2019] 2 NWLR (Pt. 1656) 247.

31.     However, His Lordship Abba Aji, JSC in Abubakar Abdulrahman v. NNPC [2020] LPELR-55519(SC) decided on 5 June 2020 and Michael Idachaba & ors v. University of Agriculture, Makurdi & 4 ors [2021] LPELR-53081(SC) decided on 15 January 2021, without reference to National Revenue Mobilisation Allocation and Fiscal Commission & 2 ors v. Ajibola Johnson & 10 ors, would retreat and hold that the limitation law applied to employment contracts. Given the rule that in the event of conflict the most recent of the decisions of an appellate court is to be followed, the Court of Appeal in Tertiary Education Trust Fund (TETFUND) & anor v. Dr Aminu Abdurrhman Anas [2022] LPELR-58704(CA) per Ige, JCA, would hold that the Supreme Court “appears to have moved away from the position it took in [National Revenue Mobilisation Allocation and Fiscal Commission & 2 ors v. Ajibola Johnson &

10 ors] in the recent case of MR. MICHAEL IDACHABA & ORS VS THE UNIVERSITY OF AGRICULTURE MAKURDI & ORS (2021 1 SCM 53 AT 64H - I TO 66A…” And so the new

law now, which is binding on this Court, is that the limitation law applies to contracts of service

i.e. employment contracts.

32.   The argument of the applicant, however, is that his case comes within the exception to the rule in section 2(a) of the Public Officers Protection Act i.e. the continuance of damage or injury exception. Section 2(a) of the Public Officers Protection Act provides thus:

Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect —

(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof:

Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.

33.   To the applicant, what makes his case come within the continuance of damage or injury exception is that in appealing against the termination of his employment, the respondent continued to bombard him with letters such as Exhibits GEO 14 and GEO 15. Accordingly, that the three months envisaged under the Act started to run from 23 January 2023 when the last communication from the respondent (Exhibit GEO 15) was served on him, which letter confirmed his purported dismissal. That the period from 23 January 2023 to 21 March 2023, the date this suit was filed, is not up to three months.

34.   In making this argument, I do not think that the applicant understands what continuance of damage or injury means. I asked the counsel for the applicant in open court what he understood by continuance of damage or injury as used in section 2(a) of the Public Officers Protection Act since he did not define the phrase in his written addresses, but I got no answer from the counsel.

35.  It would thus follow that we cannot say whether the applicant is right in his interpretation if we do not ascertain the proper meaning of the phrase, “continuance of damage or injury”. In INEC v. Ogbadibo Local Government & ors [2015] LPELR-24839(SC), His Lordship Okoro, JSC gave a profound definition of the phrase in the following words:

This is where I part ways with their Lordships of the Court below. “A continuance of injury” is not a question of law. It is a fact to be pleaded where pleadings are appropriate or to be averred in affidavit as in this case initiated by originating summons. Neither paragraph 3(c) nor any other paragraph of the supporting affidavit averred that the injury suffered by the respondents, if any, is continuing.

……………………….

I remember that during my sojourn on the Bench of the Court of Appeal, I had occasion to examine the meaning of an act which damage or injury is a continuing one. In Alhassan V. Aliyu & Ors (2009) LPELR-8340(CA) at pp.31-32 paras F-G, I said as follows:-

…Where the injury complained of is a continuing one, time does not begin to run for the purpose of the application of a limitation law until the cessation of the event leading to the cause of action. In other words, “continuance of injury” means the continuance or repeat of the act which caused the injury. It does not and cannot be said to mean the concomitant effect of the damage or injury…

I have had to reproduce part of the judgment in extenso in order to underscore the meaning of the phrase “continuance of damage or injury” as used in Section 2(a) of the Act. In 1996, the appellant excised and suppressed the respondents’ State Constituency. There was no other act of excision or suppression. It was a completed act. What the respondents and the two courts below relied upon was the “continuance of the injurious effects of a legal injury.” Clearly, this is where the mistake came about. It was therefore wrong for the two lower courts to hold that Section 2(a) of the Public Officers Act did not apply to the suit of the respondents.

36.  Additionally, the Supreme Court in INEC v. Enasito & ors [2017] LPELR-47991(SC), citing INEC v. Ogbadibo Local Government & ors, held that continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury.

37.   A completed act, which does not continue, cannot therefore be termed continuous simply because its injurious effect continues. The applicant in the instant case misconceives the injurious effect of his dismissal with the dismissal itself. When the applicant’s employment was terminated in 2015, that was a completed act. That his employment remained terminated was merely a continuation of the injurious effect of his termination, a completed act.

38.  The argument of the applicant about his appeals and the replies he got from the respondent in their regard cannot make his case come within the continuance of damage or injury exception. This is because the period of negotiation or exhaustion of internal remedies before seeking redress in court has been held not to affect the running of time as far as the limitation law is concerned. See Oko-Jaja v. FCSC & ors [2022] LPELR-57627(CA), where it was held thus:

The Appellant argues that the cause of action did not accrue on 12th September 2012 as held by the lower Court as he had to first exhaust the internal remedies before seeking redress in Court and that it was only on 16th May 2016 that he received the decision on the internal remedy wherein he was communicated that the termination of his appointment had been upheld…Without a doubt, if it was upon the exhaustion of the internal remedy on 16th May, 2016 that the Appellants cause of action accrued, then the

action commenced on 28th July 2016 would not be caught by the limitation law. However, I am unable to agree with the Appellant that it was only after the internal remedies had been pursued to its logical conclusion that he can resort to litigation…

…The proper course the Appellant should have embarked upon…is to institute an action so as to protect his interest or right in case the domestic avenues fail…

………………

I am cognisant of the decision of this Court in APPEAL NO. CA/A/418/2018: ALABI vs. FEDERAL CIVIL SERVICE COMMISSION & ORS. (unreported) delivered on 30th March 2022, wherein it was held that the provisions of the Public Service Rules and Circulars on avenues for redress have to be exhausted before proceeding to the Courts. However, the said decision turned on the peculiar facts of the case as the Public Officers Protection Act was found to be inapplicable based on the peculiar facts and circumstances of that case, since there was an established case of malice and abuse of office which made the provisions of the Act unavailing…

…………………….

The position in the instant case is however distinguishable as there are no features precluding the applicability of the Public Officers Protection Act and therefore the period of limitation started running immediately the cause of action arose irrespective of any efforts being made to revert the alleged wrong. In YARAI vs. MODIBBO ADAMAWA UNIVERSITY OF TECHNOLOGY YOLA (2016) ALL FWLR (PT 342) 1482,

Georgewill, JCA stated:

There is nothing that will stop the period of three months provided by Section 2

(a)   of the Public Officers Protection Act 2004 from running as soon as the cause of action arose, not even negotiations or concerted efforts to get the alleged wrong reverted. Consequently, the action is statute barred in view of the provisions of Section 2 (a) of the Public Officers Protection Act. The objection of the Defendant is upheld and this suit is hereby dismissed.

I am allegiant to the above dictum. In NWUFO vs. FEDERAL JUDICIAL SERVICE COMMISSION (2005) LPELR (10864) 1 at 13-15, the Appellant therein, a Deputy Chief Registrar in the Court of Appeal, was dismissed but rather than sue in a timely manner as provided by the Public Officers Protection Act, he pursued other avenues of having the dismissal reversed. On appeal against the decision striking out the action for being statute barred, this Court per Omage, JCA held:

The cause of action in the instant appeal of the appellant arose the date on the letter of dismissal from the service of the defendant/respondent Within three months of the date after 16/5/2000 the plaintiff/appellant may, acting within the provision of the Public Officers Protection Act Cap 397 commence an action So

certain of his dismissal from service of the Respondent that he wrote several petitions to the Head of Service appealing against his dismissal. All the letters, petitions and representations were made by the appellant in the expectation and hope that his dismissal from service on 16/5/2000 which was conveyed in a letter dated 30/5/2000 could be reversed. The suit was commenced against the defendants on 28th May, 2002, from the time the cause of action arose on 16th or 17/5/2000, to 28th May, 2002 is a period of over one year, which exceeds the three months period within which the appellant as plaintiff in the Court below can commence proceedings against a public officer. In the instant case, the period has elapsed and the right of the plaintiff/appellant to institute the action in a Court below is extinguished and lost for all times.

The learned jurist continued at pages 16-17 and asseverated:

Admittedly after receiving the letter of dismissal from the service of the Respondent the appellant wrote to several people, including the respondent in the hope of seeking a reversal of the letter of dismissal and hoping to be restored to his former position, such period may be described as a period of negotiation. The period of negotiation does not stultify; or renew the date of the cause of action arose. The situation arose in the case of EBOIGBE V NNPC (1994) 5 NWLR (Pt

347) 649 at 659. The Supreme Court in a majority decision held that the period of negotiation since a cause of action arises, does not revive or affect the date the cause of action arose. This decision it held despite the humane obiter dictum in the reasoning of the Hon. Justice S. Onu JSC. Consequently, once the cause of action has arisen unless an intervening event alters the original event the date after the event remains the date from which calculations of applicable date should commence.

…………………….

To further underscore the position I have taken that Rule 090201 (ii) of the Public Service Rules, 2008 does not make litigation conditional upon exhaustion of internal remedies, Rule 090208 (a) (ii) of the Public Service Rules, 2008 provides that the pursuit of internal remedy will not be proceeded with where a legal action is pending in a Court of law. This connotes that an aggrieved officer does not have to pursue and exhaust the internal remedies before exercising his constitutional right of seeking redress in Court; the internal remedies, by Rule 090208 (a) (ii) are subordinated to and kowtow to the exercise of such constitutional right of access to Court. In the diacritical circumstances of this matter, the cause of action crystallised when the termination of the Appellants appointment was communicated to him in late 2012 and not on 16th May, 2016 when the decision of the internal remedies he pursued was communicated to him. The decision of the lower Court that the action is statute barred is therefore the correct decision. Being the correct decision, it makes immaterial the reasoning of the lower Court that the internal remedies amounted to negotiation or that the refund of medical bills incurred during the

subsistence of the Appellants employment but refunded in 2015, meant that the Appellants employment was still subsisting in 2015. The medical bill refunded was like a debt owed, which had to be repaid even after the Appellants appointment had been terminated since the debt was incurred during the subsistence of the employment relationship.

39.   His Lordship Sirajo, JCA, who delivered the leading judgment in Steve C. Okebu v. Delta State Judicial Service Commission & anor [2023] LPELR-60590(CA), reinforced this position when he held thus:

…for purposes of limitation law, intervening acts, such as the letters written by the Appellant in 2011 and 2012 pleading for review of his demotion, do not count when the period of limitation is being computed, unless provision is made in the rules that before resort to Court, some laid down internal mechanisms must be exhausted.

40.   So, intervening acts do not affect the computation of the limitation period as has been also held in a number of cases by this Court. Two will suffice. In Mr Friday Idugie v. Auchi Polytechnic, Auchi & 3 ors [2013] 31 NLLR (Pt. 89) 242, this Court held thus:

The authorities are pretty clear that time runs continually irrespective of intervening acts on the part of the parties. See SPDCN Ltd v. Ejebu (supra), Ibidapo v. Lufthansa Airline [1997] 4 NWLR 124 SC and UTA French Airlines v. Williams [2000] 14 NWLR 271. In fact, in UTA French Airlines v. Williams, the plaintiff had first filed the action, within the limitation time, at the Lagos High Court. On advice of the Lagos Chief Judge, she filed fresh processes at the Federal High Court. This latter case was held to be different from that of the Lagos High Court; and because it was filed out of the limitation period, it was held caught up by the limitation period of two years under the relevant law. And by Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 –

6 SC (Pt. II) 189, even an admission during proceedings cannot revive an action commenced outside of the limitation period.

41.   The second case is Mr Olatunde Shakiru Salami v. Federal Inland Revenue Service & ors unreported Suit No. NICN/LA/528/2016, the ruling of which was delivered on 10 July 2017, where this Court held as follows:

There is no averment in the pleadings as to the reaction of the defendants on this letter. From all of this, it can be discerned that the cause of action in this case is the termination of the claimant’s appointment by the defendants. This took effect vide the letter of 27th May 2015. This means that the cause of action in this suit arose on 27th May 2015. I so find and hold. All the communications made by the claimant between 27th May 2015 and December 2015 merely rank as intervening acts which do not affect the counting of the limitation period especially as there was no acknowledgment of any sort on the part of the defendants as to reactivate the cause of action yielding to a new limitation period.

42.    See further Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors [2013] 32 NLLR (Pt. 91) 63 NIC and Mr. Taiwo Oyelami v. Chi

Limited unreported Suit No. NIC/LA/19/2013, the ruling of which was delivered on 17 December 2014.

43.   From all that has been said, I am satisfied that the cause of action in this suit arose in 2015 and the applicant filed this suit in 2023. This is way out of the 3 months allowed by section 2(a) of the Public Officers Protection Act. This being so, the instant suit is caught up by section 2(a) of the Public Officers Protection Act and so is statute-barred. I so hold. I am also satisfied that the case of the applicant does not come within any of the exceptions to the rule in section 2 of the Public Officers Protection Act.

44.   Once a court holds that a case is statute-barred, the remedy is one of dismissal of the case. See Aroyame v. Governor of Edo State & anor [2022] LPELR-57819(SC) and Sani v.The President FRN & anor [2020] LPELR-50990 (SC). This being so, the instant case is liable to be dismissed; and it is hereby so dismissed. I so rule.

45.   The issue raised suo motu by the Court relates to the applicability of Order 48 Rule 5(1) of the NICN Rules 2017, which provides as follows:

An application for judicial review shall be brought within three (3) months of the date of occurrence of the subject of the application and no leave of the Court shall be required for that purpose.

46.   The applicant, in responding to the issue raised suo motu by the Court, had submitted in paragraph 1.4 of his “Further Written Address on Point of Law” of 21 June 2023 that 5 May 2015 is the date of the occurrence of the act complained about in the judicial review application. However, that by Exhibits GEO 14 and GEO 15 dated 2 December 2022 and 23 January 2023 respectively, the acts herein complained about continued with the reaffirmation of the termination of the applicant’s employment. This argument of the applicant confuses the provision of Order 48 Rule 5(1) of the NICN Rules 2017 with that of section 2(a) of the Public Officers Protection Act. While the latter has an exception to the rule in terms of the “continuance of damage or injury” exception, which is what the applicant is referring to here in his argument, Order 48 Rule 5(1) of the NICN Rules 2017 does not have such an exception. The applicant himself acknowledged this in paragraph 1.7 of his further written address of 21 June 2023. So his argument as to “the acts herein complained about continued with the reaffirmation of the termination of the Applicant’s employment” in terms of Order 48 Rule 5(1) of the NICN Rules 2017 is not only misplaced but is an attempt to read into the NICN Rules what is not there. It is not the duty of counsel to the applicant to make rules of court for this Court.

47.  The applicant himself acknowledged, as he submitted in paragraphs 1.5 and 1.6 of his further written address of 21 June 2023, that the rules of procedure governing judicial review must be strictly obeyed and adhered to otherwise an application for judicial review will be incompetent ab initio.

48.  The attempt to water down Order 48 Rule 5(1) of the NICN Rules 2017 by reference to Rule 7(5) of same Order, which deals with when this Court may order continuation of proceedings, is a mere attempt to mislead the Court. The said Rule 7(5) provides thus:

Where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review, the Court, may, instead of refusing the application, order the proceedings to continue as if it had been commenced otherwise than by application for judicial review.

49.  This Rule 7(5) deals with continuation of proceedings, not continuance of damage or injury exception, and it applies only when there is first a competent action for judicial review. The competence of the applicant’s action for judicial review is presently in issue, and so the talk by the applicant of this Court proceeding “with the suit as though same was commenced by Writ of Summons” (paragraph 1.8 of the further written address of 21 June 2023) or that this Court “has discretion in appropriate cases to refuse application for judicial review and order proceedings to continue as if it was begun by writ of summons” (paragraph 1.9 of the further written address of 21 June 2023), does not arise at all.

50.  It is not in doubt that the applicant’s case is one for judicial review. Order 48 Rule 5(1) of the NICN Rules is quite emphatic that an action for judicial review shall be filed “within three (3) months of the date of occurrence of the subject of the application”. This rule admits of no exception. As I held in relation to the arguments as to section 2(a) of the Public Officers Protection Act, the cause of action of the applicant arose in 2015 and what the applicant wants reviewed is “the decision or proceedings of the Senior Staff Disciplinary Committee and the Governing Board of the respondent”, which decision was made in 2015. Filing this action in 2023 is way out of the 3 months allowed by Order 48 Rule 5(1) of the NICN Rules 2017. I so find. This being so, this action in not conforming with Order 48 Rule 5(1) of the NICN Rules 2017, is incompetent as it is statute-barred under the Rules of this Court. It is accordingly liable to be dismissed.

51.  I acknowledge that the NICN Rules 2017 contains rules of procedure. But first and foremost, it is secondary legislation which qualify as an enactment or statute under the Interpretation Act. By section 37 of the Interpretation Act: “enactment” means any provision of an Act or subsidiary instrument. The 1999 Constitution itself in section 318(1) defines “enactment” as “provision of any law or a subsidiary instrument”. See also The Shell Petroleum Development Company of Nigeria Limited v. The Minister of Petroleum Resources & 2 ors unreported Suit No. NICN/LA/ 178/2022, the judgment of which was delivered on 28 July 2022.

52.  As held in Gbenga v. APC [2020] 14 NWLR (Pt. 1744) 248, rules of court are not an end in themselves but merely as a means to an end, which is justice. However, a party is expected to to perform his responsibility of what he is required by law to fulfill in instituting an action such as filling within time before he can claim the benefit of pleading irregularity as to the rules of court. In the instant case, the claimant came way out of the time allowed by law. And so, the question