Omaka O. Egbe v National Identity Management Commission
| Judge | Hon. Justice O. Y. Anuwe |
| Judgment Date | 15 July 2016 |
| Respondent | National Identity Management Commission |
| Appellant | Omaka O. Egbe |
| Docket Number | NICN/OW/115/2014 |
| Counsel | <p class="MsoNoSpacing"><span style="font-size:10.0pt;font-family:"Times New Roman","serif"">Ngozi |
| Court | National Industrial Court (Nigeria) |
This action was
commenced by way of complaint dated and filed on the 18th day of
December 2014 wherein the Claimant claimed against the Defendant as follows:
1.
A declaration that having not reinstated the claimant or
retired him formally for 8 years, it is unlawful and has resulted in injustice
and the claimant has suffered greatly.
2.
An order compelling the defendant to either reinstate the
claimant or retire the claimant formally, to enable him process his retirement
benefits.
3.
Arrears of salary from 2006 to 2007 when he was promoted
to Grade level 7 at N60,000.00 monthly, which amounts to N720,000.00.
4.
Arrears of salary from 2008 i.e. last promotion at N80,000.00
monthly to 2014 when this suit was instituted amounting to N7,680,000.00.
5.
Arrears of salary from 2014 at N80,000.00 monthly
till the final determination of this suit.
6.
Special and general damages of the sum of N5,000,000.00
(Five Million Naira) in that the claimant has suffered mental, physical and
emotional trauma.
By a motion on
notice brought pursuant to Order 11 Rules 1, 2, 3 and 8 of the National
Industrial Court Rules 2007 and under the
inherent jurisdiction of the Court;
the Defendant/Applicant’s counsel sought the following relief, an Order of the
Honourable Court dismissing this suit for want of jurisdiction. The ground for
this relief is that the suit is statute barred and that it discloses no
reasonable cause of action. This application was supported by a 10 paragraph
affidavit deposed to by Festus Nosa Esangbedo.
In the accompanying written address, counsel identified one issue for
determination, which is:
Whether this Suit is not statute Barred.
Counsel submitted that
this suit is statute barred having been brought in contravention of Section 2
(a) of the Public Officers’ Protection Act which is to the effect that where a
person is aggrieved over the conduct of a Public Officer in the performance of'
his public duties and he intends to commence proceedings challenging such
conduct as in the instant case, the proceedings must be commenced within three months of the occurrence of the
conduct complained against. In view of the above, counsel submitted that the
Court lacks the jurisdiction to entertain this suit, the suit having been
commenced after three months from the day the cause of action arose. See ESSIEN vs. CROSS RIVER STATE CIVIL SERVICE
where a statute provides for the institution of action within a prescribed
period, the action shall not be brought after the time prescribed by such
statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right
of the plaintiff or the injured person to commence the action would have been
extinguished by such law. See A.G. RIVERS
Similarly, counsel
argued that it is trite law that for a person
who seeks the protection of the Public Officers’ Protection Act must
establish the following:
i.
That he is a Public Officer.
ii.
That he acted pursuant to his duties as Public Officer
iii.
That the act or duty complained of must have taken place three
months before the
commencement of the action challenging it.
On this note,
counsel submitted that the defendant on record is a Person in Law vested with
statutory powers to carry out public duties assigned to it by law. The
defendant carries out these statutory duties ' using its personnel who are Public Officers. The Cause of Action in
this suit which is failure to reinstate the Claimant occurred in 2006 and the
communication between the claimant and defendant ended on 20/02/2014. Thus, the
defendant/applicant has met the requirements of the law for the grant of this
application and is therefore entitled to the grant of same. See: SULGRAVE vs. FGN (supra).
Furthermore, it is
counsel’s argument that in determining whether an action is statute barred, the
courts look at the averments in the statement of claim and writ of summon and
compare the date of filing the suit with the date the cause of action arose. See
3889 at 3914. In view of the above, counsel urged the Court to take a cursory look at the writ of
summons and statement of facts filed by the claimant and conclude that this
suit is statute barred. It is counsel’s
further argument that upon a finding that this suit is statute barred, the
court lacks jurisdiction to determine it. See ANACHEBE vs. IJEOMA (2014) 6
counsel urged the Court to dismiss this suit for want of jurisdiction, and for
being incompetent as it discloses no reasonable cause of action.
In opposition to
this motion, the Clamant/Respondent filed a 17 paragraph Counter Affidavit
deposed to by the Claimant/Respondent and supported by a Written Address, where
Counsel adopted the issue in the defendant’s written address. Arguing this
issue, counsel stated that the Public Officers’ Protection Act must be read and
interpreted as a whole and not in part. Counsel submitted further that the
protection of the Public Officers’ Protection Act does not apply “in case of a
continuance of damage or injury, within three months next after the ceasing
thereof.” It is the submission of counsel that in this suit, the act or neglect
of the defendant has not ceased but has continued in that the Defendant/Applicant
has not issued the Claimant/Respondent any letter of reinstatement or dismissal
or termination to know his true position and this has made it impossible to access
the benefits accruable to him. Further, counsel is of the opinion that a contract
of employment is generally bilateral in nature and so the determination of the
contract of employment takes effect when the letter determining the
relationship has been served on the employee. It is from this event that the
employee becomes aware that his employment has come to an end and the need to
challenge the decision against him arises. Thus, the date of the accrual of the
cause of action in
matters of this nature does not arise with reference to the date of the letter
determining the employment, but on the date when the employee became aware of
the contents of the letter and this would usually be when he received the
letter. Counsel argued that in this instant case, there is no letter to that
effect. The claimant/respondent in the instant case has asked that the employer
officially release him as required by statute to enable him access his benefits
because failure to do so tantamounts to denying him his right which is
unlawful.
Similarly, counsel
contended that by virtue of the provisions of Sections 3(2)(a) and 4(2)
of the Pensions Act Cap. 346, Laws of the Federation of Nigeria,
1990, for a public servant to qualify for pension,
he must have been in the service for 15yrs and aged 45yrs at his retirement. In
this case, the claimant at the occurrence of this event had worked 23years and
so entitled to pension. Also, counsel’s contention is that the
defendant/applicant’s refusal to issue to the claimant either a letter of
dismissal or retirement is unlawful. Counsel’s authority for this contention is
the case of OLANIYAN vs. UNILAG (1985) 2 NWLR (Pt. 9) 599. More so, counsel argued that Learned
Counsel for the defendant/applicant in paragraph 4.06 of his written address
stated that “the
cause of Action in this
suit which is "failure to Reinstate or Retire the Claimant", took
place in 2006 and the communication between the Claimant and Defendant...
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