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Nwangwu v. Imo State Government: Labor Rights In Public Service Are Subject To Limitation Laws

King; law; labor rights
Posted: Sep 21, 2016 at 7:55 pm   /   by   /   comments (0)

In this suit, a civil servant, who was relieved of his duties by the Imo State Government, approached the National Industrial Court seeking labour-related declaratory reliefs as well as an injunctive order against the State Government. The Court however gives judgment against the claimant in favour of the respondent on the ground that his action is statute-barred..

Holden at the National Industrial Court of Nigeria, Lagos

Wednesday, 12th of March, 2014

Suit No: NICN/EN/167/2012


Patrick Nwangwu                 …………………                Claimant/Respondent


  1. Governor of Imo State
  2. Attorney General of Imo State ……… Respondent
  3. Imo State Civil Service Commission
  4. Head of Service of Imo State


Presiding Judge: Honorable Justice O. Y. Anuwe

Case Reviewed by: STEPHEN UBIMAGO

Facts of the Case:

Claimant was employed in July 1977, and in 1982 he sought and obtained leave to proceed on study leave without pay.

At the completion of two years, he applied for extension of the period of study leave, which was granted in July 1984, thereby meaning that the period of study leave covers the period between April 1982 and August 1986.

By a letter dated 29th August 1986, claimant was re-instated after the completion of his study-leave-without-pay.

Claimant was, however, retired based on the report of the committee on down-sizing and right-sizing of Imo State Civil Service set up by the Imo State Government in 2008, which report was published sometime in July 2010.

Claimant averred that he ought to be due for retirement by the year 2016 when he would have attained 35years of service (in exclusion of the four years study leave without pay) or sixty years of age whichever comes first.

He further averred that his salary was stopped since September 2012 after he commenced this action; and that notice of retirement was issued to him after he commenced this action, but backdated.

The suit was therefore commenced with the objective of restraining the defendants from doing that, among other reasons.

Issues for Determination:

(a) Whether by the provision of Section 31 of the Civil Service Commission Regulation 1994 and Rule 02809 of Imo State Public Service Regulation, the defendants are empowered to retire the claimant from the Imo State Judicial/Civil Service when the claimant has neither attained the age of 60 years nor 35 years of service.

(b) Whether the suit is statute barred, and therefore, incompetent having regard to section 2(a) of the Public Officers Protection Act, Cap P4.Vol 14, LFN, 2004

(c) Whether from the statement of facts of the claimant, there is any reasonable cause of action against the defendants.

Reliefs sought:

If the answer for the question is in the negative, the claimant therefore seeks the following reliefs:

  1. a) A declaration that the claimant is only due for retirement on the 7th of September 2016 when he would have attained 35 years in service, same being earlier than 5th December 2019 when the claimant would have attained 60 years of age.
  2. b) A declaration that in computation of 35 years of service of the claimant, the four years study leave without pay granted to the claimant by the defendants is not and should not be inclusive.


Defendants Arguments:

Defense counsel submitted that the suit as constituted is statute barred on the ground that it was commenced after the three-month limitation period prescribed by section 2(a) of the Public officers Protection Act Cap P4, Vol.14, Laws of the Federation of Nigeria, 2004.

In determining the period of limitation, counsel submitted that one has to look at the time the cause of action arose and compare it with when the Writ of Summons was filed.

This can be done without taking oral evidence from a witness. If the time of the writ is beyond the period allowed by the limitation law, then the action is statute barred.

He referred the court to the case of OKENWA vs. MILITARY GOVERNOR IMO STATE (1997) 6 NWLR (Pt. 507) Pg. 154 at 167.

Thus an action for any act done in pursuance of or in execution of any public duty, alleging neglect or default which is not brought against a public officer within 3 months of the accrual of the cause of action shall not lie as the court, will lack the requisite jurisdiction.

Defense counsel urged the court to hold that the court lacks jurisdiction, because the suit is statute barred.

Defense counsel also submitted that the claimants have no cause of action against the defendants and urged the court to so hold.

He further posited that it is trite that a cause of action is made up of an aggregation of facts recognized by law as giving the plaintiff a substantive right to the claim or relief sought.

Claimants’ Argument:

In opposition to the Notice of preliminary objection, the claimant/respondent on the 3rd day of December 2013 filed a nine paragraph counter-affidavit deposed to by the claimant himself, as well as a written address canvassing arguments in opposition of the preliminary objection filed by the applicants.

The respondents formulated two issues for determination.

Counsel to the Claimant/Respondent submitted that the Public Officers Protection Act is an Act which is applicable only to Federal Public Officers as Imo State has its own Limitation Law 1994.

He adverted the court to Section 44 of the Limitation Law of Imo State 1994, which states: “Any enactments relating to the limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to apply.”

Counsel urged the court to hold that the Act cited by the applicants does not apply. Assuming but not conceding that POPA is applicable to Imo State public officers, counsel stated that recourse should only be made to the writ and statement of facts as filed by the claimant, since that is what vests jurisdiction in the court.

Citing the case of N.E.C.O. v. Tokode (2011) All FWLR part 574 Page 122 paragraph F, learned counsel stated that in view of the above authority, time had not elapsed as at the time this suit was instituted hence the reliefs are declaratory and restraining in nature.

What is more, the facts came to completion in February 2012 when Exhibit A was issued, and urged the court to hold that the action is not statute barred.

Counsel contended however, that Statute Bar period is calculated from the cessation of continuous damage or injury, and that the non-payment of the claimant’s salary and emoluments since February 2012 amounts to a continuous injury, and urged the court to hold that the cause of action arises at the end of every month.


The two issues for determination raised by the defendants/applicants were jointly considered to wit:

(a) Whether the suit is statute barred, and therefore incompetent, having regard to section 2(a) of the Public Officers Protection Act Cap P4. Vo1. 14, LFN, 2004.

(b) Whether from the statement of facts of the claimant there is any reasonable cause of action against the defendants.

In determining whether or not a suit is limited by statute, it is always necessary to ascertain the exact date on which the cause of action arose. This is because time will start to run for the litigant from the date the cause of action arose.

The Supreme Court added in the case of MILITARY ADMINISTRATOR OF EKITI STATE & ORS v. ALADEYELU & ORS (2007) 14 NWLR (Pt. 1055) 619 that: “It is from either or both the writ of summons and statement of claim that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiff’s cause of action.” Per Onnoghen JSC.

I disagree with the submission of the Claimant’s counsel that the Public Officer’s Protection Act is an Act that is only applicable to Federal Public Officers, therefore not applicable to Imo State because Imo State has its own Limitation Law 1994, relevant sections of which I have earlier cited in this ruling.

It is noted that the said Limitation Law of Imo State has not made any specific provision for actions brought by or against private individuals.

Rather, a general provision in Section 18 of the said law makes provision for a five year limitation period for actions founded on contract and tort.

In my view, this is a general provision which does not specifically provide for limitation of actions brought against public officers.

In my view, Section 18 of the Imo State Limitation Law is general and relates to other suits founded in contract, tort, etc.

The law is now settled that where it is the intention of a later statute to modify or repeal an earlier one, such intention must be clearly stated or unequivocally deducible from the provisions of the later statute. See the case of Abacha v. Fawehinmi (2000) FWLR (Pt. 4) 533.

The law is well settled that a specific provision prevails over and above that which is general. The Specific provision of the Public officers Protection Act which is a statute of General Application will therefore prevail, and I so find and hold.

In a recent ruling of this Court sitting in Enugu in the case of Dr Atonte Diete-Spiff v. Governor of Bayelsa State & Anor (Unreported) Suit No. NICN/CA/31/2012 delivered on July 26, 2013, the applicability of federal legislation to states was affirmed.

The Public Officers’ Protection Act was held to be a Statute of General application, applicable both in Federal and State Public service.

Claimant’s counsel also raised a point that statute of limitation does not apply to labour cases.

This Court had held that the limitation laws do not apply to labor rights issues especially as to the claims for salary and entitlements/benefits.

However, the truth is that this Court had in recent times, had to change that stance in cases other than those relating to salary and benefits given the weight of the Court of Appeal and Supreme Court authorities to the effect that the limitation laws apply to employment cases as of other cases, all of which are binding on this Court.

On the whole, therefore, I find and hold that the instant case filed on 27th September 2012 but whose cause of action arose on 12th March 2012 is statute-barred.

The action is caught up by section 2a of the Public Officers Protection Act Cap4 Vol. 14, LFN 2004, having been filed outside the three month limitation period stipulated by the said Act.

It is accordingly hereby dismissed.