Public Officer Protection Act No longer Applicable to Employment Claims-Industrial Court Rules

His Lordship, Hon. Justice Nelson Ogbuanya of the National
Industrial Court sitting in Portharcourt has dismissed the
preliminary objection filed by Nigerian Port Authority challenging
the jurisdiction of the court to hear the matter brought by their
former staff Margret Ezeagwu on the ground that the action was
brought about 2years after contrary to the 3month-limits allowed by
the POPA Act.

The court held that Public Officer Protection Act (POPA),
prescribing 3-month time limit to commence suit upon arising of the
cause of action, no longer apply to employment claims, as in the
instant case, ordered that matter proceed for trial.

The Suit originally commenced at the Federal High Court, Port
Harcourt Division on October 2011 and later transferred to National
Industrial Court of Nigeria (NICN) Abuja Division on 26th May
2016.

By a Writ of Summons refiled on 10th November 2017, the Claimant
claimed against the Defendant for A Declaration that the Dismissal
of the Plaintiff by the Defendant without giving her any
opportunity of being heard on the ground so raised amount to denial
of her fair-hearing as guaranteed under Section 36 of the
Constitution of Federal Republic of Nigeria 1999 (now amended in
2011) and an order for reinstatement among others.

The Defendant denied the claims, followed with a Notice of
Preliminary Objection challenging the jurisdiction of the court, on
the ground that the suit has become statute-barred, having been
caught by the provisions of S.2 (a) Public Officers Protection Act
(POPA); that the suit arose sometime on 30th October 2009 and the
action was brought on 6th October 2011, about 2years after the
cause of action arose, contrary to the 3month-limits prescribed in
S.2 (a) POPA urged the court to so hold and dismiss the suit.

In opposition, the counsel to the Claimant/Respondent Thaddaeus
Dzege, Esq submitted that POPA does not apply to the suit that the
Defendant/Applicant should not take advantage of the provision as
it is in gross violation of the rule of natural justice of fair
Hearing, in that the Claimant/Respondent was dismissed without
being afforded an opportunity of being heard.

Counsel further opined that the cause of action arose 3rd May
2011 when the Defendant refused to consider the appeal after the
dismissal urged the Court to dismiss the preliminary objection and
award substantial cost against the Defendant.

After careful evaluation of the submissions of both counsel,
delivering the ruling, Justice Ogbuanya expressed thus;

“In the circumstances, having not taken evidence on the alleged
breach of fair hearing and acts of malafide /acts outside the
colours of office, to establish the exception to application of the
limitation provisions of POPA, I find and hold that this aspect
cannot be reviewed at this preliminary stage as the main case of
the Claimant borders on breach of fair hearing in her dismissal,
which is being challenged in the substantive suit.

“From the evolutionary trend of authorities, the exclusion of
employment contract claims (contract of service) from the contracts
excused from operation of POPA, even started earlier in 1972 and
continued in the later years

“Accordingly, in line with the recent Supreme Court decision in
the Johnson’ Case (supra), and this suit being an employment claim
of service contract, in my considered view, the S.2 (a) of the
Public Officer Protection Act (POPA), prescribing 3-month time
limit to commence suit upon arising of the cause of action, no
longer apply to employment claims, as in the instant case. I so
hold.

“Having brought forth to the fore this most recent and apt
authority of the apex court on the issue slated for determination
in this Application under consideration, and in due reverence to
the hallowed doctrine of stare decisis and judicial precedent, of
which I am sworn-bound to honour and observe, I can only take a bow
and bend to apply the law as it is now, no longer as it was
before.”

In all, the court dismissed the Preliminary Objection submitted
by the Defendant/Applicant for lacking in merit and being otiose,
ordered that the matter proceed for trial.

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