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REPRESENTATION ITUEM UKPONO, JERRY WONBUNG, and KEKILOMO for the claimant AIE NTA for the defendants, JUDGEMENT The Claimant instituted this action via a Complaint with the accompanying frontloaded documents filed on 19th June, 2015 against the defendants for the following reliefs: 1. A declaration that the defendant’s stoppage of her salary without suspending or terminating her appointment is unlawful. 2. An order directing the defendants to pay the claimant her salaries and entitlement from the month of stoppage of her salary till date. 3. An order directing the defendants to promote me to the next level in accordance with State Civil Service rules and all my entitlements on that level be paid without delay. 4. The sum of (#100,000,000.00) One Hundred Million Naira as damages and compensation. The Claimant’s case on the record is that she was employed on 28th of June, 2005 with an appointment letter dated 28th June, 2008 into the State Ministry of lands and Housing as draughtsman’s man III with salary Grade Level 04 with effect from 1st July, 2005 and subsequently had her appointment confirmed on March 11th, 2008. She pleaded that she underwent caesarean section on 25th June, 2010 and afterwards developed quadriplegia and that she remained in constant pain consequently. However, that she sought professional advice from a government recognized hospital and it was approved. That the medical report is 7th May, 2011. The Claimant pleaded that her salary was abruptly stopped without notice before the query was issued and that on 13th December she was served with a query. She stated that she has been going to work for the past 4 years without any payment from the defendants and subsequently contacted the Legal Aid Council and a letter was written to the 2nd and 3rd defendants. The Claimant stated that she was not suspended, neither was her appointment terminated but her salary was stopped and that she has suffered untold hardship and pains as a result of the stoppage of her salary and is now surviving at the mercy of public spirited individuals. The defendants filed their STATEMENT OF DEFENCE which was dated and filed on 9th November, 2015. The defendants commenced their defence by pleading that the 2nd and 3rd defendants cannot be sued and that the deletion of claimant’s name from 1st defendant’s payroll on 1/10/11 was because she had a case to answer bordering on serious misconduct, as specified under Rule 03401 (ii) of the Public Service Rules, 2004 of Cross River State. The Defendants admitted that claimant was issued appointment letter as draughtsman III with salary Grade Level 04 with effect from 1st July, 2005, but denied that she was employed on 28th June, 2008. To the Defendants, the claimant’s appointment was confirmed with effect from 1st July, 2007 and not 11th march, 2008 as claimed. The defendants pleaded that claimant was found variously wanting in that she absented herself from duty on several occasions without official permission and that documentary evidence shows that in 2009, she attended duty for 42 days only, in 2010 for 4 days only, while in 2011 she was on duty for only 9 days. Pleading further that the Zonal Town Planning Officer was never aware of any medical condition of the claimant during the period she absented herself from duty until she brought the fake medical report which she attached to the reply to the query issued her to exculpate herself. The defendants deny causing any hardship to the claimant and aver that her attending school at the expense of her paid job, without recourse to due process constitutes smartness against the defendants and is over reaching. In response to paragraph 25 of the Statement of Facts, defendants stated that the claimant is not entitled to any of the reliefs sought howsoever. The Defendants also brought a NOTICE OF PRELIMINARY OBJECTION which was dated and filed on 9th November, 2015, praying the Court to dismiss this suit. GROUNDS FOR THE OBJECTION. 1. The claimant’s suit against the defendants is statute barred, having been instituted over three years since the cause of action arose, in contravention of Sec. 1 (a) of the Public Officers Protection Law, Cap P17, Laws of Cross River State, 2004 and Sec. 16 of Limitation Law, Cap. L14, Laws of Cross River State, 2004. 2. The 2nd and 3rd defendants are non-juristic persons who cannot be sued. Accompanying the NPO was a WRRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION Wherein the defendants raised two issues; ON ISSUE 1 Whether this suit is competent, by reason of being statute barred having regard to its non-conformity with the provisions of Sec. 1 (a) of the Public Officers Protection Law, and Sec. 16 of the Limitation Law of Cross River State, 2004. Learned counsel submitted that the period of limitation is determined by looking at the writ of summons, and the Statement of Facts alleging when the wrong was committed, which gave rise to the claimant a cause of action, by comparing that date with the date on which the writ was filed; and that if the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. AKINSETE & ORS. v. KILADEJO (2013) LPELR-20215 (CA). He submitted that where a law provides for bringing an action within a stipulated time, any action brought thereafter will be statute barred and the action regarded as stale and no matter how viable the rights of the claimant, he will have no remedy in court as the claimant is regarded as having slept over his rights. EGBE v. ADEFARASIN (NO. 2) (1987) 1 NWLR (PT. 47) 1. Counsel submitted further that any action against a public Officer relating to any act done in pursuance or execution, or intended execution of any law, or public duty or authority, or in respect of any alleged neglect, or default in the execution of any such law, duty or authority, must be commenced within six months from the date the act was committed. EKEOGU v. ALIRI (1990) 1 NWLR (PT. 120) 345. ON ISSUE 2 Whether the head of service, Cross River State and Commissioner for Lands and Housing, CRS, sued as 2nd and 3rd defendants are juristic persons. Counsel submitted that the 2nd and 3rd defendants are not legal personalities who may sue or be sued as they are not created by statute and that the law recognizes 2 categories of persons who can sue and be sued viz; natural persons with life, mind and brain and other bodies or institutions having juristic personality. ATTORNEY GENERAL OF THE FEDERATION v. ALL NIGERIA PEOPLES PARTY & ORS. (2003) 18 NWLR 9PT. 851) 182, ADMINISTRATORS & EXECUTORS OF THE ESTATE OF ABACHA v. EKE-SPIFF & ORS. (2009) NWLR 2 – 350 (PT. 1139) 97. He argued that since the 2nd and 3rd defendants are not juristic person, not having the legal capacity to sue, or be sued, any writ issued against them will be deemed void ab initio. NZOM v. JINADU (1987) NWLR (PT. 51) 533. The Claimant filed an 8 paragraph COUNTER AFFIDAVIT on 8th December, 2015 and dated same day. And a WRITTEN ADDRESS IN SUPPORT OF COUNTER AFFIDAVIT Wherein the claimant raised one ISSUE;- Whether the defendants are entitled to the prayers before this Court. Counsel submitted that the claimant is not statute barred and that this suit is competent before the Court and that regarding the issue of statute barred, the defendants are being economical with the truth as the wrong is a continuous one as the claimant’s appointment was not terminated and that the panel reviewing her matter was still sitting in perpetuity just to frustrate the claimant and put her in a situation that she will resign. He submitted that this Court is a court of substantial justice and not one of technicality and is always quick and fast to ensure that substantial justice is served on litigants by departing from its ordinary rules if justice is to be served. ORDER 5 RULE 3 of the NATIONAL INDUSTRIAL COURT RULES, 2007. The Courts’ Decision Having carefully summarized the position of both sides, the arguments of opposing counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this judgment and specific mention would be made to them where the need arises. The issues for determination in this suit to my mind are the issues as formulated by the defendant;- 1. Whether this suit is competent, by reason of being statute barred having regard to its non-conformity with the provisions of Sec. 1 (a) of the Public Officers Protection Law, and Sec. 16 of the Limitation Law of Cross River State, 2004. 2. Whether the head of service, Cross River State and Commissioner for Lands and Housing, CRS, sued as 2nd and 3rd defendants are juristic persons. With regard to issue 1.;- Whether this suit is competent, by reason of being statute barred having regard to its non-conformity with the provisions of Sec. 1 (a) of the Public Officers Protection Law, and Sec. 16 of the Limitation Law of Cross River State, 2004. The position of the law is well established that in deciding whether a case is statute barred or not, the court only has to look at the writ of summons and the statement of claim alleging when the wrong was committed which give rise to the cause of action and comparing that date with the date the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the Limitation Law, the action is statute barred. See the cases of KANU v. ENUGU BROADCASTING SERVICE & ORS. (2014) 46 NLLR (PT. 148) 243, ELABANJO v. DAWODU (2006) 6 – 7 SC 24 . The question, therefore, is what the cause of action is and when did the cause of action in the instant action arise. The argument of the defendant is that the cause of action in the instant case is the stoppage of the claimants salary by the defendants on the 7th October, 2011, due to the claimant’s persistent absenteeism. The claimants argue that the case not statute barred. This means it would be necessary to determine what really the cause of action is in the instant case and then determine when it arose. In COMRADE ISHOLA ADESHINA SURAJUDEEN V. MR. ANTHONY NTED & ANOR unreported Suit No. NICN/LA/114/2013 the ruling of which was delivered on July 10, 2014 this Court (relying on ‘lai Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defined cause of action as – …the cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See also AG, FEDERATION V. AG, ABIA STATE & ORS [2001] 11 NWLR (PT. 725) 689 AT 733 and AGBOROH v. WAEC (2014) 43 NLLR (PT. 134) 31 NIC @ 34 The reliefs sought by the claimant are as follows;- 1. A declaration that the defendant’s stoppage of her salary without suspending or terminating her appointment is unlawful. 2. An order directing the defendants to pay the claimant her salaries and entitlement from the month of stoppage of her salary till date. 3. An order directing the defendants to promote me to the next level in accordance with State Civil Service rules and all my entitlements on that level be paid without delay. 4. The sum of (#100,000,000.00) One Hundred Million Naira as damages and compensation. The claimant in averments 6, 7, 9, 11, 12,16 and 17 of her statement on oath stated inter alia that she was employed on into the State Ministry of lands and Housing as draughtsman’s III with salary Grade Level 04 with effect from 1st July, 2005 and her appointment was confirmed on March 11th, 2008. And that she underwent caesarean section on 25th June, 2010 developed quadriplegia and remained in constant pain consequently she sought professional advice from a government recognized hospital as well as traditional medical practitioners. That her salary was abruptly stopped without notice before the query was issued and that on 13th December she was served with a query which she replied on the 14th December 2011. Learned author Ikechukwu D. Uko Esq. in his book Preliminary Objections to Jurisdiction ©2013 2nd Edition Published by Law Digest Publishing Co. Lagos at page 586 stated “Where a claim is for arrears of salary, such a claim pre supposes entitlement to such salary and denial of payment when and as it fell due. See the case of LUTH & MB Vs. ADEWOLE [1996] 7 NWLR (Pt. 463) 701. In a claim for salaries and allowance I find that the cause of action for withheld salaries is from the date the said salary fell due and was not paid. From the foregoing I find that the claimant’s salary stopped in 2011 is the cause of action especially as the claimants main reliefs are tied to this stoppage. In determining the time the cause of action accrued the court is bound by the pleading of the claimant and not that of the defendant. Now the claimant did not state when her salary was stopped but pleaded that her salary was stopped before she was given a query dated 13th December. Although in both the statement of fact and the witness statement on oath no year was affixed to this date. 2011. However by perusal of the claimants accompanying documents to the originating processes, hearing in mind that by law and by the authority AKINOLA V.C. UNILORIN [2004] 11NWLR (Pt. 885) 616 Ratio 13, AGBASI VS. EBIKERE [1997] 4 NWLR (Pt. 502) 630 and AGBAHOMORO Vs. EDIEYEGBE[1993] 2 NWLR (Pt. 594) 170 a court is entitled to look at a document in its file, I find that the letter of query was issued on 13th December 2011. Taking the 13th December as the date the defendant communicated to the claimant their observation of her absenteeism and the averment of the claimant that her salaries were stopped before she received the query. I find that cause of action in this matter accrued before 13th December 2011. Bearing in mind that the court is constrained to the originating processes in determining this question of law, the contents and averments contained in the claimants counter affidavit are of no import and cannot be entertained or considered by the court in resolving this legal question of statute bar and hence this content goes to no issue. See the case of UNREPORTED SUIT NO. NICN/LA/111/2014 KAGODE AJANI JOKESENUMI V NIGERIA CUSTOM SERVICE delivered on 16th March, 2015. The determination of whether a suit is statute barred or not involves the determination of the date on which the cause of action arose, which I have determined to be 13th December 2011and comparing same with the date on which the suit was filed. A perusal of the case file reveals that this case was instituted on the 19th June 2015. By law if the date on which the suit was filed shows that the claimant came outside the period within which he should have come to court, the suit will said to be statute barred. This comparison can be done without taking oral evidence from witnesses. AGBOROH v. WAEC supra. Now cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the Limitation Law has elapsed EBETALEYE v. MAINSTREET BANK LTD. & ORS. (2014) 44 NLLR (PT. 141) 596 NIC and EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1 @ 20. In the instant case I find this case was instituted 19th June 2015 – 13th December 2011 = three years, Six months and six days after the cause of action accrued. The defendants have asked this court to afford them the protection provided by Sec. 1 (a) of the Public Officers Protection Law, and Sec. 16 of the Limitation Law of Cross River State, 2004 The statute in question is section 1(a) of the Public Officers Protection Law, which provides as follows – 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 six 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. The issue being whether the defendants are not entitled to the protection of this act. To whom does the POPA apply or is the Public Officer Protection act applicable to this suit. The word Public Officer has been defined in section 7(1) of the Public Officers (Special provision) LFN2004 (formerly Act No. 10 of 1976) to mean;- “ any person who holds or has held office in (b) the public service of a state or federal government… (c) the service of a body whether corporate or unincorporated established under a Federal or State Law. Section 318(1) of the CFRN 1999 defines “Public service of a State to mean service in any capacity in respect of the Government of the Federation and includes service as (c) any member or staff of any commission or authority established for the State by this constitution or by an Act of the State Assembly.” In FGN Vs ZEBRA [2002] LPELR 3172 SC. The Supreme Court held that a public officer as stipulated in Section 2A Public Officers Protection Act not only refers to natural persons sued in their personal names but they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles PER MOHAMMED JSC. Also see the cases of ALHAJI ALIYU IBRAHIM Vs. JSC KADUNA & ANOR [1998]14 NWLR (Pt.583) p.1 and SULGRAVE HOLDINGS INC. &19 ORS Vs. FGN & 3ORS [2012]17 NWLR (Pt.1329) p.309 at 338. From the foregoing I find that the defendants are entitled to the protection afforded by the Public Officers Protection Law. Sec. 1 (a) of the Public Officers Protection Law, and Sec. 16 of the Limitation Law of Cross River State, 2004 provides a 6 month moratorium for the institution of cases against the defendant. having found that the claimant instituted this action three years, six months and six days after the cause of action and it means that this action was instituted three (3) years and (6) days after the limitation period had expired and is thus statute barred I find. See ADEKOYA V. FHA (2008) 11 NWLR (PT. 1099) 539. The defendant’s issue 2 was;- Whether the Head of service, Cross River State and Commissioner for Lands and Housing, CRS, sued as 2nd and 3rd defendants are juristic persons. By Law only natural persons, that is human beings and juristic or artificial persons, such as body corporate, are competent to sue or be sued. Thus, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. However, the law recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine (term meaning “by that name”. The United States Supreme Court uses it in the context of sovereign immunity). Thus, no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law a right to sue and be sued by that name, e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated. See the case of ATAGUBA & CO. v. GURA (NIG.) LTD. (2005) 8 NWLR (PT. 927) 429 referred to.] [Pp. 476-477, PARAS. G-D] As mentioned above the Apex Court in FGN Vs ZEBRA supra stated that Public Officers include natural persons sued in their personal names but they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles. That being the case I find no fault in the claimant bringing action against the natural persons who are sued in the nomenclature of their offices. However having found that this matter is statute barred the court is robbed of jurisdiction to further entertain or determine this case. The preliminary objection of the defendant has merit and accordingly succeeds. In consequence, I hereby find and hold that the claimant’s case is statute-barred by virtue of Section (1)(a) Public Officers Protection Law of Cross River State; -The claimant’s case is accordingly dismissed. I make no order as to cost. Judgement is entered accordingly. ………………………………………… Hon. Justice E. N. Agbakoba Presiding Judge Calabar Division