Download PDF
REPRESENTATION WILLIAM AWALU for the claimant EKEMINI UDI for the defendant JUDGEMENT The claimant, by a General Form of Complaint filed on 29th October, 2015 along with the Statement of Facts, List of Witnesses, Written Statement on Oath and List of Documents, approached the Court for the following reliefs: 1. A declaration that the purported invalidation of the claimant’s appointment on Secondment as Chief Confidential Secretary in Akwa Ibom State University by the defendants, after offer of appointment dated 26th January, 2015 and assumption of duty by the claimant, is wrongful, irregular and a breach of contract. 2. An order for the payment of the sum of #737,600.70 (Seven Hundred and Thirty Seven Thousand, Six Hundred Naira, Seventy kobo) being outstanding basic salaries for February, March and April, 2015. 3. An order for the payment of the sum of #921,036.00 (Nine Hundred and Twenty One Thousand and Thirty Six Naira) being consolidated Allowances due and payable to the claimant for February, March and April, 2015. 4. #453,546.01 (Four Hundred and Fifty Six Thousand, Five Hundred and Forty Six Naira, One Kobo) being one months’ salary/allowances in lieu of one months’ notice. 5. #1 Million cost of Relocation and inconveniences. 6. #10 Million general damages for breach of contract. The Defendants brought a NOTICE OF PRELIMINARY OBJECTION dated 28th January, 2016 and filed on 29th January, 2016 and supported by a 10 paragraph affidavit deposed to by Emem Ikpatt, that this suit is incompetent and this Honorable Court has no jurisdiction to hear and determine same. GROUNDS FOR THE OBJECTION 1. By careful reading of the claimant’s Statement of Facts and Written Statement on Oath, the cause of action in this suit arose on 28th April, 2015, when the 1st defendant, through the 2nd defendant issued a letter invalidating the claimant’s earlier appointment letter of 26th January, 2015. 2. Claimant filed this action against the defendants on 28th October, 2015 (6 months after the cause of action). 3. The defendants are Public officers and by Section 1 (1) of the Public Officers Protection Law, Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000, any action for any act, neglect or default complained against them, ought to be commenced within 3 months next after the act complained of. 4. The claimant’s action was commenced more than 3 months after the cause of action arose and therefore robs this Court of the jurisdiction to entertain same. 5. MOREOVER, the claimant’s complaint and the accompanying processes have not been stamped and sealed by a Legal Practitioner whose name is on the Roll of Legal Practitioners in Nigeria. WRITTEN ADDRESS ISSUES 1. Whether the suit of the claimant against the defendants is not statute barred in view of Public officers and by Section 1 (1) of the Public Officers Protection of Akwa Ibom State in that it was not commenced within 3 months next after the act complained of. 2. Whether this suit is competent before the Court having not been stamped and sealed by a Legal Practitioner in the way and manner prescribed in Rule 10 (1) of the Professional Conduct for Legal Practitioners, 2007. ON ISSUE 1 Whether the suit of the claimant against the defendants is not statute barred in view of Public officers and by Section 1 (1) of the Public Officers Protection of Akwa Ibom State in that it was not commenced within 3 months next after the act complained of. Learned Counsel submitted that to determine the period of limitation, the Court looks at the Writ of Summons and the Statement of Facts to see when the wrong which gave the claimant a cause of action was committed. That in doing so, the Court compares the date the cause of action arose with the date on which the Writ of Summons was filed. IBRAHIM v. LAWAL (2015) 17 NWLR (PT. 1489) 490 @ 552. He contended that this suit filed about 6 months after the cause of action arose, is statute barred having not been filed within 3 months as stipulated by Section 1 (1) of the Public Officers Protection Law, Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000. FRED EGBE v. JUSTICE ADEFARASIN (1985) 1 NWLR (PT.) 549 @ 568; IBARAHIM v. JUDICIAL SERVICE COMMISSION (1998) 14 NWLR (PT. 584) 1, per Iguh, JSC. Counsel submitted that the use of the word “any person” in Sec. 1 (1) of the said Law is not only limited to natural persons (such as the 2nd defendant) but also includes arterial persons (such as the 1st defendant). IBRAHIM v. JUDICIAL SERVICE COMMISSION (supra); ATTORNEY GENERAL OF RIVERS STATE v. ATTORNEY GENERAL OF BAYELSA STATE (2013) 3 NWLR (PT. 1340) 123; CENTRAL BANK OF NIGERIA v. SHIPPING COMPANY SARA B. V. (2015) 11 NWLR (PT. 1469) 131 @ 154, PARAS. D-E, per Obaseki-Adejumoke, JCA; BASSEY ESSIEN & 6 ORS. v. COLLEGE OF EDUCATION, AFAHA NSIT & 2 ORS. – Suit No: NICN/CA/51/2014 decided by this Court, per Hon. Justice E.N. Agbakoba at page 14 of her ruling. ON ISSUE 2 Whether this suit is competent before the Court having not been stamped and sealed by a Legal Practitioner in the way and manner prescribed in Rule 10 (1) of the Professional Conduct for Legal Practitioners, 2007. Counsel referring the Court to the entire originating processes filed by the Claimant’s Counsel, submitted that the provision of Rule 10 (1) of the Professional Conduct for Legal Practitioners, 2007 has not been complied with and that in the face of such default, the originating processes and indeed the claimant’s entire suit is defective, incompetent and ought to be dismissed or struck out. SENATOR BELLOW YAKI v. SENATOR ATIKU ABUBAKAR BAGUDU – Suit No. SC. 722/2015; LPELR – 25721, per Ngwuta, JSC. The Claimant/Respondent filed a 6 paragraph COUNTER AFFIDAVIT on 11th February, 2016 and dated same day, deposed to by Daberechi Nwamara. RESPONDENT’S in their WRITTEN REPLY TO THE NOTICE OF PRELIMINARY OBJECTION. Raised the following ISSUES 1. Whether Sec. 1 (1) of the Public Officers Protection Law of Akwa Ibom State is applicable to render claimant’s claims for payment of outstanding salaries/allowances/terminal benefits as contained in paragraphs 24 and 27 of the Statement of Claims, statute barred. 2. Whether this suit is competent having been duly stamped, sealed and signed by claimant’s solicitors as required by Rule 10 (1) of the Rules of Professional Conduct, 2007. ON ISSUE 1 Whether Sec. 1 (1) of the Public Officers Protection Law of Akwa Ibom State is applicable to render claimant’s claims for payment of outstanding salaries/allowances/terminal benefits as contained in paragraphs 24 and 27 of the Statement of Claims, statute barred. Learned Counsel submitted that a comprehensive appraisal of the claims and depositions of witnesses before this Honorable Court shows that this action is predicated upon specific terms of a contract and conditions of service approved by Akwa Ibom State University and binding to parties to this proceedings. NIGERIAN PORTS AUTHORITY v. CONSTRUZIONI GENERALE (1974) 1 ALL NLR (PT. 2) 463; SALAKO v. LEDB (1953) 20 NLR 169; ENERGY MARINE & INDUSTRIAL LTD. v. MINISTER OF FEDERAL CAPITAL TERRITORY (2010) LPELR 1974; OSUN STATE GOVT. v. DALAMI NIG. LTD. (2007) 9 NWLR (PT. 1038) 83-84, per Katsina-Alu, JSC. ON ISSUE 2 Whether this suit is competent having been duly stamped, sealed and signed by claimant’s solicitors as required by Rule 10 (1) of the Rules of Professional Conduct, 2007. Counsel to the defendants argued that if the counterpart copies of the processes served on the defendants were not stamped as alleged by the Applicants, the proper step to take was to draw the attention of the Respondent to the omission and not technically convering up by urging the court to dismiss this suit. SENATOR BELLOW SARKIN YAKI (RTD.) v. SENATOR ATICKU ABUBAKAR BAGUDU, SUIT NO. SC/722/2015, per Walter Onnoghen, JSC. REOINIDER ON POINTS OF LAW dated and filed on 29th February, 2016. On claimants’ submission that the claims and depositions of the claimant is predicated upon specific terms of a contract and conditions of service approved by the Akwa Ibom State University and that Sec. 1 (1) of the public Officers Protection Law does not apply to breaches of contract, Defence counsel submitted that where the words used in a statute are clear and unambiguous, the duty of the court is to apply the words as used by the legislature. CALABAR CENTRAL CO-OPERATIVE THRIFT CREDIT SOCIETY LTD. v. BASSEY EBONG EKPO (2008) 6 NWLR (PT. 1083) 362, per Onnoghen, JSC; JOHN EKEOGU v. ELIZABETH ALIRI (1991) 3 NWLR (PT. 179) 258; (1991) LPELR-1079 (SC), per Kawu, JSC. The defence Counsel submitted that a contract for supply of goods would not be caught up by the limitation law to preclude a contractor from recovering his due against a public officer, that is to say, a purely commercial contract will not be affected by statute of limitation. OSUN STATE GOVERNMENT v. DALAMI NIGERIA LTD. (2007) 9 NWLR (PT. 1038) 66; (2007) LPELR-2817 (SC); ENERGY MARINE & INDSUTRIAL LTD. v. MINISTER OF THE FEDERAL CAPITAL TERRITORY (2010) LPELR-1974 On the 15th April 2016 parties adopted their written statements and adumbrated their respective positions accordingly. Court’s 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 ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendant’s application. The law is clear on what a court has to do when the question of a matter being statute barred is raised however the 2nd issues of the defendants goes to the foundation of this suit as the question relates to the originating processes and this requires resolution before even the question of competence. The defendants have questioned the entire originating processes filed by the Claimant as contravening the provision of Rule 10 (1) of the Professional Conduct for Legal Practitioners, 2007 arguing that in the face of such default, the originating processes and indeed the claimant’s entire suit is defective, incompetent and ought to be dismissed or struck out. SENATOR BELLOW YAKI v. SENATOR ATIKU ABUBAKAR BAGUDU – Suit No. SC. 722/2015; LPELR – 25721. The claimant in response countered by submitting that this suit is competent having been duly stamped, sealed and signed by claimant’s solicitors as required by Rule 10 (1) of the Rules of Professional Conduct, 2007. And that if the counterpart copies of the processes served on the defendants were not stamped it is remediable BELLOW SARKIN YAKI (RTD.) v. SENATOR ATICKU ABUBAKAR BAGUDU, SUIT NO. SC/722/2015, per Walter Onnoghen, JSC. I am well aware that the paramount duty of courts is to do justice and not to cling to technicalities inherent in rules of court so long as same have not been substantially complied with and the object of the rule is not defeated, and the failure to comply has not occasioned a miscarriage of justice. See SA’EED V. YAKOWA (2013) 7 NWLR (PT. 1352) 124 @ 133 - Per NGWUTA, J.S.C. at pages 164-165 paras. D-a: The position of the law with regard to the affixing of the profession stamp and seal is provided for in Section 10(1) of the of Rule 10(1) Rules of Professional Conduct of the Legal Practitioners Act 2007 as follows;- (1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or ministry or any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association. Sub (2) goes on to define Legal document to include inter alia pleadings filed in Court. And in Section 10(3) the rules provide that ;- (3) If, without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in sub-rule (2) of this rule, and in any of the capacities mentioned in sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed. The position of the law is as was stated in the case of ALL PROGRESSIVE CONGRESS (APC) V. GENERAL BELLO SARKIN YAKI (UNREP) delivered on October 27, 2015 in Appeal No: SC/722/15 the apex Court held that “if without complying with the mandatory provision of Rule 10(1) Rules of Professional Conduct, 2007 a lawyer acting in his capacity as a Legal Practitioner or legal adviser of any Government department or Ministry or any Corporation, signs or files a legal document without a seal or stamp of the Nigerian Bar Association, The document so signed or filed shall be deemed not to have been properly filed or served.” In that case, the court held that the signing and filing of the legal document by a lawyer shall be incompetent if the NBA stamp is not affixed to it. This court ruled in the cases of NICN/UY/04/2015 INCORPORATED TRUSTEES OF THE ASSOCIATION FOR THE WELFARE OF RETIRED LOCAL GOVERNMENT STAFF, AKWA IBOM STATE. Vs. HON. COMMISSIONER FOR LOCAL GOVERNMENT & 3 Ors Vs. delivered on 16th February 2016 and NICN/AK/22/2015 CHIBUZOR ONYE-NSO Vs. FIRST MAXIMUM POINT INDUSTRIES LIMITED delivered on the 9th February 2016 That the NIC is not a court cut out for highly technical preserves especially as the court had taken judicial notice of the fact that many legal practitioners where yet to obtain the said stamp for sealing in line with the rules. This position stems from the practice direction notification issued by the President of this Court that evidence of Nigeria Bar Associations payment should be present in lieu of the stamp and seal, thus the court has variously held for the time being at least the absence of a stamp and seal is voidable. The court went on in INCORPORATED TRUSTEES OF THE ASSOCIATION FOR THE WELFARE OF RETIRED LOCAL GOVERNMENT STAFF, AKWA IBOM STATE. Vs. HON. COMMISSIONER FOR LOCAL GOVERNMENT & 3 Ors to hold that “the document could be saved and its signing and filing regularized by affixing the approved seal and stamp on it. That failure to affix the stamp does not render the process incompetent but irregular or voidable”. The court went on to extend time within which the party must affix the said stamp and seal accordingly. Now looking at the claimant’s processes I find that the claimant processes where indeed duly stamped and sealed with the seal of the legal practitioner who signed the process. This flank of the defendant’s objection has not merit, thereby fails and is hereby dismissed. The first flank of the defendant’s objection that this suit is caught up by Section 1 (1) of the Public Officers Protection Law of Akwa Ibom State in that it was not commenced within 3 months next after the act complained of. The law is well established on what a court must do when presented with the question of whether a matter is statute barred, in the case of GRAINS PROD. AGENCY V. EZEGBULAM (1999) 1 NWLR (PT. 587) 401 it was held that. “In order to determine the period of limitation, one has to look at the writ of summons and the statement of claim and compare the averment on the statement of claim as to the date the wrong was committed with the date the writ of summons was filed. If the period between those two events is longer than the period prescribed by the relevant law as the period of limitation, the action is statute-barred. See also EGBE V. ADEFARASIN (1985) 1 NWLR (PT. 3) 549, where it was held as follows: 1. “Where the law provides for the bringing of action within a prescribed period, in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the time prescribed by the statute. Action brought outside the prescribed period offends against the provision of the section and does not give rise to a cause of action.” 2. Meaning of “cause of action” – “A cause of action means the factual situation stated by the plaintiff, if substantiated, entitles him to a remedy against the defendant.” The task before this court is to determine the cause of action and when it accrued then to compare this date with the limitation period prescribed by law. The claimants reliefs are;- 1. A declaration that the purported invalidation of the claimant’s appointment on Secondment as Chief Confidential Secretary in Akwa Ibom State University by the defendants, after offer of appointment dated 26th January, 2015 and assumption of duty by the claimant, is wrongful, irregular and a breach of contract. 2. An order for the payment of the sum of #737,600.70 (Seven Hundred and Thirty Seven Thousand, Six Hundred Naira, Seventy kobo) being outstanding basic salaries for February, March and April, 2015. 3. An order for the payment of the sum of #921,036.00 (Nine Hundred and Twenty One Thousand and Thirty Six Naira) being consolidated Allowances due and payable to the claimant for February, March and April, 2015. 4. #453,546.01 (Four Hundred and Fifty Six Thousand, Five Hundred and Forty Six Naira, One Kobo) being one months’ salary/allowances in lieu of one months’ notice. 5. #1 Million cost of Relocation and inconveniences. 6. #10 Million general damages for breach of contract. From the claimants written statement on oath particularly averments 14 ‘That the claimant resumed work at the Akwa Ibom State University on 2nd February 2015…….but the defendants failed neglected and or refused to pay him his salaries and allowances for February , March and April 2015…. And in averment 17 the claimant went on; “that rather than regularize my salaries/ allowances…..the 2nd defendant forwarded another letter on 28th April 2015 purportedly invalidating claimant’s earlier appointment …..” And in averment 18 “The letter of the 2nd defendant received in the office of the Registrar, University of Calabar on 28th April 2015 will be founded upon during trial”. From the forgoing I find that the cause of action in this suit is the invalidation of the claimant’s appointment and the non-payment of his salaries and allowances. The invalidation I find accrued on the 28th April 2015, which means that in respect of reliefs 1, 5 and 6 the cause of action accrued on the 28th April 2015. With regard to salaries the law is as was stated by the 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. The claimants salaries being in a sequence fell due when the last month’s salary was not paid which in this case is April 2015. So the cause of action with regards to reliefs 2, 3, and 4 arose from the end of April when has salaries due where not paid. From the case filed this suit was filed in this court on the 29th October 2015. Section 1(a) of the Public Officers Protection Law Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000 provides;- 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 Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any Law, duty or authority, 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. By virtue of KANU v. ENUGU BROADCASTING SERVICE & ORS. (2014) 46 NLLR (PT. 148) 243 where this court held that the Public Officers’ Protection Act applies to both natural and artificial persons. IBRAHIM v. JUDICIAL SERVICE COMMISSION (1998) 14 NWLR (PT. 584) 1; ABUBAKAR v. GOVERNOR OF GOMBE STATE (2002) 17 NWLR (PT. 797) 533; NWAOGWUGWU v. PRESIDENT, FRN (2007) 1 ALL FWLR (PT. 389) 1327 And considering the provisions of 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 means service in any capacity in respect of the Government of a State and includes service as (f) staff member or staff of any educational institution established or financed principally by a government of a State”. I find that the defendants are entitled to the protection afforded by the Public officers protection Law of Akwa Ibom State. 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 gives 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. ELABANJO v. DAWODU (2006) 6 – 7 SC 24. By simple mathematical calculation this suit was instituted 29th October 2015- 28th April 2015 = Six (6) months and two (2) days after the cause of action accrued with respect to reliefs 1, 5 and 6 while reliefs 2, 3, and 4 were instituted 29th October –April 2015(end of April) = five (5) months and 29 days after their cause of action arose. The public officers’ protection law of Akwa Ibom state gives a three (3) month moratorium for suits commenced against public officers. The claimant have argued this suit is predicated upon specific terms of a contract and conditions of service and not covered by the Public officers limitation. The law is that independent contractors for the provision of services for a public services body or authority by virtue of contract are not contemplated by the limitation law under consideration /see AGBOROH v. WAEC (2014) 43 NLLR (PT. 134) 31 NIC @34 and BUREAU OF PUBLCI ENTERPRESIES v. REINSURANCE ACQUISITION GROUP LTD. & ORS. (2008) LPELR-8560 (CA) However the claimants averments 4 “…Sometime in May 2013 the 1st Defendants …offered him … a sabbatical appointment as Chief Confidential Secretary on secondment…” Averment 6 …a special request was made ……..for the retention of the claimant……for another two years…” And as the court is entitled to look at documents in the court’s file, See ABIODUN Vs. AGF [2007] LPELR 8550 CA the 1st defendant letters;- “Offer of sabbatical appointment…..” dated 13th May 2013 and “Ignatius Ekpenyong Chief Confidential Secretary! dated 16th January, 2015 The above I find present as a contract for employment and not a contract of service or an independent contractor situation and contracts for employment are however caught up by the Public officers’ protection limitation such as Public officers’ protection Law of Akwa Ibom State. See FORESTRY RESEARCH INSTITUTE OF NIGERIA Vs. GOLD [2007] 11NWLR (PT. 1044) 1, See also JOHN EGBELE Vs THE POST MASTER GENREAL [2009] LEPLR 8870 C A From the foregoing I have no hesitation in holding that the claimant suit is caught up by Section 1(a) of the Public Officers Protection Law Cap. 104, Vol. 5, Laws of Akwa Ibom State, 2000. By EBETALEYE v. MAINSTREET BANK LTD. & ORS. (2014) 44 NLLR (PT. 141) 596 NIC A 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. EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1 @ 20. This court is in consequence robbed of jurisdiction as this case cannot proceed. The defendant’s preliminary objection succeeds with respect to the 1st flank, this matter is statute barred and is hereby dismissed. Judgement is entered accordingly. …………………………………………………. Hon. Justice E. N. Agbakoba Presiding Judge Calabar