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COURT’S JUDGMENT On September 5, 2016 the claimant filed this complaint and by his amended Statement of Facts filed on February 10, 2017 the claimant is seeking for the following reliefs against the defendants: (1) An Order directing the defendants jointly and severally to pay the claimant the sum of N821,183.33K being the balance of 3 months’ salary in lieu of notice as contained in the claimant’s letter of disengagement dated 27th May 2015 and arrears of short-payment in claimant’s salary covering the period of February, 2011 to May 2015 while in the employ of the Defendants. (2) The claimant claims 10% interest on the amount claimed, from 27th May, 2015 when the claimant’s employment was unlawfully terminated till the debt is fully liquidated. (3) Cost of Action. Other initiating processes were filed along with the complaint in line with the Rules of this Court. In response, the defendants entered appearances through their counsel and filed their defence processes in compliance with the Rules of this Court. CLAIMANT’S CASE AS PLEADED The case of the claimant is that he was former staff of the defendant on grade level 8 step 3 based on Ogun State Salary Structure with a beef-up of 25% of the basic salary. That his salary was short paid right from the commencement of his work with the defendants to the time that his employment was terminated by the defendants. He averred further that, following a meeting held by all staff of the defendants on the way forward of the crisis facing the defendants; the defendants terminated his employment without giving him 3 months prior notice as stipulated in the terms of his employment and that the defendants part-paid him the sum of N64,909.82 in lieu of notice, thereby remaining the balance of N114,286.62k. THE DEFENDANTS’ CASE AS PLEADED The case of the defendants is that the claimant was paid his full salaries as agreed, prior to the offer of appointment and as subsequently agreed in various meetings held between the claimant, the 3rd defendant and other members of staff. They continued that the claimant failed to serve statutory pre-action notice on the defendants. The defendants further averred that the case of the claimant against the defendants is statute barred. Based on Order 38 Rule 33 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 parties elected to argue this case on record and the Court directed their counsel to file their written addresses in line with the Rules of this Court and they complied. CLAIMANT’S WRITTEN ARGUEMENT Counsel to the claimant filed final written address and formulated these issues for determination: 1. Whether the 2nd and 3rd defendants are juristic persons who can sue and be sued. 2. Whether the Court is divested of jurisdiction by virtue of section 2(a) of the Public Officers (Protection) Act, Cap 168 Laws of the Federation of Nigeria, 1990. 3. Whether the claimant satisfied the condition precedent in regards to pre-action notice to the defendants by his letter dated 5/11/2015. 4. If issues 1-3 are resolved in favour of the claimant, whether the claimant is entitled to the reliefs as claimed in his amended Statement of Facts. Arguing the first issue, counsel submitted that the 2nd and 3rd defendants are servants/officers of the 1st defendant a creation of Olabisi Onabanjo University Vol. 4, Cap 0-1599 Laws of Ogun State, 2006. He went on that the 2nd and 3rd defendants were created by statute with functions and powers, the exercise of which has affected the rights of the claimant herein. Therefore, the 2nd and 3rd defendants are capable of being sued in the circumstances of this case. He referred the Court to Section 45 (5) of Olabisi Onabanjo University Law; Green v. Green [1987] 3 NWLR (Pt. 16) 480 @ 493 and Carlen (Nig.) Limited v. University of Jos & Anor [1994]1 NWLR (Pt. 323) 631. He urged the Court to so hold. Arguing issue two of whether the matter is statute barred by virtue of section 2(a) of the Public Officers (Protection) Act, counsel submitted that the claimant’s case, strictu sensus, is for claims for work and labour done and/or breach of contract of employment which does not fall within the contemplation of section 2(a) of the Public Officers Protection Act. He continued that the Public Officers Protection Act does not apply to cases of breaches of contract and claims for work and labour done. He further submitted that section 4(1)(a) of the Limitation Law, Cap L187, Laws of Ogun State of Nigeria, 2006; which provides for the statutory period of six years is the applicable law to this case, citing Bureau of Public Enterprises v. Reinsurance Acquisition Group Ltd. & ors. [2008] LPELR – CA/A/195/M/05. He urged the Court to so hold. Arguing issue three of whether the claimant gave pre-action notice to the defendants, counsel contended that the single letter of the claimant dated 5/11/2015 and received by the 3rd defendant, being the direct boss of the claimant is sufficient notice on all the defendants herein. To counsel, it would not have been the intention of the legislature on section 45 (5) & (6) of Olabisi Onabanjo University Law that separate letters of pre-action notices be written to each and every one of the defendants. Arguing issue four of whether the claimant is entitled to his claimed reliefs, counsel submitted that from the claimant’s case viz a viz the documents on record, he was employed by the defendants as a teacher of Olabisi Onabanjo University Staff School owned and managed by the defendants. Referring to paragraph 3 of the Letter of Offer of Employment of February 3, 2011 counsel went on that one of the terms of the contract is that the defendants offered to pay to the claimant Grade Level 8 step 3 based on Ogun State Salary Structure with a beef up of 25% of the basic salary. He continued that the defendants have been short paying him right from the commencement of his work with the defendants; referring to paragraphs 6-16 of the Amended Statement of Facts, copies of the claimant’s pay advice emanated from the defendants for the months of May 2011, March 2012, June 2013, September 2013, March 2014, December 2014, April 2015 and May 2015 as evidence of the short payments of claimant’s salaries contrary to the agreed terms in his letter of employment of February 3, 2011. Counsel also referred to the defendants’ letter dated 28/04/2015 titled “RE: Letter of Complaints” through which the defendants tried to justify the payment of 50% salaries and allowances to their staff (including the claimant) to corroborate the claimants’ allegation against the defendants. Again, counsel submitted that the relationship between the claimant and the defendants in the instant case is one of contract of employment and that the breach occurred when the defendants failed, refused and neglected to pay him his full salary right from inception of his employment as promised in their letter of offer of employment. He urged the Court to hold that the claimant is entitled to the reliefs being sought. DEFENDANTS’ WRITTEN ARGUMENTS Counsel to the defendants filed his final written address and formulated issues for determination as follows: 1. Whether, consequent upon the failure of the claimant to issue and serve the requisite Statutory Pre-action notice on the 1st defendant, the Court has the required jurisdiction to entertain the suit. 2. Whether the claimant’s claims as presently constituted are statute barred. 3. Whether the 2nd and 3rd defendants, acknowledged by the claimant as agents of the 1st defendant can be competently sued in law. 4. Whether the Court has the requisite jurisdiction to entertain claimant’s action against the 2nd and 3rd defendants who are not juristic entities. Arguing the first issue, counsel submitted that the claimant woefully failed to issue and serve a statutory pre-action notice on the 1st defendant before he commenced the suit as required by section 45(4) of Olabisi Onabanjo University Law. He went on that no written notice was ever addressed to the 1st defendant or served by the claimant or his agent on the 1st defendant. To him, this instant action, filed without the requisite compliance with the mandatory provisions of Section 45 (4) & (5) of Olabisi Onabanjo University Law is void ab initio; citing Nigercare Dev. Co Ltd v. A.S.W. B. [2008] 9 NWLR (Pt.1093) 498 at 526-527 paras H-C and Barrister Gbenga Akingbehin v. Chief Mrs. Thompson [2008] 6 NWLR (Pt. 1083), [2007] LPELR-CA/L/59/2004, P.19, paras.D-G. He maintained that the letter dated 5th November 2015 served on the 3rd defendant does not and cannot be a tenable substitute for the need to comply with the provision of the law that provides for mandatory service of written notice of intention to commence a law suit (Pre-action notice) on the 1st defendant. Arguing issue two of whether this action is statute barred, counsel submitted that the cause of action in this suit, according to the claimant in paragraphs 6, 7, 8, 10, 12 and 13 of the Amended Statement of fact filed on February 10, 2017 arose in August 2011 and continued until May 27, 2015 when the appointment of the claimant was terminated by the 3rd defendant, which actually employed the claimant. In paragraph 14 of the Amended Statement of Facts, paragraph 15 of his written Statement on Oath filed on February 10, 2017 respectively, the claimant retained the service of a solicitor to write the letter of November 5, 2015 to the 3rd defendant exactly five (5) months and nine (9) days after the cessation of the cause of action on May 27, 2015. Counsel submitted that the case of the claimant is already statute barred before his solicitor’s letter of November 5, 2015 to the 3rd defendant. Furthermore, counsel submitted that the claimant filed the action on September 5, 2016; over eight (8) calendar months after the letter of November 5, 2015 was purportedly written to the 3rd defendant and over thirteen (13) calendar months after the cessation of the last cause of action on May 27, 2015. He contended that this suit is statute barred by the provisions of Section 2(a) of the Public Officers (Protection) Act, referring to the cases of A. G. Rivers State v. A. G. Bayelsa State [2013] 47 WRN 1 @ 23 lines 35 – 45; Araka v. Ejeagwu [2000] 15 NWLR (Pt. 692) 684 at 710 para C – D, Offoboche v. Ogoja Local Government [2001] 16 NWLR (Pt. 739) 458 at 489: [2001] 7 SCNJ 462 at 486-487, Mr. Lasisi Lawal v. Obafemi Awolowo University Ile-Ife [2016] LPELR-CA/AK/94/2014 and Mr. M. T. Ogunbanwo v. Obafemi Awolowo University Ile-Ife [2016] LPELR-CA/AK/96/2014; Elf Oil Nigeria Limited v. Oyo State Board of Internal Revenue, [2003] FWLR (Pt. 138) 1352: [2002] LPELR-12260(CA) Pp. 20-21, paragraphs F-C and Olagunju v. P.H.C.N Plc. [2011] 10 NWLR (Pt. 1254) 113 at 126 paras G – H. Also counsel submitted that the provisions of section 2(a) of the Public Officers’ (Protection) Act are applicable to contract of employment and the claims of the claimant before the Court, citing Mr. M. T. Ogunbanwo v. Obafemi Awolowo University Ile-Ife [2016] LPELR-CA/AK/96/2014 and Mr. Lasisi Lawal v. Obafemi Awolowo University Ile-Ife (supra) and the unreported Ruling of this Court in Suit No: NICN/IB/64/2015 between Mr. Ajayi Gabriel Abiodun v. Olabisi Onabanjo University, delivered on October 20, 2016. Arguing issue three of whether the 2nd and 3rd defendants are juristic persons, counsel submitted that the proper and necessary parties to an action where an agent is involved is, the disclosed principal and not the agent; citing Samuel Osigwe v. PSPLS Management Consortium Ltd & Ors. [2009] 16.W.R.N 1 S.C. :[2009] 3 NWLR (Pt. 1128) 378 at 411 paras B – F and Carlen (Nig.) Limited v. University of Jos & Anor[1994] 1 SCNJ 72, [1994] LPELR-SC.74/1992C, P. 32, paragraphs G-B: [1994] 1 NWLR (Pt. 323) 631 at 659 paras E – G. Counsel urged the court to dismiss the claims against the 2nd and 3rd defendants who have been shown by the claimant to be agents of the 1st defendant, a disclosed principal. Arguing issue four of whether the Court has jurisdiction to adjudicate on non-juristic persons, counsel submitted that it is only a juristic person, either natural or incorporated that can sue and be sued and that where the juristic personality of a party alleged by the claimant is denied by the defendant; it is incumbent on the claimant to satisfy the Court with tenable evidence that the defendant is known to law, citing A.C.B Plc. v. Emostrade Ltd [2002] 8 NWLR (Pt. 770) 501 @ 518; Lagos State Traffic Management Authority & Ors v. Johnson O. Esezobo, [2015] LPELR-25003(CA), P. 36, paragraphs A-G; Goldmark Nigeria Limited & Ors. v. Ibafon Company Limited & Ors. [2012] 3 MJSC (Pt.1) 90 at 143 paras B – E: [2012] 10 NWLR (Pt. 1308) 291 at 347 paras F - G, the Supreme Court. COURT’S DECISION I have gone through the facts of this case and the written arguments of counsel to the parties, from these I am of the considered view that issues to resolve are: 1. Whether or not the 2nd and 3rd defendants can be sued in this case. 2. Whether or not the claimant gave the requisite Statutory Pre-action notice of this case to the 1st defendant. 3. Whether or not this suit is statute barred. ON WHETHER THE 2ND AND 3RD DEFENDANTS CAN BE SUED IN THIS CASE The 2nd defendant is the Vice Chancellor of Olabisi Onabanjo University while the 3rd defendant is the Chairman, Management Board, Olabisi Onabanjo University Staff School. The defendants’ counsel argued that the two defendants are not juristic persons and so, they cannot be sued as parties in this case. The Vice Chancellor, Olabisi Onabanjo University is a creation of section 11 of the Olabisi Onabanjo University Law which provides that “there shall be a Vice-Chancellor of the University who shall be the principal academic and executive officer of the University and ex officio Chairman of the Senate, and who shall in the absence of the Chancellor confer degrees and other academic titles and distinctions of the University.” In paragraph 3.0.2 of the defendants’ final written address, their counsel admitted that the 2nd defendant, (the Vice Chancellor) is an officer of the university. In the case of Okon v. Enyiefem & Ors [2016] LPELR-41168(CA), the Court held that a party is referred to be nominal or formal, who, having some interest in the subject-matter before the Court, will not be affected by any judgment but, is nonetheless joined in the matter to avoid procedural defects. From the facts of this case, the 2nd defendant though will not be affected by judgment on this case; nonetheless, it was joined in this matter as an officer of the 1st defendant to avoid procedural defects. Therefore, I find that the 2nd defendant is a nominal party in this case. On the 3rd defendant; in a ruling delivered by this Court on the September 28, 2016 in the unreported case between Mr. James K. Adebayo v. University of Ilorin Teaching Hospital, Ilorin, with Suit No: NICN/IB/89/2014, the court held thus: The law is that if the Legislature has created a thing which can own property, can employ servants and inflict injury; then it must be taken to have impliedly given the power to make that created thing suable in a court of law for injuries purposely done by its authority and procurement. See the case of Taff Vale railway Co. v. Amalgamated Society Railway Servants [1901] AC 426 at 436. See also the book titled Civil Litigation in Nigeria by M. M. Stanley-Idum and J. A. Agaba published in October 2015 pages 202 to 204 thereof. Paragraph 5.3 of this Book at page 202 is sub-title: Main Types of Juristic Non Corporate Bodies; 1) Non-Corporate Statutory Bodies created by Statutes. The Authors wrote inter alia that: The statutes creating the bodies that fall under this group do not state that they are bodies corporate. But the statutes have vested them with certain functions which can result in injury. For this reason, the courts hold that this implies that these bodies can sue and be sued in their names. This, no doubt is to avoid the possibility of injustice occurring, if for instance, by certain actions they take, they can cause injury to others but cannot be held liable. An example of such situation is provided in the case of Thomas v. Local Govt. Service Board [1965] NMLR 310. The facts were that the appellant sued the Local Government Service Board, which a body is created by section 93 of the Local Government Law (West). It was not a corporate body but it was vested with power under section 5 of the customary Courts Law (West) to appoint (and, therefore, to remove) members of Customary Courts. The appellant sued for a declaration that the termination of his appointment by the Board as President of a Customary Court was illegal and ineffective. The Board contended that the action must fail because the Board was not a body corporate capable of suing or being sued. The Supreme Court rejected this contention. It stated per Brett JSC as follows: We reject the contention that a statutory body with functions like those of the Local Government Service Board is not liable to be sued for a Declaration, and we do so more readily since the statutory provision relating to the appellant’s office are such that injustice might result if the Board could not be made a defendant to any kind of proceedings. Also in Kpebimoh v. Board of Governors, Western Ijaw Teachers Training College [1966] NMLR 130, the Board was created by section 3 of the Education Law, Cap 32 of the Laws of the Western Region and it was conferred with the power of general financial management of the College etc. and the Board was sued for breach of contract and payment for work done in relation to its functions. The Board contended that it was not a juristic person such as to be sued in its name. Priest, J rejected this contention and held that having regard to its statutory functions, although it was not incorporated, the Board was capable of being sued in its name, distinct from its members. An unincorporated body, like the Board, which was empowered to do certain things which could result in injury to others, must be taken to have implied power to sue and be sued. The following letters were written on behalf of the Management Board, Olabisi Onabanjo University, Staff School (the 3rd defendant): i. The letter of offer of employment dated 3rd February, 2011 which contains the terms and conditions of the claimant’s employment. See page 14 of the record. ii. The claimant’s letter of confirmation dated 29th January, 2014. – page 16 of the record iii. Defendant’s letter dated 28/4/2015; which cut the claimant’s pay by 50% - see pg. 17 iv. Letter dated 27th May 2015, which terminated the claimant’s employment – see pg. 18 The contents of these letters show that the Management Board, Olabisi Onabanjo University, Staff School is an operating arm of the 1st defendant. The letters also evidenced the fact that the 3rd defendant has power to terminate the employment of the claimant, which has resulted in injury on the claimant. Even though by its enabling statute, it is not stated that 3rd defendant can sue or be sued, but by Courts’ decisions in Taff Vale Railway Co. v. Amalgamated Society Railway Servants Thomas v. Local Govt. Service Board (supra), Kpebimoh v. Board of Governors, Western Ijaw Teachers Training College (supra) and the content of the book titled Civil Litigation in Nigeria by M. M. Stanley-Idum and J. A. Agaba also referred to above; the 3rd defendant is suable in a court of law for injury done on the claimant. Consequently, I find and hold that the 2nd and 3rd defendants are rightly sued as defendants in this case. ON THE PRE-ACTION NOTICE The position of the defendants is that the claimant did not serve pre-action notice on the 1st defendant, Olabisi Onabanjo University as required by section 45 (5) & (6) of the Olabisi Onabanjo University Law, see paragraph 6 of the Statement of Defence. On the other hand, the claimant contended that he served the 3rd defendant (the Chairman Management Board, Olabisi Onabanjo University, Staff School) with a pre-action notice through a document titled: “Claim for the Entitlement of Rasheed Kareem Adeniyi” written for the claimant by his counsel on November 5, 2015. See page 58 of the record for this letter and see paragraph 14 of the Statement of Facts for this pleading. Section 45 (4) and (5) of the Olabisi Onabanjo University Law provide that: (4) “No suit shall be commenced against the University until at least three months after written notice of intention to commence the same shall have been served on the University by the intending plaintiff or his agent; and such notice shall clearly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff and the relief which he claims.” (5) “For the avoidance of doubt, it is hereby declared that no suit shall be commenced against an officer or servant of the University, in any case where the University is vicariously liable for any alleged act, neglect or default of the officer or servant in the performance or intended performance of his duties unless three months at least has elapsed after the written notice of intention to commence the same shall have been served on the University by the intending plaintiff or his agent.” The 1st defendant in this case is a Corporate Body who cannot be served personally with any process except through its officers or agent. The defendants are not denying the fact that the 3rd defendant is an agent of the 1st defendant, neither are they denying that the document titled: “Claim for the Entitlement of Rasheed Kareem Adeniyi” that was served on the 3rd defendant was a pre-action notice. In Nigercare Development Co. Ltd v. A.S.W.B [2008] 9 NWLR (Pt. 1093) page 498 at 526-527 paragraphs H-C, per Tobi JSC held that: The rationale behind the requirement for pre -action notice is to enable the defendant know in advance the anticipated action and a possible amicable settlement of the matter between the parties, without recourse to adjudication by the court. It is a harmless procedure designed essentially to stop a possible litigation, thus saving money and time of the parties. It is almost like pre-action letter of demand emanating from chambers of counsel for a plaintiff to a defendant, asking for specific conditions to be fulfilled in order to avoid or avert litigation. This being the case, I find and hold that the service of the pre-action notice on the 3rd defendant by the claimant amounts to good service of the said pre-action notice on the 1st defendant. I further hold that with the evidence of service of pre-action notice before the Court, the claimant has complied with the requirement of section 45 (4) and (5) of the Olabisi Onabanjo University Law before filing this case in Court. ON WHETHER THIS SUIT IS STATUTE BARRED Before resolving the issue, it is necessary to decide on the applicable law that limits this action. Is it Section 4(1) (a) of the Limitation Law Cap L187, Laws of Ogun State of Nigeria or section 2(a) of the Public Officers’ Protection Act or section 2 (a) of the Public Officers’ Protection Law of Ogun State 2006? It is to be noted that section 4 (1) (a) of the Limitation Law of Ogun State Vol. 3, 2006 applies to simple contracts (contract for service) like supply of materials or for construction. It does not apply to contract of service like employment contract where there are regular payments of salaries either monthly or quarterly to employee for the steady job he does for his employer. Secondly, by the averments in paragraphs 1 and 2 of the Statement of Facts, the defendants are creations of statute; the Olabisi Onabanjo University Law, Laws of Ogun State of Nigeria. Therefore, by section 318 of the 1999 Constitution of the FRN as amended, the defendants are Public Officers within the Public Service of Ogun State and so, the applicable law to this case is the Public Officers’ Protection Law, Laws of Ogun State, 2006 and not the Limitation Law of Ogun State Vol. 3, 2006. Section 2(a) of the Public Officers’ Protection Law, Laws of Ogun State, 2006 provides: where any action, prosecution, or other proceeding is commenced against any public officer 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 such 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 three months next after the ceasing thereof. In essence, from the above reproduced statute, the claimant is allowed to institute this action against the defendants who are Public Officers in Ogun State of Nigeria, by virtue of section 318 of the Constitution of the FRN, 1999 as amended, within three months of the accrual of his cause of action against them. In determining whether an action is statute barred, the Court is restricted to the contents of the writ of summons and the averments in the statement of claim which, in this case are the complaint and statement of facts. See the case Olora v. Adegbite [2013] 1 NWLR (Pt. 1334) 40. The averments of the claimant in paragraphs 6, 7, 8, 10, 12 and 13 of the Amended Statement of facts are to the effect that he was short paid his salaries right from the commencement of his work with the defendants in August 2011 until May 27, 2015 when his appointment was terminated. The claimant filed this case on September 5, 2016; which is over one year after the accrual of his cause of action. This is contrary to the provision of section 2(a) of the Public Officers’ Protection Law, Laws of Ogun State, 2006; which limits the period within which to file the case to three months after the accrual of the cause of action. The law is that any suit or action, which is filed after the period allowed by a statute is statute barred because such action is no longer maintainable in any Court of Law as the operation of the limitation law leaves the plaintiff/claimant with a right of action which is dead in law. Hence, no Court will have jurisdiction to entertain the action; see Sylva v. INEC [2015] 16 NWLR (Pt. 1486) SC 576. Consequently, I find and hold that the claimant’s case is statute barred and his right of action in this case is not maintainable, same having being filed, outside the statutory requirement of 3 months allowed by section 2(a) of the Public Officers Protection Law, Laws of Ogun State, 2006. In addition, I hold that this Court has no jurisdiction to adjudicate on this suit and the case is accordingly dismissed. Judgment is entered accordingly. I make no order as to cost. Hon. Justice F. I. Kola-Olalere Presiding Judge