Download PDF
The claimant filed a complaint against the defendants on the 3rd May 2012 claiming the following reliefs: 1. The sum of N79,919,625.00 (Seventy Nine Million, Nine Hundred and Nineteen Thousand, Six Hundred and Twenty-five Naira) being unpaid severance gratuity, hospitality and security allowances due and payable to the claimant from the defendants, as speaker of the Imo State House of Assembly between May 2007 and June 2011, which the defendants have failed, refused and or neglected to pay despite repeated demands. 2. Interest on the aforesaid sum at the rate of 10% per annum from the date of the judgment until the judgment debt is liquidated. Accompanying the complaint is the statement of facts, name of witness, documents to be relied on, affidavit of verification and the sworn deposition of the witness. Filed alongside the complaint is a motion on notice for summary judgement. In reaction, the defendants filed a conditional appearance, a notice of preliminary objection together with a written address in support of the motion on the 11th June 2012. The preliminary objection is brought under the inherent jurisdiction of the court. It is praying for the following orders: 1. An order of court striking out this suit for want of jurisdiction. 2. And for such further order or other orders as the Honourable Court may deem fit to make in the circumstances. The grounds upon which the objection is brought are: 1. This suit is statute-barred and the Honourable Court therefore lacks the jurisdiction to entertain same. The objection is supported by a 5 paragraph affidavit sworn to by Anthony Mbadiniju together with a written address in support. A further affidavit in support was sworn to by Rowland Ugwuegbu on the 25th June 2012 and a further written address filed on the same day. In response the claimant filed a counter affidavit of 7 paragraphs which was sworn to by Eucharia Anyanwu, Solicitors Clerk on the 25th June 2012 together with his written address in opposition to the objection dated 25th June 2012. Learned counsel to the defendants began with an oral application to be granted leave to rely on a “further further” affidavit she filed the morning this preliminary objection was fixed for hearing despite the new practice directions on preliminary objections which has no provision for such a process. She submitted that the Rules as shown in the new practice directions is inadequate and therefore sought to rely on Order 15 of the Rules of court. She argued that it will be a denial of the defendants’ right to fair hearing if this application is not granted to enable them deny facts deposed to in the counter-affidavit. She submitted that the practice directions be declared null and void to the extent of the inconsistency in that it denies the defendants their right to fair hearing. She urged the court to extend the time for filing of the further further affidavit and deem same as properly filed and served. She then adopted the written address. Learned counsel to the defendants raised three issues for determination as follows: 1. Whether this suit is statute barred having regard to the provisions of the Public Officer’s Protection Act. 2. Whether the proper party is before the court. 3. Whether the suit was commenced by due process. She submitted that the suit as constituted is statute barred having been commenced after the time prescribed by section 2 of the Public Officer (Protection Act) Cap 4, LFN 2004 which is within 3 months of the act, neglect or default complained of or in the case of a continuing damage or injury within 3 months next after the ceasing thereof. He referred to section 18(1) of the Interpretation Act LFN 2004 for the definition of Public Officers and Abubakar v Governor of Gombe State [2002] 17 NWLR (Pt 797) 533 CA, Ibrahim v J.S.C. [1998] 14 NWLR (Pt 584) 1, Nwaogwugwu v President Federal Republic of Nigeria (No citation) and submitted that all the defendants fall under the ambit of the Public Officers Protection Act. Learned counsel stated that the cause of action accrued from June 2011 and that this suit was filed on the 3rd May 2012 which is about 11 months after the alleged default. She submitted that in determining the period of limitation, one has to look at the time the cause of action arose and compare it with the date the complaint was filed, citing Okenwa v Military Governor Imo State [1997] 6 NWLR (Pt 507) 154, Ikurie v Edjerode [2001] 18 NWLR (Pt 745) 446. That any action brought outside the prescribed period is statute barred. She submitted that this action, not having been commence within 3 months after the cause of action arose is statute barred and the court lacks jurisdiction to entertain the suit, citing Adigun v Ayorinde & ors [1993] 8 NWLR (Pt 313) 516. Learned counsel submitted that the defendants are not the proper parties to be sued. That the 1999 Constitution has made the House of Assembly of a state autonomous and distinct from the Executive arm of Government and that by the principle of separation of powers, the legislature is a separate and distinct arm of Government with full powers to run itself. It was her contention that the House of Assembly Service Commission, a body statutorily responsible for the implementation of the conditions of service of members of the House should be held liable if there is any entitlement to any member which is unpaid and not the defendants in this suit. Learned counsel cited Onwunalu v Osademe [1971] All NLR 14 at 390, Ekpere v Aforije [1972] 1 All NLR 220, Oloriode v Oyebi [1984] 1 SCNLR 390 and urged the court to hold that the proper parties are not before the court. Learned counsel submitted that for the court to exercise jurisdiction in this suit, it must have been commenced by due process referring to Madukolu v Nkemdilim (no citation). She submitted that summary judgement procedure under the Rules of this court is like the undefended list procedure that can only be adopted in a liquidated money demand. It was her contention that this suit cannot be commenced on the undefended list because it has become contentious, citing Alhaji Kabiru v Alhaji Ibrahim [2005] ALL FWLR (Pt 240) 116, Kaduna State Transport Authority v Ofodile [1999]10 NWLR (Pt 622) 259. She then urged the court to strike out this suit for being incompetent. The Learned SAN began by adopting the claimant’s written address and opposing the defendants’ application for leave to rely on the further further affidavit. He submitted that Order 15 of the rules is inapplicable as there is a procedure to be followed provided in the new practice directions with regard to preliminary objections. He submitted that the defendants have not been shut out as they have been given the opportunity to present their case. He relied on the ruling of the court delivered on the 23rd July 2012 in Hon Bede Eke v Imo State Government, Suit No NICN/EN/71/2012 and urged the court to refuse the application and expunge the further further affidavit from the records. The learned SAN raised two issues for determination as follows: (i) Whether, having regard to the facts and circumstances of this matter, the proper parties are not before the Honourable Court. (ii) Whether this Honourable Court has the jurisdiction to entertain and determine this matter having regard to the provisions of section 2(a) of the Public Officers’ Protection Act. He submitted that the claimant has sued the persons against whom the right to the reliefs sought exists. He argued that the claimant was not employed by the House of Assembly Service Commission and was not subject to it. He submitted that entitlements including gratuity and allowances of the claimant are by the Constitution payable by the 1st defendant to whom the claimant rendered services to as a legislator. That the defendants have not denied that the sum of money is due and payable by them and are deemed to have admitted these material facts, citing Moyosore v Governor Kwara State [2012] 5 NWLR (Pt 1293) 242. He submitted that the court can effectively and effectually adjudicate or settle all the questions in this matter with the parties as presently constituted as they are the proper and necessary parties and not the House of Assembly Commission citing Green v Green [1987] 3 NWLR (Pt 61) 480, Ayorinde v Oni [2000] 3 NWLR (Pt 649) 348. The learned SAN further argued without conceding that even if the commission ought to be made a party in these proceedings, the non joinder of the commission as a party to this suit is not fatal to the action and will not render it the action a nullity because non joinder or mis-joinder of a party cannot by itself defeat an action. He cited Sapo v Summonu [2010] 11 NWLR (Pt 1205) 374, Ayorinde v Oni supra, Iyere v B.F.F.M Ltd [2008] 18 NWLR (Pt 1119) 300 at 336, Coteina Int. Ltd v Churchgate (Nig) Ltd [2010] 18 NWLR (Pt 1225) 346, Green v Green supra, Nigeria Engr. Works Ltd v Denaph Ltd [2001] 18 NWLR (Pt 746) 726. He submitted that in all actions against the Government or any of its agencies or organs or officers, the Attorney-General is the proper defendant and it is not necessary to join the actual official or agency if the Attorney-General has been sued. That having sued the Attorney-General as the 3rd defendant, all the proper parties are before the court and the non joinder of the commission is inconsequential citing Nigeria Engineering Works Ltd v Denaph Ltd supra, A-G Adamawa State v A.G. Federation & ors [2006] 1 MJSC 1, Ezomo v A.G. Bendel state [1987] 2 QLRN 124, A.G. Anambra State v A.G. Federation [2007] All FWLR (Pt 379) 1218. The learned SAN submitted that the application of the provisions of section 2(a) of the Public Officers Protection Act has limits and scope. He submitted that where the public officer acted with no semblance of logical justification or the action is unlawful or done in bad faith or an abuse of office the law is not applicable. He cited Ibrahim v JSC Kaduna State [1998] 14 NWLR (Pt 584) 1 at 32, Moyosore v Gov. Kwara state [2012] 5 NWLR (Pt 1293) 242, Hassan v Aliyu [2010] 17 NWLR (Pt 1223) 547. He submitted that by virtue of the provisions of paragraph 32(d) of Part 1 of the Third schedule to the 1999 Constitution, the power to determine the remuneration of legislators such as the claimant is vested in the Revenue Mobilization Allocation and Fiscal Commission. He argued that failure to pay the claimant his legitimate entitlements determined by a commission set up by the constitution cannot be said to be acts done in pursuance or execution or intended execution of a law or public duty or authority as the defendants are constitutionally bound to pay the remuneration of public office holders fixed by the commission. He submitted that there is no legal justification for the failure or refusal to pay the entitlements of the claimant; that the acts of the defendants are outside the scope of their officers, citing Ibrahim v JSC Kaduna State supra, Hassan v Aliyu supra. The learned SAN also submitted that it is not the intention of the legislature in enacting the law to protect public officers or Governments when they fail to fulfill financial obligations especially in this case where the claimant has by counter affidavit shown the defendants action are actuated by bad faith and decision to wreak vengeance on the claimant, who they see as their political enemy. The learned SAN submitted that the Public Officers Protection Act does not apply in cases of recovery of land, breaches of contract or for claims for work and labour done, citing FGN v Zebra Energy Ltd [2002] 18 NWLR (Pt 798) 162, Osun State Government v Delani Nig. Ltd [2007] 9 NWLR (Pt 1038) 66, NPA v Construzion Genesali [1974] All NLR (Pt 2) 945. He argued that the claims of the claimant is for his entitlements for work and labour done as a legislator and therefore the Public Officers Protection Act is not applicable to the claim of the claimant. He contended without conceding that even if the Public Officers Protection Act is applicable, this suit was not filed outside the statutory 3 months. He submitted that the claim being for liquidated money demand, a cause of action for recovery of the money or debt accrues only when a person in possession of the money has refused to pay or surrender the money after demand has been made for its payment or delivery, citing UBN Ltd v Oki [1999] 8 NWLR (Pt 614) 244, Ishola v SGB (Nig) Ltd [1997] 2 NWLR (Pt 488) 405. He argued that the cause of action arose when the defendants failed to pay the money within a reasonable time after the receipt of the reply written by the 3rd defendant to the claimant’s solicitors. That after waiting for a reasonable time, the claimant was right to conclude that the defendants have refused to pay and therefore calculating from the date of receipt of the reply i.e. 09/2/2012, the claimant filed the action within the statutory period. He submitted that Order 21 provides for interest on judgement and urged the court to dismiss the preliminary objection for lacking merit. I have carefully considered the processes filed, submissions of counsel and the authorities cited and will adopt the issues raised by the defendants as the issues for determination in this ruling. I will however begin with the oral application by the defendants’ counsel for leave to rely on a “further further affidavit” filed by her the morning this preliminary objection was heard. The new practice directions which came into effect on 1st July 2012 replaced the old Order 11 Rule 1 only. Order 11 Rules 2 to 8 were not replaced or amended. Rule 4 provides as follows: (4) Unless the Court grants leave to the contrary, there must be at least three clear days between the service of all processes in respect of a motion and the day named in the notice for hearing the motion. The claimant’s counter affidavit was served on the defendants counsel on the 25th June 2012 which is about a month and she took no steps to file a reply to the counter affidavit or a reply on points of law. Rather, on the day the objection is to be heard, learned counsel filed a process in the morning in contravention of Order 11 Rule 4 and proceeds to argue that refusal of this application is a denial of the defendants’ right to fair hearing. It is trite that rules of court are meant to be obeyed as they aid in the attainment of justice to all the parties. See Otu v ACB [2008] 3 NWLR (Pt 1073) 179. In any event, this process is not before me at this time the objection is being heard. Not having seen it, I have not given any directions as to service on the claimant. Furthermore, there is no provision in Order 11 Rule 1 for a “further further affidavit” in respect of a preliminary objection on points of law. The party that will be overreached and denied a fair hearing if this application is granted is the claimant and I so hold. The application for leave is refused and the “further further affidavit” struck out and expunged from the records. The defendants submitted that this suit has not been commenced by due process of law. I find that this suit was commenced by way of Complaint as provided in Order 3 Rules 1, 2 & 4 of the NIC Rules 2007. It is an action for a liquidated sum and the claimant’s counsel has properly filed a motion for summary judgement pursuant to Order 10 of the Rules of court which is pending. This submission is completely misplaced. The defendants have argued that this action is caught by the provisions of section 2(a) of the Public Officers Protection Act CAP P41 LFN 2004 and as such the action is statute barred. Section 2(a) of the Public Officers Protection Act is reproduced as follows: 2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance of 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 Act, Law, duty or authority, the following provisions shall have effect: (a) The action, prosecution, or proceedings 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 continuance of damage or injury, within three months next after the ceasing thereof. This suit was filed on 3rd May 2012. The claimant ceased to be a member of the Imo State House of Assembly in June 2011. The cause of action therefore arose in June 2011. This suit was filed against the defendants who are public officers outside the three months of the accrued cause of action. 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. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20 Sadiq v Akinkunmi [2000] 2 NWLR (Pt 696) 101, Udoh Trading Co. Ltd v Abere [2001] 11 NWLR (Pt 723) 114. The Limitation law however recognises some exceptions and by the authorities the exceptions are where the injury is a continuing one, claims on specific contracts, claims for work and labour done, where there is bad faith, malice or no legal justification. These are not caught up by the Limitation. See FGN v Zebra [2003] 3 WRN 1 at 33-34 per Mohammed JSC, Salako v LEDB & Anor 20 All NLR 167 per commarmond SPJ, Hassan v Aliyu [2010] 17 NWLR (Pt 1223) 547, Osun State Govt v Dalami (Nig) Ltd [2007] 9 NWLR (Pt 1038) 66, Kwara State C.S.C. v Abiodun [2010] 11 NWLR 52 at 112 – 114, Ofoboche v Ogaja Local Govt [2001] Vol. 8, MJSC 153, John Ovoh v The Nigeria Westminister Dredging & Marine Ltd unreported Suit No. NIC/9/2002, the ruling delivered on 1st April 2008, Captain Tony Oghide & Ors v Jason Air Ltd & Anor unreported Suit No. NIC/LA/12 2009 the ruling delivered on 13th January 2011. The claims of the claimant are for work and labour done. Denial of entitlements for work done is a continuing damage for which a fresh cause of action arises from time to time as often as damage is caused. See Aremo 11 v Adekanye [2004] All FWLR (Pt 224) 2113. This continuous damage is the basis of this suit. There is also the allegation of political vendetta. In support of this is the deposition in paragraph 5 of the counter affidavit reproduced as follows: 5. That I am informed by the claimant on 20/6/2012 at the law offices of M/s Njemanze & Njemanze, 76 Njemanze Street, Owerri by 1.00p.m. and I verily believe him as follows: (a) That the incumbent Governor of Imo State regard the claimant as his political opponent/enemy. (b) That the incumbent Governor of Imo State actuated by malice and vengeance has refused to pay the claimant his entitlements/claims. This deposition is an allegation of bad faith and malice. Even though there is no reply to the counter affidavit, I do not think that the above deposition is sufficient evidence at this stage of bad faith or malice. I hold that the exceptions of claims for work and labour, continuance of damage, avail the claimant and this action is not caught up by the Limitation law. The defendants are not protected by section 2(a) of the Public Officers Protection Act as to the three months time limit of accrual of cause of action and I so hold. The defendants argue that they are not the proper parties to be sued in this action; and that the House of Assembly Service Commission should be held liable if there is any entitlement that remains unpaid as it is responsible for the implementation of the conditions of service of members of the House. The Imo State Government is made up of three arms, the Legislature, Executive and Judiciary. The claimant was a legislator in the Imo State House of Assembly. The 2nd defendant is the Chief Executive Officer of the state, the 3rd defendant is the Chief Law Officer of the Government and the 4th defendant is the Chief Accountant of the state. I find that the four defendants sued are proper and necessary parties to this action and so hold. The question now is whether the presence of the House of Assembly Service Commission as a defendant is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved. See Green v Green [1987] 3 NWLR (Pt 61) 480, Ige v Farinde [1994] 7 NWLR (Pt 354) 42, Peenok Invest. Ltd v Hotel Pres Ltd [1982] 12 SC 1 for the guiding principles and questions to be considered on joinder of parties. I answer the question in the affirmative and hold that the presence of the House of Assembly Service Commission as a defendant is necessary as it is a proper party to this suit. I therefore order that the House of Assembly Service Commission be joined as the 5th defendant in this suit. The originating processes and other processes are to be amended accordingly and served on the Commission. For all the reasons given above, I hold that the court has jurisdiction to hear and determine this matter. The preliminary objection fails substantially and succeeds partially on the issue of joinder. The matter is to proceed to hearing. I make no order as to costs. Ruling is entered accordingly. ……………………..……………… Hon. Justice O.A. Obaseki-Osaghae