Download PDF
This is a transferred matter pursuant to an order of the Abia State High Court made on 28th day of June 2012. The claimants by their amended statement of claim dated and filed on 13th October 2011 pray against the defendants jointly and severally as follows: (i) The sum of N39, 631, 244. 74 (Thirty Nine Million, Six Hundred and Thirty One Thousand, Two Hundred and Forty Four Naira, Seventy Four Kobo) being debt owed the Claimants by the Defendants. (ii) Interest at the rate of 21% per annum on the aforesaid sum from June, 2006 till the debt is finally liquidated. The 2nd and 3rd defendants filed a motion on notice dated 14th day of January 2013 but filed on 18th day of January 2013 praying the court for the following relief: AN ORDER striking out or dismissing this suit for being incompetent and for want of jurisdiction of this Honourable Court to entertain same. AND for such further order or orders as this Honourable Court may deem fit to make in the circumstance. The grounds upon which the application is brought are that: i. The suit is statute-barred. ii. The suit, as presently constituted and/or instituted, is incompetent against the 1st and 2nd Defendants. iii. The suit has not disclosed any reasonable cause of action against the 2nd and 3rd Defendants. The application is supported by an affidavit of 6 paragraphs deposed by Uche Dickson, a litigation officer in the Civil Litigation Department of Abia State Ministry of Justice, Umuahia. The motion is equally supported by a Written Address dated 14th day of January, 2013. The claimants reacted to the preliminary objection by filing a counter affidavit of 12 paragraphs deposed to by Hon. Chris Udenze Emezue, the 4th claimant in this suit. Annexed to the said counter affidavit are Exhibits A, B and C. There is also a written address. The 2nd and 2nd defendants counsel also filed a reply on points of law dated 4th day of February 2013 but filed on 8th February 2013. Learned counsel to the parties adopted their respective written addresses. I have carefully considered the processes, arguments and submissions of counsel to the parties on the preliminary objection of the 2nd and 3rd defendants. The issues for determination formulated and argued by the parties are apposite for the determination of the application and these are: 1. Whether the suit commenced against the defendants is statute barred? 2. Whether the suit as presently constituted is competent against the 2nd and/or 1st defendant? 3. Whether this suit discloses any reasonable cause of action against the 2nd and 3rd defendants. On the first issue, the case of the learned counsel for the 2nd and 3rd defendants is that the suit as it is presently constituted is statute barred in view of the provisions of section 114 of the Local Government Law (No. 2) of Abia State, 2006 and/or section 2(a) of the Public Officers (Protection) Law cap 140 vol. 6 Laws of Abia State, 2005. Before going into this point there is a preliminary issue raised by the claimants counsel that the counsel to the 2nd and 3rd defendants should not have raised issue on statute bar in relation to the 1st defendant, as he should have confined himself to those affecting his clients only, the 2nd and 3rd claimants. He relied on the authority of Mode (Nig.) Ltd vs UBA Plc (2004) 15 NWLR (Pt. 897) 542, 554 para B-E. He then urged the court to strike out ground 2 upon which the application is based, issues 1 and 2 and the argument therein as they relate to the 1st defendant for being grossly incompetent. On the other hand, the learned counsel for the 2nd and 3rd defendants contended that the argument of the claimants counsel is misconceived and he urged the court to discountenance same. I have considered the arguments of both counsel and I am in complete agreement with the counsel for the 2nd and 3rd defendants who argued that claimants counsel misconceived the position of the law on the issue. This is because since the learned counsel for the 2nd and 3rd defendants is raising the competence of the entire suit, namely that it is statute barred in its entirety, there is no way that the court would determine that the suit statute barred but only in respect of the 2nd and 3rd defendants but not in respect of the 1st defendant, while the point of consideration involves the determination of the provisions of the Local Government law affecting the 1st defendant. in the circumstance therefore, I hereby resolve the preliminary in favour of the 2nd and 3rd defendants and I shall accordingly consider the three issues as raised on the competence of the whole suit. On the issue of statute bar, we have already indicated that the objection of the 2nd and 3rd defendants relates to the provisions of limitation laws under section 114 of the Local Government law as well as section 2(a) of the Public Officers Protection law of Abia State. The defence of the claimants is that the said statutes of limitation do not apply to cases of contract, or money or debt owed, claim for work or labour done, citing and relying on NPA vs Construzioni Generali FCS & Anor (1974) NSCC 622, 630-631; FGN vs Zebra Energy (2003) 1 MJSC 1, 19-21, paras G-D; Osun State Government vs Dalami Nig. Ltd (2007) 6 MJSC 187, 198-200, paras G-F; NSITF vs Klifco Nig. Ltd (2010) 13 NWLR (Pt 1211) 307, 329 paras. A-G and Salako vs LEDB & Anor 20 NLR 169. Learned claimants counsel added that section 19 of the limitation law excludes the operation of the section 114 of the Local Government Law and section 2(a) of the Public Officers (Protection) Law to cases for work or labour done, as the claimants have claimed in this suit. The only response of the 2nd and 3rd defendants counsel is that the argument of the claimants counsel does not apply because the said sections 18 and 19 of the limitation law do not apply to this case in view of the claims of the claimants which are statutory allowances and therefore cannot apply. Here I do not accept the position of the learned Acting Director of Civil Litigation Abia State because, the claim of the claimants is essentially that they have served or worked for the Local Government and the statute has provided that any such person that works must be entitled to same. Equally not convincing is the argument of the learned Acting Director that the claim does not arise under a contract. I think the claimants have worked and the claim for money that they say is liquidated in terms of the exact amounts of money they are entitled to under the relevant statutory provisions and the court should be able to enquire into that since the claimants have laboured for same, and I so hold. See the cases of Rt Hon. Levis Aigbogun vs Edo state House of Assembly & Anor (2012) Unreported Ruling in Suit No. NIC/EN/07/2012 delivered on 21st May 2012, and Oghide & Ors vs Jason Air Ltd (2011) 22 NLLR (Pt 61) 58. The first issue is therefore hereby resolved in favour of the claimants. I will consider the 2nd and 3rd issues together. On the second issue the learned counsel for the 2nd and 3rd Defendants point is that the 1st and 2nd defendants are not incorporated persons. However, having considered the position of learned counsel to the parties it is clear to me that the 1st defendant is the Umuahia Local Government, which the claimants served as elected leaders in question. The reliance on the case of Anozia vs Attorney-General, Lagos State (2010) 15 NWLR (Pt. 1216) 207 at 215 -216, does also make the case for the 1st defendant as reference to bodies created under the constitution and duly conferred with statutory functions “are juristic persons even if not expressly so designated”. I therefore do not see why the 1st defendant cannot be sued, but if there is an error in the name, it must be taken to be a mere irregularity which the court can remedy after a proper application has been made to it. Furthermore, on the 2nd defendant, the submission by the claimants counsel that section 2 of the Abia State Proceedings Law Cap 161, Laws of Abia State has defined proceedings against the Government to include proceedings against a Ministry, clearly, puts the issue beyond any question that the 2nd defendant defined proceedings against the Government to include proceedings against a Ministry, clearly, puts the issue beyond any question that the 2nd defendant is indeed a competent and proper party before the court since the statute has laced it with legal personality for it to be sued, and i so hold. On the 3rd issue which relates to the issue of reasonable cause of action against the Attorney-General of Abia State, having considered all the arguments of the parties, I am left in no doubt that the claimants are right in suing the Attorney-General of the State who has the statutory duty of defending actions against the state by virtue of section 6 of the Abia State Proceedings Law. The claimants in this suit as per their claims are claiming for the outstanding allowances which they say they are entitled to as per their Amended Statement of Claim. See paragraphs 2,3,4,6,8,9,12,14,15,16, 17, 18 and 19 of the Amended Statement of Claim. These grievances of the claimants arose from the actions of the Abia State Government which the 2nd and 3rd defendants in this suit represent. thus, it is my humble view that there is indeed a reasonable cause of actionagainst the 2nd and 3rd defendants in this suit and i so hold. In the circumstances therefore and for all the reasons above given, the Court hereby holds that the preliminary objection raised by the 2nd and 3rd Defendants counsel in this suit fails and is hereby dismissed. The case shall proceed to hearing. I make no order as to costs. Ruling is entered accordingly. Hon. Justice Auwal Ibrahim Presiding Judge