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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE CALABAR JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: JULY 26, 2013 SUIT NO: NICN/CA/31/2012 BETWEEN Dr. Atonte Diete-Spiff - Claimant AND 1. Governor of Bayelsa State 2. Attorney-General of Bayelsa State - Defendants REPRESENTATION Doueyi D. Fiderikumo, and with him Julius Iyekoroghe, for the claimant. Miss T. Songi, Chief State counsel, for the defendants. JUDGMENT The claimant took up a complaint dated and filed on 17th May 2012 praying this Court for the following reliefs – 1. A declaration that by virtue of section 29(1) of the Bayelsa State Pensions Scheme Law 2009, the claimant is entitled to a four-year term in office as Chairperson, Bayelsa State Pensions Board with effect from 14th September 2010 to 13th August 2014. 2. A declaration that the removal of the claimant as Chairperson, Bayelsa State Pensions Board by the 1st defendant on 17th day of February 2012 is unlawful and of no effect whatsoever. 3. A declaration that the claimant is and remains Chairperson, Bayelsa State Pensions Board until her term of office expires on 13th August 2014. 4. An order reinstating the claimant to the position of Chairperson, Bayelsa State Pensions Board. 5. An order of perpetual injunction restraining the defendants, their agents, privies and/or servants howsoever described from removing and/or interfering with the rights, duties or functions and/or privileges of the claimant as Chairperson, Bayelsa State Pensions Board. 6. Cost of this suit. IN THE ALTERNATIVE a) An order directing the 1st defendant to pay to the claimant the sum of (N34,044,065.12) being her total net emoluments for Thirty-One (31) months, that is, February 2012 to August 2014 and that the said sum be paid within seven working days of judgment failing which the defendants shall pay Fifty percent per annum on the judgment sum until same is liquidated. b) Cost of this suit. Accompanying the complaint are the statement of fact in support of the complaint, the list of witness to be called and documents to be relied upon at the trial, and copies of the documents (Exhibits C1, C2 and C3). The written statement on oath of the claimant as the witness was dated and filed on 24th October 2012. The defendants entered appearance by filing on 16th July 2012 their memorandum of appearance. Also filed on 16th July 2012 are the joint statement of defence, list of documents to be relied upon at the trial and a copy of the single document to be relied upon (Exhibit D1), list of witness(es) and the defendants’ joint witness statement on oath. On 21st January 2013, the claimant filed a 2-paragraphed reply to the defendants’ joint statement of defence dated 19th January 2013 with an accompanying 3-paragraphed additional witness statement on oath dated 21st January 2013. Both parties called in a witness each. The claimant testified on her behalf as claimant’s witness (CW), while Mr. Richard Suofade Ogbe, an Information Officer with the Ministry of Information, Strategy and Orientation, testified as defendants’ witness (DW) for the defendants. Thereafter, the parties filed written addresses. The defendants’ written address is dated 8th April 2013 but filed on 9th April 2013. The claimant’s written address is dated and filed on 13th May 2013. The defendants’ joint reply on points of law is dated 28th May 2013 but filed on 30th May 2013. The case of the claimant as per her statement of facts and written testimony on oath is that she was appointed as Chairperson, Bayelsa State Pensions Board by the 1st defendant after confirmation by the Bayelsa State House of Assembly. That her tenure of office is for four years starting on 14th September 2010 and ending on 13th August 2014. That she was removed from office by the 1st defendant on 16th February 2012. She went on that she did not resign from office; neither is she bankrupt or had made compromises with her creditors; nor is she incapable of carrying on the functions of her office; and she was not given the requisite notice of her removal by the 1st defendant. She then concluded by stating that her net pay per month at the determination of her appointment was One Million, Ninety-eight Thousand, One Hundred and Ninety-Five Naira, Sixty-Six Kobo (N1,098,195.66). Under cross-examination CW acknowledged that she was cleared by the Bayelsa State House of Assembly as Part-Time Chairman of the Bayelsa Pensions Board; and at the time she was so cleared, she was a public officer. That actually she was a member of the Governor’s Technical Team (she believed she was so appointed in April 2009), where she was placed on a salary of about One Million Naira (N1,000,000) a month. In this capacity, she evaluated MDAs, advised on structures and was part of the State Economic Team. She also acknowledged that her appointment letter stated that she was entitled to N10,000 sitting allowance. She denied ever been appointed as a Commissioner in Bayelsa State. Lastly, she testified that her pay-slip from payroll can attest to the fact that she was paid as Part-Time Chairman of the Pensions Board. She was not re-examined. The case of the defendants as pleaded in the defendants’ joint statement of defence, having admitted paragraphs 1, 2, 3, 4 and 5 of the claimant’s statement of fact, is that the claimant was removed as Chairman of the Pensions Board on 15th February 2012. That following the swearing in of Rt. Hon. Henry Seriake Dickson as Governor of Bayelsa State on 14th February 2012, all political appointees were in the know that they would be relieved of their appointments. That the claimant was only Chairman of a Board who was already a serving Public Servant and was only entitled to sitting allowance of Ten Thousand Naira (N10,000) only per sitting as the claimant cannot hold two public offices at the same time. Lastly, that in any event, the instant case is statute-barred. However, since none of the paragraphs of the sworn deposition of DW deposes to any of the matters pleaded in paragraphs 2, 3, 4 and 6 of the defendants’ joint statement of defence, the evidence of DW goes to no issue as far as this case is concerned. This means that the evidence elicited from DW under cross-examination is not helpful in this case. The defendant framed three issues for the determination of the Court, namely – 1. Whether the claimant’s case is not statute-barred. 2. Whether from the totality of the evidence before the Court the claimant is entitled to the reliefs sought. 3. Whether Exhibits C3, C3A and C3B are documents that are admissible and with any probative value. Regarding issue 1, relying on section 2(a) of the Public Officers Protection Act cap. P41 LFN 2004, the defendants submitted that the instant case is statute-barred. The defendants then referred the Court to Abubakar v. Gov., Gombe State [2002] 17 NWLR (Pt. 797) 533 at 544 Ratio 5, Agboola v, Agbodemu [2010] All FWLR (Pt. 529) 1111 at 1155, CBN v. Amao [2007] All FWLR (Pt. 351) 1490 at 1495 Ratio 7, Ibrahim v. JSC [1998] 14 NWLR (Pt. 584) 1 at 6 Ratio 2 and Unity Bank Plc v. Nwadike [2009] 4 NWLR (Pt. 1131) 352 at 359 Ratio 5. That in paragraph 6 of the statement of fact, the claimant averred that she was relieved of her appointment on 16th February 2012, while this action was filed on 17th May 2012. However, that the position of the defendants going by Exhibit D1 is that all political appointees (including the claimant) were relieved of their appointments on 15th February 2012. This means that the claimant is outside of the three month period allowed her to come to Court by section 2(a) of the Public Officers Protection Act LFN 2004. The defendants then urged the court to resolve issue 1 in their favour and dismiss the suit. On issue 2, the defendants contended that from the totality of the evidence before the Court, the claimant is not entitled to any of the reliefs sought. In proof, the claimant had tendered exhibits C2 and C3, which are respectively the claimant’s letter of confirmation and photocopy of the claimant’s pay-slip. To the defendants, the claimant’s counsel did not intend to tender Exhibit C1 (the appointment letter), since the crux of the claimant’s case is that what is admitted needs no further proof. However, and correctly so, the Court, in its discretion, admitted it in conformity with section 123 of the Evidence Act 2011, which provides that – No fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. The defendants then referred the Court to Abubakar v. Chuks [2008] All FWLR (Pt. 408) 207 at 215 Ratio 10, Oyewole v. Akande [2009] All FWLR (Pt. 491) 813 SC. To the defendants, the claimant is only a Part-Time Chairman of the Pensions Board, not full time, and so is not entitled to a statutory tenure of four years as provided for in the Bayelsa State Pensions Scheme Law 2009; as the law provides for a full time Chairman. Thus the reliefs sought by the claimant should be discountenanced. That from Exhibit C2, the claimant was screened, cleared and confirmed as Part-Time Chairman on 31st August 2010. She was then issued with the letter of appointment, Exhibit C1, on October 18, 2010, which letter clearly stated in part that – As a public servant, you are already placed on salary structure and therefore it remains personal to you. However, you are entitled to sitting allowance of N10,000.00 (Ten Thousand Naira) only per sitting. That under cross-examination, the claimant admitted that she was cleared by the Bayelsa State House of Assembly for the position of Part-Time Chairman given that she was already a serving Public officer. She also admitted that she was a member of the Governor’s Technical Team on a salary of One Million Naira (N1m) per month. That though Exhibit C1 stated that the claimant was appointed as Chairman, it could not have been on full time basis as Exhibit C1 clearly stated that the claimant is already a Public Servant. The defendants urged the Court to draw this inference on the authority of Ikem v. Nwogwugwu [1999] 13 NWLR (Pt. 633) 140 at 143 Ratio 3. The defendants went on that the fact of CW holding two Public Offices was pleaded in the joint statement of defence as well as the fact that the claimant is entitled to only N10,000.00 as sitting allowance. That these pieces of evidence were supported and corroborated by CW under cross-examination, referring to Ogbeide v. Osula [2004] 12 NWLR (Pt. 886) 86 at 95 Ratio 7 and Gaji v. Paye [2003] FWLR (Pt. 163) 1 at 6 Ratio 5. The defendants continued that Exhibit C3, which purportedly is the claimant’s pay-slip and upon which the claimant is basing the alternative relief, does not help her case. That Exhibit C3 has on it as the “Grade” for the claimant, the word “Commissioner”. That under cross-examination, the claimant stated that she has never been appointed as a Commissioner in the Bayelsa State government. That a document speaks for itself, citing Ojoh v. Kamalu [2005] 18 NWLR (Pt. 958) 523 at 535 Ratio 17. To the claimant, Exhibits C1 and C2 are the best evidence before the Court relating to how much the claimant is entitled to and the nature of the claimant’s appointment. The defendants reiterated that it is their contention that by Exhibit C1, the claimant is entitled to only N10,000 as sitting allowance per sitting. However, that nowhere in the claimant’s pleading did the claimant state how many times the members of the Board sit either in a week, a month, bi-monthly, quarterly or yearly. That this court cannot in the face of lack of evidence in the claimant’s pleadings or oral evidence speculate (Orhue v. NEPA [1998] 7 NWLR (Pt. 557) 187) as to how many times the members of the Board sit. Citing Biri v. Mairuwa [1996] 8 NWLR (Pt. 467) 425 at 429 Ratio 11, the defendants submitted that there is nothing before the Court to support the alternative relief as against the sitting allowance of N10,000 per sitting. The defendants went on that the fact of the claimant being a public officer and placed on a salary structure prior to her appointment as Part-Time Chairman is a very material fact concealed by the claimant; and the Courts frown on such concealment of material facts – Peat Marwick, Ani Ogunde & Co. v. Okeke [1995] 1 NWLR (Pt. 369) 71 at 72 Ratio 4. The defendants then insisted that they denied the fact of the claimant being paid the sum of N1,098,195.55 as Exhibit C1 evidences what the claimant is entitled to as long as she remained Part-Time Chairman of the Pensions Board. To the defendants, there is also nothing before the Court to show how much the claimant is entitled to as “cost of this suit”, assuming but without conceding that the claimant has a case. Once again, that this Court cannot speculate and can only act on evidence before the Court, praying the Court to resolve issue 2 in their favour. Regarding issue 3, the defendants reiterated that this Court on 21st January 2013 admitted provisionally Exhibits C3, C3A and C3B. Exhibit C3 is a photocopy of the claimant’s pay-slip, while Exhibit C3A is the purported original of Exhibit C3. Exhibit C3B is a pay-slip tendered by the defence counsel to contradict and/or challenge the authenticity of Exhibits C3 and C3A. The defendants’ counsel had objected to Exhibit C3 challenging its authenticity and arguing that being a public document and a photocopy, it was not certified in accordance with Evidence Act. That the claimant’s counsel sought to tender the original of Exhibit C3, which the defendant also objected to arguing that that is not how a pay-slip from the Bayelsa State Government looks like; the purported original was stapled at the top of the document with an attachment showing total deductions at the top and the claimant’s name at the middle. That this court admitted the supposed original as Exhibit C3A. In contrast, the defence counsel tendered a pay-slip of Mrs. Inebimo Robert for the month of May 2010, which was also admitted provisionally as Exhibit C3B despite objections from the claimant’s counsel. The Court then asked both counsel to address it on the issue of the admissibility of Exhibits C3, C3A, and C3B and the probative value of the exhibits. To the defendants, the admissibility of Exhibit C3B by the Court is a discretion exercised in the Court’s assessment of what is fair and just to do in this particular case. That Exhibit C3, being a photocopy of a public document, it was not certified in accordance with section 104 of the Evidence Act 2011. That the only type of secondary evidence admissible of a public document is a certified true copy. Thus Exhibit C3 is legally inadmissible and so should not be given any probative value. That Exhibit C3A, which is the purported original of Exhibit C3 clearly shows that it is a document with doubtful origin. It is in two parts and stapled at the top with deductions from the total earnings appearing before the employer’s name, name of the claimant amongst others. That no Court should rely on that piece of evidence as it is unreliable; and so no weight should be attached to it. That this argument is strengthened when the Court looks at Exhibit C3B and makes comparison with Exhibit C3A. As regards the admissibility of Exhibit C3B, which was not pleaded, the defendants submitted that the Court’s discretion was exercised in the interest of what is just and fair in the circumstance of the case; in any case, Exhibit C3B is relevant in accordance with the authorities of Gaji v. Paye (supra) at page 7 Ratio 8 and Abubakar v. Chuks (supra) at page 210 Ratio 2. In any event, that Exhibit C3B is the original itself, which is primary evidence and so qualifies to be admitted, citing sections 85, 86, 87(b) and (c), 88 and 89(1)(e) of the Evidence Act 2011, Nkoro v. Azuru [2011] All FWLR (Pt. 556) 530 at 536 Ratio 9, Onobruchere v. Esegine [1986] 1 NWLR (Pt. 19) 799 at 808 SC and Daggash v. Bylama [2004] 14 NWLR (Pt. 982) 144 CA. That being an original of a public document, which is primary evidence, it can even be tendered from the Bar (Daggash v. Bylama) with the issue of proper custody and how it was obtained being irrelevant. The defendants continued that section 246(1) of the Evidence Act 2011 empowers a Judge in order to clear up ambiguities or to clarify points which have been left obscure in the evidence of any witness to ask any fact relevant or irrelevant; and may order the production of any document or thing. So that the Court was right in admitting Exhibit C3B as it is relevant and should be given probative value. In any case, that assuming but not conceding that the defendants’ case is week, it is trite law that a claimant must succeed on the strength of his own case and not on the weakness of the defence, citing Oyewole v. Oyekola [1999] 7 NWLR (Pt. 612) 560 at 564 – 565 CA. That where evidence led by the plaintiff is so patently discredited or unreliable, no reasonable Court can accept and act on it, referring to Ofomaja v. Commissioner for Education [1995] 8 NWLR (Pt. 411) at 69, Lawal v. UBN Plc [1995] 2 NWLR (Pt. 378) 407 and Agagu v. Mimiko [2009] All FWLR (Pt. 462) 1112 at 1154 – 1155. Furthermore, that a defendant will be entitled to judgment without adducing oral evidence, if through cross-examination of the plaintiff and his witness and tendering documents, the defendant establishes a valid defence, citing Ofamaja v. Commissioner for Education, Lawal v. UBN Plc and Agagu v. Mimiko, all supra. In conclusion, the defendants prayed the Court to dismiss the case of the claimant in its entirety for lacking in merit, frivolous, a waste of time of the Court and for being a gold-digging exercise. In reaction to the submissions of the defendants, the claimant in her written address submitted that of the three issues framed by the defendants only one was relevant to the state of the case and that is the claim that the instant case is statute-barred. That they other issues are misleading as issues for determination are not done in vacuum but must relate to the state of the pleadings, citing Bunge v. Gov. Rivers State [2006] 10 MJSC 136 at 154. That where a fact is pleaded by the plaintiff and admitted by the defendant, evidence on the admitted fact is irrelevant and unnecessary – there is no dispute on a fact which is admitted. That it is significant to note that by the express admission of paragraphs 1 – 5 and implied admission of paragraph 7 of the statement in support of the complaint, the claimant is relieved from the burden of proving admitted facts forever, citing Okposin v. Assam [2005] All FWLR (Pt. 282) 1863 at 1879. Consequently, that the facts of the appointment of the claimant as Chairman of the Bayelsa State Pensions Board and the removal of the claimant from the said office was done in breach of the conditions for removing the claimant and before the expiration of her term of office have been established. In consequence, that the claimant is squarely entitled to the substantive reliefs as to reinstatement. To the claimant, section 21 of the Bayelsa State Contribution Pensions Scheme Law 2009; the same law in section 24(a) creates the position of a Part-Time Chairman; in section 30 it provides for the ground of removal or cessation of membership before the expiration of tenure of office; in section 29(1) it stipulates a four year tenure; it provides for emoluments of office as where in section 31 it provides that the Chairman amongst others shall be paid such emoluments, allowances and incidental expenses. The claimant then went on to addressing the Court on the law on substantive claim vis-à-vis an alternative claim; and what relief to grant where a person is removed an office protected by law. To her, only when the claim for the substantive relief cannot succeed would a Court grant the alternative relief, referring to Newbreed Org. Ltd v. Erhomosie [2006] All FWLR (Pt. 307) 1076 at 1117 – 1118. Next, the claimant submitted that where the conditions for appointment of a contract of service is governed by the provisions of a statute such that a valid determination or appointment is predicated on satisfying such statutory provisions, such contract is said to enjoy statutory protection for which an order for reinstatement is an appropriate remedy in the event of wrongful termination, citing Alhassan v. ABU, Zaria ]2010] All FWLR (Pt. 538) 962 at 992 and 1005. In reaction to the defence of the defendants that this matter is statute barred, the claimant submitted that the Public Officers Protection Law of Bayelsa State is a dead law and has since ceased to be in effect since the enactment of the Limitation Law of Bayelsa State 2006, section 42 of which states that “any enactment relating to the limitation of actions which [was] in force in the State immediately before the commencement of this Law shall cease to apply”. Section 16 of the Limitation Law then goes on to provide that no action founded on contract, tort or any other action not specifically provided for in Parts I and II of the Law shall be brought after the expiration of five years from the date on which the cause of action accrued. In any event, that an action of breach of contract as the present case does not fall within the provisions of the Public Officers Protection Act, citing FGN v. Zebra Energy [2002] FWLR (Pt. 92) 1749 at 1772 and CBN v. Adedeji [2005] All FWLR (Pt. 244) 912 at 930. The claimant then urged the court to discountenance all the arguments of the defendants on the issue. The counsel to the claimant continued that in proof of her case, the claimant “testified and tendered two documents which were both received in evidence and marked as exhibits, C2 and C3”. The claimant, however, went on to state that “it is instructive to note, that the Claimant did not tender exhibit C3, but was put into evidence on the court’s volition”, which “procedure…is curious under our adversarial jurisprudence as no court has the vires to insist that a document must be received in evidence”. Counsel to the Court then went on to lecture the court on we operate an adversarial system and what the Judge must do in such a case, how counsel is under the system in complete control of his case in terms of presentation and the tactics to employ in meeting his opponent’s case, etc. To counsel then, “to suo motu admit a document is a procedure not supported by law and the rules of this court”. Citing Nigerian Ports Plc v. Beecham Pharmaceutical Pte Plc [2012] 12 MJSC (Pt. II) 160 at 200 and Olagbemiro v. Ajagungbade III [1990] 3 NWLR (Pt. 136) 37 at 63, counsel submitted that a trial Court must not rely on a document not tendered as an exhibit before it. That a document though pleaded does not become admissible by reason of that alone – it must be tendered by the person who has direct oral evidence to give on the document, citing Okafor v. Okpala [1995] 1 NWLR (Pt. 374) 749 at 757. Counsel to proceeded to contend that the right of a party to determine what evidence whether documentary or otherwise he proposes to put in evidence is neither rooted nor regulated by the evidence Act which was referred to in section 12 of the National Industrial Court (NIC) Act 2006, an act that came into effect in 2006, while the current Evidence Act came into effect in 2011. To counsel then, the Evidence Act envisaged by section 12 of the NIC Act 2006 is the Evidence Act Cap. E14 LFN 2004, not the 2011 Act given that the former had been repealed. To counsel to the claimant, section 123 of the Evidence Act 2011 relied upon by the defendants is an after-thought. That the suo motu admission of Exhibit C1 was not anchored on section 123 of the Evidence Act – it was according to Court merely in the interest of justice. Secondly, that Exhibit C1 does not relate to all aspects of the claimant’s case. That it may only be relevant where it is properly admitted to the alternative claim of N34,044,065.12. That it certainly does not affect the facts admitted by the defendants which would naturally lead to the granting of all the five substantive claims. To counsel to the claimant, the defendants had contended that being a part-time Chairman, the claimant is not entitled to statutory tenure of four years as provided for in the Law even when the defendants freely admitted paragraph 4 of the statement of fact and section 29(1) of the Law provides that the chairman shall hold office for a term of four years and section 24(1) provides that the Board shall consist of a part-time Chairman. The Court, to counsel, should discountenance the argument of the defendants. Concerning Exhibits C3 and C3A, the claimant submitted that they are admissible and should be acted upon by the Court. That it is in evidence that Exhibit C3A was issued to the claimant to reflect her emolument as Chairperson. In any case, that section 31 of the State Contributory Pensions Scheme Law 2009 allows for the payment of emolument to the Chairman even though appointed on a part-time basis. That the Court cannot act on exhibit C3B as Robert Inebimo was not called as a witness and so was not available for cross-examination on it; and DW positively said he could not say that Exhibit C3A did not emanate from the defendants. That the admission of Exhibit C3B by the Court is irregular and should be discountenanced. That Exhibit C3A is original – the primary evidence, and the Court is entitled to take judicial notice of the fact that in the ordinary course of business employees are given the originals of their pay-slips, while the employer keeps a copy. The claimant then referred the Court to section 85 of the Evidence Act 2011. The claimant went on that one does not challenge the authenticity of a document at the address stage questioning why the defendants did not call one of its payroll officials to say positively that exhibit C3A is a forgery and did not emanate from the defendants. Citing section 135(1) of the Evidence Act 2011 and Adenle v. Olude [2003] FWLR (Pt. 157) 1074 at 1082 and 1089, counsel to the claimant contended that the allegation Exhibit C3A is of doubtful origin is a criminal imputation against the claimant for which the law imposes a burden on the defendants to prove beyond reasonable doubt. In conclusion, the claimant urged the Court to sustain her position as she has made out a case to be granted either the main claims or the alternative ones. In their reply on points of law, the defendants first pointed out that they did not plead or rely on the Bayelsa State Public Officers Protection Law. That the Bayelsa State Limitation Law 2006 cannot repeal a Federal legislation in existence or by its provisions exclude the applicability of a Federal legislation/law in the State. That all arguments in that regard should be discountenanced. In relation to the argument of the claimant that an action in breach of contract such as the instant case does not fall within the provisions of the Public Officers Protection Act/Law, the defendants submitted that by Tajudeen v. Customs, Immigration & Prison services Board [2010] All FWLR (Pt. 522) 1740 Ratio 3, relying on the Supreme cases of CBN v. Ukpong [2006] 13 NWLR (Pt. 998) 555, Bakare v. NRC [2007] 17 NWLR (Pt. 1064) 606, Dalhatu v. Turaki [2003] 15 NWLR (Pt. 843) – the page is not supplied, and Forestry Research Inst. of Nigeria v. Gold [2007] 11 NWLR (Pt. 1044) 1, held that the Public Officers Protection Act is applicable to contracts of employment. That the claimant has not shown that the action by the 1st defendant was not done in pursuance or execution of a public duty, law or authority or in respect of an alleged neglect or default in the execution of any such law. The defendants then submitted that the mandatory rules of court are not sacrosanct as it is the Evidence Act that governs the admissibility of documents and not the rules of court, citing Nasir v. Civil Service Commission, Kano State [2010] All FWLR (Pt. 515) 195 at 197 – 198 Ratio 2. The defendants went on that assuming but not conceding that this Court was wrong in admitting Exhibit C1, that the Supreme Court held in Agbaisi v. Ebikerefe [1997] 4 NWLR (Pt. 502) 630 and Agbahomoro v. Eduyegbe [1999] 3 NWLR (Pt. 594) 170 that a Court is entitled to look at a document in its file while writing its judgment or ruling despite the fact that the document was not tendered and admitted as an exhibit. Thus that it is not in dispute that Exhibit C1 was part of the documents filed and/or frontloaded before this Court. Lastly, the defendants urged the Court to invoke section 167(d) of the Evidence Act 2011 regarding Exhibit C1. They then asked the Court to discountenance the arguments of the claimant and dismiss her case in its entirety. After a careful consideration of the processes in this case, a preliminary remark may not be out of place on especially the general tenor of the written address of the counsel to the claimant. There is this thing that runs throughout the written address of counsel to the claimant. The written address is written in prose that seems to suggest that the Court does not know what it is doing or does not know the law; and only counsel knows. Aside from the lectures counsel gave the Court in the address (see, for instance, paragraphs 6 – 10, 12 and 15 of the claimant’s written address – note the finality of the lecture in paragraph 10: “This is the direction of the law.”), there is this underlying assumption in the address that the claimant without more is simply entitled to the reliefs she claimed. This preliminary remark made, and before going into the merit of the case, there is the need to resolve the question of the admissibility of Exhibits C1 and C3. To take Exhibit C1 (the letter of appointment), counsel to the claimant had sought to withdraw it from its processes after it was frontloaded by him alongside the originating processes. In a considered ruling at its sitting of 22nd January 2013, this is what the Court said – The letter of appointment sought to be withdrawn by the claimant’s counsel serves two purposes in terms of its content. The first is that it evidences the fact of the appointment. The second is that it evidences the emolument/entitlement of the claimant. The alternative claim of the claimant in her originating processes is for a claim of N34,044,065.12 being her total net emoluments for 31 months i.e. from Feb. 2012 to August 2014. This alternative claim cannot be determined without reference to the letter of appointment. In the circumstance, and to enable justice to be done in the case, the application to withdraw the letter of appointment is hereby refused. The said letter of the appointment is hereby marked Exh. C1. In spite of this ruling, counsel to the claimant throughout his written address made much of an issue of Exhibit C1 given his argument that in admitting paragraphs 1 – 5 of the statement of facts he is entitled to withdraw it, and the Court to automatically enter judgment in the claimant’s favour. It was in this context that counsel to the claimant was very categorical in chiding this Court that it has no power to do what it did and that as counsel the law is that he is in control of his case. The authorities cited by counsel no doubt encourage counsel to be in control of his client’s case; but they are authorities that represent the old dispensation. Under the current dispensation, Courts are enjoined generally to be in control of their Courts. And as regards this Court, the guiding norms are flexibility, informality and justice. See, for instance, section 12 of the National Industrial Court Act 2005. Counsel to the claimant, in defence of his stance, tutored the Court that no known law or rule of Court permitted it to do what it did regarding Exhibit C1. In the first place, section 36(c) of the Trade Disputes Act Cap. T8 LFN 2004, which has not been repealed and so still applies to this Court provides that this Court has power to “compel the production before it of books, papers, documents and other things for the purpose of enabling them to be examined or referred to so far as may be necessary in order to obtain information relevant to the matter referred to the [Court]”. Secondly, in Kurt Severinsen v. Emerging Markets Telecommunication Services Limited [2012] 27 NLLR (Pt. 78) 374, this Court held as follows – This Court made it clear to the parties that the practice in the Court is that all frontloaded documents are deemed admitted unless specifically objected to, in which event the Court will then make a ruling on the admissibility or otherwise of the documents. Once deemed admitted, all that is left is the weight or probative value that will be placed on them by the Court. All of this is made possible given that this court is generally enjoined to be flexible and less formal; and while it is enjoined to apply the rules of evidence, it may depart from it in the interest of justice. In this regard, this Court, for instance, admits secondary evidence of documents, not necessarily the primary evidence where there is no dispute regarding the authenticity. See sections 36 and 37 of the Trade Disputes Act 2004 and section 12 of the National Industrial Court Act 2006. The position adopted by this Court is succinctly captured by the instructive and incisive holding of the Supreme Court of India in NTF Mills Ltd v. The 2nd Punjab Tribunal, AIR 1957 SC 329, to the effect that – The Industrial Courts are to adjudicate on the disputes between employers and their workmen, etc. and in the course of such adjudication they must determine the ‘rights’ and ‘wrong’ of the claim made, and in so doing they are undoubtedly free to apply the principles of justice, equity and good conscience, keeping in view the further principle that their jurisdiction is invoked not for the enforcement of mere contractual rights but for preventing labour practices regarded as unfair and for restoring industrial peace on the basis of collective bargaining. The process does not cease to be judicial by reason of that elasticity or by reason of the application of the principles of justice, equity and good conscience. The paramount question to this Court is whether Exhibit C1 is relevant to doing justice in this case; and the Court had answered in the affirmative giving its reasons in the quote above. In any event, I shall below, when considering the argument of the defendants regarding the defendants’ admission of paragraphs 1 – 5 of the claimant’s statement of fact, adduce additional reasons why it was right, fitting and proper that the Court admitted Exhibit C1 Regarding Exhibit C3, the pay-slip, this is what the Court said at its same sitting of 22nd January 2013 – The [pay-slip] of Nov. 11 frontloaded by the claimant was objected to as not emanating from the Bayelsa State Government. The original supplied by the claimant herself is in two parts with the part bearing “Bayelsa State Govt (Civil Service)” being different from the other part. To show that the [pay-slip] is not authentic, the defendant’s counsel supplied a sample [pay-slip] of Robert Inebimo dated May-10. The original [pay-slip] supplied by the claimant is hereby marked as Exh. C3(a) while the [pay-slip] supplied by the defendants is marked Exh. C3(b). Parties are therefore, at the point of address, to address the Court on the authenticity of these [pay-slips] and their probative value and weight to the case. In their written address, the defendants’ counsel objected to Exhibit C3, challenging its authenticity and arguing that being a public document and a photocopy, it was not certified in accordance with Evidence Act. If this were the only grounds for objecting to Exhibit C3/C3(a), then this argument of counsel to the defendants that Exhibit C3 is a public document and a photocopy and so requires certification, would not have been sustainable given the authorities of section 12 of the National Industrial Court Act 2006 and the case of Kurt Severinsen v. Emerging Markets Telecommunication Services Limited enunciated above. In any case, by sections 102 and 103 of the Evidence Act 2011, I do not see how Exhibit C3 can be a public document, given that it is particular and private to the claimant. And as an aside though, it is curious that at first the defendants argued for the admissibility of Exhibit C3(b) (a pay-slip) on the ground that it is the original and so is primary evidence. They did not see it as a public document; yet they would see another pay-slip (Exhibit C3) as a public document even when its original (Exhibit C3A) was also tendered. However, there is the issue of the authenticity of Exhibit C3/C3(a). As indicated by the Court in its sitting of 22nd January 2013, Exhibit C3(a), the said original of C3, is in two parts gummed together. A critical issue arises here: can a pay-slip be in two parts and gummed together? I find difficulty in coming to terms with this fact. This Court has seen countless pay-slips in its day-to-day adjudicative work – and never has it been that a pay-slip in two parts was given in evidence. Secondly, I took a closer look at Exhibit C3(a), and as argued by the defendants, the Grade of the claimant is said to be “Commissioner”. Under cross-examination, the claimant herself testified that she has “never been appointed as a Commissioner in Bayelsa State”. So if the claimant was never appointed a Commissioner, how come she is described as one in the pay-slip? Only one exhibit, C3/C3(a), was tendered as proof of the salary of the claimant; yet the claimant had been in office from 18th October 2010 till her removal sometime in February 2012. This means that the claimant worked for upward of 15 months; and yet she could not tender more pay-slips to authenticate her claims. I find that Exhibit C3/C3(a) is of doubtful origin and is of doubtful content. I, therefore, cannot admit it in this matter. It has no probative value and so I cannot attach any weight to it. It is discountenanced for purposes of this judgment. The counsel to the claimant had argued that because the NIC Act came into effect in 2006, the Evidence Act envisaged by section 12 of that Act is the Evidence Act Cap. E14 LFN 2004, not the 2011 Act. This argument is not only preposterous, it is strange. The argument of counsel looses sight of the fact that section 12(2) of the NIC Act 2006, in providing that this Court may regulate its procedure and proceedings as it thinks fit, and shall be bound by the Evidence Act but may depart from it in the interest of justice, simply refers to “the Evidence Act” without qualifying it as to the year of its enactment or promulgation. Counsel cannot import into an Act extraneous things not contemplated by the law maker simply because, in his words in paragraph 8 of his written address, he “would be failing in [his] duty to [his] client if [he did] not mention” it. The duty to the client does not, cannot and should not supersede the duty to the Court in ensuring that justice is done in all cases. In any event, section 30 of the Interpretation Act Cap. I123 LFN 2004 dealing with reference in an Act or Law to Acts provides that – Where in any Act or Law reference is made to any provision of an Act and that provision is subsequently repealed and re-enacted without substantial modification, the reference in such Act or Law to the provision of the Act so repealed shall, if the context so requires and unless the contrary intention appears, be construed as a reference to the provision so re-enacted. Where then is the contrary intention to warrant the argument of counsel to the claimant? The Evidence Act 2004, although repealed was in fact reacted in most of its provisions in the Evidence Act 2011. So the argument of the counsel to the claimant here is not sustainable; it is accordingly rejected. I now turn to the merit of the case. The defendants raised the defence of the limitation law arguing that by the Public Officers Protection Act LFN 2004, the present action is statute-barred. Here, they relied on a Federal legislation. In reply, the claimant argued that the Public Officers Protection Act, being a Federal legislation, is inapplicable to Bayelsa State. In any event, that Bayelsa State repealed its Public Officers Protection Law. Two issues arise here: is the Public Officers Protection Act LFN, as a Federal statute, applicable to Bayelsa State? If the answer is in the affirmative, is the filing of the instant case outside of the three months limitation period? To take the first issue, the Public Officers Protection Act LFN 2004 does not have an application section or provision but from its recital it is “An Act to provide for the protection against actions of persons acting in the execution of public duties”. Section 2 of the Act, the section that provides for limitation of actions is headed “Actions against public officers”. The Interpretation Act in section 18 defines “public officer” to mean “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999, or of the public service of a State”. Section 2 of the Public Officers Protection Act in providing for limitation of time states 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 three 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; Now, section 18 of the Interpretation Act, dealing with “Interpretation of particular expressions, etc.”, comes under the Part making provision for “Interpretation of enactments” and defines “Law” to mean “any law enacted or having effect as if enacted by the legislature of a State and includes any instrument having the force of law which is made under a Law”. What this means is that the Public Officers Protection Act, though a Federal legislation, applies where actions are taken pursuant to or in execution or intended execution of any Law of a State; and this would include Bayelsa State. There is no doubt, therefore, that the Public Officers Protection Act applies to Bayelsa State even when Bayelsa State supposedly repealed the State variant of the Act; and I so find and hold. The next issue is whether the filing of the instant case is outside of the three months limitation period prescribed by the Public Officers Protection Act. The authorities on limitation period (Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1, Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20, Popoola Elabanjo v. Chief (Mrs.) Ganiat Dawodu [2006] 6 – 7 SC 24, Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167, Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167, Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors unreported Suit No. NICN/ABJ/120/2011 the ruling of which was delivered on February 13, 2013 and Hon. Runyi Kanu (JP) & ors v. The Attorney General & Commissioner for Justice Cross River State & ors, supra) are constant in stating that when confronted with the question whether a case is statute-barred, Courts are to simply look at the writ of summons/statement of facts or claim to see when the cause of action is stated to arise and compare that date with when the action was filed. If after this comparison it is found that the limitation period is exceeded, even if by one day, then the case is statute-barred (Dr. Charles Oladeinde Williams v. Madam Olaitan Williams [2008] 4 – 5 SC (Pt. II) 253 and Alhaji Bello Nasir v. CSC, Kano State & ors [2010] 6 NWLR (Pt. 1190) 253). Two issues will need to be resolved here, namely: when did the cause action in this case arise; and when the action filed in this Court. To take the second issue first, this action, from the records in the case file, was filed on 17th May 2012. Regarding when the cause of action arose, by paragraph 6 of the statement of fact, the claimant pleaded that she was removed from office as Chairperson of the Board by the 1st defendant on 16th February 2012; and in paragraph 6 of the witness statement on oath, she deposed to that fact – but no documentary evidence was frontloaded or tendered to prove the actual date of termination of her appointment. The defendants, however, in paragraph 2 of their joint statement of defence denied paragraph 6 of the statement of fact of the claimant saying that the claimant was removed from office on 15th February 2012, pleading Exhibit D1, a copy of the news item from the State owned Radio Bayelsa. DW in his sworn deposition clarified that he it was who obtained the certified true copy of the News item directing the dissolution of all Boards, Commissions and political appointees. Exhibit D1 is dated 15/02/2012, was issued at 1300HRS and is headed “EXCO DISSOLVED”. In the 4th paragraph, it states as follows – Similarly, the Governor approved the immediate dissolution of all statutory boards, parastatals and commissions. In the 6th paragraph it goes on to state – Also all political appointees are hereby relieved of their appointment directing them to hand over to the most senior civil servant. The claimant like I pointed out did not frontload or tender any documentary evidence to show the date of the termination of her appointment. This means that Exhibit D1 is a more preferred piece of evidence of the termination of the appointment of the claimant than her deposition in that regard. I, therefore, find and hold that the claimant’s appointment was terminated on 15th February 2012, not 16th February 2012 as attested by the claimant. Since the instant case was filed in this Court on 17th May 2012, it means that it was filed out of the three-month period allowed by the Public Officers Protection Act. I indicated earlier that the authorities are clear that once the limitation period is exceeded, even by one day, then the case becomes statute-barred. This is the situation in the instant case. I, therefore, find and hold that the instant case was filed outside of the limitation period allowed by the Public Officers Protection Act; the case as filed by the claimant is accordingly statute-barred. Assuming that I am wrong and the case is not actually statute-barred, the question remains whether the claimant even actually proved her case as to be entitled to the reliefs sought. Essentially, the argument of the counsel to the claimant is that the defendants have admitted liability and so the Court should enter judgment in favour of the claimant. The defendants in paragraph 1 of their joint statement of defence admitted paragraphs 1 – 5 of the claimant’s statement of fact. Paragraphs 1 – of the statement of fact provide as follows – 1. The claimant at all time material to this suit was chairperson, Bayelsa State Pension Board and she presently resides at Opolo-Epie, Yenagoa, Bayelsa State. 2. The 1st defendant is vested with executive powers in Bayelsa State, while the 2nd defendant is the Chief Law Officer of Bayelsa State. 3. The claimant was appointed as the Chairperson, Bayelsa State Pension Board (‘the Board’) by the 1st defendant after confirmation by the Bayelsa State House of Assembly. Documents showing the confirmation and appointment of the claimant as Chairperson of the Board are hereby pleaded and shall be relied upon during the hearing of this suit. 4. The claimant’s tenure of office as Chairperson, Bayelsa State Pension Board is four years which began on 14th September, 2010 and ends on the 13th August, 2014. 5. The only conditions upon which a member of the Board shall cease to hold his office as a member of the Board before the expiration of the four year term is if: a. He resigns his appointment… b. He becomes bankrupt… c. Becomes incapable of carrying on the functions of his office… d. The Governor is satisfied that it is not in the interest of the Board or in the interest of the public for the person to continue in office and notifies the member in writing to that effect. In admitting these 5 paragraphs, what I find is that the admission relates to the fact of appointment as Chairman of the Board. The admission does not indicate the type of chairmanship, whether full-time or part-time. Of course, the admission does not relate to anything regarding the salary of the claimant as Chairman of the Board. These issues remain unproved and so require evidence; which is why Exhibit C1 was admitted by the Court. Even when counsel to the claimant argued against the admissibility of Exhibit C1 both at the trial and copiously in his written address, he forgot the exact wording of the closing part of paragraph 3 of the statement of fact, which is to the effect that – Documents showing the confirmation and appointment of the claimant as Chairperson of the Board are hereby pleaded and shall be relied upon during the hearing of this suit (emphasis is the Court’s). In admitting this part of paragraph 3 of the statement of fact, counsel to the claimant forgot that the defendants thereby reserved the right to insist on Exhibit C1, the letter of appointment as Chairman of the Board; which means that it was no longer within the powers of the claimant to withdraw it from the case. The claimant cannot eat her cake and have it. It cannot be that the defendants admitted paragraph 3 of the statement of fact but not the part dealing with documents showing confirmation and appointment of the claimant as chairman. All of this can only show that the argument of the claimant against the admissibility of Exhibit C1 is ill-founded and so must be discountenanced. What then is the nature of the claimant’s appointment? The answer to this question is important in determining the nature of rights/privileges that flow there from. Exhibit C2 dated September 1, 2010 is a letter from the Clerk of the Bayelsa State House of Assembly to the Governor of Bayelsa State confirming the nomination of the Chairman and Members of the Bayelsa Pensions Board. Regarding the claimant, she was confirmed as Part-time Chairman. Exhibit C1 dated October 18, 2010 is the letter of appointment from the Secretary to Bayelsa State Government to the claimant. In the said letter of appointment, the claimant was informed of her “appointment as Chairman, Bayelsa State Pensions Board with effect from 14th of September 2010”. The 2nd paragraph of Exhibit C2 then states – As a Public Servant, you are already placed on salary structure and therefore, it remains personal to you. However, you are entitled to sitting allowance of N10,000.00 (ten thousand hundred naira) only per sitting. Under cross-examination, the claimant acknowledged that she was cleared as a Part-time Chairman; and she was a public officer at the time she was cleared by the Bayelsa State House of Assembly as Part-time Chairman. She also acknowledged that he letter stated that she was entitled to N10,000 sitting allowance. From all of this, I find and hold as follows – 1. The claimant was appointed as a Part-time Chairman of the Bayelsa State Pensions Board. 2. At the time of appointment as Part-time Chairman, the claimant was a public officer. 3. Being a public officer, she was entitled to only N10,000 as sitting allowance. 4. Being a public officer, and being a Part-time Chairman of a Board, the claimant was a political appointee. As a part-time Chairman, the defendant argued that the claimant was entitled to security of tenure simply because that position is provided for in the Bayelsa State Contributory Pensions Scheme Law 2009. Conceptually, security of tenure is reserved for tenured appointments, not part-time appointments. So the argument of counsel to the claimant in this regard cannot hold ground; it is accordingly rejected. As a holder of a Part-time appointment, and a political appointee at that, the claimant cannot lay claims to security of appointment in the manner canvassed by her counsel. The claimant is consequently not entitled to any of the 6 reliefs in the main claims. As to the alternative claims essentially for N34,044,065.12 being the total net emolument for 31 months, there is no basis for this claim. Exhibit C3/C3(a) has already been rejected. There is, therefore, no basis for knowing and calculating what the emoluments of office of the claimant is except for Exhibit C1 which provides a sitting allowance of N10,000 per sitting. Even at this, sitting allowance conceptually is paid as due. As the name implies, it is paid only when the claimant sits. There is no evidence whatsoever before the Court as to whether the claimant even sat, not to talk of how many times she sat. In the circumstance, the alternative claims of the claimant must fail; and I so find and hold. On the whole, and for the avoidance of doubt, I hold that this case is statute-barred; even if it were not statute-barred, the claimant has failed in proving her case. The case, therefore, lacks merit and is hereby dismissed. Judgment is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip