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The claimants filed this complaint on the 10th May 2013 against the defendant claiming as following: 1. The sum of N129,420,478.44 (One Hundred and Twenty Nine Million Four Hundred and Twenty Thousand Four Hundred and Seventy Eight Naira Forty Four Kobo) being unpaid salaries and sundry allowances cumulatively owed the claimants by the defendant between July, 2008 to September, 2011. 2. Interest at the rate of ten percent (10%) per annum on the sum claimed from Judgement till final liquidation of debt. 3. The sum of N1,500,000 (One Million Five Hundred Thousand Naira Only) being the cost of this action. Accompanying the complaint is the statement of facts, copies of documents, list of witnesses, witness statement on oath and a motion for Summary Judgement. The defendant in response entered a conditional appearance and filed a Notice of Preliminary Objection on the 19th September 2013. The Preliminary Objection is brought pursuant to Section 2(a) of the Public Officers Protection Act. It is praying for: 1. An Order striking out Suit No NICN/CA/89/2013 for lack of jurisdiction. 2. And for such further Order(s) as the Honourable Court may deem fit to make in the circumstance of this case. The grounds upon which the objection is made are: 1. The Action is Statute-barred. 2. There is misjoinder of parties. 3. The claim of the claimants does not constitute a liquidated money demand. The objection is supported by a written address. The claimant in reaction filed a written address. Learned counsel to the defendant raised three issues for determination as follows: 1. Whether section 2(a) of the Public Offers (Protection) Act will not avail the defendant. 2. Whether there are proper parties before the court. 3. Whether the claim of the claimants do (sic) constitute a liquidated money demand in view of the claim for interest and cost by the claimants. He referred the court to the endorsement on the complaint which states that the claimants assumed office in July, 2008 to September, 2011 – a period of 39 months. He argued that from the endorsement the claimants tenure determined by law in 2011. It was his submission that in order to effectively sue a Public Officer the action must be filed within three months of the cause of action arising. He referred to section 2(a) of the Public Officers Protection Act, Cap 379, Laws of the Federation of Nigeria 1990 and Neap v Olagunju, [2005] 3 NWLR (Pt 913) page 602 at 609 Ratio 4, Onadeko v Ubn Plc, [2005] 4 NWLR (Pt 916) page 440 at 445 Ratio 5, Ibeto Cement Co. v A. G. Fed [2008] 1 NWLR (Pt 1069) page 470 at 475. That coming to court in the year 2013, a period of over 2 years after leaving office, is outside the three months period within which the claimant ought to have instituted this action against the alleged wrong or neglect. He submitted that the claimants are caught up by section 2(a) of the Public Officers Protection Act, Cap 379, Laws of the Federation of Nigeria 1990. It is the contention of counsel that the Local Government Council by its creation is an Incorporated Statutory Body, being a creation of the Constitution of the Federal Republic of Nigeria 1999, Section 1 and Schedule 1 No. 13 of the Local Government (Administration) Law, Cap 80, Laws of Akwa Ibom State 2000. He submitted that the defendant, Ibesikpo Asutan Local Government Council has satisfied the condition under which section 2(a) of the Public Officers Protection Act can avail it citing Nwaogwugwu v President, FRN [2007] 6 NWLR (Pt 1030) page 237 at 247 Ratio 9, Unilorin v Adeniran [2007] 6 NWLR (Pt 1031) page 498 at 506, Offobeche v Ogoja L. G [2001] 90 LRCN 2782 Ratio 13. He submitted that where an action is statute-barred a plaintiff who might otherwise have had a cause of action loses the right to file an action [2006] 9 NWLR (Pt 984) page 81 at 85, Ibeto Cement Co. v A. G. Fed supra. He further submitted that where the cause of action of the claimant is statute-barred, it affects jurisdiction of the Court citing of NDIC v O’Silvawax Int’l Ltd. [2006] 7 NWLR (Pt 980) page 588 at 594, Chukwu v Amadi [2009] 3 NWLR (Pt 1127) page 56 at 61 – 64. Counsel contended that the claimants lack the capacity to bring a joint action against the defendant on the following grounds: (1) Each of the claimants contested election at their different wards. (2) They were separately returned as elected Councilors of their respective wards. (3) If they were sued at the election tribunals they defended individually not jointly. (4) They were paid salaries individually in their separate accounts. (5) There is nothing to show that all the claimants were dully returned elected as Councilors. Paragraph 5 of the Affidavit in support makes reference to Exhibits UJU 2A to H. Certificated of Return UJU 2A -2E are only exhibited, UJU 2F is an Affidavit while UJU 2G to H are not shown. (6) The Statement of Account of all the claimants are not shown. Paragraph 21 of the Supporting Affidavit makes reference to Exhibit UJU 5A – H but only UJU 5A to G are shown. UJU 5H is not shown. He argued that the purported debt was incurred individually and not collectively, therefore, if any cause of action accrues to the plaintiff, it ought to be on individual suits and not joint suits as this confusing and misleading. That the proper parties are not before the Court, and where proper parties are not before the Court, the Court is without jurisdiction to adjudicate. He then urged the Court to decline jurisdiction and strike out this case, citing Plateau State v A. G. Fed [2006] 3 NWLR (Pt 967) page 346 At 367 Ratio 8. He submitted that the claims for interest at 10% and cost of N1,500,000.00 had contravened the law upon which the claims on the liquidated money demand is predicated. He argued that there was no agreement between the claimants and the defendant to pay interest on any outstanding claim at the end of their tenure and/or the cost of litigation to recover such claim. It was counsel’s contention that the claim for interest and cost takes the action outside a liquidated money demand citing Ogbonna v Ukaegbu [2005] 17 NWLR (Pt 954) 432 at 435. Learned counsel to the claimant raised four issues for determination as follows: 1. Whether the claimants claims is statute barred by virtue of S.2(a) of Public Officers Protection Act/Law having regards to the facts of this case. 2. Whether it is not the Limitation Law Cap 78 of the Laws of Akwa Ibom State as against the Public Officers Protection Act/Law that governs and is applicable to the instant case, being a special law on limitation of action. 3. Whether the misjoinder of parties, assuming it is the case in the instant case, can rob this Honourable Court of the jurisdiction to hear and determine this suit. 4. Whether the claimants claim have ceased to be a liquidated money demand in view of the claims for interest after judgement and cost of action. He submitted that the claimants claim is for non payment of accrued/due salaries and allowances for labour, work and services rendered to the defendant. He argued that Public Officers Protection Act is not absolute and do not apply in actions for breach of contracts including contracts of employment, claims for work and labour done citing Nigerian Ports Authority v Construction Genesali Spa [1974] 1 ANLR (pt 145) 955-956, FGN v Zebra Energy Ltd [2003] 3 WRN 1, CBN v Adedeji [2005] 36 WRW 38. He further submitted that the Public Officers Protection Act does not Protect a Public Officer who acts in bad faith citing Offoboche v Ogoja Local Govt. [2001] 16 NWLR (Pt 793) 458, Tolorunleke v ARMTI [2009] 16 WRN 39. He argued that the claimants have deposed to the fact that the defendant acted in bad faith and without legal justification in paying them a lower salary than what the statute permits. Counsel submitted that this is a dispute in relation to labour or work done and so it cannot be caught up by the Limitation citing Oghide & Ors v Jacson Air & Anor [2011] 22 NLLR (Pt 61) 58 at 87. He submitted that this action cannot be caught up by section 2(a) of the Public Officers Protection Law as this is a contract of employment with statutory flaovour. He submitted that where there are two provisions of different statutes section 2(a) of the Public Officers Protection Act and section 16 of the Limitation Laws Akwa Ibom State covering the same subject matter; one is a special provision and the other a general one, a case falling in the special provision must be governed thereby and not by the terms of the general provision citing Ibori v Ogborie [2004] 15 NWLR (Pt 895) 154. He submitted further that where there is a specific Limitation Law on any subject matter, the Public Officers Protection Law will become a general provision, while the Limitation Law is the specific and applicable law citing Ordia v Govt. of Delta state [2008] 7WRN 138 at 152, Tionsha v JSC Benue State [1997] 6 NWLR (Pt 506) 307, Orubu v NEC [1988] 5 NWLR (Pt 94) 323. He submitted that by the provision of section 16 of the Limitation Law Cap 78 Laws of Akwa Ibom State, any action founded on contract, tort, or any other action shall not be brought after the expiration of five years from the date of the accrual of the cause of action. He argued that the claimants left office in September, 2011; that five (5) years from September, 2011 is August, 2016 and submitted that the action was filed within time. He further submitted that the Limitation Law generally does not apply to cases founded on claims for due salaries and wages. See Oghide & Ors v Jason Air Ltd & Ors (Supra.) He argued that this action has been filed within time. On the issue of misjoinder of parties, learned counsel submitted that the issue of misjoinder of parties does not affect the jurisdiction and competence of the court to hear and determine this suit citing Anyanwoko v Okoye [2010] 5 NWLR (Pt 1188) 497 at 515. It was also counsels submission that the claim of 10% interest from the date of Judgement is a Post Judgement interest claim which this court is empowered to grant as a consequential relief referring to Order 21 Rule 4 of the NIC Rules. He argued that it requires no proof and cannot transform this action from a liquidated demand to an unliquidated action. He submitted that the sum of N1,500,000.00 claimed as cost of this action is an endorsement in strict compliance with the provision of Order 4 Rules 3 where the claim is for debt or liquidated demand only. He submitted that the defendants objection should be discountenanced in its entirety as same is unsustainable in law. Having considered the submissions of counsel, the issues to be determined are whether or not the defendant is a public officer and this action is caught by the Limitation Law. A court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. See Madukolu v Nkemdilim [1962] 2 SCNLR 341. In deciding whether a case is statute barred or not, the court only has to look at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the Limitation law, the action is statute barred. See Elabanjo v Dawodu [2006] 6-7 SC 24. The defendant argues that this action is caught by the provisions of section 2(a) Of the Public Officers Protection Act. 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. The claimant has argued that in this instance, the Public Officers Protection Act is not applicable but rather Section 16 of the Limitation Law Cap 78 Laws of Akwa Ibom State which provides that: “No action founded on contract, tort or any other action not specifically provided for in parts I and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued” The Public Officers Protection Act applies to both natural and artificial persons. See Ibrahim v JSC [1998] 14 NWLR (Pt 584) 1, Nwaogwugwu v President FRN [2007] 1 ALL FWLR (Pt 389)1327. I find the defendant to be a Public Officer and so hold. 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 has elapsed. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20, Udoh Trading Coy Ltd v Abere[2001] 11 NWLR (Pt 723) 114. The cause of action arose sometime in September 2011 when the claimant’s tenure came to an end and they vacated office. This action was filed on the 10th May 2013. This is about twenty months after the accrual of the cause of action which is outside the three months statutory limit. The claimant’s counsel has argued that the Public Officers Protection Law is a general provision and not applicable while the Limitation Law is the specific law applicable in this instance. The defendant is a Public Officer. By the doctrine of covering the field, the Public Officers Protection Act being an Act of the National Assembly is applicable. The doctrine postulates that where the State and Federal Governments have concurrent powers to legislate on the same subject matter, the Federal Law covers the whole field of the subject matter. See Rector, Kwara Polytechnic v Adefila [2007] 15 NWLR (Pt 1056) 42. In the matter of limitation of actions against Public Officers, the whole field has been covered by the Public Officers Protection Act which is a Federal law. It has dealt exhaustively with the subject matter so as to manifest an intention to exclude any other legislation on the same matter. By this doctrine of covering the field, the Public Officers Protection Act being an Act of the National Assembly, overrides the Limitation law of Akwa Ibom State. See A.G. Abia State & 35 ors v A.G. Federation [2002] All FWLR (Pt 101) 1447. I hold that Section 16 of the Limitation Law of Akwa Ibom State is not applicable. Rather, the applicable law is the Public Officers Protection Act. The claimant has argued that the Public Officers Protection Act does not apply to contracts. This is not the correct position as case law is replete with employment contracts that were caught by the provisions of Section 2 (a) of the Act. See Forestry Research Institute of Nigeria v Gold [2007] 11 NWLR (Pt 1044) 1 at 18, Bakare v Nigeria Railway Corporation [2007] All FWLR (Pt 391) 1577. The claimant has submitted that a claim for work and labour done cannot be caught up by the Limitation and has cited this court’s decision in the case of Oghide & Ors v Jason Air & Anor [2011] 22 NLLR (Pt 61) 58. I will refer to the recent decision of this court given by my learned brother Hon Justice B.B. Kanyip in Dosumu Oloto v Power Holding Company of Nigeria (unreported) Suit No NICN/LA/214/2011, Ruling delivered on February 13, 2014 as follows: The claimant argued that a claim for pension, gratuities and severance packages cannot be statute-barred and cited CBN v. Amao and John Ovoh v. Nigeria Westminster Dredging and Marine Company Ltd, amongst other authorities. But I think that there is a misunderstanding of the context in which this decision was given. A similar argument regarding the claim for salary and allowances was made in Hon. Runyi Kanu (JP) & ors v. The Attorney General & Commissioner for Justice Cross River State & ors (supra), and this Court explained the situation thus – In cases of claims for salary and allowances, the decisions of this Court in John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd would appear to be good law if the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1st defendant who had raised it. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. In this sense, for the ‘continuing injury’ exception to apply, the employee would need to be in employment; for otherwise, the claim that the deprivation continues would not stand. In the instant case, the claimants ceased to be in office in 2010. There is, therefore, no question as to the existence of a deprivation of an entitlement which comes in periodically and has not ceased after 2010. This being the case, the claimant in the instant case cannot claim the benefit of the exception to the Public Officers Protection Law of Cross River State. In any event, the definition of the phrase “continuance of the injury” by case law authorities to mean continuance of the “act which caused the injury” and not the injury itself presupposes that this Court’s stance in cases such as John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd must be understood qualifiedly. I have not been given any reason why I should depart from this position in light of the Supreme Court’s decision in A-G Rivers State v A-G Bayelsa State supra which came after the decision in Tony Oghide and ors v. Jason Air & Anor supra. I find that this suit has been instituted outside the three months of accrual of cause of action. I hold that this action is Statute barred; and the defendant is protected by the Public Officers Protection Act. There is therefore no need to rule on the issues of misjoinder and liquidated money demand. This court lacks jurisdiction to entertain this matter. It is hereby struck out. I make no order as to costs. Ruling is entered accordingly. ----------------------------------------- Hon Justice O.A.Obaseki-Osaghae