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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE ABUJA JUDICIAL DIVISION HOLDEN AT ABUJA BEFORE HIS LORDSHIP HON JUSTICE M. N. ESOWE DATE: 17TH FEBRUARY,2015 SUIT NO/NICN/ABJ/331/2013 BETWEEN HONOURABLE DAVID ODILI …………………… CLAIMANT AND 1) EXECUTIVE GOVERNOR OF EDO STATE 2) THE ATTORNEY GENERAL EDO STATE 3) THE ESAN UBIAJA, EAST LOCAL GOVERNMENT RESPONDENTS/ APPLICANTS COUNCIL, UBIAJA, EDO STATE 4) THE CHAIRMAN ESAN SOUTH EAST LOCAL GOVERNMENT COUNCIL UBIAJA, EDO STATE REPRESENTATIONS 1. C. E. ODUM Esq. with N. I. OBIALOR Esq., for Claimant 2. L. N. GARUBA (MRS) for the 1st and 2nd Respondents/Applicants 3. A. O. OLOMAIYE Esq., for the 3rd and 4th Respondents/Applicants R U L I N G This is the RULING on the Motion on Notice of Preliminary Objection, brought pursuant to section 13 of the Industrial Court Act 2006, Order 3 Rule 1, 4 and 7, Order 5 Rules 2 (1), Order 11 Rules 1(1) of the Industrial Court 2007 and section 2 Public Officers Protection Law of Bendel State of Nigeria 1976 now applicable in Edo State and under the inherent Jurisdiction of this Honourable Court. In this Motion, the 3rd and 4th Defendants/Applicants are praying this Honourable Court for the following order(s): 1. Granting an order to the 3rd and 4th Defendants/Applicants to strike out this suit on the ground that the court lacks the jurisdiction to entertain this suit, in that suit is incompetent as the issue in content/controversy is hostile for which statement of claim has to be filed and evidence led before judgment can be given not by way of originating summons. 2. An order striking out this suit on the ground that the case is statute barred having not being commenced within (3) three months time when the cause of action arose as the 3rd and 4th Defendant/Applicants are public officers. AND FOR SUCH further Order or Orders as this Honourable Court may deem fit to make in the circumstances of this case. The Court shall address the Issue of Limitation of time which touches on the Jurisdiction of this Court and shall therefore discountenance the 1st Prayer. WRITTEN ADDRESS IN SUPPORT OF PRELIMINARY OBJECTION. The Motion is supported by a seven paragraphed affidavit with sub paragraphs A-L in paragraph 4. Counsel relied on all the paragraphs particularly paragraph 4(b), (c), (d), (e), (f), (g), (h),(i), (j), (k) and (I). From the processes filed, the issues for determination are as follows: 1. Whether instituting this suit by way of originating summons is not irregular and defective? The Court shall overlook this issue for the reason given above. 2. Whether plaintiff’s claim against the 3rd and 4th Defendant/Applicants is not statute barred within the meaning of section 2 of the public Officers Protection law, Laws of Bendel State of Nigeria 1976 now applicable in Edo State ON ISSUE 2 Counsel submitted and urged this Court to hold that the Plaintiff’s suit is statute barred and it should be dismissed in its entirety. To him, the institution of this suit is clearly over three years from the date of action; which is contrary to Section 2(a) Public Officers Protection Laws of Bendel State now application in Edo State law which provides for three months claim in action against a Public Officer/Public Institution. It is his submission that since the action was taken outside the statutory period of three months prescribed by law, this suit is statute barred and should be dismissed. The Supreme Court defined the term limitation in NASIR V. C.S.C, KANO STATE (2010) 25 WRN Pg 1 at 8 Ratios 7 & 8. “In the case of NATIONAL BANK OF NIGEIRA LTD. AND ANOR. V. JOHN AKINKUNMI SHOYOYE (1977) 5 S.CC 181 at 186 it was held that an objection that touches on jurisdiction can be taken at any time by’ the court and that even without pleadings the Court can order preliminary points of laws to be taken”. In N.P.A. PLC vs. LOTUS PLASTIC LTD. (2006) VOL. 3 WRN PAGE 133 AT 139-146 RATIOS 1,2,3,4,5,9 &10. The Supreme Court held inter alia. Ratio 9 provides: “the general principle of law is that where the law provides for the bringing of action within a prescribed period in respect of cause of action accruing to a plaintiff, proceedings shall not be brought after the time prescribed by the statute had expired. See OBIOFUNU V. OKOYE (1961)1 All NLR 357. This means an action brought outside the prescribed period offends against the provision, the statute and does not give rise to a cause of action”. The Supreme Court in the case of NWAIWO vs. YAR’ADUA (2910) Vol.45 WRN PG 1 AT 16 RATIO 6, 8, 9 & 12. Ratio 6 Provides: “It is settled law that where a statue lays down a procedure for doing anything no other method is to be employed in doing the thing. In order words, where a statue or legislation provides for a particular method of performing a duty regulated by the statute that method and no other must have to be adopted. See CCB PLC. V. A-G., Anambra State (1992) 10 SCNJ 137; (1992) 8 NWLR (Pt. 261) 528.” Per Onnoghen, JSC (P. 40) Lines 25-30 Ratio 5 of NWOSU V. IMO STATE ENVIRONMENTAL SANITATION AUTHORITY & 4 Ors (2004) 20 WRN 94; (1990) 4 S.C. 70; (1990) 2 NWLR (Pt. 135) 688 at 695”. Provides that: “Where an objection is raised to the jurisdiction of the trial court to try an action, the court at that stage has to inquire whether in fact its jurisdiction has been ousted, in doing so, the court must be guided by the principle that every superior court of record guards its jurisdiction jealously He submitted therefore that since the action was taken outside the statutory period of three months it is statute barred and should be dismissed. Counsel urged this Court to hold that answer to issue one and two raised above are in the affirmative and submitted that the Plaintiff’s suit in this case is statute barred and should be dismissed in its entirety. NOTICE FOR PRELIMINARY OBJECTION BY THE 1ST AND 2ND DEFENDANTS. INTRODUCTION: The 1st and 2nd Defendants also filed a Notice of Preliminary Objection against further proceeding in this case. The Application was brought pursuant to Section 13 of the Industrial Court Act 2006, Order 3 Rule 1, 4 and 7, Order 5 Rules 2(1), Order II Rules 1(1) of the Industrial Court Rules 2007 and Section 2(A) Public Officers Protection Law of Bendel State of Nigeria 1976 now applicable in Edo State and Under the Inherent Jurisdiction of this Honourable Court, and is dated 18th day of June 2014. The application is supported by an 8 paragraph affidavit deposed to by one Roy Egbokhan, a Senior State Counsel in the Ministry of Justice, Edo State. The grounds of the application are clearly stated on the motion paper. Counsel relied on all the paragraphs of the affidavit in support of this application as enumerated above. Consequently, he urged this Court to dismiss this suit for want of jurisdiction. ISSUES FOR DETERMINATION The 1st and 2nd Defendants/Applicants formulated the following issues for the determination of the Court. (1) Whether the Claimant’s/Respondent’s suit is liable to be dismissed for being incompetent same having not been instituted within three (3) months of the accrual of cause of action in the circumstances of this case. (2) Whether or not the 1st and 2nd Defendants are necessary and proper parties in this suit having regards to the facts of this case, as disclosed in the originating summons and exhibits attached thereto. COURT: At this stage, when the 1st and 2nd Defendants are against the Commencement of this suit for being statute barred; the Applicants cannot present, and the Court cannot entertain any argument on the second Issue. It is better canvassed at the Hearing of the Substantive case. It is hereby abandoned. ARGUMENT/SUBMISSION ON ISSUE NO. 1 “WHETHER THE CLAIMANT’S/RESPONDENT’S SUIT IS LIABLE TO BE DISMISSED FOR BEING INCOMPETENT. SAME HAVING NOT BEEN INSTITUTED WITHIN THREE (3) MONTHS OF THE ACCURAL OF CAUSE OF ACTION IN THE CIRCUMSTANCES OF THIS CASE”. To counsel, it is a settled principle of law that an action against a Public Officer must be commenced within 3 months after the accrual of cause of action else, the action becomes statute barred. And in determining whether an action is statute barred, the Court will look at the processes filed. He referred the Court to the Originating Summons and affidavit in support of Originating Summons and in particular pages 3 and 6 to know when the action was filed. Counsel referred the Court to the cases of: (1) EGBE Vs ADEFARASIN (1987), NWLR (PT. 47) 1 AT 20 PARAS G-H (2) NWADIARO Vs SHELL DEV. Co LTD (1990) 5 NWLR (PT 150) 322 AT 336 PARAH. (3) MOYOSERE Vs GOV., KWARA STATE (2012) 5 NWLR 242 AT 283-284, PARAS D-C Counsel also referred the Court to Section 2(a) of the Public Officers Protection Law Cap. 137 Laws of Bendel State now applicable to Edo State which is herein under reproduced for ease of reference: Section 2(a) 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 law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following provisions shall take effect: The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within 3 months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months after the discharge of such person from prison. He submitted on behalf of the 1st and 2nd Defendants/Applicants that an action against a public officer ought to be commenced/brought within 3 months after the accrual of cause of action or else, the action becomes stale or extinguished. Counsel referred the Court to the case of CRUTECH V. OBETAN (2011) 15 NWLR (PT. 1271) 588 AT 608-609, PARAS H-A; where it was held per OREDOLA, J. C.A. as follows: “Thus, where a law stipulates a durational period for the institution of a suit, such an action cannot be commenced after the expiration of the statutorily prescribed period” And at page 608, PARAS G-H OF CRUTECH V. OBETAN (SUPRA) as follows: “Under the Public Officers Protection Law, suit instituted against person covered by it must be commenced within the limitation period stated therein; otherwise they will become stale or extinguished. It is a limitation state which provides for a well spelt out time frame for the commencement of an action by a prospective litigant. It does not admit of fact dragging, late coming or sleeping on duty so to say. It has no accommodation or beddings for a sleeping duty” From the Plaintiff’s Originating Summons, Affidavit in Support of Motion and the Exhibits attached thereto, they are claiming severance allowance and gratuity pursuant to the Political and Public Officers Emolument Law 2007 respectively. The Plaintiff had served as a councilor in the Esan South East Local Government Area Ubiaja of Edo State between the 17th December 2007 to about the 30th day of October 2010. According to the Plaintiffs Counsel in his written address filed along with the Originating Summons stated. “The Plaintiff by virtue of the provisions of the extant law is entitled to three hundred percent (300%) of their Annual Basic Salary as set out in Part II of the Second Schedule to the Political and Public Officers Emolument Law 2007.” He continued:“The Plaintiff at the end of his term in the year 2010 was refused payment of severance, gratuity allowance till date after several demands, despite the fact that some of his colleagues who defected from the People’s Democratic Party (PDP) to the ruling Action Congress of Nigeria (ACN) in Edo State, have been paid their Severance Gratuity Allowances or substantial parts thereof, hence the present action for the sums to which Plaintiff is entitled to as Severance Gratuity Allowances amongst other reliefs.” To counsel, the cause of action accrued on the 30th day of October, 2010 and they filed their action on the 10th day of December, 2013, a period of more than 2 years after the accrual of action, thus the Plaintiff has lost his right to enforce the cause of action by filing their Originating Summons on 10th December 2013. He referred to the case of MOHAMMED V MILITARY ADMINISTRATOR OF PLATEAU STATE cited with approval in the case of ETUK V NKOBI (2006) 9 NWLR PT 984 PG 81 AT 99 where the court held: “Where an action is statute-barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by Judicial Process; because the time laid down by limitation law for instituting such an action has elapsed”. Again that it is now not in dispute that this action was commenced after the expiration of 3 months provided by law, and so submitted that the action of the Plaintiff is statute barred by reasons of which the following legal consequences flow: (a) They have lost the right of enforcement. (b) They have lost their right of action. (c) They have irretrievably lost their right to judicial reliefs sought. (d) They have an empty cause of action which no court will assist them to enforce. On determining when a cause of action is statute barred counsel referred the Court to the case of MOYOSERE V. GOV., KWARA STATE (2012) 5 NWLR 1293, 242 AT 283-284, PARAS D-C, where MBABA, J.C.A held as follows: “Even where the defence of statutory limitation is properly raised in a suit the duty on determining the period of limitation is on the court, and the court can only discharge that duty by resort to the Writ of Summons and/or Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action, and by comparing that with the date on which the Writ of Summons was filed. Of course this can be done without taking oral evidence from the witnesses, and if the time on the Writ of Summons is beyond the period allowed by the limitation law, then the action is statute barred. See also of the case of EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) 1 AT 20. He referred also the following cases: (1) MILITARY ADMINISTRATOR OF EKITI STATE V. ALADEYELE (2007) 14 NWLR (PT.1055) 619 AT 65 1-652; (2) I.T.F. V. N.R.C. (2007) 3 NWLR (PT. 1020) 28; (3) F.R.I.N. V. GOLD (2007) 11 NWLR (PT.1044) 1; In the light of the weight of the judicial authority highlighted above, counsel submitted that the Plaintiff’s action is statute barred. Hence, his right to institute same which is his right of action has been estranged, and he urged the Court to so hold. ISSUE NO. 2 has been struck out. CONCLUSION This Court was urged to dismiss this action of the Plaintiff for being incompetent, i.e. statute barred. PLAINTIFF/RESPONDENT’S REPLY ON POINTS OF LAW IN OPPOSITION OF 1st and 2nd DEFENDANTS/APPLICANTS’ MOTION ON NOTICE INTRODUCTION: In opposition to the Application of the 1st and 2nd Defendants/Applicants, the Claimant has reacted to the two (2) Issues for the determination of the Court, to wit: 1. Whether the 1st and 2nd Defendants/Applicants are not necessary and proper parties before the Honourable Court? 2. Whether Section 2 (a) of the Public Officers Protection Law Cap 137 Laws of Bendel State (Now Applicable in Edo and Delta States) is intended to apply in cases of Contract and by extension, Claims for Severance Gratuity Allowance? The Court cannot delve into the Substantive matter without resolving on Issues touching on its Jurisdiction. Issue 1 (one) is therefore discountenanced. ON ISSUE 2 Counsel urged the Court to discountenance paragraph 5, 6 and 7 of the 1st and 2nd Defendants/Applicants Affidavit in Support of the Preliminary Objection for being at the most part incompetent, in that they reveal the conclusion of the deponent without giving such facts as would lead an independent court or tribunal to come to its own conclusion on the facts; and thus offend Section 115 (1) and (2) of the Evidence Act. It is trite law, he said, that issues of limitation of action are determined by looking at the facts stated in the writ in this case, the Originating Summons to determine when the cause of action arose, because whether the Plaintiff’s cause of action arose on a particular date is a question of fact, which is not predetermined by legal principles. It is also trite law that time does not run during negotiation because it is in the interest of public policy and peaceful coexistence that parties explore available internal and/or domestic mechanism for resolving disputes before approaching court where such measures fail having been exhausted; in fact that is essence of Section 152 (1) and (2) of the Edo State Local Government Law, 2000 which renders incompetent any action against any of the Defendants incompetent in the absence of a pre-action notice, which we have complied with. To him, paragraphs 12, 13, 14, 15, 16 of the Affidavit in support of the Originating Summons and Exhibit “ED3”, are pointers to when the cause of action in this case arose, assuming but not conceding that such is of the essence in this case. Given such deplorable case, he still urged this Court to consider the fact that litigation in this case commenced on the 14th day of August, 2012 in Suit Number NICN/ABJ/237/2012. He however, submitted that although the general principle of law is that the Public Officers Protection Law Cap 137 Laws of Bendel State (Now Applicable in Edo and Delta States) just like the Public Officers (Protection) Act is a Statute of Limitation which removes the right of action, the right of enforcement and the right to judicial relief in a Plaintiff and leaves him with a bare and lifeless cause of action, which cannot be enforced having been instituted after the three (3) months prescribed by the said law, the law has some exception. The Public Officers Protection Law does not apply in cases of Recovery of Land, breaches of Contract, Claims for the work and Labour done etcetera. He had deposed to facts that the Severance Gratuity Allowance which he claims before this Court is a Contract between the parties which has statutory flavour, same being enshrined in the Edo State Law for the benefit of all Political and Public Office Holders and cannot be overridden by the provisions of Section 2(a) of the Public Officers Protection Law Cap 137 Laws of Bendel State (Now Applicable in Edo and Delta States), particularly where the 1st and Defendants/Applicants are in deliberate breach of the statutory contract and are denying the Plaintiff his legitimate right to payment for services rendered as envisaged by law. We place firm reliance on the dictum of Katsina Alu JSC in the case of OSUN STATE GOVERNMENT v. DANLAMI NIGERIA LIMITED (2007) 148 LRCN 1311 at 1313 Ratio 2 where the learned jurist held that: “I think it is without dispute that this is an action for breach of contract. It is settled law that Section 2 of the Public Officers (Protection) Act does not apply to cases of Contract.” Counsel placed further reliance in the cases of NIGERIA PORTS AUTHORITY V. CONSTRUZIONI GENERAL FARSURA COGEFAR SPA & ANOR (1974) 1 All NLR 463; BAKONLE v. NBL (1969) NCLR 385 at 390 and SALAKO v. L.E.D.B (1953) 20 NLR 169, where the courts held that, Section 2 of the Public Officers (Protection) Act does not apply in cases of Recovery of Land, Breaches of Contract, Claims for the Work and Labour done, etcetera. Furthermore, that the Defendants/Applicants being public officers under the time honoured principle of pacta sunct servenda are legally bound by the terms and conditions of the contract they freely entered into as public offices and officers respectively. CONCLUSION He urged the Court to discountenance the argument of counsel to the 1st and 2nd Defendants/Applicants in its entirety as a nebulous academic exercise purposed as misdirecting the Court and derailing the course of justice as the 1st and 2nd Defendants/Applicants cannot be allowed to take advantage of their wrong as encapsulated in the maxim Nullum Commodum Capere Potest De Injurua Sua Propria. That is to say, no polluted hand shall be allowed to touch the pure fountain of justice. He referred the court to the case of IBRAHIM v. OSUNDE (2009) 171 LRCN 126 at 131 Ratios 4 and 5. He finally submitted that this action is not Statute barred. The Court is therefore urged to resolve issue 2 in favour of the Plaintiff/Respondent. The Court has considered the Application before it , the submissions of counsels to the parties and the plethora of authourities relied on by them. The issue of cases being Statute barred is now trite, and supported bt plethora of authourities. It is trite that for the purpose of limitation, time begins to run from the dates of accrual of cause of action. See the case of WOHEREM VS. EMENWA (2004) NWLR {PT. 890), 398.From the Originating Process of the Plaintiff, particularly Reliefs (1) and (2), it is obvious that the Plaintiff at the end of his term in the year 2010 was refused payment of severance, gratuity allowance till date after several demands, despite the fact that some of his colleagues who defected from the People’s Democratic Party (PDP) to the ruling Action Congress of Nigeria (ACN) in Edo State, have been paid their Severance Gratuity Allowances or substantial parts thereof. In OFILI VS. CIVIL SERVICE COMMISSION (2008) ALL FWLR (Pt 434) PG. 162, RATIO 2 the Court of Appeal held that: “time begins to run where there is in existence, a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.” To further determine whether or not this suit is totally lacking in merit, this Court was urged to look at the Complaint and the statement of facts in this suit and referred to the case of WOHEREM VS. EMENWA (2004) NWLR {PT. 890), 398. A cursory look at the face of the Claimants originating processes- (Originating Summons) clearly shows that it was filed on the 10th day of December, 2013. Essentially, the cause of action in this suit accrued in 2010; immediately the Defendant refused to pay the Plaintiff his Severance Gratuity Allowance; Originating Summons through which the Plaintiff approached the Court facts was filed on 10-12-13. This means that the period between the date the cause of action accrued and the date the Claimants originating processes were filed is far above three(3) months statutory time limit contemplated by POPA. Again, in ADEOYA VS. FEDERAL HOUSING AUTHOIUTY (2008) ALL FWLR (pt, 434) PG.1452 @ 1454, RATIO 3, the Supreme Court stated the position of the Law thus; “In order to determine whether an action is statute-barred or not, the Court must be involved in the exercise of calculation of years, months and days to the minutest detail. It is really an arithmetic exercise which needs a most accurate answer. Using the limitation period in the enabling statute as the baseline, the judge then works out when the cause of action arose and when the plaintiff actually instituted the action. If in the course of his calculation, there is a plus on the baseline year, then the action is statute –barred. But if there is a minus, then the action is competent… This is not a matter of calculation of raw figures in the determination of whether an action is statute-barred or not. A court of law has no discretion in the matter.” In the instant case, the cause of action arose the moment the accrued in 2010; from the moment of refusal to pay the Plaintiff his Severance Gratuity Allowance. Consequently, when an action is statute- barred, a plaintiff (the Claimant herein) who might have had a cause of action automatically loses the right to sue to enforce the cause of action by judicial process because the period of time laid down by the limitation law for instituting such action had expired. See the case of OFILI VS CIVIL SERVICE COMMISSION (SUPR.4) @ RATIO 1. In the instant case, the Claimants brought this action three years after the accrual of action. As a result, he has wholly lost his rights to make good his case through this Court as the suit has become statute-barred. The Court to so holds. CONCLUSION: In the case of UAC VS MACFOY, the Learned Law Lord Denning MR (as he then was) posited that “if an act is bad it is in law a nullity. It is not only bad but incurably bad .Any other proceeding founded on it is also bad and incurably bad. A person cannot put something upon nothing and expect it to stand; it will rather collapse”. The Court therefore holds that this suit as constituted cannot stand being Statute barred and same is hereby dismissed. Ruling is hereby entered accordingly. I make no Order as to costs. ……………………………………….. HON. JUSTICE M. N. ESOWE