IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

HOLDEN AT MAKURDI

IN THE MAKURDI JUDICIAL DIVISION

BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA

 

ON THE 15^TH DAY OF MARCH, 2019                       

SUIT NO: NICN/ABJ/365/2014

BETWEEN:
HON. EMEKA MBONU

CLAIMANT 

AND

ETCHE LOCAL GOVERNMENT COUNCIL

DEFENDANT

 

REPRESENTATION:

Olufunke Shankyura holding the brief of I.A. Nwala for the Claimant.

N.I. Aniekwe holding the brief of N.C. Okonkwo for the Defendant.                                                             

                                                                     RULING
The Defendant filed a Notice of Preliminary Objection on 16/11/2018. The Notice of preliminary Objection is dated 15/11/2018 and contains the following reliefs:

"1. AN ORDER striking out this suit having been statute barred and for want of jurisdiction.
2. AND FOR SUCH FURTHER ORDERS as the Honourable Court may deem fit to make in the circumstance."

The grounds for the objection are stated thus:

"1. The suit is statute barred.

2. The Honourable Court lacks jurisdiction to entertain this suit."

Accompanying the application is a written address of Counsel for the Defendant wherein, it was argued that the claims of the Claimant are statute barred and as such, this Court is robbed of the jurisdiction to entertain the suit. Relying on Section 2(a) of the Public Officers Protection Act, Counsel argued that the Claimant’s suit was commenced outside the three (3) months window allowed by the provision of the Act hence, the suit is incompetent. Counsel also brought into focus Section 128 of the Rivers State Local Government Law No. 3 of 1999 (as amended) while arguing that the six (6) months period provided by the law had equally passed.

Arguing the point further, counsel maintained that the claims of the Claimant derive from his tenure as council supervisor, an appointment he held from 7th August 2008 until 30th March 2011. Counsel submitted that as at 1/12/2014 when the Claimant instituted this suit, more than 3 years had passed since the Claimant’s appointment ended. Learned Counsel for the Defendant directed the attention of this court to the principle and effect of statute bar by referring to the following cases: AREMO II Vs. ADEKANYE (2004) ALL FWLR (PT. 224)2113; ATTORNEY GENERAL OF RIVERS STATE Vs. ATTORNEY GENERAL OF BAYELSA STATE & ANOR (2013) 3 NWLR (PT.1340)123; FGN Vs. ZEBRA ENERGY LTD (2002) 18 NWLR (PT. 798) 162; ARAKA Vs. EJEAGWU (2000)4 NSCQR 308; PATKUM INDUSTRIES LTD Vs. NIGER SHOES LTD (1988) 5 NWLR (PT. 93); IBRAHIM Vs. OSIM (1987) 4 NWLR (PT. 67) 965; BELLO Vs. A. G. OYO STATE (1986) 5 NWLR (PT. 45) 828; ADIMORA Vs. AJUFO & ORS (1988) 3 NWLR (PT. 801).

Submitting that the court lacks jurisdiction to entertain the matter, counsel cited and relied on the cases of: EGBE Vs. ADEFARASIN (1987) 1 NWLR (PT. 47); HASSAN Vs. ALIYU (2010) 17 NWLR (PT. 1223) 547; ALHAJI ADO IBRAHIM Vs. ALHAJI MAIGIDA U. LAWAL & ORS (2015) LPELR; ADEJUMO Vs. AGUMAGU (2015)12 NWLR (PT. 1472) @ 37; MADUKOLU Vs. MKEMDILIM (1962) NSCC 374 @ 379.

In conclusion, Counsel urged the court to uphold the preliminary objection and strike out this suit.

The Claimant/Respondent caused a written address to be filed on 12/12/2018 in opposition to the Notice of Preliminary objection. Learned Counsel for the Claimant formulated a lone issue for determination by the court, thus:-

"Whether giving (sic) the reliefs sought by the claimant against the Defendant and the fact and evidence in support, Section 2 (a) of the Public Officers Protection Act is applicable to this action to oust the competent jurisdiction of this Honourable Court to hear and determine same on their merit."

Arguing the issue, counsel stated that the issue deserves a negative answer because the claim of the claimant against the Defendant is for money owed him in salaries and benefits accruing during the Claimant’s tenure of work with the Defendant. Counsel submitted that the cause of action can therefore not be caught up by the provisions of Section 2(a) of the Public Officers Protection Act or Section 128 of the Rivers State Local Government Law No. 3 of 1999 (as amended). That the operation of these statutes do not bar claims for work and labour done. Counsel cited and relied on the following cases: OSUN STATE GOVERNMENT Vs. DANLAMI (NIG.) LTD (2007) 9 NWLR (PT. 1038) PG. 66 @ 83-44; AIYELABEGAN Vs. L. G. SERVICE COMMISSION, ILORIN, KWARA STATE (2009) 22 WRN, PG 146- 147; MICMMERAH INT’L AGENCY LTD Vs. A-Z PETROLEUM PRODUCTS LTD (2012) 2 NWLR (PT 1285) PG. 564 @ 588.

Counsel also argued that by the very nature of the appointment of the Claimant by the Defendant, there was in existence a contractual relationship. Thus, the demands based on that contractual relationship are liquidated money demands which are not hampered by the design of both the Public Officers Protection Act and the Rivers State Local Government Law as thought by the Defendant. Counsel cited: KOKOORIN Vs. PATIGI L.G (2009) 15 NWLR (PT. 1164) PG. 305 and TOLORUNKE Vs. ARMITI (2009) 16 WRN @ 75-76, LINE 45-30.

Counsel urged the court to be guided by the admonition issued by various courts of the land to the effect that courts should not hold onto the technicality imbued by the provision of the Public Officers Protection Act but rather be driven by the need for equity and substantial justice. Counsel made reference to the following cases: AIYELABEGAN Vs. L.G. SERVICE COMMISSION, ILORIN, KWARA STATE (SUPRA) @ 149, LINE 5-15; ELUWA & ORS Vs. UMUAHIA SOUTH L.G. & ORS (2013) 37 N. L. L. R (PT 114), PG 376 @ 384 – 385 PARAS F-G; LT. COL. LREYUWA Vs. NIGERIA ARMY COUNCIL & ANOR (2013) 35 N.L.L.R (PT 105), PG 475 @ 493 PARA. A; OGHIDE & ORS Vs. JASON AIR LIMITED & ANOR (2011) 22 N.L.L.R. (PT. 61), PG 58 @ 87, PARAS F-G.

Finally, Counsel urged the court to hold that Section 2(a) of the Public Officers Protection Act Cap A41, LFN 1990 and Section 128 of the Rivers State Local Government Law No. 3 of 1999 (as amended) are not applicable to the claims and facts of this case.

                                                              OPINION OF COURT

I have looked at the argument of the parties and their submissions and wish to state that in order to determine whether a cause of action is spent, the court needs to look at the claims before it to understand when the cause of action arose and then consider the relevant statute of limitation.

Looking at the claims before me, it is apparent that what is involved in the present action is the claim for salaries, allowances and fringe benefit allegedly accruing to the Claimant from the Defendant for services rendered during the period from 7th August 2008 to 30th March 2011. For short the entire claim of the claimant is for his entitlements.

The yardsticks to determine that an action is statute barred are the date when the cause of action accrued, the date of commencement of the action as indicated in the writ of summons and the period of time prescribed to bringing an action to be ascertained from the statute in question. See INEC Vs. Ogbadibo(2015)LPELR - 24839 (SC).

From the facts of this case as reflected in the processes filed by the parties, the claimant was appointed a council supervisor by the Defendant and he served from 7/8/2008 to 30/3/2011 but was not paid his entitlements. Claimant however instituted this action on 1/12/2014 that is a little over 3 months after his tenure elapsed.

For clarity sake, I wish to reproduce the provisions of section 2 of the Public Officers Protection Act 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 or authority, the following provisions shall have effect –

Limitation Action

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 continuance of damage or injury within three months next after ceasing thereof."

Clearly, the Act constitutes a limitation law against claim by a person whose right has been affected by an act or default done or intended in the lawful execution of a public duty. In such event, it becomes imperative for person affected to commence an action for redress within three months after such act or default. The implication of an action being statute barred is that because it has not been instituted within the period stipulated under the law, such action is deemed dead on arrival as the cause of action is left bare and unenforceable. In effect, even if the action were to be otherwise meritorious, the court will be divested of the jurisdiction to entertain it. SEE: OGUN STATE GOVERNMENT Vs. DALAMI NIG. LTD. (2007) ALL FWLR (PT.365)438; CHIGHU Vs. TONIMAS (NIG) LTD (2006) 9 NWLR (PT. 984) 189; SANNI Vs. OKENE LOCAL GOVERNMENT (2005) 14 NWLR (PT. 944) 60.

That the legal right to approach the court for redress does not exist in perpetuity but is generally tampered by a statute of limitation. See the case of LAGOS STATE GOVERNMENT Vs. MARTINS (2015) ALL FWLR (Pt. 794) 27 @ 42 Paragraph E.

Generally where a law provides for the institution of an action in a court of law within a prescribed period in respect of a cause of action accruing to the Claimant, proceedings shall not be brought after the expiration of the period stipulated by law. Such statutes that prescribe and regulate the period for subsistence of causes of action are statutes of limitation and Legal proceedings cannot be properly or validly instituted outside the time frame set by statutes of limitation.

See OBA J. A. AREMO II Vs. ADEKANYE & 2 ORS. (2004) 13 NWLR (PT. 891) 572, IBRAHIM Vs. LAWAL & ORS (2015) LPELR-24736(SC).

However, this provision admits of some exceptions. In ATTORNEY-GENERAL OF RIVERS STATE Vs. ATTORNEY-GENERAL OF BAYELSA STATE (2012) 6-7 MJSC (PT. 111) 149, the Supreme Court stated at pages 181 - 182 that the Public officers (protection) Act has never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice hence, the Act has prescribed two “most important exceptions” namely, that in case of continuance of damage or injury the Act  permits action to be brought on the expiration thereof outside three months. And secondly the Act does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty. See NWANKWERE Vs. ADEWUMI (1967) NWLR 45 AT 49; ANOZIE V. ATTORNEY GENERAL OF THE FEDERATION (2008) 10 NWLR (PT. 1095) 278 AT 290 - 291".

It is the opinion of this court that the operation of these statutes do not bar claims for work and labour done, considering that the claimant’s claim against the Defendant in this case is for money owed in salaries and benefits accruing to the Claimant during his tenure of work with the Defendant.

The  Supreme Court in its recent decision on section 2 of the Public Officers Protection Act in the case of National Revenue Mobilization Allocation and Fiscal Commission & 2 Ors. vs. Ajibola Johnson & 10 Ors (2019) 2 NWLR (Pt. 1656) 247 @ 270-271, held that the Act does not apply to contracts of service. The court held that the appellants are not covered by the provisions of the Public Officers Protection Act and do not enjoy the umbrella of the Act in the contract of service involving the respondents as to render the respondents’ action stature barred. 

On this note therefore, I have no reservations in concluding that the Public Officers Protection Act cannot protect the Defendant against the benefits and entitlement of the claimant. The time that the cause of action arose and the time the Claimant institued the action is of no moment.

Similarly, I agree with the Claimant that his action against the Defendant is not statute barred by reason of Section 128 of the Rivers State Local Government Law No. 3 of 1999 (as amended).

In conclusion, the Defendant's/Applicant’s preliminary objection is accordingly dismissed for lacking merit.

Ruling is delivered accordingly. I make no order as to cost.

 

__________________________________

Hon. Justice S. H. Danjidda

(Presiding Judge)