IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN IN ABUJA

BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA

 

DATED: 12TH APRIL, 2019                                                SUIT NO: NICN/ABJ/127/2018

 

BETWEEN:

AHMED MAHMUD TUKUR                                CLAIMANT

{For himself and on behalf of all the Affected NERC Staff}

 

AND:

THE NIGERIAN ELECTRICITY REGULATORY COMMISSION     DEFENDANT

 

REPRESENTATION:

ABIODUN E. OLUSANYA for the Claimant

DR. AYODELE GATTA for the Defendant

 

RULNG

      1.            This Decision ought to have been delivered before the 9th of March 2019 however due to the medical confinement of the Presiding judge it can only be delivered today and the Court is required to hear from the parties if they are still interested in receiving this decision. Having received and record the willingness of parties I shall proceed to deliver this court’s decision.

 

      2.            The Claimant instituted this action via Originating Summons filed on 3rd May, 2018 against the defendant for the determination of the following questions:

 

1)                  Whether the Defendant’s highest decision making body as established by the Electric Power Sector Reform Act Cap. £7 LFN 2005 is the Board of Commissioners and by making/issuing Resolution(s) of the Commission (the Defendant).

 

2)                  Whether the Resolution(s) of the Commission (the Defendant) is the highest decision/final order of the Defendant and any other policy, directives, reports, orders and or decisions conflicting and or inconsistent with any subsisting Resolution(s) of the Commission is to the extent of its inconsistency null and void.

 

3)                  Whether the Resolution of the Commission dated the 8th day of February, 2011 particularly Resolution 1 a-f; which gives the Claimants; Aides of the Ex—Commissioners the right of first refusal from Employment of the Defendant after the tenure of the respective Commissioners and Resolution of the Commission dated the 21st day of December, 2015, as the case may be, supposed to take effect at the end of the tenure of the commissioners.

 

4)                  Whether by the combine effect of the Resolution of the Commission dated the 10th day of November, 2015, Internal Memorandum dated the 23rd November, 2015 and the Resolution of the Commission dated the 21st day of December, 2015, the Claimants have been offered continuous employment with the Defendant, same accepted, process of regularization begun and the Claimants staffing position designated thereby making the Claimants subsisting employees of the Defendant.

 

5)                  Whether by the acts of the Defendant, especially by the letters dated; 9th day of July, 2013 (the defendant’s response to Auditor General’s queries), l8t day of September, 2017 (Auditor General’s letter), 15th December, 2015 (the Defendant’s request to Federal Character Commission), NASS record on NERC Staffing & Audit and the Defendant’s publication titled “False Report on NERC’s Severance: An Attempt to Destroy Electricity Regulation in Nigeria” in response to Daily Trust Newspaper publication dated 2nd day of November, 2015, the Defendant did hold out the Claimants as regular employees of the Defendant.

 

6)                  Whether by the Resolution of the Commission dated the 8th day of February, 2011 the Claimants being Aides of Ex — Commissioners of the Defendant and having not exercised their Right of First Refusal from Employment of the Defendant are entitled to continue in the employment of the Defendant, thereby making them subsisting Employees of the Defendant.

 

7)                  Whether the Claimants being subsisting Employees of the Defendant are collectively and individually entitled to their entire salaries, benefits and entitlements for the unpaid period being January, 2016 until Judgment is given and while still in the continuous employment of the defendant.

 

8)                  Whether the Claimants having accepted to continue in the employments of the Defendant are entitled as of right to resume and or reinstated to their respective designated offices with immediate effect.

If the answers to the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th and 8th questions are in the positive, the Claimants shall seek the following reliefs:

 

1.   A DECLARATION that the Defendant’s Commissioners, at one time or the other,          are the highest decision making body of the Defendant.

 

2.   A DECLARATION that the Resolution(s) passed by the Commissioners of the   Defendant, at one time or the other, is the highest decision/final order of the          Defendant, thereby overriding any other policy, directives, reports, orders and       or decisions conflicting and or inconsistent with it.

 

3.   A DECLARATION that the Resolution of the Commission dated the 8th day of             February, 2011 particularly Resolution 1 a-f; which gives the Claimants; Aides     of the Ex — Commissioners the right of first refusal from Employment of the      Defendant after the tenure of the respective Commissioners and the     Resolution of the Commission dated the 21st day of December, 2015, as the       case may be, supposed to take effect at the end of the tenure of the            commissioners.

 

4.   A DECLARATION that by the combine effect of the Resolution of the   Commission dated the 10th day of November, 2015, Internal Memorandum      dated the 23rd November, 2015 and the Resolution of the Commission dated       the 21st day of December, 2015, the Claimants have been offered continuous            employment with the Defendant, same accepted, process of regularization       begun and       the Claimants staffing position designated thereby making the Claimants subsisting       employees of the Defendant.

 

5.   A DECLARATION that the acts of the Defendant, especially by the letters dated;          9th day of July, 2013 (the defendant’s response to Auditor General’s queries),       l8th day of September, 2017 (Auditor General’s letter), 15th December, 2015             (the Defendant’s request to Federal Character Commission), NASS record on    NERC Staffing & Audit and the Defendant’s publication titled “False Report on NERC’s Severance: An Attempt to Destroy Electricity Regulation in Nigeria” in   response to Daily Trust Newspaper publication dated 2nd day of November,           2015, the Defendant did hold out the Claimants as regular employees of the            Defendant.

 

6.   A DECLARATION that by the Resolution of the Commission dated the 8th day            of February, 2011 the Claimants being Aides of Ex — Commissioners of the        Defendant and having not exercised their Right of First Refusal from          Employment of the Defendant are entitled to continue in the employment of        the Defendant, thereby making them subsisting Employees of the Defendant.

 

7.   A DECLARATION that the Claimants being subsisting Employees of the            Defendant are collectively and individually entitled to their entire salaries,       benefits           and entitlements for the unpaid period being January, 2016 until Judgment is given         and while still in the continuous employment of the            Defendant.

 

8.   A DECLARATION that the Claimants having accepted to continue in the           employments of the Defendant are entitled as of right to resume and or reinstated to      their respective designated offices with immediate effect.

 

9.   AN ORDER OF MANDATORY INJUNCTION, mandating the Defendant to             reabsorb and or reinstate the Claimants to their respective designated offices      with immediate effect.

 

10. AN ORDER OF MANDATORY INJUNCTION mandating the Defendant to pay       the Claimants their entire salaries, benefits and entitlements for the unpaid period being January, 2016 until Judgment is given and while still in the continuous         employment of the Defendant.

 

11. Special and General damages in the sum of Seventy Million Naira (N70, 000,         000.00) only.

 

12. Cost of this suit in the sum of 10 Million Naira (N10, 000, 000.00) only.

 

WRITFEN ADDRESS IN SUPPORT OF ORIGINAITNG SUMMONS

 

ISSUES

1.   Whether the Resolutions passed by the Commissioners of the Defendant    overrides,        superior to or takes priority over the letter of employment given to the Claimants by          the Defendant’s Human Resource Department, whereby giving the claimants a right       of first refusal from the employment of the defendant.

 

2.   Whether by the actions of the defendant through the Commissioners, the   Claimants        have been offered continuous employment with the Defendant, same accepted,    process of regularization begun and the Claimants staffing            position designated     thereby making the Claimants subsisting employees of the   Defendant.

 

3.   Whether the claimants are entitled to resume their designated office and their        salaries, benefits and entitlements.

 

4.   Whether the claimants are entitled to special and general damages and cost of        this suit.

 

ON ISSUE 1

Whether the Resolutions passed by the Commissioners of the Defendant overrides, superior to or takes priority over the letter of employment given to the Claimants by the Defendant’s Human Resource Department, whereby giving the claimants a right of first refusal from the employment of the defendant.

 

      3.            Counsel submitted that the Resolution is a final order of the Defendant, as it was made by the directing mind and will of the Defendant. NNSC Vs. Sabana (1988) 2 NI47LR (Pt. 74) 23 @29.

 

      4.            He argued that the word ‘Shall’ in a statute means a mandate, obligation, under compulsion with little or no discretion. Ogidi vs. State (2005) 21 NSCQR 303 (SC. 203/2003), per Ejiwunmi, JSC @ 334, F.

 

ON ISSUE 2

Whether by the actions of the defendant through the Commissioners, the Claimants have been offered continuous employment with the Defendant, same accepted, process of regularization begun and the Claimants staffing position designated thereby making the Claimants subsisting employees of the Defendant.

 

      5.            Counsel submitted that the treatment of the Claimants by the Defendant is best described as a suspension from work. Akinyanju vs. UNILORIN (2005) 7 NWLR (Pt. 927) 87; Mobil Producing Nig. Unlimited vs. Udo (2009) All FWLR (Pt. 482) 1177 @ 1224 par. F-G.

 

ON ISSUES 3 AND 4

Whether the claimants are entitled to resume their designated office and their salaries, benefits and entitlements.

 

Whether the claimants are entitled to special and general damages and cost of this suit.

 

      6.            Learned Counsel submitted that the Claimants having not been given any Letter/notice of Disengagement and also having accepted the offer of continuous employment with the Defendant making them subsisting employees of the Defendant, are entitled to their salaries, benefits and other entitlements. Mobil Producing Nig. Unlimited vs. Udo (2009) All FWLR (Pt. 482) 1177 @ 1224 — 1227, per Orji — Abadua, JCA.

 

      7.            Defendant filed a NOTICE OF PRELIMINARY OBJECTION on 20th July, 2018 supported by a 3 paragraph affidavit deposed to by Tinat Justina, praying this Honourable Court for the following orders:

 

(1)               An order of Court striking out the Plaintiff’s suit as incompetent having been commenced inappropriately by way of Originating Summons and contrary to the provisions of Order 3 Rule 3 the Rules of this Honourable Court,

 

(2)               An order of Court dismissing the Claimant’s suit for lack of jurisdiction on ground that same was instituted outside the time permitted by the Public Officers Protection Act and therefore statute barred.

 

(3)               Order of this Honourable Court dismissing the Claimant’s claim for lack of Locus Standi to instituting the action in a Representative capacity, ab initio.

 

(4)               And for such further order(s) as this Honourable Court may deem appropriate and fit to make in the circumstance of this suit.

 

      8.            GROUNDS FOR THE OBJECTION

1)                  The suit was commenced by way of a wrong and inappropriate procedure (Originating summons) (Order 3 of the Courts Rules,) which only permits for cases where the facts are not contentious, questions of Interpretation or Construction matters, arising from an Instrument, Enactment or law.

 

2)                  The court lacks jurisdiction to entertain the Plaintiff’s action, same having been instituted well over 3 months after the cause of action arose, thereby making this action most incompetent and depriving this Honourable court of jurisdiction to adjudicate on the subject matters.

 

3)                  The Plaintiff has no Locus Standi to institute this action vis-a-vis, the claims against the defendant which lack, deprives this Honourable court jurisdiction to entertain his claims, having not obtained the authority of the other unnamed Claimants and having not sought and granted leave by this Honourable Court to institute the action.

 

WRITTEN ADDRESS OF DEFENDANT IN SUPPORT OF ITS GROUNDS OF PRELIMINARY OBJECTION

 

ISSUES

(1)               Whether the Manner the Claimant approached this Honourable Court, i.e., by way of Originating Summons was appropriate and in accordance with the mandatory provision of its Rules for commencement of actions bearing the nature of the claims vis-a vis, the Rules of Court.

 

(2)               Whether the Court can still exercise jurisdiction over the action of the Claimant same having been instituted well over 3 months prescribed by the Public Officers Protection Act?

 

(3)               Whether the Claimant has Locus Standi to institute this action for and on behalf of the other unnamed persons when he had not obtained or exhibited any written authority from them, nor sought and granted leave by this Honourable Court to do so?

 

ON ISSUE 1

Whether the Manner the Claimant approached this Honourable Court, i.e., by way of Originating Summons was appropriate and in accordance with the mandatory provision of its Rules for commencement of actions bearing the nature of the claims vis-a vis, the Rules of Court.

 

      9.            It is counsel’s submission that Originating Summons procedure are strictly meant for resolution of uncontroversial issues, matters of construction, interpretation of enactment, Laws, Rules and provision of a written documents, etc.; and does not permit of smuggling into it any other actions, no matter the coloration. Hon. Bassey Etim Vs. Hon Emmanuel Bassey Obot & 2 Ors (2010) 12 NWLR Pg. 108 at 156, per Lokulo — Sodipe, JCA; Chief Benjamin Okumagba & 5 Ors Vs. Chief Felix Esisi & 2 Ors (20005) 23 WRN 93 at 119, per Rabiu Muhammad, JCA; per Ngwuta, JCA (as he then was) at page 121.

 

  10.            Counsel submitted that in this case, the defendant’s quarrel with the manner in which the Plaintiff had approached the court is not just for adopting a wrongful procedure, but adopting a procedure antagonistic of an obvious and mandatory process of the rules of this Honourable Court. That this act of not instituting this action by due process, has robbed the court of the desired jurisdiction to entertain the case. Udo Vs. RTBCS (2013) All F.W.L.R (Pt. 692), Pg. 1774.

                        10.

  11.            He submitted that the rules of this court specifically provided that going by the nature, grounds and reliefs of the claimant, this suit ordinarily ought to have being commenced by way of writ of Summons, as opposed to Originating Summons, so that the cases and positions of the parties can be thoroughly ventilated and scrutinized by the Court. However, that if the Court considers and agrees with their objection, all the Court is enjoined to do is to dismiss the claimant’s Suit, without going into the merit of the substantive suit, i.e., the Originating Summons. Senator Abdu Yandoma & 2 Ors Vs. INEC & 22 Ors (2015) 4 NWLR Pt. 1448 Pg. 124, per M.D Muhammad at pages 161 — 162; Hon. A.G of Lagos State Vs. Hon. Ag. of the Federation & 35 Ors (2014) 9 NWLR (Pt. 1412) Pg. 217, per Mohammed, J.SC at pg. 263.

 

  12.            Counsel urged the Court to terminate this suit forthwith at this stage, as the Court will no longer have any business considering the substantive suit any longer. Union Bank Vs. Mr. Olusoju Sogunro & 2 Ors. (2006) 48 W.R.N. Pg. 1 at 18-19, per Ogbuagu, J.SC.

 

ON ISSUE 2

Whether the Court can still exercise jurisdiction over the action of the Claimant same having been instituted well over 3 months prescribed by the Public Officers Protection Act?

 

  13.            On meaning of the phase “any person” used in Section 2 of the Public Officer Protection Act, counsel submitted that same is not limited to natural persons or human beings working in the Federal government establishments but to artificial persons/bodies. Attorney Gen. of the Federation Vs. Alh. All Abacha (2010) 17 NWLR Pt. 1221 Pg. 1 at 24, per Okoro, JCA.

 

  14.            On conditions to be satisfied before a Public Officer can be availed of the Protection of this law, referred the Court to the case of Chief Aniyom Vs. AG of Cross Rivers State. (2007) 24 WRN Pg. 108 at 122, per Ibiyeye, JCA (as he then was) at Pg. 122.

 

  15.            Counsel posited that the only material question which must be constant in the lips of the court is whether the action was instituted within the time permitted by the Public Officers Protection Act or not. A.G of the Federation Vs. Alh. Ali Abacha (supra) at page 27, per Okoro, JCA; Alh. Jibrin Bala Hassan Vs. Dr. Muazu Babangida Aliyu & 2 others: (2010) 17 NWLR (Pt. 1223) pg. 547 at 619-620; per Adekeye, JSC at page 619.

 

  16.            He further submitted that since the Claimant’s action is obviously brought outside the limitation period of 3 months prescribed by the Act, he and the other aides have irretrievably lost their rights of action against the defendant/Commission. Nigerian Ports Authority Plc. Vs. Lotus Plastics Limited & Another: (2006) WRN Pg. 133, per Mohammed, J.SC.; Eboigbe Vs. NNPC (1994) NWLR Pt. 437, page 649 at 659, per Adio, JSC.

 

ON ISSUE 3

Whether the Claimant has Locus Standi to institute this action for and on behalf of the other unnamed persons when he had not obtained or exhibited any written authority from them, nor sought and granted leave by this Honourable Court to do so?

 

  17.            Learned Counsel submitted that names of parties in an action must be so definite, certain as to who the parties are, and if in a representative action, in what category those persons are being represented. And that description of parties in any suit in court must not give any room for speculation, confusion and doubts in the mind of the court on who the parties are, either as Claimant or defendant. Order 13 (1) of the Rules of this Honourable Court.

 

  18.            It is counsel’s submission that the purport of the use of these phrases: “persons” having the same interest “for the benefit of all persons so interested” is that the court must have a clear and unequivocal opinion of who these other persons being represented are, and what is their total number, which must be evident in the face of the Originating court processes filed by the Claimant. Usani Usani Vs. Donald Duke & 23 others: (2004) 46 WRN Pg. 127 at 145, per Augie, JCA; Dr. Augustine Mozie & 6 Others Vs. Chike Mbainalu & 2 Others (2007) 1 WRN Pg. at 37, per Oguntade, J.S.C.

 

  19.            Defendant filed a 3 paragraph COUNTER - AFFIDAVIT TO THE CLAIMANT’S ORIGINATING SUMMONS on 20th July, 2018 and deposed o by Tinat Justina.

 

DEFENDANT’S WRITTEN ADDRESS IN SUPPORT OF COUNTER- AFFIDAVIT TO THE ORIGINATING SUMMONS

 

  20.            ISSUES

1.   Whether the powers given by its enabling Act to the defendant to appoint staff to             assist in performance of its mandate is absolute or subject to the mandatory rules           and procedure set out by the Constitutions of the Federal Republic of Nigeria and            other extant laws on recruitment of staff into any Public Service of the Federation             inclusive of the defendant, i.e. the Commission?

 

2.   Whether the letter of appointment issued to the Claimant and other aides by the    defendant at the material time is valid, same not having been issued and consequent upon strict observance of the Statutory due process entrenched in the   Constitution of Nigeria 1999 (as amended) and other extant laws relating to their         appointment at the material time?

 

3.   Whether the Resolutions of the Board of Directors of the defendant to elongate    the stay in office and regularise the Claimant and other aid’s appointment as full and bona-fide staff of the defendant, is binding on the defendant notwithstanding          and without regard to the clear-cut statutory laid-down procedure for        employment of any category of staff into the Federal Public Service in Nigeria?

 

4.   Whether the Claimant and the other aides are entitled to the declaratory orders,     Injunction sought for and other monetary damages?

 

ON ISSUE 1

 

Whether the powers given by its enabling Act to the defendant to appoint staff to assist in performance of its mandate is absolute or subject to the mandatory rules and procedure set out by the Constitutions of the Federal Republic of Nigeria and other extant laws on recruitment of staff into any Public Service of the Federation inclusive of the defendant, i.e. the Commission?

 

  21.            Learned Counsel submitted that the provision of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is superior to any other Act or Legislation in Nigeria, and in this case the Electric Power Sector Reform Act (2005) which created and gave the purported powers of appointment of staff to the defendant, i.e. the Commission. That it is trite law that any provision of any Act, law, etc. that is inconsistent with any provisions of the said constitution, including the instant, would remain null and void to the extent of its inconsistencies. Character 16 of the Public Service Rules; Paragraph 160201(b) of the Public Service Rules.

 

ON ISSUE 2

Whether the letter of appointment issued to the Claimant and other aides by the defendant at the material time is valid, same not having been issued and consequent upon strict observance of the Statutory due process entrenched in the Constitution of Nigeria 1999 (as amended) and other extant laws relating to their appointment at the material time?

 

  22.            Learned Counsel submitted that the Claimants, having not shown that all the aforesaid statutory pre-conditions had been satisfied by the defendant in respect of their case, the purported letters of appointment issued to them were illegal, null and void, ab-initio, and of no consequence. Rt. Hon. Rotimi Amaechi Vs. INEC (2005) 5 NWLR Pt. 1080 Pg. 227 at 318, per Oguntade, JSC. He further submitted that even though the then Board of Commissioners of the defendant at the material time had the powers to manage the affairs of the Commission including appointment of staff, their exercise of that power in this instant case is invalid for non-compliance with the other laid-down statutory enactments, including provisions of the Constitution of the Federal Republic of Nigeria. Dodo Dabo Vs. Alh. Ikira Abdullah (2005) 29 WRN Pg. 1 at 21, per Onu, JSC

 

ON ISSUE 3

Whether the Resolutions of the Board of Directors of the defendant to elongate the stay in office and regularise the Claimant and other aid’s appointment as full and bona-fide staff of the defendant, is binding on the defendant notwithstanding and without regard to the clear-cut statutory laid-down procedure for employment of any category of staff into the Federal Public Service in Nigeria?

 

  23.            It is counsel’s contention that to further confirm the illegality of the claimant’s appointment, same did not follow prescribed procedure as contained in the Handbook of the defendant, as no advert whatsoever was made internally or externally, for he offices occupied, talkless of their eligibility, ab-initio, before they were recruited. Character 4 of the Defendant’s Handbook; AUCHI POLYTECHNIC, AUCHI v. PETER OKUOGHAE (2005) 28 WRN PG. 177 @ 189, per Amaizu, JCA.

 

ON ISSUE 4

Whether the Claimant and the other aides are entitled to the declaratory orders, Injunction sought for and other monetary damages?

 

  24.            It is counsel’s submission that employees are bound by the terms of the conditions of service entered into at the time of employment. He noted that the claimant surprisingly failed to exhibit their letters of appointment to their originating processes in Court, therefore, that this failure is fatal to their case as they are duty bound in law to do so. UNION BANK NIGERIA PLC. V. MR. SAMUEL CHINYERE (2010) 10 NWLR (PT. 1203) PG. 453 @ 471, per Gume, JCA.

 

  25.            CLAIMANTS’ WRITTEN ADDRESS OPPOSING THE PRELIMINARY OBJECTION filed on 4th December, 2018.

 

WRITTEN ADDRESS IN SUPPORT OF CLAIMANT’S COUNTER AFFIDAVIT TO THE DEFENDANT’S PRELIMINARY OBJECTION

 

ISSUES FOR DETERMINATION

  26.            Following issues against those raised by the Defendant;

                               I.            Whether the manner the claimant approached this Honourable Court i.e., by way of Originating Summons was appropriate and in accordance with the mandatory provision of its Rules for Commencement of actions bearing the nature of the Claims vis-à-vis the Rules of Court.

                            II.            Whether the court can exercise jurisdiction over the action of the claimant considering the circumstances of this suit.

                         III.            Whether the claimant has Locus Standi to institute this action for and on behalf of the other unnamed persons when he had not obtained or exhibited any written authority from them, nor sought and granted leave by this Honourable court to do so.

 

ISSUE ONE

  27.            By Order 3 Rule 3 of the Rules of this court; National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, Originating Summons are to be used for the interpretation of statute or documents relating to employment, labour and industrial relations.

           

  28.            The Claimant approached the court purely for a determination of the effect and true interpretations of the Electric Power Sector Reform Act 2005 Cap. E7 LFN 2004, Resolutions of the Defendant and other documents placed before this court. Arguing that the Claimant have rightly approached this court in the most appropriate mode. And to think otherwise would amount to the court calling on parties to give their respective versions and interpretations of the Acts, Documents et al referred before this court as facts.

 

  29.            Arguing further that a perusal of the Counter Affidavit filed by the Defendant to the Originating Summons show that, all the Defendant did was to give their contrary interpretations of the Statutes, Resolutions and other Documents the claimant placed before this court. The defendant went further by introducing the Constitution, Federal Civil/Public Service Rules et al (though without citing specific sections/provisions) to counter the claimant’s arguments. Hence, what is before the court are two views, interpretations, understandings of all the Acts, Resolutions, documents et al placed before this court and their right effect thereof. Which only the court can determine and give adequate interpretations and effect to, therefore there are no contentious fact before the court.

 

  30.            The Claimant continued, assuming in the most unlikely event this Court is wayed by the Defendant, that there are “substantial issues and disputed facts”. And this court is interested to hear parties’ interpretations and analysis of the Acts, Resolutions, documents et al, the court cannot strike out this suit as the defendant have attempted to vigorously argue. We refer Your Lordship to Order 3 Rule 17 (2) of the Rules of this court as follows; “where in the opinion of the court, a suit commenced by Originating Summons raises substantial issues and disputed facts, the court shall not strike out the matter, but may order its conversion to complaint and direct the parties to file and exchange pleadings and conduct the trial of the case in accordance with the Rules of the Court governing trial.”

 

  31.            The Claimant Counsel’s final submission on this issue is that from time memorial the responsibility of interpretations of documents, Statutes et al is solely at the alter of the Judges. This is exactly what the Claimant have come before the court to determine and we call on the court not to allow the defendant usurp its responsibility by any means.

 

ISSUE TWO

  32.            On the second issue raised above; Whether the court can exercise jurisdiction over the action of the claimant considering the circumstances of this suit, the Claimant strongly submits in the affirmative.

 

  33.            In laying the background to their argument of this issue, referring the court to the following facts and documents before this court: - Going by the claimant’s documents and interpretation, the Resolution dated 8th February, 2011 (Exhibit B’) at paragraph if, Defendant’s letter to Auditor General (Exhibit B2) paragraph 4.0, Auditor General’s letter to the Defendant (Exhibit C) paragraph 2 i-ui, Defendant’s committee report in August, 2015 (Exhibit H) paragraph 2, Defendant’s Internal Memo dated 23rd November, 2015 (Exhibit I) to mention a few.  Based on which the claimant argues that by the Resolutions, the Claimant having been graded, offered and accepted to continue in the employment of the defendant (unlike Falua Adebimpe) and without any formal document disengaging the claimant and other affected staff, they are subsisting employee of the Defendant and the act of hindering them from working may only amounts to unjustifiable suspension. We thereby submit that, that would reasonably be a continuous injury.

 

  34.            To the Claimants, the Public Officers Protection Act, Cap. P41, LFN 2004 provides in Section “the 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 — (@) 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 damages or injury, within three months next after the ceasing thereof:” underline mine.

 

  35.            The Claimants further argument on this issue is that the Defendant had brought in an official letter of engagement/ employment of the Claimant and we exhibited the Claimant’s employment acceptance Form (Exhibit M). Urging the Court to note that the Defendant have failed to produce any formal letter disengaging and or terminating the employment of the Claimant and the other affected staff. Contending that it is elementary principle of law, that when a contract or a relationship is entered formally, same can only be terminated formally.  And that it is then and only when there is a formal letter of disengagement upon which a cause of action can arise. But in the present circumstance, we submit that in the absence of an official letter of disengagement, this is therefore a case of continuous injury to the claimant, especially when the claimant is suing for his outstanding monthly salaries. As was held in CBN vs. Amao CA/L/461/2000, December 5th 2006; (2007) All FWLR (Pt. 351) 1490 CA that since payments (Salaries) are monthly it is incapable of being statute barred, continuous injury is accepted as exempting a cause of action such as payments from limitation.

 

  36.            Thirdly, the Claimants’ argue, it is before this court that there were several interactions and correspondence between the parties, as to the possibility of allowing the claimant back to work with the defendant. This is evident by virtue of Exhibit C (Auditor General’s letter dated 18th September. 2017), Exhibit L (claimant’s letter dated 15th day of March, 2016), Exhibit S’ (Claimants’ letter to the Defendant’s Vice Chairman dated 3rd July, 2017), 52 (Federal Ministry of Power, Works and Housing letter to the Defendant dated 31st May, 2017), S3 (State House letter to Farouk Magaji Bello {an affected staff} dated 9th April, 2018), S4 (Dr. Uche Okoro {an affected staff} letter to the Defendant’s Chairman dated 11th June, 2018), S5 (Dr. Uche Okoro’s letter copied to Auditor General Office), S6 (Dr. Uche Okoro’s letter copied to Ministry of Power).

 

  37.            To the Claimants, this suit bothers on the interpretation of documents before the court which regulates the employment of the claimant. Can the court be therefore barred from interpreting provisions of Statutes, Resolutions and other documents based on the provisions of the Public Officers Protection Act? This we answer in the negatives and therefore urge this court to hold that this suit is not statute barred by the Public Officers Protection Act, therefore same can be competently determined by this court.

 

ISSUE THREE

  38.            On the third issue raised above; the claimants submit in the affirmative, relying on Order 13 Rule ii (i) provides thus; “Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested” underline mine. To argue that from the above provision of the Rules, there is clearly no condition precedent of seeking or obtaining the authority of other unnamed affected staff or the leave of court. The Rules clearly allows for one individual or in company of any other to sue for his benefit and others affected or better still interested persons. This is exactly what the claimant have done without more, we therefore urge the court not to allow the defendant read extraneous conditions into the Rules of this court.

 

  39.            The Claimants maintain that the defendant’s further argument that those to be affected by this suit are not known, is the greatest deceit and fallacy. To the Claimants;= Exhibit I (Internal Memo dated 23rd November, 2015) and the first annexure to defendant’s Letter to Federal Character Commission dated 15th December, 2015 (Exhibit J), just to mention a few, show and indicated the category of the defendant’s staff to be affected by this suit. Furthermore, the Claimants contend that the defendant themselves have come before the court to define those interested in this suit from those not interested though all are affected by it. By the paragraphs 2 (s & t) of the counter affidavit and Exhibit NERC 2 & 3, some of those staff affected who have distanced themselves from this suit were clearly spelt out. Further, those that are affected and also interested have forwarded an affidavit to show same in Exhibit T’3.

 

  40.            The Claimant’s continue, that those affected staff who have compromised their legal right went further to sign an “HOLD HARMLESS INDEMNITY” with the defendant. It is therefore without gainsaying that the claimant and those not covered by the Hold Harmless Indemnity are rightly covered by the suit. The question begging for answer is, would the legal right of the claimant and others who did not compromise be affected by the Hold Harmless Indemnity? We answer this in the negative, and restate that the claimant and any other still interested (as evident in Exhibit T’3) in the suit can pursue for their legal right, as in this case.

 

  41.            In conclusion the Claimants argue, that the cases cited by the defendant are not relevant to this suit at hand, and the courts have held in NGIGE VS. OBI (2012) ALL FWLR (PT. 617) 738 @ 756 A AND A.G ADAMAWA STATE VS. WARE (2006) AU FWLR (PT. 306) 86O that “an authority to be relevant must be on all fours with the facts and law in issue. In the instance case cited by the petitioners were not on all fours with the facts in issue, therefore, the appeal courts discountenanced same” we therefore urge the court to follow suit as regards the cases cited by the defendants to this preliminary objection.

 

CONCLUSION

  42.            The Claimants urge this Honourable Court to discountenance the Defendant’s Preliminary Objection and give a clear unbiased interpretation to the documents before it over the substantive suit in attaining substantial justice between the parties.

 

THE DEFENDANT’S REPLY ON POINT OF LAW TO CLAIMANTS’ WRITTEN ADDRESS OPPOSING THE PRELIMINARY OBJECTION filed on 4th December, 2018.

 

ISSUE NO 1 POSTULATED BY CLAIMANTS

Whether the manner the Claimants approached the Court by way of an Originating Summons procedure was proper and in accordance to the Rules of this Honourable Court?

 

  43.            Learned Counsel submitted that in view of the conflict and hostility of facts deposed to by the parties in this case, the manner the Claimants approached the Court is most offensive and contrary to the provision of Order 3 Rule 3 of Rules of this Honourable Court.

 

  44.            He further submitted that the facts adduced by the parties in this case are so conflicting, hostile and irreconcilable and issues at stake for determination go beyond mere interpretation of documents before the Court. CHIEF BENJAMIN OKUMAGBA OTHERS VS. CHIEF ESISI (SUPRA); NJIDEKA EZEIGWE VS. CHIEF NWASWULLIE (SUPRA) and HON. BASSEY ETIM VS. HON OBOT (SUPRA).

 

ON 2ND ISSUE RAISED BY CLAIMANTS COUNSEL

 

Whether their action is Statute-barred, having been filed after 3 months of accrual of the Cause of Action, and whether the Resolution of the est-while Execution Commissioners changed the status and terms of employment of the Claimant.

 

  45.            Defendants Counsel argued that the position of the law is that the Claimants’ tenure of office had since lapsed by effluxion of time automatically, and required no other document to officially to so. He submitted that where the intention of the parties to a contract are unequivocally expressed, none of the parties or the Court can go outside the contract in search of other documents or terms not forming part of the intention of the parties. ZAKHEM NIG. LTD VS. EMMANUEL NNEJI (2006) 45 WRN PG. 1 at 31, per Tobi, J.S.C. Furthermore, that the Claimants cannot at this stage attempt to run out of the terms of contract of employment they duly and voluntarily entered into, as they are bound by it and cannot resort or try to bring in any custom, trade, or extraneous matter into same, which were alien to the contract of employment with the defendant ab initio.  That this is more so, when the said contract was not made conditional to any terms or usage. KAYDEE VENTURES LTD VS. THE HONOURABLE MINISTER OF FEDERAL CAPITAL TERRITORY & 2 OTHERS (2010) 7 NWLR PT. 1192 PG. 171 at 221 -222, per Adekeye, JSC.

 

  46.            Counsel to the Defendant submitted that the crucial question for the Court to consider as to when the cause of action of the Claimants arose, is what the contract of employment says with regards to how to bring the employment -to an end? JOSEPH IFETA VS. SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2006) 32 W.R.N PG. 1 at 28 29, per Mohammed, JSC.

 

  47.            Contending that the case of CBN vs. Amac (Supra) cited by the Claimant to argue that their case is that of a Continuous injury, is a desperate bid to wriggle out of the provision of the Public Officers protection Act, and is not at all applicable to this case.

 

  48.            Defence Counsel urged the Court to uphold the defendant’s objection on this ground and strike out the suit on this ground too, urging the Court to concur with the decision of the Apex Court in the case of Dr. Augustine Mozie & 6 others Vs. JSC, while deciding on Locus to sue in a representative capability of the Claimants.

 

  49.            On the             6th December 2018 parties adopted their respective written addresses and adumbrated their positions accordingly and this matter was adjourned for ruling.

 

 

Court’s Decision

 

  50.            Having carefully summarized the position of both sides, the arguments of opposing Counsel and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the parties and their written submission are herewith incorporated in this ruling and specific mention would be made to them where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the defendants' application.

 

  51.            The Defendants raised 3 grounds for their objection; -

 

1.   The suit was commenced by way of a wrong and inappropriate procedure   (Originating summons) (Order 3 of the Courts Rules,) which only permits for cases       where the facts are not contentious, questions of Interpretation or Construction          matters, arising from an Instrument, Enactment or law.

 

2.   The court lacks jurisdiction to entertain the Plaintiff’s action, same having been      instituted well over 3 months after the cause of action arose, thereby making this     action most incompetent and depriving this Honourable court of jurisdiction to    adjudicate on the subject matters.

 

3.   The Plaintiff has no Locus Standi to institute this action vis-a-vis, the claims against          the defendant which lack, deprives this Honourable court jurisdiction to entertain his claims, having not obtained the authority of the other unnamed Claimants and       having not sought and granted leave by this Honourable Court to institute the      action.

  52.            With regard to issue 1, Whether the suit was commenced by way of a wrong and

Inappropriate procedure (Originating summons) (Order 3 of the Courts Rules,) which only

permits for cases where the facts are not contentious, questions of Interpretation or

Construction matters, arising from an Instrument, Enactment or law.

 

  53.            The Claimant in this suit I seeking the following reliefs; -

 

1)                  A DECLARATION that the Defendant’s Commissioners, at one time or the other, are the highest decision making body of the Defendant.

 

2)                  A DECLARATION that the Resolution(s) passed by the Commissioners of the Defendant, at one time or the other, is the highest decision/final order of the Defendant, thereby overriding any other policy, directives, reports, orders and or decisions conflicting and or inconsistent with it.

 

3)                  A DECLARATION that the Resolution of the Commission dated the 8th day of February, 2011 particularly Resolution 1 a-f; which gives the Claimants; Aides of the Ex — Commissioners the right of first refusal from Employment of the Defendant after the tenure of the respective Commissioners and the Resolution of the Commission dated the 21st day of December, 2015, as the case may be, supposed to take effect at the end of the tenure of the commissioners.

 

4)                  A DECLARATION that by the combine effect of the Resolution of the Commission dated the 10th day of November, 2015, Internal Memorandum dated the 23rd November, 2015 and the Resolution of the Commission dated the 21st day of December, 2015, the Claimants have been offered continuous employment with the Defendant, same accepted, process of regularization begun and the Claimants staffing position designated thereby making the Claimants subsisting employees of the Defendant.

 

5)                  A DECLARATION that the acts of the Defendant, especially by the letters dated; 9th day of July, 2013 (the defendant’s response to Auditor General’s queries), l8th day of September, 2017 (Auditor General’s letter), 15th December, 2015 (the Defendant’s request to Federal Character Commission), NASS record on NERC Staffing & Audit and the Defendant’s publication titled “False Report on NERC’s Severance: An Attempt to Destroy Electricity Regulation in Nigeria” in response to Daily Trust Newspaper publication dated 2nd day of November, 2015, the Defendant did hold out the Claimants as regular employees of the Defendant.

 

6)                  A DECLARATION that by the Resolution of the Commission dated the 8th day of February, 2011 the Claimants being Aides of Ex — Commissioners of the Defendant and having not exercised their Right of First Refusal from Employment of the Defendant are entitled to continue in the employment of the Defendant, thereby making them subsisting Employees of the Defendant.

 

7)                  A DECLARATION that the Claimants being subsisting Employees of the Defendant are collectively and individually entitled to their entire salaries, benefits and entitlements for the unpaid period being January, 2016 until Judgment is given and while still in the continuous employment of the Defendant.

 

8)                  A DECLARATION that the Claimants having accepted to continue in the employments of the Defendant are entitled as of right to resume and or reinstated to their respective designated offices with immediate effect.

 

9)                  AN ORDER OF MANDATORY INJUNCTION, mandating the Defendant to reabsorb and or reinstate the Claimants to their respective designated offices with immediate effect.

 

10)              AN ORDER OF MANDATORY INJUNCTION mandating the Defendant to pay the Claimants their entire salaries, benefits and entitlements for the unpaid period being January, 2016 until Judgment is given and while still in the continuous employment of the Defendant.

 

11)              Special and General damages in the sum of Seventy Million Naira (N70, 000, 000.00) only.

 

12)              Cost of this suit in the sum of 10 Million Naira (N10, 000, 000.00) only

 

  54.            The question to be determined at this point is, can this matter be determined on affidavit

evidence alone?

Or to put it more pithily

 

  55.            Is an originating summons the appropriate procedure for commencement of an action of this nature which is calling for inter alia; - a determination of the employment status of the Claimant, and the powers of the defendants, an evaluation of the propriety of the defendants actions visa viz to whether and the nature of the employments contract/rights created, if any, the competency of the procedure followed as well as the employment rights of the Claimants etc.

 

  56.            It is clear from the above the parties agree that where there is likely to be a substantial dispute a complaint rather than an originating summons would be an inappropriate mode to commence an action and where there are no material conflicts, dispute of facts the originating summons would be most adequate as succinctly stated by the Supreme Court in Alhaji Uba Kano V Bauchi Meat Products Co. Ltd. [1978] 9-10 SC 36, ‘

Also in Honorable Michael Dapianlong & 5 Ors. Vs. Chief Joshua Chibi Dariye[2007] 4SCNJ 289;- Hon Ogbonna Asogwa V PDP& 2Ors [2012] 12 SC (Pt. III) 112 wherein the apex court held that the originating summons is a means of commencing action adopted where facts are not in dispute.

 

  57.            I am also aware of the pronouncement of the Court of Appeal in Johnson V. Mobil Producing Nig. Unlimited (2010) 21 N.L.L.R. (pt. 59) 183 where it held that

“It is well established that originating summons is usually used when what is in dispute is the mere construction of documents or interpretation of law in respect of which pleading s are unnecessary. It is improper to commence civil proceedings by originating summons where the facts are likely to be in dispute. Proceedings for which it is usually involve questions of law rather than disputed issues of facts, meaning therefore, that originating summons should not be adopted in proceedings which the facts are apparently disputable. It is therefore clear that the procedure of commencing an action by originating summons is not meant to be resorted to in a hostile action between the parties and in which the parties concerned need know beforehand the issues which they are called upon to contend with from the pleadings. Proceedings for which originating summons is used, usually involve questions of law rather than disputed issues of facts. Inakoju V. Adeleke (2007) 4 NWLR (pt. 1025 p. 423 at 684 referred to} p. 215, paras. E-G; 216-217, paras. H-A)

  58.            It is well established that a “Writ of summons should be resorted to in cases where there are controversies and a lot of disputed facts between the parties. The plaintiff should approach the court by way of filing a writ of summons which will allow each side to file pleadings and sort out the issues between them.@

Per Orji-Abadua J.C.A. citing Tobi, J.S.C. in Pam V. Mohammed (2008) 16 NWLR (pt. 1112) p. 1 at p.88 paras. C-E

“Where the issues are in dispute or are contentious, an originating summons procedure will not lie. In such a situation, the party must initiate the action by a writ of summons, a procedure which accommodates pleadings of facts. However, an action could be brought by originating summons where the sole or principal question in issue is or is likely to be one of construction of a statute, or of any instrument made under a statute or of any deed, Will, contract, or other document or some other questions of law.

 

  59.            It is not the law that once there is dispute on facts, the matter should be commenced by writ of summons. No.  That is not the law. The law is that the dispute on facts must be substantial, material, affecting live issues in the matter,” (p 215-216, paras. G-D)

  60.            I am also aware that this court generally ruled cases in a plethora of that cases of termination of employment are not suited for the mode of originating summons cases such as NICN/ABJ/68/2013 MAINA V HEAD OF SERVICE OF THE FEDERATION & 6 ORS following in the ilk of cases such as SUIT NO: NICN/IB/59/2013 DR. AMOS OYETUNDE ALABI Vs. EXECUTIVE GOVERNOR OF OYO STATE & 3 ORS on the 6th November 2013.

 

  61.            See also NIGERIAN TELECOMMUNICATION LIMITED V SIMON UGBE [2003] FWLR (PT. 148) P1309 AT 1324 paras. F-G wherein the court held; -

 

“Before I end my judgement my lords, I would like to state here without mincing words, that a serious matter such as this matter, which has to do, out of necessity with unlawful dismissal should not be originated with an originating summons which require the matter to be proved by affidavit evidence. It should have been initiated by ordinary summons so that leadings could be ordered and exchanged and concrete evidence given to establish the status of the appellant, the nature if the relationship between parties and neither were the rules and regulated which form the basis of the contract between the parties exhibited. This is definitely not the best way to handle a serious case of this magnitude”.

  62.            Also the Court of appeal in S.C.S. COMPANY V COUNCIL OF ILE IFE [2011]14NWLR (PT.1269)193 AT 204-205 paras. H-B. Per Iyizoba J.C.A.

(1)               “…..it is indeed not advisable to employ the originating summon for hostile proceedings. The fact that the appellant’s contract was terminated by the Respondent immediately underscores the point that proceedings will be hostile. The respondent is bound to try and justify his action in terminating the contract. Whether it would succeed or not is another matter but the point is that they would try. They would fight the case all the way through”.

 

  63.            The practice is that the originating summons is not a proper procedure where contentious issues or facts are to be resolved by the court.

 

  64.            In HRM IGWE L.G.U.ODUKEWE V. NNAEMEKA & 3 ORS(2007) LPELR-8095(CA)., the court of Appeal Enugu Division held;

 

“Although the procedure of commencing suits by originating summons ensures a quick disposal of suit, it may also unfairly inhibit parties from ventilating what is in controversy in a contentious matter. Therefore, care should be taken to ensure that the procedure is used only when appropriate.”

 

  65.            In brief the essence of the Claimants case as presented by his counsel is that this particular matter is not contentious, the issues have been narrowed that the case does not require any evidence merely a construction of a law, that the claimants employment and tenure were governed by law with rules and regulations as to the manner of retirement and he is merely asking the court to evaluate the actions of the defendants in line with the law.

 

  66.            The case of NJIDEKA EZEIGWE & 2ORS V CHIEF BENSON CHUKS [2010] 2-3 SC (PT. 1) 2 the Supreme Court of Nigeria held that the procedure of originating summon is meant to be invoked in a friendly action between parties who are substantially ad idem on the facts and who without need for pleadings merely want a directive of court on point of law involved.

 

  67.            The situation between parties in this case cannot be described as friendly or even ‘ad idem in susbtanza’ a cursory regard to the processes before the court replete with denials of the claimant assertions and the claimants responses equally combative to the defendants position all lead the court to hold that their as still issues requiring venting ‘a la mode’ HRM IGWE L.G.U.ODUKEWE V. NNAEMEKA & 3 ORS. SUPRA

 

  68.            Also indicative is the fact that the exact status and position of the Claimant is in dispute particularly with regard to after 8th February 2011 as well as the actual implication of their service between that date and now. And these are not the only issues.

 

  69.            I do not consider these issues, or the other issues identified above, to be immaterial inconsequential or unimportant I am of the strong view that they are live issues serious, contentious and seriously impacting on the parties and the greater society.

 

  70.            The National industrial court is a special court set up to address not only the legalese and justice of the case between parties but advance the cause of equity and openness. The court is expected to be devoid of unnecessary technicalities, with substantial justice as our goal while at the same time.

 

  71.            The Court of Appeal held: “An action wrongly commenced by an originating summons may be struck out by the trial out. However, a trial court has the jurisdiction if proceedings have been wrongfully commenced by originating summons, to permit the proceedings to carry on as if they have been commenced by writ of summons on the pavement of the prescribed fees and filing of pleadings. (p. 217, paras. B-D)

 

  72.            Now, Order 3—Forms and Commencement of Action (Form 1, 2, 45, 46) 1. Provides -(1) Civil proceedings in the Court may be commenced by— (a) Complaint ; Form 1.

(b) Originating Summons; Form 45, 46.

(c) Originating motions;

(d) Application for Judicial Review;

(e) Notice of Appeal or Petition;

(f) Referral from the Minister of Labour and Productivity; (g) by any other means that may be prescribed by these Rules, Act or Law in force in Nigeria.

 

  73.            2.—(1) Civil proceedings that may be commenced by way of Complaint include all matters in which the Court has exclusive jurisdiction as provided in section 254C(1) paragraphs (a)-(k) and (m) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) or by any Act or law in force in Nigeria.

 

  74.            (2) Where any matter relating to Section 254C(1)(d) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is to be filed before the Court, such matter, if —

(a)    it relates only to interpretation, shall be by way of Originating summons ;

(b)   it relates to interpretation and application shall be by way of Complaint.

 

  75.            Civil proceedings that may be commenced by way of Originating Summons include matters relating principally to the interpretation of any constitution, enactment, agreements or any other instrument relating to employment, labour and industrial relations in respect of which the Court has jurisdiction by virtue of the provisions of section 254C of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or law in force in Nigeria.

 

  76.            While Order 3 Rule 17 (2) NICNCPR provide that; “where in the opinion of the court, a suit commenced by Originating Summons raises substantial issues and disputed facts, the court shall not strike out the matter, but may order its conversion to complaint and direct the parties to file and exchange pleadings and conduct the trial of the case in accordance with the Rules of the Court governing trial.”.

 

  77.            The Supreme Court in OSANBADE V OYEWUMI [2007] 18 ALL FWLR (PT. 368) 1004 AT 1015 paras. -E

Held

The proper order a trial court should make where it finds that an action had been wrongly commenced by Originating Summons is to order pleadings and not to dismiss such action or pronounce on the merits of the case.

 

  78.            I find that this is a proper situation for which the court should order parties to file pleadings. I resolve this issue in favour of the defendants against the Claimant.

 

  79.            With regard to the Defendants 2nd ground of objection; - The court lacks jurisdiction to entertain the Plaintiff’s action, same having been instituted well over 3 months after the cause of action arose, thereby making this action most incompetent and depriving this Honourable court of jurisdiction to adjudicate on the subject matters.

  80.            The Defendants have argued that “any person” used in Section 2 of the Public Officer Protection Act, is not limited to natural persons or human beings working in the Federal government establishments but to artificial persons/bodies. Attorney Gen. of the Federation Vs. Alh. All Abacha (SUPRA).  And the only material question to be asked is whether the action was instituted within the time permitted by the Public Officers Protection Act or not. A.G of the Federation Vs. Alh. Ali Abacha (supra)

  81.            And as the Claimant’s action was brought outside the limitation period of 3 months prescribed by the Act, the Defendants submit that the Claimant and the other aides have irretrievably lost their rights of action against the Defendant/Commission. Nigerian Ports Authority Plc. Vs. Lotus Plastics Limited & Another: (SUPRA).

 

  82.            The Claimants on the other hand contend that the Defendant have failed to produce any formal letter disengaging and or terminating the employment of the Claimant and that in the absence of an official letter of disengagement, it is therefore a case of continuous injury especially when the Claimant is suing for his outstanding monthly salaries the Claimants want on to contend that since payments (Salaries) are monthly it is incapable of being statute barred.

 

  83.            The Claimant also raised the argument that several interactions and correspondence between the parties, as to the possibility of allowing the Claimant back to work with the Defendant.  And further argued that this suit bothers on the interpretation of documents before the court which regulates the employment, posing the question; - Can the court be therefore barred from interpreting provisions of Statutes.

 

  84.            It appear that the Claimant is operating under a misconception as to the legal meaning of the phrase Continuing injury.

 

  85.            The definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. BELLO & ORS. v. NIGERIA CUSTOMS SERVICE BOARD (2015) 53 NLLR (PT. 179) 343 NIC @ 351 OKAFOR V. A.G, ANAMBRA STATE (2001) FWLR (PT. 58) 1127 @ 1146 D-G; CARREY V. BERMONDSEY METROPOLITAN BOUROUGH COUNCIL (1903) 675 P. 447; 20 TLR 2; AMAMIWE V. THE LOCAL SCHOOL BOARD (1971) 2 NMLR 57 @ 58; OBIEFUNA V. OKOYE (1961) ALL NLR 357.

 

  86.            And with reference to the Claimants argument with regard to their outstanding salaries the position of the law is as was stated by Learned author Ikechukwu D. Uko Esq. in his book Preliminary Objections to Jurisdiction ©2013 2nd Edition Published by Law Digest Publishing Co. Lagos at page 586 stated “Where a claim is for arrears of salary, such a claim pre supposes entitlement to such salary and denial of payment when and as it fell due. Which means that the cause of action for outstanding salaries is the date the said salary fell due and was not paid.

  87.            The law has been well settled that, with regard to “several interactions and correspondence between the parties, as to the possibility of allowing the claimant back to work” the position of the law in such interactions are considered intervening acts and for purposes of the limitation law, intervening acts do not count when the period of limitation is being counted. See SPDCN LTD V. EJEBU (SUPRA), IBIDAPO V. LUFTHANSA AIRLINE [1997] 4 NWLR 124 SC and UTA FRENCH AIRLINES V. WILLIAMS [2000] 14 NWLR 271. IN FACT, IN UTA FRENCH AIRLINES V. WILLIAMS.

 

  88.            See also SHAMSIDEED ABOLORE BAKARE V. NIGERIAN RAILWAY CORPORATION [2007] 7 – 10 SC 1, limitation of action is the principle of law requiring the plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a court of law within the time limited by the law otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So, where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff, proceedings shall not be brought after the period prescribed by law DR. CHARLES OLADEINDE WILLIAMS V. MADAM OLAITAN WILLIAMS [2008] 4 – 5 SC (PT. II) 253).

 

  89.            Having said that, while the Defendants’ contention may have been the legal position of case law prior to 18th March 2019.  I find in view that following the recent pronouncement of the Apex Court in NATIONAL REVENUE MOBILIATION AND FISCAL COMMISSION & 2 ORS Vs. AJIBOLA JOHNSON & 10ORS [2019] 2 NWLR (Pt 1655) 247 @270 Where Ariwola JSC held as follows “I have no slightest difficulty in holding that the appellants are not covered by the POPA as to render the appellant action statute barred. In sum I hold that the learned justices of the court below were right in holding that the appellant do not enjoy the protection of the POPA in the contract of service involving the respondents” what this means that the POPA no longer applies to Contract of Service. Whether the Claimants contract is one of Service or a Contract for Service so as to exclude the application of the Public Officers Protection Act, I find is a triable issue and one that cannot be resolved at this stage, evidence would be required to enable the Court make that determination, in the circumstance this question is, I find, a triable issue WOHEREM V. EMEREUWA [2004] 13 NWLR (PT. 890) 403 and KASANDUBU V. ULTIMATE PETROLEUM LTD. [2008] 7NWLR (Pt. 1086)  pg.281 I.

 

  90.            With regard to the Defendant’s issue 3, whether the Claimant has no Locus Standi to institute this action vis-a-vis, The Defendants’ have hinged this ground on their argument that the Claimant had not obtained the authority of the other unnamed Claimants, and had not sought and granted leave by this Honourable Court to institute the action. The claimants argue that by virtue of Order 13 Rule ii (i) which provides that; “Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested” which to the Claimant means there is no legal requirement in NICN such as the condition precedent of seeking or obtaining the authority of other unnamed affected staff or the leave of court. To approach this court in a representative capacity. To the Claimant the Rules of this Court clearly allows for one individual or in company of any other to sue for his benefit and others affected or better still interested persons.

  91.            The NICN as I stated earlier is a specialized Court the Learned Authours Offornze D. Amucheazi and Paul U. Abba in their book “THE NATIONAL INDUSTRIAL COURT OF NIGERIA – LAW, PRACTICE and PROCEDDURE.”© 2013 Wildfire Publishing House at page 113 noted that this court is not bound to follow decisions that are based on the provisions of the Civil Procedure Rules of the respective High Courts, which are inapplicable at the NIC, and taking into cognizance the unique nature of proceedings at the NIC, the court may be entitled to depart from these decisions whenever a strict application of such decisions will result in obvious injustice on the parties before the court. Furthermore, the Supreme Court in the case of JACK V WHITE 2001 6 NWLR (Pt. 709) 266 at 275 Mohammed J. “It is not compulsory for a party wishing to sue or defend in a representative capacity to get an order of court before filing his suit. The attitude a court adopts in matters of this nature is not a rigid one. It depends on the facts and circumstances of the case, if there is evidence that the parties possess representative capacity and act or presumably act on the authority of those they represent, the Court does not and will not upset on a bare objection failure to obtain the approval of the Court”. Considering the provisions of the rules of this court and the foregoing I find that there is nothing wrong with the Claimants instituting this suit for and on behalf of all the affected NERC Staff. I rest this issue in favour of the Claimant against the Defendant.

 

  92.            Now considering my earlier findings and on the strength of the Supreme Court decision in OSUNDE V. OYEWUMI SUPRA and by virtue of Order 5 rule 1 of the National Industrial Court /rules I hereby order the parties herein to file and serve their pleading. The Claimant shall file and serve his statement of fact and other relevant processes in accordance with relevant provisions of Order 3 of the rules of this court. The Defendants shall file and serve their Statement of Defense after receipt of the Statement of Fact of the Claimant.

 

  93.            The Claimant shall file and serve his Statement of Fact and other relevant processes within two weeks in accordance with relevant provisions of Order 3 of the rules of this court. The Defendants shall file and serve their Statement of Defence within two weeks of receiving the Statement of Fact of the Claimant.

 

  94.            Case is adjourned to 3rd June, 2019.

 

  95.            This is the ruling of this court and it is hereby entered.

 

 

…………………………….

Hon. Justice E. N. Agbakoba

Judge