IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABUJA JUDICIAL DIVISION

HOLDEN AT ABUJA

 

BEFORE HIS LORDSIP: HON. JUSTICE E. D. SUBILIM

DATE: 16TH OCTOBER, 2025                        SUIT NO. NICN/CA/40/2025

                  

BETWEEN:

 

PROF. JOSEPH EYO DUKE                                  -                   CLAIMANT

 

AND

 

1. THE GOVERNING COUNCIL, 

UNIVERSITY OF CALABAR                                         

1. UNIVERSITY OF CALABAR
2. UDOM EKPOUDUM                                               

(CHAIRMAN, GOVERNING COUNCIL 

UNIVERSITY OF CALABAR)

1. DR. (MRS) CHUKWUKA I. ICHA               DEFENDANTS                      

(REGISTRAR/SECRETARY TO THE 

GOVERNING COUNCIL, UNIVERSITY OF 

CALABAR)

1. PROF. FLORENCE BANKU OBI 

(VICE CHANCELLOR, UNIVERSITY OF 

CALABAR)

 

REPRESENTATION:

Ubong Akpan Esq., with Olawale Sarumi Esq., foe Claimant/Respondent

Dr. Alex A. Izinyon SAN with Paul O. Eshiemomoh Esq., F. O. Izinyon Esq., Alex Izinyon Esq., K. N. Gadzama Esq., O. O. Okey-Ndeche Esq., and S. O. Izinyon Esq., for Defendants/Applicants

 

                 RULING

1. Counsel to the Applicants, Dr. Alex A. Izinyon SAN on the 04/08/2025 filed a Notice of Preliminary Objection before this Court challenging the jurisdiction of this Court as presently constituted. On the 04/09/2025 counsel moved and adopted the Notice of Preliminary Objection and the reply on point of law filed on the 12/08/2025 and urged this Court to dismissed this suit. The Claimant reacted to the Notice of Preliminary Objection and filed an Amended Written Address in opposition to the Notice of Preliminary Objection which was also adopted by Counsel, urging this Court to dismissed the Notice of Preliminary Objection and proceed to hear the matter on the merit.

The grounds upon which the preliminary objection is predicated are:

1. The Claimant’s suit revolves round acts of public officers which bars the Claimant’s claim under the POPA, CAP P41 LFN. 2004.
2. No reasonable cause of action has been disclosed.
3. By the provisions of Section 254C (1) and 254 (C) (sic) of the 1999 CFRN the suit as constituted is outside the jurisdiction of this Court.
4. The Claimant’s suit is speculative, premature and academic.
5. By virtue of section 13 of the University of Calabar Act CAP. U5 LFN 2010, this case as presently constituted is premature as the Claimant failed to exhaust all internal remedies and the condition precedent provided by the said section 13 of the University of Calabar statute before filing this suit.
6. That the Claimant has no locus standi to institute this action.
7. That the Claimant commenced this action using a wrong mode of commencement of action under Order 3 Rule 1 (1) and 4 NICN (Civil Procedure) Rules, 2017 having resorted to the General Form of Complaint instead of Application for Judicial Review.
8. That actions may commenced by application for Judicial Review include all matters necessitating application for an order or for a declaration or for mandamus, prohibition, certiorari or injunction, in such matters on which the Court has exclusive jurisdiction as provided in Section 254C (1) of the 1999 Constitution or by any act or law in force in Nigeria. The action is therefore particularly contrary to Order 3 Rule 4 NICN (Civil Procedure) Rules, 2017.
9. That the Claimant’s case as presently constituted did not comply with Order 48 Rule 1, 2, 3, 4, and 5 of the Rules of this Court dealing with Judicial Review of action of Arbitral Body or administrative authority; and in this suit, the Governing Council’s criterion that an Applicant to fill the vacancy for the position of VC of the 2nd defendant must be a professor of not less than 10 years.
10. That this suit, being that of Judicial Review is statute barred having been filed 3 months after the date of the occurrence of the act of the Governing Council of 25/3/2025 being complained about, contrary to Order 48 Rule 5 (1) of the Rules of this Court and therefore oust the jurisdiction of this Court to adjudicate same.

BRIEF FACTS OF THE CASE

1. The brief statement of facts of this suit is that, the 5th Defendant, i.e. the current Vice Chancellor, during a Governing Council Emergency Meeting of 25/03/2025 formally informed the 1st Defendant that her tenure as Vice Chancellor of the 2nd Defendant (University of Calabar) was coming to an end. The 1st Defendant as empowered by the establishment Act of the 2nd Defendant, and more specifically section 4 (2) (a) (i) and (ii) of the First Schedule to the University of Calabar Act and Section 2AA and 2AAA (1) of the Universities (Miscellaneous Provisions) Amendment Act, 2003, commenced the process for the appointment of a new Vice Chancellor in accordance with the law. It was on the same 25/3/2025 that the 1st Defendant, during the Emergency Meeting, resolved among other things, that one of the criteria for the appointment of a new Vice Chancellor was for the Applicant seeking to apply must not be less than 10 years as a Professor in the University System. After this decision of the 1st defendant, on the 2/04/2025, Claimant wrote a letter protesting the decision of the 1st Defendant to the Pro-Chancellor and Chairman of the 1st Defendant. It was sequel to this that Claimant on 21/07/2025 instituted this action against the Defendants.

SUBMISSIONS OF CLAIMANT/APPLICANT IN SUUPORT OF NOTICE OF PRELIMINARY OBJECTION

1. Learned Counsel to the Applicant in his Written Address crave the indulgence of this court in arguing the issues for determination which borders on lack of jurisdiction of this Court to address same seriatim in the manner set out on the grounds:

 

1. On claim is statute barred under Public Officers Protection Counsel stated that from the Claimant’s Statement of Facts and Claim the following facts were set out by the Claimant as timeline of event: Governing Council Meeting of 25th March 2025 and Claimant’s Protest of 2nd April, 2025. He equally posited that from the Claimant’s own showing, he said he wrote a protest on 2nd April, 2025. See Claimant’s protests: “a) On 2nd April 2005, the Claimant protested the advertisement in a letter addressed to the 5th Defendant and the Governing Council, highlighting its exclusionary nature, deviation from national norms, and procedural irregularities.

b) The Claimant further escalated his protest to the Visitor of the University, citing the false recording of attendance, the insertion of a non-discussed PhD requirement, and reliance on a non-existent regulation. Despite the Claimant’s diligent efforts to seek redress through internal channels, including his protest letters to the 5th Defendant, the Governing Council, and the Visitor, the Defendants failed to take any remedial action or provide a substantive response, necessitating this judicial intervention.” See too, paragraphs 6 and 11 of the Claimant’s Statement on Oath of 21/7/2025.

5.  It is the submission that time begins to run against the Claimant from the date he acknowledged his legal right has arisen which is 2nd April, 2025 and that it is not in dispute that the 1st - 5th Defendants/Applicants are public officers as defined by Section 2(a) of the Public Officers Act, Cap P41, 2005. Counsel equally submitted strongly that since the Claimant has admitted and showed in his statement of facts and under oath that he protested on 2nd April, 2025, time begin to run against him to approach the court for redress and this terminates on 2nd July, 2025 but this suit was filed on the 21st day of July, 2025 which is 19 days after his said protest. If from the 25th March, 2025 Day of Council Meeting, it is 21 days. That also, the Claimant stated in his Statement of Facts under the captioned “timeline of event”, that the cause of action arose on 25/3/2025 when the Governing Council in its Emergency Meeting set a 10-years post-Professorial criterion for the appointment of Vice Chancellor, whereas the Claimant instituted this suit on 21/7/2025 that is, 3 months and 21 days after the date the alleged cause of action arose. On specific reference on when the cause of action is said to have arisen, the Supreme Court says when the act complained of giving rise to a cause of action is completed and a party who can sue and be sued are in existence. He placed reliance on the following cases Bannuram & Ors. v. Hillary & Anor. [2013] LPELR - 20854 (CA) 93 - 94 Paras. C-E, N.I.I.A. V. Ayanfulu [2007] 2 NWLR (Pt.1018) 246; Lasisi Fadare V. A. G. Oyo State [1982] 4 S. C. 1; Humbe v. A. G. Benue State [2006] 3 NWLR (pt. 649) 419, Board of Trade v. Gayzer Lime Co. Ltd. (1927) A. C. 610 and Fred Egbe v. The Hon. Justice J. A. Adeferasin [1987] 1 SC l at 36 – 37, Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping and Transport Agencies Ltd & Anor [1987] I SC 198 at 312 -313, FR0ZEN FOODS NIG Ltd v. Ojomo [2022] l4 NWLR (Pt. 1850) 299 @ 346 – 347, Paras. F – D and Sanda v. Kaduna Local Govt. [1991] 2 NVWLR (Pt. 174) 3 79 @ 391, Asaboro v. Pan Ocean Ltd. [2017] 7 NWLR (Pt. 1563) 42 @ 73, Paras. A -F, SPDC V. Nwawaka [2003] 6 NWLR (Pt. 815) 184 AT 209, PARA. H; A-G Lagos State v. A-G Federation [2004] 18 NWLR (Pt. 904) 1; Thomas V. Olufoseye [1986] 1 NWLR (Pt. 18) 669; Ibrahim v. J.S.C Kaduna State [1998] 14 NWLR (Pt. 584) 1 @ 78, Para. H.

6.  Counsel further submitted that this suit is statute barred, having been instituted by the Claimant, more than 3 months from the date the alleged cause of action arose, which the Governing Council’s Criteria for the appointment of a Vice Chancellor of the 2nd Defendant, made at its emergency meeting held on 35/3/25. It is the contention of Counsel that the Claimant again reiterated that the cause of action occurred on 25/3/2025, when he stated in his Statement of Facts, under the captioned “Defective Emergency Governing Council Meeting” as follows: “a. The 10-year post-professorial experience criterion was purportedly adopted during an emergency Governing Council meeting held on 25 March 20255,”. That to determine whether an action is statute barred, the limitation period begin to run from the date on which the cause of action accrued and to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and comparing the date which the writ was filed. If the time on the writ is beyond the period allowed by the limitation láw, the action is statute barred. He relied on the case of Bakari v. Ogundpe [2021] 5 NWLR (Pt. 1768) I SC and Nwanze v. Ngerian Railway Corporation [2022] 19 NWLR (Pt. 1862) 265 SC.

7.  It is the position of Applicant’s Counsel that in the instant case, the 1st Defendant carried out its statutory responsibility by setting the criterion that an Applicant wishing to apply for the Position of Vice Chancellor in the 2nd Defendant institution “must not be less than 10 years a Professor in the University System” and this decision was reached in the Governing Council’s Emergency Meeting held on 25/3/2025 pursuant to its powers under Section 4 (2) (a) (i) (ii) of the First Schedule to the University of Calabar Act CAP I15 LFN 2004 and Sections 2AA and 2AAA (1) of the Universities (Miscellaneous Provisions) Amendment Act, 2003. Consequently, the action of the Governing Council in respect of the 10-vear criterion was concluded on the said meeting of 25/3/2025 and was never revisited by the Council. Yet the Claimant brought the action on 21/7/2025, clearly beyond 3 months from the date of the decision was reached at the said Governing Council Meeting. This suit is therefore statute Barred. Continuing Counsel stated that it is trite law that, an action against public officers must be commenced within three (3) months of the accrual of the cause of action, by virtue of Section 2 (a) of the Public Officers Protection Act 2004.  He relied on the case of AG Rivers State v. ÁG Bayelsa State [2023] 3 NWLR (Pt. 1340) 123 SC and Wulangs v. CBN [2021] 16 NWLR (Pt. 1902) 195 CA. Counsel equally posited that the Court of Appeal held that Section 18(1) of the interpretation define the term Public Officer to mean member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria or the Public Service of a state and that the Court held further that Section 2(a) of the Public Officers Protection Act cover both natural persons and juristic personalities like Federal Government Agencies and parastatals, institutions or establishment like the Central Bank of Nigeria. He reiterated that in the instant case, all the Defendants are public officers, including the 4th and 5th Defendants and are covered by the Section 2(a) of the Public Officers Protection Act, 2004. Counsel went on to submit that this suit does not fall under the exception to the Public Officers Protection Act, that is, acts of a continuous damage in view of the facts that the Governing Council’s decision on the issue that an Applicant for the position of Vice-Chancellor of the 2nd Defendant must not be less than 10 (ten) years a Professor in the University System, was decided once and for all in the Emergency Governing Council meeting held on 25/3/2025. Also, that the advertisement for the vacancy for the position of Vice Chancellor published in the Newspapers on 27/5/2025 was simply the implementation of the Governing Council decision by the 4th Defendant who is the Secretary to the Governing Council. The act complained by the Claimant and being challenged by him in this suit was done and completed on 25/3/2025, whereas, the Claimant brought this action before the Court on 21/7/2025 about four Months since action of the 1st Defendant. That this Court can no longer assume Jurisdiction to adjudicate this matter to dismiss this suit for being statute barred, thereby, robbed this Court of the jurisdiction to adjudicate same and award substantive cost against the Claimant.

8.  Regarding no reasonable cause of action has been disclosed by the Claimant. Counsel contended that it is settled principle of law that for a Claimant to seek legal redress there must be a breach or infringement of his legal right as provided by law or statute. He made reference to the case of Rinco Construction Co. Ltd v. Veepee Nig. Ltd [2005] 9 NWLR (Pt. 929) 85 @ 96-97 Paras. E-G. He equally submitted that the Claimant has no reasonable cause of action against all the Defendants in this suit.  That the 1st Defendant pursuant to its statutory powers under Section 4 (2) (A)(I) And (Ii) Of First Schedule to The University Of Calabar Act Cap U5 LFN 2004 And Sections 2AA and 2AAA (1) Of The Universities (Miscellaneous Provisions) Amendment Act, 2003, set the criterion that an applicant for the position of Vice Chancellor must not be less than 10 years as a professor and the Claimant is 9 years as a professor, therefore, not qualified to apply for the vacancy in the position of Vice Chancellor of the 2nd Defendant institution, yet out of bad faith he instituted this case to rock the boat and stall the process of appointing a qualified Vice Chancellor for the 2nd  Defendant. The Claimant, having not qualified to apply for the Position of Vice Chancellor, by virtue of the set Criterion of 10 years Post-Professorial experience, automatically, has no legal or equitable right to protect or to enforce against the Defendant. Such right could have accrued if the Claimant had met the criterion for 10 years minimum qualification as a professor but the Defendants go ahead to deny him the opportunity to apply for the position to necessitate this suit. That it is trite law that, a cause of action is a factual situation which enables one person to obtain a remedy from another in court with respect to an injury. He supplied in support of his assertion the case of Attorney General of Oyo State v. Bello & Ors. [1985] 5 NWLR (Pt. 45) P. 828, Thomas v. Olufosoye [1986] 1 NHWLR (Pt. 18) 669; Eze v. Umahi (2023) 6 NVLR (Pi.1880) P. 383 and Ajuwon V. Gov. Oyo State [2021] 16 NWLR (Pt. 1803) 485. It is the contention of Counsel that the cause of action always deals with events in the immediate past, not in the future. Relying on the Nwora v. Nwabuze [2019] 7 NIWLR (Pt. 1670) 1 SC  Counsel stated that in the instant case, the 1st Defendant has set the criteria for the appointment of a Vice Chancellor and the Claimant did not meet up the said criterion. He is therefore not qualified hence no right has accrued to him and consequently, he has no cause of action thereto. More so, it is the averment in the Statement of Claim and the reliefs claimed that determine the accrual of cause of action. That the Claimant herein has clearly stated in his pleadings, that he is 9 years a professor and by this fact stated by himself in his General form of Complaint, Statement of Facts, Written Statement on Oath, no right has accrued to him to seek redress in court. The Claimant is only laboring and trying hard to foist on this Court a cause of action that does not exist and this Court must resist same. He submitted that a cause of action consists basically of two elements: (a) the wrongful act of the Defendant which gives the Claimant the cause of action to take action and (b) the consequential damages. He cited in support of his position the case of NLNG Ltd. v. Onwukwe [2019] 10 NWLR (Pt. 1680) 247 CA and posited that in the instant case the Defendants did not commit any wrongful act against the Claimant in carrying out their statutory responsibility of setting criteria for the appointment of the Vice Chancellor for the 2nd Defendant. The Claimant has also not suffered damages. It is therefore the contention of Applicant’s Counsel that the Claimant by this suit, is like a student who has decided to determine by himself the questions for an examination that he is to sit, and he also want to mark and grade the script by himself which is an aberration and an affront to merit and excellence which this court must not encourage. Similarly, on the issue the Defendants herein contend that the Claimant in this suit does not possess the locus standi to commence and maintain this suit as he has not established any reasonable cause of action to entitle this Court to be clothed with the requisite vives to entertain this suit as presently constituted. He reiterated that the jurisdiction of a court to entertain a matter is very fundamental to any proceeding as jurisdiction is the heart and soul of any proceeding and any decision of a judex made without jurisdiction is a nullity no matter how beautiful the decision may be. He supplied in support of his position the case of Shelin V. Gobang [2009] 39 NSCOX P.175 @ 192 Paras. D -G and Oloruntoba-Oju V.Abdul-Raheem [2009] NSCOR P. 105 @ 143 Paras. E-F.

9.  Counsel went on and stated that from the relief sought in the complaint and the statement of claim, the claimant is seeking for declaratory and injunctive orders from this court because he believes that by virtue of the conditions of employment as contained in the University of Calabar conditions of Service annexed to the statement of fact (marked as Exhibit K) and his appointment as a professor of the University via his letter of appointment also annexed to the statement of facts (marked as Exhibit F), he possesses the requisite legal right to be a Vice Chancellor of the 2nd respondent which right has been breached by the defendants. That secondly, the Claimant is also contending that the defendant was in breach of the provisions of Section 42(1), 14(3) and 17(1) of the 1999 Constitution (Supra) and Section 19 of the University of Calabar Act (Supra) which he believes confer on him the right to sue to enforce compliance. The defense on the other hand has in this address submitted that the standi of a Claimant and the existence of a reasonable cause of action are the conditions precedent for the commencement of any action in this Court. The law is that for there to be a competent party in any action before a court, the party must have the standi to sue. It is the legal right of a party in an action. He relied on the case of Mulima v. Borno State Housing Corp. [2021] LPELR-58427 (CA) @ (Pp. 24-26, para. D-D) and Daniel V. INEC [2015] LPELR-24566 (SC) @ (P. 47 paras. A-D). It is equally the submission of Counsel that for the Court to determine whether the Claimant has any right, it is important for the Court to calmly peruse and construct the documents and the laws. He urged this Court to hold that the letter of appointment as a professor cannot by any stretch of interpretation be said to have conferred any right on the Claimant as a professor to the office of the Vice Chancellor of the 2nd Respondent. The wordings in the documents are clear and unambiguous, and when the words used in a document are clear and unambiguous, this Court is obliged to give then their ordinary meaning. He referred the Court to the case of Incorp Trustees of United Visionary Youth of Nigeria V. Sukubo [20121] LPELR 52916 (CA) at (Pp 33-34, paras. C-B). He submitted that no party nay the court possesses the power to add to or subtract from the clear content of a document.  He relied on the case of Apochi v. Akor [2023] LPELR-60849 (CA) at (P. 36, paras A-D). Counsel further submitted and urgd this Court to hold that there is nowhere in the length and breadth of the University of Calabar Conditions of Service where any employee in the University is conferred with any right to be Vice Chancellor in the University. That the Claimant in his pleadings did not point out any clause in the Conditions of Service that confers that right on him. He placed reliance on the case of Edun v. Gov. of Delta Stata [2022] LPELR - 58062(SC) @ (Pp. 12-17, paras. E-B). He continued and submitted that the Claimant who asserts that he has a legal right nay locus standi has the onus of proof of that assertion. He relied on Sections 131, 132 and 136 of the evidence Act, Cap 112 LFN, 2004 (as amended) and the case of Ekeoparah V. Gov of Lagos State [2019] LEPLR 50716 (CA) @ (Pp 10, paras. A -F). Counsel stated that the power to appoint a Vice Chancellor for the 2nd Respondent is exclusively conferred on the 1st Defendant by clause 4 of the first schedule of, the University of Calabar Act (Supra) as amended by Universities Miscellaneous Provision Act (2003) and that laws confer power on the 1st Defendant to the exclusion of any other person to appoint and set criteria for the appointment of a Vice Chancellor for the University (2nd Defendant). Again, to show that the position of Vice Chancellor is not by promotion or to only the employees of the University, Clause 4(2) of the first exclusive schedule to the Act empowers the 1st Defendant Council to constitute a search team to go outside the University to search for any person with the qualities listed by them to be appointed as the Vice Chancellor. Counsel submitted that Section 14(3), 42(1) and 17(1) and 42(1) Section 19 of the University of Calabar Act do not confer any justiciable right on the claimant. Section 14 and Section 17 of the Constitution (Supra) are provisions under the Chapter II of the Constitution and the Fundamental Objectives and Directive Principles of State Policy. He also submitted that the rights conferred by the provisions are not justiciable except when the National Assembly has made a law conferring any specific right on the citizens which is not the case in this suit. He referred the Court to the case of Olafisoye v. FRN [2004] LPELR-2553 (SC) @ PP.67-72, paras, C-P) and Mohammed V. Executive Gov. Kano State [2024] LPELR-62 086 (CA) @ (PP. 16-21; paras. B-D). it is further submitted by Counsel that the Claimant misconstrued the imports of the provisions of Section 42 of the Constitution (Supra) and Section 19 of the University of Calabar Act eo ipso misapplied them as conferring a right on him. That for the Claimant to take any benefit under Section 42, he must show that he is entitled to the right conferred by the Constitution or Statute and that apart from the bare averment by the Claimant, that the requirement of 10 years posts professorial experience is biased and meant to favor a particular tribe, he has not in his pleadings supplied specific facts or demonstrated before this court how he is deprived of the right to contest by virtue of his color, race, tribe etc., as contemplated by the Constitution and Section 19 of the University of Calabar Act (Supra). He urged the Court on behalf of the Defendants to hold that the Claimant has no cause of action and strike out or dismiss this suit in limine for disclosing no cause of action and for want of jurisdiction.

10.    By The Provision Of Section 254(1) And 254(C) (Sic) Of The 1999 Constitution the Suit as Constituted Is Outside the Jurisdiction of this Court. Counsel posited that the jurisdiction of this Court is set on Section 254(c) a-m (sic) of the 1999 Constitution and that this Court is invited to critically evaluate the Claimant’s reliefs and the above provision.  Counsel submitted that the claims/reliefs by the Claimant is outside the jurisdiction of this Honorable Court. He urged this Court to peruse the Statement of Facts and the reliefs therein, which clearly reveal the claim outside the jurisdiction of this Court. It is not about employment or redress to interpretation and application of the provision of the Constitution as it relates to any employment. Similarly, the summary of the Claimant’s case is that he is gainfully employed in the employment of the 2nd Defendant, a professor of 9 years standing and that there will soon be vacancy for post of Vice Chancellor of the 2nd Defendant hence he is supposed to be among qualified to apply but shifted out by the 1st Defendant post 10 years qualification requirement. The reliefs as shown in a-k are not entitlement or legal right but the reliefs on privileges and not justiciable. That all the reliefs have no bearing on interpretation and application of Chapter (iv) of the Constitution as it relates to employment. Only relief (e) allege provision of Section 42(1), 14(3) and 17(1) of the 1999 Constitution. It is no longer in doubt that the provision of Section 14(3) and 17(1) of the 1999 Constitution are not justiciable by the Court as they are not in Chapter IV. We adopt our earlier submission on this. The Claimant reliance on straw of Section 42(1) of the 1999 Constitution and Section 19 of the University of Calabar Act is based on 10 years post professorial qualification for the position of Vice Chancellor and opinion of one public commentator Emmanuel Okon – See Allegation of Zone Bias and import on Claimant’s Reliefs. He therefore submitted that these have no bearing on the employment of the Claimant and not related to Chapter iv of the 1999 Constitution. There is no legal right under Chapter iv of the 1999 Constitution. At best that Claimant is rooted on privileges not a legal right. He placed reliance on the case of Tukur v. Government of Gongola State [1989] 4 NWLR (Pt. 117) 517 and urge the Court to dismiss this suit as the consequence of when there is no reasonable cause of action as the appropriate order to make, is dismiss same and strike out the suit as it lacks the jurisdiction.

12.    On Claimant’s suit being speculative, premature and academic. Counsel submitted the Claimant’s claim speculative, premature and academic as shown in his averment in his statement of fact. He claims to be an aspirant to contest for the post of the Vice Chancellor but he has been debarred because of the University Council criteria of 10 years as he is 9 years post professorial call. The provision of the University of Calabar Act clearly stipulates the function of the Council and criteria of the Vice Chancellor. See Section 3(1) and (2); Section 6, 1st Schedule, Paragraph 4(1)-(4). That it is clear that the procedure outlined in 1st Schedule, Paragraph 4 is still in progress. The procedure outlined step by step under Paragraph 4(1) -4) of the 1st Schedule on the selection of the Vice Chancellor has not been completed. It is the function of the various organs outlined by the said provision at the end of the day that would make recommendation. The Claimant having claimed he made a protest on 2nd April, 2025, to the Governing Council should have waited as that protest form part of the selection process outlined, if his protest has merit at the end of the day hence it was premature for Claimant to run this Court. Counsel therefore submitted that the suit was just premature and hasty in the circumstance on what constitutes a premature and academic case. He relied on the case of Olalomi Industries Ltd v. Nigerian Industrial Development Benak Ltd [2009] 16 NWLR (Pt. 1167) 266 @ 304 Paras. H-B and Tubonemi v. Dikibo [2006] 5 NWLR (Pt. 974) 565 AT 588 Para B.

13.    By virtue of section 13 of the University of Calabar Act Cap. U5 LFN 2010, this case as presently constituted is premature as the Claimant failed to exhaust internal remedies and condition precedent provided by all the said section 13 of the University of Calabar Statute before filing this suit. It is submission of Counsel that the Claimant did not fulfill the condition precedent prescribed therein to entitled him to the adjudicatory power of this Court having failed to exhaust the internal remedy prescribed under the said Section 13 of the University of Calabar Act (supra) which provides for the intervention of the Visitor of the 2nd Defendant for interpretation of the Statutes of the 2nd Defendant on any matter, before approaching this court for redress and such failure on the part of the Claimant is fatal to this case and automatically robs this Court of the jurisdiction to entertain same. Learned Counsel equally submitted that the Claimant’s failure to seek the intervention of the Visitor for the determination and resolution of the criterion of 10 years post- professorial experience and other provision of the Act before approaching this Court, which is the condition Precedent to instituting this suit, renders this matter incompetent and automatically oust the jurisdiction of this Court to entertain the suit in its entity. He also posited that it is trite law that, where a statute provides a legal line of action to be taken to resolve a dispute before embarking on actual litigation, the aggrieved party must exhaust all remedies in the law before going to Court. He placed reliance on the case of AG Kwara State V. Aeyemo [2017] 7 NWLR (Pt. 1546) 216 SC. Counsel continued and stated that he acknowledges that where all the remedies in the law have not been exhausted, the invocation of the court’s jurisdiction is delayed until the steps prescribed by the statutes have been Complied with. He cited the support of his assertion the case of Kayili v. Yilbuk [2015] 7 NWLR (Pt. 1457) 26 SC and contended that at this point the suit must be struck out for want of Jurisdiction. He equally stated that it is the law that, an action is premature if commenced before the aggregate of facts that entitles the Plaintiff to a relief have occurred. That is when an action is instituted before the accrual of the cause of action or where a condition precedent to the commencement of the action has not occurred or is fulfilled, the action is premature and the jurisdiction of the Court would have been invoked too early and the Court would consequently be robbed of the jurisdiction to determine the suit or grant the reliefs sought. He relied on the case of Edevie v. Orohwedor [2023] 8 NWLR (Pt. 1886) 219 SC. He submitted that the Claimant’s failure to comply with the Section 13 of the University of Calabar statute before commencing this suit goes to the substantive or statutory jurisdiction of this court which cannot be waived by a party to the suit. He cited in support of his assertion th case of Covalent Oil & Gas Services Ltd. v. Ecobank Nig. Plc (2021) 10 NWLR (Pt. 1 784) 252 CA and contended that no Court of law can, proceeds to hear a matter when it is glaring that there is a feature in the case which robs it of jurisdiction. He relied on the case of Madukolu v. Nkemdilim [1962] 2 SCNLR 341. Counsel in furtherance to above stated that it is trite law that five factors must exist before a court would have jurisdiction to entertain an action viz: (a) the court must be properly constituted with respect to the number and qualification of its member (b) the subject matter of the action must be within its jurisdiction (c) the action must be initiated by due process of law (d) all conditions precedent to the exercise of its jurisdiction must have been fulfilled (e) there is no feature in the case that robs the court of its jurisdiction. He therefore submits that in the instant suit, the matter was not initiated by due process of law, again the condition precedent to the exercise of jurisdiction was not fulfilled by the Claimant having not exhausted internal dispute resolution mechanism prescribed by the University of Calabar Act (supra) before commencing this suit. Learned Counsel submitted finally that jurisdiction is a threshold issue and the Supreme Court has held in the case of I.L.S.I.A. LTD V. M/T Tuma [2021] 10 NWLR Pt. (1784) 355. He urge the Court to hold that this suit is premature, the Claimant not fulfilled the condition precedent to instituting same and accordingly, decline jurisdiction and strike out this suit.

14.    On whether the Claimant has any locus standi to institute this action against the Defendants, having regards to the facts that the reliefs being sought does not link to any dispute or conflict in his employment. Counsel submitted that the Claimant in this suit does not have the locus standi to institute this action against the Defendants as locus standi has been held to be the legal capacity of instituting or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. He relied on the case of Ntung v. Langkwang [2012] 8 NWLR (P. 1779) 443. It is the submission of Counsel that a person has locus standi to sue in an action if he is able show to the satisfaction of the court that his rights and obligations have been or in danger of being infringed. Again, the person must show that the action is justifiable and there must be a dispute between the parties. That is, there must be a legal or justifiable right, there must be sufficient or special interest adversely affected and a justifiable cause of action. He made reference to the case of Arowolo v. Olowookere [2011] 18 NWLR (Pt. 1278) 280 and Ekeso v. Government of Ogun State [1990] 2 NWLR (Pt. 133) 420. Counsel submitted that that all the ingredients annunciated the cases cited above ate completely lacking in the instant cases. The proper order for this court to make in the circumstances is to strike out this suit for lack of locus standi and want of jurisdiction. He relied on the case of Magba Gbeolo v. Akintola [2018] II NWLR (Pt. 1629) 177 SC and posited that this has to be done without going into the merit of the cause as was held in the said MAGBAGBEOLO case.

15.    Also, the Defendants have contended that the Claimant has not established a reasonable cause of action to be imbued with the right to approach this court under the provision of Section 6 (6) (C) of the Constitution (Supra). The law is that for a party to be clothed with the locus standi to commence and maintain an action; he must show that he has a reasonable cause of action as the absence of a cause of action deprives the party of the locus standi to sue. He placed reliance on the case of Association of Senior Civil Servants of Nigeria v. Jusun [2014] LPELR – 24185 (CA) at (PP. 53-54, paras. C-A). Counsel further submitted that the Claimant has an obligation to disclose a cause of action in his originating processes and the consequences of the absence of reasonable cause of action in the writ and statement of facts derobes this Court of the requisite jurisdiction to entertain the suit and he went on to define cause of action. He relied on the case of Okonkwo v. A.G Fed Minister for Justice [2017] LPELR-51365 (CA) @ Pp. 24-25; paras. D-A) and Owodunni v. Regd. Trustees of CCC (2000) LPELR --2 852 (SC) @ (PP. 75-76, paras. C-G). It is the contention of Counsel that a cause of action cannot accrue except the cause of action becomes complete to enable an aggrieved party to maintain an action. He placed reliance on the case of Nagppe v. PCN [2013] LPELR-21034 (CA) at (P. 76, Paras. A -F). That from the facts in the claimant statement of claim, the process for the appointment of a Vice Chancellor has just commenced, the claim ant is only speculating that he may be disqualified and pre-empting the outcome of the selection process. Surely, this suit is entirely based on the speculation of the claimant rather than on facts. In fact, the relief the claimant seeks in this suit is akin to an applicant looking for work coming to the court to compel his prospective employers to change their qualifications and experience requirements to suit him. He submitted that there has been no proof by the claimant that a cause of action has accrued to him in law and in facts from the actions by the defendants; he therefore lacks the locus standi to institute this suit and the effect of the lack of standi in this suit derobes this court of the jurisdiction to entertain the suit. He placed reliance on the case of AMCON V. Suru Worldwide Ventures (Sig) Ltd. (2024) LPELR62162 (SC) at (PP 17-18, paras. D-C). In all, the defendants herein urge your Lordship to decline Jurisdiction to entertain this matter and discuss the suit as this is the only order this court is seized with the jurisdiction to make in this circumstance. He relied on the case of Akande V. Jegede (2022) LPELR 58911 (SC) @ (PP. 13-15; paras. E-C).  He urged the Court to strike out this suit for want of jurisdiction with    substantial cost.

16.    On whether having regard to the reliefs being sought by the Claimant, this suit can be instituted using the General Form of Complaint, In Contravention of Order 3 Rules 1 (b) (c) or (d) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017: This Case Which Challenges the Act of an Administrative Body. Learned Counsel that the Claimant’s case as presently constituted cannot be commenced by a General Form of Complaint taking cognizance of the totality of the Claimant Reliefs sought, which is a challenge of the “Administrative acts” of an “administrative body” in relation to the setting up of criteria for the appointment of a Vice Chancellor for the 2nd Defendant. Again, the Claimant is seeking for both an injunction to restrain the Defendant as well as an Order to declare the administrative acts of the Defendants who are administrative bodies ultra vires the statutes of the University of Calabar. That this kind of reliefs being sought by the Claimant fall squarely within the specie of reliefs which can only through the mode of commencement of action dealing with legal interpretation and construction of law and not facts. This specie of relief cannot be sought by “General Form of Complaint” but by either Originating Motion or Originating Summons or Application for Judicial Review of the Acts of an administrative body. He relied in Order 3 Rules 1 (b), (c) Or (d) of The National Industrial Court Of Nigeria (Civil Procedure) Rules 2017 and submitted that this suit can only be commenced by an Application for Judicial Review or originating motion or originating summons and not by compliant as witnesses cannot be called by the nature of the reliefs sought. Similarly, the word used by the said provision is “shall” which mean a command or compulsory mandate which gives no room for discretion and it is trite law that when the statutes use the word “shall” that Statute make the doing of that act mandatory and not optional. The failure to fulfill same, automatically robs the court of the jurisdiction to adjudicate. He placed reliance on the case of Nigeria Breweries Plc v. Dumeje [2016] 8 NWLR (PT 1515) P. 537 CA; National Assembly v. CCJ [2008] 5 NWLR (Pt. 1081) 519; STB Ltd v. Contract Resources Nig. Ltd [2001] 6 NWLR (Pt. 708 115). Counsel also submitted that it is trite, that the law as stated in the cases earlier cited above is that, the conditions bordering on jurisdiction must co-exist conjunctively, the absent of one robs the court of the jurisdiction to entertain same. That it is equally trite, that rule of court is not made for fun but are made to be obeyed. He relied on the case of Executive Governor of Osun State v. Folorunsho [2016] LPELR-41448 (CA) P. 23 Paras A-F and Edun v. Odan Community [1980] 8/11 (SC) 103 and submitted that the Claimant having failed to comply with the provisions of Order 3 Rules 1 (b), (c) or (d) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 has rendered this suit incompetent and automatically oust the Jurisdiction of the Court to entertain same. He urged this Court to strike out this suit accordingly.

17.    That actions that may be commenced by Application for Judicial Review include all matters necessitating application for an order or for a declaration or for mandamus, prohibition, certiorari or injunction, in such matters on which the Court has exclusive jurisdiction, as provided in Section 254C (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) or by any Act or law in force in Nigeria. This action is therefore (sic). It is the position of Counsel that this suit is statute barred having been filed 3 months after the occurrence of the administrative act of 1st Defendant, the Governing Council as it contravened Order 48 Rules 5 (1) of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017, and has rendered this suit incompetent. The Governing Council set the criterion of 10 years post-Professorial experience for the position of Vice Chancellor on 25/3/2025 while the Claimant filed this suit on 21/7/2025 about 4 months since the occurrence of the act. He urged the Court to strike out or dismiss this suit having regards to the above.

CLAIMANT’S WRITTEN ADDRESS IN OPPOSITION TO THE NOTICE OF PRELIMINARY OBJECTION

18.    On the 6th day of August 2025 Claimant filed his written address in opposition to the Notice of Preliminary Objection which was subsequently amended on the 4th day of September 2025 where in Counsel on behalf of the Claimant opposes the Preliminary Objection in its entirety and urges this Court to dismiss it with substantial cost as it is frivolous, misconceived and an abuse of Court process intended to delay the expeditious determination of the substantive suit. He equally posited that the Claimant relies on the General Form of Complaint dated 21st day of J    uly, 2025, statement of facts, the written statement on oath of the Claimant and all processes filed in this suit. That for clarity, the Claimant’s Counsel adopts a seriatim approach to address each ground of the Preliminary Objection, demonstrating that:

1. this Honourable Court is fully seized of jurisdiction,
2. the suit discloses reasonable causes of action,
3. the Claimant has locus standi,
4. the mode of commencement is proper, and
5. the action is neither statute-barred nor premature.

 

19.      On general objection to determination of Defendants’ preliminary objection and why this matter should proceed to trial. Counsel posited that the Respondents raise what they call a preliminary objection by document dated 4th day of August 2025. The so-called preliminary objection begins its entire narrative with paragraphs 2.0, which they call “brief statement of fact”.  That the objectors cannot place facts in such a manner without an affidavit. The canvassing of facts in preliminary objections, in the absence of an affidavit, is expressly forbidden. He placed reliance on the case of Dangida v. Mobil Prod. (Nig.) Unltd. [2002] 7 NWLR (Pt. 766) 482 (P.502, paras. C-D).

 

20.      On ground one the suit is not statute barred under the Public Officers Protection Act Cap P41 LFN 2004. The Defendants contend that the suit is statute-barred under Section 2(a) of the Public Officers Protection Act, Cap P41 LFN 2004 (hereinafter “POPA”) asserting that the cause of action accrued on 25th March 2025 (date of the Governing Council meeting) or 2nd April 2025 (date of the Claimant’s protest), and the suit was filed on 21st July 2025, beyond the three-month limitation period. This contention is fundamentally flawed and utterly misconceived for the following reasons. The applicable statutory provision is Section 2(a) of the Public Officers Protection Act, Cap P41 LFN 2004, which provides that where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect- (a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof. Counsel went on to state that the principle decided in Ibrahim v. Judicial Service Commission, Kaduna State (1998) 14 NWLR (PT. 584) 1 @ Page 32, Paras. E-F is that university governing bodies and officials qualify as public officers under POPA when performing statutory duties, as they act in pursuance of public authority. However, the limitation does not apply mechanistically.

 

21.      It is the contention of Counsel that firstly, the POPA does not apply to public bodies/educational institutions. Thus, the first Defendant, the Governing Council of the University of Calabar: Section 2 of POPA applied only to individual officers and not to the bodies and institutions. He cited in support of his position the case of CBN v Interstella Communications Ltd [2015] & NWLR (Pt.1462) 456 @ 506-507, Paras H-A; Inuwa v. Bayero University Kano & Anor [2016] LPELR-41615(CA) (Pp 3 - 6 Paras D – B) and UBRD v Alka [1998] 2 NWLR (Pt.538) 328.22.

           

22.      The cause of action accrued on 27th May 2025 on publication.  Counsel stated that the cause of action did not accrue on 25th March 2025, as the Defendants’ wrongful acts were not complete until the publication of the advertisement on the 27th day of May 2025, which implemented the defective criterion and crystallized the Claimant’s exclusion. He submitted that the principle decided in Egbe v. Adefarasin [1987]1 NWLR (Pt. 47) 1 A@ Page 21, Paras. A-B is that a cause of action accrues on the date when the facts giving rise to the right to sue are complete, and the plaintiff suffers damage: “A cause of action is the operative fact or facts which give rise to a right of action, which itself is a remedial right for recovery of what is claimed in consequence of the occurrence of the cause of action.” Here, the Claimant’s right to participate was infringed upon publication, as detailed in PART 4 Paragraph 7 of the Statement of Facts, where the advertisement is described as requiring 10 years of post-professorial experience, deviating from norms, and excluding the Claimant and the suit filed on 21st July 2025 is within three months of 27th May 2025.

 

23.      Secondly, even if accrual is argued from 25th March 2025, the acts constitute a continuance of damage under the proviso to Section 2(a) of POPA. The ongoing implementation of the criterion, including misrepresentations to the Senate on 22nd May 2025 and 26th June 2025 (Part 4 Paragraphs 9 and 10), and the continued exclusion, mean the damage persists. In Mobil Prod. (Nig.) Unltd V. Davidson [2020] 7 NWLR (Pt. 1722) 1 (P. 29, Paras. B-F) the Court held; “There are certain situations in which the application of limitation law will be curtailed and an action which would otherwise be held to be statute barred would escape the hammer of the limitation law... The act in itself will give rise to actions de die in diem so long as it lasts. In these types of situations, the limitation period will be frozen until after the cessation of the damage or injury.” The exclusion’s effects - loss of opportunity, professional disadvantage continue until the process is halted, as deposed in the Claimant’s Written Statement on Oath on personal impact and as reflected in Part 4 Paragraph 14.

24.      Thirdly, POPA does not apply where the acts are ultra vires or in bad faith. Counsel stated that the Defendants’ false recording of attendance and insertion of a PhD requirement (Part 4 Paragraphs 8(b) and 15), as evidenced by attendance records and witness affidavits showing non-attendance by Dr. Edor J. Edor and Barr. Maxwell Eba, Ph.D., constitutes bad faith, removing protection. That the principle decided in numerous cases is that criminal misconduct or deliberate breaches exclude POPA protection, as the Act does not shield illegal acts done in an official capacity. He placed reliance on the case of Kwara State Pilgrims Welfare Board v. Ji??? Baba [2018] LPELR-43912 (SC) @ Page 8 and posited that the Claimant’s Written Statement on Oath, Senate minutes, and affidavits establish deliberate misrepresentations, invoking this exception.

 

25.      Fourthly, the suit seeks declaratory and injunctive relief, not damages, which Courts have hold are not strictly subject to POPA limitations when challenging administrative actions. The principle decided in Thomas v. Olufosoye [1986] 1 NWLR (Pt. 18) 669 @ Page 682, Paragraphs G-H is: “A reasonable cause of action with some chance of success when only the allegations in the pleadings are considered.” The reliefs in Part 5 focus on declarations of invalidity and orders quashing the advertisement, not monetary claims, thus outside POPA’s purview for time bars on “actions” narrowly interpreted. Similarly, POPA does protect obvious impunity, recklessness or illegality as the extent of its protection is limited. He relied on the case of Abacha v. A.-G., Fed. (2021) 10 NWLR (Pt. 1783) 129. In conclusion on this ground, the objection fails as the cause accrued on 27th day of May 2025, involves continuous damage, bad faith exceptions apply, and the declaratory nature evades strict limitation. He urged this Court to overrule this ground.

 

26.      Respecting ground two, the Defendants argue no reasonable cause of action is disclosed, asserting the Claimant must prove infringement of a legal right, and the suit is based on speculation without wrongful acts or damage. Learned Counsel posited that this is erroneous, as the pleadings clearly disclose actionable claims in that a cause of action comprises the bundle of facts giving rise to an enforceable claim. He relied on the case of Owodunni v. Registered Trustees of Celestial Church of Christ [2000] 10 NWLR (Pt. 675) 315 (P.365, paras. B-D). That in determining a cause of action the Court looks at the writ and statement of fact to if enforceable rights exist. He cited in support of his assertion the case of Rinco Construction Co. Ltd v. Veepee Nigeria Ltd [2005] 9 NWLR (Pt. 929) 85 at page 99, paragraphs E- F. Continuing, Counsel stated that the principle decided in Attorney-General of Lagos State V. Attorney-General of the Federation [2004] 18 NWLR (Pt. 904) 1 @ Page 126, Paragraphs E-H is that legal rights include those recognized by law and capable of enforcement against defendants, even if privileges are involved, if they stem from statutory duties: “A legal right, in my view, is a right cognizable in law. It means a right recognized by law and capable of being enforced by the Plaintiff.” That the Claimant’s employment terms (referenced in Paragraph 14) affirm his right to participate, infringed by exclusion, creating a cause.

 

27.      Action not speculative, he posited that the Originating Processes show that: the advertisement is published (Paragraph 7), the exclusion complained of was immediate in the publication (Paragraph 14), and the damage to the Claimant’s legitimate advancement is ongoing. He cited in support of his assertion the case of Frozen Foods Nigeria Ltd v. Ojomo [2022] 14 NWLR (Pt. 1850) 299 @ Page 346, Paras. F-D and urged the Court is urged to overrule this ground, as the pleadings disclose wrongful acts (procedural breaches) and damage (exclusion).

                      

28.      Argument on ground three. Counsel contended that the Defendants claim the suit is outside the jurisdiction of this Court under Sections 254(1) and 254C, asserting it does not relate to employment or Chapter IV rights. He stated that this is misconceived, as the National Industrial Court has exclusive jurisdiction over labour and employment matters, including university governance affecting staff hence the Defendants claim the suit is outside the jurisdiction of this Court under Sections 254(1) and 254C, asserting it does not relate to employment or Chapter IV rights and that the applicable statutory provision is Section 254C(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He placed reliance on the case of Dr. Daniel Chukwurah v. Nnamdi Azikiwe University (NICN/EN/134/2014) at page 41. That the Claimant, a professor, challenges a criterion affecting his employment rights (promotion/opportunity to Vice-Chancellor), falling within “terms of service” and the applicable statutory provision is Section 254C(1)(i) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). He posited that the administrative decisions in university governance impacting staff rights, such as appointments, are within NICN jurisdiction as connected to employment disputes and the reliefs seek declarations on constitutional rights in the employment context (PART 5 Reliefs 3, 5), linked to Chapter IV (Section 36(1) fair hearing in procedural breaches). The applicable statutory provision is Section 254C(1)(k) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).  Attorney-General of Lagos State v. Attorney-General of The Federation [2004] 18 NWLR (Pt. 904) 1 @ Page 126, Paras. E-H. That the suit is not purely administrative but the suit involves employment discrimination (Paragraph 14), which is within the jurisdiction. He urged the Court to overrule this ground, as the suit connects to employment under Section 254C.

 

29.      Regarding ground four where the Defendants argue the suit is speculative as the selection process is ongoing, and the Claimant is pre-empting outcomes. It is the position of Counsel that this ignores the immediate harm from the published advertisement. He equally stated that a suit is speculative if based on hypothetical future events and that premature suits fail for non fulfilment of conditions precedent but direct actions are allowed for constitutional reaches. He made reference to the case of Salik v. Idris [2014] 15 NWLR (Pt. 1429) 36 (Pp. 60-61, Paras. G-C; 75, Paras. E-G); Gov. Imo State v. Amuzie [2019] 10 NWLR (Pt. 1680) 331 and Tubonemi v. Dikibo [2006] 5 NWLR (Pt. 974) 565 at page 588, paragraph B. Furthermore, Counsel contended that the Defendants cite Olalomi Industries Ltd v. N.I.D.B. Ltd. [2009] 16 NWLR (Pt. 1167) 266 @ Page 304, Paragraphs H-B but that involved unsubstantiated speculation unlike in that case, the publication in this suit crystallizes the wrong. He urged the Court is urged to overrule this ground.

 

30.      Respecting ground five The Defendants invoke Section 13 for Visitor intervention on statute interpretation, claiming exhaustion required. The applicable statutory provision is Section 13 of the University of Calabar Act, 1979.The principle decided in Ibrahim v Osim [1988] 3 NWLR (Pt. 82) 257 is that “may” in statutory language is permissive and discretionary, not mandatory, allowing flexibility where direct access is warranted: “The word “may” is permissive and connotes discretion.” The dispute involves not mere interpretation but fundamental breaches (ultra vires, discrimination), allowing direct court access under Subsection (3). Learned Counsel submitted that the principle decided in A-G Kwara State v. Adeyema (2917) 1 NWLR (Pt. 1546) 216 @ Page 240, Paragraphs A-B is that direct access to court is permitted for constitutional or ultra vires issues, bypassing internal mechanisms: “Where the matter involves constitutional rights or ultra vires acts, exhaustion is not required.” He also stated that the Defendants cited Covalent Oil & Gas Services Ltd v. Ecobank Nig Pic [2021] 10 NWLR (Pt. 1784) 252 @ Page 271, Paragraphs D-E but that involved mandatory exhaustion in commercial contracts, distinguishable from the permissive “may” here and the constitutional dimensions. That the Claimant protested to the Council and Visitor (Paragraph 12), fulfilling any notice requirement and no response was received, exhausting practical remedies. He therefore urged the Court to overrule this ground, as no mandatory precondition was unmet.

 

31.      Argument on ground six. Counsel stated that the Claimant has locus

standi reiterating that locus standi requires a legal interest adversely affected. He relied on the case of Arowolo v. Olowookere (2011) 18 NWLR (Pt. 1278) 280 @ Pages 300-301, Paragraphs G-H. He equally stated that the Claimant, as a professor with nine years of experience, has a direct interest in fair appointment processes under his employment terms (Paragraph 14) and constitutional rights, infringed by exclusion. He placed reliance on the case of Eleso v. Government of Ogun State [1990] 2 NWLR (Pt. 133) 420 @ Page 444, Paragraphs E. Continuing, Counsel posited that the criterion’s bias (Paragraph 13) affects his opportunity, giving him standing. That the principle decided in Ntung v. Langkwang [2021] 8 NWLR (Pt. 1779) 443 is that sufficient interest includes enforceable rights under statutes or the Constitution. Counsel contended that the Defendants cited Magbagbeolo v. Akintola [2018] 11 NWLR (Pt. 1629) 177 @ Page 200, Paragraphs A-B but that involved no personal stake, unlike here where the Claimant’s Written Statement on Oath establishes adverse effects on his rights. That the Court is urged to overrule this ground, as the Claimant shows sufficient interest.

32.      Argument on ground seven.    Counsel posited that the mode of commencement is proper under Order 3 of the National Industrial Court Rules 2017. The Defendants argue the suit requires a judicial review mode (Originating Motion/Summons) under Order 3 Rules 1(b), (c), or (d), not General Form of Complaint. That the Rules of the NICN specifically require that this action, which makes allegations of misconduct, false statements and representations, false minutes of meetings, be brought by Complaint. The principle decided in Olley v. Tunji [2013]10 NWLR (Pt. 1362) 275, (P. 331. paras. F-H) is that originating summons is appropriate for matters involving construction of documents or questions of law without substantial factual disputes, but where facts are contentious or require oral evidence, the action must be commenced by writ or complaint to allow for proper resolution: Originating summons is used only when the facts of a case or matter are not likely to be or, in fact, are not disputed. In other words, it is to be used for non-contentious actions or non-hostile proceedings. Therefore, whenever or wherever there is a dispute or likelihood of a dispute on the facts, an originating summons procedure is not appropriate and should not be used to commence a civil action. This action involves substantial factual disputes, such as allegations of false recording of attendance in minutes (PART 4 Paragraph 8(b)), misrepresentations to the Senate by Professor Florence Banku Obi (PART 4 Paragraph 10(b)), and deliberate insertion of unauthorized requirements like the PhD qualification (PART 4 Paragraph 8(d)), which necessitate oral evidence from witnesses including Dr. Edor J. Edor, Barr. Maxwell Eba, Ph.D., and Senate members to resolve credibility and intent issues. Thus, the General Form of Complaint under Order 3 Rule 1(a) is the mandated mode, as it permits pleadings, affidavits, and cross-examination essential for these contested facts. There is no relief seeking the interpretation of any part of any statute; the action simply seeks the specific application of the laws to the facts as canvassed by the Claimant. The principle decided in Timothy Nwachukwu Obuh, Esq v. Hon. Anthony Emeka Nwabueze & Ors (NICN/ASB/38/2020) at page 15 (per Justice J. A. Targema) is that actions commenced by originating summons are limited to matters principally involving statutory interpretation without disputed facts, but where reliefs require factual determination, the complaint mode is appropriate: Counsel stated that the aim of forms of action is to ensure the Court’s determination of the matter fully and fairly so that the complaint proceedings are actually the best mode of determining the facts canvassed, giving the Claimant any right to relief. He supplied in support of his assertion the case of Ibanibo Samuel Iniko v. Federal Inland Revenue Service (NICN/PHC/103/2017) at page 12 (per Justice Auwal Ibrahim). That Complaint proceedings best determine the Claimant’s right to relief by enabling witness testimony on disputed facts like quorum validity (PART 4 Paragraph 8(c)) and bias (PART 4 Paragraph 13), ensuring thorough adjudication under Section 36(1) of the 1999 Constitution for a fair hearing.

 

33.      The Claimant’s Counsel submitted that the Court has long established the principle that judicial review may be commenced by writ of summons (the equivalent of the General Form of Complaint in the NICN) in circumstances where substantial facts are in dispute, requiring oral evidence and cross-examination for fair determination, as opposed to affidavit evidence alone. That in practice, Nigerian Courts often convert originating summons to writ if facts emerge as disputed. He made reference to the case of Dantata v. Dahboul & Ors [2016] LPELR-41264(CA) and Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275, (P. 331. paras. F-H). That in judicial review contexts with disputed facts (e.g., false minutes or biases), the writ of summons ensures a fair hearing under Section 36(1) of the 1999 Constitution, making it an appropriate mode. This supports flexibility, allowing judicial review to proceed by writ for fairness.

 

34.      Furthermore, the Defendants cited Executive Governor of Osun State v. Folorunsho [2016] LPELR-41448 (CA) @ Page 23, Paragraphs A-F (per Denton-West, JCA), emphasizing obedience to rules however, this supports the Claimant’s choice as it obeys by selecting the mode for evidentiary disputes. He urged the Court to overrule this ground, as the action as constituted is proper.

 

35.      Argument on ground eight: no non-compliance with Order 48 Rules 1-5. Counsel submits that Order 48 applies to judicial review (mandamus, certiorari, etc.). hence since the suit is commenced by Complaint (not review), Order 48 is inapplicable. Also, it is the position of Counsel that this is not a judicial review matter, as the conditions precedent to judicial review are not existing in the case. The Claimant’s Counsel explains applicable statute, key Nigerian case law authorities, and shows the distinction between judicial/quasi-judicial and administrative/ministerial acts. He equally explains applicable statute, key Nigerian case law authorities, and shows the distinction between judicial/quasi-judicial and administrative/ministerial acts. On statutory Basis. Counsel stated that the principle is not explicitly codified in a single statute but is derived from the inherent supervisory jurisdiction of superior Courts under Section 6(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides: The judicial powers vested in accordance with the foregoing provisions of this Section(b) shall extend to all matters between persons, or between government or authority, and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. The judicial powers vested in accordance with the foregoing provisions of this     Section (b) shall extend to all matters between persons, or between government or authority, and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person. That this provision empowers Courts to review actions affecting civil rights, but only where the function is judicial or quasi-judicial, as interpreted in case law. He urged the Court to overrule this ground as irrelevant. In conclusion Counsel posited that the Preliminary Objection lacks merit and should be dismissed with costs of N5,000,000.00, allowing the substantive suit to proceed.

 

            REPLY ON POINT OF LAW TO THE PRELIMINARY OBJECTION

 

37.      On the 12th day of August, 2025, the Defendants/Applicants filed their reply on point of law to the Claimant’s amended written address in opposition to the Notice of Preliminary Objection wherein Counsel in reply to Paragraph 1.5 and submitted that it is settled provision of the law that there cannot be objection to objection rather the objection should be in the reply to the objection. He placed reliance on the case of Adeyemi v. Achimundic [2023] 1 NWLR (Pt. 1866) 583 @ 616 - 617, Paras. H – B. Secondly the case of Dangida v. Mobil Prod. (Nig.) Unltd (Supra) is not applicable. The Supreme Court has settled this issue that where it is issue of law Preliminary Objection suffices. He referred the Court to the cases of Abba v. S.P.D.C.N LTD. [2013] 11 NWLR (Pt. 1364) 86 @ 101 - 102, Paras H - B; A-G Fed. v. ANPP [2003] 18 NWLR (Pt. 851) 182 @ 207, Paras. A - D; Umeh v. Ejike [2013] LPELR-23506 (CA) Pp. 71-72. In the Preliminary Objection the Defendants reliefs seek reliance on the processes already filed as no fact is needed as the objection is an issue of law. He relied on the case of Inokoju v. Adeleke [2007] ALL F WLR (PT. 353) 190.

 

38.      Learned Counsel in reply to Paragraphs 2.0 - 2.4 submitted that the said paragraphs are grossly misconceived and elementary ignorance of the principle of law and clear decision of the Supreme Court in Ibrahim v. J.S.C Kaduna State (Supra). Also, in his Paragraph 2.4 Counsel invited this Court to read the case and category; it covers both body, institutions and biological persons. Furthermore, in reply to paragraphs 2.5 - 2.6 - 2.8 Counsel submitted that POPA is applicable to both individual, bodies and institution. He relied on the case of Ibrahim v. J.S.C (Supra). That the case of CBN v. Intersella Communications Ltd (Supra) cited is not applicable as the case did not say so. The case of Ubrd v. Alka [1998] 2 NWLR (Pt. 538) 328 is equally not applicable not in existence and cannot be found in the Law Reports. Again, Wakala v. State (Supra) is a criminal case and not applicable here. That the cause of action accrued on 27'h May, 2025 and publication as canvassed here is grossly misconceived. The Claimant cannot escape the quagmire and time bomb set for himself as clearly stated in the Statement of Facts, and Oath that the Governing Council took the decision on 25th March, 2025 and he protested this decision on 2nd April, 2025. He placed reliance on the earlier submission on this. Counsel contended that the publication is just the publication of the decision of the Governing Council and not a new cause of action, unfortunately Claimant choose the publication so as to cover up when it is very clear he protested on 2nd April, 2025. He is not claiming that he became aware of the publication of 27th May, 2025, as that will be a summersault of his protestation of 2nd April, 2025. He has no answers.

 

39.      Responding to paragraph 2.8 Counsel stated that this cannot be correct as the Claimant protest of 2nd April, 2025 to the event of 25th March, 2025, when the Governing Council met. He contended that the case of Asaboro vs. Pan Ocean Ltd. (Supra) is not applicable as same was a case of compensation for the wrongful acts of the Respondents in the operation of their oil mining lease exploration. Going on and in reply to paragraph 2.9 he posited that POPA does not apply to ultra vires or bad faith does not apply to fact the Claimant stated in his statement of fact that show bad faith. That this Court is urged to refer to the Claimant's Statement of Facts and his written statement on oath - there is nothing to show this purported bad faith as no statement from the named persons on oath to support the purported false information noting that the names and affidavit did not show any of such. That the case of Kwara State Pilgrims’ Welfare Board v. Jimoh Baba (Supra) is not applicable because the case borders on lodgment of monies into the Pilgrims’ Welfare Board's account in the Bank, and a case of missing funds.

 

40.      That it is now settled that before a party can rely on bad faith or ultra vires to escape POPA he must submit to the Court all the relevant materials.  He cited in support of his assertion the case of Hassan v. Aliyu [2010] 17 NWLR (Pt. 1223) 547 @ 591, Paras. C- E. From the above decision, he submits as follows: There is no fact to establish that the Governing Council acted in bad faith or ultra vires. The Claimant/Respondent has admitted in the statement of facts at paragraph A that the Governing Council of the University of Calabar is responsible for formulating policies, including the criteria for the appointment of Vice Chancellor and Paragraph 2(a) of the witness statement on oath, the Claimant also admitted that the Governing Council is the organ of the University responsible for policy formulation including the criteria for Vice Chancellor. There is no evidence or facts that the Governing Council cannot make decision or policy or selection and qualification as to 10 years post professorial qualification for the appointment of Vice Chancellor. There is no evidence that the Senate meeting has no quorum because two staff were absent, the meeting of the Senate of 22/5/2025 did not show this fact. The said meeting of the Senate of 22/5/2025 is different from the Governing Council meeting of 25/3/2025. There is no evidence that the Senate acted against its rule and lack of quorum cannot vitiate its decision. The statement of facts or oaths of the two persons or staff are not before this Court. Counsel therefore that the Claimant has failed woefully to establish before this Court that the Governing Council acted in bad faith or ultra vires. He placed reliance on the case of Hassan v. Aliyu (Supra) PG. 622, Paras. B - C; Offoboche v. Ogoja L.G. [2001] 16 NWLR (Pt. 739) 458.

 

41.      In paragraph 2.9(4) Counsel stated that the Claimant invited the Court to Written Statement on Oath, Senate minutes and affidavit which established deliberate falsehood. Counsel submits strongly this Court should dismiss as the ipse dixit Claimant's action, statement of Dr. Edor J. Edor and Barr. Maxwell Eba, Ph.D, Senate Minutes did not show this. No affidavit before this court to substantiate that. That above all, the action of the Claimant is barred as the action of the Governing Council meeting of 25th March, 2025 led to the protest letter of 2nd April, 2025 not the Senate Meeting of 22/05/2025. The two bodies are different and the role of Governing Council is quite clear on policy matters of the University. See Sections 2AA and 2AAA of the Universities (Miscellaneous Provisions) (Amendment) Act 2003. The Claimant has already admitted in his Statement of Fact and Oath that the governing Council has the highest policy of the University. We rely on our earlier submission. He urged this Court to take a look at Claimant's reliefs, date and purported claim relating to date of the Governing Council of 25/3/2025 not under the Senate meeting of 22/05/2025 they are polls apart.

 

42.      Responding to Paragraph 2.10 Counsel submitted that the Claimant misled the Court in that reliance on Thomas v. Olufosoye (Supra) cited did not say what Counsel says to decide the case. He equally submitted that Counsel owes duty to Court and relate his case for court to decide without putting wool on the court's face. He placed reliance on the case of Adegoke Motors Ltd v. Adesanya [1989] 3 NWLR (Pt. 109) 250 AT 265, Paras H-A. This case did not say what Counsel is to say therefore same be dismissed. Also, relief no. 5 is not applicable to the Court, as the Claimant's action is not an action of Judicial Review. It is the contention of Counsel that the Claimant has in paragraph 7.0 (1-8) of his written address submitted in sum that he has a locus standi, as his civil and constitutional rights have been violated by the decisions of the Defendants. In response Counsel submits that having alleged that his civil right has been violated, it is not enough for the Claimant to assert but the onus of proof of the violation of his civil right rest squarely on him. He relied on Section 131(1) and 132 of the Evidence Act, 2011 (as Amended) and the case of Odom v. PDP (2015) 61 NSCLR 984. That in the same vein, the burden of proving the violation of a constitutional or fundamental right also rest on him. It is not enough to merely assert that his right has been violated as in this case, he must prove that he indeed has a right and that right has been violated. He relied on the case of Trail Publication Ltd v. Dikko [2021] LPELR -56127 (CA) (PP. 23-24, Paras F-D.  Similarly, the party who alleges that his right has been violated must do more than merely averring that his right has been violated. He must proceed further to show how his right was violated by the other party and what specific acts were done in the violation of his right. These are not facts that will be inferred but rather are to be expressly shown by the applicant in the affidavit in a fundamental proceeding the application has a duty in law to place before the Court material facts in support of his case. He posited that the Claimant's right by his pleading and witness statement on Oath are as contain in the letter of promotion as a professor, the University of Calabar conditions of service, the University of Calabar Act and the constitution. However, he has not proved any fact showing the right conferred by the documents, the law and the constitution. He submitted that for there to be a breach or violation of right, such right must exist. Only an existing right can be violated or breach and only the existence and violation of a right of a person can confer him with the locus standi to sue. He placed reliance on the case of Mulima v. Borno State Housing Corp. (Supra) @ (PP 24-25 Paras. D-D) and Bello v. INEC (2023) LPELR- 63031 (CA) @ (PP. 50-51, Paras. B-B).

 

43.      In reply to page 8, 9, 10, 11, 12, 13, 14, 15, 16 & 17 of the Claimant's written address, particularly paragraph 8.0-12.1, on the issue of mode of commencement and non-compliance with Order 3 Rule 1(b), (c), & (d) of the National Industrial Court of Nigeria (Civil Procedure) Rules. Counsel contended that the argument of the Claimant vide paragraph 8.0-12.1 is that the suit was properly commenced in compliance with the Rules of this Court. The Defendant’s Counsel in response adopted his earlier submission in our Notice of Preliminary Objection and submitted further that by the nature of the reliefs sought in the Claimant's suit, same can only be commenced by judicial review, not by complain. Therefore, the Claimant having failed to commence this suit by due process of law has robbed this Court of its jurisdiction. He placed reliance on the case of Madukolu & Ors v. Nkemdilim [1962] NSCC 374 @ 379-380, Paras.45-5. He submitted also that the emphasis here is that the Claimant's action was not initiated by due process of law. He cited in support of his assertion the case of Abubakar V. Nasamu (No.2) (2012) 17 NWLR (1271) 523 @ 577 Para E; Crutech V. Obeten [2011] 15 NWIR (1271) 588 @ 608 Para D. Furthermore, the Claimant having failed to exhaust internal remedy as prescribed by the statute establishing the institution, same has robbed the Court of its jurisdiction. He relied on the following cases of Owolabi v. Yusuf & Ors [2021] LPELR-55689, Fadairo & Ors v. Nasu & Anor [2024)] LPELR-62868. In conclusion Counsel urged the Court to discountenance all the arguments of the Claimant/Respondent in his Written Address and grant the Defendants/Applicants' Application as prayed.

 

COURT’S DECISION

1. The Applicants on the 4/08/2025, filed a Notice of Preliminary Objection dated and filed on the same 4/08/2025 challenging the jurisdiction of this suit as presently constituted. On this premise counsel to defendants urged this court to dismissed and or strike this suit out. The defendants file 10 grounds upon which the Notice of Preliminary Objection is predicated. To my mind, the issue for the determination of this Notice of Preliminary Objection is:

Whether indeed this court is imbued with the jurisdiction to hear and determined this suit as presently constituted

1. A preliminary objection is a procedural device intended to challenge the competence of a suit, particularly on the basis of jurisdiction or other threshold issues of law. It is strictly reserved for raising pure questions of law which, if upheld, have the effect of terminating the entire proceedings or rendering the originating process fundamentally defective. It flows therefore that preliminary objection is not designed to be used as a tool to circumvent or summarily defeat the merits of a suit. See Gtb Plc v. Innoson (Nig) Ltd [2025] LPELR-81486(SC). From the processes filed by the defendants/applicants before this court, I find that the preliminary objection raised is not done malafide as it raises questions of law that are threshold in nature and need to be resolved.

 

1. Generally, the issue of jurisdiction is fundamental to the Court’s power to adjudicate. It is often said it is the lifeblood of every suit filed in Court. Without it, the action would naturally suffocate and die. It is also described as the stamp of authority which inures to the court to entertain a matter. This, in essence, is why it can be raised at any stage of the proceedings and even at the Supreme Court for the first time. It can be raised orally or by the court suo motu. This is because no matter how well the proceedings are conducted, it would amount to a nullity and a complete waste of time if the court lacked the jurisdiction to entertain the matter. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Oloriode v. Oyebi [1984] 1 SCNLR 390; Oloriegbe v. Omotosho [1993] 1 NWLR (Pt. 270) 386.

 

1. Defendants/Applicants in their written brief in support of the Notice of Preliminary Objection argued their grounds upon which the objection is based. Counsel to the Claimant/Respondent in like manner follow suit in responding to the issues highlighted by the Applicants’ Counsel in resolving this Preliminary Objection challenging the jurisdiction of this Court. This Court, in addressing the preliminary objection, will seek to answer the following questions primarily: what is the cause of action? When did the cause of action arise? when was the suit filed? And in filing the suit, was the suit filed outside of the time allowed by law?

 

1. The law is trite that in determining the cause of action, and when the cause of action occurred, it is only the claimant's originating processes that must be looked at. See Gbenga v. APC [2020] 14 NWLR (Pt. 1744) 248, PDP v. Uche & ors [2023] LPELR-59604(SC). Therefore in answering the question, what is a cause of action? His Lordship Jauro, JSC delivering the leading judgment in the case of Useni v. Atta & ors [2023] LPELR-59880(SC), referring to Nweke v. Unizik Awka [2017] 18 NWLR (Pt. 1598) 454, Owodunni v. Reg. Trustees of CCC [2000] 10 NWLR (Pt. 676) and Sanda v. Kukawa Local Government [1991] 2 NWLR (Pt. 174) 379 had this to say:

“For the purpose of limitation of action, time starts to run when all the facts which constitute the Plaintiffs cause of action have happened. In other words, the time starts to run when the cause of action accrues. Now, what does cause of action mean? Cause of action means the fact or combination of facts which gives rise to a right to sue. It is the 'factual situation' stated by the Plaintiff which, if substantiated, entitles him to a remedy against the Defendant; the factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person.”

Also, in the case of Oko-Jaja v. FCSC & Ors [2022] LPELR-57627(CA) the Court of Appeal held thus:

“… the phrase ‘cause of action' has been variously defined in judicial decisions as the fact or combination of facts which give rise to a right to sue, which consists of the wrongful act of the defendant which gives the claimant the right to complain and the damage consequent, due to the wrongful act".

1. Where there is a statute of limitation of action, as in the instant case, it is trite that time begins to run from the date that the cause of action accrued; and a cause of action accrues on the date in which the incident giving rise to the cause of action occurs. See Steve C. Okebu v. Delta State Judicial Service Commission & Anor [2023] LPELR-60590(CA) and Gbenga v. APC [2020] 14 NWLR (Pt. 1744) 248. An action commenced outside of the time allowed by the statute is said to be statute-barred. Although the right of action exists, it remains unenforceable and the right is extinguished for all time. See Gbenga v. APC [supra] and Nigerian Army & anor v. Maha [2023] LPELR-5971 l(CA).

 

1. The issue of an action being statute-barred is fundamental to the determination of a case. Once it is established that an action is statute-barred, the action comes to an end without more. Indeed, the effect of a limitation law is that it removes the right of enforcement of legal right and judicial relief. See P.D.P. v. INEC [2018] 12 NWLR (Pt. 1634) 533; Wilson v. Oshin [2000] 9 NWLR (Pt. 673) 442; Yare v. National Salaries, W. & I. C. [2013] 12 NWLR (Pt. 1367) 173. Putting it differently, the effect of a limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. It removes the right of action leaving the claimant with an unenforceable claim. Therefore any action that is instituted after the period stipulated or allowed by statute, the right of the injured person to commence the action would have been extinguished by such law. His right of action would be totally barred. See A.-G., Rivers State v. A.-G., Bayelsa State [2013] 3 NWLR (Pt. 1340) 123; C.P.C. v. Yuguda [2013] 7 NWLR (Pt. 1354) 450.

 

1. In the instant case, the Claimant is a Professor of Business Management at the University of Calabar (2nd defendant) as seen in Exhibit F. As at 1/06/2025, he had 9 years of post-professorial experience. According to Claimant, 9 years post professorial experience should entitle him to be eligible to aspire to the position of a Vice Chancellor. But claimant argued that the 1st defendant in an Emergency Meeting of on 25/03/2025 passed a Council Resolution inviting applications for the position of the Vice Chancellor of 2nd Defendant and among other things placed a restrictive 10-year post-professorial experience criterion. Upon the passage of the resolution, the Claimant on the 02/04/2025 wrote a protest letter to the Pro-Chancellor and Chairman of the 1st Defendant protesting the 10-year post professorial experience criteria. The letter is marked as Exhibit G. The advertisement for the position of the Vice Chancellor was published on the 27/05/2025 in the Daily Sun newspaper which is marked as Exhibit A. Claimant also approached this court and commenced this action on the 21/07/2025. The Minutes of the Emergency Meeting of the 1st Defendant was frontloaded and marked as Exhibit C.

 

1. It is the case of the Defendants/Applicants that the cause of action in this suit arose on 25/03/2025 when the Governing Council in its Emergency Meeting, among others, set a 10-years post-Professorial criterion for applicants wishing to apply for the position of Vice Chancellor of the 2nd Defendant. I have gleaned through the Minutes of the Emergency Meeting of the 1st Defendant of 25/03/2025 which is marked as Exhibit C. And more specifically, paragraph 2.3.5 of Exhibit C provides thus:

“Council further directed that in conformity with the regulations of the Federal Ministry of Education, part of the criteria, should be that interested applicants must not be less than 10 years as Professor in the University System.”

1. The first relief of the claimant is for a declaration that the 10-year post professorial experience criterion in the VC advertisement of 27/05/2025 is ultra vires. Relief two seeks to render the Emergency Meeting of 25/03/2025 as invalid; while relief 3 looks at the criteria as discriminatory and therefore unconstitutional. In the case of Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] 5 - 6 SC (Pt. II) 47 the Supreme Court had cause to held that "A claim is circumscribed by the reliefs claimed. The duty of a Plaintiff therefore is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same". The subject matter which forms the fulcrum of the cause of action in this suit emanated from the resolution and decision of the 1st Defendant Emergency Meeting of 25/03/2025. It is that decision that gave birth to the claimant’s letter of 02/04/2025 protesting to the Pro-Chancellor and Chairman of the 2nd Defendant the decision reached that relates to the 10-year post professorial experience of applicants wanting to vie for the position of the Vice Chancellor. Paragraphs 6, 7, 8, 9 and 10 of the claimant’s Witness Statement on Oath also alluded to these facts. The Claimants made copious references to this action of the 1st defendant in his Statement of Facts. On this premise, it is therefore logical to conclude that the date of accrual of the cause of action in this suit is not on the date of advertisement in Exhibit A as it cannot be said to be the date the cause of action arose. This being so, it is therefore safe to conclude that the cause of action in this suit arose on the date Exhibit C was made by the 1st Defendant. It is however worth noting that the claimant did not come to this court until the 21/07/2025 when he decided to file this suit. This also means that the Claimant/Respondent waited for well over three (3) months after the cause of action arose before approaching this court. This is outside the three (3) months allowed by Section 2(a) of the Public Officers Protection Act. Flowing from this, I therefore find that indeed the cause of action in this suit arose on the 25/03/2025. I so hold.

 

1. The alternate argument of the Claimant, however, is that assuming without conceding that this suit is caught up by the limitation law, this case appropriately come within the exception to the rule in Section 2(a) of the Public Officers Protection Act i.e. the continuance of damage or injury exception. For ease of reference, Section 2(a) of the Public Officers Protection Act provides thus:

“Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect -

(a) the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury within three months next after the ceasing thereof:

Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”

1. To the Claimant, the continual implementation of the 10-year post professorial criterion; misrepresentation of facts to the Senate of the 2nd defendant; and the continued exclusion of the claimant from participating in the process is what Claimant construed as continuing damage or injury. The defendant argued that this does not fall within the exception as provided in POPA as the decision complained of was taken once and for all in the Emergency Meeting of the 1st defendant held on 25/03/2025. All other activities that follow were simply the implementation of 1st Defendant’s decision by the 4th Defendant.

 

1. Let me pause and state here that Claimant seem to misconstrue the phrase “continuing damage or injury” as used in section 2 (a) POPA. In the case of INEC v. Ogbadibo Local Government & ors [2015] LPELR-24839(SC), the Supreme Court gave a profound definition of the phrase in the following words:

“This is where I part ways with their Lordships of the Court below. "A continuance of injury'' is not a question of law. It is a fact to be pleaded where pleadings are appropriate or to be averred in affidavit as in this case initiated by originating summons. Neither paragraph 3(c) nor any other paragraph of the supporting affidavit averred that the injury suffered by the respondents, if any, is continuing.

I remember that during my sojourn on the Bench of the Court of Appeal, I had occasion to examine the meaning of an act which damage or injury is a continuing one. In Alhassan V. Aliyu & Ors (2009) LPELR-8340(CA) at pp.31-32 paras F-G, I said as follows: -

... Where the injury complained of is a continuing one, time does not begin to run for the purpose of the application of a limitation law until the cessation of the event leading to the cause of action. In other words, "continuance of injury'' means the continuance or repeat of the act which caused the injury. It does not and cannot be said to mean the concomitant effect of the damage or injury ...

I have had to reproduce part of the judgment in extenso in order to underscore the meaning of the phrase "continuance of damage or injury" as used in Section 2(a) of the Act. In 1996, the appellant excised and suppressed the respondents' State Constituency. There was no other act of excision or suppression. It was a completed act. What the respondents and the two courts below relied upon was the "continuance of the injurious effects of a legal injury." Clearly, this is where the mistake came about. It was therefore wrong for the two lower courts to hold that Section 2(a) of the Public Officers Act did not apply to the suit of the respondents.” 

1. Additionally, the Supreme Court in INEC v. Enasito & Ors [2017] LPELR-4 7991 (SC) held that continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury. A completed act, which does not continue, cannot therefore be termed continuous simply because its injurious effect continues. The Claimant counsel in the instant case misconceives the injurious effect of the act of the 1st Defendant that gave birth to the 10-year post professorial experience and insisted that the effect of the action of the 1st Defendant is a continuing damage or injury. I find this to be strange and not known to our jurisprudence. Accordingly this submission as presented by claimant’s counsel is hereby discountenanced and refused.

 

1. Moving forward, looking at the Claimant’s submissions in his Amended Written Address in Opposition to the Notice of Preliminary Objection, paragraphs 2.9 and 2.11 does not help the case of the Claimant because Claimant fail to show either in his pleadings or affidavit before the Court where the act of the 1st Defendant was said to be done in bad faith, ultra vires, with impunity, reckless or illegal for it not to be caught up by the limitation law. The law is trite that whatever is lost in evidence cannot be restored in a lawyer’s address. See Ali v. State [2021] 12 NWLR (Pt. 159) 194. This is more so because closing address of Counsel, no matter how brilliant and alluring can never take the place of legal proof. See Okuleye v. Adesanya [2014] 12 NWLR (Pt. 1422) 521. Therefore, the strong arguments presented by Claimant in his written address is without any basis on the relevant processes before this court and it is hereby discountenance.

 

1. On the submission by Counsel to Claimant that POPA does not apply strictly to declaratory or injunctive reliefs; claimant fail to substantiate this argument. I have carefully studied the case of Chukwuka Okoronko v. INEC [2025] LPELR-80425(SC) which is the leading authority on the applicability of POPA and I find it difficult to accept the argument as put forward by counsel to claimant. The case of Okoronko v. INEC (supra) was a case commenced at the Federal High Court for declaratory reliefs. However, the Supreme Court still invoke and reiterated the applicability of POPA and held that the suit was statute barred. The submission of learned counsel seems to be without legal basis. In light of this I hereby discountenance Claimant’s argument.

 

1. From all that has been said, to answer the questions posed above: I find that the cause of action in this suit accrued and arose on 25/03/2025 and the Claimant filed and or commenced this suit on 21/07/2025 as can be seen on the originating processes. This is outside the three (3) months allowed by section 2(a) of the Public Officers Protection Act. This being so, the instant suit is caught up by section 2(a) of the Public Officers Protection Act and so is statute-barred. I so hold.

 

1. It is a hornbook law that once a Court holds that a case is statute-barred, the remedy is one of dismissal of the case. See Aroyame v. Governor of Edo State & Anor [2022] LPELR-578 l 9(SC) and Sani v. The President FRN & Anor [2020] LPELR-50990 (SC). This being so, the instant case is liable to be dismissed; and it is hereby so dismissed.

 

1. The Defendants also raised the issue of lack of locus standi of the claimant to institute this action. Defendants submitted that Claimant in this suit is not challenging his status or right as an employee of the 2nd Defendant, but is rather challenging the criteria set by the 1st defendant for the appointment of a Vice Chancellor even when claimant has no capacity to challenge same. In his response Claimant contended that being a professor of 9 years standing, he has a direct interest in fair appointment processes of the Vice Chancellor in the 2nd Defendant.

 

1. The legal principle, locus standi, is a condition precedent to instituting an action before a Court of law. It is a legal voice with which the claimant amplifies his legal rights over and above those of ordinary men. The issue of locus standi constitutes a condition precedent to the institution of any action before a Court of Law. For an action to be maintainable, the person instituting it must have legal capacity, otherwise the Court is robbed of necessary jurisdiction to entertain it.

 

1. In the case of Pam v. Mohammed [2008] vol. 40 WRN P. 69 the Supreme Court, per Tobi, JSC (of blessed memory), held at pages 122 to 123 as follows:

"The term locus standi denotes legal capacity to institute proceedings in a Court of law. It is used interchangeably with terms like standing or title to sue. It is the right of a party to appear and be heard on a question before any Court or Tribunal.

…

It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit or matter. One criterion or sufficient interest is whether, the party could have been joined as a party in the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship arising from the litigation. See also Makinde v. Orion Engineering Services (UK) Ltd (2014) NWLR (Pt.1417) 1 at 28.”

1. This is the position of the law and it cannot be different in this suit. The Claimant has a duty not only to show that he has sufficient interest in the action but more importantly to show that his legal rights or obligations have been or are in danger of being infringed. What then, if I may ask, is a legal right? In the case of A-G Lagos State v. A-G Federation [2004] 18 NWLR (PT. 904) 1 @ 126, Paras. E – H the Supreme Court had this to say when it held thus:

“A legal right, in my view is a right cognizable in law. It means a right recognized by law and capable of being enforced by the Plaintiff. It is a right of a party recognized and protected by a rule of law, the violation of which would be a legal wrong done to the interest of the plaintiff, even though no action is taken. The determination of the existence of a legal right is not whether the action will succeed at the trial but whether the action donates such a right by reference to the enabling law in respect of the commencement of the action.”

1. In the instant case, the claimant submitted that he has a direct interest in the employment and appointment of the Vice Chancellor of the 2nd Defendant. As to where is the legal basis of the right of the Claimant? This remains an unanswered question by the claimant. The Claimant has failed to prove to this Court the existence of his legal right. I have flipped and read through the originating processes filed by Claimant and no prove of any sufficient interest is seen to cloth Claimant with the right to sue or initiate this action. This singular act usurps this Court of jurisdiction to determine this suit. As noted earlier, locus standi of a Claimant to institute an action is a condition precedent to the Court's jurisdiction. It is inextricably linked to the exercise of jurisdiction by a Court. In other words, where the party initiating an action lacks locus standi, the Court is robbed of jurisdiction. I therefore find that Claimant lacks locus standi to initiate this suit. I so hold.

 

1. Another issue raised by Defendants is the non-exhaustion of internal remedy of the 2nd Defendant by Claimant before approaching this Court as provided under Section 13 of the University of Calabar Act. It is the case of Claimant that he has Constitutional right to approach the Court without exhausting the internal remedies available in the 2nd defendant. Counsel to Claimant relied on the case of A. G. Kwara State v. Adeyemo [2017] 1 NWLR (Pt. 1546) 216. After reviewing the submissions of counsel to the claimant, I am of the view that Claimant right of access to Court is Constitutional and once it inured, Claimant can approach the Court notwithstanding the internal remedies provided under Section 13 of the University of Calabar Act. See Oko-Jaja v FCSC & Ors [2022] LPELR-57627 CA. On this ground this objection is hereby over ruled.

 

1. Having already held that the suit is statute barred having not been filed within the three (3) months allowed by Section 2 (a) POPA, I hereby upheld the Defendants/Applicants Notice of Preliminary Objection and accordingly this suit is hereby dismissed.

 

1. Ruling is hereby entered. There is order as to cost.

 

                                                                                           ……………………………………

                                                                     Hon. Justice E. D. Subilim

                                                                                    JUDGE