IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
BEFORE: HONOURABLE MR. JUSTICE SANUSI KADO
30TH DAY OF MAY 2019 SUIT NO: NICN/ABJ/348/17
CHIEF ENUKURA JOE OKOLI………………………………CLAIMANTS/ RESPONDENT
1. NIGERIA SOCIAL INSURANCE TRUST
FUND MANAGEMENT BOARD ………………………. Defendant/applicant
2. HON. MINISTER OF LABOUR & EMPLOYMENT …………….Defendant
3. ATTORNEY GENERAL OF THE FEDERATION ………………… defendant
C. K. Alabi, Esq; For the claimant.
Kenneth Iweka, Esq; For the 1st defendant
T. A. Adeyeye, Esq; For the 3rd defendant.
This deals with two notices of preliminary objections, the first argued, was the one dated 2/2/18 and filed on the same day by the 1st defendant. The second notice of preliminary objection was dated 26/1/18 and filed on the same day by the 3rd defendant.
The first defendant’s objection was brought pursuant to Order 18 Rule 2(2) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, section 2(a) of the Public Officers (Protection) Act and under the inherent jurisdiction of the court. The application is praying for:-
1. AN ORDER of this Honourable Court dismissing this suit for being an abuse of this Honorable Court’s process.
2. AN ORDER of this Honourable Court dismissing this suit for being statue barred.
3. AN ORDER of this Honourable Court dismissing this suit for lack of jurisdiction to entertain the Claimant’s suit.
4. AND SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance.
GROUND RELIED UPON:
1. That the Claimant in his reckless abuse of the Honourable Court’s process willfully, deliberately and intentionally suppressed materials, vital facts and information which, if presented, would enable the Honourable Court determine its jurisdiction Suo Motu.
2. That thus suit is only initiated to merely irritate, vex annoy, embarrass and harass the 1st Defendant.
3. That this suit is frivolous and an abuse of this Honourable Court’s process intended to manipulate the Course of Justice against the 1st Defendant.
4. That the Claimant had previously instituted a similar Suit the same subject matter and between the same parties at the Federal High Court in suit No: FHC/ABJ/CS/331/2010.
5. That the Federal High Court in suit No: FHC/ABJ/CS/331/2010 held that the action of the Claimant to be statute barrel and same was affirmed by the Court of Appeal in Appeal No: CA/A/417/2011.
6. That the Claimant/Respondent is currently on appeal against the decision of the Court of Appeal to the Supreme Court over the same subject matter for which the Claimant/Respondent has represented before this Honourable Court.
7. That the Claimant/Respondent is urging this Honourable Court to sit over the same subject matter he has place and is still pending before the Supreme Court.
8. That by virtue of the Public Officers Protection Act, the suit of the Claimant is statute barred.
9. That this Honourable Court lacks the jurisdiction to entertain claims bothering on recovery of debt.
The application is supported by a 26 paragraphs affidavit and a written address. Aaare Olumuyiwa Akinboro, SAN, representing the 1st defendant in his oral submission before the court relied on all the depositions contained in the affidavit in support. The Learned Silk also adopted the written address as his argument. In the written address three issues were formulated for determination they are:
1. Whether the instant Suit is competent in the face of a pending appeal before the Supreme Court on the same subject matter between same parties and on similar reliefs.
2. Whether the instant suit is not statue barred.
3. Whether the Honourable Court has the requisite jurisdiction to hear and determine the Claimant Suit.’
ARGUMENT IN SUPPORT OF ISSUES
‘Whether the instant Suit is competent in the face of a pending appeal before the Supreme Court on the same subject matter, between same parties and on similar reliefs.’
In arguing issue one, the Learned Silk, contended that it is a settled principle of law that judicial or Court process must be used bona fide, devoid of any malice or intention to irritate the other party to the suit instituting a multiplicity of suits against the same parties on the same subject matter claiming same reliefs’ amounts to an abuse of court process. Counsel placed reliance on the case of YAKUBU V. A.S. CO. LTD. (2010) 2 NWLR (PT. 1177) 167 AT P. 179, PARAS. E.H where the Court held as follows:
“Abuse of court process means that the process of court has not been used bona fide and property. It is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive. It is improper use of judicial process. In order words, when a parties improperly use the issue of judicial process to the irritation and the annoyance of his opponent, such as instituting multiplicity of action in the same subject matter against the same opponent on the same issue.’
It is submitted that from the fact of this case, the Claimant in the instant suit is also the Appellant in the Appeal pending before Supreme Court as shown in the affidavit in support of the Notice of Preliminary Objection and particularly paragraph 11 and Exhibit “E” attached thereto which clearly shows that the instant suit and the Appeal pending before the Apex Court is between the same parties, subject matter and reliefs claimed.
It is submitted that by instituting this suit, the Plaintiff is only trying to oppress and vex the Defendants whom he had earlier sued before the Federal High Court in suit No. HFC/ABJ/CS/331/2010 leading up to Appeal No. CA/ /A/417/2011 and a further Appeal currently pending before the Supreme Court of Nigeria on the same subject matter as this instant suit before this Honourable Court.
The Supreme Court in the case of DINGYADI V. INEC (No. 1) (2010) 18 NWLR (PT 1224) I at 75, Paras D.G. had this to say on the nature and characteristics of abuse of court process:
“Both Appeal, from the records, are between the same parties and on same subject matter. Haba! Can there be any thing more irritating and more frustration that this Forum Prostitution, to borrow the words of my learned brother, Adekeye, JSC? Where this happens, the court do not take it lightly as it is not a mere irregularly. It is a much more fundamental vice which is usually published with dismissal. It is rooted in public policy as expressed in the Latin maxim “Nemo Debet Bis Vexari Pro Una et Eadem Causa” i.e no one shall be subjected to defend the same cause twice, this should not be allowed as it amounts to a flagrant abuse of court process”
The Apex Court went further at page 76 and held thus:
“The Supreme Court, by virtue of its being the apex court and in exercise, of the general powers conferred upon it by the Constitution, the Supreme Court Act and the Rules, has a duty to arrest an unnecessary drift by any person pursuing a litigation before any court or court against which a complaint has been brought to the apex court”.
Counsel urged the court to in line with the decision of the Apex Court cited above arrest the instant suit by dismissing same due to the pendency of an Appeal at the Supreme Court as shown in paragraph 11 and Exhibit “E” attached thereto.
The Supreme Court in the case of ALIMS (NIG) LTD. v. UBA PLC (2013) 6 NWLR (PT. 1351) 613 at 629 paras. B-C held that:
“Prudence and judicious discretion makes it imperative that a trial Court should not interfere with the res in a suit which is subject of an appeal”.
“It is an abuse of court process for a party to institute a fresh action when an appeal against same is still pending”.
The apex Court was succinct when it addressed the issue of whether a party can file fresh action when appeal against same is pending in the case of ALIMS (NIG) LTD. v. UBA PLC. (SUPRA) AT. P 636 paras. D-E where it held that:
It is submitted that it is the duty of the Honourable Court to protect itself from abuse of its processes and verily punish litigants who seek to use the process of court mala fide. On this submission counsel placed reliance on the cases of BENAPLASTIC IND. V. VASILYEV (1999) 10 NWLR (PT. 624) 621 AT 628 PARA. H -629 PARAS. A-B Vaswalli Trading Co. v. Savalakh & Co. (1972) 1 All NLR (PT.2) 483, HARRIMAN V. HARRIMAN (1989)5 NWLR (PT.119) 6, OWONIKOKO V. AROWOSAIYE (1991) 10 NWLR (PT. 523) 61, SARAKI V. KATAYE (1991) 9 NWLR (PT. 264) 156, OYINLOLA, v. DAYO & ORS. (2013) LPELR-21565, DINGIYADI V. INEC (NO. 2) (2011) 18 NWLR (PT. 1224) 154 at P.20, paras. C-D,
In concluding his submission counsel argued that instituting a suit before this Honorable Court while an Appeal is pending on the same subject matter and between the same parties amounts to an abuse of the process of this Honourable Court and is therefore liable to be dismissed. Counsel urged this Honourable Court to so hold.
‘Whether the instant suit is not statute barred.
Counsel began argument on issue two by submitting that it is trite position of the law that parties in instituting their claim before a court of law must do same with utmost alacrity and promptness after the accrual of the cause of action. Hence, laws were enacted to ensure prompt approach to Courts. Where a party fails to institute an action within the time frame provided by the limitations s laws such an action is said to be statue barred.
It is the contention of counsel that a litigant or a party who claims to have a cause of action requiring redress by the court should endeavor to bring his action for such redress, within the statutory prescribed period and where he fails to do so, his action must fail for being statute barred. The cause of action in such circumstances are said to be stale and incompetent. The party is taken to be indolent and has slept on his alleged violated right by allowing grass to grow under his feet and not filing an action within the statutorily required period. On this submission counsel referred to the case of LAFIA LOCAL GOVERNMENT V. GOV. NASARAWA STATE (2012) 17 NWLR (PT. 1328) 94 AT PP. 135-136 PARAGRAPHS H-E. where the Supreme Court per Rhodes Vivour JSC held as follows:
“Limitation laws set out a period for different classes of cases. They provide that certain action shall be filled within a specified period to time after accrual of the cause of action. The main purpose of the limitation law is to protect a defendant from the injustice of facing a stale claim……where the plaintiff action was filed outside the time allowed by the limitation law; the plaintiff would still have a cause of action but sadly one that cannot be enforced.
It is submitted that the Claimant’s claim against the 1st Defendant in this suit is for an action or decision taken against the Claimant by a public officer way back in 2009 and therefore falls within the definition of an action against public officers provided for by Section 2 of the Public Officers Protection Act. Such action must be filed within a specific time, i.e., same must commerce 3 months next after the act. Section 2 (a) of the Public Officers Protection Act requires that an action against a public officer as in this case should be commenced within three months of alleged act complained of.
It is the submission of counsel that time begins to run for the purposes of this limitation law from the date the cause of action accrues. To support this view counsel relied on the cases of ASABORO V. PEN OCEANIC OIL. (NIG.)LTD. (2006) 4 NWLR (PT. 971) 595, JALLCO LTD. V. OWONI BOYS TECH. SERVICES LTD. (1995) 4 NWLR (PT. 391) 534 AT 538, HUMBE v. A.G., BENUE STATE (2000) 3 NWLR (Pt. 649) 419 at 433-434.
It is the contention of counsel that the crux of the 1st Defendant’s contention on this issue is that, the Claimant’s cause of action arose on the 28th September, 2009 and 11th January, 2010 immediately after he received the letters to proceed on leave and continue to stay on leave. These are the documents that supports the claimant’s averment in paragraphs 6 and 7of the claimants stamen of facts. However, the Claimant did not approach the court to ventilate his grievance until 10th May, 2010 when he filed an action before the Federal HIGH court Abuja in Suit No: FHC/ABJ/CS/331/2010 where the court held Inter Alia that the suit of the Claimant was statute Barred and the Court as a result did not have Jurisdiction to entertain same. The Claimant being dissatisfied with the ruling of the Trial Court appealed to the Court of Appeal in Appeal no. CA/A/417/2011 and the Court of Appeal upheld the Ruling of the Trial Court. To buttress his submission counsel refers this Honourable Court to the case of CHIEF ENUKORA JOE OKOLI V. NSITF & ANOR. (2016) (Unreported) CA/A/417/2011 ( which can be found in pages 80-19 of Exhibit “E”. Attached to the Claimants Affidavit) held thus:
“The factual situation to existence as disclosed by the Appellants’ statement of claim clearly disclosed that the cause of action arose on 28TH September, 2009 and 11th January, 2010. The learned trial Judge rightly held the suit instituted on 11/5/2010 to be statute barred.”
The court of Appeal in the above cited case, relied on the case of AKWA IBOM
STATE UNIVESTIYT V. IKPE (2016) 5 NWLR (PT. 1504) 146 AT 164, paras. C-E,
where it held that:
“The general principle of law is that where a statute provides for the instruction of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law.”
It is submitted that, from all the Claimant has put before this Honorable Court, the cause of action and the subject matter of this case is im parimateria with the Claimant suit in Suit No: FHC/ABJ/CS/331/2010. This is being the case, this court is entitled to apply the position of the Court of Appeal in appeal No: CA/A/417/2011 and hold that it is clear that the Claimant’s cause of action which arise on the 28th September, 2009 and 11th January, 2010, that same is statute barred and this Honourable Court has no jurisdiction to hear and determine same.
The above position is imperative as the Claimant’s Cause of action is Statute bared bad caught up by the doctrine of issue estoppel and as such cannot be reconsidered by this Honorable Court having been duly considered and determined by a Court of competent jurisdiction to suit No: FHC/ABJ/CS/331/2010.
It is submitted that this Honourable Court is further under a duty to hold that the cause of action of the Claimant is statute bared by the application of the doctrine of Stare Decisis. The cardinal principle on this age old doctrine is that, an inferior Court is bound by the decision of a superior court.
The Court of Appeal had this to say in the case of BONGO v. GOV., ADAMAWA SATE (2013) 2 NWLR (PT, 1339) 403 AT P. 444 paras. E-H where the held that:
“By doctrine of judicial precedence where facts in a subsequent case are the same, similar or close to facts in an earlier case that had been decided upon by judicial pronouncement they can be subsequently utilized to determine the decision in the subsequent case. Stare Decisis means abiding by a former precedent where the same points come again in litigation. It presupposes that the law has been declared & determined in the former case, thereby, in a hierarchical judicial arrangement; judges of subordinate courts are precluded from changing what has been determined by higher courts, courts of lower hierarchy are bound by decision of the higher courts where the facts are the same and similar.”
Counsel further referred to the case of KASANDUBU VS. ULTIMATE PETROLEUM LTD. (2008) 7 NWLR (PT. 1086) 274 AT P. 292 PARAS. B-C., Where in the court of Appeal heal as follows:
“When an action is statute bared by a specific or general legislation and the court holds that the cause of action by reason of the stature is barred having been filed out of time, the effect is that the right to enforce the action is totally lost as the jurisdiction of the court to entertain the claim has been ousted.
See also the case of NWAKA VS. H. O. S. Ebonyi State (2008) 3 NWLR (Pt.1072) 156 At 173 Paras C-D.
It is finally submitted on this issue that, this Honorable Court has a duty in law to follow the judgment of the court of Appeal in Appeal No: CA/A/417/2011 and not disturb its findings and hold that this Honourable Court lacks the jurisdiction to entertain the Claimant’s action, same being statute barred.
“Whether this Honourable Court has the requisite jurisdiction to hear and determine the Claimant’s Suit”.
It is the submission of counsel that Jurisdiction is everything, and without Jurisdiction, an action cannot survive. It is the blood that gives life to the survival of an action in a Court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and nay attempt to resuscitate it without infusing blood into it would be an abortive exercise. On this submission counsel relied on the case of UTIH V. ONOYIVWE (1991) 1 S.C. (PT.1 ) 61. Jurisdiction of court to hear and determine a matter has been held to be the life wire of very action. It is the foundation of all adjudication proceedings of a court conducted without jurisdiction, are null and void however well conducted. On this contention counsel relied on the cases of GALADIMA V. TAMBAI (2000) 11 NWLR (PT. 677) 1 AT 28-29 Paras. F-B, EZOMO V. OYAKHIRE (1985) 1 NWLR (PT. 2) 195, NDIC V. CBN (2002) 7 NWLR (PT.766) P. 272, SALEH V. MONGUNO (2003) 1 NWLR (PT. 801) 221.
Counsel also stated that jurisdiction is a thresh hold issue and is so fundamental that it can be raised at any stage of the proceedings. It can even be raised on appeal. Any of the parties can raise it or the Court can suo motu raise it. The reason is that if a Court hears a matter to conclusion when it has no jurisdiction, no matter how well conducted, the whole exercise is null and avoid. To support this argument counsel cited the case of OKONKWO VS. INEC & ORS. (2004) NWLR (PT. 854) 854 AMOO VS. ALABUI (2003) 2 NWLR (PT. 835) 537.
It is the contention of counsel that the National Industrial court is a Court of limited jurisdiction in terms of subject matter, as clearly spelt out in Section 254 (C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 21 (1) of the trade dispute Act and section 7(1) of the Industrial Court Act 2006. Its jurisdiction is limited to mattes closely related to labour and employment matters. The National Industrial Court cannot entertain any matter. In support of this submission counsel relied on the case of BISONG v. UNICAL (2016) LPELR-41246 (CA).
It is the contention of counsel that none of the above mentioned statutes contain any provision tending to confer Jurisdiction on this Honorable Court to entertain matters bothering on Debt recovery. Counsel was quick to state here that, the Rules of Court are subsidiary legislation which contain mere rules of procedure and practice governing administration of justice in the Court. The rules of Court cannot be applied in a manner to confer jurisdiction on, or enlarge the jurisdiction of the court, since the court cannot confer jurisdiction on itself and thereby usurping law-making authority or the legislature. In support of this view counsel relied on the case of OKEZIE V. FEDERAL ATTONERY-GENERAL & ANOR. (1979) 6-9 S.C. 1.
There is no gainsaying that parties cannot by consent confer jurisdiction on a Court, which it does not have by virtue of the statute setting it up. When the statute creating the Court confers it with jurisdiction over a particular subject matter, the claim of the Clamant must also be within the purview of the law. To buttress this argument counsel cited the case of AKPNA V. UNICAL (2016) LPELR-41242 (CA).
It is the submission of counsel that the Claimant’s relief (f) which is the only life relief claimed by that claimant is for recovery of debt and as such this Honorable Court has no jurisdiction to entertain same. The claim was reproduced as:-
“The sum of N244,069,656,32 being unpaid/withheld salaries, entitlement and benefits due and payable to the claimant as the managing Director/CEO of NSITF for the period may 2010 to February, 2014.
Counsel referred to definition of debt in the case of NIPOST V. I. E. CO LTD. (2006) 8 NWLR (Pt.983) 435 at 456 PARAS. A-C, and submitted that there is no doubt from the Claimant is seeking to recover a debt which he believes to be due and owing to him.
Counsel urged the court to find and hold that the Court lacks the Jurisdiction the entertain suits bothering on recovery of debt.
It is further argued that Jurisdiction is a threshold issue which must be given primacy of attention whenever it is raised at any stage or the legal proceedings. A court can be said to have Jurisdiction when the following conditions are fulfilled:
I. It is property constituted as regard members and qualification of the members of the bench and no members is disqualified for one reason or another; and
II. The subject matter of the case is within its Jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
III. The case comes from the court instituted by due process of law and upon fulfillment of any condition precedent to the exercise of Jurisdiction. All these requirements must co-exist conjunctively before the Jurisdiction can be exercise by the court, as held in MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341.
It is submitted that the second condition listed above, can only be determined by looking at the Claimant’s Complaint and to the reliefs sought therein. A quick glance at the Originating processes in this suit and those in Suit No: FHC/ABJ/CS/331/2010 will clearly show that the cause of action and subject matter of the Claimant’s suit before this Honorable Court has already been adjudicated upon by a Court of Competent Jurisdiction. Further, the decision of the trial Court declining Jurisdiction to entertain Suit. No: FHC/ABJ/CS/331/2010 was upheld by the Court of Appeal in Appeal No: CA/A/417/2011.
It is the contention of counsel that an issue once determined by a Court at Competent Jurisdiction remains binding on the parties and all persons until same is reversed by a superior Court. And aggrieved litigant should not be seen approaching a court of concurrent jurisdiction or a lower court (as in this case) with the same subject matter which has been decided upon.
Counsel submitted that, the jurisdiction of the National Industrial Court of Nigeria does not extend to sitting on appeal over the Judgment of the Court of Appeal. Further, The Constitution of this Country and the law and practice in the administration of Justice have vested in the aggrieved a right of appeal to a superior court against any decision in respect of which he is aggrieved on the grounds of law or face on which he considers the court is in error. It is submitted that the Claimant took a step in the right Direction by appealing against the decision in Appeal No: CA/A/417/2011 to the Supreme Court. However, his decision to bring the sane mater before this Honorable Court is simply untenable. Counsel contended that the subject matter of this case is not within the jurisdiction of this Court and that there are features in the case which prevents the court from exercising its jurisdiction.
Counsel urged the Court to resolve the issues in favour of the 1st defendant and decline jurisdiction in this suit.
THE 3RD DEFENDANT’S PRELIMINARY OBJECTION.
The notice of preliminary objection filed by the 3rd defendant is challenging the competence of the Claimant’s suit and the mis-joinder of the 3rd Defendant as a party therein. The Notice of Preliminary Objection is also supported by a 5 paragraph affidavit.
Henrietta Ekong, Esq; Counsel for the 3rd defendant in arguing the preliminary objection relied on the 5 paragraphs affidavit. Counsel also adopted the written address filed along with the NPO as his argument. In the written address counsel submitted three issues for resolution. They are:-
I. Whether the Claimant has proved any cause of action against the 3rd Defendant.
II. Whether the 3rd Defendant can be held liable for the action of the Nigeria Social Insurance Trust Fund, being a statutory body?
III. Whether this Honourable Court has the Jurisdiction to adjudicate on a statute barred suit.
4.01 ISSUE ONE
· Whether the Claimant has proved any cause of action against the 3rd Defendant?
In arguing issue one counsel submitted that a glance at the Claimant processes before this Honourable Court shows clearly that the Claimant suit has not disclosed any cause of action against the 3rd Defendant, the Honourable Attorney General of the Federation. The crux of the Claimant claim as captured in his Statement of Fact is that the Claimant alleged that he was unduly suspended and kept on suspension without any allegation as to the offence committed and that he was not paid for some period till his tenure expired. Throughout the gamut of the Claimant Processes, that is, the Writ of Summons, Statement of Fact, Witness Statement on Oath, and the document attached, (documents sought to be relief on by the Claimant), no cause of action is disclosed against the 3rd Defendant herein. In this case of the Claimant, the 3rd Defendant is a total stranger to the issues that transpired between these parties. Furthermore, it will be fair and in the interest of justice to have name of the 3rd Defendant struck as he has no business whatever in this suit.
It is the submission of counsel that a Cause of action is defined as the operative fact or facts (factual situation) which gives rise to a right of action which itself is a remedial right. It is the emergence of a factual situation which enables a party to an action in court to have a cause of suing a party. On this submission counsel relied on the cases of ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) II NWLR (PT. 1909) 539 at 551, paras. D-F, S.P.D.C. (Nig) LTD vs: X.M. FED LTD (2006) 16 NWLR (Pt. 1004) 189 (a) 200 (para e-a).
It is the contention of counsel that upon a perusal of the Claimant processes and all the documents upon which the Claimant hinged their cause of caution in this suit, there is no dispute between the Claimant and the 3rd Defendant. Counsel argued that this suit is just an attempt by the Claimant to drag the Attorney-General of the Federation into a contrived suit, seeks sympathy of the honorable Court to grant all the Orders sought in this application. Counsel maintained that a perusal of the entire case of Claimant has shown that the Claimant process disclose no cause of action whatsoever nor did any of those processes disclose any reasonable cause of action against the 3rd Defendant. In other words, none of the said processes disclosed any wrongdoing or omission whatsoever done by the 3rd defendant or any intended action or omission of the 3rd defendant or any agent of the 3rd Defendant that will be predication to the Claimant in any way.
It is submitted by counsel that where a party fails to disclose any cause of action in a suit against a party, no further evidence shall be required to determine that action against such party. On this submission counsel cited the cases of TABIOWO V. DISU (2008) 7NWLR (PT.1087) 533 at 545-546, paras. H-A, ORJI V. UGOCHUKWU (2009) 14 NWLR (PT.1161) at 284 para A. counsel submitted where there is absence of cause of action in a suit the court is divested of jurisdiction to entertain the matter. Counsel submitted that the Claimant having failed to disclose any cause or reasonable case of action against the 3rd Defendant, this Honourable Court is urged to strike out the Claimant, on this ground of non-disclosure of cause action or reasonable cause of action.
· Whether the 3rd Defendant can be held liable for the action of the Nigeria Social Insurance Trust Fund been a statutory body?
In arguing issue two, counsel submitted that from the entirety of the Claimant’s processes before this Honourable Court, the remedies sought by the Claimant are all tailored towards the Nigeria Social Insurance Trust Fund and the 2nd Defendant, not the 3rd Defendant, the Attorney-General of the Federation, hence there is no legitimate claim against the 3rd Defendant and he is just here as a spectator and ought to be struck out, we urge your Lordship in the face of the Claimant’s claims to strike out the name of the 3rd Defendant as he is neither a necessary party nor is the liable for the act of a statutory body.
It is also argued that, in addition, Section 2(1) Nigeria Social Insurance Trust Fund Act established the Nigeria Social Insurance Trust Fund Management Board as a body organized and to carry out its independent functions. It established the fact that the Nigeria Social Insurance Trust Fund Management Board is a statutory body and thus liable for their actions.
Counsel contended from the case at hand, it is crystal from the claims and reliefs of the Claimant, that none were made against the Federal Government or the Attorney-General of the Federation. In view of this, it will work injustice to make the 3rd Defendant liable for act not done by him or the Federal Government. The Supreme Court in 2007 settled this issue on when the Attorney -General can be righty joined as a party in a suit in the case of the case of ATTORNEY –GENERAL OF KANO STATE V. ATTORNEY –GENERAL OF THE FEDERATION (2007) 6 NWLR (Pt. 1029) page 164 SC, in the words of U.A. KALGO J.S.C (as the then was ) noted as follows:
“it is not in dispute that the Attorney –General of the Federation can be sued as a defendant in all civil matters in which a claim can properly be made against the Federal Government or any of its authorities agencies, arising from any act or omission complained of. See Ezomo v. A-G….Bendel State (1986) 4 NWLR (pt. 36) 448. The Inspector – General of Police, Force in Nigeria. It is a force recognized by the State and Federal Governments of Nigeria and it’s a separate body created by the Constitution with special powers and responsibilities and can properly be sued. (See section 214-216 of 1999 Constitution and Police Act. CAP. 359 of Laws of federation, 1990).
As stated earlier Attorney –General of a state or the Federation can be sued in any civil claim or complaint against the Government of a state or the Federation as the case may be, but this can only properly happen where the claim or complaint is directly against the state or Federal Government concerned. In this case, the Federal Government was not directly concerned and no relief was sought against it by the plaintiff in the action. The provisions of section 232 of the 1999 constitution under which this action is purported to the instituted cannot therefor in my view be applicable here. I accordingly to hold.”
Counsel submitted that in line with the decision of the Supreme Court above that no claim in this suit was made against the Federal Government or the Attorney–General of the Federation. Therefore, counsel urged this Honourable Court to strike out the name of the 3rd defendant in this suit.
It is further argued that the Supreme Court has also gone further to address this position in the case of ATTORNEY-GENERAL OF ABIA STATE V. ATTORNEY-GENERAL OF THE FEDERATION (2007) ALL FWLR (Pt. 362) 1818, the Supreme Court in a lead judgment delivered by Walter Samuel NkanuOnnoghen, J.S.C. held that:
“Can it be said that the facts pleaded in the Statement of Claim disclose any dispute between the plaintiff and he defendants in this action within the meaning at the said section 232(1) of the 1999 Constitution? The answer is clearly in the negative. There is no single complaint against the 1st defendant as representation the Federal government in this action neither is there any complaint against the other activities of the Economic and Financial Crimes Commission (EFCC) or its agents in the exercise of the functions conferred on the organization by law. The law recognizes the fact that in the exercise of such functions, as those of EFCC. The officers might breach certain individual or corporate right which would necessitate initiation of legal action to secure redress that is why section 2(a) and (b) of the EFCC Act, 2004 clearly clothes the said commission with legal-personality thereby making it possible for it to sue and be sued where the circumstances….”
Counsel contended the import of the above decision is to the effect that when statutory bodied are sued and the claims therein are clearly Against them and not the Federal Government, then the Attorney -General has no business been join as a party in such suit. Counsel urged the court to in the interest of justice to strike out the name of the 3rd Defendant as no relief is sought against his office or the Federal Government.
It is also submitted that in the case of THE ATTORNEY –GENERAL OF ANAMBRA STATE V. THE ATTORNEY –GENERAL OF FEDRAL REPUBLIC OF NIGERIA & ORS. (2007) ALL FWLR (PT. 379) 1218 at 1249 – 1250 Paras F-B (SC), the Apex Court per Mukhtar, JSC also noted on this care as follows:
‘’The Attorney –General of the Federation can be sued as a defendant in all civil matter in which a claim can properly be made against the Federal Government or omission of its authorized arising from any act or omission complained of in the instant case, the Attorney –General of the Federation is not a proper party to the suit as the plaintiff’s claim as constituted cannot be effected against the Federal Government. The proper body to sue is Independent National Electoral Commission (INEC) which is a corporate body capable of suing and being sued. See Ezomo v. Attorney –General Bendel State (1986) 4 NWLR (pt. 36) 448. ATTORNEY –GENERAL KANO STATE V. ATTORNEY –GENERAL (2006)6 NWLR (PT. 1029) 164. (2007) ALL FWLR (PT. 364) 238.
Counsel contended that as has been expounded by the Apex Court that once there is no claim against the Federal Government, the Attorney –General of the Federation of the Federation has no business being joined as a party as he is not a proper party in such situation.
In the light of the above, counsel urged the court to strike out the name of the 3rd Defendant with substantial cost.
· Whether this Honourable Court has the Jurisdiction to adjudicate on a statute barred suit.
On issue three, counsel submitted that the position of the law is to the effect that when any action is statute barred, which is always as to time to institute a particular proceeding in court, anything done after the expiration of the time specified in the law will be to no avail and the court will be striped of jurisdiction to adjudicate such suit. This was the position of the Supreme Court in the case of ARAKA V. EJEAGWU (2000) LPEPR-533(SC). (2000) 12 S.C. (PART I)99, WHERE PER KALGO J.S.C. (as he then was) noted in P.47, Paras A-C as follows on the effect of statute of limitation.
“What then is statute bar and of what effect is it? In my interpretation “statute – barred” simply means barred by a provision of the statute. It is usually as to time i.e the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period id of no avail and has no valid effect, the bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid, and the court will treat as such.”
It is the contention of counsel that from the above Supreme Court decision. It is crystal clear that once a matter is statute barred by a law, the only escape is an extension provision by that some law. However, where the law or rules as it were does not provide for such extension then any action taken will be deemed to be invalid.
The provision Section 2(a) of the Public Officers Protection Act. Which provides as follows:
“Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act . law, duty or authority, the following provisions shall have effect-
(a) the action, prosecution or proceeding shall not lie or be institute 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”
it is the submission of counsel that from the facts of this case, the subject matter complained about and the issue leading to this application occurred on the 28/09/2009. The Claimant did not instate this action until the 30th November, 2017. He rather chose to sleep on his right. In addition, the Applicant failed to institute this application until he was caught in the web by the provisions of Section 2(a) of the Public officer Protection Act, hence equity aids the vigilant and not the indolent.
It is submitted that failure of the Claimant to institute this action as at when due is fatal to his case and authorities are legions on this. In the case of A-G OF ADAMAWA STATE & ORS V. A.G. OF THE FEDERATION (2014) LPELR – 23221(SC), Per PETER-ODILI, J.S.C. (Pp. 29-30, paras. FC) noted as follows on the true of statute of limitation:
“In respect of the limitation law and an action being statute barred. I shall refer to the case of United Bank for Africa Limited v. Michael O’ Abimbola & Co. (1995) 9 NWLR (Pt.419) 371 (CA) Tanko Muhammad, JCA (as he then was) held: Where an action is statute barred, a Plaintiff who might have had a cause of action loses the right to enforce the cause of action by the Limitation Law for instituting such an action has elapsed. Thus, an action commenced after the expiration of stipulated in a statute of limitation is not maintainable, Stated differently, when the statute of limitation in question prescribes a period within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649”.
It is submitted that the effect of the above is that even though the Claimant has a legitimate claim as it is in this instance case he automatically loses the same as a result of the principle.
In determining the period before an action can be said to be statute barred, the Supreme Court in the case of HASSAN ALIYU & ORS (2010) 17 NWLR (pt. 1223) 547 S.C . Per Adeleke, J.S.C. (P, 81, paras. D-F) held as follows:
“In order to determine the period, consideration must be given to the writ of summons and the statement of claim alleging when the wrong was committed and by campaign that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ of summons is beyond the period allowed by the limitation law then the action is statute-barred.
In view of the submission of the 3rd Defendant canvassed above, counsel submitted that the case of the Claimant should be dismissed for lack of jurisdiction of this Court. Counsel further urged the Court to uphold the argument and dismiss this application.
On the effect of statute bar on the legal right litigations, the Supreme Court in the case of INEC v. OGBADIBO LOCAL government & ors (2015) LPELR – 24839(SC), Per ONONGHEN, JSC(P.35 paras D-F) noted on the remaining right of a litigant (if any) when caught in the web of limitation of action as follows:
“It is settles law that a limitation law, such as the provisions of Section 2 (a) of the Public Officers Protection Act, takes away the legal right of a litigant to enforce an action leaving him with an empty shall of a cause of action where the action is not instituted within the time from enacted in the statute of limitation. Where the action is instituted outside the time so allotted by the statute, we say that the action so institute is statute-barred and cannot be maintained since it robs the court of the jurisdiction to entertain and determine same.”
Furthermore, in the Supreme Court case of OSUN STATE GOVERNMENT V. DALAMI NIGERIA LTD, (2007) ALL FWLR (PT. 365) 439 AT 450 PARAS G-H (SC) PER KASTINA-ALU, JSC (as the then was) noted as follows:
“Where a statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is commenced after the prescribed period is said to be statute barred. See Ibrahim v. J.S.C. (1998)14 NWLR (Pt. 584) 1.”
It is contended that from the totally of the Claimant’s application, it is clear that his action is statute bared because he slept on his rights and cannot be asking this Honourable Court to do the impossible,
In concluding his submission, counsel urged this court to dismiss the case of the claimant for being statute barred.
THE REACTION OF THE CLAIMANT.
In response to the Notice of Preliminary Objection, of the 1st defendant, the claimant filed a 14 paragraphs counter-affidavit deposed to by Henry Kelechukwu Eni-out, a legal Practitioner with Law Firm of Counsel to the claimant.
Patrick I. N. Ikwueto, SAN, counsel for the 1st defendant in oral adumbration, relied on the averments contained in the counter-affidavit. The Learned Silk also adopted the written address filed along with the counter affidavit as his argument. In the written address, counsel adopted the three issues formulated by counsel for the 1st defendant.
Whether the instant Suit is an abuse of court process in the light of the circumstance of instant case
In arguing issue one, counsel contended that abuse of court process is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice. The employment of judicial process is only regarded generally as an abuse when the party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. On this contention counsel relied on the decisions in C.B.C V. AHMED (2001) 11 NWLR (PT. 724) 369 and that of OKORODUDU V. OKOROMADU (1077) 3 SC 21
Counsel posited that before replying on the main crux of the issue one as argued by the Counsel to the 1st Defendant/Applicant, it is important to make some salient and important clarifications.
Counsel then began by submitting that it is long settled and established that an Appellant can withdraw his appeal before the appellate Court after an appeal has been entered by filing a Notice of withdrawal and its effect is that of a dismissal or strike out depending on the period of the withdrawal whether after the exchange of brief of arguments amongst the parties or before. On this contention counsel placed reliance on the case of Ezomo v. A.G., Bendel State (1986) 4 NWLR (PT. 36) 448 AT 462, where the Supreme Court stated thus:
“Having held that the withdrawal notice filed by Mr. Obaniyi was validly filed. Order 3 rule 18 of the Court of Appeal Rules would automatically take effect. By sub-rule 5 of Rule 18:
An appeal which has been withdrawn under this Rule, whether with or without an Order of the court shall be deemed to have been dismissed.
This sub-rule 5 is in identical terms with Order 7 of Rule 17 (5) of the Supreme Court Rules, 1977 and the current Order 8 rule 6(5) Supreme Court Rules 1985. The effect of the withdrawal notice filed by Mr. Obaniyi, in my view, was to terminate the appeal filed against the judgment of the High Court with or without an order of Court.”
It is relevant to state that order 18 rule 5 is identical with Order 8 of the Supreme Court Rules 2-14.
It is submitted without equivocation that the 1st Defendant/Applicant intends to mislead this Honourable Court on the true state of affairs in respect of the said Notice of Appeal earlier filed before the Supreme Court. This is more evident by the fact that the 1st Defendant/Applicant’s Counsel is in receipt of a duty filed Notice of Withdrawal of Appeal dated 10th of November, 2017 and filed on same day.
The said Notice of Withdrawal of Appeal was attached to the counter affidavit as Exhibit CR 1.
Furthermore, the Apex Court in EDOZIEN Vs EDOZIEN (1993) 1 NWLR (Pt. 272) 678 per His Lordship, Olatawura, JSC also posited thus: “There can be no better manifestation of intention to withdraw an appeal than an appeal withdrawn by the appellant or one of the Solicitors briefs by the party withdrawing the appeal. The Court will believe in the sincerely of that intention.”
In DINGYADI v INEC (No. 2) (2011) 18 NWLR 154 at 192-193, the Supreme Court explicitly stated thus: “Be it noted that rule 6 (5) of the rules make any withdrawal of appeal as envisaged under rule 6(1)(2) and (4) conclusive with or without the consents of other parties in the appeal. See Ndigwe v Ndigwe (Supra). I also take that view as can be seen from my grouping of the acts of withdrawal of appeal into 3 groups as above and thus I have given the provision of rule 6(1), (2) and (4) serious scrutiny vis-a-vis rule 6(5) in order to avoid any obvious absurdity otherwise. To examine more closely the instant notice of withdrawal of appeal under rule 6(1), I have adverted to the provision of the said rule 6(1) as set out above; it is clearly plain, clear and unambiguous; and it contemplates a situation where the appellant is minded unilaterally to withdraw the appeal so that before the listing of the appeal for hearing in court be serves on the respondents a notice of withdrawal of appeal and files same with the Registrar of the court. It is clear that in construing rule 6(1) an appellant must evince an avowed intention to withdraw the appeal. Having outlined the above pre-conditions for invoking rule 6(1) it is the case of the appellants of having met the preconditions firstly, by serving the notice of withdrawal of appeal filed on 8/8/2010 on the respondents and having filed the same in this court before the date the appeal is listed for hearing and so, have satisfied the pre-conditions as stipulated under rule 6(1) of the rule. In that wise by community reading of rule 6(5) conjunctively with rule 6(1) together they submit that the instant appeal is deemed as having been withdrawn a albeit unilaterally….. I have no differently in my mind holding also on a community reading of rule6(1) and (5) together that the instant appeal has been withdrawn completely as clearly provided by rule 6(5) as the appeal has effectively withdrawn as per rule (6) (1) and so has been rightly deemed to have been dismissed.” SEE ALSO: YOUNG SHALL GROW MOTOR LTD. V. AMBROSE O. OKONKWO & ANOR (2010) 3 SCJN 396 AT 409-412; (2010) 15 NWLR (Pt. 1217) 524 AT PARAS A-B; G-H
Learned Silk contended that from the above authorities, there is no gainsaying, that the Appeal No. SC. 956/2017 has been effectively withdrawn completely as per Order 6 rule 1 of the Supreme Court Rules 2014 and in effect has been rightly deemed to have been struck out. The facts already deposed in the affidavit and evidenced in Exhibit CR 1; shows that the argument and submission of counsel to the 1st Defendant/Applicant on abuse of court process is both preposterous and misconceived as in the present suit a notice of discontinuance has been filed even before the exchange of briefs of argument, hence based on the earlier cited authorities stands struck out without necessarily any order of court needed.
Counsel urged the court to hold that the instant action cannot amount to an abuse of court process as there is no pending suit for which the 1st Defendant/Applicant can claim the instant action as being an abuse of court process.
Reverting to the crux of the argument of 1st Defendant/Applicant, the Learned Silk, submitted that assuming without conceding that the appeal previously before the Supreme Court is still subsisting, it is submitted that the two suits do not amount to an abuse of court process. It is the contention of counsel that the principle of abuse of court process is one which has long been settled as to what would tantamount to same. The Supreme Court in SARAKI v KOTOYE (1992) 9 NWLR (pt. 264) 156 at 188 held thus:
“It is recognized that the abuse of the process may lie in both a proper or improper use of the judicial process in litigation. But the employment of judicial process to only regarded generally as an abuse when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent, and the efficient and effective administration of justice. This will arise in instituting a multiplicity of action on the same subject matter against the same opponent on the same issues. See Okorodudu v. Okoromadu (1977)3 S.C 21, Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170. Thus the multiplicity of action on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.”
In UMEH v IWU (2000) 8 NWLR (Pt. 1089) 225 at 243 the Supreme Court in elucidation of the term abuse of court process held thus:
“Abuse of court process therefore simply in practical sense denotes a situation where a party has instituted a multiplicity of suits against the same opponent in respect of the same subject matter and on the same issues. This manner of using court process as obviously lacking in bona fide leads to the irritation and annoyance of the other party and thus impeding due to administration of justice. See Okorodudu v. Okoromadu (1977) 3 SC 21.
Therefore, to sustain a charge of abuse of process as in the instant suit there must coexist inter alia:
(1) A multiplicity of suit;
(2) Between the same opponents; and
(3) On the same subject matter; and
(4) On the same issue”
Counsel also cited AGWASIM v OJICHE (2004) 10 NWLR (Pt. 882) 613 at 624.
It is the contention of counsel that a perusal of the affidavit of the 1st Defendant/Applicant particularly paragraph 13 and the argument proffered in paragraphs 3.02, 3.03, 3.04, 3.06 and 3.11 of the Counsel to the 1st Defendant/Applicant in their written address in support of their notice of preliminary objection would show clearly that the argument and action between the same parties, same reliefs and on same subject matter cannot stand. Without equivocation this argument holds no water as the reliefs, issues and cause of action in the present suit are radically and patently different from the previous Suit No: FHC/ABJ/CS/331/2001. The subject matter in Suit No. FHC/ABJ/CS/331/2010 is for the reinstatement of the Claimant herein as the Managing Director, payment of the salaries, benefits and allowances due and payable to the Claimants as the managing Director/CEO of the 1st Defendant for the period of May, 2010 to February 2014. Hence the Condition precedent as reiterated in a list of cases on the head of multiplicity of suit fails in toto.
In the case of DONARLD SALEH (2015) 2 NWLR (PT 1444) 529 AT 568 Paras G-H, the court held that:
“There is no hard and fast rule in determining the absence or presence of abuse of court process in any action. Rather, the court is enjoyed to examine each case predicated on its facts and circumstance, in order to ascertain if its exhibits as abuse of court process.”
It is conceded that some of the parties in suit No. FHC/ABJ/CS/331/2010 (which culminated to Appeal No. SC.956/2017) are the same as the instant suit and set of facts are similar, however, these alone to do not establish the allegation of abuse of court process. From a thorough examination of the claim in suit No. FHC/ABJ/CS/331/2010 (which culminated to Appeal No. SC. 956/2017and the instant suit, there is no doubt that the causes of action and issues differ. To this extent, the 1st Defendant has failed to show how the Claimant’s’ suit with a different cause of action has used this Suit to the irritation and annoyance of the 1st Defendant and hindered the efficient and effective administration of justice.
Respectfully, the relevant question at this particular juncture is whether: Suit No. FHC/ABJ/CS/331/2010 (which culminated to Appeal No. SC 959/2017) and the instant suit is aimed at achieving the same purpose?. From an examination of the claims filed in Suit No. FHC/ABJ/CS/331/2010 and in the instant suit, answer is in the negative.
In C.O.M. INC, v COBHAM (2006) 15 NWLR (Pt. 1002) 283 AT 305-307 the Court of Appeal held thus: “It is not law that once a party filed another suit before another court on the subject matter, there is an abuse of court process. An act can give rise to different. Rights….. A comparative analysis of both claims HC/492/2001 and MC/628/2001 clearly reveal that the parties in the two suits are different and they are apparently not the same….. Secondly, the issues in suit No. HC/492/2001 are more than the lone issue in Suit No. HC/492/2001 are more than the lone issue in suit No. MC/628/2001. Although, all the issue are from the same subject matter they are not dealing with the same rights. Different suits can emanate from the same subject matter but with different rights and reliefs.”
The Supreme court in UMEH V. IWU (2008) 8 NWLR (Pt. 1089) 255 at 246 para A-B AND C-F where Chukwuma-Eneh, JSC, further held thus,
“The aforesaid two suits are founded on two separate and distinct cause of action. They have given rise to two separate and distinct reliefs. I have also showed that there no ground contending that the disposal of any of the suits will completely dispose of the issue for determination in the other suit. And so, any pronouncement in the instant suit will have no effect whatever on suit No FCT/HC/CV/278/2005. To establish whether or not there is an abuse of court process the Court should ask itself whether the person has multiplied his actions simply to irritate, harass and annoy the opponent and if he has acted from improper motives or wanting in bona fide. There is no proof that the Plaintiffs have intended to irritate or annoy the Defendants by filing this action, the instant a suit cannot therefore be said to be vexation. It is on the foregoing grounds that I dismiss the Appellant’s main contention.”
Counsel also cited the case of N.I.D.C. V. U.B.N. PLC (2015) 12 NWLR (PT 1473) 246
It is submitted the authorities and submission made above and pray that Honorable Court dismiss the argument as proffered under issue on of the 1st Defendant/Applicant Counsel’s written address and uphold the submission made herein that the present suit as presently constituted is not an abuse of court process nether was it frivolous, vexation or brought mala-fide.
Whether the instant suit is statute barred.
On issue two, the Learned Silk submitted that the trite and established principle of law on statute limiting the time period upon which an aggrieved party shall institute a matter against some already listed class of persons remains sacrosanct and immutable, however same does not go without its exceptions also provided by the Public Officers Protection Act LFN 2004.
Counsel referred to the provisions of Section 2 Public Officers Protection Act and submitted that the Supreme Court has in a plethora of cases expantiated and expounded on the said provision as well as its exceptions. In A-G Rivers v. A-G Bayelsa (2013)3 NWLR (Pt. 1340) 148 paras F-A the Apex Court held thus:
“The Pubic Officers (Protection) Act is intended as much as within the limits of the law protect a public officer from detraction and unnecessary litigation but never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice. That is why where officers or heads of agencies of the Federation or State are protected; two most important exceptions are prescribed by the Act, namely:
Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. In the instant case, from the amended statement of claim and as equally deposed to in his counter-affidavit, the plaintiff averred that he continued to be deprived of the allocation he was entitled to every month and the same had not ceased. In such a situation of continuance of damage or injury which has not ceased, the defence was not available to the 1st defendant. Where such allegation of continuing damage or injury has been raised, I such a situation there is the need for the trial court to take evidence before determining the point. Thus, the plaintiff’s action falls squarely within this exception as the damage and injury against it was continuing.
The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the plaintiff in this suit. In the instant case, paragraphs 15,38 and 46 of the amended Statement of Claim and paragraphs 6(i)-(iii), 7-9 of the counter-affidavit alleged that the 1st defendant had perpetrated fraud and deception on the authorities to gain access to funds it was not entitled to under the Constitution. The 1st defendant could not avail itself of the defence under the Act, if it stepped outside the colour of its office, or its statutory or constitutional duties, if any. The Supreme Court must look into the issue and would not wave of hand deprive the plaintiff its legal capacity to ventilate its grievance.” See alos: Nwankwere v. Adewunmi (1967) NMLR 45 at 49; Anozie v. Attorney –General of the Federation (2008) 10 NWLR (Pt. 1095) 278a at 290-291.
Counsel contended that the Apex Court earlier in A-G RIVERS v. A-G BAYELSA (Supra) had posited thus:
“The Public Officers (Protection) Act is intended as much as within the limits of the law to protect a public officer from detraction and unnecessary litigation but never intended to deprive a party of a legal capacity to ventilate his grievance on the face of stark injustice.”
It is the submission of counsel that the exception provided by the Act and expounded by the Supreme Court in A-G RIVERS v. A-G BAYELSA (Supra) applies to the instant case.
Firstly, the damage sought to be redressed by the Claimant which is the neglect and failure of the 1st Defendant to pay the Claimant’s salaries, allowance and statutory benefits are of a continuous nature, hence the principles of statue bar is not applicable. It is further contend that the continuance of the damage or injury constitute an exception to the general rule.
It was held in: OBIEFUNA Vs. OKOYE (19610 All NLR 357 at 360 that: “Continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury.” See OLAOSENIKAN Vs. WILLAIMNS (1996) 5 NWLR (Pt. 449) 437 (a)456
Counsel posited that it may be the Defendants’ argument that the Claimant had failed to take any action to claim his salaries, allowances and benefits since the 1st Defendant ceased payment of salary. However, it is our contention, that the Plaintiff filed an action before the federal High Court in Suit No. FHC/ABJ/CS/331/2010 in May 2010 and same has culminated into Appeal No.SC. 956/2017. The said Appeal No. SC. 956/2017 has recently been withdrawn by Notice of withdrawal of Appeal dated 10 November 2017.
It is quite instructive to note and reiterate that the 1st Defendant/Applicant’s Counsel have by paragraph of their written address admitted to the fact that one of the reliefs particularly (F) of the Claimant’s relief is very much alive.
Secondly, in this present suit, it is abundantly clear and undisputed that the action of the defendants particularly that of the 1st Defendant/Applicant in sending the Claimant on an indefinite leave was done without any dint or iota of vires, powers, jurisdiction or scope within the express provisions of the NSITF Act, Hence neither the 1st Defendant/Applicant and of course in this instance any of the Defendants can reply on the defence of statute bar or limitation of actin by reason of the Public Officers (protection) Act heavily relied upon by the 1st Defendant/Applicant.
It is the contention of counsel that the radical issue arising from the Claim of the Claimant in this suit is whether the letter directing him to proceed on leave pending the outcome of an investigation into a phantom allegation amounts to termination of the Claimant’s appointment.
Indeed, the pertinent question is whether from the provisions of the NSITF Act which regulates the appointment of the Claimant as the Managing Director of NSITF, by merely instructing/directing the Claimant to proceed on leave, the statutory appointment of the Claimant could legitimately be described as having been terminated.
A perusal of the letter of appointment of the claimant, the NSITF Acts as well as the Conditions of service for Managing Director/CEO and Executive Directors of Nigeria Social Insurance. Trust Fund explicitly without equivocation states and provides that the appointment of the Claimant/Respondent shall be by the President and Commander-Chief of the Armed Forces of Nigeria as well as his removal from the said office and nothing more. However, a painstaking perusal of the various letters by the 1st Defendant/Applicant to the Claimant/Respondent would show a stark absence of that Presidential approval as statutory provided hence making the said action and omissions of the 1st Defendant/Applicant ultra-vires its powers therefore off the colour of their powers.
It is submitted that where an employment is with statutory flavour and or governed by statues such an employment can only legitimately be terminated and or determined in accordance with the statute See Shitta Bey. V. Federal Civil Service Commission (1981) 1 SC 40; (1981) LPELR-SC.57/1980.
Counsel referred to paragraphs 6,7,9,10,11,,13,14 (a-g) and 16 and submitted that it can be gleaned from the said paragraphs that the defendants particularly the 1st and 2nd Defendants acted out in bad faith and with no semblance of legal jurisdiction particularly.
Whether this Honorable Court has the requisite jurisdiction to hear and determine the Claimant’s Suit.
On issue three counsel submitted it is elementary that jurisdiction is lifewire of an action, the blood that gives life to the survival of an action and needs no further adumbration. UTIH V. ONOYIVWE (1991) 1 S. C (PT.1)61 reied upon on this contention.
Counsel contended that there are conditions precedent to jurisdiction as laid down in the case of Madukolu V. Nkemdilim (1962) 2SCNLR 341. The law its indeed trite that a court is only competent to exercise jurisdiction in respect of any mater where-
1. It is property constituted as regard numbers and qualification of its members and no member is disqualified for one reason or the other.
2. The subject matter of the case is within jurisdiction and three is an feature in the case which prevents the court from exercising its jurisdiction.
3. The case comes by the process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Counsel referred to the provision of Section 254(C)(I)(K)of the 1999 Constitution (As amended) expressly provides for the jurisdiction of this Honorable Court. “relating to or connected with disputes arising from payment or non-payment of salaries, wages pensions, gratuities, allowances, benefits and any other entitlement of any employee, workers, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and maters incidental thereto”
Counsel submitted it is crystal clear that the Claimant is well within the borders, jurisdiction and powers as conferred on the National Industrial Court of Nigeria by the grundnorm of our country to institute the present action. With respect, the arguments, depositions, submissions of Counsel to the 1st Defendant/Applicant particular in paragraph 5,08-5.11 about the instant action being an action foe debt recovery is extremely and unfortunately misconceived either intentional or by omission in other to mislead this Honourable Court.
Counsel contended that to put into better perspective the submission and arguments of Counsel to the 1st Defendant/Applicant in paragraph 5.13 we commend the Supreme Court case of APGA VS SENATOR CHRISTIANA N.D. ANYANWU & 2 ORS (2014) NWLR (Pt. 1407) on that point.
“Jurisdiction is so fundamental that once the court’s jurisdiction to hear a mater is challenged, it must be dealt with and resolved first before any other step in the proceedings. It is because it is so fundamental that it can be raised at any time, in any manner and at any stage of the proceedings. “PER MOTONMORI OLATOKUNBO KERE-EKUN, JSC (PP 565-556 paras. H-C)
“The law is that where the court lacks jurisdiction to certain a cause or mater, the entire process, no matter how well conducted, is an exercise in futility, for the proceeding are a nullity ab initio. “PER MOTONMORI OLATOKUNBO KERE-EKUN, JSC
“The law is settled that in determining the jurisdiction of a court to entertain a cause or matter, the processes to the considered by the court are the processes filed by the plaintiff or applicant i.e the writ of summons and statement of claim, or as in the present case the originating summons and its supporting affidavit. ““PER MOTONMORI OLATOKUNBO KERE-EKUN, JSC (PP 573-574) paras H-A- SEE ASLO: INAJOKU v. ADELEKE (2007) 4 NWLR (Pt. 1025) 427: ELEBANJO v. DAWODU (2006) 15 NWLR (Pt. 1001) 76; TUKUR V. GOV., GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517.
From the above, it can be gleaned that the proper process or possess that should be perusal is the Claim and or the reliefs ought therein and the Claimant’s Statement on Oath.
A painstaking look at the Statement of Facts filed by the Claimant in the instant suit and the reliefs contained therein viz-a-viz the reliefs contained in the Writ of Summons in Suit No. FHC/ABJ/CS/331/2010 being referred to by Counsel to the 1st Defendant/Applicant, it will be seen that they are a world apart like the day and the night that can never be compared.
It therefore flows from the foregoing that the position, submission and argument of the 1st Defendant/Applicant Counsel in paragraphs 5.14, 5.15, 5.16, 5.17, 5.18, and 5.19 are not applicable, superfluous and generally misconceived as no Court of competent jurisdiction has at any time whatsoever adjudicated or determined any of the issues or reliefs as presently constituted in the present suit between the same parties.
The Supreme court in NTUKS v. NPA (2007) 12 NWLR Pt. 1051 392 at 417 paras B-C reiterated thus:
“The rule is that a final judgment rendered by a court of competent jurisdiction on the merit is conclusive as to the rights of the parties and their privies, and as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.”
According to counsel it could be gleaned from the above dicta that for the pleas of res judicata impliedly submitted by the 1st Defendant/Applicant counsel in his address that assuming without conceding that the previous case applies as res judicata as claimed the said judgment must have been one determined on the merits of the case, where issues have been canvassed and ruled one way or the other (this is not the case in the present situation). Furthermore, same must have been between same parties for the avoidance of repetition same had already been stated earlier in this address as not been the case presently and the issues must have as well been same as not also the case in the present case.
Counsel urged the court to so hold that the defence of res-judicata cannot apply in the present case as wrongly envisaged by Counsel to the 1st Defendant/Applicant in his address.
It must further be buttressed that the address of counsel no matter how beautiful or perfectly articulated cannot take the place of evidence. See: ADEGBITE v. AMOSU (2016) LPELR-40655 (SC) P. 10 Paras. B. it is submitted that all adumbrations of Counsel to the 1st Defendant/Applicant in his address are arguments without evidence, a juxtaposition of the affidavit in support of the preliminary objection does not in any of its paragraphs depose or allude to the fact the matter was caught up in the web of res-juducata, as beautifully but unfortunately argued by Counsel.
In the light of the above, counsel urged the court to discountenance same in tis entirely as it is now elementary to reiterate that facts with no evidence to prove go to no issue and are deemed abandoned.
I have carefully and painstakingly perused the processes filed in this suit and more particularly the notices of preliminary objections and the reactions of the claimant.
The issues that needs to be resolved are:-
1. Whether this court lacks jurisdiction to entertain this suit as it is presently constituted.
2. Whether the claimant’s suit is statute barred.
3. Whether the claimant’s suit is an abuse of court process and the court precluded from inquiring into it.
4. Whether the 3rd claimant is a proper party in this suit.
RESOLUTION OF ISSUE ONE:
The counsel for the 1st defendant has argued that National Industrial court is a Court of limited jurisdiction in terms of subject matter, as clearly spelt out in Section 254 (C) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 21 (1) of the trade dispute Act and section 7(1) of the Industrial Court Act 2006. Its jurisdiction is limited to mattes closely related to labour and employment matters. The National Industrial Court cannot entertain nay matter. Counsel contended that none of the above mentioned statutes contain any provision tending to confer Jurisdiction on this Honorable Court to entertain matters bothering on Debt recovery. Counsel also submitted that rules of Court cannot be applied in a manner to confer jurisdiction on, or enlarge the jurisdiction of the court, since the court cannot confer jurisdiction on itself.
Counsel however, recognized that the Claimant’s relief (f) which is the only live relief claimed by that claimant is for recovery of debt and as such this Honorable Court has no jurisdiction to entertain same. Counsel urged court to find and hold that the Court lacks the Jurisdiction to entertain suits bothering on recovery of debt. Counsel for the claimant argued per contra and maintain that this court is clothed with requisite jurisdiction to determine this suit.
There seems to be consensus among the parties that jurisdiction is a threshold and life wire of any determination and should be considered and determined before considering anything else, as a decision no matter how well considered will come to nothing once the court lacks authority to try it. The issue being pivotal can be raised at any stage even by the court suo motu. SeeEGHAREVBA V ERIRO & ORS. (201) LPELR-9716(SC0, AG FEDERATION V GUARDIAN NESWPAPER LTD (1999) 9 NWLR (PT.618) 187, AG ANAMBRA V AG FEDERATION (1993) 6 NWLR (PT.302) 692’
In determining jurisdiction the court is obliged to examine the clam of the claimant in order to discover if the suit comes within the jurisdiction of the court. It is clear that from the general form of complaint commencing this suit and the claims as shown in the statement of facts, the claimant is seeking for declaratory reliefs regarding his tenure as Managing Director/CEO of NISTF. He is also seeking for payment of his unpaid/withheld salaries and entitlements. If the claims of the claimant are juxtapose with the provision of section 254c (1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, an irresistible conclusion that can be reached is that the claimant’s suit is properly before the court as it has been captured within the ambit of section 254C(1) of the constitution which is reproduced below for proper appreciation.
Section 254C- 1 of the 1999 Constitution as altered which clothes the Court with jurisdiction provides thus:
“Notwithstanding the provisions of sections 251, 257, 272 and anything contained in this Constitution and in addition to such other jurisdiction as may be conferred on it by an Act of the National Assembly, the National Industrial Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters-
(a) Relating to or connected with any labour, employment, trade unions, industrial relations and matters arising from workplace, the conditions of service, including health, safety, welfare of labour, employee, worker and matter incidental thereto or connected therewith;
(b) Relating to, connected with or arising from Factories Act, Trade Disputes Act, Trade Unions Act, Employees’ Compensation Act or any other Act or Law relating to labour, employment, industrial relations, workplace or any other enactment replacing the Acts or Laws;
(c) Relating to or connected with the grant of any order restraining any person or body from taking part in any strike, lockout or any industrial action, or any conduct in contemplation or in furtherance of a strike, lock-out or any industrial action and matter connected therewith or related thereto;
(d) Relating to or connected with any dispute over the interpretation and application of the provisions of Chapter IV of this Constitution as it relates to any employment, labour, industrial relations, trade unionism, employers association or any other matter which the court has jurisdiction to hear and determine;
(e) Relating to or connected with any dispute arising from national minimum wage for the Federation or any part thereof and matters connected therewith or arising therefrom;
(f) Relating to or connected with unfair labour practice or international best practices in labour, employment and industrial relation matters;
(g) Relating to or connected with any dispute arising from discrimination or sexual harassment at the workplace;
(h) Relating to, connected with or pertaining to the application or interpretation of international labour standard;
(i) Connected with or related to child labour, child abuse, human trafficking or any matter connected therewith or related thereto;
(j) Relating to the determination of any question as to the interpretation and application of any-
(i) collective agreement;
(ii) award or order made by an arbitral tribunal in respect of a
trade dispute or a trade union dispute;
(iii) award or judgment of the court;
(iv) term of settlement of any trade dispute;
(v) trade union dispute or employment dispute as may be
recorded in a memorandum of settlement;
(vi) trade union constitution, the constitution of an association of employers or any association relating to employment, labour, industrial relations or work place;
(vii) dispute relating to or connected with any personnel matter arising from any free trade zone in the Federation or any part thereof;
(k) Relating to or connected with trade disputes arising from payment or nonpayment of salaries, wages, pensions, gratuities, allowances, benefits and any other entitlement of any employee, worker, political or public office holder, judicial officer or any civil or public servant in any part of the Federation and matters incidental thereto;
(l) Relating to-
(i) appeals from the decisions of the Registrar of Trade Unions, or matters relating thereto or connected therewith;
(ii) appeals from the decisions or recommendations of any
administrative body or commission of enquiry, arising from or
connected with employment, labour, trade unions or industrial
(iii) such other jurisdiction, civil or criminal and whether to the exclusion of any other court or not, as may be conferred upon it by an Act of the National Assembly;
(m) relating to or connected with the registration of collective agreements.
It is clear from the above provisions that this Court has exclusive jurisdiction to hear and determine the claimant’s suit as it is presently constituted. The claimant’s claims are within the purview of the subject matter of jurisdiction of this court as encapsulated in section 254C (1) (k) of the constitution as amended. I so hold.
RESOLUTION OF ISSUE TWO
Both the 1st and 3rd defendants have argued that the claimant’s suit as it is presently constituted is caught by the provisions of section 2(a) of the Public Officers Protection Act, therefore the suit is statute barred. This according to counsel is because the cause of action arose on 28/11/2009 and the claimant commenced this action on 340/10/17 which is beyond three Months period allowed for institution of an action against a public officer. The counsel for the claimant disagreed with the defendants. Counsel submitted that the provisions of section 2(a) of the Public Officers (Protection) Act has two exceptions and the suit of the claimant falls within the exception. Counsel contended that there is continuance of injury/damages and that the acts complained of were outside the colour of office and in bad faith.
There is no doubt that the provisions of section 2(a) of the public officers protection Act were enacted to provide cover to public officers against litigation that may detract them from performance of their duties in respect of acts that were done in the course of their lawful duties. See YABUGHE V COP (1992) 4 SCNJ 166. Therefore, where statute provide for institution of an action within a prescribed period, proceedings shall not be commenced after the time prescribed by such statute. Any action brought after the prescribed period is said to be statute barred. See OFFOBOCHE V OGOJA LG (2001) 16 NWLR (PT.739) 458. However, the law is now well grounded that the provisions of section 2(a) of the Public Officers (protection) Act, does NOT apply to cases of contracts including contract of service or for labour or work done. In the circumstances the provision of section 2(a) of the Public Officers (Protection) Act, is not applicable to the case at hand for the simple reason that the suit is in respect of contract of service and claims on labour and work done. See NATIONAL REVEBNUE MOBILIZATION ALLOCATION ANF FISCAL COMISSION V AJIBOLA JOHNSON & 10 ORS (2019) 2 BNWLR (PT.1656 247, NPA V CONSYRUCZIANI FARSURA COGEFOR SPA (1974) 1 ALL NLR (PT.2) 463.
My decision on this issue is influenced by the recent Supreme Court decision cited above, which is binding on all courts in this country being the decision of the highest court of the land. And I have no reasons to differ.
RESOLUTION OF ISSUE FOUR
The 3rd claimant has contended that the claimant’s suit is abuse of court process for having been filed on 30/11/17 while an appeal is pending before the Supreme Court against Judgment of Court of Appeal given against the claimant. However, the claimant has submitted that there was no pending appeal before the Supreme Court as the appeal which the 1st defendant alluded to had long been withdrawn before the commencement of this suit.
After careful perusal of the affidavit evidence I have no reasons to doubt the claim of the claimant that the appeal pending before the Supreme Court had been withdrawn as per exhibit CR 1. My position is strengthened by the fact that the 1st defendant did not file further affidavit to dispute the assertion of the claimant that the appeal at the Supreme Court had been withdrawn on 10/11/17 before this action was commenced on 30/11/17. The submission of counsel for the 1st defendant on this issue is hereby discountenanced for lacking in merit.
Vide exhibits A1, A2, C, and D attached to the affidavit in support of the notice of preliminary objection, it seems to suggest that the claimant is estopped from re-litigating this suit because the same issues being canvassed have been dealt with and decided as per exhibits A1, A2, C and D. Therefore, this action constitute an abuse of the process of this Court as same was earlier finally determined and dismissed by the Federal High Court and affirmed on appeal by the Court of Appeal. Counsel insisted this suit cannot be re-litigated before this court, as this court cannot sit on appeal on decision of court of coordinate jurisdiction.
I have perused the general form of complaint and the statement facts which are the court processes commencing this suit and the content of exhibits A1, A2, B and D. What emerges is that in the suit at hand there are three defendants while in the suit in exhibit A1 there are four defendants. It is also clear from the claims before the court the claims are not same. In the case at hand the claimant is seeking for payment of his unpaid/withheld salaries and terminal benefits. While in the case at Federal High Court the claimant was contesting the validity of his suspension from office and payment of his salaries and seeking for re-instatement as Managing director/CEO of the 1st defendant.
In the absence of evidence showing that there are two or more suits pending before this court or different court the 1st defendant has failed to establish existence of multiplicity of action pending against same parties on same issues. The objection of the claimant lacks merit and is hereby refused. See SARAKI v KOTOYE (1992) 9 NWLR (pt. 264) 156 at 188 Okorodudu v. Okoromadu (1977)3 S.C 21, Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170, UMEH v IWU (2000) 8 NWLR (Pt. 1089) 225 at 243. Thus the multiplicity of action on the same matter between the same parties even where there exists a right to bring the action is regarded as an abuse. The abuse lies in the multiplicity and manner of the exercise of the right, rather than the exercise of the right, per se.”
From the evidence before the Court I found that the two suits are founded on two separate and distinct cause of action. They have given rise to two separate and distinct reliefs. The yardstick of determining whether or not there is an abuse of court process is that the Court should ask itself whether the person has multiplied his actions simply to irritate, harass and annoy the opponent and if he has acted from improper motives or wanting in bona-fide. There is no proof that the claimant has intended to irritate or annoy the Defendants by filing this action, the instant suit cannot therefore be said to be vexation. The claimant is seeking for payment of his entitlement. SEE: N.I.D.C. V. U.B.N. PLC (2015) 12 NWLR (PT 1473) 246.
On the propriety of joining the 3rd defendant in this suit. The claimant seems to have conceded the objection as there was no counter-affidavit or written address filed to contest the objection. All that the claimant said in respect of the objection is that it did not comply with Order 13 of the rules of this court.
After careful perusal of the argument of counsel on this issue I am in total agreement with the counsel for the 3rd defendant that there is no claim in the entire claims of the claimant being made against the 3rd defendant.
For a party to join another in litigation the party must be sure that he has claim to make against that party joined or that there is controversy between the party instituting an action and the party sued and that the party may likely be affected by the outcome of the litigation. The case here is different from the reliefs sought the 3rd defendant may not likely be affected by the result of this litigation as there was not claim against the 3rd defendant. See PEENOK INVESTMENT LTD V HOTEL PRESIDENTIAL LTD (19882) 12 SC 1. In the case at hand there is nothing that shows that the claimant has any grouse against the 3rd defendant. In the circumstance I hold that the 3rd defendant is not a necessary and proper party to be joined or be made a party in this suit. I therefore, struck out the name of 3rd defendant for mis-joinder.
On the whole the objections on grounds of jurisdiction, statute barred and abuse of court process have failed for lacking in merit and are hereby dismissed. While the objection of the 3rd defendant on mis-joinder succeed and is hereby granted by striking out the name of 3rd defendant from this suit. I so ordered.
Ruling entered accordingly.