IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HON. JUSTICE, I.S GALADIMA
DATE: 22nd July 2020. SUIT: NICN/OW/17/2019
1. FELIX UBA
2. IJEOMA ADAOBI
3. HENRY IFURUEZE CLAIMANTS/RESPONDENTS
4. PATRICK ABANEME
5. FRANCIS IGWE
6. PASCHAL NWOGU
1. IMO STATE OIL PRODUCING AREAS
2. GOVERNOR OF IMO STATE DEFENDANTS/APPLICANTS
3. GOVERNMENT OF IMO STATE
4. ATTORNEY GENERAL OF IMO STATE
· L.U.N. NWAKAETI FOR THE CLAIMANTS/RESPONDENTS;
· I. I. AMADI FOR THE DEFENDANTS/APPLOCANTS.
1. These Claimants were purportedly appointed into the Board of the 1st Defendant as Commissioners on the 3/5/2016 for a 4-year term. They allege that their appointments were truncated by the 2nd Defendant/Applicant when he announced on air, the dissolution of the board of the 1st Defendant on which these Claimants were members, on 15/9/2017. The Claimants accordingly did not challenge their dissolution in Court until 18/4/2019 when they instituted this action.
2. Consequently, on the 15/7/2020, these Defendants’ Counsel was granted leave to move and adopt the arguments on their preliminary objection filed since 4/12/2019. They seek that the Claimants’ suit be dismissed purportedly on the ground that this Court lacks jurisdiction to entertain same. Accordingly, this suit is statute barred and therefore incompetent pursuant to Section 2 (a) of the Public Officers’ Protection Law Cap (106) Vol VI LEN 1963 applicable to the State of Imo as well as that same is allegedly caught up by the Provisions of Section 27 (1) (a) ISOPADEC Law (no. 13) of 2010.
3. The Defendants also filed an affidavit of 7 paragraphs deposed to by one Bruno Nwachukwu and accompanied the application with a written brief of arguments dated 26/11/2019 in accordance with the rules of this Court.
4. The Claimants as respondents, merely filed a written reply on points of law through their Counsel on the 17/12/2019 in opposition to this application.
5. The objectors raised a sole issue for determination thus; whether the suit is statute barred and therefore incompetent in view of Section 2 (a) of the POPL, LEN 1963 applicable to Imo State and Section 27 (1) (a) ISOPADEC Law No. 13 of 2010. Arguments on this issue is two pronged: the first leg is whether this suit is incompetent by virtue of the provisions of the POPL and the second is whether same is incompetent also by virtue of the law establishing the 1st Defendant/Applicant.
6. On the first leg, the learned Amadi, (Mrs.) argued that section 2 (a) of POPL LEN 1963 provides expressly that any action, prosecution or proceedings commenced against any person for an act done in pursuance or execution or intended execution of any Act, Law, or any public duty or authority shall be brought within three months of the act, neglect, or default complained of or in the case of a continuing damage or injury, within 3 months next after the ceasing thereof.
7. On the second leg, that by Section 27 (1) (a) of ISOPADEC Law No. 13 of 2010, “no suit shall commence against the commission, the governing board, the Managing Director or any employee of the commission in pursuance or execution of this law in respect of any alleged neglect or default in execution of this law or any other enactment shall lie or be instituted in any court unless it is commenced within three months next after the act, neglect, or default complained of”.
8. Accordingly, it is important to note that section 18 (1) of the Interpretation Act, 2004 defines a Public Officer as a member of the public service of the Federation or of the States within the meaning of the Constitution of the Federal Republic of Nigeria – See ABUBAKAR V. GOVERNOR OF GOMBE STATE (CITATION SUPPLIED). Learned counsel also wants this court to note that Public Officers have been held by the Apex Court to include an artificial person, public officer, public bodies, or body of persons corporate or incorporate, statutory bodies or persons etc. Thus, in the case of IBRAHIM V. JSC [citation supplied], the Supreme Court held that the term “Public Officer” includes a public department which is an artificial person.
9. That the Public Officers’ Protection Act (Laws of the Federation of Nigeria) 2004 is similar to the provisions of the Public Officers’ Protection Law (Cap 106) Volume VI Laws of Eastern Nigeria 1963 which is applicable to the State of Imo. It was therefore obvious that these Defendants fall within the purview of the meaning of Public Officers and are thus protected under the provisions of this legislation as provided above.
10. Accordingly, a cause of action is statute barred if proceedings cannot be initiated because the period laid down by the limitation law has elapsed, explained the learned Counsel. She cited ELABANJO V. DAWODU (CITATION SUPPLIED) inter alia. Therefore, a cause of action cannot be said to accrue to a party unless and until there emerges factual situations which shall give right to such action.
11. That as can be seen from the decision of CROSS RIVER UNIVERSITY OF TECHNOLOGY V. OBETEN (CITATION SUPPLIED), “a cause of action accrues on the particular date which gave rise to the incident in question. For the purposeful intendment of statutes with stipulations of durational limitation, the clock begins to wind down and time begins to run from the moment which culminates into the date on which the cause of action accrues.” Therefore, in order to determine if a party’s action is statute barred, the court is only enjoined to look at the Claimant’s claims. The period of limitation is determined in a case by looking at the writ of summons and the statement of claims which alleges when the wrong allegedly suffered by the Claimant was committed and placing it side by side with the date on which the writ was issued. Counsel cited a plethora of cases including AMEDE V. UBA (CITATION SUPPLIED), GULF OIL CO. LTD V. OLUBA (CITATION SUPPLIED), inter alia.
12. With regards to the suit at hand, learned Counsel submitted that from the Claimants’ paragraph 11 of their statement of facts, this suit was filed on the 18/4/2019 whereas the act which they complained of happened in September of 2017. In order words, the Claimants became aware of their removal from office in September 2017, but they waited till 18/4/2019 over a year to institute this action.
13. It is accordingly trite that where a law provides for the bringing of an action in respect of a cause within a prescribed period, proceedings shall not be brought after the time prescribed by such law. Any action instituted outside the prescribed time thus becomes statute barred.
14. Counsel argued that having slept on their rights since the cause of action arose in September 2017, these Claimants’ suit cannot be entertained by this Court based on the foregone arguments and pursuant to the cited statutes above. She relied on IKURIE V. EDJERODE (CITATION SUPPLIED).
15. Being therefore that this suit was instituted by these Claimants outside the prescribed time of three months, this suit becomes incompetent and same must be dismissed by this Court. She finally urged this Court to find in her favour by resolving the issue raised in the affirmative and consequently dismiss this suit.
16. As stated above, these Claimants’ reply on points of law was duly filed by their Counsel on 17/12/2019. He too raised a sole issue for determination which is “whether this Court can grant the Applicants’ objection in view of the claims and reliefs sought by the Claimants.”
17. Counsel admitted that it is the Claimants’ claims that determine the jurisdiction of any Court. He too cited and relied on IKURIE V. EDJERODE (SUPRA). He invited this Court to peruse the claims made in this suit especially in paragraph 24 of the Statement of facts filed. He argued that it will be discovered that the claims made are entitlements for work already done and for the breaches of contract. That the claims made are for the payments of outstanding salaries, emoluments as well as gratuities purportedly owed these Claimants at the time of their removal as members of the board of the 1st Defendant. As such, Section 2 (a) of the POPL 1963 as well as Section 27 (1) (a) ISOPADEC LAW 2010, are inoperable in this instant case. He argued that the Apex Court had decided in OSUN STATE GOVERNMENT V. DALAMI (CITATION SUPPLIED) that the public officers’ protection act does not apply to cases of contract, recovery of land, breaches of contract or to claims for work or labour done. Learned Counsel further cited FGN V. ZEBRA ENERGY LTD (CITATION SUPPLIED) inter alia. He impresses on this Court not to accept the Applicants’ submissions as clearly those laws do not preclude the Claimants from pursuing their claims for unpaid monthly salaries, allowances, or gratuities regardless of the fact that the suit was filed outside three months from the date they were removed from office. He cited OBOT AND ORS V. SHELL PETROLEUM DEV. CO NIG. LTD (CITATION SUPPLIED) and relied on the Court of Appeal’s opinion that “the Act is intended as much as within the limits of the law, to, protect a public officer from detraction and unnecessary limitations but never intended to deprive a party of legal capacity to ventilate his grievances on the face of stark injustice”.
18. Accordingly, these Applicants as Defendants do not have any defence to this suit and so they should not be permitted to hide under any limitation laws to continue to deny these Claimants of their alleged entitlements. Learned Counsel wants this Court to find that those authorities and decisions cited by the learned objectors’ Counsel are not applicable in this suit and to therefore allow the Claimants prosecute their case on its merit. He finally urged this Court to dismiss this application by resolving the issue raised in favour of the Claimants.
19. I have gone through the application as well as the submissions made by the respective Counsel which have been carefully produced above. The sole issue to determine is whether these Claimants’ cause is caught up by the limitation statutes having been filed outside the three months prescribed by those laws. The statutes under contemplation are Section 2 of POPL 1963 (applicable to the State of Imo) and Section 27 (1) (a) of the ISOPADEC Law of 2010.
20. In order to determine if the Claimants’ are not barred from prosecuting this cause, the writ of summons and Statement of facts have to be perused in order to elicit the factual circumstances relied upon by them and to discover whether they acted timorously in filing this suit.
21. In paragraph 24 of their statement of facts filed on 19/4/2019, these Claimants claim against these Defendants jointly and severally as follows;
a. A declaration of this Court that the acts of the Defendants restricting them access to their offices as duly appointed commissioners of the 1st Defendant…is one of a continuous injury;
b. A declaration of this Court that the appointment of the Claimants as commissioners of the 1st Defendant subsists until 2/5/2020;
c. A declaration that the purported dissolution of the board of the 1st Defendant to which the Claimants were members by the 2nd Defendant and the resulting termination of their appointment with the 1st Defendant is unlawful, and void having been done contrary to the ISOPADEC law 2010 and the Public Service Rules.
d. An order directing the Defendants to pay the sum of N900,000.00 to each of the Claimants being their unpaid salaries for the months of June, July, and September 2017.
e. An order directing these Defendants to pay the Claimants the sum of N300,000.00 each as impress and N600,000.00 each as running costs for the months of June, July, and September 2017.
f. An order directing the 1st Defendant to pay off the outstanding balance of the hire purchase price of N2,800,000.00 on each of the cars given the Claimants by virtue of the hire purchase agreement dated 15/12/2016 and the resolution of the board of the 1st Defendant made on 4/8/2016.
g. An order of this Court directing the Defendants to pay each of these Claimants the sum of N3,500,000.00 furniture allowances due to them.
h. An order of reinstatement of the Claimants to serve out their remaining terms in office etc.
i. An order to pay the sum of N7,200,000.00 gratuity /severance benefits for work done for the Defendants.
22. From stated facts, these Claimants were dissolved as members of the board of the 1st Defendant sometime in September 2017 by announcement on radio and were immediately replaced by other persons and also barred from access to their offices. Meanwhile, prior to their dissolution, they were purportedly owed arrears of salaries for the months of June and July 2017 which they demanded for from the MD of the 1st Defendant by letter dated 1/9/2017 – see paragraphs 11, 12, 15, 17, 18, and 19 of the Statement of facts.
23. According to Section 2 (a) POPL 1963 which was relied upon by the Applicants’ Counsel, any action, prosecution or proceedings commenced against any person for an act done in pursuance or execution or intended execution of any Act, Law, or any public duty or authority shall be brought within three months of the act, neglect, or default complained of or in the case of a continuing damage or injury, within 3 months next after the ceasing thereof.
24. The law apparently contemplates protecting all public officers from unnecessary litigation by aggrieved persons challenging their otherwise lawful performance of their public duties. The same statute however provides for certain exceptions which this Court has time and again identified. These exceptions include where the act complained of is in itself unlawful or illegal; or where the act complained of is a continuous injury or causes continuous damages to the claimant (like the withholding of salaries or claims for other unpaid damages); the public officers’ protection law does not apply to bar cases of contract, recovery of land, breaches of contract or any claims for work or labour already done by or against a public officer – see FGN V. ZEBRA ENERGY LTD (SC 268/2001). Above all, the statute does not apply to contracts of service – see ROE NIG. LTD. V. UNN (2018) 6 NWLR (PART 1616) page 436 where the Supreme Court held per Galinje, JSC that “The Public Officers Protection Act does not apply to cases of breach of contract for work done or recovery of debt. The Act was not intended by the legislature to apply to contracts. The law does not apply in cases of recovery of land, breaches of contract for claims for work and labour done”.
25. Similarly, Section 27 (1) (a) of ISOPADEC 2010 will not apply in instances enumerated above to bar a litigant from prosecuting his matter even if it was filed outside 3 months from when the cause of action arose.
26. Judging from the reliefs sought by these Claimants, it is apparent that they seek to claim for unpaid salaries and other benefits inter alia from the Defendants. It is although obvious that they instituted these claims before this Court about a year after they were purportedly removed from office as members of the board of the 1st Defendant. Based on the rationale that certain claims against public officers will not become statute barred merely because they were filed outside the prescribed three months provided, I am therefore convinced that these Claimants’ suit falls within one of such exceptions.
27. I agree entirely with the learned Counsel for the Claimants that they should not be shut out from ventilating their grievance against these Defendants since essentially, they claim for unpaid salaries, allowances, gratuities and severance benefits as pleaded in their statement of facts.
28. I thus find this application unmeritorious. The sole issue raised is therefore resolved in favour of the Claimants/Respondents. This preliminary objection is refused and same is dismissed accordingly.
Delivered in Owerri this Wednesday the 22nd day of July 2020.
Hon Justice I. S Galadima.