IROKANULO OBIOHA SAMUEL & 3 ORS (CLAIMANTS/RESPONDENTS).

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE AUWAL IBRAHIM, PhD

DATE: 25^th April, 2017 SUIT NO.:NICN/EN/13/2014

BETWEEN:

IROKANULO OBIOHA SAMUEL
MRS VERONICA OLIGO
ADINE CAROLINE
OBIANOZIE MISS A.O.

(For themselves and on behalf of the other

49 affected staff of the National Orthopaedic

Hospital Enugu Disengaged from service in

April 2007).===============CLAIMANTS/RESPONDENTS.

AND

NATIONAL ORTHOPAEDIC HOSPITAL

ENUGU MANAGEMENT BOARD

NATIONAL ORTHOPAEDIC HOSPITAL ENUGU
MEDICAL DIRECTOR, NATIONAL

ORTHOPAEDIC HOSPITAL ENUGU

MINISTER OF HEALTH OF THE FEDERAL

REPUBLIC OF NIGERIA

HON. ATTORNEY-GENERAL OF THE

FEDERATION.

THE ACCOUNTANT GENERAL OF THE

FEDERATION================DEFENDANTS/APPLICANTS

REPRESENTATION:

Aroh Esq. holding brief of Chuma Ogojiefor Esq. appeared for the Claimants/Respondents.

Enechi Onyia SAN with A.N. Afam-Aneke (Mrs), E.C. Onuoha Esq. appeared for the 1^st to 3^rd Defendants.

Yahaya Abubakar Esq. Senior State Counsel, Office of the Accountant General of the Federation appeared for the 6^th Defendant/Applicant.

C.I. Nebo (Mrs) filed the processes for the 5^th Defendant.

4^th Defendant not represented.

RULING

The Claimants in this suit took out a Complaint on 4^th February, 2014 against the Defendants and in the Statement of Claim they seek the following reliefs against the

Defendants:

(A)A declaration of court that being that the “CONTISS” salary scale had become operational on 1/1/2007 all over Nigeria in respect of Tertiary Institutions and Research Institutes in the nation including the 1^st Defendant which employed the claimants, the defendants are bound to settle the Claimants’ retirement benefits on the basis of the “CONTISS” salary scale since they exited or left public service only in April 2007.

(B) A further declaration of court that as at 31/10/2013, using the CONTISS salary scale, the defendants ought to have paid the Claimants- a grand total of N301,469,687.58 and not the sum of N103,152,334.71 which they have paid as at that date, and that in the circumstances the Claimants are entitled to the sum on N198,317,352.87-being the amount by which they were underpaid by the same defendants as at aforementioned 31/10/2013.

(C) An order of the court compelling the defendants in the circumstances to pay to the Claimants forthwith, jointly and severally, the sum of N198,317,352.87 due from them to the Claimants to make up for the underpayments made to the same Claimants as at 31/10/2013.

(D) A further order of court compelling the defendants jointly and severally, thereafter i.e. from 1/11/2013 to pay the Claimants all their entitlements on the basis of the “CONTISS” salary scale.

The Complaint was accompanied with Statement on oath of witnesses, list of witnesses, list and copies of documents to be relied upon at trial.

Upon being served with the originating processes in the case the 1^st, 2^nd and 3^rd Defendants entered joint Appearance and filed Statement of Defence on 11/11/2014 with leave of court. Thereafter the 5^th and 6^th defendants followed suit by filing their respective processes in defence of the suit.

The 5^th Defendant filed its processes dated 11^th of August, 2016 on the same date. Part of the said processes is the Notice of Preliminary Objection dated 11^th August, 2016 which was for the following reliefs:

An order dismissing this suit for lack of competence.

Or IN THE LTERNATIVE

AN ORDER striking out the name of the 5^th Defendant for want of cause of action against him.
AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstance of this suit.

The grounds upon which the preliminary objection is brought are as follows:

(1) The action was filed in contravention of the Public Officers Protection Act, the cause of action arose in April 2007 and matter was filed on 4^th February, 2014.

(2) This Honourable Court lacks jurisdiction to hear and determine this suit, having failed to seek and obtain leave of this Honourable Court before serving the 5^th Defendant outside the jurisdiction of this Honourable Court.

(3) From the totality of the processes filed and materials placed by the Claimants before the court, no wrong, dispute or default giving rise to a reasonable cause of action against the 5^th Defendant and (sic) has been disclosed to warrant the claim of damages against the 5^th Defendant or to support and sustain his joinder as a party.

(4) This suit can be properly, completely, effectually and finally determined without joining the 5^th Defendant as a party.

The notice of preliminary objection was supported by a written addressdated 11/08/2016. In the said written address the learned counsel for the 5^th Defendant formulated and argued four issues for determination as follows:

(1) Whether this suit is not statute barred?

(2) Whether failure to seek and obtain leave of this Honourable Court by the Claimants before serving the 5^th Defendant outside the jurisdiction of this Honourable Court does not render this suit incompetent?

(3) Whether there is any reasonable cause of action against the 5^th Defendant?

(4) Whether the Claimants’ suit can be properly, completely and effectually determined without joining the 5^th Defendant as a party?

On his part, the learned counsel for the Claimants filed a written reply in opposition to the preliminary objection of the 5^th Defendant/Applicant. In the said written reply learned counsel for the Claimants/respondents formulated and argued the following issues for the court’s determination:

(a) Whether this suit before the Honourable Court had become statute barred in view of the provisions of Section 2(a) of the Public Officers Protection Act?

(b) Whether the Claimants/respondents require leave of court to serve processes on the 5^th defendant/objector?

(c) Whether the Claimants have a reasonable cause of action and if the 5^th Defendant is a necessary party for the proper determination of the suit?

The issues as formulated and argued by the 5^th defendant are hereby adopted to determine the preliminary objection. These are:-

(1) Whether this suit is not statute barred?

(3) Whether there is any reasonable cause of action against the 5^th Defendant?

(4) Whether the Claimants’ suit can be properly, completely and effectually determined without joining the 5^th Defendant as a party?

On the first issue, the argument of the 5^th defendant/applicant is that this suit is statute barred. Its learned counsel stated that the cause of action arose in April, 2007 while the suit was commenced on 4^th February, 2014. This is well outside the period of three months limitation stipulated by section 2(a) of the Public Officers Protection Act. That the 5^th defendant is entitled to the said protection being an office as held in the case of Ibrahim vs Judicial Service Committee of Kaduna State (1998) 14 NWLR (Pt. 584) p. 1 at p. 38, paras D-F. He also referred to Aina vs Jinadu (1992) 4 NWLR (Pt. 233) p. 91 at 110 paras C-F, and Seleba vs Mobil Prod.(Nig) Unltd (2006) 12 NWLR (Pt. 995) 634 at 649 paras D-G.

Learned counsel further referred to Williams Olagunju& Anor vs Power Holdings Co of Nig Plc (2011) 4 SCNJ 192 at 202and Alh. Nasir Bello vs Civil Service Commission & Anor (2010) 2 SCNJ 184 at 195-196 and submitted that the issue of statute bar is one of jurisdiction to be determined by the court. That the court in this suit lacks jurisdiction to entertain the suit because it is statute barred and should be struck out. He urged the court to so hold.

On his part the learned counsel for the Claimants submitted that the suit is not statute barred. The main basis for this argument is that the provisions of section 2(a) of the Public Officers Protection Act, Cap P41, LFN 2004 has provided for an exception to the rule in that a continuing damage or injury caused to a claimant will not be held to be statute barred until after three months from the ceasing thereof. He referred to Central Bank of Nigeria & Ors vs AiteOkojie (2015) Vol. 40 WRN p. 15, A-G Rivers State vs A-G Bayelsa State (2013) 3 NWLR (Pt. 1340) at 148-149 and Obiefuna vs Okoye (1961) All NLR 357at 360. He then urged the court to hold that the claims of the Claimants which relate to their retirement benefits and pension on the basis of CONTISS salary scale is not statute barred.

Having considered the processes, arguments and submissions of the parties it is quite clear that the issue has been narrowed down to whether the suit is statute barred or not on the basis of the principle of continuing injury or damage. The principle has been well articulated by the Supreme Court in its decision in Central Bank of Nigeria & Ors vs AiteOkojie (2015), supra, cited and relied upon by the learned Claimants’ counsel, as follows:

The well laid down interpretation of the limitation law, in this case, section2 supra is that an action filed in court after three months from the date the cause of action accrued is statute barred, but where the cause of action is a continuing act or a case of continuance of damage or injury the three months starts to run from the cessation of the continuing act, damage or injury and if the action is at the instance of a prisoner, he may commence his action, within three months after he is allowed home from prison.

In this case the Claimants are asking for the terminal benefits which include their pensions, amongst others. They are saying that the 1^st defendant should have calculated their terminal benefits on the basis of the salary scale in operation at the time of the retirement, i.e., CONTISS and in April, 2007. From their averments even as at October, 31^st, 2013, the said benefits had not been paid from that 2007. And that when they were paid they discovered the short fall being claimed. The claimants are in expectation of the payment of the said benefits and pension in accordance with the CONTISS every single month that passes. I therefore agree with the claimants that their case is that of continuing act of damage or injury because every single month they are paid their benefits and it has the same shortfall, they are injured and so it has not ceased. The Supreme Court in the case of A-G Rivers State vs A-G Bayelsa State (2013), supra, made the point in the following words:

…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 a continuance of damage or injury which had not ceased, the defence of statute bar was not available to the 1^st defendant and the plaintiff’s action falls squarely within this exception as the damage and injury against it was continuing one.

In the circumstance, it is my view which I so hold that the suit of the claimants is not statute barred. The first issue is hereby resolved in favour of the claimants.

The second issue is that of failure of the Claimants to seek for leave of the Honourable Court before serving the 5^th Defendant outside jurisdiction in Abuja. The argument of the 5^th defendant is predicated on the provisions of section 97 of the Sheriffs and Civil Process Act as well as the decision in Skenconsult Nigeria Limited vs Ukey (1981) NSCC Vol. 12 p. 1. The learned counsel for the 5^th Defendant further referred to the case of Obimouuve vs Erinsho Amor (1996) NSCC vol. 4 p. 290 and Nwabueze and Amor vs Obi Okoye (1988) 4 NWLR (Pt. 91) 664.

He then submitted that obtaining the leave is a precondition that must be met before the court assumes jurisdiction. He then urged the court to strike out the matter in the interest of justice.

Responding to this issue the learned claimants’ counsel referred to provisions of Order 7 Rule 10 of the National Industrial Court Rules, 2007 and argued that this Honourable Court has jurisdiction throughout this country and therefore service of processes within this country will not require the leave of court. He submitted, relying on the decision of this court in Anthony AdekunleOyekaumi& Ors vs NITEL (citation not given by counsel), that the court has jurisdiction throughout the federation by virtue of Section 21 of the National Industrial Court Act, 2006 and therefore does not require leave to serve its processes anywhere within the country.

Having considered the arguments and submissions of the parties, I am of the humble view that the court has been invested with jurisdiction throughout the length and breadth of this country. See section 21 of the National Industrial Court Act, 2006. This makes it a court with national jurisdiction. It is just that it is divided into judicial divisions. Since the provisions of section 97 of the Sheriffs and Civil Process Act does not require leave for service between one judicial division and another, this court does not need to grant leave before its processes are served in another of its judicial division(s).

In the circumstance I hereby find and hold that the Claimants’ in this case did not require leave of the Honourable Court to serve the 5^th Defendant processes in this suit in Abuja. The objection on this count therefore fails.

I shall now take the 3^rdand 4^thissues together. It is whether or not there is a reasonable cause of action against the 5^th defendant in this suit and whether he is a necessary party to this suit. The learned counsel for the 5^th defendant relied on several authorities to define cause of action including Fred Egbe vs Adefarasin (1987) 1 NWLR (Pt. 47) 1 at 20, and Adekoye vs Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539 at 551, pars D-F. He then described the two essential elements of cause of action as the wrongful act of the defendant that gives rise to the Claimant’s cause of complaint and the consequential damage on the Claimant. He then submitted that in the instant case there is no action or omission attributable to the 5^th Defendant raised by the Claimants. He cited the cases of Ogumde vs Gateway Transit Limited & Anor (2010) Vol. 28 WRN p. 120 at 140 , line 20-30.

He submitted further that this case has not disclosed any dispute or relationships or contracts between the Claimants and the 5^th Defendant and therefore no reasonable cause of action is disclosed against the 5^th Defendant. He urged the court to strike out the name of the 5^th defendant from this suit.

He also submitted that the 5^th defendant is not a necessary and proper party for the complete and effectual determination of this suit.

On his part, the Claimants’ counsel in opposing the application submitted that he was relying on section 150(1) of the 1999 Constitution which makes the 5^th defendant the Chief Law Officer of the Federation. He added further that the 5^th defendant is a necessary party to the suit. This is because he has to be a party to the suit to be bound by it, relying on Labile vs Registered Trustees o C&C (2003) 1 SC Pt. I, p. 35 and Ikechukwu vs Nwoye (2015) 3 NWLR (Pt. 1446) p. 367 at 375 at ratio 5. He then referred to paragraph 4 of the Statement of Claim and argued that the 5^th Defendant being part of the Federal Government that introduced the CONTISS in 2007, he is bound to answer questions on it and also be bound by whatever the court decides on the issue. He urged the court to refuse the application of the 5^th defendant.

Having considered the processes, arguments and submissions of the parties on issues 3 and 4, I am of the view that there is cause of action against the 5^th Defendant and also he is a necessary party in this suit. This is predicated on the fact that the 5^th Defendant is the Attorney-General of the Federation, and pursuant to his powers under Section 150(1) of the Constitution of the Federal Republic of Nigeria, 1999. He has been properly joined as a party in this suit.

On the whole I find no merit in the preliminary objection of the 5^th defendant and I hereby dismiss same.

Then there is preliminary objection of the 6^th Defendant. It is dated and filed on 26^th February, 2016. The preliminary objection challenges the competence of the Claimants to commence the suit as well as their competence to bring the action against the 6^th Defendant. The grounds of the objection are that:

The Claimants/Respondents have no cause of action.
There is no cause of action against the 6^th Defendant/Applicant as a party to this suit.

The reliefs sought are:

An Order of the Honourable Court dismissing this suit for want of cause of action.
An Order of this Honourable Court Striking out this suit for want of jurisdiction.
Or Alternatively, an order of the Honourable Court striking out the name of the 6^th Defendant from this suit.

The preliminary objection is supported by an affidavit of 5 paragraphs and a written address. In the said written address learned counsel for the 6^th defendant formulated and argued the following issues for the court’s determination:

Whether or not the Claimants/Respondents have a cause of action?
Whether or not this Honourable Court has the jurisdiction to hear this suit?
Whether or not the Claimants/Respondents have a cause of action against the 6^th Defendant/Applicant joined in this suit before this Honourable Court?

In his written address in support of the objection learned counsel stated that there is no cause of action yet in this suit in favour of the Claimants or against the 6^th defendant. He then referred the court to decisions in Bello vs A-G Oyo State (1986) 5 NWLR (Pt. 45) 828; Adepoju vs Afonja (1994) 8 NWLR (Pt. 363) 437 and Akilu vs Fawehinmi (No.2) (1989) 2 NWLR (Pt. 12) 122.

He urged to decline jurisdiction to entertain this suit or strike out the name of the 6^th Defendant for lack of cause of action against it.

In his response the learned claimants counsel filed a counter affidavit of 9 paragraphs and a written address in opposition to the preliminary objection of the 6^th defendant. In his written address learned counsel for the claimants’ formulated and argued one issue for determination, namely, whether the 6^th defendant is a necessary party for the proper determination of this suit? He then submitted that the 6^th defendant is indeed a necessary party for the proper determination of this suit. Learned counsel cited and relied on the authorities earlier cited in this Ruling to show how a party may be held to be a necessary party for the proper determination of a suit. These are Labile vs Registered Trustees of C & S (2003), supra, Ezionwa vs Egbo (2006) All FWLR (Pt. 316) p. 314 and Ikechukwu vs Nwoye (2015), supra.

Having considered the submissions of the parties, it is quite clear to me that the 6^th defendant is not a necessary party to this suit. This is because there is not a single paragraph in the Statement of Claim of the Claimants or the Reply to the Statement of defence of the 1^st to 3^rd Defendants where any claim is raised specifically against the 6^th defendant. The reliefs sought are indeed ‘jointly and severally’. But then it means that the 6^th defendant may have nothing to do with the reliefs.

The absence of any specific pleading against the 6^th Defendant means that there is no cause of action against it. There is nothing to show any wrong done by it in the calculation or under payment of the benefits of the Claimants. The best argument made by the Claimants is that the 6^th Defendant is the Chief Financial officer of the Federation and may have powers in relation to the finances of the federation. However, unlike the Attorney-General of the Federation I have not seen and neither was my attention drawn to any constitutional or statutory provisions which gives any duties to the 6^th defendant, for which we may hold him to be a necessary party to this suit, wherein the suit cannot be completely and effectually determined without him. Thus, while I hold that the Claimants have a cause of action in this suit, in the form of the alleged underpayment on account of CONTISS salary structure, I hereby hold that there is no cause of action against the 6^th defendant. He is therefore to be and is hereby struck out from this suit.

The Objection succeeds in part.

On the whole I make order as to costs.