| IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
—————————————————– Suit No: NICN/OW/53/2016 Petitioner: Nzewuihe Godsfriend C. ANOR And Respondent: Imo State University Teaching Hospital ANOR Date Delivered: 2017-05-04 Judge(s): JUSTICE O. Y. ANUWE Judgment Delivered Representation: Chief C. C. Onyeagbako, with him C. J. Okpara (Mrs.) for the Claimants Vin Onyeka for the 1st, 2nd and 3rd Defendants/Applicants I. I. Amadi (Mrs.) for the 4th Defendant/Applicant Jude Emeakoha for the 5th Defendant RULING/JUDGMENT By a Complaint dated and filed the 15th day of August 2016, the Claimants claimed against the Defendants jointly and severally as follows: 1. A declaration that by their appointment and confirmation of appointment letters, the Claimants are staff of the Imo State University Teaching Hospital. 2. A declaration that the purported handover of the teachers of IMSUTH Staff School by the 2nd and 3rd Defendants to the 5th Defendant is unlawful, wrongful and illegal. 3. A declaration that the purported removal of the Claimant’s names from the 1st Defendant’s payroll is unlawful, illegal, null and void. 4. A declaration that the employment of the Claimants with the 1st Defendant still subsists and remains valid notwithstanding any purported handover of the IMUTH staff Primary School to the Imo State Universal Basic Education Board (IMSUBEB). 5. An order of court mandating the 1st, 2nd and 3rd Defendants to revert any purported handover of the teachers of IMSUTH Staff School including the Claimants to the 5th Defendant. 6. An order on the 2nd and 3rd Defendants to put back the names of the Claimants on the 1st Defendant’s payroll. 7. An order on the 1st, 2nd and 3rd Defendants to pay to the Claimants all arrears of the shortfall of their full salaries, allowances, entitlements and benefits owed the Claimants from June 2015 up to November 2015 at the CONHESS salary scale of the 1st Defendant. 8. An order on the 1st, 2nd and 3rd Defendants to pay to the Claimants all arrears of full salaries, allowances, entitlements and benefits owed the Claimants from December 2015 till date. 9. An Order on the Defendants to pay the Claimants the sum of N500,000,000.00 (Five Hundred Million Naira) being general damages for breach of their contract of employment. This ruling is premised on two separate applications: 1. A Motion on Notice dated the 9th day of December 2016 and filed on the 14th day of December 2016 wherein learned Counsel for the 1st to 3rd Defendants sought an order of this court striking out the names of the 1st and 3rd Defendants from the suit on the grounds amongst others, that they are not known to law, and that not being juristic persons, they cannot institute an action neither can they be sued and cannot legally engage in any contractual relationship, and therefore there has been a misjoinder of the parties. 2. A Notice of Preliminary Objection dated and filed the 1st day of February 2017 wherein learned State Counsel for the 4th Defendant sought an order of court dismissing this suit for want of jurisdiction, on the ground that the suit is statute barred and incompetent based on Section 2(a) of the Public Officers’ Protection Act, Cap 4, Vol. 14, Laws of the Federation of Nigeria 2004. In support of the 1st to 3rd Defendants’ application is an affidavit of 7 paragraphs. In the accompanying Written Address, Counsel submitted a sole issue for the determination of the court viz: Whether the applicants have made out a case for the grant of this application. In arguing the sole issue, Counsel submitted that it is trite that that only juristic persons can sue and be sued. Counsel cited the case of NKPORINWI vs. EJIRE (2009) All F W L R (Part 499) 450 at 482 paras. A-B and submitted that in the instant case, the Claimant sued “Imo State University Teaching Hospital” as the 1st Defendant and “Chief Medical Director, Imo State University Teaching Hospital”, as the 3rd Defendant. It is counsel’s contention that the 1st and 3rd Defendants are not juristic persons. He submitted that “Imo State University Teaching Hospital”, is not created as an entity coupled with perpetual succession and not an incorporated entity. The 3rd Defendant equally is not clothed with any juristic personality. Counsel went further that Section 3 of Law No. 9 of 2002 created and gave legal and juristic personality to the Imo State University Teaching Hospital Management Board, which is the 2nd Defendant in this Suit and not Imo State University Teaching Hospital or Chief Medical Director. Furthermore, it is contended that the Chief Medical Director, Imo State University Teaching Hospital is not a legal entity known to law. Counsel invited the Court to take guidance in PRINCIPAL, GOVT. SEC. SCHOOL, IKACHI vs. IGUOU (2006) All FWLR (Part 299) 1420 at 1441 paras. D – E, where the Court held thus: ” …. To be a competent party to a Suit, the name just be a real name by which that party is known in the case of a natural person or its corporate name in the case of a legal entity”. According to counsel, a Court of Law should first and foremost be clothed with the jurisdiction and competence to entertain any matter brought before it. The competence of a Court to adjudicate over causes before it was held in SEISMOGRAPH SERVICES (NIG.) LTD. vs. MEDUOYE (2015) All F W L R (Part 763) 2019 at 2030 paras. E-G, to include inter alia; “…. Where there is no feature in the case which prevents the Court from exercising its jurisdiction”. See also: OWENA BANK PLC vs. OLATUNJI (Supra) P. 572 paras. E – H. Counsel submitted that the Court does not make any order in vain. Thus, where the Court is being called upon to make an order against a non-juristic person, such an order stands as an order that is made in vain. In the instant case, according to counsel, the 1st & 3rd Defendants are non-legal entities that have no recognition under the law. The Court therefore lacks the requisite jurisdiction and competence to entertain any Suit or complaint purportedly made against them. Thus, proceedings against the 1st and 3rd Defendants in this Suit will definitely amount to an exercise in futility. He urged the Court not to waste its precious time to indulge in such a fruitless venture. This is because the non-juristic nature of the 1st and 3rd Defendants constitutes a feature in the Suit which prevents the Court from exercising its jurisdiction. Counsel urged the court to hold that the 1st and 3rd Defendants are not legal persons as they are not juristic persons and they are not the appropriate bodies to be sued in this action. He urged the Court to resolve the issue for determination in this application in favour of the Applicants and strike out the names of the 1st and 3rd Defendants as they are not legal persons. In opposition to the motion for striking out the names of the 1st and 3rd Defendants, the Claimants filed a Counter Affidavit of 8 paragraphs. In the accompanying Written Address, Counsel submitted a sole issue for the court’s determination, viz: Whether the 1st and 3rd Defendants are juristic persons in Law. In arguing the sole issue, counsel aligned himself with the submission of the Defendant’s Counsel on the Position of law which states that it is only juristic persons that can sue and be sued as was decided in NKPORINWI vs. EJIRE (2009) All FWLR (Part 499) 450 @ PARAS A-B. He however submitted that this position of the law has been misconstrued and misapplied by the learned counsel to the 1st & 3rd Defendants who did not avert his mind either deliberately or inadvertently to the full provisions of the law which established and gave life to the institution of the 1st Defendant, or cleverly omitted it to waste the time of the Court. He submitted further that S.3 (1) of the Imo State University Teaching Hospital (IMSUTH), Orlu, Law No. 9 of 2002, which is the Law/Statute establishing the 1st Defendant by the Imo State Government, States as follows: “3{1} There is hereby established a teaching hospital to be known as Imo State University Teaching Hospital for the purpose of providing such facilities for the training of medical students and other students as are usually provided by teaching hospitals of internationally high repute. {2}There shall be established for the management of the Hospital a body to be known as the Imo State University Teaching Hospital Management Board which shall be a body corporate with perpetual succession and a common seal.” The 3rd Defendant in the same vein is a creation of Statute having been established and given responsibilities to take decisions that affect the rights and privileges of other people by Section 6 (1) & (2) of Law No. 9 of 2002 which states: “6 {1} There shall, for the Hospital, be a Chief Medical Director who shall be appointed by the Executive Governor on such terms and conditions as may be specified in his letter of appointment. (2) The Chief Medical Director:- (a) shall be a person who is medically qualified and registered as such, for a period of not less than Twelve years (12) experience in health matters and holds a post graduate medical qualification obtained not less than five years prior to his appointment as a Chief Medical Director; and (b) Shall be charged with the responsibility of the execution of the policies and matters affecting the day to day management of the affairs of the hospital.― According to counsel, S.3 (1) and S. 6 (1) & (2) of the said law have in clear terms given both life and responsibilities to the 1st & 3rd Defendants and thereby making them legal and juristic persons in law who can sue and be sued. He contended further that, the 1st and 3rd Defendants/Applicants are institutions and/or organs established by law. See ABUBUKAR vs. YAR’ADUA (2008) 36 (Pt. 1) NSCQR) Pg. 231 where the Court held that: “Juristic or legal personality can only be denoted by the enabling law. This can either be the constitution or statute. In other words, juristic or legal personality is a creation of statute and a party which seeks relief must comply strictly with the enabling statute.” In the case of JEOBA vs. OWONIFARI 1974 10 S.C. (REPRINT) PAGE 112, the Apex Court held as follows: “In legal theory, a person is any being whom the law regards as capable of rights and duties”. According to counsel, there are two categories of juristic persons viz: natural and artificial persons. The Supreme Court confirmed this in OLAWOYE vs. JIMOH (2014) All FWLR (Pt. 718) 901 at 914, PARA D where it held that: “Generally, in legal proceedings, the parties are those persons be they natural or artificial, whose names appear on the record of Court as Plaintiffs and Defendants”. In this present suit, the 1st and 3rd Defendants are artificial persons created by statute who are being sued in their official names which confers on them the capacity of exercising rights and carrying out duties. Relating the above definition of a legal person to the instant case, the question to resolve is whether the 1st & 3rd Defendants in this suit are capable of exercising rights and carrying out duties. Counsel in answering the question in the affirmative, submitted that both the 1st and 3rd Defendants can both sue and be sued in their official capacity. As regards the juristic personality of the 3rd Defendant, counsel for the Claimant submitted that the law is clear that government institutions/agencies are liable to legal actions where in the course of discharging their duties the rights of citizens of the country are unduly interfered with. In TOTAL NIG. PLC vs. VICTORIA ISLAND & IKOYI RESIDENTS ASSOCIATION & ORS (2004) All FWLR (Pt. 231) 1340, the Supreme Court stated as follows: “it has been entrenched from the time of promulgation of the 1979 constitution that a citizen who perceives that his rights has been infringed can bring an action against the Government and its institutions or anybody deriving some rights or benefits there from without obtaining the consent of the Attorney – General in other to obtain a redress of the violations of his rights”. See also RANSOME KUTI vs. A.G OF THE FEDERATION (1985) 2 NWLR (Pt. 6) 211. Furthermore in GANI FAWEHINMI vs. NBA (NO.2) (1989) 2 NWLR (Pt.105) 558, it was held thus: “In jurisprudence therefore, a ‘Person’ is the object of rights and duties, that means a person is capable of having rights and of being liable to duties in contradistinction to a ‘thing’ which is always subject of rights and duties. Now the legal concept of a human being is simply a multitude of claims, duties, liberties, etc. treated as unit. If therefore, the law invests on an artificial entity like corporation with a multitude of claims, duties, liberties, etc. it likewise invests with the status of a legal person.” He therefore submitted that the statute having created the 1st and 3rd Defendants and invested them with claims, duties, and liberties, in likewise invested them with the status of legal personality i.e. juristic person. It is settled therefore, that the 1st and the 3rd Defendants are vested with rights, duties and powers etc, part of which they exercised by making policies which led to an infringement of the rights of the Claimants and also the withholding of the various salaries of the Claimants/Respondents starting from December, 2015 till date. The 1st Defendant being an institution of the Imo State Government by virtue of the Imo State University Teaching Hospital (IMSUTH) law No.9 of 2002, while the 3rd Defendant being a creation of same statute which makes and implements polices that directly or indirectly affect the staff of IMSUTH are therefore legal personalities before the law. Thus because the rights and benefits of the Claimants have been adversely affected by the policies of the 1st & 3rd Defendants, they have indeed been properly sued as juristic persons. Counsel urged the court to discountenance the submissions of the 1st – 3rd Defendants/Applicants Counsel and allow the 1st and 3rd Defendants to be part of this suit in the interest of justice and proper adjudication of this suit. In support of the Preliminary Objection of the 4th Defendant, Counsel filed an Affidavit of 8 paragraphs along with a written address wherein learned state counsel submitted a lone issue for determination viz: Whether the suit is statute barred and therefore incompetent, having regard to Section 2a of the Public Officers’ Protection Act Cap 4, Vol 14, Laws of the Federation of Nigeria 2004. According to counsel, the suit as presently constituted is statute barred and, therefore, incompetent on the ground that it was commenced after the prescribed period allowed by Section 2 (a) of the Public Officers (Protection Act) Cap 4, Vol. 14, Laws of the Federation of Nigeria, 2004; which section provides that any action, prosecution, or proceeding 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 continuing damage or injury, within 3 months next after the ceasing thereof. A cause of action is said to be statute barred if in respect of it proceedings cannot be brought because the period laid down by the limitation law or Act has elapsed. See ELABANJO vs. DAWODU (2006) All FWLR (Pt. 328) Pg. 604 at 653; EGBE vs. ADEFARASIN (NO.2) (l987) 1 NWLR (Pt. 47) 1, (1987) 1 SCNJ 1. Section 18 (1) of the Interpretation Act, 2004 defines a public officer as a member of the Public Service of the Federation or of a State within the meaning of the Constitution of the Federal Republic of Nigeria, 1999. See ABUBAKAR vs. GOVERNOR OF GOMBE STATE (2002) 11 NWLR (Pt. 791) 533 CA. According to counsel, Public Officers have been held 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 vs. JSC (1998) 14 NWLR (Pt. 584), The Supreme Court Per IGUH JSC held thus: “It is thus clear to me that the term Public Officer has by law been extended to include a public department and therefore an artificial person, a public office, or a public body….. I do not think it can be suggested by any degree of seriousness that the Public Officers (Protection) Act While it protects PUBLIC Officers cannot on the same wise protect a public department, an artificial person or a public body, so long as they are sued for an act done in the execution of their public duty The question may finally be asked whether the Attorney-General or a Permanent Secretary who is duly appointed and sworn into office may also be referred to as individual in the context of the obiter dicta in the OKWALE AND MIKE cases. My straight answer must be in the affirmative ……….” See pages 38 paras D-F, 44 paras F-H and 45 paras E-G. In NWAOGWUGWU vs. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (2007) All FWLR (Pt. 387) 1327-1354, it was held thus: “The words “any person” in Section 2 of the Public Officers Protection Act Cap 379, Laws of the Federation of Nigeria, 1990 are not limited to human or to persons sued in their personal names but also includes artificial persons, public bodies or body of persons, corporate or incorporate, statutory bodies or persons.” Counsel submitted that the Defendants in this suit, especially the 4th Defendant/Applicant, falls under the ambit of the Public Officers Protection Act. It is trite law that in order to determine if a party’s action is statute barred the court is only enjoined to look at the plaintiff’s claim. The period of limitation is determined in a case by looking at the writ of summons and the statement of claim which alleges when the wrong suffered by the plaintiff was committed and placing it side by side with the date on which the writ was issued. He referred the Court to AMEDE vs. UBA (2009) All FWLR (Pt. 469) 479 at 506/507. On this point, counsel cited in addition, the cases of • GULF OIL CO. LTD vs. OLUBA (2003) FWLR (Pt. 145) 712 AT 721, • DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1345, • OKENWA vs. MILITARY GOVERNOR OF IMO STATE (1997) 6 NWLR (Pt. 507) Pg. 154 at 167, • IKURIE vs. EDJERODE (2001) 18 NWLR (Pt. 745) Pg. 446, • NDIAZU LTD vs. NAMSON FISHING ENTERPRISES (2000) FWLR (Pt. 7) Pg. 1064 at 1072 PARA E. • ABIA vs. CRSPI LTD (2006 ALL FWLR (PT. 339) Pg. 955. In ACCORD PARTY vs. GOVERNOR OF KWARA STATE (2011) All FWLR (Pt. 555) 220 at 277, reference was made to the dictum of Tabai JSC in the case of ADEKOYA vs. FHA (2008) NSCQR (Vol. 34) 952 at 965-966 where it was held thus: “A cause of action cannot be said to accrue to the Appellant unless and until there emerges a factual situation which gives her a right of action”. In CROSS RIVERS UNIVERSITY OF TECHNOLOGY vs. OBETEN (2012) All FWLR (Pt. 641) 1567 at 1583, it was held that “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.― The question, therefore, is when did the act complained of by the Claimants occur or when did the cause of action in this suit arise. It is trite law that to determine when a cause of action arose, recourse must be had to the statement of claim as relied on by the claimants. This is because a cause of action generally accrues on the date in which the incident giving rise to the cause of action arose. The Claimants aver in paragraph 7 of their Statement of Claim thus: “Following two radio announcements of 23rd September, 2015 and 23rd November, 2015 that IMSUTH staff school has been handed over to the 5th Defendant, the Claimants went to the 3rd Defendant to find the position of the teachers of the school but were shocked to hear from the 3rd Defendant that they were also handed over to IMSUBEB. However, in the absence of any document to that effect and conditions of such handover, the Claimants continued to work as IMSUTH staff in accordance with their terms of employment and regardless of the announcements.” It is the submission of counsel that the grouse of the Claimants, as shown on the face of the complaint filed before this Court on the 12th day of August 2016, is the handover of the IMSUTH Staff School together with the Claimants who are teachers in the Staff School to the 5th Defendant. This took place between 23rd September, 2015 and 23rd November, 2015 while the complaint was filed on the 12th day of August, 2016; over a period of 10 months after the cause of action accrued. It is trite that “where a law provides for the bringing of an action in respect of a cause of action accruing to a plaintiff within a prescribed period, proceedings shall not be brought after the time prescribed by the law. Consequently, any action brought in respect of the cause of action outside the prescribed period offends against the provision and does not give rise to a cause of action. In other words, the action is statute barred. See ADIGUN vs. AYORINDE & ORS (1993) 8 NWLR (Pt. 313) Pg. 516 at 535 PARAS C-E or Pg. 534 PARAS A-B―. The Claimants having become aware of the handover of IMSUTH staff school with the teachers therein to the 5th Defendant between the 23rd day of September, 2015 and 23rd day of November, 2015 by radio announcements but chose to pretend as if nothing had happened, have slept on their right to bring this suit within the period prescribed by Section 2 (a) of the Public Officers Protection Act, Laws of the Federation of Nigeria, 2004. The cause of action in this case accrued between the time the radio announcements were made and heard by the Claimants and the general public. Their action is, therefore, statute barred and cannot be maintainable in law. Counsel urged the court to so hold. Assuming, without conceding, that the cause of action in this suit only accrued when there was a documentary evidence to show that there was a takeover of the IMSUTH staff school together with the teachers therein, counsel referred to the averments in Paragraphs 8 and 9 of the Claimants complaint which reads thus: 8. The Claimants further aver that in May, 2016, the 5th Defendant, acting on the instructions of the Government of Imo State, wrote a letter to the 3rd Defendant regarding the takeover of the IMSUTH staff primary school and its teachers. A copy of the letter dated the 4th day of May, 2016 is hereby pleaded and shall be relied upon at the trial. 9. Subsequent upon the letter of the 5th Defendant, the Claimants were asked by the 3rd Defendant to go and renegotiate their employment with the 5th Defendant contrary to the terms of the Claimants’ appointment while some of the Claimants’ colleagues at the IMSUTH staff school were retained as staff of the 1st Defendant by the 3rd Defendant. Counsel referred the court to paragraphs 11, 12 and 13 of the complaint, as filed by the Claimants and submitted that it is not in doubt that the Claimants were well aware of the takeover of the IMSUTH staff school together with the as teachers in the school, both by radio announcements and by documentary evidence, more than 3 months before the filling of this suit. In other words the Claimants were aware that a cause of action had accrued even by the letter of 4th May, 2016 and their letter of 22nd April, 2016 to the Nigerian Labour Congress. Their complaint having been filed on the 12th day of August, 2016, was filed outside the limitation period prescribed by Section 2 (a) of the Public Officers Protection Act, 2004. He urged the court to so hold. In IKURIE vs. EDJERODE (SUPRA), the court held thus: “The defence provided in Section 2 (a) of the Public Officers’ (Protection) Act is that actions caught by the provision must be commenced within 3 months next after the cause of action arose. Thus an action for any act done in pursuance of or execution of any public duty, alleging neglect or default which is not brought against a public officer within 3 months of the accrual of the cause of action shall not lie as the court will lack the requisite jurisdiction” See also NWAOGWUGWU vs. PRESIDENT OF FRN (SUPRA). It is trite that a statute of limitation removes the right of action, the right of enforcement, the right of judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce. See ELABANJO vs. DAWODU (SUPRA). It is the submission of Counsel that the action of the Claimants having not been brought within 3 months of the accrual of the cause of action in line with the law, is statute barred and, therefore, incompetent. He urged the court to so hold. He went on that it is settled law that if an action is statute barred, no amount of resort to its merit can keep it in being. The proper order to make is to dismiss it. Counsel referred to the cases of EGBE vs. ADEFARASIN (NO.2) (1987) 1 NWLR (Pt. 47) Pg. 1 and OWNERS OF THE MV ARABELLA vs. NAIC (2008) 11 NWLR (Pt. 1097) 182 at 219 and urged the court to hold that this suit is statute barred and therefore the court lacks the jurisdiction to hear and determine same. In opposition to the 4th Defendant’s Preliminary Objection, the Claimants filed an 8 paragraph affidavit and a written address wherein counsel submitted a sole issue for determination: Whether the suit is statute barred and therefore incompetent having regard to S. 2(a) of the Public Officers’ Protection Act Vol. 14 CAP 4 Laws of the Federation of the Federal Republic of Nigeria 2004. In arguing the sole issue, counsel submitted that the suit of the Claimants is not statute barred not having been caught by the provisions of S. 2(a) of the Public Officers’ Protection Act Vol. 14, Cap 4 laws of the Federation of Federal Republic of Nigeria, 2004. According to counsel, the submission of learned counsel for the 4th Defendant on Section 2 (a) of the Public Officers’ Protection Act is perverse, as counsel either deliberately or inadvertently did not state the exact wordings of the said section. For clarity, counsel reproduced the exact provision of Section 2(a) of the Public Officers’ Protection Act which states as follows: “Where any action, prosecution, or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect- (a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months NEXT after the act, neglect or default complained of or in case of a continuance of damage or injury within three months NEXT after the ceasing thereof.” According to counsel, by Section 18(1) of the interpretation Act, 2004, “month” means a calendar month reckoned according to the Gregorian calendar”. By the Gregorian calendar “month” means from the first day of a given month to the last day of that month, and not 30 days. He therefore submitted that if an event takes place on or after the first day of every given month, the time in computing limitation must start from the first day of the next month. In the instant case according to counsel, the cause of action arose by a letter dated 4th May 2016. See Paragraph 8 of the Statement of Claim. By Paragraph 9 of the same Statement of Claim, the Claimants averred that they got knowledge of the said letter of May 4th 2016 subsequently from the 5th Defendant. No specific day or date was stated in paragraph 9 by the Claimants as to when the 5th Defendant showed them the said letter of 4th May 2016; but obviously, it was after 4th May 2016. Counsel contended that it is only when the Claimant becomes aware of the cause of action that computation of time will start. Consequently, the period of months’ for the filing of an action under S. 2(a) of the Public Officers Protection Act in this case will start running from the 1st day of June to the 31st day of August 2016. And since the Claimants brought their action on the 12th day of August 2016, Counsel submitted that their action was brought within time as required. Counsel cited the case of CHIEF YAKUBU SANNI vs. OKENE LG TRADITIONAL COUNCIL & ANOR (2008) 7 NSCR Pg. 158 @ 167, Per TOBI JSC (lead Judgment), where the Supreme Court observed as follows: “1 take the second issue. The cause of action in this matter arose on 19th January 1998 when the respondents served a letter on the appellant removing him from office as a member of the Okene Local Government Traditional Council. Appellant filed the action on 11th June, 1998, a period of more than four months when the cause of action arose. Dealing with the issue, Rhodes – Vivour JCA in his judgment said at pages 107 and 108 of the Record. “In this appeal, uncontroverted facts reveal that the appellant received from the respondents a letter dated 19/1/98 informing him of his removal from the Okene Local Government Traditional Council. The appellant claimed to have received the said letter at the tail end of January, 1998. (See paragraph 11 of the statement of claim). It was at the end of January 1998 that the appellant had a cause of action. He was expected by the provisions of S.2(a) of the Public Officers’ Protection Law Cap 111 Laws of Northern Nigerian 1974 to commence action against the respondents within three months from the 31st of January, 1998, that is to say on or before the end of April, 1998, but in this case he took out a writ against the respondents on the 11th of June 1998. It is obvious that the appellants’ suit is no longer maintainable, it being statue-barred. I am in grave difficulty to fault the above conclusion of the learned Justice of the court of appeal. He is right―. According to counsel for the Claimants, the learned Justices of the Court of Appeal in computing the period in the above case applied S.18 (1) of the Interpretation Act i.e. month to month, and the Supreme Court agreed. This position of the law was also applied by the Supreme Court in the case of IFEZUE LIVINUS vs MBADUGHA & ANOR (1984) 1 All NIR 256. Counsel urged the court to dismiss the motion. Furthermore, in determining the issue of limitation of time, the Courts can only have recourse to the Claimants’ writ of summons and statement of claim and nothing else. See also CHIEF YAKUBU SANNI vs OKENE LG TRADITIONAL COUNCIL & ANOR (SUPRA). To counsel, both the Claimants’ writ of summons and statement of claim show that the action of the Claimants is an action in breach of contract of employment and that there is a continuance of damage/injury resulting from the breach up till this point. This being so, counsel submitted that the case of the Claimants comes within the exception to S. 2(a) of the Public Officers Protection Act, 2004. See paragraphs 1 – 9 of Claim of the writ of summons and paragraphs 10, 12, 13, 14, 15 & 16 a – l of the statement of claim. Counsel referred to the case of THE CENTRAL BANK OF NIGERIA vs. JACOB OLADELE AMAO & 2ORS (2010) 5 – 7 SC Pt. 1 Pg. 1558, PER ONNONGHEN JSC where the Supreme Court held that: “an action against a public officer … can only be commenced within 3 months NEXT after the act, EXCEPT in a case of continuance of damage or injury in which the person aggrieved must institute the action within 3 months next after the cessation of the damage or injury complained of”. According to counsel, it is obvious that the damage or injury of not paying the Claimants their salaries is continuing up to this moment. In OSUN STATE GOVERNMENT vs. DALAMI NIGERIA LTD (2007) 3 SC Pt. 1 Pg. 131 the Supreme Court per Katsina Alu (JSC) held as follows: “It is now settled Law that S. 2 of the Public Officer’s Protection Act does not apply to cases of contract”. This decision of the Supreme Court followed an earlier one which was given per Mohammed JSC, in the case of FEDERAL GOVERNMENT OF NIGERIA & ORS vs. ZEBRA ENERGY LTD (2002) 12 SC (Pt. II) 136 as follows: “The Public Officers Protection Act does not apply in cases of recovery of land, breach of contract, claims for work and labour done etc”. Counsel urged the court to hold that the action of the Claimant is not caught by the statute of limitation and dismiss the application. Finally, while counsel conceded that Public Officer under S. 2(1) of the Public Officers Protection Act includes Artificial persons as stated in the cases of Ibrahim vs. JSC, Abubakar vs. Governor Of Gombe State, and Nwaogugu vs. President of the Federal Republic of Nigeria (all cited by the applicant’s counsel), he contended that this particular case is not caught by the statute of limitation in favour of the 4th Defendant as a public officer. He urged the court to dismiss the applicant’s application as lacking in merit and hear the Claimants’ suit on its merit. The 4th Defendant filed a 6 paragraph further affidavit and a Reply on points of Law wherein Counsel proffered arguments in answer to the issues raised by the Claimants in their Counter Affidavit in opposition to the Preliminary Objection. According to counsel, the Claimant’s counsel’s submission, both to the effect that the cause of action in this suit arose from the letter of the 5th Defendant dated 4th May 2016, and that the action of the Defendants is a continuous one, is misconceived. It is counsel’s submission on this point, that it is trite that a cause of action accrues on the particular date which gave rise to the incident in question and for the purposeful intendment of statute with stipulation 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. He referred to the case of CROSS RIVER UNIVERSITY OF TECHNOLOGY vs. OBETEN (2012) All FWLR (PT. 641) 1567 at 1583. Also in DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1345, it was held thus: “time begins to run for the filing of an action when the cause of action arose. This means that once there exist two people with interest at variance to each other over a subject matter, the aggrieved party must go to court timeously.” Counsel for the Defendants went on to submit that the radio announcements of 23rd September, 2015 and 23rd November, 2015 ceding the IMSUTH staff school with the Claimants who are teachers thereat to the management and control of the 5th Defendant had foisted on the Claimants an interest which is at variance with the purported terms and conditions of their employment with the 2nd Defendant. The radio announcements under reference had created a misunderstanding which the Claimants ought to have challenged within the stipulated time frame allowed by law. Counsel urged the court to so hold. In answer to the Claimants’ contention that the act of the Defendants is a continuous one in that their salaries have not be paid by the 2nd Defendant till date and as such the provisions of the Public Officers Protection Act is not applicable in the instant case, counsel stated that this argument does not hold water. He submitted that the act of handing over the IMSUTH staff school together with the Claimants to the supervision and control of the 5th Defendant and the subsequent stopping of payment of their salaries by the 2nd Defendant cumulated in the letter of 4th May, 2016; and are all consequences of the initial act of September and November, 2015. Therefore, the consequent act of not paying their salaries is not a continuous one. Counsel referred court to the judgment of this Honourable court in SUIT NO: NICN/EN/0l/2012, UKAWIKE EMMANEUL NGOZI & 76 ORS vs. GOVERNOR OF IMO STATE & ANOR, delivered on the 11th day of November, 2015, where this court distinguished between a continuous act and an act which is not continuous and held thus: “continuance of injury or damage in the context of the limitation law means………The continuance of the act which caused the injury or damage and not merely continuance of the injurious effect of the legal injury. It means continuance or repeat of the act which caused the injury. It does not mean the concomitant effect of the damage or injury”. See also the judgment of this court delivered on 28th day of April, 2014 in Suit No. NICN/OW/38/2013, UGOALA CHIDINMA JOY (MRS) vs. ABIA STATE UNIVERSAL BASIC EDUCATION BOARD & ORS. It is counsel’s submission that continuous injury in the context of the Public Officers Protection Act means repetition of the act that constitutes the legal wrong and not the continuance of the consequences that followed the legal wrong. See OLAOSEBIKAN vs. WILLIAMS (1996) 5 NWLR (Pt. 449) 437 at 456; OBIEFUNA vs. OKOYE (1961) All NLR 357. In THE GOVERNOR OF EKITI STATE vs. AWOLOLA (2006) All FWLR (312) 2066 at 2086-2087 PARAS H-A Ikongbe JCA held thus: “In matters where what is complained of is one act which might have led to adverse repercussion, time for purposes of determining the date of the accrual of the cause of action, starts to run from the date of occurrence of the act, not the date of cessation of the ensuing repercussion.” The Claimants’ salaries were stopped by the 2nd Defendant as a result of their handover to the 5th Defendant and following their refusal to collect the salaries based on the salary structure of teachers employed in the Imo State school system. It follows, therefore, that the Claimants have not made out any case of continuance of injury or damage. The Defendants’ act of announcing the handing over of the Claimants to the 5th Defendant was the overall injurious act and set in motion the letter of 4th May, 2016 which was merely a notice of the cumulative events that occurred in September and November 2015. The Public Officers Protection Act, therefore, applies in this case. According to counsel for the Defendants, all the cases cited by the learned counsel for the Claimants are not applicable in this case. He urged the court to discountenance them. In answer to the argument of learned counsel to the claimants that the provisions of the Public Officers Protection Act do not apply to cases of contract; it is the submission of Counsel for the Defendant that the relationship that exists between the Claimants and the Defendants in this case is not an ordinary contract but that of contract of employment. He submitted that while the Act does not apply to breach of ordinary contract, it applies to contract of employment as in the instant case. According to counsel, the cases cited by learned counsel for the Claimant are distinguishable from the instant case, as they relate to breach of ordinary contract entered into by parties and not contract of employment with statutory flavor as in this case. He urge the court to so hold. On the issue of meaning of one month as defined by counsel to the Claimants, Counsel referred the court to Black’s Law Dictionary eighth edition page 1029 where the word month is defined as” One of the twelve period of time in which the calendar is divided…. Any time period approximately 30 days….― According to counsel, a period of three months for the purpose of the limitation law is 90 days and not One Hundred and Nineteen (119) days as reckoned by counsel for the Claimants. Assuming therefore, though without conceding; that time began to run for the Claimants from the date of the letter of 4th May, 2016, counsel submitted that the time allowed by law within which the Claimants must bring this action expired on the 4th day of August 2016 and not a day longer. Therefore, the action of the Claimants filed on the 12th day of August 2016 was filed outside the statutory period prescribed by law. On whether the Defendants especially the 4th Defendant are Public Officers for the purposes of the limitation law, counsel referred the court to the case of NWAOGUGU vs. THE PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (2007) All FWLR (Pt. 387) 1327-1354 where it was held thus: “The words “any person― in Section 2 of the Public Officers’ Protection Act Cap 379, Laws of the Federation of Nigeria, 1990 are not limited to human or to persons sued in their personal names but also includes artificial persons, corporate or incorporate, statutory bodies or persons.― Counsel submitted that all the Defendants are creation of statute and therefore statutory bodies as defined by the Public Officers’ Protection Act. The Imo State University Teaching Hospital Management Board Law No. 9 of 2002 created the Imo State University Teaching Hospital. The law also established the Imo State University Management Board and also the position of Managing Director, the 3rd Defendant in this case. The 4th and 5th Defendants also are creations of statute and therefore statutory bodies for the purpose of the limitation law. Counsel urged the court to discountenance the submission of learned counsel for the Claimants on this issue. He urged the court to dismiss this action for being incompetent as this court lacks jurisdiction to hear and entertain same. COURT’s DECISION There are two applications to be considered in this ruling. The 4th Defendant raised a preliminary objection to the jurisdiction of this court to entertain this suit. I will determine that application first. The 4th Defendant’s Notice of Preliminary Objection prays for the dismissal of this suit for reason of lack of jurisdiction by this court. In the grounds of the objection, it was stated that the suit is statute barred by the effect of Section 2 (a) of the Public Officers’ Protection Act. In the affidavit in support of the Notice of Preliminary Objection, it was deposed that the Claimants’ cause of action happened between 23/9/2015 and 23/11/2015 but they instituted this action on 12/8/2016 which was a period of 10 months after their cause of action arose. The Claimants brought the action against the Defendants, who are public officers, after the period allowed by the Public Officers’ Protection Act to do so. The suit is consequently statute barred, incompetent and the court lacks jurisdiction to entertain it. The Claimants opposed the application vide a counter affidavit deposed to by the 1st Claimant. He averred that the Claimants’ cause of action arose from a letter written by the 5th Defendant on 5th May 2015. The suit is brought within the period required by law and the court has jurisdiction to entertain the suit. The damage or injury caused to the Claimants by the actions of the Defendants has continued till date as their salaries have not been paid till date even though they have continued to attend work. The suit is founded on breach of contract which makes it an exception to Section 2 of the Public Officers’ Protection Act. The 4th Defendant filed a 6 paragraphs further affidavit on 22nd February 2017. The substance of the further affidavit is contained in Paragraph 5 thereof. I observe that the depositions in that paragraph are characterized by legal arguments and conclusions. The depositions offend Section 115 (2) of Evidence Act 2011. Paragraph 5 of the further affidavit is hereby struck out. This leaves nothing in the further affidavit capable of being considered. The provision of Section 2 (a) of the Public Officers’ Protection Act limited the time within which an action can be commenced against a public officer. It provides that no action can be commenced against a public officer in respect of his duties or any default in respect of his duties unless it is commenced within 3 months after the act, or neglect or default complained of. Where the suit is not commenced within the prescribed period, the Claimant’s right of action in respect of that cause will be statute barred and the court will no longer have jurisdiction to entertain the suit. See IBRAHIM vs. J.S.C, KADUNA STATE (1998) 12 SC 20; EGBE vs. ALHAJI (1990) 3 S.C (Pt.1) 63; NNAMDI AZIKIWE UNIVERSITY, AWKA vs. NWEKE (2008) All FWLR (Pt. 428) 343. In the counter affidavit of the Claimants and in the written address of their counsel, they did not dispute the fact that the Defendants are public officers or that the act being challenged in this action was done by the Defendants pursuant to their duties as Public Officers. There appears not to be any dispute as to the fact that the Defendants are Public Officers. The only issue remaining to be resolved is whether the Claimants filed this suit against the Defendants within 3 months of the accrual of his cause of action. In doing so, there is need to find out when the Claimants’ cause of action arose and when they filed this suit. In the affidavits of the parties, they have divergent views on when the Claimants’ cause of action arose. While the Defendants contend that the Claimants’ cause of action arose between 23/9/2015 and 23/11/2015, the Claimants averred that their cause of action arose on 5/5/2015. The law is settled that in determining whether a suit is statute barred, the processes which should be examined are the Writ and the statement of claim; in this case, they are the Complaint and the Statement of Facts. See J.S.F. INVESTMENT LTD. vs. BRAWAL LINE LTD. (2011) All FWLR (Pt. 578) 876 at 902; AMEDE vs. UBA (2009) All FWLR (Pt. 469) 479 at 506/507. It is from these processes the date of accrual of the cause of action and the date the suit was filed can be found. I have gone through the reliefs sought by the Claimants in this case and the facts pleaded in the statement of facts upon which they claim the reliefs in order to discover when the Claimants cause of action arose. It is observed that the dispute in this case was the takeover or transfer of IMSUTH Staff School to the 5th Defendant. In paragraph 7 of the statement of facts, the Claimants pleaded that on 23/9/2015 and 23/11/2015 radio announcements were made to the effect that IMSUTH Staff School has been handed over to the 5th Defendant. Upon these announcements, the Claimants went to inquire from the 3rd Defendant who informed the Claimants that the Claimants too had been handed over to the 5th Defendant. Because there was no document to that effect, they continued to discharge their duties at IMSUTH Staff School. Then the Claimants pleaded in paragraphs 8 and 9 of the statement of facts that by a letter dated 4th May 2016, the 5th Defendant informed the 3rd Defendant of the takeover of IMSUTH Staff Primary School and its teachers. Based on this letter, the 3rd Defendant directed the Claimants to go and renegotiate their employment with the 5th Defendant which directive was contrary to the terms of their employment. A cause of action is said to accrue when it can be said or there exists in the person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. See BANK OF THE NORTH vs. GANA (2006) All FWLR (Pt. 296) 862 at 881; DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 AT 1348. By the pleading of the Claimant in Paragraphs 7, 8 and 9 of the statement of facts, the events which culminated in the institution of this suit was the letter of 4th May 2016 written to the 3rd Defendant on the takeover of IMSUTH Staff Primary School and the Claimants and the 3rd Defendant’s directive to the Claimants to renegotiate their employment with the 5th Defendant. A cause of action accrued to the Claimants from the moment the letter of 4th May 2016 was written to the 3rd Defendant and he directed the Claimants to go and renegotiate their employment with the 5th Defendant. Therefore, from the date of the letter, all facts have happened which gave the Claimants a cause of action. From the facts, the Claimants’ cause of action accrued on 4th May 2016 and the time started counting against them from that day. This suit was filed on 12th August 2016. Taking the date of the cause of action and the date the suit was filed, it will appear the Claimants did not file the suit within time. The Claimants counsel submitted however that “month― as used in the Public Officers’ Protection Act means a calendar month as defined in the Interpretation Act. Counsel submitted that the Claimants filed the suit within 3 months of their cause of action because the 3 months period ought to be calculated from 1st June 2016 to 31st August 2016. But the learned counsel for the 4th Defendant submitted, in her reply on points of law, that by the definition of “month― in the Blacks’ Law Dictionary, a month is calculated in days which approximates 30 days. Counsel further submitted that if the Claimants’ cause of action is taken to have accrued on 4th May 2016, then the 3 months period prescribed by the Public Officers’ Protection Act would have lapsed on 4th August 2016. By the provision of Section 18 (1) of the Interpretation Act 2004, “month― has been defined to mean a calendar month reckoned according to the Gregorian calendar. The question arising from the arguments of counsels is how do we calculate a month? I will rely on the case of CHIME vs. ATTORNEY GENERAL, FEDERATION (2008) All FWLR (Pt. 439) 550 in resolving this issue. In that case, the issue came before the Court of Appeal whether a suit filed on 10th December 2001 on a cause of action which arose on 10th September 2001 was statute barred by the effect of Section 2 (a) of the Public Officers’ Protection Act. In the following comments of TSAMIYA JCA at pages 567 to 569, the Court of Appeal considered the definition of calendar month in the Interpretation Act and then explained how “months― used in the Public Officers’ Protection Act is computed: “The Gregorian calendar, to be noted, is the system now in general use, of arranging the months in the year and the days in the months as introduced by Pope Gregory XII (1502-1585). Oxford Advanced Learner’s Dictionary, page 522. One important point to note is that the law did not use the term days which is specific but rather used the term months and months varied in days. In computing time therefore, by calendar months, the time must be reckoned by looking at the calendar and not by counting days. Applying the above principle, the period will be as follows: 1. The month of September has 30 days. Therefore, from 10 September 2001 – 9 October 2001= 1 month. 2. From 10 October 2001 – 9 November 2001= 1 month because there are 31 days in October. —————– —————– —————- 3. From 10 November 2001 – 10 December 2001= 1 month because there are 30 days in November 2001 The period of 3 months from 10 September 2001 will end on 10 December 2001―. The Court of Appeal further held at page 569 of the report that the date of the event is normally excluded in computing the time. From this explanation and illustrations made by the Court of Appeal on the computation of “month―, it is clear to me that a month is reckoned from the day next to the particular day in the month an act is to be carried out or in which an event occurred to lapse on the day in the following month which makes a total of the days in the initial month. I do not therefore agree with the Claimants’ counsel that the calculation of the three months period limited in the Public Officers’ Protection Act within which the Claimants ought to file this action against the Defendant should start counting from 1st June 2016. Using the formula to calculate three months from 4th May 2016 when the Claimants’ cause of action arose, the period will be as follows: 1. 5th May 2016 to 4th June 2016=1 month 2. 5th June 2016 to 4th July 2016= 1 month 3. 5th July 2016 to 4th August 2016= 1 month Three months from 4th May 2016 lapsed on 4th August 2016. The Claimants filed this action on 12th August 2016. The suit was not filed within three months as required in Section 2 (a) of the Public Officers’ Protection Act. In paragraph 5 (b) and (d) of the Claimants counter affidavit, it was deposed that the damages and injuries caused to the Claimants by the Defendants’ action have continued and their salaries have not been paid till date. Also, that their suit is not affected by the Public Officers’ Protection Act because it is for breach of contract. On this premise, the counsel to the Claimants argued that these factors constitute exceptions to the application of Section 2 (a) of the Public Officers’ Protection Act to this suit. I will say it straight away that the exceptions relied on by the Claimants will not avail them in the circumstance of their case. While I am in agreement with the Claimants’ counsel that continuance of damage or injury is an exception to Section 2 (a) of the Public Officers’ Protection Act, it is my view that the Claimant’s cause of action in this suit can be said to be a continuance of damage or injury. The Claimants’ cause of action is the 5th Defendant’s letter of 4th May 2016 and the directive of the 3rd Defendant to the Claimants to renegotiate their employment with the 5th Defendant. These acts of the Defendants happened on a particular day, and there is nothing in the Claimants pleading to suggest that these acts were being repeated by the Defendants. The Claimants’ cause of action in this case is not a continuing injury or damage as contemplated in Section 2 (a) of the Public Officers’ Protection Act. In his written address, the Claimants’ counsel contended that the Public Officers’ Protection Act does apply to cases on contract. Counsel cited OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD and FEDERAL GOVERNMENT OF NIGERIA vs. ZEBRA ENERGY LTD on the point. Let me first state that what the Supreme Court considered in OSUN STATE GOVERNMENT vs. DALAMI (NIG) LTD and FEDERAL GOVERNMENT OF NIGERIA vs. ZEBRA ENERGY LTD was the application of the Public Officers’ Protection Act to independent contracts and not its application to contracts of employment. In any case, the courts have since recognized the fact that the Public Officers’ Protection Act applies to cases on contract of employment. See IBRAHIM vs. J.S.C KADUNA STATE (SUPRA); F.R.I.N. vs. GOLD (2007) All FWLR (Pt.380) 1444; UNIVERSITY OF JOS vs. DR. SANI MUHAMMAD ADAM (2013) LPELR-20276, among several other cases of contract of employment where the provision of Section 2 (a) of the Public Officers’ Protection Act was applied. In my view, the Public Officers’ Protection Act applies to this case. Having considered the submissions of counsels on the Notice of Preliminary Objection and all other facts relevant to the determination of the NPO, I find that the Claimant’s suit is statute barred. The facts are clear that this suit was filed more than 3 months from the date the cause of action arose. The action is no longer maintainable even as this court lacks jurisdiction to continue to entertain it. In the circumstance, the appropriate order to make is to dismiss the suit. Accordingly, this suit is hereby dismissed. No order as to cost. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge |
