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National Industrial Court

FRANCIS UKPABI -vs- THE VICE CHANCELLOR, EBSU

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 IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ABAKALIKI JUDICIAL DIVISION

HOLDEN AT ABAKALIKI

 

BEFORE HIS LORDSHIP, HON. JUSTICE IKECHI GERALD NWENEKA

 

DATE: 12th April 2018                                            SUIT NO. NICN/EN/12/2017

 

BETWEEN

 

FRANCIS UKPABI                                                   …   CLAIMANT

 

AND

 

  1. THE VICE CHANCELLOR, EBSU …     DEFENDANTS
  2. EBONYI STATE UNIVERSITY, ABAKALIKI

 

REPRESENTATION:

 

Innocent Chikaodili Nomeh Esq. for the Claimant

Uchenna Innocent Eme Esq. with Elias Agashi Awoke Esq. and Mrs. Peace Chidinma Odoh for the Defendants

 

JUDGMENT

 

  1. The Claimant commenced this suit by a Complaint dated 3rd January 2017 but filed on 14th February 2017 seeking the following reliefs:

 

  1. An order of Court nullifying the Claimant’s dismissal and restoring him to his position and office.

 

  1. An order to the Defendants to pay Claimant all the half salaries with effect from April 2010 to 27th February 2012 and his full salary with effect from March 2012 till he is restored to his office.

 

  1. N25, 000,000 [twenty five million naira] general damages for the embarrassment and exposure to public ridicule being a Chartered Accountant.

 

  1. The Claimant filed alongside the Complaint a statement of claim, list of witness, Claimant’s statement on oath and copies of documents. The processes were served on the Defendants on 1st June 2017. The Defendants, through their Counsel, Uchenna Eme Esq., entered a conditional appearance and filed a statement of defence, list of witnesses, witness’ statement on oath, list of documents to be relied upon at trial and copies of the documents on 12th January 2018 together with a motion on notice for enlargement of time. The Claimant filed a reply to the statement of defence on 13th February 2018 and Claimant’s additional statement on oath and attached some documents. The Defendants’ motion for enlargement of time was heard and granted on 1st February 2018 and the matter fixed for trial for 27th February 2018.

 

  1. By Motion on Notice dated 21st February 2018 and filed on 23rd February 2018, the Defendants/Applicants [“the Defendants”] prayed the Court for an order striking out this suit for lack of jurisdiction on the ground that by the provisions of section 31[2] of the Ebonyi State University Law, 2009 as amended by Law no. 2 of 2011, the suit was not commenced within three months from the date the cause of action accrued and therefore statute barred. The application is supported with 16 paragraphs affidavit deposed to by Mr. Peter Mgbabor, Head of Department of Human Resources Management and Litigation Desk Officer of the 2nd Defendant. Attached to the affidavit are three exhibits, exhibits UIE 1, UIE 2 and UIE 3 and a written address dated 21st February 2018 and filed on 23rd February 2018. The Claimant/Respondent [“the Claimant”] filed 13 paragraphs counter affidavit dated 5th March 2018 deposed to by the Claimant. Attached to the counter affidavit are two exhibits, exhibits A and B and a written address dated 5th March 2018. After receipt of the Claimant’s counter affidavit and written address, the Defendants filed a further and better affidavit deposed to by Mr. Peter Mgbabor with two exhibits, exhibits UIE 3 and UIE 4 and reply on point of law.

 

  1. The application came up for hearing on 19th March 2018. Learned Counsel for the Defendants, Mr. Eme, relied on the affidavit in support, the further and better affidavit in support of the application and the attached exhibits and adopted his written address and reply on point of law as his argument in support of the application and urged the Court to follow its earlier decisions in exhibits UIE 3 and UIE4 and resolve that the Ebonyi State University Law is the applicable law. In opposing the application, the Claimant’s Counsel, Mr. Nomeh, relied on the depositions in the counter affidavit and attached exhibits and adopted his written address as his argument in opposition. By way of adumbration, he submitted that section 31[2] of Ebonyi State University Law never made provisions for limitation of actions. It was also submitted that assuming that there is any other section of Ebonyi State University Law 2009 that made similar provision referred to by learned Counsel for the Defendants, that provision is not applicable to the contract of employment because the provision never made reference to the contract of employment. He contended that the wording of that provision is meant to protect the employees in the discharge of their duties and the only applicable law that regulates limitation of action in respect of contract of employment is Ebonyi State Limitation Law, 2009 and relied on the unreported case of Onu Agha Uduma v. A. G. Ebonyi State & 2Ors., Appeal No. CA/E/237/2011. He submitted further that the circumstances that gave rise to exhibits UIE3 and UIE4 are not the same with this case and urged the Court to hold that the Ebonyi State Limitation Law is the applicable law. In response, learned Counsel to the Defendants urged the Court to discountenance the fresh issues raised by virtue of Order 17 rule 1[13] National Industrial Court [Civil Procedure] Rules 2017. He also submitted that the deposition in paragraphs 5a, b, c, d and e complies with section 115[4] of the Evidence Act.

 

  1. The Defendants did not submit any issue for determination but contended that this suit was commenced more than three months’ after accrual of the cause of action in breach of the provision of section 31[2] of the Ebonyi State University Law 2009 as amended by Law No. 2 of 2011. This issue was raised in paragraphs 3, 4, 5 and 6 of the affidavit in support of the motion on notice and paragraphs 15 to 17 of the statement of defence. In paragraph 16 of the statement of defence, the Defendants averred that:

 

“The cause of action in this matter arose on the 27th February 2012 when the Plaintiff was informed of his dismissal from the employment of the 2nd Defendant via a letter referenced EBSU/R/SSE/75 informing the Plaintiff of the decision of the Governing Council of the 2nd Respondent in its 34th regular meeting that he has been dismissed from the service of the 2nd Respondent.”

 

Relying on Asaboro v. Pam Ocean Oil [Nig.] Ltd. [2006] NWLR [pt.971] 595 at 601, the Defendants submitted that a cause of action is a fact or facts which establish or give rise to a right of action and it is the factual situation which gives a person a right to judicial relief. It was contended that by section 31[2] of Ebonyi State University Law all actions against the Defendants must be commenced within three months from the date of the cause of action. Learned Counsel, therefore, submitted that this suit having not been commenced within three months of the Claimant’s dismissal from the services of the 2nd Defendant is statute barred and relied on A. C. B. v. N. T. S. [Nig.] Ltd. [2007] 1 NWLR [pt. 1016] 596 at 603. It was further submitted that where a cause of action is statute barred, it affects the legal competence or jurisdiction of the Court and relied on N.D.I.C. v. Silvaiwax Ltd. & Anor. [2006] 7 NWLR [pt.980] 688 at 594. Learned Counsel finally submitted that the proper order to make in the circumstances is one striking out the suit and relied on Shaibu v. NAICOM [2002] 12 NWLR [pt.780] 116 at 121.

 

In response, the Claimant raised one issue for determination, to wit: “whether the suit of the Claimant is statute barred?” Arguing the lone issue, learned Counsel for the Claimant submitted that the action of the Claimant is not statute barred. He explained the various steps taken by the Claimant to ventilate his grievance including filing an action at the Ebonyi State High Court. He submitted that when a Court is exposed to two provisions of law on the same issue, one general and the other specific, the Court will fall on the specific provision in the event of apparent conflict and relied on Hon. Justice E.O. Araka v. Hon. Justice Don. Egbue [2003] 7 SCNJ 114 at 124. It was also contended that where there is a specific law on the subject matter, then that law would have overriding effect on the general legislation and relied on C.A.C. v. Governing Council of ITF [2014] All FWLR [pt.716] 560 at 570 and Momah v. Spring Bank Plc [2009] 3 NWLR [pt.1129] 553. It was further argued that Ebonyi State Limitation Law is a specific law while Ebonyi State University Law is a law governing general matters and as such Ebonyi State Limitation Law overrides Ebonyi State University Law in the event of conflict and relied on sections 18 and 19 of the Ebonyi State Limitation Law. Finally, learned Counsel submitted that section 19[1] of Ebonyi State Limitation Law specifically and expressly excluded the application of section 31[2] of Ebonyi State University Law.

 

  1. I have carefully considered the affidavits filed by the parties, the attached exhibits and the written addresses of learned Counsel for the parties and listened to their oral submissions. The issue for determination in this application is whether this suit is statute barred? It is the Defendants’ contention that the suit is statute barred because the time between accrual of the cause of action and institution of this suit is more than three months. It is trite that in determining whether a suit is statute barred or not, the Court is expected to examine the originating processes to wit, the complaint, the statement of facts, Claimant’s statement on oath and copies of documents attached in proof of the claim to ascertain when the cause of action arose. See the case of Chief S. N. Muomah v. Spring Bank Plc [2009] 3 NWLR [pt.1129] 553 at 570. In paragraph 1 of the endorsement of the claim on the complaint, the Claimant stated as follows:

 

“The Claimant was a senior staff and of the rank of Deputy Bursar of Ebonyi State University, Abakaliki, before his appointment was terminated on 27th February 2012.”

 

This averment was repeated in paragraphs 1 of the statement of facts and Claimant’s statement on oath. In paragraph 15 of the statement of facts, the Claimant also averred that:

 

“The Claimant was placed on suspension by the Defendants from 9th April 2010 to 27th February 2012 when the Defendants purportedly dismissed him from the service of the University after putting in 31 good years of service to the institution. The Claimant pleads the letter of dismissal No. EBSU/R/SSE/75 of 27th February 2012, and shall rely upon it at trial.”

 

In addition, relief 1 in both the Complaint and statement of facts seeks an order nullifying the Claimant’s dismissal and restoring him to his position and office. It follows, therefore, that the fact which gave rise to the cause of action is the Claimant’s dismissal by letter dated 27th February 2012. A letter becomes effective upon delivery, and that will be the date when the cause of action is said to accrue. See the case of Mr. Victor Eka v. Mr. Caleb Adetunji Bodunrin Kuju [2013] LPELR-22124[CA] at page 16. It is not clear from the originating processes when the Claimant received the letter of dismissal. However, the Claimant’s Solicitors, V. O. Anyanwu & Co.’s letter to the 1st Defendant is dated 7th March 2012; which gives the impression that the letter of dismissal was received before that date. For the purpose of limitation of action, time begins to run from the date of accrual of the cause of action, which is a date after 27th February 2012 and before 7th March 2012. The Defendants in paragraph 16 of their statement of defence puts the date as 27th February 2012. The Claimant did not dispute this fact but in paragraph 16 of his reply to the statement of defence averred thus:

 

“The Claimant responds to paragraphs 15 to 22 of the Defendant’s statement of defence and states that the Claimant has five [5] years within which to commence this action under Ebonyi State Law of Limitation.”

 

In paragraph 2 of his counter affidavit the Claimant confirmed that he was dismissed from the services of the 2nd Defendant by letter dated 27th February 2012. Thus, the parties are agreed that the cause of action arose on 27th February 2012 being the date on the letter of dismissal. As explained above, the operative date is the date of delivery not necessarily the date on the letter; but in the absence of evidence on the date of delivery, the Court will look at the date on the letter of dismissal regard being had to the date of the Claimant’s Solicitors’ letter pleading for reinstatement.

 

  1. However, the bone of contention in this application is which of the two laws: Ebonyi State Limitation Law [Cap 102] Laws of Ebonyi State of Nigeria, 2009 and Ebonyi State University Law [Cap 81] Laws of Ebonyi State of Nigeria, 2009 as amended by Law No. 2 of 2011, is the applicable law to the cause of action? The Defendants submitted in the written addresses filed by their learned Counsel that the Ebonyi State University Law 2009 as amended by Law No. 2 of 2011 is the applicable law and relied on two decisions by this Court on similar facts. On the other hand, the Claimant argued that the Ebonyi State Limitation Law [Cap 102] 2009 is the applicable law and he relied on Onu Agha Uduma v. A. G. Ebonyi State & 2Ors., Appeal No. CA/E/237/2011 and Hon. Justice E. O. Araka v. Hon. Justice Don Egbue [2003] 7 SCNJ 114 at 124. He submitted that the Ebonyi State Limitation Law being a specific law overrides the Ebonyi State University Law 2009 as amended by Law No. 2 of 2011, which is a general law. This raises the question of what is a general law or a specific law? Longman Dictionary of Contemporary English New Edition for Advanced Learners defines ‘general’ as used when talking about the whole of a situation, group, or thing, rather than specific parts of it; while ‘specific’ is defined as affecting only one particular thing. Learned Authors of Black’s Law Dictionary, 10th Edition, defined “general law” as a statute affecting the general public that is, the people of the whole State or of a particular portion of the State; law that is neither local nor confined in application to particular persons. It is general law if it purports to apply to all persons or places of a specified class throughout the jurisdiction. A statute that relates to a subject of a broad nature [pages 1425 and 1016]. “Special law”, on the other hand, is defined as a statute that pertains to and affects a particular case, person, place or thing, as opposed to the general public [page 1016].

 

  1. Flowing from these definitions, therefore, general law could be regarded as one of general application; while specific law is law with restricted application or law that applies to a certain category of persons or things. The question then is, in the light of this definition, can the Limitation Law, CAP 102, Laws of Ebonyi State, 2009 be said to be a specific law? I do not think so. The Limitation Law in its title sets out to be “A law to make provisions for limitation of time within which an action could be brought in certain cases and matters connected therewith.” It provides for period of limitation in respect of land, judgments, trust property and estate of deceased persons, contract, tort and other actions. This law, while regulating the time for commencement of actions, is of general application throughout Ebonyi State [except those specifically excluded in section 43]. Section 44 provides that “Any enactments relating to the limitation of action which were in force in the State immediately before the commencement of this Law shall cease to apply.” Section 42 deals with actions against the State or State public authority; which appears to be a reference to Public Officers Protection Law. Conversely, Ebonyi State University and Related Matters [Amendment] Law, 2011, Law No. 002 of 2011 in its title reads: “A law to amend Ebonyi State University Law No. 007 of 1999 and to provide for related matters.” From its title and content, Ebonyi State University and Related Matters [Amendment] Law, 2011 makes provision for matters relating to or connected with Ebonyi State University. It regulates relationships and activities within the University only. In my view, it can be described as a special or specific law and I so hold.

 

  1. With this mind, I will now consider the merits of the application. But before I do this, I will like to make a few comments on the processes filed on behalf of the parties. First, it is important learned Counsel reads the processes before it is filed in Court. I have often said that no amount of hurry justifies the filing of badly typed or drafted processes in Court. Beginning with the defence processes to this application, there are avoidable errors. Learned Counsel kept referring to the Defendants as “Respondents” even when the action was commenced with a complaint. In the affidavit in support of the motion and written address repeated reference is made to Ebonyi State University Law 2009 as amended by Law No. 2 of 2011. There is no such law. The Ebonyi State University Law No. 7 of 1999 was repealed and re-enacted by Ebonyi State University and Related Matters [Amendment] Law, 2011. The Ebonyi State University Law No. 7 of 1999 is Cap 81, Laws of Ebonyi State of Nigeria, 2009. But, the law has been repealed and no longer law capable of being cited by Counsel in Court. The next issue deals with wrong citation of cases. The learned Counsel on both sides are guilty of this. From Asaboro v. Pam Ocean Oil [Nig.] Ltd. [supra] to A. C. B. v. N. T. S. [Nig.] Ltd. [supra] and N.D.I.C. v. Silvaiwax Ltd. & Anor. [supra], the citation of the cases is wrong. The first case is Comfort Olufunmilayo Asaboro v. Pan Ocean Oil Corporation [Nig.] Ltd. & Anor. The third case is Nigerian Deposit Insurance Corporation v. O’ Silvawax International Ltd. & Anor. The case of Momah v. Spring Bank Plc [supra] cited by Claimant’s Counsel is Chief S. N. Muomah v. Spring Bank Plc [2009] 3 NWLR [pt.1129] 553 at 570. In the words of Onnoghen, J.S.C. [as he then was] in Emmanuel Okafor & 2 Ors. v. Augustine Nweke & 4 Ors. [2007] 10 NWLR [pt.1043] 521 at 532:

 

“Legal practice is a very serious business that is to be undertaken by serious minded practitioners particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession in this country.”

 

  1. Thirdly, is the issue of compliance with section 115[4] of the Evidence Act, 2011. Learned Counsel for the Defendants argued that paragraphs 5[a], [b], [c], [d] and [e] of the further and better affidavit do not offend section 115 of the Evidence Act but comply with section 115[4] of the Act. I have looked at the further and better affidavit and observe that paragraphs 5[a], [b], [c], [d], [e], [f], [i] and [j] are not statements of facts and circumstances or belief from information derived from the Defendants’ Counsel or any other source requiring the other party to controvert or in respect of which the deponent can lead evidence. They are in the form of arguments and conclusions. Section 115[4] of the Evidence Act, 2011 relates to and is connected with section 115[3] of the Evidence Act, 2011. For ease of reference I will reproduce the subsections here. Section 115[3] of the Evidence Act provides:

 

“When a person deposes to his belief in any matter of fact, and his belief is derived from any other source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.” [Underlining mine]

 

Section 115[4] of the Evidence Act provides:

 

“When such belief is derived from the information received from another person, the name of his informant shall be stated, and reasonable particulars, shall be given respecting the informant, and the time, place and circumstance of the information.” [Underlining mine]

 

Evidently, the “such belief” referred to in subsection 4 must relate to “any matter of fact” as set out in subsection 3. Subsection 4 is not a licence to include legal arguments and conclusions in the affidavit. Section 115[2] of the Evidence Act, 2011 states that “An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.” It is a mandatory provision. The Court of Appeal in Cosmas Maduka v. Dr. Patrick Ifeanyi Ubah & 4 Ors. [2014] LPELR-23966[CA] page 32-33 relying on the case of General Aviation Services Ltd. v. Thahal [2004] All FWLR [pt.211] 1368 at 1390 established the test for distinguishing facts from legal arguments and conclusions. In that case, per Iyizoba, JCA, remarked thus:

 

“In the case of General Aviation Services Ltd. v. Thahal [2004] All FWLR [pt.211] 1368 at 1390, Uwaifo JSC set out the test for distinguishing facts and circumstances from legal arguments and conclusions in an affidavit: The test for knowing facts and circumstances is to examine each of the paragraphs deposed to in the affidavit. If it is such that a witness may be entitled to adduce them in his testimony on oath and are legally admissible as evidence to prove or disprove a fact in issue, then they qualify as statement of facts and circumstances. This means that affidavit evidence must as a general rule deal with facts and avoid matters of inference or conclusion which fall within the province of the court; or objection, prayer or legal argument which must be left to counsel. If therefore affidavit evidence is in the form of conclusion, inference, legal argument, prayer or objection, it raises no fact which needs to be controverted but is simply regarded as extraneous to the determination of factual disputes.”

 

Applying the above test to the Defendants’ further and better affidavit, I am of the firm view and I so hold that paragraphs 5[a], [b], [c], [d], [e], [f], [i] and [j] are legal arguments and conclusions contrary to section 115[2] of the Evidence Act, 2011. They are consequently struck out.

 

  1. Lastly, learned Counsel for the Claimant argued in paragraph 4 page 2 of his written address that section 19 of the Limitation Law, CAP 102, Laws of Ebonyi State of Nigeria, 2009 “specifically and expressly excluded the application of section 31[2] of Ebonyi State University Law or any other law to the contrary in this matter.” I had cause to interpret this section in the case of Aguene Ignatius N. v. The Ebonyi State University, Abakaliki & Another, Suit No. NICN/ABK/02/2014. In paragraph 14 page 4 of the judgment I said: “Section 19 of the Limitation Law of Ebonyi State is very clear and self limiting. The section provides: “This section applies, notwithstanding anything contained in any other enactment to the contrary, to actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by person for negligence, nuisance breach of duty, consist of or include damage in respect of personal injuries to the plaintiff or any other person.” On the side note it is stated “Special provision for respect of personal injuries.” Although side notes are generally not considered as aids to interpretation of statutes, nonetheless, it is permissible for the Court to consider the general purpose and mischief at which the statute is aimed with side notes in mind. See the case of Federal Republic of Nigeria v. James Onanefe Ibori & 5 Ors. [[2014] LPELR-23214 [CA] at page 67. That said it is clear that section 19 is self limiting. The opening words of the section supports this position, it says, “This section….” and goes on to list situations when it will be applicable. The cases must involve “personal injuries to the plaintiff or any other person”. There is no mention of contracts of employment. The Claimant did not plead facts in the statement of facts to bring this case within the provisions of section 19 of the Limitation Law. Learned Counsel’s submission in paragraph 4 of his written address is a deliberate misapplication of the law and is therefore unavailing to the Claimant. I so hold.” In this application, learned Counsel for the Claimant argued that it specifically excluded section 31[2] of the Ebonyi State University Law. To start with, there is no mention of the Ebonyi State University Law in that section. Secondly, the Limitation Law commenced on 21st May 1990, the Ebonyi State University Law was enacted in 1999 and repealed and re-enacted on 12th May 2011. Thirdly, section 44 of the Limitation Law provides that “Any enactments relating to the limitation of action which were in force in the State immediately before the commencement of this Law shall cease to apply.” Neither section 44 nor section 19 contemplated section 31[2] of the Ebonyi State University Law. Finally, the Ebonyi State University and Related Matters [Amendment] Law, 2011 was enacted after the Limitation Law and the presumption is that a latter statute by implication excludes or repeals an earlier statute on the same subject matter. See the case of Rotimi Williams Akintokun v. Legal Practitioners Disciplinary Committee [LPDC] [2014] LPELR-22941[SC] at pages 62-63, paragraphs C-A. Per Muhammad, JSC, had this to say:

 

“I think, the law is that where a later enactment does not expressly amend [whether textually or indirectly] an earlier enactment, but the provisions of the later enactment are inconsistent with those of the earlier, the later by implication, amends the earlier so far as is necessary to remove the inconsistency between them. This is because, if a later Act cannot stand with an earlier one, parliament, generally, is taken to intend an amendment of the earlier. This is a logical necessity, since two inconsistent texts cannot both be valid.” In the circumstance, I hold that the submission is unfounded.

 

  1. This leads me to the substance of the application. Learned Counsel for the Defendants contends that section 31[2] of The Ebonyi State University Law 2009 as amended by Law No. 2 of 2011 is the applicable law, which, as I have observed above, does not exist. The correct citation is section 50[2] of Ebonyi State University and Related Matters [Amendment] Law No. 002 of 2011 and provides thus:

 

“No suit shall be instituted against the University or any of its bodies, members, officers or employees, respecting any act, neglect or default done or omitted in his capacity as such, shall be instituted in any court unless:-

[a]     It is commenced within three months from the occurrence of the act, neglect or default; or

[b]     In the case of continuance of damage or injury, within three months immediately after the cessation thereof.”

 

Contrariwise, learned Counsel for the Claimant argued that section 18 of Limitation Law, CAP 102, Laws of Ebonyi State of Nigeria, 2009 is the applicable law. The section provides: “No action founded on contract, tort or any other action not specifically provided for in Part II and III of this law shall be brought after expiration of five [5] years from date on which the cause of action accrued.”

 

I have explained what constitutes a general law and a specific or special law, and I concluded that the Ebonyi State University and Related Matters [Amendment] Law No. 002 of 2011 is a specific law. Now, to determine which of the two laws is applicable to the cause of action will depend on which law supersedes in the event of a conflict. Learned Counsel for the Claimant argued, and rightly in my view, that it is trite law that where there is a specific law on the subject matter, then that law would have overriding effect on the general legislation. However, his conclusion or emphasis, with all due respect, is wrong. In Mr. Aguene Ignatius N. v. The Ebonyi State University, Abakaliki & Another [supra] paragraph 15 page 5, I set out the correct position thus:

 

“The correct proposition of law is that stated in the case of Independent Television/Radio v. Edo State Board of Internal Revenue [2014] LPELR-23215 [CA] at page 20, where Ogunwumiju, J.C.A. held that, “The law is settled that in the interpretation of statutes, special things derogate from general things [generalibus speciala derogat]…. Where there is a conflict between two legislations one of which is special on a subject and the other legislation is general in nature, the legislation that is special in nature shall supercede. See Madumere v. Okwara [2013] LPELR 1 at 15-17. Maxwell on Interpretation of Statutes [11th Edition] at page 164 states that where a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one. See Aqua Ltd v. Ondo State Sports Council [1988] 4 NWLR [pt.91] 622.” It is my firm view and I so hold that the Ebonyi State Limitation Law is a general law, while the Ebonyi State University and Related Matters [Amendment] Law of 2011 is a special law. The Ebonyi State University and Related Matters [Amendment] Law of 2011 is an exception to the general law and supersedes the Limitation Law, CAP 102, of Ebonyi State. I find and hold therefore that the Ebonyi State University and Related Matters [Amendment] Law of 2011 is the applicable law to this case.”

 

I have no reason to depart from this decision. Learned Counsel for the Claimant relied heavily on the unreported Court of Appeal case of Mr. Onu Agha Uduma v. A. G. Ebonyi State & 2Ors. [supra]. It is a decision that is binding on this Court. However, that case is not on all fours with this case. The issue in that case was whether the High Court was right in relying on section 2 of the Public Officers Protection Law, Laws of Eastern Nigeria 1963 to hold that the Plaintiff/Appellant’s case was statute barred when the said section 2 of the Public Officers Protection Law, Laws of Eastern Nigeria 1963 had been repealed by existing/applicable Laws of Ebonyi State. Two, the case involved a civil servant and there was no law like Ebonyi State University and Related Matters [Amendment] Law of 2011 regulating the affairs of the parties. Consequently, the Court of Appeal interpreted the effect of sections 42 and 44 of the Limitation Law and held on page 39 of the certified true copy of the judgment as follows:

 

“The import of the above provision as rightly suggested by the learned counsel for the Appellant is that limitation of time in actions against Public Officers should be calculated as the same period of limitation against private individuals. In other words, the discrimination in the calculation of limitation period which was previously in favour of Public Officers has been removed. In the instant case, even though the cause of action arose on 2nd day of July 2009, the Plaintiff/Appellant’s commenced the action by a writ of summons dated 18/5/2010 after the commencement of the Ebonyi Limitation Law Cap 102 on 23rd October 2009. It follows that the applicable procedure law in this case is the Limitation Law of Ebonyi State and not the Public Officers [Protection] Law, Laws of Eastern Nigeria 1963 as erroneously held by the learned trial judge.”

 

It is clear that the decision was based on the fact that the Public Officers [Protection] Law, Laws of Eastern Nigeria 1963 applicable in Ebonyi State had been specifically repealed by the combined provisions of sections 42 and 44 of the Limitation Law. This cannot be said of Ebonyi State University and Related Matters [Amendment] Law of 2011. Apart from being a latter statute, there is no provision in the Limitation Law expressly or by implication repealing it or excluding its operation. Moreover, the Claimant agreed to be bound by it. He served the Defendants one month pre-action notice pursuant to section 50[1] of the Law. See paragraph 17 of his “statement of Claim” and document 3 of attached documents and paragraph 15 of the reply to statement of defence. In the circumstance, I hold, with due respect, that this decision is inapplicable to the instant case.

 

  1. Having said this let me now look at the originating processes and see if this suit is statute barred. It is settled law that in determining whether an action is statute-barred a Court is expected to examine the complaint, the statement of facts and the evidence or documents filed by the Claimant. This will normally disclose when the cause of action arose and then compare it with the date when the action was filed in Court. Where the date of filing the action as endorsed on the complaint is beyond the period allowed by the relevant limitation statute the action is said to be statute-barred. See the case of Chinyere Asika & Another v. Mr. Henry N. Onyedike [2012] LPELR-9474 [CA] at pages 19-20. Parties are agreed that the Claimant was dismissed on 27th February 2012 and the cause of action arose on that day. Relief 1 on the Claim is for an order of court nullifying the Claimant’s dismissal and restoring him to his position and office. In Pa. James Ariavbehe-Adolor Eregbowa & 3 Ors. v. Pa. Ehigiamusoe Obanor & 3 Ors. [2010] LPELR-8964 [CA], per Omoleye, JCA, held: “The law is settled that, time in relation to cause of action, begins to run when there is in existence a person who can sue another who can be sued, and when all facts have happened which are material to be proved to enable a plaintiff to succeed. Hence where there exists a law on limitation of time within which all actions and matters should be taken, or where a law exists prescribing a period of time within which an action may be instituted, time begins to run automatically from the date of the accrual of the cause of action.” The Claimant did not contest the fact that the cause of action accrued to him on 27th February 2012. His contention, however, is that the Limitation Law, CAP 102, Laws of Ebonyi State, 2009 applies to his case and not the Ebonyi State University and Related Matters [Amendment] Law of 2011. This, as I have held earlier, is a misconception of the law.

 

  1. What is the effect of this finding? In JFS Investment Ltd v. Brawal Line Ltd. & 2 Ors. [2010] LPELR-1610 [SC] at 57-58, Rhodes-Vivour, JSC, set out what a trial court should do in the circumstance. The learned Justice of the Supreme Court held:

 

“When the issue for determination is whether a claim is time barred the trial judge resolves the issue, first by examining the applicable limitation period provided in the enabling statute to see the period stipulated therein for the claim before him. Secondly, the judge determines when the cause of action arose by examining carefully the writ of summons and statement of claim. Thirdly, when the judge is satisfied as to when the Claimant/Plaintiff had a cause of action, he compares that date with the date the writ of summons was filed. If the time from when the cause of action arose to when the writ of summons was filed is beyond the period allowed in the enabling statute, then the action is statute barred. As the law stands now a court has no discretion in the matter [that is to extend limitation periods].”

 

This suit was filed on 14th February 2017, almost five years after accrual of the cause of action. This is clearly above the three months period prescribed in section 50[2][a] of Ebonyi State University and Related Matters [Amendment] Law, 2011. Accordingly, I find and hold that this suit is statute barred.

 

  1. What should the Court do if it comes to the conclusion that the action is statute barred? I am of the view that if the Court comes to the conclusion that the action is statute barred the court is robbed of jurisdiction to entertain the case no matter how meritorious the claims are. The right of action is lost and the cause of action becomes “a lame duck.” See University of Jos v. Dr. Sani Muhammad Adam [2013] LPELR-20276 [CA] at page 11 and Steve Torkuma Ugba & Ors. v. Gabriel Torwua Suswam & Ors. [2012] LPELR-9726 [SC] at page 50. I have examined the Ebonyi State University and Related Matters [Amendment] Law, 2011 but did not find any provision authorizing me to extend time. The Claimant’s action may be meritorious but this Court is robbed of the jurisdiction to entertain it. Sad, as it is, I do not have any discretion in this matter. I so find and hold. The proper order to make in the circumstances of this case is one of dismissal. See the case of Inspector Joseph Etaba Ayami v. Mrs. Ifeoma Onourah & Anor. [2016] LPELR-41225[CA] at page 10.

 

  1. In conclusion, I find merit in the Defendants’ motion on notice dated 21st February 2018 but filed on 23rd February 2018. This suit is statute barred and it is hereby dismissed. Judgment is entered accordingly. I make no order as to costs.

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

12/4/18

 

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