IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE PORT HARCOURT JUDICIAL DIVISION
HOLDEN AT PORT HARCOURT
BEFORE HIS LORDSHIP: HON. JUSTICE P. I. HAMMAN
Date: 28TH MAY, 2018
Suit No: NICN/YEN/65/2015
BETWEEN:
- GODGIFT MARK UDUNG
CLAIMANT/RESPONDENT
AND
- THE ATTORNEY GENERAL AND COMMISSIONER
FOR JUSTICE RIVERS STATE
- THE RIVERS STATE CIVIL SERVICE COMMISSION
- THE HON. COMMISSIONER, MINISTRY OF
TRANSPORT RIVERS STATE
- THE HON. COMMISSIONER, MINISTRY OF
HEALTH RIVERS STATE.
DEFENDANTS/APPLICANTS
Representation:
Chief S. A. Sampson for the Claimant/Respondent.
- Enebeli(PSC, Rivers State Ministry of Justice) for the Defendants/Applicants
RULING/JUDGMENT
The Claimant commenced this suit by way of Complaint and Statement of Facts dated and filed on 4th August, 2015, claiming against the defendants as follows:
- A Declaration that the Claimant was appointed by the Defendants through the 3rd Defendant in February, 2000.
- A Declaration that non formalization of the subsisting employment of the Claimant by the Defendants from February 2000 till date is illegal, unacceptable, null and void.
- A Declaration that the Defendants non payment of the Claimant’s salaries from February 2000 till date is illegal, null, void and unacceptable.
- A Declaration that the Claimant was employed as a level 7 step 7 civil servant, having been employed by the Defendants as a Senior Marine Quarter Master.
- An Order directing the Defendants to pay to the Claimant the sum of N21, 541.43 (Twenty One Thousand Five Hundred and Forty One Naira, Forty Three Kobo) only, as his monthly salaries from February 2000 till the date of judgement.
- An Order directing the Defendants to in accordance to the civil service rules, accordingly promote the Claimant to level 7 step 15, having worked for fifteen years.
- An Order directing the Defendants to pay to the Claimant the sum of N10, 000, 000.00 only as general damages.
- The sum of N500, 000.00 (Five Hundred Thousand Naira) only, being cost of litigation.
It is important to state at this juncture that, the Defendants/Applicants entered a Conditional Appearance on 6th October, 2015, and also filed a Statement of Defence together with a Witness Statement on Oath on 6th October, 2015. The Defendants/Applicants also filed a Notice of Preliminary Objection dated and filed on 6th October, 2016, challenging the jurisdiction of this court to hear and determine this suit. The ground for the application is that:
That the action is statute barred the cause of action having accrued in the year 2000 and suit instituted in 2015 contrary to section 16 of the Limitation Law, Cap. 80, Laws of Rivers State 1999.
In support of the application is a Written Address wherein the learned Counsel for the Defendants/Applicants distilled this lone issue for determination:
“Whether the Honourable Court has jurisdiction to entertain the Claimant’s suit against the Defendants when the suit is statute barred.
Upon being served with the Defendants/Applicants’ Notice of Preliminary Objection, the Claimant filed a Reply on Points of Law dated and filed on 19th October, 2015.
At the hearing of this matter on the 17th of April, 2018, learned counsel for the parties adopted and argued their cases respectively and the court adjourned the matter to 28th May, 2018 for Ruling.
While arguing the sole Issue, learned counsel for the Defendants/Applicants, P. Enebeli submitted that the issue of jurisdiction is so fundamental that it is the life wire of all adjudication and that proceedings conducted without jurisdiction are considered a nullity no matter how brilliantly and intellectually conducted. Madukolu V. Nkemdilim (1962) 2 SCNLR 391.
It was further submitted by the learned counsel that in order to determine whether or not a suit is statute barred, consideration must be given to the Claimant’s Complaint and Statement of Facts in order to ascertain when the alleged wrong occurred which gives rise to the Claimant’s cause of action.
On this submission, learned counsel referred the court to the cases of Military Administrator Ekiti State V. Aladeyelu (2007) 40 W. L. N. 158; Ajayi V. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 at 169 Paras. B – E.
Learned Defendants/Applicants’ counsel reproduced the provisions of section 16 of the Limitation Law Cap. 80 Laws of Rivers State 1999 and argued that, since the alleged cause of action in this suit occurred in the year 2000, and the Claimant filed this suit on the 4th of August, 2015, the suit as presently constituted is statute barred. See Adekoya V. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539 where the Supreme Court per Tobi JSC held as follows:
“In order to determine whether an action is statute barred or not, the court must be involved in the exercise of the calculation of years, months and days to the minutest detail. It is really an arithmetic exercise which needs a most accurate answer. Using the Limitation period in the enabling statute—- the judge then walks out when the cause of action arose and when the plaintiff instituted the action. If the course of his calculation, there is a plus on the baseline year, then the action is statute barred. But if there is a minus, then the action is competent—– it is a matter of calculation of raw figures in the determination of whether an action is statute barred or not. A court of law has no discretion in the matter. It is as stringent as that.”
See also Anozie V. AG F.R.N. (2008) 10 NWLR (Pt. 1095) 278 at 290 Para. F.
The learned Defendants/Applicants’ counsel therefore urged the court to hold that this suit is statute barred, decline jurisdiction and to strike out the suit for want of jurisdiction.
In opposition to the Defendants/Applicants’ Notice of Preliminary Objection, the Claimant’s counsel filed a Reply on Points of Law dated and filed on 19th October, 2015, wherein the learned Claimant’s counsel adopted and argued the sole issue formulated for determination by the Defendants/Applicants.
While arguing this lone issue, learned Claimant’s counsel submitted that, this suit as presently constituted is not statute barred because the cause of action is a continuing damage and still running till date. On this submission learned counsel referred the court to the case of Attorney General of Rivers State V. Attorney General of Bayelsa State (2013) All FWLR (Pt. 699) 1105 – 1106 where the Supreme Court per Galadima JSC held thus: “Where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused.” See also paragraphs 8, 9, 10, 11, 15 and 16 of the Statement of Facts.
Learned counsel also referred the court to paragraphs 23 and 24 of the Statement of Facts, and argued that, the fact of the Defendants’ continuous acts which necessitated this action makes the damages a continuous one.
That since the Claimant is still being owed regularization of his employment and payment of his salaries shows that the Defendants acted in bad faith. See Adaji V. FMT (2013) 31 N.L.L.R. Pt. 89 and Afforboche V. Ogoja Local Government (2001) 7 SCNJ 468.
That since the Defendants/Applicants acted outside the scope of their authority, duty and in bad faith, they cannot take advantage of the provisions of section 16 of the Limitation Law Cap. 80. Laws of Rivers State 1999.
It was also submitted that since the Defendants/Applicants have neither denied the Claimant nor alleged to have terminated the Claimant’s employment, the issue of limitation does not arise in this case because the complained act has continued till date.
The learned Claimant’s counsel therefore urged the court to hold that the suit as presently constituted is not statute barred and refuse the Defendants/Applicants’ application in its entirety for lacking in merit.
COURT’S DECISION:
Having carefully considered the arguments and submissions of learned counsel to the parties in this suit, the issue for determination in this application to my mind is whether this suit is statute barred having regards to the provisions of section 16 of the Limitation Law of Rivers State, Cap. 80, Laws of Rivers State 1999.
While the learned counsel for the Defendants/Applicants has argued and submitted that the present suit instituted by the Claimant against the Defendants is statute barred having not been commenced within the limitation period of five (5) years as stipulated in section 16 of the Limitation Law, Cap. 80, Laws of Rivers State 1999, the learned Claimant’s counsel on the other hand argued that, the suit is not statute barred because the damage allegedly caused the Claimant is a continuous one and the Defendants acted outside the colour of their statutory duties.
Having carefully considered the facts of this case as pleaded by the Claimant in the Statement of Facts, may I state that while I agree with the legal position as argued by the learned Claimant’s counsel that where the alleged damage is a continuous one, the time will not begin to run for the purpose of computing the limitation period until the injury ceases, that legal position however is not absolute because the interpretation in the case of AG Rivers State V. AG Bayelsa State (2012) LPELR-9336(SC) being relied upon by the learned Claimant’s counsel was based on the provisions of section 2(a) of the Public Officers Protection Act, Cap. P41 Laws of the Federation of Nigeria 2004, wherein the Supreme Court held as follows on the exceptions to the use of the Public Officers Protection Act:
“Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. From the Amended Statement of Claim and as equally deposed to in his Counter-affidavit, the Plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has not ceased the Defence is not available to the 1st Defendant where such allocation of comtinuing damage or injury has been raised in such a situation, there is need for the trial court to take evidence before determining the point. In AREMO II V. ADEKANYE (2004) ALL FWLR (Pt. 224) 2113 at 2132, this court stated the position of the law as to what constitutes “continuing damage or injury”. It is stated thus: “Admittedly, legal principles are not always inflexible. Sometimes they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused: Battishill V. Reed (1856) 18 CB 696 at 714. For example, if the owner of mines works them and causes damage to the surface more than six years before action, and within six years of action a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives a fresh cause of action.” I hold the view that Plaintiff’s action falls squarely within this exception as the damage and injury against it is a continuing one. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty as claimed by the Plaintiff in this suit. See: Nwankwere V. Adewunmi (1967) NWLR 45 AT 49; Anozie V. Attorney-General of the Federation (2008) 10 NWLR (Pt. 1095) 278 at 290 – 291.”
As stated earlier, the case of AG Rivers V. AG Bayelsa State was decided based on the provisions of section 2(a) of the Public Officers Protection Act which provisions are in pari materia with the provisions of section 2(a) of the Public Officers Protection Law of Northern Nigeria 1963 that came up for consideration in the case of IBRAHIM Vs. J.S.C, KADUNA STATE (1998) 12 SC 20.
It is therefore pertinent to reproduce section 2(a) of the Public Officers Protection Act and juxtapose same with the provisions of the Limitation Law of Rivers State which is the law in issue in this suit to ascertain whether the provisions are similar as to make the exception of continuance of injury applicable to this suit.
The said section 2(a) of the Public Officers Protection Act, Cap. P41 Laws of the Federation of Nigeria 2004, provides as follows:
“2. Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect –
(a) The action, prosecution, or proceeding shall not lie or be 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:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”
Section 16 of the Limitation Law of Rivers State, Cap. 80 Laws of Rivers State 1999, on the other hand provides as follows:
“No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.”
Section 40 of the Rivers State Limitation Law which makes the Law applicable to civil actions against the State and public authorities and officers states as follows:
“Notwithstanding anything contained in any other enactment or rule of law to the contrary, all actions to which this Law applies howsoever arising against the State or against any state public authority, or officer thereof or any person acting in the stead of such public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any such act, duty or authority, shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual.”
Looking at the provisions of the two (2) laws as reproduced above, it is clear that while the Public Officers Protection Act clearly provides for continuing damage or injury as an exception to the application of the Act, the Limitation Law of Rivers State does not have such exception. Section 16 of the Limitation Law of Rivers State which is applicable to the Defendants who are public officers by virtue of section 40 of the law clearly provides that actions founded on contract, tort etc must be brought or commenced within the limitation period of five (5) years from the date the cause of action accrued or occurred.
The law is trite that in determining whether or not an action is statute barred, the court is enjoined to look at the Statement of Claim (in this instance the Statement of Facts) to ascertain when the cause of action arose and compare that date with the date the suit was commenced to see whether or not it was commenced within the limitation period provided by law.
See the case of MRS. COMFORT OLUFUNMILAYO ASABORO AND 1 OTHER V. PAN OCEAN OIL CORPORATION (NIGERIA) LIMITED AND 1 OTHER (2017) 7 N. W. L. R. (PART 1563) 42 AT 67 – 68, PARAGRAPHS H – C, where the apex court held thus:
“It is to be reiterated that an action instituted after the expiration of the prescribed period is said to be statute – barred. That is to say that where the limitation of time is imposed in a statute unless that same law makes provision for extension of time, the courts have their hands tied from extending the time as the action filed outside the stipulated period will lapse by effluxion of time. The follow up to the above is to determine whether an action is statute barred and in doing this the court is expected to peruse the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question occurred and compare it with the date the originating process was filed in court. I rely on the case of Ogundipe V. NDIC (2008) All FWLR (Pt. 432) 1220 at 1239, (2009) 1 NWLR (Pt. 1123) 473.”
Applying the above principle to this case, I have gone through the reliefs sought by the Claimant in this case and the facts pleaded in the Statement of Facts in order to discover when the Claimant’s cause of action arose. The case of the Claimant is that he was allegedly employed by the 3rd Defendant as a Senior Quarter Master (Boat Driver) on Salary Grade Level 7 Step 7 in February, 2000, and was posted to the Rivers State Government House where he worked until he was sent for retraining at John Holt Plc (Almarine) at the expense and recommendation of the Shell Petroleum Development Company of Nigeria Limited (SPDC).
That after the retraining exercise, he was transferred to the Rivers State Ministry of Health which subsequently redeployed him to the General Hospital, Bonny, Rivers State in August, 2000 where he has been working manning the ambulance boat donated by the Shell Petroleum Development Company of Nigeria Limited to the Rivers State Ministry of Health. His grouse is that, from February, 2000 when he was employed, no letter of employment has been given to him regularising his employment and he has never been paid any salary despite repeated demands except for the little allowances paid to him by the Shell Petroleum Development Company of Nigeria Limited which has been stopped.
The law is trite that a cause of action accrues and time begins to run for the purpose of limitation law when a cause of action becomes complete so that the injured or aggrieved party can begin to maintain his suit as there would have been in existence a 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.
In the case of Mrs. Comfort Olufunmilayo Asaboro & 1 Or. V. Pan Ocean Oil Corporation (Nigeria) Limited & 1 Or. (supra), at page 71 Para. D, the apex court per Kekere-Ekun, JSC held as follows: “The law is quite settled that for the purpose of limitation law, time begins to run when there is in existence a person who can sue and another who can be sued and when all the facts have happened, which are material to be proved to enable the plaintiff to succeed.”
See also CHRISTIANA I. YARE V. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (2013) LPELR – 20520 (SC); and the decision of this court delivered by Hon. Justice O.Y. Anuwe on 4th May, 2017 in NICN/OW/53/2016 between Nzewuihe Godsfriend C. and 10 Ors. V. Imo State University Teaching Hospital and 4 Ors.
By the pleadings of the Claimant in Paragraphs 2, 3, 5, 6, 23, 25 and 28 of the Statement of Facts, the events which led to the filing of this suit were spurred by the non issuance and/or regularization of the Claimant’s employment since February, 2000. It is therefore clear that from February, 2000, the cause of action in this matter arose and time began to run as the Claimant had already been aware of his alleged employment without any letter of employment or regularization. He continued to work without any salary being paid to him and without a letter of employment being issued to him in respect of the said employment.
I have looked at the Claimant’s originating processes in this matter and it is clear that this suit was filed or commenced on 4th August, 2015. Comparing the date of accrual of the cause of action (February, 2000) and the date this suit was instituted (4th August, 2015), it will appear that the Claimant did not file the suit within the limited period of five (5) years in line with the provision of section 16 of the Limitation Law Cap. 80, Laws of Rivers State of Nigeria 1999.
Having considered the submissions of counsel on the Notice of Preliminary Objection and all other facts relevant to the determination of the Notice of Preliminary Objection, I find that the Claimant’s suit is statute barred. The facts are clear that this suit was filed after a period of about fifteen (15) years 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. The Notice of Preliminary Objection hereby succeeds.
It is the law that where a court of law finds that an action is statute barred, the right or proper order to make is to dismiss the suit since the suit cannot be properly or validly commenced after the expiration of the limitation period prescribed in the law. See Suleman Lado Mani & 1 Or. V. Rabe Nasir & 7 Ors. (2011) 13 N.W.L.R. (Part 1263) 23 at 34 – 35, Paras. H – A.
In the circumstance, and on the strength of the authorities cited and relied upon, the appropriate order to make is to dismiss the suit for being statute barred. Accordingly, this suit is hereby dismissed.
I make no order as to costs.
Ruling is entered accordingly.
Hon. Justice P. I. Hamman
Judge
