University of Jos -VS- Emmanuel M. Yemtet

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE JOS JUDICIAL DIVISION

HOLDEN AT JOS

BEFORE HIS LORSHIP HON. JUSTICE K.I. AMADI

DATED: November 22, 2019 SUIT NO. NICN/JOS/15/2016

BETWEEN

UNIVERSITY OF JOS …….. CLAIMANT

AND

EMMANUEL N. YEMTET ………. DEFENDANT

REPRESENTATION

P.A. Akubo SAN with S.Y.Tsok, A.J.Adudu and C.U.Edokpa for the Claimant

I.E. Asogwa with J. C Okwor and C.R Jombo for the Defendant

JUDGMENT

INTRODUCTION

The Claimant commenced this case by a writ of summons and Statement of Claim dated and filed on 10th May, 2016. The claimant claimed against the defendant as follows:

A Declaration that suit No. NICN/JOS/53/2013 whereupon this Honourable Court delivered judgment on November 18,2014 in favour of the defendant against the claimant was statute-barred in that the suit was filed by the defendant on 16^th October, 2006 more than three months after the cause of action arose vide letter of termination of defendant’s appointment dated 7^th July, 2006.

A Declaration that being statute-barred, the defendant lacked the right of action, the right of enforcement and the right to any juridical relief in suit No. NICN/JOS/53/2013 of and concerning the termination of his appointment by the governing council of the claimant vide a letter dated 7^th July, 2006.
A Declaration that the judgment of this Honourable Court delivered on November 18, 2014 in suit No. NICN/JOS/53/2013 in favour of the defendant against the claimant is a nullity for want of jurisdiction.
A Declaration that the judgment of this Honourable Court delivered on November 18, 2014 in suit No. NICN/JOS/53/2013 in favour of defendant against the claimant was obtained by fraud perpetrated on the court by the defendant and as such the said judgment is a nullity and liable to be set aside.
A Declaration that the judgment of this Honourable Court delivered on November 18, 2014 in suit No. NICN/JOS/53/2013 in favour of the defendant against the claimant is aimed at promoting unjust enrichment by the defendant against the claimant to the effect that the defendant’s intent to appropriate salaries and emoluments from two tertiary institutions, namely, University of Jos and Federal

University of Agriculture, Abeokuta, Ogun state both owned by the Federal Government of Nigeria within the same period, to wit, July, 2010 to March, 2013.

A Declaration that the defendant is not a fit and proper person to work with the claimant for being an embodiment or fraud or unjust enrichment inter alia.
A Mandatory Order setting aside the judgment of this Honourable Court delivered on November, 18, 2014 in suit No. NICN/JOS/53/2013 in favour of the defendant against the claimant on ground of fraud and/or unjust enrichment and/or for being a nullity for want of jurisdiction.
A Perpetual Injunction restraining the defendant or anyone acting on his behalf or instruction from enforcing, appropriating, executing and otherwise deriving/reaping benefits from the judgment of this Honourable Court delivered on November 18, 2014 in suit No. NICN/JOS/53/2013.
N50 Million (Fifty Million Naira) as general damages for deliberate act of fraud and/or unjust enrichment perpetrated by the defendant.
Any further consequential reliefs.
Cost of this action.

The Defendant filed a Memorandum of Appearance and Statement of Defence dated 7^th March, 2017 and on filed 9^th March 2017. The Defendant also filed a Notice of Preliminary Objection dated 3^rd March 2017 and filed 22^nd March 2017, the Claimant filed a Written Address in Opposition to Notice of Preliminary Objection dated and filed 4^th May 2017. The Claimant filed a Reply to Defendant’s Statement of Defence dated and filed 27^th March 2018.

The case was mentioned on 11^th October 2017, and hearing commenced on 10th May 2018, the Claimant called a sole witness (CW1) who testified by adopting his witness statement on oath. He tendered all documents pleaded and frontloaded. He was subsequently cross examined by the defendants’ counsel and was discharged from the witness box on the same 5th Jul, 2018 after which the claimant closed his case.

The Defendant opened his case on 1st November, 2018 and defendant testified as a sole witness and was cross examined. The Defendant closed its case. Thereafter the parties filed their Final Written Addresses, which they adopted on the 17^th May, 2019. However, during the course of writing the judgment in this matter the court felt the need on the address on whether this suit is statute barred or not whereupon the parties were ordered to address the court on this issue raised Suo motu by court. Consequently, the parties filed their written addresses on that issue which addresses they adopted on the 20^th November 2019.

FACTS OF THE CASE

The Defendant was employed by the claimant sometimes in 1994 as a Principal Accountant. The Defendant worked for the Claimant until 7^th July, 2006 when the Claimant vide a letter dated 7^th July, 2006 terminated the appointment of the defendant.

The defendant filed an action against the claimant challenging the said termination of his appointment in suit No. FHC/J/CS/48/06 at the Federal High Court, Jos. The case was later transferred to this Honourable Court and re-numbered as Suit No: NICN/JOS/53/2013. This Honourable Court in its Judgment delivered on November 18, 2014 found for the Defendant and thereupon granted virtually all the reliefs sought including re-instatement and payment of salaries and emoluments up to the date of Judgment.

Meanwhile, during the pendency of Suit No: NICN/JOS/53/2013 before this Honourable Court, the Claimant (defendant in this case) took up appointment with the Federal University of Agriculture, Abeokuta, Ogun State sometime in July, 2010 as Director, Final Accounts and College Finance (Bursary Department). He worked for the said Federal University of Agriculture, Abeokuta, Ogun State until 19^th March, 2013 when his appointment was terminated.

The application for leave to appeal against the judgment in Suit No: NICN/JOS/53/2013 was dismissed by the Court of Appeal on 7^th April, 2016 in appeal No. CA/J/27^M/2015 (University of Jos V. Emmanuel N. Yemtet). Thereafter, the claimant in this present case on 10^th May, 2016 filed this claim urging the court to set aside the judgment in suit No. NICN/JOS/53/2013.

ADDRESSES OF PARTIES

In his final written address, the learned counsel for the defendant raised a sole issue for determination by this Honourable court to wit-

Whether this Honourable Court has jurisdiction to entertain this suit same having been heard on merit by this court in suit No. NICN/JOS/53/2013 and whether the claimant has established its claims in this case to enable the court grant same.

Counsel submitted that, this Honourable Court having entered judgment in this case on the merit in Suit No: NICN/JOS/53/2013 after hearing all the parties has no jurisdiction to adjudicate over the same case. That judgment was entered in the said suit by the National Industrial Court on 18^th November, 2014. That the claimant (who was the defendant in the said case) did not appeal against the judgment. That a belated application for leave to appeal against the Judgment was dismissed by the Court of Appeal (Exhibit DA).

That from the evidence before this Honourable Court in this case, it was after the dismissal of the application for leave to appeal that the claimant instituted this claim on 10^th May, 2016. Counsel submitted that this court has become functus officio and cannot entertain the matter again or set aside the judgment in Suit No: NICN/JOS/53/2013 as being requested by the claimant. That the court has no jurisdiction whether constitutional, statutory or inherent to review its own orders once it has delivered a judgment on the merit. Counsel referred to the case of Aba South Local Government & 2 Ors V. Mrs. Leticia Nwajiobi & 2 Ors (2008) 6 NWLR (pt. 1084) 503 @ 522 paras F – H. at page 523, per Abdullahi J.C.A. where the court held thus:

I am of the strong view that the learned trial judge having delivered the judgment in this matter on the 15/12/98 has become functus officio in so far as this suit which is the subject matter of this appeal is concerned. In order words, having performed his functions fully by delivering the said judgment, he has no further authority or legal competence to entertain an application that would have the effect of changing his decision. The learned trial judge was clearly in error by entertaining the application, and the ruling delivered on 15/12/98 cannot stand”.

Counsel submitted that since the judgment in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) is a final judgment. That a final judgment was defined in the case of Chief Etim Usung & 2 Ors v Chief Inyang E. Nyong (2010) 2 NWLR (pt. 1177) 83 @ 114 – 115 paras H – B to mean a judgment which puts an end to an action by declaring the plaintiff is or is not entitled to the remedy he sued for so that nothing remains to be done but to execute the judgment.

Counsel submitted also that, once a court has given a final decision on a matter placed before it, the court has become functus officio. That the only way of reviewing or correcting any error is by appeal. The court has no authority to review or vary the decision. That the claimant in this case is asking the court to vary the decision the court has made in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos). That this Honourable Court has no jurisdiction to re-open the matter and cannot substitute a different decision in place of the one which has been recorded. That it is only the Court of Appeal that can vary the decision. Counsel referred to the case of Prof. Olugbimero Jegede v Mufu tau Bamidele Akande (2015) 6 NWLR (pt. 1455) 228 @ 261 paras F – G.

Counsel further submitted that, a court is not bestowed with the jurisdiction to review or re-open its own decision reached on the merit and cannot set aside the same judgment except where the judgment is a nullity or is obtained by fraud or where the court lacked jurisdiction to entertain the matter. Counsel referred to the case of Mohammed Ibrahim & 2 Ors v Alhaji Sule Gwandu (2015) 5 NWLR (pt. 1451) 1 @ 32 paras A – C. That in the instant case, the judgment of the court in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) was delivered on the merit. That there is no case of any fraud established and the court had jurisdiction to entertain the matter. That the allegation made by the claimant’s witness to the effect that the defendant did not disclose to this court that he has obtained appointment with the Federal University of Agriculture, Abeokuta cannot by any imagination amount to fraud. That by paragraph 6 of the defendant’s evidence in this case, the defendant pleaded thus:

“That I did not conceal any fact from the court in the case I filed against the University of Jos. That at the time I was employed by the Federal University of Agriculture Abeokuta on 28^thday of June, 2010, issues have been joined in the case I filed against the University of Jos. My appointment with the Federal University of Abeokuta was terminated before judgment was delivered in this case on 18^thNovember, 2014. At the time judgment was delivered by this Honourable Court in the case I filed against the University of Jos, I was no longer working with the Federal University of Agriculture, Abeokuta”.

Counsel submitted that from the above pleading and evidence of the defendant before this court, he did not conceal any fact in the previous case. That the judgment was not obtained by fraud but based on the evidence of the case before the court. That this Honourable Court cannot set aside the judgment in Suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) as it would amount to sitting on appeal against the said judgment.

Counsel submitted that it is only the Court of Appeal that has the jurisdiction to entertain any further issue relating to the case since this court has become functus officio. Any aggrieved person on any issue relating to the judgment can only go on appeal. Counsel referred to the case of Hon. Ned Nwoko v Jude Azekwo & 2 Ors (2012) 12 NWLR (pt. 1313) 151 @ 184 – 185 paras H.

Continuing further, counsel argued that the claimant (who was the defendant in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) filed an application for leave to appeal against the judgment but same was refused by the Court of Appeal. Counsel submitted that the claimant cannot after failing in its bid to appeal come back to this Honourable Court to set aside its judgment. That it would amount to this court sitting on appeal against its own judgment.

On the issue that suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) was statute barred. Counsel submitted that from the claim and the evidence before the court, it is alleged by the claimant that suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) was commenced on 16^th October, 2006 and therefore that same was statute barred. However, that the defendant in paragraph 5 of his evidence explained to this Honourable Court that suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) was filed on 6^th October, 2006. That from the Writ of Summons of the case (exhibit CG-CG4), the stamp of receipt of the Federal High Court is boldly showing that the suit was filed on 6/10/06 by 1:00 pm. That the 16^th October, 2006 referred to by the claimant in this case was the date the judge endorsed the writ. That the relevant date is the date of filing the suit which is 6^th October, 2006 and not the date the judge endorsed it.

Counsel further submitted that what determines whether or not a cause of action is statute barred is the writ of summons or statement of claim alluding to the date the cause of action accrued and the date of filing the suit. Counsel referred the court to the case of Mr. Edmond Chukwu & 2 ors. v Chief J.S. Amadi & 2 Ors (2009) 3 NWLR (pt. 1127) 56 @ 75 paras G – H.

That it is very clear from the writ of summons that the cause of action arose on 7^th July, 2006 being the date of the termination of the claimant’s employment in that suit. That the said Suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) was filed before the Federal High Court on 6^th October, 2006 as shown on the writ of summons which has the registrar’s stamp indicating the date and time it was filed. Counsel submitted that the case was filed within three months of the date which the cause of action arose.

Not only that, counsel submitted that the claimant is estopped in law from raising the issue of statute of limitation which was not raised during the trial of that suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos). That a defendant in a case who failed to raise the issue of statute of limitation and pleads same specifically during the trial of a case cannot be permitted to raise same after judgment. That such a defendant is deemed to have waived his right of defence of the statute of limitation. Counsel referred to the case of Mr. Edmund Chukwu & 2 ors v Chief J.S. Amadi & 2 Ors (supra) @ 78 paras A – B.

In conclusion the learned counsel submitted that this present suit is an attempt to re-litigate on a cause of action which this Honourable Court has heard and delivered judgment on the merit. That this suit is res judicata and an abuse of the process of this Honourable Court, that this court has become functus officio on all issues in suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) except for the execution of the judgment. Counsel urged this Honourable Court to dismiss this suit with substantial cost.

In his own final written address, the learned counsel for the Claimant raised two (2) issues for determination by this Honourable court to wit-

Whether from the facts and circumstances of this case, the Judgment of this Honourable Court delivered on November 18, 2014 in Suit No: NICN/JOS/53/2013 in favour the Defendant against the Claimant was obtained by fraud and as such liable to be set aside.

Whether the cause of action of the Defendant vide Suit No: FHC/CS/48/06 subsequently re-numbered as Suit No: NICN/JOS/53/2013 was statute – barred.

In arguing issue one, counsel submitted that it is common ground that the Defendant challenged the termination of his employment by the Claimant vide a letter dated 7^th July, 2006 by filing an action before this Honourable Court in suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos). That in its Judgment (Exhibit CL – CL32), delivered on November 18, 2014, this Honourable Court found for the Defendant and thereupon set aside the termination of his appointment and ordered that salaries, entitlements and benefits of the defendant consequent upon the termination of his employment be computed and paid to him by the Claimant as at the date of Judgment. That at page 33 of Exhibit CL – CL32, this Honourable Court then presided over by Honourable Justice R.H. Gwandu ordered inter alia:

That the termination of the appointment of the Claimant as contained and covered in the letter of termination of appointment dated 7^th day of July, 2006 is hereby set aside.

vii. That the Respondent shall compute and pay all the Claimant’s salaries, entitlements and benefits withheld consequent upon the termination, which remains unpaid as at the date of judgment.

viii. this prayer is refused

The Respondent is hereby restrained from preventing or disturbing the Claimant from carrying out his duties and responsibilities as an employee of the University of Jos or tampering with the rights and privileges incidental to his appointment.

Counsel submitted that, during the pendency of Suit No: NICN/JOS/53/2013, the Defendant went ahead to take up appointment with Federal University of Agriculture, Abeaokuta, Ogun State as Director, Final Account and College Finance (Bursary Department). That the Defendant collected salaries and emoluments from Federal University of Agriculture Abeokuta, Ogun State for almost three (3) years, that is to say from July, 2010 – March, 2013. That the Defendant never informed this Honourable Court that he took up appointment with Federal University of Agriculture, Abeokuta, Ogun State instead he was poised to execute the Judgment delivered in his favour in suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos), vide Exhibit CL – CL32. That also at the instance of the Defendant, this Honourable Court issued Judgment Summons as in Form 15 (Exhibit CN – CN4) against the Registrar of the Claimant.

Counsel submitted that, under cross examination the defendant admitted that Judgment in Exhibit CL – CL32 granted him payment of his salaries and benefits, and he also agreed that during the pendency of his case before this Honourable Court in suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos),he took up appointment with Federal University of Agriculture, Abeokuta and resumed in July, 2010 and was in employment there till March, 2013 whereupon he was paid salaries and benefits. That the defendant equally agreed under cross examination that he did not inform this Honourable Court that he took up appointment with the Federal University of Agriculture, Abeokuta and that both University of Jos and Federal University of Agriculture, Abeokuta are owned by the Federal Government. Counsel submitted that the law is settled that what is admitted needs no proof.

Counsel submitted that the Defendant ran into trouble with Federal University of Agriculture, Abeokuta, Ogun State as his appointment was subsequently terminated vide a letter dated 19^th day of March, 2013 (Exhibit CK – CK1).

That the defendant dissatisfied with the termination of his appointment with Federal University of Agriculture, Abeokuta, Ogun State, filed another suit before this Honourable Court by way of Originating Summons in Suit No: NICN/21/2015 (Exhibit CM – CM16). That in the said new case, the Defendant inter alia sought for the declaration that he was still in the employment of Federal University of Agriculture, Abeokuta, Ogun State as Director, Final Account and College Finance (Bursary Department).

Counsel submitted that the Defendant willfully and deliberately engaged in acts of unjust enrichment by not disclosing to this Honourable Court that while Suit No: NICN/JOS/53/2013 was pending before this Honourable Court, he took up another appointment with another Institution owned by the Federal Government, namely, Federal University of Agriculture, Abeokuta and thereupon collected salaries and emoluments for almost three (3) years encompassing the same period covered by the judgment of this Honourable Court in his favour.

Counsel submitted that, the case of the Claimant is fundamentally anchored on fraud. As required of the Claimant, fraud is pleaded and particularized at paragraph 21 of the Statement of Facts Establishing the Cause of Action.

Counsel argued that, the Witness Statement on Oath of Emmanuel Jwander who testified as CW1 amply supported the issue of fraud at paragraphs 23 and 24 thereof. That the piece of evidence of CW1 in support of fraud has not in any way been controverted by the Defendant either through cross-examination or rival testimony. On the contrary, the evidence led by the Claimant on the issue of fraud is reinforced and fortified by the admissions of the Defendant under cross-examination. That the law is settled that evidence elicited under cross-examination is as good, reliable and authentic as evidence led-in-chief. Counsel referred to the case of Gaji v Paye (2003) 8 NWLR (Pt.823) 583 at 611.

Counsel submitted that, it is important to stress that fraud vitiates or nullifies the most solemn of all transactions. That in the case of Ugo v Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 592, Para. D, where the Supreme Court per Agbaje, JSC (of blessed memory) held thus:

Fraud vitiates even the most solemn of all transactions. In fact fraud vitiates everything even judgments and orders of the court. However, a contract or other transaction induced or tainted by fraud is not void but only voidable at the election of the party defrauded.

Counsel submitted as settled law that, the Court has inherent power to set aside its own Judgment obtained by fraud. That in the case of Vulvcan Gases Ltd. v G.F. IND. A.G. (2001) 9 NWLR (Pt. 719) 610 at 655, Paras D – E, the Supreme Court per Wali, JSC held thus:

“The Court has inherent power to set aside its own judgment when-

(i) it was obtained by fraud. See Leonard Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR66 (Pt.199) 501 & Nurudeen Olufumise v. Abiol Falana (1990) 3 NWLR (Pt. 136) 1.

(ii) which for any other reason is a complete nullity. See Ojiako & Ors. v. Ogueze & Ors. (1962) 1 All NLR 58.(1962) 1 SCNLR 112; Nwosu v. Udeaja (1990) 1 NWLR (Pt.125) 180; Hong v. Neota (1918) AL 888; PC and Stern v. Friedman (1953) 1 WLR 965.”

Counsel submitted also that, the contention of the learned Counsel to the Defendant in his Final Written Address that this Honourable Court is functus officio and as such has no jurisdiction to re-open this case is thoroughly misconceived and has no force of law having regard to authorities cited in the preceding paragraphs.

That the Defendant himself also admitted under cross-examination that one cannot earn salaries from two different places concurrently. That by the provisions of Paragraph 2(a), Part 1 of the Fifth Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a Public Officer is forbidden from receiving double emoluments at the same time. The said provision states:

“2. Without prejudice to the generality of the foregoing paragraph, a public officer shall not –

(a) receive or be paid the emoluments of any public office at the same time as he receives or is paid the emoluments of any other public office;”

That by Section 1(1) of the Constitution (supra), the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

Counsel argued further also that the provision of the Constitution that forbids Public Officers from receiving double emoluments has received judicial interpretation. That in the case of Eperokun v. University of Lagos (1986) 4 NWLR (PT.34) 162 AT 184, paras. G – H, the Supreme Court in dealing with the need to render account of salaries received from other employment stated thus per Obaseki, JSC (of blessed memory):

“The issue whether the appellants are entitled to keep the salaries received from the other employment and be paid their salaries under their contract of service is another matter. The salaries received from other employment, if any, can be accounted for and the justice of the case can be met ordering that the salaries from other employment received during the pendency of this action should be accounted for in accordance with the Regulations of the University. If the Regulations of the University forbid the appellants to keep the salaries, provided the University pays them their full emoluments, they should account for them as directed by the University.”

Counsel urged this Honourable Court to resolve this issue in favour of the Claimant.

In arguing issue two, that is; whether the cause of action of the Defendant vide Suit No: FHC/CS/48/06 subsequently re-numbered as Suit No: NICN/JOS/53/2013 was statute – barred. Counsel submitted that the event which gave rise to the cause of action of the Defendant in Suit No: NICN/JOS/53/2013 is the termination of his employment by the Claimant vides a letter dated 7^th July, 2006. That in its Judgment delivered in favour of the Defendant on November 28, 2014, this Honourable Court at page 1 acknowledged thus:

The Claimant commenced this suit on 16/10/2006 via writ of summons in Federal High Court, Jos challenging the termination of his employment.

Counsel submitted that, the then presiding Judge who was directly seised with the original case file confirmed as a fact that Suit No: NICN/JOS/53/2013 filed by the defendant against the Claimant as a direct challenge of the termination of his appointment vide a letter dated 7^th July, 2006 was commenced on 16^th October, 2006. The question therefore is whether the Claimant falls under the category of Public Officers being an institution owned by the Federal Government of Nigeria. That this Honourable Court is entitled to take Judicial Notice of that fact by virtue of Section 122 (2) (m) of the Evidence Act, 2011. That in the celebrated case of Ibrahim v. Judicial Service Committee Kaduna State (1998) 14 NWLR (Pt.584) 1 @ 44, Para. F, the Supreme Court per Iguh, JSC had this to say:

“in the case on hand, I did hold that the words “public officer” or “any person” in public office as stipulated in Section 2 of the Public Officers (Protection) Law, 1963 not only refer to natural persons or persons sued in their personal names but that they extend to public bodies, artificial persons, institutions or persons sued by their official names or titles. It seems to me plain that my observation in the Alhaji Nunku case with regard to the protection of public officers as individuals was not meant to refer to natural persons only but also covered artificial persons alike”.

Counsel submitted that, the action of the defendant vide suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) was statute – barred and as such robbed this Honourable Court of Jurisdiction to sit over the matter. That it is settled law that when an action is statute – barred, it deprives the litigating party the right of action, the right of enforcement and the right to judicial relief and leaves the plaintiff or Claimant with an empty right.

Counsel submitted further that the defendant did not maintain the action in suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) within three (3) months the cause of action arose on 7^th July, 2006 having filed the said suit on 16^th October, 2006. That it is fatal to the case as failure of the Defendant to file the said action within three (3) months rendered suit No. NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) completely statute – barred. That in the case of Ibrahim v. Judicial Service Committee Kaduna State (supra) at 32, paras. A – B the Supreme Court per Iguh, JSC had this to say:

the general principle of law is that where a Statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the Statute is totally barred as right of the plaintiff or the injured person to commence the action would have been extinguished by such law

That in Crutech v. Obeten (2011) 15 NWLR (PT. 1271) 588 at 608 – 609, paras. G – A and F, the Court of Appeal per Oredola , J.C.A, admirably stated thus:

Under the Public Officers Protection Law, suits instituted against persons covered by it, must be commenced within limited period stated therein; otherwise they will become stale or extinguished. It is a limitation statute which provides for a well spelt out time frame for the commencement of an action by a prospective litigant. It does not admit of foot dragging, late coming or sleeping on duty so to say. It has no accommodation or beddings for a sleeping beauty. See Chigbu v. Tonimas (Nig.) Ltd. (2006) 9 NWLR (Pt. 984) 189. Thus, where a law stipulates a durational period for the institution of a suit, such an action cannot be commenced after the expiration of the statutorily prescribed period” Equity aids the vigilant and not the indolent. When a person sleeps on his right, it may turn out to be costly or expensive sleep with irreversible consequences

In conclusion, counsel submitted that in the light of the foregoing, this Honourable Court is urged to resolve this issue in favour of the Claimant and to enter Judgment in favour of the Claimant in terms of the reliefs sought at paragraph 26 of the Statement of facts establishing the cause of action.

COURT’S DECISION.

I have read all the processes filed by the parties in this suit. I have also reviewed the evidence presented by them. I am of the view that the two issues raised by the learned counsel for the claimant summarized the issues in controversy between the parties. I hereby adopt them as mine; consequently, I shall treat the two issues seriatim. But before then the learned counsel for the defendant raised a preliminary objection to this suit, challenging the jurisdiction of this court to entertain this case on the grant of this court being functus officio and the issue in controversy res judicta between the parties. The sole issue raised also by the counsel for the defendant in his final written address is strictly hinged on this issue of the court being functus officio and the issue res judicta. I shall therefore, first of all, deal with that preliminary objection of the defendant.

There is no dispute between the parties that the cause of action in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) is the termination of the claimant’s appointment in that case by the defendant therein on 7^th of June 2006.

There is equally no dispute between the parties that this Honourable Court Coram; Hon. Justice R. H. Gwandu, after hearing the matter on merit delivered a considered judgment on the merit on November 18, 2014, wherein the court found for the Defendant and thereupon granted virtually all the reliefs sought including re-instatement and payment of salaries and emoluments up to the date of Judgment.

The parties further agreed that the application for leave to appeal against the judgment in Suit No: NICN/JOS/53/2013 was dismissed by the Court of Appeal on 7^th April, 2016 in appeal No. CA/J/27^M/2015 (University of Jos v Emmanuel N. Yemtet).

It is very important at this stage to state the implications of the judgment on the merit of November 18, 2014 on the case and the dismissal of the leave to appeal against the aforesaid judgement on the merit of November 18, 2014.

The first implication is that the trial Court has fully performed its functions as far as that case is concerned, it is said to be functus officio. In Mohammed v. Husseini (1998) 14 NWLR (Pt. 584) 108 @ 163 the Supreme Court said of functus officio thus:

“The Latin expression Functus Officio simply means “task performed” Therefore applying it to the judiciary, it means that a judge cannot give a decision or make an order on a matter twice. In other words, once a judge gives a decision or makes an order on a matter, he no longer has the competence or jurisdiction to give another decision or order on the same matter … a judge is functus officio if he gives judgment on the merits…”

Also, in Ikpong v. Udobong (2002) 2 NWLR (Pt. 1017) p. 184 @ 206 the Court per Omokri, J.C.A, defined functus officio thus:

“The phrase “functus officio” means a task performed, fulfilling the function, discharging the office or accomplishing the purpose and thereby becoming of no force or authority”. See further the cases of Anyaegbunam v. A.G. Anambra State (2001) 6 NWLR (Pt. 710) 532; Onyemobi v. President O.C.C. (1995) 3 NWLR (Pt. 381) 50 and Ukachukwu v. Uba (2005) 18 NWLR (Pt. 956) 1 at 60.

The second implication is the fact that by the provision of Section 243 (2)(3) and (4) of the 1999 Constitution as amended and the case of Sky Bank Plc v Iwu (2017) 16 NWLR(Pt.1590) 24. An appeal shall lie from the decision of the National Industrial Court to the Court of Appeal with the leave of the Court of Appeal and the decision of the Court of Appeal shall be final on that case, meaning that the dismissal by the Court of Appeal on 7^th April, 2016 in appeal No. CA/J/27^M/2015 (University of Jos v Emmanuel N. Yemtet) of the application for leave to appeal against the judgment in Suit No: NICN/JOS/53/2013 put to finality all issues pertaining to the judgment in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos). The foregoing is the state of affairs as at 10^th May, 2016 when the claimant in this suit filed this suit urging the court to set aside the judgment in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos).

Again, there is no dispute between the parties that the end result of a possible success in this case will be to set aside the judgment in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) and by so doing validate the termination of the claimant in that case which termination this Honourable Court has already set aside in the said judgment.

In otherwise, upturning the judgment of this Court already given in this case, that certainly amounts to this Honourable court sitting on appeal over its own judgment which the law abhors. Two things are very instructive in this case. The first is the time line for the commencement of this case. Judgment in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) was delivered on the merit on November 18, 2014. The application for leave to appeal against the said judgment in Suit No: NICN/JOS/53/2013 was dismissed by the Court of Appeal on 7^th April, 2016. Thereafter, the claimant in the present case on 10^th May, 2016 filed this claim urging the court to set aside the judgment in suit No. NICN/JOS/53/2013, about two years after the delivery of the judgment by the same court. The proximity in time between the date of dismissal of the application for leave to appeal against the judgment in suit No. NICN/JOS/53/2013, (7^th April, 2016) and the date of filing this suit (10^th May, 2016) being barely one month on the one part, when compared with the date upon which judgment was delivered in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) ( that is on November 18, 2014) more than one year six months on the other hand, will only establish one fact and that fact is that the present suit is a veiled attempt to appeal through the back door, against the judgment in the said Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) delivered on the merit on November 18, 2014 which attempt to appeal that judgment, the Court of Appeal expressly and openly refused through the front door on 7^th April, 2016, I so find and hold. The preliminary objection in this case is not lacking in merit. It is very meritorious. It ought to succeed and it has succeeded.

From my holding above, this case ought to terminate at this stage. However, because of the admonition of the Supreme Court in Brawal Shipping Company v Onwudikwe Company (2000) 6 SCNJ 508 at 522, Seven Up Bottling Company Ltd v Abiola & Sons Bottling Company Ltd (2001) 6SCNJ 18 at 49. See also, Ojobue v Nnubia (1972) 6 SC 27 and Katto v CBN (1991) 9NWLR (Pt. 214) 126 at 149 that trial and penultimate courts should determine all issues raised for determination in a case before them and should not limit themselves to the issue that disposes of the entire case, to avoid the case being remitted back to the lower court for the trial of the issues not determined by it, I shall proceed to determine the merit of this case based on the two issues raised by the learned counsel for the claimant.

The first issue is whether from the facts and circumstances of this case, the Judgment of this Honoura ble Court delivered on November 18, 2014 in Suit No: NICN/JOS/53/2013 in favour of the Defendant against the Claimant was obtained by fraud and as such liable to be set aside.

From the facts of the case Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) the cause of action in that case arose on 7^th July 2006 while the case was commenced sometime in October that same year (2006) and judgment in the matter was delivered on November 18, 2014, the act constituting the alleged fraud that is taking up appointment with the Federal University of Agriculture, Abeokuta, Ogun State was sometime in July, 2010. He worked there until 19^th March, 2013 when his appointment was terminated. It is the submission of the learned counsel for the claimant that throughout the pendency of Suit No. NICN/JOS/53/2013 the Defendant did not mention to this Honourable Court the fact that he had taken up appointment with Federal University of Agriculture, Abeokuta, Ogun State in June, 2010 and thereupon collected salaries and emoluments for almost three years, from June, 2010 to March, 2013. That as part of his deliberate intent to enjoy double salaries, emoluments and entitlements from two different Universities within the same period, the Defendant is desperately seeking enforcement of Judgment in Suit No. NICN/JOS/53/2013 delivered by this Honourable Court on November 18, 2014 without making disclosures to the Honourable Court till date that he has already collected salaries, emoluments and entitlements from Federal University of Agriculture, Abeokuta, Ogun State from June, 2010 to March, 2013.”

So far, I find that the act allegedly constituting the fraud took place over 4(four) years after the cause of action arose and ended about a year before the judgment in that case, thus the alleged fraud did not arise before or contemporaneously or connected in any manner or form with the cause of action in that suit No. NICN/JOS/53/2013.

Not only that, the issue of collection of double salary is expressed to be a futuristic intention not one that was perpetuated. It is on record that the defendant herein (claimant in Suit No. NICN/JOS/53/2013) has not received any payment of salaries from the claimant herein even after the judgment in the said Suit No. NICN/JOS/53/2013. The only time he received any salary is the time he worked with the Federal University of Agriculture, Abeokuta, Ogun State from June, 2010 to March, 2013. That act on his part of working with Federal University of Agriculture, Abeokuta, Ogun State from June, 2010 to March, 2013 can never amount to a fraud as at that time and under the circumstances during which time he was challenging the termination of his employment by the claimant herein.

Afterall, an employee whose employment is wrongfully terminated is entitled to help himself to ameliorate and mitigate his losses by taking up another job while challenging the wrongful termination of his employment. In the case of Obot v. C.B.N. (1993) 8 NWLR (Pt. 310) 140 at 162 – 163 the Supreme Court cited the case of Denmark Production Ltd. v. Boscobel Productions Ltd (1968) 1 ALL E.R 513 and held, that an employee dismissed in breach of his contract of employment cannot choose to treat the contract as subsisting and sue for account of profit, he must sue for damages for wrongful dismissal and must of course mitigate those damages as far as he reasonably can.

Also in Olatunbosu v Nigerian Institute of Social and Economic Research Council 19981 LPELR-SC 136/1986, it was held per Oputa, J.S.C, at page 55 para C-G that “A servant who has been unlawfully dismissed is required to sue for damages for wrongful dismissal and must of course mitigate those damages as far as is reasonable”.

Not only that, the case of Oluefagba & Ors. v Abdul – Raheem & Ors. (2009) LPELR-2613(SC)at 440 held thus:

“An employee enjoying statutory flavour and whose employment was illegally terminated is entitled to re-instatement even if he had secured other employment during the pendency of the case…the remedy of unlawful termination is re-instatement…”

The point being made here is that the apex court of this country has recognized the right of an employee who is challenging the legality or otherwise of his termination to engage or take up another job during the pendency of his suit. There is nothing fraudulent by so doing. See also CCB(Nig) Ltd v Nwankwo(1993)4NWLR(Pt.286) 15.

This case is not about asking the defendant to refund the salaries collected from the said Federal University of Agriculture, Abeokuta, Ogun State from June, 2010 to March, 2013 after being paid his salaries for the same period as ordered by this Honourable court in the judgment in the said suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos). It is also not about asking for leave of court to withhold the sum of money received from the said Federal University of Agriculture, Abeokuta, Ogun State from the salaries of the defendant from his total emolument with a view of remitting same to the said Federal University of Agriculture, Abeokuta, Ogun State. From the authorities above, the act of securing a job and receiving salaries therefrom during the pendency of suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) cannot be said to be fraudulent as the defendant herein is in law entitled to mitigate his losses. This issue has failed. It cannot sustain this suit. It is therefore resolved against the claimant, I so hold.

The next issue is whether the cause of action of the Defendant vide Suit No: FHC/CS/48/06 subsequently re-numbered as Suit No: NICN/JOS/53/2013 was statute – barred.

At this point, it is very important to reproduce the provisions of that Section 2(a) of the Public Officers Protection Act 2004 Laws of the Federation of Nigeria Cap 41 which provides thus:-

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 after the ceasing thereof

Section 2 (a) of the Public Officers Protection Act 2004 Laws of the Federation of Nigeria Cap P.41 no doubt imposes a three month period of limitation of action against Public Officers and time begins to run when there is in existence a person who can sue and another who can be sued in respect of the cause of action, that is to say the moment the cause of action arose, see the case of Fadare v. AG Oyo State 1982 4SC 1.

It is trite that what a court is enjoined to look out for in deciding whether a suit is statute barred or not are: –

(a)The date when cause of action arose and

(b) The date of filing of the originating processes and then check whether or not the period of limitation has been exceeded, see Popoola Elabanjo & Ors V Chief (Mrs.) Ganiat Dawodu [2006] 6 S.C.N.J 204 at 227 and PN Uddoh Trading Co. Ltd. V Abere [2001] FWLR (Pt. 57) 922.

There is no dispute that the cause of action in this case arose on July 7, 2006, a very close and careful look at the writ of summons in that Suit No: FHC/CS/48/06 shows that the Claimant commenced that suit when it was filed before the Federal High Court on 6^th October, 2006, being the date the defendant herein and claimant in that suit paid for the filing fees and it was properly received and receipted, which is within 3 months from the date the course of action arose in that matter.

It is important is important to state here that this issue of whether that Suit No: FHC/CS/48/06 is statute barred was neither raised nor contested in suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos), and consequently no finding of fact was made in respect of this issue in the judgment as I have now made.

From the foregoing, I find and hold that Suit No: FHC/CS/48/06 re-numbered as Suit No: NICN/JOS/53/2013 was not caught up by section 2(a) of the Public Officers Protection Act and was therefore not statute barred. This issue again has failed and resolved against the claimant.

In his written address on the issue raised suo moto by Court the learned counsel for the claimant submitted that section 2(a) of the Public Officers Protection Act Cap 379 Laws of the Federation, 1990 has two exceptions to its applicability; the first being cases of continuance of damage or injury. Counsel referred to the cases of Aremo 11 v. Adekanye(2004) 13NWLR (Pt.891) 572 @ 593-594 and INEC v Enasito (2018)2 NWLR (Pt. 1602) 63@95. Counsel submitted that the subsistence judgment of this Honourable Court delivered on November 18, 2014 in suit No: NICN/J/53/2013, the damage and/ or the injury it stands to cause is continuance more so, that it can be enforced any day, any time and as such this suit is not caught up by section 2(a) of the Public Officers Protection Act.

Continuing counsel submitted that; the second exception is the issue of Fraud. Counsel submitted that the defendant herein perpetrated fraud when he took two appointments, drew salaries from both institutions and suppressed every fact that will show that it was inappropriate for him to collect salaries from both institutions concurrently. Counsel urged the court to hold that this case is not statute barred.

The learned counsel for the defendant in his own address referred the court to the case of Edmund Chukwu & 2ors v Chief J. S. Amadi & 2 ors., (supra) and submitted that since the claimant herein failed to raise the issue of statute of limitation and plead same during the trial of the said Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) cannot be permitted to raise that issue after judgment has been entered in the case by bringing this present case. Counsel argued that this proposition clearly supports the view that section 2(a) of the Public Officers Protection Act is applicable to the government or its agencies against individuals or private persons in the performance of a public duty.

From the pleadings and evidence before me in this case, it is clear that the judgment in Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) was delivered on the merit on November 18, 2014. Thereafter, the claimant in the present case on 10^th May, 2016 filed this claim urging the court to set aside the judgment in suit No. NICN/JOS/53/2013, about one and half years after the delivery of the judgment by the same court.

The act constituting the alleged fraud; that is taking up appointment with the Federal University of Agriculture, Abeokuta, Ogun State occurred sometime in July, 2010, and he worked there until 19^th March, 2013 when his appointment was terminated.

It is the submission of the learned counsel for the claimant that throughout the pendency of Suit No. NICN/JOS/53/2013 the Defendant did not mention to this Honourable Court the fact that he had taken up appointment with the Federal University of Agriculture, Abeokuta, Ogun State in June, 2010 and thereupon collected salaries and emoluments for almost three years, from June, 2010 to March, 2013.

From the foregoing, I hold that the cause of action in this case therefore arose on November 18, 2014, the day judgment was delivered without the claimant making the alleged disclosure.

I have carefully considered the submissions of parties with relation to this question, however, the case of Aiyetan v Nigerian Institute of Oil Palm Research [1987] LPELR 275 SC is most instructive. In that case, the plaintiff had instituted an action for wrongful dismissal and his employers counter claimed for N12, being money, the plaintiff was alleged to have taken for his own. The Supreme Court upheld the trial court’s dismissal of the counterclaim as being statute barred, thereby overturning the decision of the Court of Appeal that a former public officer, former employee cannot raise Section 2A Public Officers Protection Act against the Federal Government or any of its agencies as employer. The Supreme Court per Nnamani A JSC had this to say “I see nothing that would necessitate the exclusion of the Federal Government or any of its agencies from the application of the Act”. Applying the above authority, I find and hold that the defendant is entitled to raise the defence of Public Officer Protection Act against the claimant in this suit. See Suit NO: NICN/IL/02/2013 The Government of Kwara State v Victor Salau Daudu unreport judgment of this Court delivered 19^th May 2014.

All the issues raised in this case have been resolved against the claimant. In all, this case is totally lacking in merit, it ought to be dismissed and it is hereby dismissed in its entirety.

The defendant is entitled to the cost of this suit. It is trite that cost follow events. In the case of Mrs. Eno Umo v Mrs Cecilia Udonwa (2012) LPELR-7857, the Court held that; ”…in awarding costs, a court is entitled to consider among other factors, the following: – (a) the summons fee, (b) duration of the case, (c) legal representation, (d) expenses incurred by the successful party in the ordinary course of prosecuting the case, (e) the value or purchasing power of the Naira at the time of the award.” It is on record that the since 2006 the defendant has been in court trying to up turn the unlawful termination of his employment first in suit FHC/CS/48/06 re-numbered as Suit No: NICN/JOS/53/2013 , appeal No. CA/J/27^M/2015 (University of Jos v Emmanuel N. Yemtet), and this present suit. This has taken about 13years, though an order for his reinstatement has been ordered, it is to the same office he occupied about 13years ago, in effect he has been stagnated constructively. In view of the foregoing, I hold that the claimant shall pay the respondent the cost which I assess as N1,000,000.

In view of the provision of section 14 of the National Industrial Court Act 2006, which provides that:

The Court shall in the exercise of the jurisdiction vested in it by or under this Act in every cause or matter, have power to grant, either absolutely or on such terms and conditions as the Court thinks just, all such remedies whatsoever as any of the parties thereto may appear to be entitled to in respect of any legal or equitable claim properly brought forward by the Court so that, as far as possible, all matters in dispute between the parties may be completely and finally determined and all multiplicity of legal proceedings concerning any of those matters avoided.

I make the following orders:

1) The judgment order of this Honourable Court in suit Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) to the Respondent in that case and claimant in this case, to compute and pay all the salaries, entitlements and benefits(of the claimant in that case and now Respondent in this case) withheld consequent upon his termination as at the date of that judgment that is up to November 18, 2014 is hereby adopted and the claimant is hereby ordered to extend the period involved to the date of this judgment that is today the 22th day of November 2019.

2) All the other judgment orders in the said judgment order of this Honourable Court in suit Suit No: NICN/JOS/53/2013 (Emmanuel N. Yemtet v University of Jos) made on November 18, 2014 remain valid and extant as made.

3) The claimant shall pay the respondent N1,000,000 (One Million Naira) being the cost of this suit on or before the 30^th day of December 2019 failing which it shall attract 20% interest per annum until fully liquidated.

Judgment is entered accordingly.

……………………………………………

Hon. Justice K. I. Amadi, Ph.D.

(Judge)