IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE: FEBRUARY 12, 2018
SUIT NO: NICN/YEN/124/2016
BETWEEN:
BARR. JACKSON EBI SUOKIRI
CLAIMANT
AND
- THE ATTORNEY GENERAL &
COMMISSIONER FOR JUSTICE
BAYELSA STATE
- GOVERNMENT OF BAYELSA STATE
DEFENDANTS
REPRESENTATION
Mr. Agbafor Maweya Esq for the Claimant
Merry Ogbe Esq for the Defendants
RULING
The Claimant/Respondent filed a general form of complaint dated 30th June 2016 and filed on the same date. The claims of the Claimant against the defendants are as follows:
“The claimant’s claim from the defendants is for the sum of Three Million, Eight Hundred and Eleven Thousand, Ninety One Naira, Twenty Five Kobo (N3, 811,091.25k) only, being the total amount due and payable to him as severance gratuity for the services he rendered the defendants (jointly and severally) as the Special Adviser for Labour and Productivity to Chief Timipre Sylva the then erstwhile Governor of Bayelsa State from 21st January, 2011 to 14th February, 2012.”
The Claimant also filed the general form of complaint along with Statement of Facts, List of Witness, Written Statement on Oath, List of Documents and his Letter of Appointment.
CASE OF THE CLAIMANT
The claimant was appointed as the Special Adviser for Labour and Productivity to the then Governor of Bayelsa State, Chief Timipre Sylva on the 21st January, 2011 vide letters of appointment reference No. SSG/CON/86/VOL.XIII/9 dated 21st January, 2011.
That based on the foregoing, he accepted the said appointment letter and duly carried out or performed his duties diligently, faithfully and excellently from 21st January, 2011 to the 14th February, 2012 when he was disengaged. And that virtue of his appointment letter aforesaid and the 3rd schedule to the Bayelsa State Public and Political Office Holders (Executive Remuneration, Salaries and Allowances) amended Law 2007 he is entitled to be paid 300% of his annual basic salary as severance gratuity. That he made several verbal demands from the defendants to pay the aforesaid entitlements but to no avail. And having exhausted all diplomatic avenues, he is faced with no other option than to seek redress in a court of law, hence this law suit.
CASE OF THE DEFENDANTS
The defendants filed a memorandum of conditional appearance dated 14th September, 2016 and filed on the 20th September, 2016 along with a notice of preliminary objection, a written address and a CTC of a Judgment delivered on 28th April, 2016 by my learned brother HON. JUSTICE J.T AGBADU-FISHIM in SUIT NO: NICN/YEN/24/2015.
THE DEFENDANT’S PRELIMINARY OBJECTION
The Defendant/Applicant filed a Notice of Preliminary Objection pursuant to section 1 (a) of the Public Officers Protection Law, CAP P18, Laws of Bayelsa State, 2006 and Section 6 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and under the inherent jurisdiction of this court. The Defendants/Applicants are praying for an order dismissing this suit for being statue–barred. And the grounds for the objection are as follows:
- That this action can not be maintained against the Defendants three (3) months after the accrual of the right of action (the defendants being public officers).
- The Claimant’s suit is incompetent, having become statute-barred.
iii. Consequently, this Honourable Court lacks jurisdiction to hear and determine this suit.
The Defendants/Applicants formulated a lone issue for determination, That is to say whether this action is not statute barred having been filed more than three (3) months after the cause of action aroused. The defendants submitted that this Honourable Court lacks the jurisdiction to entertain this suit as it is statute-barred having been filed over three months after the cause of action accrued. Counsel cited the provisions of Section 1 (a) of the Public Officers Protection Law CAP. P18 Laws of Bayelsa State 2006. Section 1 (a) of the Public Officers Protection Law of Bayelsa State is in pari materia with Section 2 (a) of the Public officers Protection Act, Laws of the Federation of Nigeria, 2004. For a better appreciation of the claimant’s case vis-à-vis the instant objection, the defendants reproduced relevant averments in the claimant’s Statement of Facts below:
- The Claimant states that on 21/1/2011 he was appointed the Special Adviser to the then Governor of Bayelsa State, Chief Timipre Sylva and was duly issued an appointment letter to perform his duties with effect from the 21st day of January, 2011. The Claimant pleads and shall rely on the said letter of appointment, reference No. SSG/CON/86/Vol.XIII/9 dated 21/1/2011.
- The Claimant states that based on the foregoing, he accepted the said appointment duly carried out or performed his duties diligently, faithfully and excellently from 21st day of January, 2011 to the 14th day of February, 2012 when he was disengaged.
According to the defendants the above paragraphs in the Statement of Claim are crucial because it is now settled that to ascertain when a cause of action arouse, the processes to look at are the writ of summons and statement of claim. In ABUBAKAR Vs. B.O. & A.P LTD. (2007) 18 N.W.L.R (Pt.1066) 319, 360, paras G-H, the Supreme Court stated the law in the following terms:
“It is a cardinal principle of law that to ascertain a cause of action, the immediate materials a court should look at are the Writ of Summons and the averments in the Statement of Claim, for it is by examining them that a court can satisfy itself on the actual grouse of a party and the remedy or relief it is seeking from the court. After determining the cause of action then by the very averments, the court can discern the time that a cause of action arouse.”
Refer also the case of ELABANJO Vs. DAWODU (2006) ALL FWLR (Pt. 328) 604, 646, paras B, where the Supreme Court stated that:
“Guided by the decision of this court in EGBE V. ADEFARASIN (No.2) (supra), the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed, which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law, the action is statute barred.”
That from the above quoted paragraphs of the Claimant’s Statement of Facts, it is apparent that the Claimant’s entitlement (if any) to the said severance gratuity became due upon his disengagement on the 14th day of February,2012, for which he was entitled to seek judicial redress within three (3) months from that date. Unfortunately, the Claimant filed this action only on 30th June, 2016. In simple mathematical terms, this means he filed this suit about four (4) years, four (4) months and sixteen (16) days after the cause of action arouse.
In explaining the notion of limitation of action, the defendants submitted that the Supreme Court in NASIR V. C.S.C; KANO STATE (2010) 5 NWLR (Pt. 1190) 253, 277, paras D-E stated that:
“A cause of action is said to abate or is statute barred when no proceedings in respect thereof can be initiated because the time specified by the limitation law has expired or extinguished. After a period set by the law for commencing an action, a plaintiff, with a good cause of action cannot enforce same by judicial process because he has sat over his right for all times as the time stipulated by law for initiating such an action has become extinct.”
Also in defining cause of action, the Supreme Court in ADEKOYA Vs. F.H.A (2008) 11 NWLR (Pt. 1099) 539, 551, paras E-F held that although a cause of action is admittedly an expression that defies precise definition, it can safely be defined as the fact or facts which establish or give rise to a right of action-it is the factual situation which gives a person a right to judicial relief. The court went on to hold that:
“A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In order words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right….”
That on the above position of the law and particularly in view of paragraphs 4 and 5 of the claimant’s pleadings already set out in the address, it’s the defendant’s submission that the right of action in this case accrued on the 14th day of February, 2012, when the claimant was “disengaged”. However, the claimant/respondent refused, failed or neglected to seek redress until the 30th day of June, 2016, which is a period of over (4)years (well over three months after the accrual of his right of action).
That in ALLIANCE FOR DEMOCRACY V. INEC (2004) ALL FWLR (Pt. 234) 1886, 1905 paras. D-E, the Court of Appeal stated thus;
“A court is competent-where the subject matter of the case is within the jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction”.
That the feature in the present case that prevents the court from exercising its jurisdiction is the fact that this suit was instituted well over three months after the cause of action arouse contrary to the Public Officers Protection Law CAP. P18 Laws of Bayelsa State 2006 thereby making it statute barred. Indeed, there is no cause of action upon which the Honourable Court may adjudicate, as the Claimant’s right of action has been extinguished, leaving him with an empty and unenforceable cause of action, by virtue of Section 1 (a) of the Public Officers Protection Law (supra).
Further submit that provisions of Section 1 (a) of the Public Officers Protection Law are mandatory; thus in JOHN EKEOGU Vs. ELIZABETH ALIRI (1991) LPELR-1079 (SC), @ P. 12 paras D-E; (1991) 22 N.S.C.C. (Pt.1) 343, 348, lines 43-46, the Supreme Court held that the action must be instituted against the public officer before the expiration of the period of three months from the date of the commission of the act complained of. If the action is brought after the three months’ period, it will be unmaintainable.
Also cited CHIEF YAKUBU SANI V. OKENE LOCAL GOVT. TRADITIONAL COUNCIL (2008) 12 NWLR (Pt. 1102) 691, 701, paras. A-D; (2008) All FWLR (Pt. 429) 484, 473, paras. B-F.
Further submitted that the Public Officers Protection Law (supra) is applicable to this suit. The claimant is complaining about the neglect or default, on the part of the defendants to pay him the sum of money he is allegedly entitled to, by virtue of his erstwhile employment with the 2nd defendant. There is also no doubt that the defendants were, at all material times, performing public duties of the 2nd defendant. The applicability of the Public Officers (Protection) Act (the Federal version of the Bayelsa State Public Officers Protection Law) to cases involving Public Officers was summarized by Kawu, J.S.C as follows:
“In my view, the words used in this legislation are plain and unambiguous and should be given their ordinary and natural meaning. A careful reading of the section shows that its provision apply to an action brought against a public officer for any act done either-(i) in pursuance or intended execution of any Law or public duty or authority, or (ii) in respect of any alleged neglect or default in the execution of Law, duty or authority. Please see John Ekeogu V. Elizabeth Aliri (Supra) @ P. 12, paras. B-D.”
In this case, it is clear that the claimant’s right of action had ceased to exist by the time he filed this action, on 30/6/2016. In this regard, it is submitted that whatever reason(s) he may have for not coming to court within the statutory time limit is immaterial to the interpretation and application of the statutory protection. Therefore urge my lord to resolve the sole issue in favour of the Defendants.
It has been held in a long line of cases that where a Court finds an action to be statute-barred, the proper order to make is an order of dismissal. Cited UNITY BANK PLC V. NWADIKE (2009) 4 NWLR (pt. 1131) 352, 381, paras B-D. Also refer the Honourable Court to the decision of HON. JUSTICE J.T AGBADU-FISHIM in SUIT NO: NICN/YEN/24/2015 – CHIEF FRANCIS FORUM EGELE VS. ATTORNEY GENERAL OF BAYELSA STATE & ANOR. (Unreported), delivered on 28th April, 2016.
CLAIMANT’S REPLY TO THE NOTICE OF PRELIMINARY OBJECTION
The Claimant filed his reply to the Preliminary Objection dated 9th December, 2016 and filed on the same date. The claimant started off by giving brief facts of this matter and formulated a lone issue for determination as follows:
WHETHER THE LIMITATION LAW APPLICABLE TO THE PRESENT SUIT OF THE CLAIMANT IS THE PUBLIC OFFICERS PROTECTION LAW, CAP. P18, LAWS OF BAYELSA STATE, 2006 AND NOT THE LIMITATION LAW, CAP. L8, LAWS OF BAYELSA STATE, 2006.
The Claimant/Respondent submitted that the limitation law applicable to the present suit of the claimant is the Limitation Law, Cap.L8, Laws of Bayelsa State, 2006 (hereinafter referred to as the limitation law of Bayelsa State) and not the Public Officers Protection Law, Cap P18, Laws of Bayelsa State, 2006 (hereinafter referred to as the POP Law).
Further submitted that this action emanated from the contractual relationship that existed between the claimant and the defendant. The Claimant was an employee of the Defendant between 21st January, 2011 and 14th February, 2012 having regard to his appointment letter, the fact that he rendered services to the Defendant in his capacity as the Special Adviser to the Governor on Labour and Productivity and the fact that during the said period, he earned monthly salaries and allowances in line with the spelt out remunerations in the appointment letter and the provision in the third schedule of the Bayelsa State Public and Political Office Holders (Executive) Remuneration, Salaries and Allowances (Amendment)Law, 2007. The Claimant’s present action is therefore founded on a breach of the term of his contract of employment with the Defendant which terms are embodied in the Third Schedule to the Bayelsa State Public and Political Office Holders (Executive) Remuneration, Salaries and Allowances (Amendment) Law, 2017. The Claimant further contended that by virtue of the fact that the terms of contract of employment of the claimant is embodied in a law, his employment with the defendant is one with statutory favour. The terms of his contract of employment as it concern his remuneration, salaries and allowances are specifically provided for statutorily in the third schedule to the Bayelsa State Public and Political Office Holders (Executive) Remuneration, Salaries and Allowances (Amendment) Law, 2007.
It is also the claimant’s submission that the implication of the contract of employment of the claimant with the defendant having a statutory favor is not meant to undo the claimant as the defendant is seeking to establish, but to rather give him a Special Legal Status over and above the Ordinary Common Law Master and a Servant relationship. Refer this Honourable Court to ILOABACHIE V. PHILIPS (2002) NWLR PT. 787, 264 at pp. 281-282 PARAGRAPHS H-B, Ratio 1.
That it is a well settled principle of law that Section 1 of the Public Officers Protection Law does not apply to cases of contract. The Supreme Court in addressing Section 2 of the Public Officers Protection Act, Cap. P41, Laws of the Federation of Nigeria, 2004 which is in pari materia with Section 1 of the Limitation Law of Bayelsa State, stated thus in OSUN STATE GOVT. V. DALAMI (NIG) LTD. (2007) 9 NWLR PT. 1038, 66 at pp 83-54 PARAGRAPHS F-E.
“It is now settled law that section 2 of the Public Officers (Protection) Act does not apply to cases of contract”.
While the Claimant agree with the contention of the Defendant that it is protected by the POP law, it is very explicit that cases of contract are exempted from the applicability of the public officers protection law. In other words, the 3 months period of limitation of action against public officers does not apply to cases of contract. Cited the cases of HON. JIDDA TOM HASSAN & 177 ORS. V. BORNO STATE GOVT. & 11ORS (2016) LPELR-40250 (CA), NIGERIAN PORTS AUTHORITY V. CONSTUZONI GENERALI FARSURA COGEFAR SPA & ANOR (1974) 1 ALL NLR Part 2 Page 463 or (1974) all NLR page 945 at 957, ENERGY MARINE & INDUSTRIAL LTD. V. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ANOR. (2010) LPELR-19774 (CA).
That the Limitation Law applicable to the cases of contract as in the claimant’s present suit is the Limitation Law of Bayelsa State 2006. The Limitation Law of Bayelsa State provides for the period within which suits could commence for actions founded on Contract, torts etc.
Section 16 of Law provides thus;
“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”.
Therefore submit that the limitation period with respect to the present suit of the claimant is five (5) years as provided by Section 16 of the Limitation Law of Bayelsa State in view of the fact that the action of the claimant is explicitly founded on contract, and not three (3) months as contended by the defendant. The claimant left the services of the Defendant on the 14th day of February, 2012 (Refer this Honourable Court to paragraph 6 (six) of the Claimant’s Written Statement on Oath dated 30th June, 2016). This suit was filed on the 30th day of June, 2016, within the actionable period of the limitation Law of Bayelsa State. On the strength of the foregoing submissions, the claimant urged this Honourable court to hold on this issue that the Limitation Law applicable to the present suit of the claimant is the Limitation Law of Bayelsa State and not the Public Officers Protection Law.
Thus, from the above issue raised and argued herein, the Defendant’s preliminary objection is totally an academic exercise, a misconception and devoid of merit in that claimant’s suit is only seeking to enforce the terms of his contract of employment with the defendant without more and therefore founded on contract, hence falls within the exemption to the applicability of the POP Law by virtue of the Supreme Court decision in OSUN STATE GOVT. V. DALAMI (NIG) LTD (Supra). Consequently, the material facts in CHIEF FRANCIS FORUM EGELE Vs. ATTORNEY GENERAL of BAYELSA State and BAYELSA STATE GOVERNMENT are totally different with the instant case of the claimant. In the aforesaid case, the claimant was demanding for out of pocket expenses made on behalf of the government while in the instant case, the claimant is demanding for the enforcement of the terms of his contract of employment with the defendant.
Finally therefore, urge this Honourable Court to dismiss the Defendant’s Preliminary objection with substantial cost.
REPLY OF THE DEFENDANTS/APPLICANTS ON POINT OF LAW
The Defendants/Applicants filed a reply on points of law dated 13th February, 2017 and filed on the same date. The Claimant in his reply contends that the law applicable to the present suit is the Limitation Law of Bayelsa State and not the Public Officers Protection Law Cap P18, Laws of Bayelsa State, 2006. The Claimant contends that it is a contract of employment that existed between the Claimant and the defendant which terms are contained in the Bayelsa State Public and Political Office Holders (Executive) Remuneration, Salaries and Allowances (Amendment) Law, 2007. The contention of the Defendants on the other hand, is that the alleged acts, neglect or default of the defendants were carried out in the course of execution of the day to day public duty of the 2nd defendant and as such, falls under the purview of the Public Officers Protection Law, CAP P.18 Laws of Bayelsa State, 2006. The Claimant went further to submit that the relationship between the claimant and defendant was founded on a contract of employment which terms are contained in the Bayelsa State Public and Political Office Holders (Executive) Remuneration, Salaries and Allowances (Amendment) Law, 2007.
The defendants submitted that assuming but without conceding that the position of the claimant is correct and that the terms of the employment of the claimant is contained in the Bayelsa State Public and Political Office Holders (Executive) Remuneration, Salaries and Allowances (Amendment) Law, 2007, it also follows that every aspect of the relationship will be guided by statute including institution of any action arising from the relationship. In the first place, the Claimant’s assertion that the employment was regulated by the Bayelsa State Public and Political Office Holders (Executive) Remuneration, Salaries and Allowances (Amendment) Law, 2007 serves as an admission and concurs with the defendant that the claimant was indeed a public officer. Secondly, my lord, it is our submission that Section 1 (a) of the Public Officers Protection Law CAP. P18 laws of Bayelsa State 2006 which clearly states that the institution of any action, prosecution or proceeding lying from any law or of any public duty or authority should be carried out within three months is therefore applicable in this case. Urge this court to so hold.
To further buttress their point, the Claimant relied on the authorities of ILOABACHIE V. PHILIPS (2002) NWLR PT. 264; OSUN STATE GOVT Vs. DALAMI (NIG)LTD (2007) 9 NWLR PT. 1038, 66. It is trite that a case shall only be binding precedent where facts in the case are on all fours with a subsequent case under consideration. Cited the case of ADUKU V. F.R.N (2009) 9 NWLR (PT. 1149) 370 @ 370 @ 387 PARA G.
Further submit that the aforementioned cases are inapplicable in this case as the facts are distinguishably different from the present case. In ILOABACHIE Vs. PHILIPS (SUPRA) the appellant was a federal public servant, the 2nd and 3rd respondents were bodies created by statute. In the present case the claimant was a Special Adviser to the Governor. In fact, the case of OSUN STATE GOVERNMENT V. DALAMI (supra) borders on the case of termination of a Management Lease Agreement by the Osun State Government in breach of the terms of the contract. It was clearly a case founded upon a specific or special contract. The facts of both cases are clearly different and distinguishable. Urged this court to so hold. In light of the above submissions and the authorities cited, the defendants/applicants urged this court to uphold the defendant’s notice of preliminary objection and dismiss the case of the claimant.
COURT’S DECISION
I have carefully read and understood all the processes filed by Learned counsels on either side, I also perused and analysed the written addresses filed by both parties including the oral submissions by both counsels. Having done all these, I note that the bottom–line of this case is that the Defendants/Applicants desires that this suit against the defendants be dismissed for lack of jurisdiction, It having become statute-barred by virtue of Section 1 (a) of the Bayelsa State Public Officers Protection Law 2006, while the claimants argues otherwise and urged this court to discountenanced the arguments canvassed by the Applicants on the ground that the action is maintainable based on the fact that this action emanated from the contractual relationship that existed between the claimant and the Defendants. And the claimant employment being one with statutory flavour, And the terms of contract of employment of the claimant being embodied in a law as statutorily embodied in the third schedule to the Bayelsa State Public and Political Office Holders (executive) Remuneration, Salaries and Allowances (Amendment) law, 2007, Then the applicable law in this case is the Bayelsa State Limitation Law Cap L8, Laws of Bayelsa State, 2006 and not the Public Officers Protection Law, Cap P18, Laws of Bayelsa State, 2006. And based on all these, I narrow the issue for the just determination of this case to be thus:
“whether or not the claimant’s suit filed before this court against the defendants is statute barred taking into consideration the terms of contract of employment of the claimant”.
It is of legal importance to note that a legal right to enforce an action is not perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute barred if legal proceedings can not be commenced in respect of same because the period laid down by the Limitation Law or Act had elapsed. See ADEOSUN VS. JIBESIN (2001) 14 WRN 106, C.A. And where a statute of limitation prescribes a period within which an action should be brought; legal
proceedings can not be validly or properly instituted after the expiration of the prescribed period. Thus an action instituted after the expiration of the prescribed period is said to be statute barred. See OSUN STATE GOVERNMENT VS DANLAMI NIG. LTD. (2007) ALL FWLR (PT. 365) 438 S.C. And OGUNKO Vs. SHELLE (2004) 6 NWLR (PT. 868) 17 C.A. And that time begins to run for the purpose of the limitation law from the date the cause of action accrues. Cited BRITISH AIRWAYS PLC VS AKINYOSOYE (1995) 1 NWLR (PT. 374) 722 AT 724 C.A, SHELL PET. DEV. CO. (NIG.) LTD VS FARAH (1995) 3 NWLR (PT. 382) 148 AT 156 C.A.
Note that the rationale behind the limitation law, limitation of action is the principle of law requiring the plaintiff (claimant) as a matter of obligation to seek prompt remedy for the breach of his right in a court of law within the time limited by the law, otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. So where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff, proceedings shall not be brought after the period prescribed by law; except the claimant can show that the case comes within any of the laid down exceptions. Refer to the case of DR. CHARLES OLADEINDE WILLIAMS VS MADAM OLAITAN WILLIAMS (2008) 4-5 SC (PT.II) 253.
Having said all these, the claimant in both his Statement of Facts and Written Statement on Oath maintained that he was appointed as the Special Adviser to the then Governor of Bayelsa State, Chief Timipre Sylva on the 21st January, 2011. He accepted the said offer of appointment and duly carried out or performed his duties diligently and excellently from 21st day of January, 2011 to the 14th day of February, 2012 when he was disengaged. And that since his appointment is statutorily embodied in the third schedule to the Bayelsa State Public and Political Office Holders (executive) remuneration, salaries and allowances (Amendment) Law, 2007 which now made his appointment as one with statutory flavour, Then the applicable law in this case is the Bayelsa State Limitation Law Cap L8, Laws of Bayelsa State, 2006. It is of legal importance to note that an employment is said to have a statutory flavour when the appointment and termination is governed by statutory provisions. In other words, where the contract of service is governed by the provisions of statute or where the conditions of service are contained in regulations derived from statutory provisions, it invests the employee with a legal status higher than the ordinary one of master and servant. Hence, such an employment is said to enjoy statutory flavour. See AUCHI POLY VS. OKUOGHAE (2005) 10 NWLR (PT. 933) 279 C.A. SHITTA BEY VS. FEDERAL CIVIL SERVICE COMMISSION (1981) 1 Sc pg 40.
From the letter of appointment dated 21st January, 2011, The claimant was appointed as the Special Adviser to the Governor on Labour and Productivity with effect from 21st day of January, 2011. And there is nothing to show that the appointment is one that has statutory flavour, since Special Advisers to Governors are appointed and removed at the pleasure of the Governor. And for the claimant to rely on the third schedule to the Bayelsa State Public and Political Office Holders (executive) remuneration, salaries and allowances (Amendment) Law, 2007, as the law that garnished his appointment with statutory flavour is a total misconception of both law and fact. The said law only listed the offices of both Public and Political Office Holders (executive) remuneration, salaries and allowances but has never made such offices as one having statutory flavour, As such the claimant’s appointment has no any iota of statutory flavour; And I so hold.
Furthermore, Public Officers are not immune from suit under either the Public Officer Protection Act or Limitation Law. However, the law is that such a suit against a public officer must be instituted within a stipulated time limit or period, otherwise it becomes stale or statute-barred. See THE MINISTER OF PETROLEUM & MINERAL RESOURCES & ANOR Vs. EXPO- SHIPPING LINE (NIG.) LTD. (2010) 12 N.W.L.R (Pt. 1208) 26 S.C. And in determining when a cause of action accrues, the court needs to only refer to claimant’s writ and statement of facts, to know when the wrong that gave rise to the cause of action was committed. See AGI Vs. ENO (2010) 5 NWLR (PT. 1188) pg 626 @ pg 641paras B-C, And also ABUBAKAR VS B.O & A.P LTD. (2007) 18 NWLR (Pt.1066) 319 at 360 paras G-H.
Section 1 (a) of the Public Officers Protection Law of Bayelsa State 2006 which is impari materia with Section 2 (a) of the Public Officers Protection Act LFN, 2004 provides as follows:
“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 law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law, duty or authority, the following 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 the case of a continuance of damage or injury, within three months next after the ceasing thereof……”
The above provision is very clear and unambiguous. It simply provides that an action against a public officer in respect of any act done in pursuance or execution of any act or law of public duty or default in same can only be commenced within three months next after the act, neglect or default complained of except in a case of continuance of damage or injury in which the person aggrieved must institute the action within three months next after the cessation of the damage or injury complained of.
Having said all these, I have carefully analysed the Writ of Summons and Statement of Facts filed by the Claimant and by paragraph 5 of the Statement of Facts one can see that the cause of action accrued since on the 14th February, 2012; that is about four (4) years, four (4) months and sixteen (16) days after the cause of action aroused, And the claimant only instituted this action on the 30th of June, 2016. And a cause of action is said to have arisen the moment a wrong is done to the Claimant by the Defendants; and the wrong which is the basis of a dispute represents a factual situation which entitles the claimant to seek a remedy in a court of law by a way of enforcement. See MRS. O. ADEKOYA VS. FEDERAL HOUSING AUTHORITY (2008) 4 SC 167. On the issue of the application of the Bayelsa State Limitation Law Cap L8, Laws of Bayelsa State 2006, it’s trite that a public officer enjoys protection from any action instituted outside the limitation period, as such all actions against public officers in respect of their official actions must be commenced within three months from the date the cause of action aroused, a term that has been held to include not just natural persons who hold public office but the public office or institution itself. As such the applicable law is the Bayelsa State Public Officers Protection Law 2006; And not Bayelsa State Limitation Law Cap L8, 2006.
This court had since decided issues of this nature in the case of KANU & ORS Vs. A.G. & COMMISSIONER FOR JUSTICE, CROSS RIVER STATE & ORS.(2013) N.L.L.R (Pt. 91) 63 NIC presided over by my learned brother HON.JUSTICE B.B KANYIP, where in that case the claimants for themselves and on behalf of former councilors and former political appointees of all the 18 Local Governments of Cross River State who served from 2007-2010 instituted an action against the defendants claiming their furniture and severance allowance. The defendants raised the issue that the suit is statute-barred as it contravenes the provisions of Section 1 (a) of the Public Officers Protection Law Cap P17 Vol. 5 Laws of Cross River State, 2004, That the action was instituted outside the time limit imposed by the statute. The court upheld the preliminary objection that the suit being statute barred and struck out the matter.
The fact that the claimant failed to institute this action because he want to exhaust all avenues of demanding and receiving the said entitlement can not serve as a reason for extension of time; since same does not fall within the exceptions stated in Section 1 (a) of the Public Officers Protection Law of Bayelsa State, 2006. See also THE OWNERS OF MV “ARABELLA” Vs. NIGERIA AGRICULTURAL INSURANCE CORPORATION (2008) 5-6 Sc (Pt II) 189.
And since by virtue of Section 1 (a) of the Public Officers Protection Law of Bayelsa State, 2006 which mandatorily stipulates three (3) months within which an action can be brought against a public officer and the various authorities I cited ab-initio, one can conveniently say that this action against the defendants is statute barred and not maintainable as the right of action in this case has been extinguished leaving the claimant with an empty and unenforceable cause of action as decided in the case of JOHN EKEOGU Vs. ELIZABETH ALIRI (1991) 22 N.S.C.C (Pt. 1) 343 at 348 Lines 43-46. And its trite that once an action is statute barred, there is nothing to build on it. In effect, the statute of limitation removes the right of action, the right of enforcement and the right of judicial relief leaving the claimant with a bare and empty cause of action which he can not enforce as decided in the cases of NASIR VS. CIVIL SERVICE COMMISSION KANO STATE (2010) 6 NWLR (Pt. 1190) pg 253 at 271 SC; and IBRAHIM VS JUDICIAL SERVICE COMMISSION KADUNA STATE & ORS (1998) 12 SC pg 20.
Finally, since the issue of statute barred is a jurisdictional one as decided in the case of EMIATAR VS THE NIGERIAN ARMY & 4 ORS (1999) 12 NWLR (Pt. 631) pg 364 at 372, The defendants are entitled to be protected under the provisions of Section 1 (a) of the Public Officers Protection Law 2006.
Consequently, I resolved the lone issue for determination in favour of the Defendants and hold that the claimant’s action against the defendants is statute barred, As such the preliminary objection is hereby sustained, And the suit against the defendants is hereby dismissed.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI
PRESIDING JUDGE
signed
