HON. JIDDA TOM HASSAN & ORS v. BORNO STATE GOVT & ORS (2016)

HON. JIDDA TOM HASSAN & ORS v. BORNO STATE GOVT & ORS

(2016)LCN/8294(CA)

In The Court of Appeal of Nigeria

On Friday, the 11th day of March, 2016

CA/K/153/2015

RATIO

COURT: WHETHER A COURT MUST HEAR A MOTION OR PROCESS BEFORE IT HOWEVER UNMERITORIOUS

PRACTICE AND PROCEDURE: THE PURPOSE OF RAISING A PRELIMINARY OBJECTION

A preliminary objection seeks to determine a bad process in limine upon grounds of law and thereby saves all the parties involved in engaging in a futile exercise. It follows therefore that the earlier it is raised, the better. See MANSON v. H.E.S. (NIG.) LTD (2001) ALL FWLR (PT. 358) 1067 AT 1094 PARAS E-G. per. UWANI MUSA ABBA AJI, J.C.A.

COURT: JURISDICTION; WHETHER A JURISDICTION ISSUE MUST BE CONSIDERED FIRST WHERE IT IS RAISED

Nevertheless, it is trite that where a jurisdictional issue is raised, it must be considered first.
This is because jurisdiction is a radical and crucial question of competence. See LAWAL v.. OKE (2001) 7 NWLR (PT.711) 88, A.G. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT. 111) 552 AT 566; FUMUDOH v. ABORO (1991) 9 NWLR (PT. 214) 210. It is settled law that the issue of jurisdiction is of such a fundamental nature that must be considered and disposed of first since any adjudication without jurisdiction would amount to a nullity. See ANPP & ANOR. v. PDP & ORS (2006) LPELR-7588(CA), MOYOSORE v. THE GOVERNOR OF KWARA STATE & ORS (2011) LPELR-8813(CA). per. UWANI MUSA ABBA AJI, J.C.A.

PRACTICE: HOW TO DETERMINE WHETHER OR NOT AN ACTION IS STATUTE BARRED

It is foremost to note that in determining the limitation period, it is advisable to look at the processes filed by the Claimants herein the Appellants. In MIL. ADMIN, EKITI STATE v. ALADEYELU (2007) 14 NWLR (PT.1055) 619, it was held by the Supreme Court:
“…for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the Statement of Claim only. I will however add, where one has been filed, It is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiffs’ cause of action. When that ascertained date is compared with the date the writ of summons or originating process was filed in Court, it can then be determined whether the action was instituted within the period allowed by law or outside it when it is found that the action was instituted within the period allowed by law, the action is said to be competent and the Court has the jurisdiction to entertain same but where it is found to have been instituted outside the period allowed by law, the action is said to be statute barred and consequently’ the Court is without jurisdiction to entertain same.”
See also WOHEREM v. EMEREUWA (2004) 6-7 S.C, 161; (2004) 13 NWLR (PT. 890) 398 AT 417. per. UWANI MUSA ABBA AJI, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

HON. JIDDA TOM HASSAN & 177 ORS Appellant(s)

AND

BORNO STATE GOVT & 11 ORS Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court, holden at Kano in Suit No. NICN/ABJ/53/2014, delivered on 9/7/2014 by Hon. Justice Lawal Mani, wherein the Claims of the Appellants were dismissed in limine for being statute barred.

The Appellants’ Claims at the lower Court against the Respondents jointly and severally vide the Writ of Summons and Statement of Claim dated and filed on 6/8/2013 contained at pages 8-26 of the records were as follows:
a. Maiduguri Metropolitan Council N22.109,240.00
aa. Mafa Local Government Council N18,688,898.00
b. Marte Local Government Council N20,969,126.00
bb. Gubio Local Government Council N15,268,556.08
e. Chibok Local Government Council N18,688,898.00
cc. Damboa Local Government Council N16,408.670.00
d. Hawul Local Government Council N17,548,784.00
dd. Konduga Local Government Council N18,686,890.00
e. Mobbar Local

Government Council N16,408,670.00
ee. Nganzai Local Government Council N19,829,012.?28
f. Bama Local Government Council N20,969,118.00
GRAND TOTAL N205,577, 862.36

?The facts of the case are that the Appellants claim against the Respondents jointly and severally the sum of N205 ,577,862.36 (Two Hundred and Five Million, Five Hundred and Seventy Seven Thousand, Eight Hundred and Sixty Two Naira, Thirty Six kobo) being their outstanding one year severance gratuity owed by the Respondents. The Appellants who were ex-political office holders served the Respondents in positions of Vice-Chairmen, Leaders, Deputy Leaders, Councilors and supervisory Councilors between 2008 and 2010. The remuneration and all other allowances of the Appellants were determined by the Revenue Mobilization, Allocation and Fiscal commission. After leaving office in 2010, the Appellants had to institute an action before the High Court of Borno State against the Respondents in 2011 wherein they claimed the outstanding balance of their entitlements, to wit, arrears of salary, balance of accommodation and furniture

allowance and severance gratuity. While the arrears of salary and furniture and accommodation allowances were paid by the Respondents to the Appellants, their severance gratuity was not paid due to paucity of funds then but on the understanding that same would be paid whenever the financial position of the Respondents improved. While it is asserted by the Appellants that the Respondents failed to pay them their severance gratuity, the Respondents allege that the severance gratuity of the Appellants was cancelled by the Revenue Mobilization Allocation and Fiscal Commission in 2009 when the Appellants were in office. It was the above that prompted their instituting an action before the High Court of Borno State in 2013 to recover same. After service of the Court processes in the matter was effected on the .Respondents, they defaulted in filing their appearance and defence within time and had to seek and obtain leave of the Court to do so out of time. Thereafter, by way of an application, the Respondents prayed the Court to strike out the Appellants’ suit on the ground that the Borno State High Court had no jurisdiction to hear same since the matter involved

payment of severance gratuity between employers and employees and thus more of an industrial matter. In his Ruling, the learned Judge of the High Court of Borno State transferred the matter to the National Industrial Court which by law has the jurisdiction to hear the matter and the suit was subsequently assigned to the Kano Division of the National Industrial Court of Nigeria by the President of that Court for hearing. While the matter was pending for hearing, the Respondents by their counsel filed a Notice of Preliminary Objection challenging the jurisdiction of the Court below to hear same on the ground that the suit was caught up by Section 2(a) of the Public Officers Protection Law of Borno State and thus statute barred. The learned Judge of the Court below without first resolving the issue of the validity and competency of the Respondents’ preliminary objection went ahead to deliver his ruling in the matter which he captioned “Ruling/Judgment” wherein he dismissed the Appellants’ suit that it was statute barred.

?The Appellants, dissatisfied with the said judgment, appealed vide a Notice of Appeal dated 7/5/2015 and filed on 22/5/2015, wherein 6

Grounds of Appeal were raised as hereinunder reproduced without their particulars:
GROUNDS OF APPEAL:
GROUND ONE:
The learned trial Judge erred in law when he failed refused or neglected to resolve the issue of whether(sic) not the Respondents’ application was competent before determining same.
GROUND TWO:
The learned trial Judge erred in law when he held thus in his ruling:
“I therefore hold that this suit does not fall under the exceptions to Section 2(a) POPL Borno State— Based on the above authorities and submissions, I find and hold that this suit is caught up by the provisions of Section 2(a) of the Borno State Public Officers (protection) Law Cap 115 and Section 145 of the Borno State Local Government Law, 2000 and therefore statute barred.”
GROUND THREE:
The learned trial Judge erred in law when he held to wit:
“Going by the above observations, to my mind the terms of settlement were

deemed to have settled all the issues between the parties in which they agreed among themselves…”
GROUND FOUR:
The learned trial Judge erred in law when he dismissed the Appellants’ suit in limine when same has not been heard on merit.
GROUND FIVE:
The learned trial erred in law when he resorted to the defence filed by the Respondents as the basis of his decision in the application.
GROUND SIX:
The learned trial Judge erred in law when he held that the suit is caught up by the provisions of Section 2(a) of the Borno State Public officers (Protection) Law Cp.115 and therefore statute barred.
?
In accordance with the Rules of this Court, the Appellants filed their Brief of Argument dated and filed on 11/6/2015, settled by A.J. Igoche, Esq, wherein he formulated 4 issues for the determination of the appeal to wit:
”(a) whether the learned trial judge was not wrong when he failed or neglected to resolve the issue of the competency of the

Respondents’ preliminary objection before hearing and determining same.
(b) Considering the facts and circumstances of the case, whether the learned trial Judge was right when he held that the Appellants’ case is statute barred,
(c) Whether the learned trial judge was right when he delved into the merit of the case at the stage of preliminary objection.
(d) Whether the learned trial Judge was not wrong to have gone outside the pleadings of the Appellants in deciding the Respondents’ Notice of preliminary objection.

The Respondents filed their Brief of Argument dated 8/7/2015 and filed on 10/7/2015; settled by B. Adamu, Esq., (D.D.C.L.), Ministry of Justice, Borno State, wherein he adopted the 4 issues of the Appellants.

At the hearing of the appeal on 4/2/2016, counsel to the Appellants adopted his Brief of Argument and prayed this Court to allow the appeal while the learned Counsel to the Respondents adopted his Brief and urged the Court to dismiss the appeal. I shall bundle the 4 issues thus:
Whether by the Preliminary

Objection of the Respondents, the trial Court was right to hold that the Appellants’ case was statute barred.
It is the submission of the learned Counsel to the Appellants that it was wrong for the trial Court to neglect to resolve the issue of the competence of the Respondents’ Preliminary Objection before hearing same. He submitted that the Respondents having sought leave to enter appearance and defence out of time, had waived their right to challenge the case on any ground. On what amounts to taking a fresh step, he cited OBEMBE v. WEMA BOD ESTATE LTD (1977) 5 SC 115. That the Ruling/Judgment of the trial Court at pages 296-307 is silent on the competence of the Preliminary Objection whereas Courts are bound to pronounce on every issue put forth by a party otherwise there maybe injustice. He cited EMEJE v. POSITIVE (2009) ALL FWLR (PT. 452) 1056 AT 1076 PARA B, BRAWAL SHIPPING V. F.I. ONWADIKE CO. LTD. (2000) 11 NWLR PT. 678) 387 AT 403 PARAS D-F ORJI V. P.D.P (2009) 14 NWLR (PT. 1161) 310 AT 407-407 PARAS H-D, KOKOOLIN V. PATIGI LOCAL GOVERNMENT (2010) ALL FWLR (PT. 533) 1977 AT 1988 PARAS D-E.

It was further contended that it was not

right for the trial Court to hold that the Appellants’ case was statute barred by Section 2(a) of the Public Officers Protection Law of Borno State as the case of the Appellants is founded on contract of service. He relied on MICHAEL EFFIONG V. FEDERAL HOUSING AUTHORITY (2005) 2 NLLR (PT.5) 250 AT 264-265 PARAS H-C. Similarly, that the non-payment of the entitlements of the Appellants has been a recurring decimal and enjoys the exceptions of the law. He relied on A-G RIVERS STATE v. A-G BAYELSA STATE (2013) 3 NWLR (PT. 1340) 123 AT PAGE 148-150 PARAS F-H, AREMO II V. ADEKANYE (2004) ALL FWLR (PT. 224) 2113 AT 2132 PARAS H-B.

It is again contended that the trial Court was wrong to delve into the merit of the case at the stage of Preliminary Objection as it did as same amounted to prejudging the matter on an interlocutory application. He quoted OSUNBOR V. OSHIOMHOLE (2009) ALL FWLR (PT. 463) 1363 AT 1425 PARA D, NWANKWO V. YAR’DUA (2010) ALL FWLR (PT. 534) 1 AT 47 PARAS A-G, AGIP (NIG) LTD VS. AGIP PETROLLI INTERNATIONAL & ORS (2010) ALL FWLR (PT.520) 198 AT 1248 PARAS A-D. Also, that aside delving into the merit of the case, the trial Court instead of

striking the suit for lack of jurisdiction for being statute barred, went ahead to dismiss the suit. He relied on LAKANMI V. ADENE (2003) 10 NWLR (PT. 828) 353 AT 367 PARAS F-H, EMUZE v. V.C. UNIVERSITY OF BENIN (2003) 10 NWLR (PT. 828) 378.

Additionally, it is submitted that the trial Court was wrong to have gone outside the pleadings of the Appellants in deciding the Preliminary Objection. He argued that it is the Plaintiffs’ action that should determine whether the matter is statute barred or not. He relied on MOYOSORE V. THE GOVERNOR OF KWARA STATE & ORS (2012) 5 NWLR (PT. 1293) 242 AT PG 284 PARAS B-E & 285 PARAS A-B, ETHIOPIAN AIRLINE V. AFRIBANK NIG PLC (2006) 17 NWLR (PT. 1008) 245 AT 259 PARAS B-D, EGBE V. ADEFARASIN (1987) 1 NWLR (PT. 47) 11, ABDUL-RAHEEM V. OLORUNTOBA-OJO (2006) 15 NWLR (PT. 1003) 581 AT 620 PARAS B-F, ONUORAH V. K.R.P.C. LTD (2005) 6 NWLR (PT. 921) 392, FEDERAL COLLEGE OF EDUCATION V. AKINYEMI (2009) ALL FWLR (PT.465) 1785 AT 1806 PARAS A-E, N.B.N LTD V. A.T. EWG CO. LTD. (2005) 16 NWLR (PT. 1005) 210 AT 222 PARAS D-E. He prayed this Court to resolve the issue in favour of the Appellants.

The learned

Counsel to the Respondents contrariwise has submitted that the trial Court was not wrong when it neglected to resolve the issue of the competency of the Respondents’ preliminary objection before hearing same since the issue of statute of limitation is a matter of jurisdiction which can be raised at any stage of litigation. He submitted that Order 5 Rule 2(1) of the National Industrial Court Rules cannot override a statutory provision. He relied on ALH. BELLO NASIR v. CIVIL SERVICE COMMISSION, KANO STATE & 2 ORS (2007) 5 NWLR (PT.1190) 253 AT 276. It is settled that if the neglect to consider the Preliminary Objection has occasioned a miscarriage of justice, this Court is called by Section 15 of the Court of Appeal Act, 2010, to consider the Preliminary Objection of the Respondent.

The Counsel has maintained that the trial Court was right to hold that the case was statute barred. That suit No. NICN/ABJ/53/2014 was filed after the expiration of 3 months as it relates to the 1st Respondent and 6 months as it relates to the 2nd-12th Respondents. Thus, that by the provisions of Section 2(a) of the Public Officers Protection Law of Borno State the action is

statute barred. He submitted that cause of action occurs when time begins to run as determined by the statement of claim. He relied on FAROLY ESTABLISHMENT v. NNPC (2011) 5 NWLR (PT.1241) 457 AT 479, DANTATA V. MOHAMMED (2002) 7 NWLR (PT.664) 176, OWIE V. IGHIWI (2005) 5 NWLR (PT.917) 184 N 214. It is contended that the case of the Appellants is not founded on a breach of contract but on statutory duty. He retied on NPA V. LOTUS (2005) 12 SCNJ 165 AT 195, SHAMSIDEEN ABOLOKE BAKARE V. NIGERIAN RAILWAY CORPORATION (2008) VOL.6 SCLR (PT.6) 32 AT 78, NIGERIAN BROADCASTING CORPORATION v. BANKOLE (1972) NSCC (VOL.7) 220. It is argued that the case of the Appellants is not a continuous one since after leaving office in 2010 when they were paid their severance gratuity; the Respondents defaulted in paying the amount white other entitlements were paid and that this default continued for the past 3 years.

It is conceded by the Respondents that although the trial Court delved into the merit of the case, it is not enough to overturn its ruling as there are sufficient materials or evidence before this Court to consider the motion without going into the merit of the

case. Again, that the fact that the trial Court dismissed the suit instead of striking it out does not render his ruling wrong. He relied on NPA PLC v. LOTUS PLASTIC LTD (2005) 12 SCNJ 165 AT 183, EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) 1 AT 15, EBOIGBE V. NNPC (1994) 5 NWLR (PT.347) 649 AT 666, UNITY BANK PLC V. NWADTKE (2009) 4 NWLR (PT.1131) 352 AT 381 PARAS C-D, ORDER 4 RULE 3 & 4,OF THE COURT OF APPEAL RULES 2011.

It is equally conceded by the learned Counsel to the Respondents that it was wrong for the trial Court to have gone outside the pleadings of the Appellants to decide the Preliminary Objection as the trial Court had sufficient materials placed before it. He however urged this Court to discountenance the erroneous approach of the trial judge and decide on the merit of the Respondents’ Preliminary Objection. He relied on AGI v. ENO (2010) 5 NWLR (PT.1188) 626 AT 641 PARAS G-H, FAROLY ESTABLISHMENT V. NNPC (supra). He urged this Court to dismiss the appeal.

In the instant appeal, it is not in issue that the trial Court closed its eyes to the “Motion on Notice” filed by the Respondents dated 15/5/2014 contained at page 235 of the records and

went ahead to deliver a Ruling/Judgment on 9/7/2014, wherein the Claims of the Appellants were dismissed for being statute barred. The said Motion was that the suit of the Appellants was caught up with the statute of limitation, particularly Section 2(a) of the Public Officers Protection Law of Borno State, hence should be struck out.

A Court must hear a motion or process before it however unmeritorious. See NEWSWATCH COMMUNICATIONS v. ATTA (2006) 12 NWLR (PT.993) AT 168, MRS. EVANGELINE FOMBO V. RIVERS STATE HOUSING & PROPERTY DEVELOPMENT AUTHORITY & ANOR. (2005) 5 SCNJ 213. In the instant appeal, it is obvious from the records and the Ruling/Judgment of the trial Court that the trial Court did not pronounce on the competence of the Preliminary Objection, it nonetheless at the Judgment considered it in full before it declined jurisdiction in the last paragraph of page 306 of the records. In the judgment of the trial Court at pages 296-307, the trial Court did consider the issues canvassed by the Respondents and gave its Judgment. This was approved by the Supreme Court in NEWSWATCH COMMUNICATIONS V. ATTA (supra), where it held that it was proper

so long as he considered the motion and took a decision on it before delivery of the judgment.

?Nevertheless, it is trite that where a jurisdictional issue is raised, it must be considered first.
This is because jurisdiction is a radical and crucial question of competence. See LAWAL v.. OKE (2001) 7 NWLR (PT.711) 88, A.G. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT. 111) 552 AT 566; FUMUDOH v. ABORO (1991) 9 NWLR (PT. 214) 210. It is settled law that the issue of jurisdiction is of such a fundamental nature that must be considered and disposed of first since any adjudication without jurisdiction would amount to a nullity. See ANPP & ANOR. v. PDP & ORS (2006) LPELR-7588(CA), MOYOSORE v. THE GOVERNOR OF KWARA STATE & ORS (2011) LPELR-8813(CA).

The trial Court in its wisdom and in order not to dissipate energy and time considered this

first as a jurisdictional issue. It must be noted that this can be raised anytime but since it has come so early, the better.

In pages 4-8 of the Appellants’ Brief, it has been so hotly argued that the trial Court failed to consider and pronounce on the competence of the Preliminary objection filed by the Respondents. I wonder how this has become a grievance to the Appellants in this appeal to become an issue for determination. More so, I had patiently waited to see what injustice or wrong this has occasioned the Appellants, yet I see none. I think the Counsel to the Appellants has done well to cry more for the bereaved! In OMOTESHO v. ABDULLAHI (2008) 2 NWLR (PT.1072) 526 AT 545 PARAS B-D, it was held that the mere consequence of a decision does not vest a person with the status of an aggrieved party. Thus, where a party is not clearly aggrieved by the order of a trial Court itself but by the consequence which arises from it, such a party is not entitled to appeal having not shown his legal grievance. See also MOBIL PRODUCING (NIG.) LTD. v. MONOKPO (2003) 18 NWLR (PT. 852) 346; UBA PLC v. ACB (NIG.) LTD. (2005) 12 NWLR (PT. 939) 232. A party aggrieved,

as stated by the Supreme Court in NWAORGU v. ATUMA (No. 1) 2013 9 NWLR [pt. 1358] 113 AT PAGE 129, is a party who has suffered legal grievances or a party against whom a. decision has been pronounced which has wrongfully deprived him of something or wrongly refused him something or wrongly affected his right or title to something. See UNILORIN v. AKINYANJU (2008) ALL FWLR (PT.406) 1989 AT 2005 – 2006, PARAS. G – A (CA), MOBIL PRODUCING (NIG.) UNLIMITED V. MONOKPO (2003) 18 NWLR (PT. 852) 346, (2003) 12 SCNJ 206, (2004) ALL FWLR (PT. 195) 575 (2004) 115 LRCN 3016. I sincerely do not think that the Appellants have any inch of right to formulate any ground of appeal or issue on the competence or otherwise of the Motion filed by the Respondents at the trial Court.

Another issue I am called to consider is whether the trial Court delved into the merit of the case at the stage of Preliminary Objection and went outside the pleadings of the Appellants. This has been conceded-even by the Respondents’ Counsel at paragraph 2.28 and 2.34 of pages 10 and 11 respectively of his brief. It must be observed with disdain that the law forbids what the trial Court did and

this Court cannot give its approval. See GLOBAL FISHING IND. LTD v. COKER (1990) 7 NWLR (PT.162) 265, AKAPO V. HAKEEM-HABEEB & ORS (1992) 16 NWLR (PT.247) 266. See also WOHEREM J.P. V. EMEREUWA & ORS (2004) MJSC 108 AT 122, where the Court frowns at going outside the pleadings of the Claimant to decide on the issue of period of limitation.

?The Apex Court in D.P.C.C.L v. B.P.C.L (2008) VOL. 4 M.J.S.C 161 AT 179-179 PARAS E-A, stated that the law is trite that at the stage of interlocutory application, the Court should not attempt to go into the merit of the matter in controversy else it is tempted to determine the case at that stage and leave nothing for the just and proper determination of the suit after the hearing.

However, I have not seen where the Appellants have suffered any miscarriage of justice thereof. Thus, the law has been over-flogged that it is not every mistake, slip or error in a judgment that will result in an appeal being allowed since it is only where the error is substantial that it can be seen that it has occasioned a miscarriage of justice which makes it mandatory for the Appellate Court to interfere and have the judgment

upset. See TSOKWA MOTORS (NIG.) LTD. V. U.B.A. PLC. (2008) 2 NWLR (PT.1071) 347, ALLI V. ALESINLOYE (2002) 6 NWLR (PT.660) 177 AT 213, EZEOKE V. NWAGBO (1988) 1 NWLR (PT.72) 616.

I shall now consider whether the case of the Appellants is statute barred or not. It is foremost to note that in determining the limitation period, it is advisable to look at the processes filed by the Claimants herein the Appellants. In MIL. ADMIN, EKITI STATE v. ALADEYELU (2007) 14 NWLR (PT.1055) 619, it was held by the Supreme Court:
“…for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the Statement of Claim only. I will however add, where one has been filed, It is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiffs’ cause of action. When that ascertained date is compared with the date the writ of summons or originating process was filed in Court, it can then be determined whether the action

was instituted within the period allowed by law or outside it when it is found that the action was instituted within the period allowed by law, the action is said to be competent and the Court has the jurisdiction to entertain same but where it is found to have been instituted outside the period allowed by law, the action is said to be statute barred and consequently’ the Court is without jurisdiction to entertain same.”
See also WOHEREM v. EMEREUWA (2004) 6-7 S.C, 161; (2004) 13 NWLR (PT. 890) 398 AT 417.

?By the pleadings of the Appellants particularly their Statement of Claim dated 6/8/2013 contained at pages 10-26, they asserted especially at paragraphs 12 and 31 thus:
12. “The Claimants plead that all of them served their respective Local Government Councils between 2008 and 2010 when their tenure lapsed.”
31. “The Claimants state that while the Defendants have paid their other allowances, payment of their severance gratuity is yet to be effected almost three years since they left office.”

It is apparent and beyond dispute that the cause of action arose in 2010 when the

tenure of the Appellants lapsed and by virtue of Sections 2(a) of the Public Officers Protection Law of Borno State , and 145 of the Borno State Public Officers (Protection) Law, 2000 , they were to institute their case 3 months as against the 1st Respondent and 6 months against the 2nd to 12th Respondents.

It is observable nevertheless that the Appellants pleaded in paragraph 47 at page 25 of the records thus:
47. “The Claimants plead that by a letter dated 5th May, 2010 referenced number MLGA/S/A/1A/666 addressed to all the Local Government and Chieftaincy Affairs, the 1st Defendant acknowledged the fact of the Defendants’ indebtedness to the Claimants and directed payment of same. The said letter is pleaded and a copy of same is attached as “Document number 3″”.

By virtue of “Document number 3” at page 77 of the records, the Permanent Secretary, one Zanna Ali Garga, on behalf of the Honourable Commissioner acknowledged the indebtedness of the Respondents to the Appellants and directed that 35% amounting to N22,861,087.00 be paid to the Appellants while undertaking in paragraph 3 therein thus:

“In? the same vein, you are hereby requested to pay the remaining balances based on the council’s financial capability in the subsequent months, please.”

In compliance with the said Sections 2(a) of the Public Officers Protection Law of Borno State , and 145 of the Borno State Public Officers (Protection) Law, 2000 , the Appellants served on all the Respondents “Notice of Intention to Commence Legal Actions” although variously dated in July, 2013 as contained at pages 78-88 of the records.

I do not think that there will be justice to political office holders and other persons who have dealings with the Government, either of the Federation, the State or the Local Government, to be denied their entitlements, monies for contracts, salaries, allowances, gratuities, pensions, etc, under the guise that they instituted the action after either 3 or 6 months as the case may be. The end of the law is justice.?Obviously, the spirit and intent of the Public Officers Protection Act or Law is not to work out injustice or deny people their hard earned rights. Thus, a person or authority cannot be in a breach of a law or contract and hide under the

umbrella of the law. He who comes to equity must come with clean hands. It is the law therefore that for every general rule, there must be exceptions thereto. By “Document number 3” dated 17/12/2009, the Respondents refused to pay the Appellants their allowances and were in breach of their duty, undertaking and commitment to pay them in compliance with the approved Remuneration package in respect of Political Office Holders by the Revenue Mobilization, Allocation and Fiscal Commission. Besides, it must be noted that the claims of the Appellants is for “work and labour done” during their tenure from 2008-2010, as Political Office Holders, which cannot be affected by Sections 2(a) of the Public Officers Protection Law of Borno State, and 145 of .the Borno State Public Officers (Protection) Law, 2000, although it was instituted after 3 or 6 months thereafter. In ENERGY MARINE AND INDUSTRIAL LTD. V. MINISTER OF THE FEDERAL CAPITAL TERRITORY & ANOR. (2010) LPELR-19774(CA), it was held thus:
“Even though Section 2(a) of the Public Officers Protection Act stipulates that actions against Public Officers ought to be instituted within 3 months of

the act, neglect or default complained of by an aggrieved Plaintiff, but there are some exceptions to that general position of law, for example the law is not applicable in cases of recovery of land, breaches of contract and claims for work and labour done. The above view is fortified by the decision of the Supreme Court in:- – Nigerian Ports Authority v Constuzoni Generali Farsura Cogefar SPA & Another (1974) 1 All NLR Part 2 Page 463 Or (1974) All NLR Page 945 at 957 where IBEKWE JSC stated as follows:- “… We agree that the Section applies to everything done or omitted or neglected to be done under the powers granted by the Act, but we are not prepared to give to the Section the stress which it does not possess. We take the view that the Section does not apply to cases of contract The Learned Chief Justice, in deciding this point, made reference to the case of. Salako vs. L.E.D.B. and Another 20 NLR Page 169 where De Commarmond S. P. J. as he then was, construed the Provisions of Section 2 of the Public Officers Protection Ordinance which is almost identical with Section 97 of the Ports Act, and thereafter stated the law as follows:- “I am of the

opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done etc.”
See also F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT.798) 162. Again, on this, the Court held in AKWA IBOM STATE CIVIL SERVICE COMMISSION & ORS V. AKPAN (2013) LPELR- 22105(CA):
“On the purport and scope of Section 2(a) of the Public Officers Protection Act, it is well established that the Act given full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public authority and are not acting outside their statutory or constitutional duty. A public officer can be sued outside the limitation period of three months if, at all material times to the commission of the act complained of, he was acting outside the colour or scope of his office or outside his statutory or constitutional duty. Where he acted within the colour or scope of his office, he can only lose protection of the limitation laws if he is sued within three months, Ibrahim v JSC, Kaduna

State (1998) 14 NWLR (Pt 584) Pg. 1.” The provisions of Section 2(a) of the Act considered in the case are the same with the provisions of Section 1(1) of cap 40, applicable to the Respondent’s case before the High Court. Dealing with the same provisions of the Act, the apex Court in the more recent case of A.G., Rivers State v A.G., Bayelsa (2012) 6-7 MJSC (Pt III) 149 at 181 & 182 had said:- “The Act is intended as much as within the ambit of the law to protect a public officer from detraction and unnecessary litigation, but never intended to deprive a party legal capacity to ventilate his grievance on the face of stark injustice. That is why public officers or heads of the Agencies of the Federation or state are protected; two most important exceptions are prescribed by the Act. Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. 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.”

See also NWANKWERE V. ADEWUMI (1967) NWLR 45 AT 49; ANOZIE V. ATTORNEY GENERAL OF THE FEDERATION (2008) 10 NWLR (PT. 1095) 278 AT 290-291, NIGERIA STORED PRODUCTS RESEARCH INSTITUTE V. BOARD OF INTERNAL REVENUE, KWARA STATE (2013) LPELR-22073(CA).

In the last paragraph of page 306 which contains the judgment of the trial Court, the trial Judge “dismissed” the Appellants’ case for lack of jurisdiction. The Court cannot dismiss a claim the merit of which it is not competent to enquire into. See ADESOKAN V. ADETUNJI (1994) 5 NWLR (PT.346)540.

?In OKWU & ANOR V. UMEH & ORS (2015) LPELR-26042(SC), it was held that the correct position of the law therefore is that where the finding goes to the jurisdiction of the Court and denies it jurisdiction to determine the action, the proper order, in such a situation therefore, is to strike out the claim. See OKOYE V. NIGERIAN CONS. & FURNITURE CO. LTD (1991) 6 NWLR (PT.199) 501, HERBERT OHUABUNWA EMEZI V. AKUJOBI DAVID OSUAGWU & ORS (2005) 12 NWLR (PT. 939) 340, THOMAS V. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669.

?It follows therefore that the Appellants’ case falls within the exceptions of the

statute of limitation, particularly Sections 2(a) of the Public Officers Protection Law of Borno State, and 145 of the Borno State Public Officers (Protection) Law, 2000, which is pari materia with Section 2(a) of the Public Officers Protection Act. This issue is therefore resolved in favour of the Appellants. The Ruling/Judgment of the National Industrial Court, holden at Kano in Suit No. NICN/ABJ/53/2014, delivered on 9/7/2014 by Hon. Justice Lawal Mani, is set aside and the case is hereby remitted to the President, National Industrial Court of Nigeria for retrial by another Judge of the Court. I make no order as to costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I was opportuned to read in draft the lead judgment of my learned brother, UWANI MUSA ABBA AJI, JCA. I agree with the reasonings and conclusions contained therein. I have nothing useful to add thereto, than to allow the appeal. The appeal is accordingly allowed. I abide by the order made therein, inclusive of that on costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I am in agreement with the judgment just delivered by my learned brother,

Uwani Musa Abba Aji JCA that the Appellant’s appeal is meritorious.

?I also set aside the decision of the lower Court and remit this case to the President, National Industrial Court for retrial by another judge of the Court, with no order as to costs.

Appearances

A. J. IGOCHE ESQ.For Appellant

AND

B. ADAMU ESQ. D. DCL, MINISTRY OF JUSTICE BORNO STATEFor Respondent