ISA v. NNPC (2020)

ISA v. NNPC

(2020)LCN/14013(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, March 16, 2020

CA/A/531/2017

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

YAKUBU HEYKAL ISA APPELANT(S)

And

NIGERIAN NATIONAL PETROLEUM CORPORATION (NNPC) RESPONDENT(S)

RATIO

DEFINITION OF A CAUSE OF ACTION

In unreported SUIT NO. NICN/LA/114/2013 COMRADE ISHOLA ADESHINA SURAJUDEEN V. MR. ANTHONY NTED & ANOR the ruling of which was delivered on July 10, 2014 this Court (relying on ‘Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defend cause of action as-
….The cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the facts(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See also AG, Federation v. Ag, Abia State & Ors (2001) 11 NWLR (Pt. 725) 689 at 733. PER AGIM, J.C.A.

DEFINITION OF THE PHRASE “CONTINUANCE OF THE INJURY”

In the case of BELLO & ORS. V. NIGERIA CUSTOMS SERVICE BOARD (2015) 53 NLLR (PT. 179) 343 NIC @ 351
The definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. OKAFOR V. A.G. ANAMBRA STATE (2001) FWLR (PT. 58) 1127 @ 1146 D-G; CARREY V. BERMONDSEY METROPOLITAN BOUROUGH COUNCIL (1903) 675 P. 447; 20 TLR 2; AMAMIWE v. THE LOCAL SCHOOL BOARD (1971) 2 NMLR 57 @ 58; OBIEFUNA V. OKOYE (1961) ALL NLR 357.
To the claimant, the test on continuance of damage or injury laid down by the Supreme Court IN AG, RIVERS STATE V. AG, BAYELSA STATE & ANOR (2013) 3 NWLR (PT. 1340) 123 AT 144 – 150 is one that relates to periodical payments. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the limitation law will not apply. In this sense, for the continuing injury exception to apply, the employee would need to be in employment.
Although the exception of continuing injury has been interpreted in this court to apply to exclude the limitation laws where the claimant is in employment See the Unreported SUIT NO: NICN/LA/470/2012MR. ADEWALE ARINDE VS FOOD AGRO & ALLIED INDUSTRIES LIMITED delivered 9th October 2013. PER AGIM, J.C.A.

WHETHER OR NOT ISSUE RAISED FOR DETERMINATION FROM A GROUND OF APPEAL MUST DEAL WITH THE SUBJECT MATTER OF THE COMPLAINT IN THE GROUND OF APPEAL

It is settled law that the issue raised for determination from a ground of appeal must deal with the subject matter of the complaint in the ground of appeal. If it deals with a matter different from that contained in the complain in the ground of appeal, then it has no nexus or relationship with the said ground from which it is said to be derived.
Issue No. 3 has no nexus or relationship with any of the grounds of this appeal. It is therefore incompetent and invalid. For an issue to be competent and valid for consideration it must derive from or be connected with any of the grounds of the appeal. See Egbe V Alhaji (1990)3 SC (Pt.1). PER AGIM, J.C.A.

WHETHER OR NOT AN ACTION BROUGHT CAN RUN NOTWITHSTANDING THAT THE PARTIES TO THE DISPUTE ARE INVOLVED IN SETTLEMENT

The law is settled by a long line of judicial decisions over time that the time within which an action can be brought would run notwithstanding that the parties to the dispute are involved in settlement, negotiation or arbitration. Such negotiation, settlement, arbitration or other alternative extra judicial resolution of the dispute does not stop the time from running. As held by the Supreme Court in Eboigbe V. NNPC (supra) at page 653 “Although the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute, generally such a negotiation by parties does not prevent or stop the period of limitation stipulated by statue from running… The law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation. The best cause for a person to whom a right of action has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails…the law will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for determining the question whether a claim has become statue barred.”PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/531/2017 was commenced on 4-7-2017 when the appellant herein filed a notice of appeal against the judgment of the National Industrial Court at Abuja delivered on 20-6-2017 in Suit No. NICN/ABJ/269/2016 by E.N. Agbakoba J. The notice of appeal contains 4 grounds of appeal.

Both sides have filed, exchanged and adopted their respective briefs as follows- appellant’s brief, respondent’s brief and appellant’s reply brief.

The appellant’s brief raised the following issues for determination-
1. Whether the Appellant’s suit at the Lower Court was Statute barred considering the exception allowed under Section 12(1) of the Nigerian National Petroleum Corporation (NNPC) Act CAP N123 LFN 2004. (Distilled from Ground 1)
2. Whether the Appellant’s suit also falls within the exception allowed by Section 57 of the Limitation Act CAP 522 Laws of the Federation of Nigeria (Abuja 1990). Distilled from Ground 3)
3. Whether the material facts furnished by the Appellant to the Lower Court in the Writ of Summons and Statement of Claim

(Complaint) were critically examined and properly evaluated and applied by the Trial Judge in the determination of the date of the accrual of the cause of action in this matter. (Distilled from Ground 2)
4. Whether the voluntary submission of both Appellant and Respondent to the Public Complaint Commission which by its statutory arbitration powers and functions intervened in the investigation, deliberation, resolution and award or recommendation in the matter would postpone the date of the cause of action in this case till the date of Award. (Distilled from Ground 4).

The respondent’s brief raised and adopted the issues raised for determination in the appellant’s brief.
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.

On 19-7-2016, the appellant as claimant filed a complaint against the respondent herein in the trial Court claiming for the following reliefs-
“1. A DECLARATION that the Claimant met and satisfied the Condition of Service and was due for promotion in 2007 to the Rank of Deputy Manager equal to his colleagues and contemporaries who were

promoted in 2007 having established and ascertained that the Claimant passed the Promotional examination in 2007 and scored 76.75 and NOT 74.22 erroneously awarded to him.
2. AN ORDER for the regularization and Proper Placement of the Claimant’s position as General Manager equal to his colleagues and contemporaries with effect from 2014 so as to be at Par with his colleagues who were promoted and rose to that position having satisfied the Promotional requirements and having been assessed in Annual Staff Evaluation Report 2006 date to be highly productive, industrious, effect and diligent.
3. A DECLARATION by this Honourable Court that in Law and Equity the non-Promotion of the Claimant from the position of Chief Engineer since 2007 and his stagnation in that position for over 17 years without any legally justifiable cause or reason is contrary to the Respondent’s Corporate Policy and Procedure Guide (Condition of Service), equity, fairness and the same is unreasonable, unconstitutional, wrongful, null and void.
4. A DECLARATION that the purported re-adjustment and up-grading of the already officially pegged and approved pass mark

from 70% to 75% only after the Promotional Examinations were taken without first amending and promulgating the rules before the said examination is wrong in law and Equity, contrary to Natural Justice and the Condition of Service.
5. AN ORDER compelling the Respondent to assess and pay to the Claimant his retirement benefits and entitlements which shall be due to the Claimant in August, 2016 based on the Claimant’s present position as Chief Engineer; and a further order directing the Defendant to assess and pay the differences between the Claimant’s present position and contested position of the General Manager.
6. That Defendant’s action and omission against me occasioned serious general and exemplary damages in A DECLARATION that the Claimant is entitled to the sum of N237,564,924.62 being the differences in the salaries, benefits and other entitlements between his present position of Chief Engineer and the position of General Manager which would have ordinarily attained if his due promotions and elevations were accordingly considered alongside with his contemporaries that sat for the Promotional and Evaluation Examinations since

2007 when he successfully passed the said examination and having scored the requisite 75% of the unorthodox revised pegging pass mark and similarly of the old 70% pegged mark in force at the time of the said Promotional Examination in 2007 and duly qualified for the said promotion and elevation.
7. AN ORDER OF THE Honourable Court directing and compelling the Defendant to pay the Claimant the sum of N237,564,924.62 (two hundred thirty-seven million, five hundred sixty-four thousand, nine hundred twenty four hundred Naira and sixty-two kobo) only been the differences in the salaries, benefits and entitlements between his present position as Chief Engineer and the position of Deputy Manager, Manager and General Manager respectively which he would have ordinarily attained if his due promotion and elevation were considered alongside with his colleagues since 2007 when he successfully passed his promotional examinations and having scored the requisite 70% and duly qualified for the said promotion and elevation.
8. AN ORDER of this Honourable Court giving credence and legitimacy to the Quasi-judicial Public Complaints Commission’s awards, resolution

and recommendations among others, that the Claimant scored 76.75% in the 2007 Promotion Interview and Staff Evaluation justifiably due for Promotion to the rank of Deputy Manager with effect from April, 2007.
9. AN ORDER of Interlocutory injection restraining the Defendant from any act prejudicial and inimical to the interest of the Claimant during the pendency of the case.
10. AN ORDER of the Honourable Court awarding general and exemplary damages of the sum of N500,000,000.00 (Five Hundred Million Naira) only in favour of the Claimant and against the Defendant for the Claimant’s wrongful stagnation and injury caused to his reputation, social standing, pride and incidental related losses.”

On 23-2-2017, the respondent herein, as defendant, filed a statement of defence and a notice of preliminary objection in the terms following-
“TAKE NOTICE that this Honourable Court shall be moved on the …… day of 2017 at the hour of 9.0’ Clock in the forenoon or so soon thereafter as Counsel may be heard on behalf of the Defendant /Applicant praying the Honourable Court for the following:
1. AN ORDER of the

Honourable Court dismissing the Claimant/Respondent’s suit in limine for being incompetent and for failure to comply with Section 12 (1) of the Nigerian National Petroleum Corporation (NNPC) Act CAP N123 LFN 2004.
2. AN ORDER of the Honourable Court dismissing the Claimant/Respondent’s suit for being statute-barred as same was instituted more than twelve months after the cause of action accrued.
3. AN ORDER of the Honourable Court dismissing the Claimant/Respondent’s suit for disclosing no reasonable cause of action against the Defendant/Applicant.
4. AN ORDER of the Honourable Court dismissing the Claimant/Respondent’s suit for lack of jurisdiction to entertain same.
5. AND for such further order or other orders as the Honourable Court may deem fit to make in the circumstance.
TAKE FURTHER NOTICE that the grounds upon which this application is brought are as follows:
i. The instant suit is incompetent for being instituted in breach of the mandatory requirement of Section 12 (1) of the NNPC Act LFN 2004 which provides for any legal action against the Defendant/Applicant to be commenced within twelve months

after the act, default or neglect complained of.
ii. Claimant’s suit is statute-barred as the purported cause of action accrued in 2013 while the instant suit was instituted in July 2016; three years after the limitation period of twelve months for commencement of any legal action against the Defendant/Applicant.
iii. The suit as presently constituted discloses no reasonable cause of action against the Defendant/Applicant.
iv. The suit is incompetent and robs the Honourable Court of the requisite jurisdiction to hear and determine same.“

On 27-3-2017, the trial Court heard the said preliminary objection in limine. After both sides had adopted their respective written addresses and made oral submissions in addition, the trial Court adjourned the matter for ruling. On 20-6-2017, it rendered judgment upholding the objection as meritorious and dismissed the suit. After restating the arguments of both sides on the issues for determination and the reliefs claimed for in the complaint, it held thusly- “From decided authorities above, this Court is now required to determine what really the cause of action is in the instant

case and then determine when it arose. In unreported SUIT NO. NICN/LA/114/2013 COMRADE ISHOLA ADESHINA SURAJUDEEN V. MR. ANTHONY NTED & ANOR the ruling of which was delivered on July 10, 2014 this Court (relying on ‘Oshitokunbo Oshisanya’s An Almanac of Contemporary Judicial Restatements – With Commentaries – The Basebook, Vol. ia, Administration of Justice and Evidence (Spectrum Books Limited: Ibadan), 2008 at page 3 paragraphs 10 – 13) defend cause of action as-
….The cause of action is said to announce a conclusion of law i.e. that the known facts meet the requirements of a particular, recognized legal basis for obtaining relief from a Court. Cause of action is accordingly the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the facts(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse.

See also AG, Federation v. Ag, Abia State & Ors (2001) 11 NWLR (Pt. 725) 689 at 733.
And from paragraphs 19, 21, 22, 30 and particularly Relief 5, I find that the claimant’s cause of action is the wrongful denial of his promotion in 2007.
From the perusal of this case file I find that this suit was filed on 19th July 2016 i.e. over three months after the accrual of the cause of action.
Having found that the matter falls within the limitation law the only thing left to determine would be whether this matter falls within the known and prescribed exceptions to Section 12 of the Act being considered.
Section 12 of the NNPC Act provides for, “in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.”
In the case of BELLO & ORS. V. NIGERIA CUSTOMS SERVICE BOARD (2015) 53 NLLR (PT. 179) 343 NIC @ 351
The definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself. OKAFOR V. A.G. ANAMBRA STATE (2001) FWLR (PT. 58) 1127 @ 1146 D-G; CARREY V. BERMONDSEY METROPOLITAN BOUROUGH COUNCIL

(1903) 675 P. 447; 20 TLR 2; AMAMIWE v. THE LOCAL SCHOOL BOARD (1971) 2 NMLR 57 @ 58; OBIEFUNA V. OKOYE (1961) ALL NLR 357.
To the claimant, the test on continuance of damage or injury laid down by the Supreme Court IN AG, RIVERS STATE V. AG, BAYELSA STATE & ANOR (2013) 3 NWLR (PT. 1340) 123 AT 144 – 150 is one that relates to periodical payments. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the limitation law will not apply. In this sense, for the continuing injury exception to apply, the employee would need to be in employment.
Although the exception of continuing injury has been interpreted in this court to apply to

exclude the limitation laws where the claimant is in employment See the Unreported SUIT NO: NICN/LA/470/2012MR. ADEWALE ARINDE VS FOOD AGRO & ALLIED INDUSTRIES LIMITED delivered 9th October 2013. Now in the instant case, the claimant was in employment as at the time he commenced this action looking at relief 5. However the cause of action I have found is the refusal of the defendant to promote the claimant in 2007 and that is a one off event not a continuing injury, the effect of this one off event which is the lower salary, stagnation etc are all effects of the injury. I find and hold and in which case this exception cannot avail the claimant.
The claimant also raised other issues as to fraud and mistake but this Court has held that the conduct of the defendant has no bearing on the determination of whether a matter is statue barred or not following the Court of Appeal decision in RAHAMANIYYA UNITED (NIG) LTD V. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ORS (2009) 43 WRN 124 CA AT PAGE 146, applying CHIGBU V. TONIMAS (NIG) LTD (2006) 31 WRN 179; (2006) 9 NWLR (PT. 986) 189 SC AT 210, where it was held that the propriety or otherwise of the act of

the defendants is not a relevant consideration for the applicability of a Limitation Act such as the Public Officers Protection Act. The case continued that if an action against a public officer or public institution and organization is statute-barred, having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statue-barred under Section 2 of the Public Officers Protection Act, referring to EGBE V. ADEFARASIN (2002) 14 WRN 57 and AREMO II V. ADEKANYE (2004) 42 WRN 1 SC. And IN JOSHUA MNENGE V. NIGERIAN ARMY UNREPORTED SUIT NO. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, this Court dealing with an argument similar to the instant applicant held thus:
In unreported SUIT NO. NICN/LA/149/2014 AUPCTRE & ANOR Vs. NATIONAL THEATRE OF NIGERIA & ORS Delivered May 18, 2016.
This Court held that “a claimant who suffered abuse of office and bad faith cannot just sit at home and

wake up when he wants outside of the limitation period, come to Court and then say because of the abuse of office and bad faith, the defendant cannot raise the defence of the limitation law. The cause of action itself is the abuse of office and bad faith. Litigating it must be within the time frame allowed by the law. Any other thing would be indulging an indolent litigant, the very thing that the limitation law is set to guard against.”
From the foregoing, I find that the defendant’s preliminary action has merit, is upheld and succeeds. This matter has been caught up by the limitation provisions of Section 12 NNPC Act. This matter is dismissed accordingly.”

This appeal is against this judgment.
I will determine the issues raised for determination seriatim beginning with issue No 1 which asks-
“Whether the Appellant’s suit at the Lower Court was Statute barred considering the exception allowed under Section 12(1) of the Nigerian National Petroleum Corporation (NNPC) Act CAP N123 LFN 2004.“

Issue No. 1 as framed, the ground one of this appeal from which it is derived and the arguments thereunder,

particularly, the argument that the trial Court did not properly determine the date of the accrual of the cause of action before holding that the action was statute barred, that the cause of action accrued on 6-4-2016 when the appellant became aware of his true scores in the 2007 promotion examination and that the claimant suffered a continuous injury by the continual refusal to appropriately promote him since 2007 are invalid and incompetent. This is because, there is no ground of this appeal complaining against the finding and holding of the trial Court thusly-
“And from paragraphs 19, 21, 22, 30 and particularly Relief 5 I find that he claimant’s cause of action is the wrongful denial of his promotion in 2007.
From the perusal of this case file I find that this suit was filed on 19th July 2016 i.e. over three months after the accrual of the cause of action.
There is no ground of this appeal complaining that the trial Court erred or misdirected itself in law or in fact when it found that the cause of action was the wrongful denial of his promotion in 2007 and that the suit was filed over three months after the accrual of the cause

of action. Without such a ground of appeal, the appellant cannot competently and validly argue that the trial Court did not properly determine the date of accrual of cause of action and that the cause of action accrued on 6-4-2016.
Ground 1 of this appeal from which issue No. 1 states that it is derived, is not a complain against the above findings. It merely complained against the refusal of the trial Court to entertain and try the suit on the ground that it is statute barred. Without attacking the finding of fact on the basis of which the trial Court made the said conclusion, the appellant cannot competently and validly complain or argue that the trial Court was wrong to have held that the suit is statute barred. This is because by not appealing against the finding of fact or holding, the appellant accepted it as correct, conclusive and binding. See Iyoho v. Effiong (2007) 4 SC (Pt. iii) 90. Having accepted the said finding or holding as correct, the appellant cannot competently and validly argue to the contrary. See Dabup V Kolo(1993) 12 SCNJ 1.
An appeal against a conclusion or inference derived from a finding or holding that is not challenged or

appealed against cannot stand.

The allegation in ground 1 of this appeal that the trial Court overruled the complainant’s argument on the provisions of S.12(1) of the Nigerian National Petroleum Corporation (NNPC) Act without due consideration of the proviso/exception to the said S.12(1) of the Nigerian National Petroleum Corporation (NNPC) Act is not supported by the record of this appeal, particularly, the express terms of the judgment of the trial Court. It is glaring from the part of the judgment reproduced above that the trial Court duly considered and determined the issue of whether the cause for the action was a continuing injury. It duly considered and determined the issue thusly- “Section 12 of the NNPC Act provides that “in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof. In the case of BELLO & ORS. V. NIGERIA CUSTOMS SERVICE BOARD (2015) 53 NLLR (PT. 179) 343 NIC @ 351
The definition of the phrase “continuance of the injury” by case law authorities means continuance of the “act which caused the injury” and not the injury itself.

OKAFOR V. A.G. ANAMBRA STATE (2001) FWLR (PT. 58) 1127 @ 1146 D-G; CARREY V. BERMONDSEY METROPOLITAN BOUROUGH COUNCIL (1903) 675 P. 447; 20 TLR 2; AMAMIWE v. THE LOCAL SCHOOL BOARD (1971) 2 NMLR 57 @ 58; OBIEFUNA V. OKOYE (1961) ALL NLR 357.
To the claimant, the test on continuance of damage or injury laid down by the Supreme Court IN AG, RIVERS STATE V. AG, BAYELSA STATE & ANOR (2013) 3 NWLR (PT. 1340) 123 AT 144 – 150 is one that relates to periodical payments… in that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the limitation law will not apply. In this sense, for the continuing injury exception to apply, the employee would need to be in

employment.
Although the exception of continuing injury has been interpreted in this Court to apply to exclude the limitation laws where the claimant is in employment. See the Unreported SUIT NO: NICN/LA/470/2012MR. ADEWALE ARINDE VS FOOD AGRO & ALLIED INDUSTRIES LIMITED delivered 9th October 2013. Now in the instant case, the claimant was in employment as at the time he commenced this action looking at relief 5. However the cause of action I have found is the refusal of the defendant to promote the claimant in 2007 and that is a one off event not a continuing injury, the effect of this one off event which is the lower salary, stagnation etc are all effects of the injury. I find and hold and in which case this exception cannot avail the claimant.”

So the complain in ground 1 of this appeal that the trial Court overruled the complainant’s arguments on the issue without duly considering them is false and invalid. Allegations of events not supported by the record of an appeal are not valid for consideration in the appeal.
Ground 1 of this appeal is therefore not competent for consideration in this appeal. It is hereby struck out.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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There is also no ground of this appeal complaining against the holding of the trial Court that “the cause of action is the refusal of the defendant to promote the claimant in 2007 and that is a one off event not a continuing injury, the effect of this one off event which is the lower salary, stagnation etc are all effects of the injury. I find and hold that in this case this exception cannot avail the claimant.” By not appealing against this holding, the appellant accept it as correct, conclusive and binding. Having accepted the holding as correct, the appellant cannot competently and validly argue that the injury is a continuous one and that therefore the cause for action keeps recurring or accruing as the injury continues.
It is settled law that where in an appeal against a judgment, a finding or holding in the judgment is not appealed against in any of the grounds of that appeal, none of the parties to that appeal can argue contrary to or against that finding or holding. See Dabup v. Kolo (supra)
So the arguments of the appellant that the refusal to promote him in or since 2007 is a continuing injury is incompetent and invalid

as it runs contrary to the above unchallenged finding or holding.

Issue No. 1 as framed raised no complain against any part of the judgment of the trial Court. The issue asked theoretically or in abstract whether the appellants suit was statute barred considering the exception under S.12(1) of the Nigerian National Petroleum Corporation (NNPC) Act. It did not raise a complain about the decision of the trial Court on that issue. The Appellant simply restated the issue he raised and argued in his written address in the trial Court without attacking the decision of the trial Court on the point. The exact text of the issue in his written address at the trial Court reads thusly- “Whether in view of the exception to the provisions of S.12(1) of the Nigerian National Petroleum Corporation (NNPC) Act LFN 2004, the instant action can be maintained?” An issue raised for determination in the trial Court and which was determined in the judgment of the trial Court should not be repeated as an issue for determination in the appeal against the judgment. What should be raised as an issue is the complain about how the trial Court treated the issue or its

decision on the issue.
In the light of the foregoing, I hold that issue No. 1, the ground 1 from which it is derived and the arguments thereunder are incompetent and invalid.

Let me now consider issue No. 2 which asks “Whether the Appellant’s suit also falls within the exception allowed by Section 57 of the Limitation Act CAP 522 Laws of the Federation of Nigeria (Abuja 1990).“The part of the judgment of the trial Court complained against here reads thusly- “the claimant also raised other issues as to fraud and mistake but this Court has held that the conduct of the defendant has no bearing on the determination of whether a matter is statue barred or not following the Court of Appeal decision in RAHAMANIYYA UNITED (NIG) LTD V. MINISTRY FOR FEDERAL CAPITAL TERRITORY & ORS (2009) 43 WRN 124 CA AT PAGE 146, applying CHIGBU V. TONIMAS (NIG) LTD (2006) 31 WRN 179; (2006) 9 NWLR (PT. 986) 189 SC AT 210, where it was held that the propriety or otherwise of the act of the defendants is not a relevant consideration for the applicability of a Limitation Act such as the Public Officers Protection Act. The case continued that if

an action against a public officer or public institution and organization is statute-barred, having not been brought within the prescribed period of three months, there will be no basis for investigating the conduct of the public officer which gave rise to the action. That the conduct of the defendant as to whether he was malicious or not is irrelevant in determining whether the cause of action is statue-barred under Section 2 of the Public Officers Protection Act, referring to EGBE V. ADEFARASIN (2002) 14 WRN 57 and AREMO II V. ADEKANYE (2004) 42 WRN 1 SC. And IN JOSHUA MNENGE V. NIGERIAN ARMY UNREPORTED SUIT NO. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, this Court dealing with an argument similar to the instant applicant held thus:
In unreported SUIT NO. NICN/LA/149/2014 AUPCTRE & ANOR Vs. NATIONAL THEATER OF NIGERIA & ORS Delivered May 18, 2016
This Court held that a claimant who suffered abuse of office and bad faith cannot just sit at home and wake up when he wants outside of the limitation period, come to Court and then say because of the abuse of office and bad faith, the defendant cannot raise

the defence of the limitation law. The cause of action itself is the abuse of office and bad faith. Litigating it must be within the time frame allowed by the law. Any other thing would be indulging an indolent litigant, the very thing that the limitation law is set to guard against.”
From the foregoing, I find that the defendant’s preliminary action has merit, is upheld and succeeds. This matter has been caught up by the limitation provisions of Section 12 NNPC Act. This matter is dismissed accordingly.”
I have carefully read and considered the arguments of both sides on this issue.
Let me now determine the merits of those arguments.
Ss. 57(1) and 58(1) of the Limitation Cap 522 LFN 2007 provides thusly-
“57(1) – Where, in the case of any action for which a period of Limitation is prescribed by the Act either
(a) The action is based upon the fraud of the Defendant or his agent or of any person through whom he claims or his agent, or
(b) The right of action is concealed by the fraud of any such person as aforesaid, or
(c) The action is for relief from the consequences of a mistake, the period of

Limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it.
58(1) – Where in the case of an action for which a period of Limitation is fixed by this Act, the action is for relief from the consequences of mistake, the period of Limitation shall not begin to run until the Plaintiff has discovered the mistake or could with reasonable diligence discovered it.”
It is glaring from the appellant’s pleadings in his complaint, particularly the reliefs claimed for therein that the suit was based upon an alleged fraud of the respondent, that the right of action was concealed by the fraud of the respondent’s officials and that the suit was for relief from the consequences of the fraud or mistake. S.57(1)(c) provides that in these situation, the period of limitation shall not begin to run until the date the appellant discovered the fraud or mistake or could with reasonable diligence have discovered it.
Paragraphs 25 and 41 of the appellant’s complaint states that the appellant became aware of the fraud or mistake on 4-6-2014.

The exact text of that pleading reads thusly-“25. The Claimant avers that when the Promotion exam results were released, the Defendant flagrantly failed to disclose the Claimant’s actual score at the said exam not until 4th June, 2014 at a Case Conference between the Claimant and the Defendant’s Management held at Public Complaints Commission, Abuja that the Defendant surreptitiously disclosed that the Claimant scored 74.22% instead of his actual score of 76.75%.
41. In a letter dated 10th June, 2014 the Claimant wrote a further complaint titled ”Complaints over alleged Stagnation in Service Yakubu Heykal Isa (ID.90446)” to the Defendant pointing out the following:-
(i) The purported result of his Promotion interview in April, 2007 which the Defendant’s Management deliberately refused to disclose to him for over Seven (7) years not until at the Case Conference held with the Defendant’s Management at PCC Head Office on 4th June, 2014.
(ii) The Claimants Appraisal scores for Interview Year 2005, 2006 and 2007.
(iii) The obvious omission or commission in the process of assessing the

Claimant’s Appraisal for the year 2006.”
As the record of this appeal show, the suit leading to this appeal was filed on 19-7-2016, over two years after the appellant became aware of the fraud. So even if, Ss. 57(1) and 58(1) of the Limitation Act (supra) is applied to this case, the suit would remain statute barred because over two years elapsed after the appellant became aware of the concealed fraud on 4-6-2014 before he filed this suit at the trial Court on 19-7-2016. The suit ought to have been filed within 12 months from the date the appellant became aware of the concealed fraud.
In any case, the Supreme Court in Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649 held that Ss. 57(1) and 58(1) of the Limitation Act 2007 do not apply to suits against the respondent because the provision of S.12(1) of the NNPC Act applies irrespective of whatever provision is made in any other enactment. S.12(1) of the NNPC Act provides as follows-
“Notwithstanding anything in any other enactment, no suit against the corporation a member of the Board or any employees of the corporation for any act done in pursuance or execution of any enactment

or Law or nay public duties or authority or in respect of any alleged neglect or default in the execution of such enactment or Law, duties or authority shall lie or be instituted in any Court unless it is commenced within twelve months next after the act, neglect or default complained or in the case of continuance of damage or injury, within twelve months next after the ceasing thereof” (underlined words, ours).”
The Supreme Court in that case held thusly- “The Appellant urged this Court to take into consideration the provision of Section 25 (c) of the Limitation Law which provide that time should not begin to run until the plaintiff has discovered the fraud, where fraud is alleged, or his mistake…Whatever maybe the merit, if any of the submission, the provisions of the limitation law, do not apply as the provisions of Section 11 (1) of the NNPC Act 1976 are applicable notwithstanding anything in any other enactment.”
This decision was cited and relied on by Learned Counsel for the respondent in the respondent’s brief in support of his submission that Ss. 57(1) and 58(1) of the Limitation Act 2007 do not apply to

actions against the respondent by virtue of S.12(1) of the NNPC Act. Learned Counsel for the appellant in the appellant’s reply brief was silent about this holding of the Supreme Court in Eboigbe v. NNPC. As it is, this Court is bound to follow the said Supreme Court decision on the point in keeping with the principle of stare decisis. It has no choice than to follow that decision.
In the light of the foregoing, I resolve issue No. 2 in favour of the respondent.

Let me now consider issue No. 3 which asks “Whether the material facts furnished by the Appellant to the Lower Court in the Writ of Summons and Statement of Claim (Complaint) were critically examined and properly evaluated and applied by the Trial Judge in the determination of the date of the accrual of the cause of action in this matter.”

Learned Counsel for the appellant has stated that the issue is formulated from ground 2 of this appeal. But it is obvious that there is no relationship between the complain in ground 2 of this appeal and issue No. 3 in the appellant’s brief. While ground 2 of this appeal complains that- “The learned trial Judge erred in

Law when he declined jurisdiction and failed to entertain this matter when the action was not statute barred and the Honourable Court therefore, had jurisdiction to entertain the suit, Issue No. 3 asks “Whether the material facts furnished by the Appellant to the Lower Court in the Writ of Summons and Statement of Claim (Complaint) were critically examined and properly evaluated and applied by the Trial Judge in the determination of the date of the accrual of the cause of action in this matter.“
It is settled law that the issue raised for determination from a ground of appeal must deal with the subject matter of the complaint in the ground of appeal. If it deals with a matter different from that contained in the complain in the ground of appeal, then it has no nexus or relationship with the said ground from which it is said to be derived.
Issue No. 3 has no nexus or relationship with any of the grounds of this appeal. It is therefore incompetent and invalid. For an issue to be competent and valid for consideration it must derive from or be connected with any of the grounds of the appeal. See Egbe V Alhaji (1990)3 SC (Pt.1).

As it is, issue No. 3 has no relationship with any of the grounds of this appeal and is therefore incompetent. Being incompetent, it cannot be the basis of any valid argument in the appeal. Therefore, both the issue and the arguments thereon are hereby struck out.

Let me now consider issue No. 4 which asks “Whether the voluntary submission of both Appellant and Respondent to the Public Complaint Commission which by its statutory arbitration powers and functions intervened in the investigation, deliberation, resolution and award or recommendation in the matter would postpone the date of the cause of action in this case till the date of Award.“

Learned Counsel for the appellant argued that upon the submission of the dispute between the appellant and the respondent to the Public Complaints Commission which by virtue of S.5(1) AND (2) (a) to (e) and (3) – (7) has the statutory power to arbitrate on issues of administrative injustice by public bodies and officials, the 12 months period prescribed by S.12(1) of the NNPC Act within which to bring actions against the respondent stopped running until the 6th of April 2016 when the Public

Complaints Commission made its Award/Recommendation, that the cause of action arose on 6-4-2016. For this submission, Learned Counsel relied on the Scott v. Avery clause and the judicial decisions in Murmansk State Steamship Line v. Kano Oil Millers Ltd (1974) 2 SC 1 and Onward Ent. Ltd V. MV Matrix (2010) 29 NWLR (Pt 1179) 551 – 552 and the Textual authority of Spencer Brower on Doctrine of Res Judicata (1st Edition at p. 16).

Learned Counsel for the respondent has argued in reply that contrary to the Appellant’s arguments in paragraphs 8.1 to 8.17 of its Brief of Argument, the intervention of the Public Complaint Commission, could not have stopped, prevented nor postponed the running of the period of limitation stipulated by Section 12(1) of the NNPC Act 2004, that the Respondent never voluntarily consented or submitted itself to the issues raised by the Appellant to the Public Complaint Commission for arbitration or mediation, that the Public Complaint Commission, is never an arbitral panel or body recognized under the Arbitration contemplated by Section 12(1) of the NNPC Act 2004, that every arbitral body must be headed by an arbiter

mutually chosen and agreed to by the parties, but that was not the case with the intervention by the Public Complaints Commission in this case, that the Respondent merely deferred to the Commission after its many invites to the Respondent for a meeting over the many petitions sent to it by the Appellant, that in response to its many invitations, the Respondent on 4th June 2014 merely sent its representative to the Commission to again communicate and reiterate its stand on the Appellant’s petitions, that the Respondent never accepted liability before the Commission in respect of the issues brought by the Appellant before it but rather restated its position to the Commission that the matter between it and the Appellant had long been regarded as closed, that the Commission did not conduct the said Management Promotion Interview for the Appellant and thus has no power to unilaterally award marks to him based on the permutations of his performance at the interview exercise, that since the Respondent never requested, consented, sought nor submitted itself to arbitration or mediation by the Commission, it is not bound by any of its recommendations or the award

purportedly made thereof, that the period of limitation is not broken and does not cease to run merely because the parties engage in negotiation. For these submissions, he relied on the judicial decisions in Adebanjo v. Ogun State Sports Council (2005) 45 WRN 172, UBN V. OZIGI (1991) 2 NWLR (Pt 176) 677, Lahan v. AG Western Nigeria (1976) WNLR 39, SPDC Nig. V. Ejebu (2011) 17 NWLR (Pt. 1236) 342 and Nwadiaro v. SPDC (1990) 5 NWLR (Pt. 150) 339.

Let me now determine the merits of these arguments by both sides.
The law is settled by a long line of judicial decisions over time that the time within which an action can be brought would run notwithstanding that the parties to the dispute are involved in settlement, negotiation or arbitration. Such negotiation, settlement, arbitration or other alternative extra judicial resolution of the dispute does not stop the time from running. As held by the Supreme Court in Eboigbe V. NNPC (supra) at page 653 “Although the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute, generally such a negotiation by parties does not prevent or stop the period of

limitation stipulated by statue from running… The law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation. The best cause for a person to whom a right of action has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails…the law will not allow the time devoted to negotiation to be excluded from the period which should be taken into consideration for determining the question whether a claim has become statue barred.”

In the light of the foregoing issue No. 4 is resolved in favour of the respondent.
On the whole this appeal fails as it lacks merit. It is hereby dismissed accordingly.
The appellant shall pay costs of N100,000.00 to the respondent.

ABDU ABOKI, J.C.A.: I have had the opportunity of reading in advance the judgment just delivered by my learned brother Emmanuel Akomaye Agim, JCA.

I entirely agree with the opinion expressed and the conclusion arrived at, that the appeal lacks merit and is accordingly dismissed.

I abide by the consequential order(s) as contained therein.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Emmanuel Akomaye Agim JCA, just delivered.
I agree with the reasoning and conclusion reached. I do not have anything useful to add.
I abide by all the orders made therein.

Appearances:

E.O. ABADAKI ESQ. with him, S.O. Momoh Esq. For Appellant(s)

MARTIN C. Agba, Esq. with him John Usani Esq. For Respondent(s)