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Mr. Aguene Ignatius N. -VS- The Ebonyi State University, Abakaliki & ORS

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

 

BEFORE HIS LORDSHIP, HON. JUSTICE I. G. NWENEKA

 

Date: 3rd November 2017                                                      Suit No. NICN/ABK/02/2014

 

Between

 

Mr. Aguene Ignatius N.                                                                      Claimant/Respondent

 

And

 

  1. The Ebonyi State University, Abakaliki                                Defendants / Applicants
  2. The Governing Council, Ebonyi State University            

 

REPRESENTATION:

 

Ifeanyichukwu Uzuagu Esq. for the Claimant/Respondent

Attaoselebe Ikechukwu Esq. with Mrs. Lydia Nwibo for the Defendants/Applicants

 

JUDGMENT

 

  1. The Claimant commenced this suit by motion on notice dated 22nd January 2012 but filed on 22nd January 2013 for enforcement of his fundamental rights at the High Court of Ebonyi State. The processes were served on the Defendants, who filed a counter affidavit and written address challenging the jurisdiction of the High Court of Ebonyi State to hear the matter. In a considered ruling delivered on 24th October 2013, the High Court of Ebonyi State declined jurisdiction and transferred the suit to this court on 1st April 2014. The Respondents brought an application dated 14th October 2014 but filed on 15th October 2014 praying the court to strike out the suit “having been initiated by a wrong process of law.” The application was argued on 3rd December 2014 and in his ruling delivered on 2nd March 2015, my learned brother, Honourable Justice A. Ibrahim, held that the Claimant’s suit was improperly initiated by means of Fundamental Rights [Enforcement Procedure] Rules 2009 and ordered parties to file pleadings.

 

  1. The Claimant filed his General Form of Complaint and frontloaded processes on 23rd March 2015. The Claimant also filed a “CLAIM”, particulars of claim, list of witness, Claimant’s deposition on oath, list of documents and copies of documents to be relied on at the trial, all dated 9th June 2015 but filed on 10th June 2015. The General Form of Complaint and other frontloaded processes were subsequently struck out on 22nd January 2016.

 

  1. In his “CLAIM” the Claimant prayed this Court for:

 

  1. A declaration that the dismissal of the Claimant through letter no. EBSU/R/SSE/45/1949 dated 15th day of September 2011 served [on] the Claimant by the Defendants contravenes paragraph 14.3 sub paragraph 11[a] and [g] of the Ebonyi State University Regulations 2004 and as a result infringed the Claimant’s right to fair hearing contained in section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
  2. A declaration that the failure of the University to pay the Claimant his full salary from 6th of July 2009 to the month of May 2011 even when the Claimant was recalled from suspension and reinstated back to his job is in contravention of paragraph 14.3 sub paragraph 6[f] of the University Regulations 2004 and as a result infringed the right to dignity of the Claimant as contained in section 34 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
  3. An order of the Court setting aside or for the withdrawal of the dismissal letter no. EBSU/R/SSE/45/1949 dated 15th day of September 2011 served [on] the Claimant by the Defendants and for the reinstatement of the Claimant as staff of the University.
  4. An order of Court directing the Defendants to pay the Claimant his leave allowances from 2006 – 2011 totaling N900, 000.00 [nine hundred thousand naira].
  5. An order of Court directing the Defendants to pay the Claimant his arrears of salaries during the purported suspension from June 2006 – June 2009 totaling N1, 050,000.00 [one million, fifty thousand naira].
  6. An order of Court directing the Defendants to pay the Claimant his arrears of salaries from the date of recall; 1st July 2009 – April 2011 totaling N1, 680,000 [one million, six hundred and eighty thousand naira].
  7. An order of Court directing the Defendants to refund [to] the Claimant his pension deductions for five [5] years with effect from April 2005 to March 2010 totaling N600, 000.00 [six hundred thousand naira] in their custody.
  8. An order of Court directing the Defendants to pay the Claimant his arrears of monetization sums for six months totaling N120, 000.00 [one hundred and twenty thousand naira].
  9. An order of injunction restraining the Defendants, their servants, agents and or privies [from] infringing any more on the fundamental rights of the Claimant.
  10. Award of N10, 000,000 [ten million naira] compensatory or exemplary damages to the Claimant for the infringement of the Claimant/Applicant’s fundamental rights by the University [Ebonyi State University Abakaliki].

 

  1. The Defendants filed their memorandum of appearance, statement of defence, witness statement on oath and list of witnesses and a motion to regularize the processes all dated 31st May 2016 but filed on 24th June 2016. The processes were deemed to have been properly filed and served by order of this Court made on 2nd February 2017. The Claimant filed a reply to the statement of defence dated 6th April 2017 but filed on 6th March 2017.

 

  1. By a Motion on Notice dated 7th June 2017 and filed on 12th October 2017, the Defendants/Applicants [“the Defendants”] prayed the Court for the following orders:

 

  1. An order striking out the suit for lack of jurisdiction same being statute barred.
  2. An order of court setting aside its order of 2/3/2015 same having being made without jurisdiction.

 

The grounds upon which the application is made are:

 

  1. That by the provision of section 50(2)(a) & (b) of the Ebonyi State University and Related Matters (Amendment) Law No. 002 of 2011, this suit ought to have been commenced within three months from the date of occurrence of the act complained of.
  2. That the action was commenced more than three months after the occurrence of the cause of action; thus, statute barred.
  3. That this court upon hearing our preliminary objection on the mode of commencement of this suit upheld our position but ordered pleadings to be filed by parties.
  4. That no such prayer was ever made to this court by any of the parties.

 

  1. The application is supported with 10 paragraphs affidavit deposed to by Mr. Peter Mgbabor, a staff of the 1st Defendant, and a written address dated 7th June 2017 and filed on 12th October 2017. The Claimant/Respondent [“the Claimant”] filed 7 paragraphs counter affidavit dated 23rd October 2017 deposed to by the Claimant; and a written address dated 20th October 2017 but filed on 23rd October 2017. Both processes were regularized by order of this court on 26th October 2017.

 

  1. The application came up for hearing on 26th October 2017. Learned Counsel to the Defendants, Mr. Attaoselebe, adopted his written address as his argument in support of the application and urged the Court to hold that this Court does not have jurisdiction to entertain the suit. In opposing the application, the Claimant’s Counsel, Mr. Uzuagu, adopted the depositions in the counter affidavit and his written address and urged the Court to dismiss the application as an abuse of court process.

 

  1. The contention of the Defendants is that this suit was commenced more than three months’ after accrual of the cause of action in breach of the provisions of section 50[2][a] and [b] of Ebonyi State University and Related Matters (Amendment) Law No. 002 of 2011. This issue was raised in paragraph 5 of the counter affidavit and paragraph 9 of the statement of defence, to wit that, “the cause of action in this suit arose on the 15th day of September, 2011 when the appointment of the claimant was terminated while this suit was filed at the High Court of Ebonyi State on the 22nd January, 2013 before it was transferred to this court.” The Respondent did not dispute this fact, but argued that the applicable law is section 18 of the Limitation Law, CAP 102, Laws of Ebonyi State.

 

  1. Section 50[2] of Ebonyi State University and Related Matters (Amendment) Law No. 002 of 2011 provides:

 

“No suit shall be instituted against the University or any of its bodies, members, officers or employees, respecting any act, neglect or default done or omitted in his capacity as such, shall be instituted in any court unless:-

[a]        It is commenced within three months from the occurrence of the act, neglect or default; or

[b]       In the case of continuance of damage or injury, within three months immediately after the cessation thereof.”

 

  1. The Defendants raised two issues for determination.

 

  1. Issue one: Whether from the circumstances of this case, the claimant still has a right of action in law?
  2. Issue two: Whether this court has the jurisdiction to grant a relief not sought by parties?

 

  1. Arguing issue one, learned Counsel to the Defendants submitted that where a statute provides for commencement of action within a given time, no proceedings can be commenced after the period had elapsed. Continuing, he contended that by the provision of section 50[2][a] of Ebonyi State University and Related Matters (Amendment) Law No. 002 of 2011, the action against the Defendants must be commenced within three months of termination of the Claimant’s appointment. He submitted further that the suit, having not been commenced within three months of the termination of the Claimant’s appointment is statute-barred and the right of action extinguished. Learned Counsel also submitted that where the cause of action is statute-barred, it affects the legal competence or jurisdiction of the court.

 

  1. Learned Counsel to the Claimant, Mr. Uzuagu, submitted that by virtue of section 18 of the Limitation Law, CAP 102, Laws of Ebonyi State, this Court has the requisite jurisdiction to entertain the suit. He posited that “a follow up provision sidelines/knocks out any other law or enactment in that regard” making reference to section 19 of the Limitation Law. He submitted further that where “a superior law is in force or covering the field on a particular issue/area, all other laws that are in conflict with that superior law is void to the extent of its inconsistency. This is the case here with the limitation law [sic] of the Ebonyi State University and Related Matters [Amendment] Law of 2011 being relied [on] by the Applicants.” The Defendants did not file a reply on points of law.

 

  1. Before I continue, I need to clarify three issues raised by the Claimant’s Counsel in his submission. First, he submitted that the Defendants’ motion on notice dated 7th June 2017 but filed on 12th October 2017 does not have the Nigerian Bar Association approved seal. This is a fallacy. The Court’s copy of the motion has the Nigerian Bar Association seal of Awoke Elias Agashi, one of the Solicitors listed on the motion paper. The submission is misconceived and hereby discountenanced.

 

  1. Secondly, learned Counsel gave a wrong interpretation of the effect of section 19 of the Limitation Law, CAP 102, Laws of Ebonyi State. Section 19 of the Limitation Law of Ebonyi State is very clear and self limiting. The section provides: “This section applies, notwithstanding anything contained in any other enactment to the contrary, to actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by person for negligence, nuisance breach of duty, consist of or include damage in respect of personal injuries to the plaintiff or any other person.” On the side note it is stated “Special provision for respect of personal injuries.” Although side notes are generally not considered as aids to interpretation of statutes, nonetheless, it is permissible for the court to consider the general purpose and mischief at which the statute is aimed with side notes in mind. See the case of Federal Republic of Nigeria v. James Onanefe Ibori & 5 Ors. [[2014] LPELR-23214 [CA] at page 67. That said it is clear that section 19 is self limiting. The opening words of the section supports this position, it says, “This section….” and goes on to list situations when it will be applicable. The cases must involve “personal injuries to the plaintiff or any other person”. There is no mention of contracts of employment. The Claimant did not plead facts in the statement of facts to bring this case within the provisions of section 19 of the Limitation Law. Learned Counsel’s submission in paragraph 4 of his written address is a deliberate misapplication of the law and is therefore unavailing to the Claimant. I so hold.

 

  1. Thirdly, learned Counsel to the Claimant submitted that where “a superior law is in force or covering the field on a particular issue/area, all other laws that are in conflict with that superior law is void to the extent of its inconsistency. This is the case here with the limitation law [sic] of the Ebonyi State University and Related Matters [Amendment] Law of 2011 being relied [on] by the Applicants.” He referred the Court to the case of AG. Abia State v. AG of the Federation [2002] 17 WRN 1. The case of AG. Abia State v. AG of the Federation [supra] does not apply to this case. In the first place, the facts of that case are different from the facts of this case. Also, the issue in that case relates to two laws regulating the same subject matter, one a Federal law and the other a State law. Here, we are dealing with two laws enacted by Ebonyi State Legislature, one specific and the other general. The specific law was enacted in 2011 while the general law was enacted in 2009. The correct proposition of law is that stated in the case of Independent Television/Radio v. Edo State Board of Internal Revenue [2014] LPELR-23215 [CA] at page 20, where Ogunwumiju, J.C.A. held that, “The law is settled that in the interpretation of statutes, special things derogate from general things [generalibus speciala derogat]…. Where there is a conflict between two legislations one of which is special on a subject and the other legislation is general in nature, the legislation that is special in nature shall supercede. See Madumere v. Okwara [2013] LPELR 1 at 15-17. Maxwell on Interpretation of Statutes [11th Edition] at page 164 states that where a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one. See Aqua Ltd v. Ondo State Sports Council [1988] 4 NWLR [pt.91] 622.” It is my firm view and I so hold that the Ebonyi State Limitation Law is a general law, while the Ebonyi State University and Related Matters [Amendment] Law of 2011 is a special law. The Ebonyi State University and Related Matters [Amendment] Law of 2011 is an exception to the general law and supercedes the Limitation Law, CAP 102, of Ebonyi State. I find and hold therefore that the Ebonyi State University and Related Matters [Amendment] Law of 2011 is the applicable law to this case.

 

  1. Now, let us consider whether this suit is statute barred. It is settled law that in determining whether an action is statute-barred a court is expected to examine the writ of summons and the statement of claim filed by the plaintiff. This will normally disclose when the cause of action arose and then compare it with the date when the action was filed in court. Where the date of filing the action as endorsed on the writ of summons is beyond the period allowed by the relevant limitation statute the action is said to be statute-barred. See the case of Mrs. Chinyere Asika & Another v. Mr. Henry N. Onyedike [2012] LPELR-9474 [CA] at pages 19-20. Relief 1 on the Claim is for a declaration that the dismissal of the Claimant through letter no. EBSU/R/SSE/45/1949 dated 15th September 2011 contravenes paragraph 14.3[11][a] and [g] of the Ebonyi State University Regulations 2004. Relief 3 seeks an order setting aside the letter of dismissal. Paragraphs 30, 31, 32 and 40 of the statement of facts reveal that the Respondent was dismissed by letter dated 15th September 2011. Therefore, I find and hold that the cause of action arose on 15th September 2011. In Pa. James Ariavbehe-Adolor Eregbowa & 3 Ors. v. Pa. Ehigiamusoe Obanor & 3 Ors. [2010] LPELR-8964 [CA], per Omoleye, JCA, held: “The law is settled that, time in relation to cause of action, begins to run when there is in existence a person who can sue another who can be sued, and when all facts have happened which are material to be proved to enable a plaintiff to succeed. Hence where there exists a law on limitation of time within which all actions and matters should be taken, or where a law exists prescribing a period of time within which an action may be instituted, time begins to run automatically from the date of the accrual of the cause of action.” The Claimant did not contest the fact that the cause of action accrued to him on 15th September 2011. His contention, however, is that the Limitation Law, CAP 102, of Ebonyi State applies to his case and not the Ebonyi State University and Related Matters [Amendment] Law of 2011. This, as I have held earlier, is a misconception of the law.

 

  1. What happens if this Court finds that the cause of action arose on 15th September 2011? In JFS Investment Ltd v. Brawal Line Ltd. & 2 Ors. [2010] LPELR-1610 [SC] at 57-58, Rhodes-Vivour, JSC, set out what a trial court should do in the circumstance. The learned Justice of the Supreme Court held: “When the issue for determination is whether a claim is time barred the trial judge resolves the issue, first by examining the applicable limitation period provided in the enabling statute to see the period stipulated therein for the claim before him. Secondly, the judge determines when the cause of action arose by examining carefully the writ of summons and statement of claim. Thirdly, when the judge is satisfied as to when the Claimant/Plaintiff had a cause of action, he compares that date with the date the writ of summons was filed. If the time from when the cause of action arose to when the writ of summons was filed is beyond the period allowed in the enabling statute, then the action is statute barred. As the law stands now a court has no discretion in the matter [that is to extend limitation periods].” From the records, this suit was filed in the High Court of Ebonyi State on 22nd January 2013. This is a period of 16 months and 8 days, clearly above the three months period prescribed in section 50[2][a] of Ebonyi State University and Related Matters [Amendment] Law, 2011. Accordingly, I find and hold that this suit is statute barred.

 

  1. What should the court do if it comes to the conclusion that the action is statute barred? I am of the view that if the Court comes to the conclusion that the action is statute barred, the court is robbed of jurisdiction to entertain it no matter how meritorious the claims would be. The right of action is lost and the cause of action becomes “a lame duck.” In University of Jos v. Dr. Sani Muhammad Adam [2013] LPELR-20276 [CA] at page 11, per Sankey, JCA, had this to say: “Where a law, as in this instance, specifically circumscribes the period within which an action may be brought, a plaintiff must comply otherwise the action will be unenforceable. When an action is said to be statute barred the right to enforce the action is lost and the cause of action becomes sterile and barren….If the action is statute barred, it robs the court of power to entertain it no matter how meritorious.” See the case of Prof. Steve Torkuma Ugba & Ors. v. Gabriel Torwua Suswam & Ors. [2012] LPELR-9726 [SC] at page 50. Per Adekeye, JSC, held that “where the limitation of time is imposed in a statute, decree or edict, unless the said statute, decree or edict makes provision for extension of time, expansion or elongation, the courts cannot extend the time.” I have examined the Ebonyi State University and Related Matters [Amendment] Law, 2011 but did not find any provision authorizing me to extend time. The Claimant’s action may be meritorious but this court is robbed of the jurisdiction to entertain it. Sad, as it is, I do not have any discretion in this matter. I so find and hold.

 

  1. In arguing issue 2, learned Counsel to the Defendants submitted that where an action is incompetent, the proper order to make is to strike it out. Continuing, he argued that courts do not make cases for the parties, the same way they are not enjoined to grant reliefs not sought. Responding to this submission, learned Counsel to the Claimant submitted, and rightly so, that the decision of a court of competent jurisdiction is valid and final until set aside by an appellate court. I have considered the arguments of counsel to the parties. The ruling learned counsel to the Defendants is challenging was delivered by my learned brother, Honourable Justice A. Ibraham, on 2nd March 2015 directing parties to file their pleadings. It is my opinion that the ruling cannot be faulted on any ground. Order 1 rule 8[2] of the National Industrial Court Civil Procedure Rules 2017 empowers the court to give such directions as may be necessary to ensure conformity with the Rules. Rule 9[3] empowers the court to disregard any technical irregularity which may occasion a miscarriage of justice. See also section 14 of the National Industrial Court Act 2006. However, if I am wrong, I hold that this is a decision of a court of coordinate jurisdiction and I cannot set it aside. Doing so will amount to sitting on appeal over the decision of my learned brother. That, this court cannot do. At any rate if, as I have held earlier, this suit is statute barred and liable to be dismissed, every order or ruling made in the suit abates automatically. It is, therefore, superfluous to urge the court to set aside its ruling of 2nd March 2015.

 

  1. In view of the reasoning above, I find and hold as follows:

 

  1. This suit was filed in breach of the provisions of section 50[2][a] of Ebonyi State University and Related Matters [Amendment] Law, 2011 and consequently statute barred.

 

  1. The ruling of this court on 2nd March 2015 having not been appealed against is valid and I cannot set it aside.

 

  1. The Defendants’ motion on notice dated 7th June 2017 but filed on 12th October 2017 is competent and bears the Nigerian Bar Association approved seal.

 

  1. In all, the Defendants’ motion on notice dated 7th June 2017 but filed on 12th October 2017 succeeds in part. This suit is statute barred and it is hereby dismissed. Ruling is entered accordingly. I make no order as to costs.

 

 

 

………………………………………….

IKECHI GERALD NWENEKA

JUDGE

 

3/11/17

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