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National Industrial Court

Mr. Ibiwari Lovde Jack -VS- Niger-Delta Development Commission

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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

 

BEFORE HIS LORDSHIP HONOURABLE JUSTICE F. I. KOLA-OLALERE

 

Date: September 19, 2019  Suit No: NICN/YEN/82/2016

Between:

 

Mr.IbiwariLovde Jack                     ——————————————-Applicant

 

And

 

  1. Niger-Delta Development Commission (NDDC)
  2. Managing Director of NDDC ——————-Respondents

 

Representation:

  1. A. Bello for the Applicant;with him are:Mrs I. E.Mboho&Miss D.A.Onyenechere.

C.S Maduba, S.M Eueoigbe and C.P.Ezugwu for the Respondents.

 

COURT’S JUDGMENT

  1. On May 11, 2016 the Applicantcommenced this action against the Respondents by way originating motion pursuant to Order 22, Rules 1 (1) & 3(2) of the National Industrial Court Rules,2007; praying the court for:
  2. An Order of Mandamus commanding the Managing Director of Niger-Delta Development Commission [NDDC], or any person for the time being appointed to exercise the functions of that office, to fully comply with directive No. 2ii of the President, Federal Republic of Nigeria contained in letter with reference number SH/COS/01/A by carrying out proper placement for reinstated staff of NDDC by the Respondents according to the Applicant’s appropriate position without loss of seniority and privilege in relation to his contemporaries and making payment of all accrued arrears of allowances, benefits and entitlements from the period of disengagement till date, forthwith.
  3. Such further orders as the Honourable Court may deem fit to make in the circumstances.

 

The originating motion is supported by Statement and 32 paragraphed affidavit deposed to by the applicant;10 documents are attached with the affidavittogether with a written address.

  1. On June 22, 2016; counsel to the respondents filed a Notice of Preliminary Objection pursuant to Section 24 (2) of the NDDC (Establishment etc.) Act, Cap N86 LFN, 2004; Section 2a of the Public Officers’ (Protection) Act and Order 22 (3)(1) of the National Industrial Court Rules, 2007; praying for an order of the Court, dismissing and/or striking out this suit for want of jurisdiction.

 

The grounds of the notice of preliminary objection are:

  1. The Applicant/Respondent’s cause of action arose on September 13, 2010.
  2. By Section 2 (a) of the Public Officers’ Protection Act and section 24(2) of the NDDC Establishment Act; all action against the Respondents/Applicants are to be commenced within three (3) months of the act complained of.
  • The instant suit was instituted on 11/05/2016, a period of about six (6) years after the accrual of the Applicant/Respondent’s cause of action.
  1. The suit is statute barred.
  2. The instant suit was commenced in contravention of the mandatory provisions of Order 3(1) of the National Industrial Court Rules, 2007.
  3. The 2ndRespondent/Applicant herein is not a juristic person.
  • The Honourable Court has the requisite jurisdiction to grant this Application.

 

  1. In support of the Notice of Preliminary Objection is a 5 paragraphed affidavit deposed to by Nelson M.Izu, together with a written address wherein counsel formulated issue for determination as:

Whether the Honourable Court has the requisite jurisdiction to entertain this suit; in view of the fundamental defects thereto.

 

  1. Arguing this issue, counsel referred the Court to paragraph 3(a) of the Affidavit in support of this Application and submitted that the failure of the Applicant/Respondent to commence this suit vide a Complaint as in Form 1 of the NIC Rules, 2007 is fatal. He went on that the provisions of Order 22(3)(2) of the NIC Rules, 2007 does not, in any way derail as it provides for an application of this nature to be made by originating process; by Complaint, citing Order 3(1) of the Rules. Counsel submitted that the non-compliance renders this suit incompetent thus;it robs the Court of jurisdiction to entertain same.This is because, the law is that a court is competent and has the requisite jurisdiction to entertain a suit where the said case, inter alia, come or is initiated before the court by due process and that there is no feature which prevents the said court from exercising its jurisdiction, citing Madukolu v. Nkemdilim [1962] 1 All NLR 587 SC and Raymond Dangotev. Civil Service Commission of Plateau State [2001] 19 WRN 125 @ 147.

 

  1. Counsel went on that by Section 24(2)(a) of the Niger-Delta Development Commission Act, Cap N86 L.F.N. 2004, which is in pari material with section 2(a) of the Public Officers’ (Protection) Act; action against the defendants are to be instituted within three months next after the act, neglect or default complained of. He continued that application for judicial review by Order 22(3)(1) of the NIC Rules, 2007 is also to the effect that an application for judicial review shall be brought within three months of the date of the occurrence of the subject of the application.

 

  1. Counsel submitted that in the instant case, the wrong complained of is the failure of the Respondents/Applicants to fully comply with the directives of the President as per Exhibit E, dated September 13, 2010. To him, the implication of this is that the Applicant’s cause of action arose since September 13 2010. That this is illustrated in Exhibit G.He continued that, instead of going to court to enforce his right on Exhibit E, the applicant decided to report the respondents to the Public Complaint Commission. He further submitted that this suit is caught up with the limitation clause and that the resultant effect is that this has robbed the Court of jurisdiction to entertain the suit. Counsel referred to the following cases in support of his arguments:Mobil Producing (Nig.) Unltdv. Ayeni [2010] 4 NWLR (Pt. 1185) 586 @ 591 Ration 2; A.D. Lagos State v. Eko Hotels Ltd [2006] 18 NWLR 378 @ 591 Ratio 2; NNPC [1994] 5 NWLR (Pt. 347) 649 @ 659 Para A – H; Onadeko v. U.B.N Plc. [2005] 4 NWLR (Pt. 914) P. 460, paras E – F and Ajayiv. Adebiyi [2012] All FWLR (Pt. 634) P.21, paras. B-E; I.N.E.C v. Ogbadibo Local Govt. [2016] 3NWLR (Pt. 1498) 167 @ 191 – 192 para C – B andRaleigh Industries Ltd v.Nwaiwu[1994] 4 NWLR (Pt. 341) 76 @ 77 Para G.

 

  1. On the issue of the juristic personality of the 2nd Respondent/Applicant, counsel submitted that the Managing Director of Niger Delta Development Commission (NDDC) is not a juristic person who can sue or be sued as it is only natural persons or human beings and juristic persons that can sue and be sued, citing Lion of Africa Insurance Company Ltd. &Anor. v. Mr. &Mrs. E.A. Esan[1998] 8 NWLR (Pt. 614) page 19; Pfizer Inc. &Anor[2001] 10 NWLR (Pt. 722) 540 at 543 paragraph H – B, 555 – 556 SC.

 

  1. Responding to the Notice of Preliminary Objection, the applicant/respondent filed only a reply to the Notice of Preliminary Objection without any counter affidavit wherein counsel submitted that paragraphs 3[a], [c], [c], [e] and 4 [c], [e], [f] and [g] of the affidavit in support of the Preliminary Objection offend the provisions of section 115 [1] and [2] of the Evidence Act, 2011; citing the cases of Military Governor, Lagos State v. Ojukwu[2000] FWLR [Part 50] 1779 and Abiodun v. A.G. Federation[2007] 15 NWLR [Part 1057] 359.

 

  1. Counsel to the applicant/respondent proceeded to formulate issue for Court’s determination in the Preliminary Objectionthis way:

Whether the Honourable Court has the requisite jurisdiction to entertain this suit; in view of the fundamental defects thereto.

 

  1. Arguing this issue, counsel submitted that on theCompetence of initiatingthis action by Originating Motion, he canvassed that,contrary to the submissions of the learned Senior Counsel for the Respondents/applicants; the use of the expression “Shall” in Order 3 Rule 1 of the NIC Rules, 2007 is not mandatory and sacrosanct for all purposes in view of other provisions in the Rules; citing Atungwu v. Ochekwu[2013] 14 NWLR (Pt. 1375) 605 at 642 paragraphs A-D and Bakare v. Nigerian Railway Corporation[2007] 17 NWLR (Pt. 1064) 606 at 639 paragraph C-D, counsel maintained that originating summons as provided for by Order 3 Rule 5A[1]; Order 6 Rule 1 [1] recognizes “any originating process”. Counsel went on that Order 15 and Order 26 Rule 13 of the NIC Rules, 2007 allow the Court to adopt such procedure as will in its view do substantial justice to the parties, where no specific procedure is made by the rules. To counsel, the commencement of this case by originating motion is in accordance with the provisions of Order 22 Rule 3 [2] of the NIC Rules, 2007 and that the suit is absolutely competent. Since no specific mode of commencement of action is enshrined in Order 22 Rule 3 (2) of the NIC Rules, 2007.

 

Counsel went on that relationship of the Applicant with the Respondents is not a mere master / servant one but one with statutory flavour citing sections 12 [3] [a], 13 [1] and 28[5] of Niger Delta Development Commission [Establishment, etc.] Act, Chapter N86, Laws of the Federal of Nigeria, 2004[NDDC Act]

 

  1. On whether the suit is statute barredby virtue of the provisions of Order 22 Rule 3 [1] of the National Industrial Court Rules, 2007; section 2[a] of the Public Officers Protection Act, 2004 and section 24 of the Niger Delta Development Commission Act, 2004;counsel submitted that the applicable enactments to the question of limitation of action in this suit are the Public Officers’ Protection Act and the Niger Delta Development Commission Act. He went on that the provision of Order 22 Rule 3 [1] of the NIC Rules, 2007 is not applicable.

 

To counsel,the application of section 2[a] of the Public Officers’ Protection Act and section 24 [2] [b] of the NDDC Act is subjected to the exception of the continuation of damage or injury, citing Aremo II v. Adekanye[2004] 13 NWLR (Pt. 891) 572 at 593 paragraph H to 594 paragraph B andINEC v.Ogadibo Local Government[2016] 3 NWLR (Pt. 1498) 167 at page 198 paragraph C. Counsel argued that by paragraph 24 [d] of the affidavit in support of originating motion, the injury or damage suffered by the Applicant is continuing in that each time he is paid pension calculated based on salary grade level 15 instead of salary grade level 17, damage or injury is caused to the Applicant and a fresh cause of action arises in consonance with the decisions of the Supreme Court in Aremo II v. Adekanye[supra] at 593 paragraph H to 594 paragraph B;INEC vs. Ogbadibo Local Government[supra] at 191 paragraph G andAttorney-General of Rivers State vs. Attorney-General of Bayelsa State[2013] 3 NWLR (Pt. 1340) 123 at paragraph G to 150.

 

  1. On the Juristic personality of the 2nd Respondent,the applicant’s counsel submitted that the 2nd Respondent was created by section 12 [1], NDDC Act, 2004 and that it is ascribed specific public functions enshrined in sections 12 [1] [b] and 12 [2] [c] [i] and [ii] of the Act. He went onthat Section 24 [2] vividly contemplates suits against the 2nd Respondent regarding anything done by that functionary/office of the 1st Respondent pursuant to NDDC Act. To counsel, this suit relates to the performance of the public duty imposed on the respondents by section 23 of NDDC Act; and so, the suit is competent against the 2nd Respondent sequel to the provisions of section 12 and 24 of NDDC Act, that bestows statutory functions on the 2nd Counsel rely on Akas vs. The Manager and Receiver of the Estate of Anwadike[2000] 8 NWLR (Pt. 715) 436 at 444 paragraphs B-D and Anwadike vs. Attorney-general of Lagos State[2010] 15 NWLR (Pt. 1216) 207 at 240 paragraphs D-E. He urged the Court to hold that the 2nd Respondent was rightly sued in this case.

 

  1. Counsel to the respondent/ applicant filed a Reply on Point of Law in which he noted that the applicant/respondent filed a reply to their Preliminary Objection on July 4, 2016 without a Counter Affidavit. He submitted that the applicant is deemed as having admitted the facts contained their affidavit in support of their Preliminary Objection, citing Bossa v. Julius Berger [2009] All FWLR (Pt. 290) @1507 Ratio 8

 

Responding to paragraphs 1.3 – 1.7 of the Reply;urging the Court to strike out certain paragraphs of the Affidavit in Support of the Notice of Preliminary Objection, counsel submitted that the deponent therein clearly stated the source of his information.

  1. In response to paragraph 3.1h of the applicant/respondent, counsel submitted that recourse cannot be had to the High Court Rules because by virtue of Order 3(1) of the NIC Rules, 2007 same is provided for.Therefore, the contention of the applicant’s Counsel that no specific mode of commencement of action is enshrined in Order 22 Rule (2) of this Court is misconceived. In response to paragraph 3.3 of the applicant/respondent’s reply and its attendant sub paragraphs particularly paragraph 3.3e- 3.3f; counsel referred the Court to INEC v. Ogbadibo Local Government (supra). This is to the effect tat the facts deposed in paragraph 24 of the Affidavit in Support of the originating motion and the argument contained in paragraph 3.3f – 3.3j of the originating motion are merely evidence of the continuing effect of the injury or damage and not the injury/damage itself.

 

  1. On the issue of juristic personally of the 2nd Respondent/Applicant, counsel submitted that the provisions of the Niger Delta Development Commission (NDDC) Act, 2004 in paragraph 3.4b of the Applicant’s Reply to Preliminary Objection, do not in any way or at all confer legal personality on the 2nd Respondent and urged the Court to so hold.

 

  1. On the substantive matter in the originating motion!

In the applicant’s address in support of the origination motion,his counsel framed the following issues for this Court’s determination:

  1. Whether Originating Motion is an appropriate means of commencement of an application for Mandamus in the National Industrial Court;
  2. Whether this application is competent in view of the provisions of Order 22 Rule 3 (1) of the National Industrial Court Rules, 2007 [as amended]; and
  • Whether the Applicant has satisfied the conditions for the grant of the Order of Mandamus.

 

  1. Arguing the first issue, counsel submitted it is settled law that where a statute or rule of court prescribes a particular method of the performance of a duty, that method and no other must be complied with, citing Obasanya v. Babafemi[2002] FWLR [Pt. 15] 2585 at 2606 paragraph D; Co-operative & Commerce Bank Nigeria Plc. v. A. G. Enugu State[1992] 7 NWLR [Pt. 261] 528 and Okolo v. Anyakwo[1999] 3 NWLR [Pt. 594] 289. Counsel submitted that by the nature of the instant case, an application could only be made by originating summons or by originating motion, citing Fawehinmi v. I. G. P.[2000] FWLR [Pt. 12] 2015 at 2017]. Therefore, he urged the court to hold that this application was properly commenced by Originating Motion.

Arguing issue two of whether this application is competent in view of the provisions of Order 22 Rule 3 (1) NIC Rules, 2007; counsel submitted that the word “shall” as employed in this Rule does not always mean “must” and that it is not a matter of compulsion always. He went on that as it could also be interpreted as “May”; where the context admits, citing Okonkwo v. U B A.[2011] 7 SCNJ 161 at 169 and Ifezue v. Mbadugha[1984] 1 SCNJ 427.

 

  1. Counsel went on with his submission that the Applicant, who is continuing to suffer damage and injury as a result of the recalcitrance of the Respondents is not caught by the limitation enshrined in Order 22 Rule 3 [1] of the NIC Rules, 2007. To counsel, the applicant has demonstrated the continuation of the injury as he is being paid pension at a rate that is below the appropriate rate due to him and this injury will continue for the lifetime of the applicant. He maintained that the procedural law embedded in Order 22 Rule 3 [1] of the NIC Rules cannot override the statutory provisions of the NDDC Act. He urged the court to hold that this application is competent as it relates to a continuing damage and injury, which is not vitiated by any limitation enactment.

 

  1. Arguing issue three of whether the Applicant has satisfied the conditions for the grant of the Order of Mandamus, counsel referred the court to De Smith’s Judicial Review of Administrative Action, 4th Edition stated at its page 540; the case ofWest African Post-Graduate Medical College v. Okojie[2004] 2 NWLR (Pt. 857) 232 at 244 paragraph H to 245 paragraph A; where it was held that Mandamuswill be granted if the duty is in the nature of public duty and specially affects the rights of an individual, provided that there is no more appropriate remedy. Counsel further refer the court to the Ruling of Honourable Justice KateAbiri(now Chief Judge of Bayelsa) delivered on December 17, 2004 in the unreported Suit No: YHC/15/1999 between Formosa Limited v. The Permanent Secretary, Ministry of Works & Transport, Bayelsa State of Nigeria and The Attorney-General of Bayelsa State of Nigeria. To counsel, the applicant has established a legal duty and legal interest and that he has demanded for same.He again contended that there is no other legal remedy through which he could claim his legal right on this case; citing of section 26 (1)of the NDDC Act.

 

  1. Responding to the written address in support of the originating motion, counsel to the respondents filed a 16 paragraphed counter-affidavit deposed to by one FubaraAllision together with a written address. In the said address, counsel formulated the following issues for the determination of the court:
  2. Whether the instant suit is competent having regards to the provisions Order 3 (1) and Order 22(3) (1) of the National Industrial Court Rules 2007?
  3. Whether having regards to the facts and circumstances the instant suit can be commenced vide originating summons;
  • Whether the Honourable Court has the requisite jurisdiction to entertain this suit?
  1. Whether in view of the facts and circumstances of this case the Applicant is entitled to have an order of mandamus issued on the 2nd Respondent at their instance?

 

  1. Arguing issue one, counsel submitted that it is the National Industrial Court Rules, 2007 that governs all applications and/or suits filed in the Industrial Court and where a special procedure is prescribed for the enforcement of a particular right or remedy, noncompliance with the said procedure is fatal. That it is trite position of the law that the rules of court must be obeyed, citing Order 3(1) of the said rule; Raymond Dangotev. Civil Service Commission of Plateau State (2001) 19 WRN 125 @ 147;Owners of MV. Arabella v. NAIC [2008] 11 NWLR (Pt. 1097) 182 @ 205 paragraph G-H. Counsel went on that by Order 22(3)(1) an application for judicial review shall be brought within three months of the date of occurrence of the subject of the application. That it is to be noted that Exhibit E is dated September 13, 2010 contained the directive sought to be enforced while the Applicant, by paragraph 10 of the Affidavit in support were admittedly reinstated by a letter dated 3rd October, 2012 (Exhibit F) pursuant to which the Applicants resumed duties, albeit, on the same salary grade level as they were as at the time of their compulsory retirement in 2001.

 

  1. Counsel submitted that the occurrence of the subject matter of this suit is on 3rd October, 2012 when the Applicants were reinstated into the employment of the 1st Respondent on the same salary grade level he was when he was employed by the 1st respondent in 1993; while the instant suit was commenced on 11/05/2016 outside the 3 months’ period prescribed by Order 22(3)(1) of the Rules of this Honourable Court. He continued that the Applicants’ grievance started from 3rd October, 2012 when upon being recalled, pursuant to the Presidential directive in Exhibit E, he was placed on a salary grade level which, in their opinion, is lower than what he was entitled to. He further submitted that the case of the applicant is not one of a continuous damages or injury, citing INEC v. Ogbadibo Local Government (supra) andYare v. NSWIIC [2013] 12 NWLR (Pt. 1367) 173 @ 195. Counsel canvassed that time begins to run where there is in existence, a person who can sue and another who can be sued and when all facts have happened, which are material to be proved to entitle the Plaintiff to succeed.

 

  1. Arguing issue two of whether the applicant can commence the instant suit vide originating motion, counsel submitted that originating motion is similar to the originating summons procedure, which is used for non-contentious matters which are capable of being resolved by affidavit evidence without the need to have the deponents cross examined on the averments contained therein. That the procedure is not to be resorted to where the facts are contentious; citing PDP v. Abubakar [2007] 3 NWLR (Pt. 1022) 515. Counsel submitted that by the affidavit evidence before the court, there is need for oral evidence on the part of the applicant who remain on same level from the time of his respective appoint till his compulsory retirement as to how he calculated and computed his promotions without evidence of their participation in any promotion/interview; more so that notional promotion has been long abolished in the civil/public service. He submitted in addition that the material facts before the court are in serious dispute and urged the Court to so hold.

 

  1. Arguing issue three of whether this Court has the requisite jurisdiction to entertain this suit, counsel submitted that the dispute and questions arising from the President’s directive of No. 2ii; not being one of the item listed in section 7(c) of the National Industrial Court Act, 2006 are not within the jurisdiction of the Court, citingMadukolu v. Nkemdilim [1962] 1 All NLR 587 at 959 and Hamzat&Anor v. Sanni& 2 Ors [2015] 1-2 SC 1 at 25 lines 34-28.

 

  1. Arguing issue four of whether the Applicant is entitled to an order of mandamus against the 2nd Respondent, counsel submitted that the Exhibit E is self-explanatory and as such, the words contained therein ought to be given their ordinary and/or literary interpretation, citing Mobil Oil (Nig.) Ltd v. FBIR [1977] 3 SC 97 and NNPC v. Famafa Oil Ltd. [2012] 17 NWLR (Pt. 1328) 148. He continued that the directive of the President to wit: the reinstatement into NDDC of all the 23 disengaged staff in question and the payment of all allowances and entitlement for the period they were disengaged. He further submitted that in total compliance with the directive, the affected staff were reinstated vide their respective letters like Exhibits F (of the applicant) and their accrued allowances and entitlements paid over to them. Counsel’s position is that the letter of Public Complaint Commission vide Exhibit G is of no moment as extraneous matters cannot be read into the written directive of the President of the FRN wordings of the letter are clear and unambiguous, citing Ezeadukwa v. Maduka (Supra). Counsel went on the Public Complaint Commission has no powers to interpret documents, much less Presidential directives such as Exhibit E; referring to section 5 of the PublicComplaint Commission Act, Cap P37 LFN 2004 and submit that the powers, duties and functions of the Commission are therein listed and that interpretation of documents is not included the list.

 

  1. Counsel further referred the court to Exhibit NDDC 2 wherein the Respondents, for administrative purposes, sought for clarifications from the Presidency vide the office of the Head of Service (who is the officer in-charge of Federal Civil Service) as to the placement of the reinstated staff via-a-vis Exhibit E and the same said Presidency clearly and unambiguously stated that nominal promotions had been abolished hence all the reinstated staff are to be placed on their last salary grade level but given the opportunity to regain whatever seniority they may have lost especially in view of the fact that promotions in the civil service are not as of right but based on merit and performance. Counsel again referred the court to Exhibits NDDC 4 – 7 wherein the Applicants were at different times invited to participate in subsequent promotional exercises all of which the Applicant and his colleagues declined, choosing rather to wait until after their respective retirements to challenge their lack of promotion in Court vide this suit.

 

  1. Counsel maintained that contrary to the submission of the applicant’s counsel that the Respondents have public duty to comply with the directives of the President as contained in Exhibit E by section 23 of the NDDC Act; he submitted that whatever interpretation is hitherto given to Exhibit E by any fora is superseded Exhibit NDDC 3, which also emanated from the Presidency, who gave the modalities and/or guidelines for the implementation of Exhibit E. To counsel, there is nothing whatsoever in the said section 23 of the NDDC Act, which imposes a duty on the Respondents to accelerate the promotion of the applicant and the other affected staff automatically and without recourse to laid down rules and procedures.

 

  1. Counsel to the applicant filed reply on point of law to the Respondents’ address in opposition to the originating motion. In the said reply, he went on to reargue his case.

 

  1. COURT’S DECISIONS:

I have carefully gone through the facts of this case and the arguments of counsel to the parties for and against the preliminary objection including the arguments for and against the Originating motion. From all of these, I am of the firm view that the Court need to resolve these questions:

  1. In respect of the Preliminary Objection;
  2. Whether or not this case was properly instituted.
  3. Whether or not the 2nd Respondent/Applicant is a juristic person.
  • Whether or not this case is statute barred.
  1. On the Substantive Case

Whether or not the applicant is entitled to have an Order of mandamus issued against the respondents on his behalf as prayed for.

 

  1. Before going to the merit of this Preliminary Objection, let us fix some introductory problems,which came up in the course of proceedings on this case.Firstly, counsel to the applicant/respondent arguedin paragraphs 1.3 to 1.5 of his reply to this preliminary objection at page 113 to page 114 of the record thatparagraphs 3(a), (c), (d), (e) and 4 (c), (e)), (f) and (g) of the affidavit in support of the Preliminary Objection violate the provisions of section 115 (1) and (2) of the Evidence Act, 2011; therefore, he urged the Court to strike out those paragraphs. For ease of reference, the paragraphs in question state thus:
  2. That I was informed by C. E. Eze (Mrs.) of Counsel to the Respondents/Applicants on the 13thday of June, 2016 at about 11: 58am in Chambers and I verily believe her as follows:
  3. That by Order 3(1) of the Rules of this Honourable Court, any action for determination by this court shall be commenced by way of a complaint as in FORM 1 in the said Rules.
  4. That the entire suit as presently constituted was not commenced by due process of law and is incompetent.
  5. That promotion in an establishment is given based on performance and input of an employee.
  6. That the Applicant/Respondent’s entitlement to promotion is a question of facts of which pleadings need to be settled.

 

  1. That I was further informed by C. E.Eze (Mrs.) on the day and time above mentioned and I verily believe her as follows:
  2. From the exhibits attached the Applicant/Respondent’s cause of action arose on or before the 13thday of December 2013 when the Respondents/Applicants purportedly failed to comply with the said directive of the President.
  3. That the instant suit which was instituted on 11/05/2016 a period of about eighty (80) months thereafter is statute barred.
  4. that the 2ndRespondent/Applicant is not a juristic person.
  5. That this Honourable Court lacks the jurisdiction to entertain this suit as it was not commenced by due process of law and the claims therein are statute barred.

 

Section 115(1) of the Evidence Act, 2011 provides that‘Every affidavit used in the court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true’. And section 115(2) of the Evidence Act, 2011 provides that‘an affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion’.

 

  1. Inmy considered view, these paragraphs only relay what the deponent was toldby a disclosedinformant, which he believed.In other words, the deponent deposed to statement of facts and circumstancesfrom his own personal knowledge and from the information he got from a named person, which he believed to be true in line with the provision of section 115 of the Evident Act, 2011. Therefore, I hold that the paragraphs in question are not offensive to the provision of section 115 of the Evidence Act, 2011.

 

  1. Secondly, the affidavit in support of this Originating motion is at page 8 to page 14 of the record. The Commissioner for Oath did not sign neither did he stamp it; see in particular, page 14 of the record. In addition, all the marked Exhibits frontloaded with other initiating processes were not stamped neither were they signed by the Commissioner for Oath as the officer who marked those Exhibits. See also; pages 16, 18, 21,26,28, 30, 33,38,40,42, 48, 52, 69 &71 of the record. On perusing the initiating processes and the Court’s assessments on them, I noticed that the applicant paid fees for Oaths and for marking of Exhibits; it means that this error is from the Court’s registry. In the interest of justice;therefore, I give the applicant the benefit of doubt on the said error. But, I advise the applicant’s counsel to always ensure that his processes are properly endorsed with the required signature and stamp in future before commencing his trial.

 

  1. Thirdly, in paragraph 3.2b of the applicant’s reply address to the Preliminary Objection, his counsel contended that “on June 29, 2007 the Federal High Court set aside the retirement letter and held that Applicant’s appointment with the 1st Respondent was still valid and subsisting. See Exhibit “C”. The Respondents failed to obey the Judgment of the Federal High Court”; see page 117 of the record. Exhibit “C” in question is at page 19 & 20 of the record. It is an Order from the judgment delivered on June 29, 2007 byFaji J of the Federal High Court in an unreported suit between Samuel Otamiri v. Niger Delta Development Commission. The applicant in the instant case was not a party in that suit;therefore, it is wrong and in fact misleading for the applicant’s counsel to submit as he did that the Federal High Court set aside the retirement letter and held that Applicant’s appointment with the 1st Respondent was still valid and subsisting. I advise the applicant’s counsel to avoid such practice in future in this court please.

 

  1. Fourthly, in paragraph 2.4 of the applicant’s reply on points of law to the respondents’ opposition to the originating motion; his counsel referred to and relied on Order 48 Rule 5 of the NICN (Civil Procedure) Rules, 2017. These Rules came into effect in 2017 after the applicant had already filed this action in May 2016. For this reason, I hold that the provisions of the NICN (Civil Procedure) Rules, 2017 are not applicable to this case, as those Rules were not yet in operation when this instant suit was filed.As a result, I find that only the NIC Rules, 2007 are applicable to this action.

 

  1. Fifthly, please note that by the agreement of counsel to the parties, this Court consolidated this case with it sister cases with suit Nos: NICN/YEN/83/2016 & NICN/YEN/84/2016 on July 13, 2016 and this information was confirmed to this Court on May 13, 2019.See the Court’s proceedings on this case at pages 1, 6 & 7 of the proceedings’ file. Therefore, the judgment in this case will abide in the other two sister cases.

 

  1. Whether this case was properly instituted by Originating Motion.

In paragraphs 3.01 – 3.03 of the written address in support of the Notice of Preliminary Objection on whether the applicant can commence this action by way of Originating motion, counsel to the respondents/applicants answered this in the negative. His position is that; failure of the Applicant/Respondent to commence this suit vide a Complaint as provided in Order 3 Rule 1 and in Form 1 of the NIC Rules, 2007 is fatal to his case. However, in paragraphs 3.1a to 3.1h of the counter arguments of the applicant/respondent’s reply to the preliminary objection,his counselargued that he filed this action for an order of Mandamus in compliance with the provision of Order 22 Rule 3(2) of the NIC Rules, 2007; which allows this application to be made by Originating process.

 

  1. Order 1 Rule 3 of the NIC Rules, 2007 define the terms “originating process” to mean “a complaint or any other process by which a suit is commenced”. In my considered view, the provision of Order 1 Rule 3 of the NIC Rules, 2007 incorporates other valid modes provided for by law for the commencement of specific suits before a court of law. With this definition of originating process in the NIC Rules, I hold that the originating process stated in Order 22 Rule 3(2) of the NIC Rules, 2007by which the applicant can seek for order of mandamus etc. from the Court is not limitedto only complaint as provided in Order 3Rule 1 of the NIC Rules, 2007 but that it is inclusive of originating motion in respect of application for judicial review and in respect of application for the enforcement of fundamental rights. In the circumstance, I find and hold that the cumulative effect of the provisions of Order 15 and Order 26 Rule 13 of the NIC Rules, 2007;is that the applicant/respondent is allowed to file this action by Originating Motion in order to do substantial justice to the matter. Consequently, I hold that this case for an order of mandamus was properly instituted by Originating Motion.

 

  1. Whether or not the 2nd Respondent/Applicant is a juristic person.

Counsel to the respondents/applicants contended that the 2ndRespondent,the Managing Director of NDDC is not a juristic person but in paragraphs 3.4 and 3.4c of the applicant/respondent’s reply to the preliminary objection; his counsel argued that becausethe 2nd Respondent was created by section 12 (1), NDDC Act, 2004 and ascribed specific public functions in sections 12 (1)(b) and 12 (2) (c) (i) and (ii) of the NDDC Act; the 2nd respondent can be sued and that he was properly sued in this case.

 

Section 1 (1) and (2) of the Niger Delta Development Commission Act provides that: “1(1) there is hereby established a body ‘to be known as Niger-DeltaDevelopment Commission (in this Act referred to as ‘the Commission’).” (2) The Commission (a) shall be a body corporate with perpetual succession’and a common seal;(b) may sue and be sued in its corporate name”. In essence therefore, it is only the 1st respondent (the Niger Delta Development Commission) that is a body corporate with perpetual succession and common seal to sue and be sued in its corporate name and I so hold.

 

  1. In addition, I find and hold that the 2nd respondent or the office of the 2nd respondent was not established as a body corporate with perpetual succession and common seal, which may sue and be sued in its corporate name.The law is settled that, a non-juristic person cannot sue or be sued.And so, where an action is instituted against a non-juristic person, the action becomes incompetent and the court lacks the jurisdiction to entertain the matter. Suing a non-juristic person renders whatever proceedings conducted thereon a nullity. See the cases of Maersk Line v. Addide Invest. Ltd. Anor [2002] LPELR-1811(SC): [2002] 11 NWLR (Pt.778) 317: [2002] 4 S.C (Pt. II) 157 andLASTMA v. Esezobo [2017] 5 NWLR (Pt. 1559) CA 350 at pp. 335-336 paras F-A. Consequently, I hold that the 2nd defendant in this suit, the Managing Director of NDDC is not a juristicperson and its name is accordingly struck out as a respondent in this case.

 

  1. Whether this case is statute barred.

It is the contention of the respondents/applicants’ counsel that this case is statute barred because it was filed outside the time frame of three months allowed by the Rule of this Court, the provisions of section 24 of the NDDC Act and section 2(a) of the Public Officers’ protection Act. On the other hand, the applicant/respondent’s counsel argued that this case is not statute barred because the applicant’s injury or damage is continuing every month when the applicant receives his pension; he was paid less because he was not placed on the proper grade level when the respondents reinstated him. In the circumstance, the question of whether or not this matter is statute barred will be considered in line with the provisions of section 2(a) of the Public Officers’ Protection Act, section 24 of the NDDC Act and the provision of Order 22 Rule 3(1) of the NIC Rules, 2007.

In order to determine that an action is statute – barred, the Court isto determine the following issues as it was held in the case of Bajowa v. FRN&Ors [2016] LPELR-40229(CA) Per Ekanem, JCA at page 13 Paragraphs C-F:

  1. The date the cause of action accrued;
  2. The date of the commencement of the suit as indicated on the writ of summons, and
  • The time prescribed by the relevant law to bring the action.

Where the period between the date of the accrual of the cause of action and the date of the commencement of the suit is beyond the time prescribed by the relevant law, then the suit is statute- barred; seeEgbev. Adefarasin [1987] 1 LWLR (47) 1.

  1. On Whether this suit is barred by the provision of section 2(a) of the POPA

Section 2(a) of the Public Officers’ Protection Act provides thus:

Where any action, prosecution or proceedings commenced against any person for any act done in pursuance or execution or intended execution of any law or any public duty or authority neglect or default in the execution of any such law, duty or authority, the following shall have effect:

(a). The action, prosecution or proceedings shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof.

Section 24(2) of the Niger-Delta Development Commission Act Cap N86 LFN, 2004 provides:

Notwithstanding anything contained in any law or enactment, no suit shall lie against any member of the Board, the Managing Director or any other officer or employee of the Commission for any act done in pursuance or execution of this Act or any other law or enactment or of any public duty or authority or in respect of any alleged neglect or default in the execution of this Act or such law or enactment, duty or authority shall lie or be instituted in any Court unless:

(a).     It is commenced within three months next after the act, neglect or default complained of

(b).In the case of a continuation of damage or injury,within six monthsnext after the ceasing thereof.

 

The act, neglect or default complained of by the applicant/respondent in this case is that the respondents/applicants did not place him on the appropriate salary grade level with his contemporaries when he was re-instated, in compliance with the directive of the President of the FRN via a letterwith Reference No: NDDC/HO/HAHR/3027 of March 6, 2013. The applicant’s counsel argued that the instant case falls within the exceptions to the provisions of section 2(a) of the Public Officers’ Protection Act and the section 24(2) (b) of the Niger Delta Development Commission Act. To counsel,the applicant’s injury or damage is continuing. In order words, the act, neglect or default of the respondents/applicants being complained of by the applicant is not only a one off thing; but that the said act, neglect or default is done repeatedly even up till date. See paragraphs 8 & 9 of the affidavit in support of the Originating Motion and the counsel’s arguments in paragraphs 3.3d to 3.3g of his address at page 113 of the record.

  1. The law is that a continuing damage or injury is the repetition of the act, neglect or default being complained of, which also causes recurrence of damage. It is not merely a continuation or repetition of the injurious effects of a legal injury (act, neglect or default being complained of). See the case of Omin&Ors v. A.G. Cross River State &Ors [2013] LPELR-21388(CA) and Olaosebikan v. Williams [1996] 5 N.W.L.R. (Pt.449) 437 at 456. In AkwaIbom State University v. Ikpe [2016] 5 NWLR (Pt. 1504) CA 171 at 165, paragraphs B-C, the Court held that ‘the law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of damage, a fresh cause of action arises from time to time, as often as damage is caused’.

 

  1. Can we then say that the injury being complained of in the instant case is continuous? The applicant/respondent’s counsel answered this question in the affirmative, contending that because the respondents/applicants did not place the applicant/respondent on the right grade level when he was re-instated, it has affected the pension that accrues to him every month. In essence; the act, neglect or default being complained of against the respondents/applicants here is their failure to carry out proper placement of the reinstated staff of NDDC, particularly the Applicant to his appropriate position, without loss of seniority and privilege in relation to his contemporaries. Therespondents/applicants reinstated the applicant to the post of Assistant Director, on Grade Level 15 with effect from July 19, 2001 via their letter of March 6, 2013; with Reference No: NDDC/HO/HAHR/3037. See page 29 of the record for the copy of this letter, which they marked as Exhibit ‘F’.

 

Apart from this one act of improper placement when re-instated, the applicant did not prove any other act, neglect or default committed by the respondents/applicants in this regard and I so find. This means that the respondents/applicants’ alleged failure to carry out proper placement of the Applicant/respondent to hisalleged appropriate position without loss of seniority and privilege in relation to his contemporaries with the NDDC is a one off act, neglect or default. In that regards, the consequence of the allegedsingle wrongful placement of the applicant/respondent on Salary Grade Level15 on his pension after his retirement when he was re-instated, is merely a continuation or repetition of the injurious effects of that single legal injury of the alleged wrongful placement and I so hold;see the case of Omin&Ors v. A.G. Cross River State &Ors(supra).Consequently, I hold that theact, neglect or defaultof the respondents/applicantsin this case is justone legal injury/damage. I further hold that there is no repetition of this legal injury and so; the damage being caused to the applicant/respondent is not continuous.I again hold that this cannotexemptthe applicant/respondentfrom the effect of the provisions of section 2(a) of POPA and section 24(2) (b) of the NDDC Act.

 

  1. However, in the recent decision of the Supreme Court in the case of National Revenue Mobilization Allocation and Fiscal Commission &Ors v. Ajibola Johnson &Ors [2019] 2 NWLR (Pt. 1675) page 247 at pages 269 – 270 paragraphs E– C per Ariwoola JSC in his lead judgment held thus:

In this matter, while the appellants maintain that this action is caught by section     2(a) of the Public Officers’ Protection Act, the respondents argued that the act is inapplicable. — I have no slightest difficulty in holding that the appellants are not covered by the provision of the Public Officers’ Protection Act as to render the respondents’ action statute barred. In sum, I hold that the learned Justices of the Court below are right in holding that the appellants do not enjoy the umbrella of Public Officers’ Protection Law in the contract of service involving the respondents.

 

With this latest decision of the Apex Court on the provision of section 2(a) of the Public Officers’ Protection Act, this Court is under obligation to abide by it.

Nevertheless, section 24 (1) of the NDDC Act provides that:

Subject to the provisions of this Act, the provisions of the PublicOfficers’ Protection Act shall apply in relation to any suit instituted against any

officer or employee of the Commission.

 

The meaning of the provision ofsection 24 (1) of the NDDC Act is that, apart from the general application of section 2(a) of the Public Officers’ Protection Act to cases filed against Public Officers in Courts; section 24 (1) of the NDDC Act has further incorporated the provisions of section 2(a) of the Public Officers’ Protection Act into the specific applicable law in the Commission (NDDC). It is trite that Statute Law takes precedence over Case Law; therefore, I hold that the provisions of section 2(a) of the Public Officers’ Protection Act applies to the instant case by virtue of the provision of section 24 (1) of the NDDC Act. I further hold that the respondents/applicants in the instant case enjoy the protection of the provision of section 2(a) of the POPA on the contract of service in question.

 

  1. ii.Whether This Case is Statute Barred Under Section 24 of the NDDC Act

The provision of Section 24(2) (b) of the NDDC Act is also similar to the provision of section 2(a)of the Public Officers’ Protection Act as shown above. TheNDDC Act governs the Establishment, the structures and functions of the Niger Delta Development Commission. In the circumstance, the parties in this case are bound by the provisions of this Act. In the case of Mobilization Allocation and Fiscal Commission &Ors v. Ajibola Johnson &Ors (supra) at page 270 paragraphs D – E; the Supreme Court held that ‘where a statute provides for the institution of an action within a prescribed period, proceedings shall not be commenced after the time prescribed by such statute. Any action that is brought after the prescribed period is said to be statute barred’.

 

I have held above that the Legal Injury complained of by the applicant/respondent is a one off injury or damage and that the legal injury is not continuous. Therefore, I find and hold that the exceptionin section 24(2) (b) of the NDDC Act is not applicable to the applicant/respondent in this case. In addition, section 24(2) (a) of the NDDC Act provides that any alleged act, neglect or default in the execution of this Act or such law or enactment, duty or authority shall not lie or be instituted in any Court unless: (a). It is commenced within three months next after the act, neglect or default complained of.

 

  1. The alleged failure to carry out proper placement of the Applicant/respondent to his supposed appropriate position without loss of seniority and privilege in relation to his contemporaries with NDDC was done on March 6, 2013; see page 29 of the record for the letter of the said placement/reinstatement complained of, and this action was filed in Court on May 11, 2016; a period of three years, two months and five days after the accrual of the cause of action (the wrongful placement when the applicant/respondent was re-instated). In the circumstance, I find and hold that the applicant/respondent filed this action outside the three months allowed by the NDDC Act. I further hold that this suit is barred by the provision of section 24(2) (a) of the NDDC Act; and so, this Court lacks jurisdiction to adjudicate on it.

 

  1. Under Order 22 Rule 3(1) of the NIC Rules, 2007

As shown above in this judgment, this suit was filed pursuant to Order 22 Rules 1(1) & 3(2) of the NIC Rules, 2007. But Order 22 Rule 3 (1) of the said Rules provides:

An application for judicial review is to be brought within three (3) months of the date of occurrence of the subject of the application and no leave of the court shall be required for that purpose.

 

Order 22 Rule 3 (2) of the NIC Rules, 2007 provides that:

The application shall be made by Originating Process.

 

  1. The applicant’s argument here is that his injury is continuing and that it is not statute barred. Thus, his counsel canvassed that because this Rule has no exception clause of continuance of damage and that it is an ordinary Rule of procedure, which cannot supersede the provision of statute like section 24 of the NDDC Act, he urged the Court to discountencethis Rule. See paragraphs 3b to 3.3d of his address at pages 121 of the record and his reply to the preliminary objection. With these arguments of the applicant/respondent’s counsel before the Court, he is approbating and reprobating at the same time. This is because; in one breath the applicant is relying on Order 22 Rules 1(1) & 3(2) of the NIC Rule, 2007 as his bases for filing this Originating Motion, and in another breath, he is urging the Court to disregard the provision of Order 22 Rule 3(1) of the NIC Rules, 2007 as it is a mere rule of procedure that is inferior to the provisions of Section 24 of the NDDC Act and Section 2(a) of the POPA. The applicantis havingdouble positionsand he is speaking from both sides of his mouth.This amounts to approbating and reprobating at the same time; which is not allowed in Law. Seethe case of Alims Nigeria Limited v. United Bank for Africa [2013]LOR (18/1/2013) SCandOladapo v. Bank of the North Ltd [2000] LPELR-5284(CA): (2001) 1 NWLR (Pt.694)255.For this reason, I hold that the applicant/respondent will not be allowed to approbate and reprobate as he did in this instance. Hence,his said argument that Order 22 Rule 3 (1) of the NIC Rules, 2007is inferior to the provisions of section 24 of the NDDC Act section 2(a) of the Public Officers’ Protection Act ishereby discountenanced.

 

  1. The averments in paragraph 3(d) of the statement in support of the Originating Motion and paragraph 9 of the affidavit in support of the motion, which isthe subject of this applicationis the directive No. 2(ii) of the President, FRN inExhibit E. This directive ii) states: ‘the payment of all allowances and entitlements for the period they were disengaged’.See page 27 of the record for a full copy of the directive of the President of the FRN.On March 6, 2013 the respondents/applicants re-instated the applicant asdirected, see paragraph 10 of the affidavit in support of this application. This case was initiated by way of Originating Motionin this Courton May 10, 2016.

 

  1. It is trite that where a statute or rules of court prescribes a condition precedent to the assumption of jurisdiction, that condition precedent must be fulfilled before the Court will have jurisdiction over the suit. Therefore, a case will be said to be properly before the court only when instituted by due process and upon the fulfillment of any condition precedent to the exercise of the jurisdiction; see Yar’Adua v. Yandoma [2015] 4 NWLR (Pt. 1448) 197 at 197 para A-B per Mary Peter-Odili JSC. In the circumstance, I find and hold that Order 22 Rule 3(1) of the NIC Rules, 2007 is a rule of procedure and a condition precedent to be complied with by any litigant approaching this court particularly for an application for judicial review, before the court can proceed to exercise its discretion under Order 22 Rule 1 (2) of the NIC Rules, 2007. Aside from the provisions of Order 22 of NIC Rules, 2007; there is no other provision for application for an order of Mandamus in the NIC Rules, 2007.Even though the law is that, it is not every non-compliance with the rules of Court that vitiates the proceedings;however, where the non-compliance robs the Court of its jurisdiction, the processes and the proceedings must be set aside,see Kekere-Ekun JSC’s decision in Emeka v. Okoroafor [2017] 11 NWLR (Pt. 1577) 410 at 461 paragraphs A-D.

 

  1. It is my finding that the non-compliance with the rules of court in this case affects the jurisdiction of this court and I so hold.In Amasike v. Registrar-General CAC &Anor [2005] LPELR-5407(CA): [2006] 3 NWLR (Pt.968) Pg. 462; after the court had come to the conclusion that the application for an order of mandamus was initiated without due process, it stated thus: “Having stated my views on the remedy of mandamus which the appellant had unwittingly brought in without due process, I shall refer to the case of Kankara v. COP (2002) 13 NWLR (Pt.785) 596. It was held in that case that the rules of court must prima facie be obeyed and the courts have inherent jurisdiction to ensure compliance with rules by litigants. The court can strike out any process not filed in accordance or in compliance with the relevant rules”.

 

  1. Based on the Court of Appeal decision inAmasike v. Registrar-General CAC &Anor (supra) and because, counsel to the parties have also adopted their final written addresses on the substantive case; I will proceed to write my judgment on the substantive case even though I have held above that this matter is barred by the provision of section 2(a) of the POPA, which is incorporated in the NDDC Act; the provision of section 24(2) (a) of the NDDC Act and the provision of Order 22 Rule 3 (1) of the NIC Rules, 2007.

 

  1. On the Substantive Case

In view of the all the decisions taken above on the Preliminary Objection, it is my considered view that the only issue for determination in the substantive case is:

Whether or not the applicant is entitled to have an Order of mandamus issued against the respondents on his behalf as prayed for.

 

In the case of Ohakimv. Agbaso&Ors.[2010] LPELR-2359(SC): [2010] 19 NWLR (Pt. 1226) 172 SC; the Supreme Court held that”Mandamus” is simply an order issued by a court of law to compel the performance of ‘a public duty’ in which the person applying for same  has sufficient legal interest. In the case of Shitta-Bay v. Federal Public Service Commission [1981] 1 SC 40;Idigbe, JSC held that the order of mandamus only issues to a person or corporation; requiring him or them to do some particular thing specified; which appertains to respondent(s’) office, in the nature of ‘public duty’.  See also the Supreme Court’s decision in the case of Fawehinmi v. I.G.P. [2002] 7 NWLR (Pt. 767) 606.

 

  1. In the instant case, the main prayer of the applicant as held above is for an Order of Mandamus against the NDDC and its Managing Director to fully comply with directive No. 2(ii) of the President, FRN in his letter with Reference No: SH/COS/01/A to properly placethe applicant to his appropriate position without loss of seniority and privilege in relation to his contemporaries when he was reinstated by the NDDC.

 

The letter of the President, FRN in question is Exhibit E before the court, it is at page 27 of the record and it is dated September 13, 2010. See paragraph 9 of the affidavit in support. In this letter, the President, FRN gave two directives to the respondents thus:

  1. The reinstatement into NDDC of all the 23 Nos. displaced staff whose names are hereby attached; and
  2. The payment of all allowances and entitlements for the period they were disengaged.

 

  1. The law is that the powerof the Court to make any of the various orders available in judicial review proceedings likean order of mandamus is discretionary; see the case of Fawehinmi v. I.G.P &Ors. [2002] LPELR-1258(SC): [2002] 7 NWLR (Pt.767) 606: [2002] 5 S.C (Pt.1) 63. From theaverments in the affidavit in support and the counter affidavit in opposing to this application for mandamus; it is worthy of note that compliance with the President’s directive is not in contention between the parties but the level of the said compliance. As deposed to in paragraph 11 of the affidavit in support, the Public Complaint Commission gave interpretation to the second directive of the President, FRN via Exhibit G at page 31 of the record. Exhibit Gstates:

They are reinstated to their respective positions as staff of the organisation without prejudice to entitlements and promotions which might have accrued to them within the period of termination. In other words, the complainants in this case are to be reinstated to their respective posts without loss of seniority and privilege in relation to their contemporaries in the employment of NDDC.

 

By this interpretation, the Public Complaint Commission added to the content of the President, FRN’s directive,this phrase: without prejudice to entitlements and promotions which might have accrued to them within the period of termination. In other words, the complainants in this case are to be reinstated to their respective posts without loss of seniority and privilege in relation to their contemporaries in the employment of NDDC.The applicant alleges that the respondents partially complied with the said directive by failing to comply with the added phrase. The respondents argued, on the other hand that they have fully complied with the directive via Exhibits F at page 29 of the record and that the accrued allowances and entitlements of the affected staff, including the applicant in this case have been paid to them. Thus, I find that the additional phrase as shown above is against the rules of interpretation as the PCC is not allowed to add to the content of Exhibit E that it interpreted. In the case of Union Bank of Nigeria Limited &Anor v. Nwaokolo[1995] 6 NWLR (Pt.400): [1995] LPELR- SC.217/1991 the Supreme Court PerIguh, JSC at P.37 Paras. D-E held that “as a general rule — words should be given their ordinary and plain meaning and additional words or clauses ought not to be imported into a written agreement or document unless it is impossible to understand the agreement or document in the absence of such additional words or clauses.” See alsoInternational Standard Securities v. Union Bank of Nigeria Plc. (Registrar’s  Department) [2009] LPELR-CA/A/127/05&Julius Berger Nigeria Plc.&Anorv. Toki Rainbow Community Bank Ltd [2009] LPELR- CA/PH/365/2006.

  1. A careful appraisal of Exhibit E reveals that the directive in question only statesreinstatement into NDDC of allthe listed disengaged staff of the Commission and the payment of all allowances and entitlements for the period they were disengaged. There is no mention of the phrase and promotions which might have accrued to them within the period of termination. To the applicant’s counsel, by the second directive of the President FRN the applicant in this case and other staff in question are to be reinstated to their respective posts without loss of seniority and privilege in relation to their contemporaries in the employment of NDDC.This additionalphrase introduced to the said directive bythe Public Complaint Commission now forms the basis for this applicationfor Order of mandamus against the respondents.

 

As regards the proprietary or otherwise of the Public Complaint Commission’s interpretation of the said directive via Exhibit G;interpretation of legal documents is not part of the functions of the Public Complaint Commission as provided in section 5 of the PCC Act.It is my firmfinding thatthe said interpretationis not a judicial pronouncement; and so,it has no legal value that can be enforced by this Court and I so hold.This is because; the proper body to consult or approachfor the said interpretation iseither the author of the directiveor the law court and I further hold.

It is also before the court in Exhibit NDDC 2 at page 148 and page 149 of the record that the Respondents sought for clarifications from the Presidency (the author of the directive) vide the office of the Head of Service (who is the officer in-charge of Federal Civil Service) as to the placement of the reinstated staff vis-a-vis Exhibit E.The Presidency vide the office of the Head of Service, clearly and unambiguously stated that nominal promotions had been abolished in the civil service since 2011  and that promotions in the civil service are no longer as of right but based on merit and performance. See Exhibit NDDC 3 at pages 150 and 151 of the record. Hence, all reinstated staff are to be placed on their last salary grade level but that they are to be given opportunity to regain whatever seniority they might have lost.

  1. Sequel to the content of Exhibit NDDC 3, the respondents issued Exhibit NDDC 4 of May 22, 2015 to the applicant and invited him for promotion examination and interview; but the applicant declined via Exhibit NDDC 6 at page 155 & 156 of the record. The applicant did not deny these facts including the fact that his allowance and entitlements for the period that he was disengaged have been paid to him. In addition, the applicant has not shown the Court that the order of mandamus he is seeking for is therespondents’ ‘public duty’ on which he too has sufficient legal interest.Besides, it is not stated in Exhibit E that the respondents are to reinstate the applicant and others in the commission without loss of seniorityand privilege in relation to his

 

From the statement and the affidavit in support of the application, I find and hold that the applicant did not show any evidence that what he is seeking the Court to compel the respondents to do is their public duty and that he has sufficient interest in the matter. I further hold that the applicant in this case is merely seeking to enforce his presumed private right that is not even backed up with satisfactory evidence. Consequently, I hold that the applicant has not satisfied the condition for the granting of order of Mandamus that he is seeking for. Therefore, he is not entitled to be granted an order of Mandamus against the respondents. This case is accordingly dismissed for lacking in merit.

 

  1. On thewhole, I hold and order as follows:
    1. On the Preliminary Objection
    2. I hold that this case is properly commenced by way of originating motion.

ii.I hold that the 2nd Respondent/Applicant is not a juristic person and so, its name is struck out as a respondent in this case.

  • I hold that the case of the applicant/respondent is not covered by the exception to the limitation Laws as provided in section 2(a) of the Public Officers’ Protection Act and section 24 (2) (b) of the NDDC Act as the act of the respondents/applicants complained of is a one of legal injury, thus it is not a continuous damage as contemplated by these statutes.
  1. I hold that by the recent decision of the Supreme Court in NRMA& FC &ors v. Johnson &ors(Supra) the provision of section 2(a) of the POPA is no longer applicable to Contract of Service but because this law is incorporated into the NDDC Act, this instant suit is barred by section 2(a) of the POPA.
  2. I hold that the applicant/respondent’s suit is also barred by the provisions of section 24 (2) of the NDDC Act.
  3. I hold that the applicant/respondent did not complywith theprovision of Order 22 Rule 3(1) of the NIC Rules, 2007 in filing this application and that the non-complianceaffects the jurisdiction of this court; therefore, the court has no jurisdiction to entertain this originating motion.
  • However, considering the decision in Amasike v. Registrar-General CAC &Anor (supra)and the fact that counsel to the parties also adopted their final written addresses on the substantive case, the Court will proceed to decide on the substantive matter even though I have held that the suit is statute barred.

 

  1. On the substantive application
  • I hold that the applicant did not satisfy the condition for granting the order of Mandamus that he is seeking for as he failed to show any evidence that what he is seeking the Court to compel the respondents to do is their public duty and that he has sufficient interest in the matter.
  1. I hold that the applicant is not entitled to be granted an order of Mandamus against the respondents.
  2. This case is accordingly dismissed for lacking in merit.
  3. This judgment abides in the other two sister cases with suit Nos. NICN/YEN/83/2016 & NICN/YEN/84/2016 respectively.

 

Judgment is entered accordingly and I make no order as to cost.

 

Hon. Justice F. I. Kola-Olalere

Presiding Judge

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