MR. JAMES IHEANACHO & 3 Ors. -VS- NATIONAL INSTITUTE FOR NIGERIAN LANGUAGES (NINLAN)

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

DATE: WEDNESDAY 18^TH JULY 2018

SUIT NO. NICN/OW/06/2016

BETWEEN:

MR. JAMES IHEANACHO
MR. AKOBUNDU C. NWANKUDU CLAIMANT/
MRS. EKE PETER N. RESPONDENTS
MRS IWEGBULAM C.E.

AND

NATIONAL INSTITUTE FOR NIGERIAN

LANGUAGES (NINLAN)

PROFESSOR BEN ELUGBE DEFENDANTS/

(EXECUTIVE DIRECTOR) NATIONAL APPLICANTS

INSTITUTE FOR NIGERIAN LANGUAGES

GOVERNING COUNCIL NATIOANL

FOR NIHERIAN LANGUAGES

REPRESENTATIONS:

J.P. NWAGWA FOR THE CLAIMANTS/RESPONDENTS.
C.M. ECHIKE FOR THE DEFENDANTS/APPLICANTS.

CONTESTED RULING/JUDGMENT

INTRODUCTION

This suit was commenced by way of Complaint dated 8^th March 2016 and filed 21^st March 2016. It was accompanied with a Statement of Facts. The reliefs claimed in the Statement of Facts are hereby reproduced verbatim:

A Declaration of this Honourable Court that the disengagement of service of the Claimants from the 1^st Defendant institution by the University of Nigeria, an institution quite different and unconnected with the 1^st Defendant and the employment of the Claimants, vide a disengagement letters dated 6^th September 2007 and the implied enforcement of the act by the Defendants is wrongful, illegal, unconstitutional and null and void.
A Declaration of this Honourable Court that the Defendants’ refusal and failure to reinstate of the Claimants into the 1^st Defendant based on the illegal and wrongful disengagement of the Claimants by the University of Nigeria, after the Defendants reinstatement pursuant to the Judgment of Hon. Justice F.A. Olubanjo of the Federal High Court in Suit No. FHC/UM/CS/84/2007 delivered on 14^th May 2013, is illegal, malicious, unconstitutional and null and void.
An Orde of this Honourable Court directing the Defendants to reinstate the Claimants into the services of the National Institute of Nigerian Languages and for further order directing the Defendants to pay the Claimants all salaries, wages, emoluments, promotions accruing from their employment with the 1^st Defendant with effect from May 2013 till date.
The sum of N10 Million (Ten Million Naira) as damages.

After filing the Defendants’ Joint Statement of Defence and Counter Claim on 17^th June 2016 against the above, and the claimants responded with their Reply to the Statement of Defence filed 19^th October 2016; the defendants/applicants filed a Notice of Preliminary Objection [NPO] dated 17^th January 2018 and filed the same date. The grounds of the NPO are as follows:

(a) This action is caught by the statute of limitation having not being brought within three months under the Public Officer’s Protection Act of Nigeria 2014.

(b) The claims are incompetent.

(c) The Claimants have not complied with the condition precedent for reinstatement under the Public/Civil Service Rules of Nigeria as well as the National Pension Scheme and hence the court lacks the jurisdiction to entertain this suit.

The NPO was accompanied with an affidavit and written address. The claimants/respondents filed their Counter Affidavit against the NPO on 16^th February 2018 accompanied with a written address. The defendants/applicants filed a Further Affidavit on 19^th March 2018 accompanied with a Reply on Points of Law. The NPO came up for hearing on the 3^rd May 2018. Counsel to both parties adopted their respective written addresses on the NPO. 5In adumbration, the learned counsel to the claimants/respondents urged the Court to strike out paragraph 9 of the Further Affidavit of the defendants/applicants since the issue raised there were facts to be proved at trial. Counsel also submitted that this NPO was premature as the applicants waived their rights by filing their defence. Counsel cited UBN v. Samari (2012) ALL FWLR (Pt. 648) 943 (CA) [NO FURTHER DETAIL GIVEN], to the effect that once pleadings are exchanged and closed the applicants lost the right to raise preliminary objection as that issue formed part of their defence. Counsel urged the Court to dismiss the NPO. Let me now summarise the written addresses of counsel to the parties.

WRITTEN ADDRESSES OF COUNSEL ON THE NPO

Address in Support of the NPO

CHINWEM M. EJIKE and DORIS O. ONYEGBULE franked the written address in support of the NPO. In this address the defendants/applicants’ counsel formulated three issues:

(i) Whether the present action of the claimant is not statute barred. [sic]

(ii) Whether the court can entertain this suit owing to the Claimants’ incompetency [sic]

(iii) Whether the court will entertain this suit when the condition precedent for re-instatement is not complied with by the Claimants. [sic]

The learned counsel submitted that the claimants/respondents averred in their Statement of Claim that agents of the University of Nigeria [UNN] disengaged them on 6th September 2007. Counsel stated that the claimants also averred that based on the judgment obtained on 13^th May 2013 by the defendants against the UNN, the instant claimants ought to be reinstated by the defendants. Counsel argued that the claimants were aware that the defendants committed no wrongs against them. The learned counsel contended that by virtue of section 2(a) of the Public Officers (Protection) Act 2004 [POPA], the suit is statute barred on both causes of action which arose 6^th September 2007 and 13^th May 2013 or 1^st December when the Management of the defendants was constituted. Counsel cited Akibu v. Azeek (2003) FWLR (Pt. 149) 1490; Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22, to the effect that knowledge of the cause of action on the part of the claimants would not be relevant for the POPA to apply. Counsel also argued that issue of jurisdiction could be raised any time. Counsel cited section 18 of the Interpretation Act to show that the defendants/applicants are public officers covered by the POPA. Counsel urged the Court to strike out the suit.

Counsel then moved to issue 2. Under this part, counsel argued that since the claimants/respondents herein have been receiving their pensions they were estopped from bringing an action to challenge their disengagement as this would amount to approbating and reprobating. The learned counsel cited some cases on approbating and reprobating. On this basis, the learned counsel urged the Court to strike out this action.

The learned counsel thereafter moved to issue 3. Counsel argued that the claimants who are retirees and have been taking their pension benefits could only be re-engaged into service by formally applying to the relevant department to reinstate them and if approved, they would pay all the pensions received so far, back to the coffers of the Government. Counsel argued that the decision of the claimants to approach the Court for their reinstatement without first complying with the conditions precedent is fatal to their action. Counsel cited DENR Ltd v. Trans Int’l Bank Ltd (2008) 11 NWLR (Pt. 1119) 399 SC at 404-405, ration 22 on condition precedent and its effect. Counsel argued that the Court could not circumvent this, and cited Ibrahim v. Lawal (2015) ALL FWLR (Pt. 799) 990 SC 996, ration 8. Counsel finally urged the Court to strike out the suit.

Address in Opposition to the NPO

EMEKA NNAJI and J.P. NWANGWA franked this written in opposition to the NPO. In arguing the written address, a lone issue was admittedly formulated out of the three issues formulated by the defendants/applicants. In arguing this issue, counsel submitted that the NPO is an abuse of court’s process because the same NPO had earlier been filed and withdrawn by the defendants and the Court struck it out and, it was re-filed to the annoyance of the claimants. Counsel argued that abuse of court’s process could occur when a party uses court’s process to harass his opponent or interfere with the administration of justice. Counsel cited Pavex International Co. Ltd v. IBWA (1994) 5 NWLR (Pt. 347) 685; and Olawole v. Olanrewaju (1998) 1 NWLR (Pt. 534) 455, paras. D-E. Counsel argued that it is the duty of Court to prevent abuse of its process. Counsel urged the Court to hold that this motion constitutes an abuse of the Court’s process.

On the issue of limitation law, counsel argued that the suit was not caught by section 2(a) of the POPA because of the series of correspondences between the defendants/applicants and themselves after the Federal High Court judgment and that the date for the application of the POPA should be reckoned from the date the defendants closed reinstatement of the people similarly affected like them. Counsel submitted that in a situation like this, the pleadings of the parties must be scrutinized. Counsel cited University of Abuja v. Ologe (1996) 4 NWLR (Pt. 445) 706 and NEPA v. Adegbero (2002) 18 NWLR (Pt. 798) at 79. Counsel contended that the cause of action did not arise on 6^th September 2007 when the defendants/applicants were taken over by the UNN and latter disengaged the claimants because the defendants/applicants never disengaged the claimants, and the applicants were incapacitated by the said invasion but that the cause of action arose when after the judgment of the Federal High Court invalidating the invasion, the staffs affected were reinstated and the claimants were left out.

Counsel argued that the correspondences put up to the defendants by the claimants after close of reinstatement is a relevant factor to be considered by the Court in determining whether the case is statute barred. Counsel argued that it would be improper under this situation to raise the issue of POPA by motion without taking evidence, when it is clear that evidence is needed to determine same and more so, when the defendants have raised the same issue in their Statement of Defence. Counsel cited Woherem v. Emereuwa & ors. (2004) ALL FWLR (Pt. 221) 1570 at 1584. Counsel also submitted that a preliminary objection must be raised in limine and once the defendants filed pleadings, the right to raise it is deemed waived. On this counsel cited Okoi v. Ibiang (2002) FWLR (Pt. 117) 1053 at 1064-5. Counsel argued that it was clearly stated in their pleadings that the defendants did not dismiss or disengage them, but that the cause of action arose when they were giving hope when the defendants were reassigning people similarly affected. Counsel argued that the argument that the claimants admitted that the cause of action arose in 2013 was of no moment because the issue was not when a cause of action arose but when the series of causes of action giving hope that reassignment started. Counsel argued that the claimant wrote several letters as averred in their pleadings and that this cause of action arose when the claimants lost hope of being reassigned and not when the judgment relied on was delivered.

Counsel latter submitted that issues 2 and 3 are issues to be tried in the substantive suit as it would be premature for the Court to consider the validity of compliance with condition precedent, and more so, when the defendants are not consistent on this issue. Counsel argued that at one breath the defendants claimed that they did not disengage the claimants yet at another breath they claimed that the claimants did not comply with conditions precedent. Counsel submitted that the cases cited on this issue were not relevant. Counsel also submitted that the issue of approbatiing and reprobating leveled against the claimants that they are receiving pension yet asking for reinstatement cannot be determined now until trial. The court was urged to dismiss the NPO. Thus, the written address was brought to a close. I shall now move to the reply on points of law filed by the defendants/applicants.

Reply on Points of Law

CIMWE M. EJIKE and DORIS O. ONYEGBULE franked the reply on points of law. Under this, I shall only summarise what amount to reply on points of law and not re-argument of the NPO or embellishment of the earlier arguments. Counsel argued that the letter written by the claimant in 2016 on which heavy reliance was placed to bring this action within time was ignored by the defendants simply because the claimants were enjoying their pensions. Counsel argued that issue of limitation of action could be determined in limine once the materials needed are apparent on the face of the pleadings of the claimants. On this counsel cited Nisir v. Civil Service Commission, Kano State (2007) 4 NWLR (Pt. 1190) SC 253, Ratio 10. Counsel relying on the foregoing authority argued that the filing of Statement of Defence did not preclude them from raising the issue of POPA by way of motion.

Counsel later submitted that the averment in the counter affidavit that the documents were not signed by the respondents was misconceived since the photos of the claimants were affixed on the documents before payment of the severance packages. On this, counsel referred to section 115(2) of the Evidence Act, to argue that affidavit is evidence before the Court. Counsel argued that the counter affidavit of the claimants/respondents did not deny the affidavit in support but merely insisted that there must be oral evidence. Counsel argued that the claimants did not deny their photos on the documents and that these document were certified true copies. On this, counsel relied on Efet v. INEC (2011) 7 NWLR (Pt. 1247) SC 423. Counsel submitted that, the NPO having raised issue of jurisdiction, could not be waived by the mere filing of Statement of Defence as argued by counsel to the claimant; and that, what the law requires, in a situations like this, is that the applicants must state their objection in affidavit, which was done in this case.

Counsel moved to issues 2 and 3, and submitted on the issue of abuse of process that it was rather the claimants that were abusing the process of the Court by bringing an action totally unwarranted against the defendants knowing fully well that all the disengaged staffs on the list attached were not re-engaged, and that they wanted to enjoy retirement benefits and also be in service. On the issue of approbating and reprobating, counsel argued that the defendants have been consistent in their defence. Counsel reiterated the prayer that the suit be struck out. There ended the reply on points of law. I shall now give my decision on the NPO.

DECISION OF THE COURT ON THE NPO

I will settle this NPO based on the three issues formulated by the counsel to the defendants/applicants since the counsel to the claimants/respondents did not formulate different issue but coalesced the three issues into one. The issues are reproduced hereunder:

(i) Whether the present action of the claimant is not statute barred?

(ii) Whether the court can entertain this suit owing to the claimants’ incompetency?

(iii) Whether the court will entertain this suit when the Claimants do not comply with the condition precedent for re-instatement?

ISSUE 1:

Whether the present action of the claimant is not statute barred?

In preliminarily attacking the NPO and the manner of raising limitation of the action, the learned counsel argued that the issue of statute of limitation could only be raised in limine and would be deemed waived after the close of pleadings at one breath. At another, he argued that the learned counsel argued that it was premature and could only be canvassed at the proper trial of the case because evidence would be needed to determine it. The counsel to the defendants/applicants had replied that being an issue of jurisdiction, it could be raised at any stage and that filing of and closing of pleadings had nothing to do with it. The counsel to the claimants/respondents had also argued that I ought to stop the defendants/applicants from re-filing the NPO, which had earlier been struck out because it amounted to harassing the claimants/respondents.

First, on the issue that I ought to ban the defendants/applicants from re-filing the NPO after it was once struck out, I state that doing so would amount to postponing the evil day since the issue is one of jurisdiction that could be raised at any stage even at appeal – see Nasir v. Civil Service Commission, Kano State cited by counsel to the defendants/applicants, relying on the electronic version, (2010) LPELR-1943 (SC) 26, paras. A-E. In this particular case, motion was also filed to bring in objection on the ground that the action was filed outside the three months prescribed in section 9(1) of the Public Officers Protection Law of Kano State, which is impari materia with section 2(a) of the POPA. The Supreme Court held that the procedure was proper and the issue could either be raised in the pleading or by a motion and that, the issue, as one of jurisdiction could be raised at any stage. Let me add that, in the same decision, the Supreme Court emphatically held that no rule of Court could preclude the raising of such issue and that it could also be raised by the Court suo motu. This might be the philosophy that informed Order 17, Rule 1(9), Order 30, Rule 2(a), and Order 37, Rule 6, which encapsulated exactly the position of the Supreme Court above. That settles the question of whether the application could be brought in limine or not or it could be waived or not.

Let me go to the question of whether section 2(a) of the POPA is applicable in the peculiar circumstance of this case. The law is that when issue of jurisdiction via statute of limitation is to be determined in limine, the pleadings of the claimant is the focus of the court and not affidavit evidence unless this is unchallenged by the other side – see Ames Electrical Co. Ltd v. Federal Airports Authority of Nigeria (2001) LPELR-6974 (CA) 19, paras. A-B. The objection of the defendants/applicants is that the cause of action herein arose on 6^th September 2007 and this suit was filed 21^st March 2016. The defendants/applicants also stated that Federal High Court gave judgment for the defendants/applicants on 13^th May 2013.

Now, let me look at the Statement of Facts of the claimants/respondents on the issue of the action being statute barred. In paragraph 17 of the Statement of Facts, the fact that the claimants/respondents were served with letters of disengagement dated 6^th September 2007 by UNN was pleaded. In paragraph 18, it was pleaded that the claimants/respondents contributed to file a suit at the Federal High Court to challenge the illegal taking-over of the 1^st defendant and disengagement of the staffs of the 1^st defendant. And in paragraph 20, that judgment was delivered in the suit on 14^th May 2013, and the Court held partly that it had no jurisdiction on the issue of disengaged staffs but while reinstating the 2^nd and 3^rd defendants back into the institution, the 2^nd and 3^rd defendants latter refused to reinstate the claimants – paragraph 22. In paragraph 23, the claimant said, by virtue of the judgment of Federal High Court, they were entitled to be reinstated back to the institution. And in paragraphs 24, 25, and 26, the claimants/respondents pleaded that they have written several letters to the defendants for their reinstatement to no avail.

These are the relevant paragraphs of the Statement of Facts. From these, when could it be said that the cause of action arose? It needs no rocket science to conclude that the cause of action arose on the 6^th September 2007 when the claimants/respondents were issued their letters of disengagement. There is no doubt in this. The claimants/respondents pleaded that they contributed money to fight this illegality of the UNN in disengaging them and that the Federal High Court held in the suit that it could not entertain the issue of reinstatement of the disengaged staffs as it lacked jurisdiction over it. They evidently knew that their cause of action arose then. If they filed a suit in the wrong Court, should the defendants who had nothing to do with their disengagement be held accountable for the decision of the Federal High Court not to reinstate them? I think the answer is no. The claimants/respondents also stated that after the judgment of the Federal High Court on 14^th May 2013, when the defendants refused to reengage them they wrote several letters to no avail, as the defendants did not answer their letters. The law is that negotiation would not stop limitation period from running – Lagos State Government v. Martins (2015) LPELR-24580 (CA) 29, paras. D-F. So, the argument that the limitation period would start to count from the date the defendants failed to reengage them while others were reengaged would not be of use since negotiation would not stop limitation period from running.

Having held that the cause of action arose on 6^th September 2007 and this suit was filed 21^st March 2018, this suit filed about 9 months behind schedule is grossly statute-barred. The cause of action is stale and cannot be revived. Even if the judgment of the Federal High Court is taken as the cause of action of the claimants, because they argued that they found their action on the judgment, the judgment was handed down on 14^th May 2013, this suit was commenced 21^st March 2016, that is about 3 years behind schedule. Section 2(a) of the POPA provides that three months next after the occurrence of the cause of action, suit to challenge any action or inaction of a public officer must be commenced and that anything outside the date is barred. It is interesting too, that the claimant were arguing that they ought to be reengaged based on the decision of the Federal High Court, which they pleaded held that it had no jurisdiction to entertain reinstatement of the disengaged staffers. From this, it is clear that the decision of the Federal High Court did not confer any scintilla of right on the claimants/respondents to be enforced or from which a spring-board of another action could be hinged; and they could not therefore claim any right from that decision. In whichever way one looks at it, this suit is statute-barred. The jurisdiction of this Court is therefore negatively affected to entertain the suit. Issue 1 is therefore resolved in favour of the defendants/applicants and against the claimants/respondents.

Having held that the suit is statute-barred and that I lack the jurisdiction to entertain it, the suit is hereby dismissed. I shall not look into the remaining issues of incompetence and failure to observe conditions precedent under issues 2 & 3. They have become merely academic. This suit is accordingly dismissed – Ayami v. Onuorah & Anor (2016) LPELR-41225 (CA) 10, paras. C-F.

…………………………..

HON. JUSTICE O.O. AROWOSEGBE

Presiding JUDGE

OWERRI DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA