IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 8THNOVEMBER, 2018 SUIT NO: NICN/UY/38/2016
BETWEEN:
RT.HON. OBONG UDOBONG BENEDICT
EKPO………CLAIMANT/RESPONDENT
AND
1. AKWA IBOM STATE GOVERNMENT
2. A.G, AKWA IBOM STATE
3. AKWA IBOM HOUSE OF ASSEMBLY
DEFENDANTS/APPLICANTS
REPRESENTATION:
Dr. S. I. Akpan for the Claimant/Respondent.
Bar. J. Jerome Akpanwith ImmaculataIdionfor the Defendant/Applicants.
RULING/JUDGMENT
The Claimant was purportedly appointed as a Special Adviser to the Honourable Speaker of the Akwa Ibom House of Assembly effective from 1st January, 2009, and he worked in that capacity without being paid salaries and allowances by the Defendants. The Claimant filed a complaint on 18thNovember, 2016 praying for the following reliefs jointly and severally against the Defendants:
- The payment of all outstanding salaries and allowances during the period the Claimant worked as Special Adviser to the Hon. Speaker of the Akwa Ibom State House of Assembly.
- An order for the payment of the sum of N13, 000,000.00 Thirteen Million Naira) being the total amount due to the Claimant covering the period for 2 years he worked for the Defendant.
- General damages assessed at N10 Million.
The Defendantsentered Conditional Appearance on 6th December, 2016 and by leave of court filed Defendants’ Statement of Defence and allied processes out of time. The parties had course to also amend their Statement of Facts and Statement of Defence by leave of court. Hearing on the suit started in earnest on 14th February, 2018 and while this was going on, the Defendants came with a Motion on Notice dated on 29th June, 2018 but filed on 3rdJuly, 2018. The Motion pursuant to Order 17,Rule 1 (1) and(9) of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, waspraying for:
1. Anorder striking out the 1st, 2nd and 3rd Defendants/Applicants from this Suit No. NICN/UY/38/2016 commenced on 18/11/2016 against the Defendants/Applicants herein who are Public Officers, having not been commenced within 3 months after the accrual of cause of action on 30th April, 2010.
2. Anorder dismissing or striking out this Suit for being statute barred and incompetent for failure to initiate same by due process of law and fulfilment of condition precedent to the exercise of the Court’s jurisdiction.
3. And for such for Order(s) as this Honourable Court may deem fit to make in the circumstances of the case.
The motion was supported by Affidavit of 11 paragraphs with 2 exhibits and a written address. In opposition the Claimant filed a Counter-Affidavit of 8 paragraphs with a written address on 17thSeptember, 2018. The Defendants also filed a Rejoinder to Claimant’s written address on the 23rd October, 2018 thereby setting the stage for parties to adopt their arguments for and against the motion on 24thOctober, 2018.
SUBMISSION OF DEFENDANTS’/APPLICANTS’
The Defendants/Applicants noted that by a simple calculation from April, 2010, when the Claimant’s appointment was determined to 18th November, 2016 when this suit was instituted is about 6 years 7 months and 17 days and submitted a lone issue for determination which is:
Whether this suit can be maintained against the Defendants, they, being Public Officer which, by section 1 (1) of the Public Officers Protection Law of Akwa Ibom State, Cap 104, Volume 5, Laws of Akwa Ibom State of Nigeria, 2000, ought to have been sued within 3 months next after the accrual of the cause of action on 30th April, 2010 when the Defendants allegedly neglected/failed to pay off the Claimant’s salary entitlements (upon his appointment being determined).
To start with, the Defendants/Applicants asked if this suit can be maintained against the Defendants who are Public Officers by virtue of Section 1 (1) of the Public Officers’ Protection Law, Cap 104, Volume 5, Laws of Akwa Ibom State and answered with an emphatic “No!”
Defendants/ Applicants cited the preamble and the side notes to Section 1 of the Law to assert that there is a clear limit of time within which legal action could be instituted against public officers in Courts. He also quoted Section 1 (1) of the Public Officers Protection Law of Akwa Ibom Statefor effects:
“(1) Where any action prosecution or other proceedings is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any law, duty or authority, the action 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 a continuance of damage or injury within three months next after the ceasing of such action.”
Defendants/Applicants stated that in trying to justify why he acted out of time allowed by Law, the Claimant averred in para. 13 of his Amended Statement of Facts:
“The Defendants kept promising the Claimant that his salary and all his entitlement (sic) will be paid soon.“
The Defendants/Applicantssubmitted that, in plethora of judicial authorities, the Apex Court has made several pronouncements on who a public officer is, when an action may be instituted against public officer, the essence of limitation provision, what determines jurisdiction, effect of failure to institution an action within the prescribed period where the law so provide, who may raise an issue of jurisdiction, format to raise jurisdiction and time to raiseetc. Defendants/Applicants thereafter set out to elucidate on these principles one by one.
On who is a Public Officer, the Defendants/Applicants cited Awokunle v. NEPA (2007) 15 NWLR (Pt. 1057) 340 R. 2and LAUTECH v. Ogunwobi(2006) 4 NWLR (Pt. 971) 569 at 577 R. 4.He paid particular attention to Ibrahim v. Judicial Service Commission, Kaduna State (1998) 4 NWLR (Pt. 584) which is the locus classicus on the subject. He posited that in that case, the Court cited Section 2 (a) Public Officer Protection Act Cap P. 41 Vol. 14 Laws of the Federation of Nigeria (2004) which is in parrimateriawith Section 1 (1) of Public Officers Protection Law of Akwa Ibom State, and defined “persons”to mean not only “natural person”but extend to “artificial persons, public bodies, body corporate, statutory bodies, institutions or persons sued in their official names or titles.”
In applying this to the facts of the instant case, the Defendants/Applicants submitted that the Claimant/Respondent had rightly referred the 1stand 3rd Defendants in para. 1 of his Amended Statement of Facts as “statutory bodies recognized by law’ while suing the 2nd Defendant in his official name.
On when actions may be instituted against public officers,the Defendants/Applicants quoted the Supreme Court case of Ibrahim v. Lawai(2015) 6 MJSC (Pt.1) 96 at 102, R. 3:
“In order to determine the period of limitation one has to look at the Writ of Summons and Statement of Claim, to see when the wrong was committed, which gave the Plaintiff a cause of action; and comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute barred. See also William v. Williams (2008) 34 NSCQR (Pt. 2) 864 at 882 paras. A-C, Egbe v. Adefarasin(1987) 1 NWLR (Pt. 47) 1 at 20.”
To situate the above principle to the fact of this case, Defendants/Applicants disclosed that the Claimant instituted this action via a Complaint on 18th November, 2016 while he averred in para. 12 of Amended Statement of Facts that he worked with the Honourable Speaker of Akwa Ibom State House of Assembly for a period of One (1)year and four (4) months effective January, 2009 to April, 2010. He thereforesubmitted that a simple calculation between even the last date of April that is, 30th April, 2010, to when he filed the suit on 18th November, 2016 shows that the period is about 6 years, 7 months 17 days thereby exceeding three (3) months allowed by the Limitation Law of Akwa Ibom State. The Defendants/Applicants also cited the dictum of Niki Tobi, JSC in Bello Nasir v. C.S.C Kano (2010) 41 NSCQR (Pt.1) 279 at 289to drive home the point:
“Limitation statutes are exact as to the time frame. They do not leave Court in doubt like the Kano State Law. It is 3 months/not a day longer than 3 months.”
On the essence and implication of Limitation Law, Defendants/Applicants referred to the pronouncement of Rhodes-Vivour, JSC inC.B.N v. Okojie(2015)6 MJSC (Pt.1) R. 7:
“Limitation Law sets out the time within which an action may be brought. It protects a Defendant from the injustice of having to face a stale claim. For example, if a claim, is brought a long time after the events in question, there is a strong likelihood that evidence which was available earlier may no longer be available, the memories of witnessesmay have faded. Where actions are brought against public officers, such actions must be brought quickly, that is to say, within 3 months after accrual of the Plaintiff’s cause of action as provided by (Law). The 3 months time frame for bringing actions in (sic) designed to protect the public officers who are very busy people from being distracted from having to answer frivolous and vexatious litigation….. usually at the instance of professional litigants. The Plaintiff must seek prompt action for the breach of his rights in Court of law within the time stipulated. If he fails… (though) he has cause of action, .. , sadlv … he cannot be heard by Courts as the Courts seize to have jurisdiction over actions brought after three months.” P. 29 Paras A-F.
The Defendants/Applicants also cited the case of Sylva v. INEC (supra) in support of the effect of a statute of limitation.
Defendants/Applicantsthereafter made reference to the case of C. G. G. Nig. Ltd. v. Aminu(2015) 3 MJSC (Pt.l) 1 R. 5, where the Apex Court re-echoed the conditions which gives a Court the competence to adjudicate on a matter as advanced in Madukola v. Nkemdilim(1962) 2 NSCC 374. (Pp. 16-17) Paras. F-A., and submitted that Claimant having failed to sue within 3 months next as prescribed by Law, this case was therefore not initiated by due process of law and upon fulfilment of the condition precedent to the exercise of this Court’s jurisdiction.
As for the appropriate party and time to raise issue of jurisdiction, the Defendants/ Applicants drew the attention of the Court to the case of Ibrahim v. Lawai(supra) 124 Paras. D-E, where it was held:
“Issue of jurisdiction is so fundamental that any party to a dispute can raise same. It is often said that jurisdiction is a threshold issue which can be raised at any stage or time of the proceedings by any party or even by the Court suomuto”.
On whether there is a format the issue of jurisdiction should take, the Defendants/ Applicants relied on Akegbejo v. Ataga(1988) 1 NWLR (Pt. 534) 459 at 469 and more particularly Sylva v. INEC (supra) for an answer:
“…there is no special format of raising the issue of jurisdiction.”
Finally and based on the foregoing, Defendants/Applicantsurged the Court to rely on the Public Officers Protection Law as an answer to the case against the Defendants as to do otherwise will be tantamount to a denial of fair hearing to the Defendants.
SUBMISSION OF CLAIMANT/RESPONDENT
In opposing this application, the Claimant/Respondent adopted the lone issue formulated by the Defendants/Applicants.
Claimant/Respondent started by arguing vehemently that the application is highly misconceived and intended to mislead this court. To him, to put this issue in a proper pedestal, there is the need to answer three important questions: Who is a public officer under the Public Officers Protection law, Cap. 104, Vol. 5, Laws of Akwa Ibom State? Does the Act cover statutory bodies? And does it cover contractual obligations entered into by a Public Officer?
In answering these questions, Claimant/Respondenttook the first two questions together. He cited the recent case of Central Bank of Nigeria v. Bob Kay Nyemanze&Sons Ltd (2015) 4NWLR (Pt 1449) p. 276,where the issues were given adequate elaboration. It was held that, section 18 (1) of the Interpretation Act defines a “Public Officer” as a member of the Public Service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999 or of the Public Service of the state. The term public officer relates to the holder of the office as reflected only in Section 318 of the Constitution (as amended). Equally, section 84 of the Sheriffs and Civil Process Act also referred to a Public officers as a holder, officer or person holding a public office. In the circumstances of this case, officers of the Central Bank of Nigeria are public officers but Central Bank of Nigeria is not a Public Officer. The definition of Public Service of the Federation in section 318 (1) of the Constitution of the Federal Republic of Nigeria, 1999, clearly excludes artificial persons.
Claimant/Respondent argued that the case of Ibrahim v. Judicial Service Commission, Kaduna State (1998) 14 NWLR (Pt. 584) I, relied on by the Defendant was distinguished in that case (Central Bank of Nigeria v. Bob Kay Nyemanze&Sons Ltd (supra). In Ibrahim v. Judicial Service Commission, Kaduna State, the court relied on the provisions of S.3 of the Interpretation Law, Cap 52, Laws of Northern Nigeria, 1963 which extended the definition to include artificial persons. That the current position is that a Public officer is interpreted with the aid of the Interpretation Act S. 18 (1) LFN 2004. That this definition is clearly not in parimateriawith the definition of Public Service in S.3 of the Interpretation Law of Northern Nigeria. It excludes “Public department” in its definition at Page 285 of the law report. Similarly, the Claimant/Respondent referred to the case of Shakira &Sons Ltd v. The Governor of Kaduna State &Ors (2013) LPELR – 20379 CA, where the term was defined to only relate to the holder of office as reflected only in Section 318 (1) of the CFRN (as amended).It is therefore the submission of Counsel that, the Defendants/Applicants on record are not public officers but statutory bodies which are not covered by the Act.
On the question of whether the law is applicable to contractual relationship, Claimant/Respondent emphatically submitted that the Public Officers Protection Law of Akwa Ibom State does not cover issues of contractual relationship between a public officer, statutory body or government department.The Claimant/Respondent then supported this proposition of the law, by citing the Court of Appeal cases of Judicial Service Commission &Anor v. Alaka (1982) 810 CA 42 and Alapiki v. Governor of Rivers State (1991) 8 NWLR Pt. 211 at P 575.He also call into aid the cases of Solanke v. LSDB &Anorwhich was cited with approval by the Supreme Court in Nigeria Ports Authoritvv. ConstruzioniGenerali far-sursCogefar Spa &A nor ( 1974) 12 SC 81 andthe English case of Midland Railway Company v. Local Board for the District of Washington (1882-3) 1 1 QBD 788.To him, the dictum of Achike, JCAin Amaov. C.S.C. (1992) 7 NWLR Pt 252,was also most illustrative:
“It will he strange and preposterous if an express or specific contract entered into by a Public officer were to be affected by the Act in the event of failure of the Public officer to honour the terms of the contract”
On the facts of the instant case, the Claimant/Respondent stated that the Defendants/Applicants received Claimant’s letter dated the 30th day of September, 2016 and acknowledged on the 18th day of October, 2016 but refused to reply to same and submitted that it is trite law that refusal to reply to official correspondence is an evidence of admission as to the content thereof. He concluded that the court should discountenance all the arguments of the Defendants/Applicants and to hold that the applicants do not have any defence to this action and to enter judgment for the claimant/respondent as per the amended Statement of facts.
DEFENDANTS’/APPLICANTS’REJOINDER ON POINTS OF LAW
By way of rejoinder the Defendants/Applicantsresponded to the three submissions of the Defendant on Public Officers,Contract Relationship and when time will start to run in the instant suit.
On who is a Public Officer, the Defendants/Applicantsstated that a “Public Officer” is a derivative of the phrase “Public Office” and provided the definition of “Public Office” from the Blacks Law Dictionary, page 1245, 7thEditionas “A position whose occupant has legal authority to exercise a government’s sovereign powers.”
The Defendants/Applicants stated that the Apex court has in plethora of authoritiesdefined the term, “Public Officer” within the context of Public Officers Protection Act or Law and cited and quoted University of Jos v. Ikegwuoha(2013) 9 NWLR (Pt. 1360) 478, at pg. 493 paras G-H, thus:
“The University of Jos is a Public Officer within the meaning of section 2 of the Public Officers Protection Act. In other words, it is covered by the Public Officers protection Act. By section 2 of the Act where any act done in pursuance or execution of any act or Law or of any public duty or authority, or in respect of alleged neglect or default in the execution of any such act, law, duty or authority, 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 …. “
According to the Defendants/Applicants, the meaning ascribed to Public Officer is within the context of Public Officer Protection Act or Law and not in the context of Sheriffs and Civil Process Act as erroneously canvassed and submitted by the Claimant/Respondent. Therefore the case of CBN v. Nyemanze (supra) cited and relied upon by the Claimant and which was predicated on section 84 of Sheriffs and Civil Process Act, was inapplicable to the instant case. The Defendants/Applicants argued that CBN v. Nyemanze (supra) was a Court of Appeal case as against the Supreme Court case of Unijos v. Ikegwuoha (supra) cited by them.To further buttress this point, the Defendants/Applicants referred to the dictum of Udo Udoma, JSC and I. A. Iguh, JSC in Monoh v. Okewale(1977) 11 NSCC 365 and Ibrahim v. Judicial Service Commission ( 1998) 14 NWLR (Pt. 584) 1 at 38 paras D-F; 44 paras F-H, 45, E-G respectively.
The Defendants/Applicants having advanced that under the Interpretation Law, Section 60, Cap 65 Vol 4. Laws of Akwa Ibom State, 2000 a “person” includes any company, association or body of persons corporate or incorporate and therefore submitted that the Defendants/Applicants fall within the category of ‘person’ or ‘public officer’. The cases of University of lIorin v. Adeniran (2007) 6 NWLR (Pt, 1031) 498;Nigeria Institute of Internal Affairs v. Ayanfalu (2007) 2 NWLR (Pt.1019) 246 and NwaOgwuguou v. President, FRN (2007), 6 NWLR (Pt. 1030)were called in support.
On the submission that Public Officer Protection Law does not apply or covercontractual such relationship, the Defendants/Applicants submitted that that is not true. The Defendants/Applicants urged the court to discountenance the cases of Judicial Services Commission v. Alaka(1982) 810 CA and Alapiki v. Governor of Rivers State (1991) 8 NWLR (PT. 211) 575, particularly the former which is not reported in any law report.
In support of the proposition that the Public Officer Protection Law is a defence to matters arising from breach of contract or contract of employment, the Defendants/Applicants cited the case of Osun State Government v. Dalami(Nigeria) Limited (2007) 9 NWLR (pt.1038) 97. In that case, it was heldthat, to answer the question, it must first be decided whether the act complained of was done in pursuance to or execution or intended execution of any Act or Law or of any Public duties or authority or in respect of any alleged neglect or default. Where the act complained of was done in pursuance of any of the above acts, it therefore follows that the protection of a limitation Act or Law could be relied upon as a defence in contractual relationship. The court further held:
“It follows that the act or any form of act complained of must be redressed within 3 months of the doing of the act”.
See also the case of Santana Medical Services Ltd. v. Nigerian Port Authority (1999) 12 NWLR (Pt. 630) 189, which was referred to in the above case.
The Defendants/Applicants also relied on case of TajudeenC.1. P.S (sic)(2010) 4 NWLR (Pt.1184) 325, where it was held that:
“Now turning back to the case at hand, what then is the position of the Law as to contract of employment? The position of the Law has earlier been stated in this Judgment. This court is bound by the decisions of the Supreme Court in CBN v. Ibori(2006) 7 NWLR (Pt.1009) 542 and Dalhatu v. Turaki(2003) 15 NWLR (Pt. 843). The submission of the Appellant and authorities cited are of no relevance, in the light of the Supreme Court authorities directly on the issue … Consequent upon the foregoing, Ihold that Section 2 (a) of the Public Officers Protection Act Cap. 379 Law of the Federation 1990 is applicable tocontract of employment”. As the present case was instituted outside the 3 months Limitation Period, it is statute barred at PP 339 – 34 1 para H – B”.
The Defendants/Applicants attacked the submission of Claimant/Respondent that the refusal to reply to the letter of 30th September, 2016 was an evidence of admission as to the content thereof on two (2) fronts:First, the correspondence between the parties is a matter of evidence that can only be properly determined at the hearing of the substantive suit and not where the jurisdiction with regard to limitation law is in issue, as in the instant case.Second, correspondences between partiesdoes not and cannot stop time from running for the purpose of limitation law. The law does not prohibit parties to a dispute from engaging in negotiation as negotiation or correspondence does not stop the period of limitation from running, referring to Gbadamosi Laban v. The A. G. Western Nigeria (1961) WNLR 39, (1963) 2 SCNLR 47, Eboigbe v. NNPC (1994) 5 NWLR (Pt.347) 649; Mkedem v. Udo (2008) 9 NWLR 673 at 631andNwadiaro v. Shell (1990) 5 NWLR (Pt. 150) 233.
DECISION OF THE COURT:
I have carefully gone through the processes, the arguments of the parties and most of the authorities thereof and the issue for determination in my candid view is: Whether this suit as presently constituted is statute-barred.
This case is predicated on Section 1 (1) of the Public Officers Protection Law, Cap 104, Vol. 5, Laws of Akwa Ibom State, 2000, a statute of limitation, a point of law touching on the jurisdiction or competence of a court to adjudicate upon a matter before it. It is a fundamental and a threshold issue that needs to be dealt with at the earliest opportunity. The general principle of law is that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally-barred and the right of action would have been extinguished by such law.
Before going in the issue proper, two general principles of law on this area of the law and which are pertinent to a just determination of the matter should be noted. The first is for the Public Officers Protection Lawto avail any Applicant, two conditions must cumulatively be satisfied:
(i) It must be established that the person against whom the action is commenced is a public officer or a person acting in the execution of public duties within the meaning of that law.
(ii) That act done by the person in respect of which the action is commenced must be an act done in pursuance or execution of any law, public duty or authority or in respect of an alleged neglect or default in the execution of any such law, duty or authority.
This is on the authority of the Supreme Court cases of A.G, Rivers v. A.G, Bayelsa (2012) 7 S.C.N.J. 84, Bala Hassan v. Babangida Aliyu (2010) 43 N.S.C.Q.R. 217andIbrahim v. Judicial Service Commission, Kaduna State (1998) 4 NWLR (Pt. 584).
The Second is the yardsticks to determine whether an action is statute-barred, which are:
a) The date when the cause of action accrued.
b) The date of commencement of the suit as indicated in the writ of summons.
c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
See the Supreme Court case of Ajayi v. Adebiyi (2012) 5 S.C.N.J. 480-481, per O. O. Adekeye, J.S.C.
I will therefore attempt to apply the facts of this case and the arguments of parties thereof to the foregoing principles in the determination of this case.So the starting point is are the Defendants in this case Public Officers to benefit from the protection of the said law?
The answer to this question is divergent. While the Defendants are of the view that they are Public Officers hence seeking the protection of the law, the Claimant thinks otherwise.In support of his stance, the Defendant referred to the case of Ibrahim v. Judicial Service Commission, Kaduna State (1998) 4 NWLR (Pt. 584), among others, to not only show that the Section 2 (a) Public Officer Protection Act Cap P. 41 Vol. 14 Laws of the Federation of Nigeria (2004) is in parrimateriawith Section 1 (1) of Public Officers Protection Law of Akwa Ibom State but also bring the Defendants within the definition of a Public Servant interpreted in that case. The Claimant countered this and asserted that the Defendants are not Public Officers but Statutory bodies and therefore not covered or protected by the Act. The Claimant relied on the case of Central Bank of Nigeria v. Bob Kay Nyemanze&Sons Ltd (supra) in which it was held that officers of the Central Bank of Nigeria are pubic officers but the Central Bank is not a public officer thereby narrowing down the definition of a Public Officer to exclude public departments.It was the claim of the Claimant that the case of Ibrahim v. Judicial Service Commission, Kaduna State(supra) was distinguished in the Central Bank of Nigeria v. Bob Kay Nyemanze&Sons Ltd (supra). But I think the realdistinction of the above cases will not serve or support the case of the Claimant. First of all, the case was a Court of Appeal case unlike that of Ibrahim v. Judicial Service Commission, Kaduna State (supra)so it is on a weak wicket. Not only that, the main issue in that case was the applicability of section 84 of the Sheriff and Civil Process Act and not the Pubic Protection Act. Suffice it to state here that the case was fought on the basis of the Public Protection Act at the High Court but was abandoned at Court of Appeal for the Sheriff and Civil Process Act. The case is therefore not apposite to the facts of this case. I am therefore prepared and bound to stick to the liberal and broad definition of a Public Officer enunciated in Ibrahim v. Judicial Service Commission, Kaduna State (supra)and the case of University of Jos v. Ikegwuoha (supra) cited by Defendants/Applicants, to includeeach and every one of the Defendants as Public Officers as contemplated by the Public Officers Protection Law of Akwa Ibom. And I so hold.
Next, is the whether the act or default leading to the commencement of the case is in pursuant of the execution of any law or authority. Although this issue was overlooked by the parties, I think it suffices to say that it was because the Defendants were responsible for the payment the Claimant’s salary and allowances that they were dragged to court, in the first place. This without more has satisfied the condition placed before the Defendants/Applicants. After all, all is required at this stage, is as long as the public officer acts in the usual function of his office, whether he does it correctly or wrongfully, he is protected by the Section. It is not open to the court to pry or investigate into his conduct in carrying out his official assignment in order to determine whether the Act is applicable or not. See the case of Sulgrave Holdings v. FGN (2012) 7 S.C.N.J. 273-274.
Now to the crux of the matter. Is this suit statute-barred? The law has a simple formula for the determination of this, and that is by:
“……looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.”
These are the words of the famous wordsmith and jurist, Oputa, JSC(of blessed memory),inEgbe v. Adefarasin (1987) 1 N.W.L.R. (pt.47) 1, which have been re-echoed in most cases on the subject.
In line with the above formula and for clarity, I will reproduce verbatim the pertinent paragraphs from the Claimant’s Amended Statement of facts dated 24th March, 2017:
Paragraph 5:
“The Claimant was offered a Letter of Appointment as a Special Adviser to the Hon. Speaker of Akwa Ibom State House of Assembly on Parliamentary Matters with effect from 1st January, 2009.”
Paragraph 10:
“The Claimant was surprised that, after several months, his salary and other allowances was not paid to him since resumption of duty. The Claimant promptly laid his complaint to the Clerk of the Akwa Ibom State House of Assembly.”
Paragraph 12:
“The Claimant worked with the Hon. Speaker of Akwa Ibom State House of Assembly for a period of 1 year four months effective January, 2009 to April, 2010.”
The date of filing the Complaint in this court is 18th November, 2016.
The question now is given the above scenario, when does time start to run for the application of the 3 months imposed by Section 1 (1) of the Public Officers Protection Law of Akwa Ibom State?To the Defendant, the effective date of the accrual of the cause of action was April, 2010 and a simple calculation from last date of April (30th April, 2010), to when the Claimant filed the suit on 18th November, 2016 is about 6 years, 7 months 17 days thereby exceeding three (3) months allowed by the Limitation Law of Akwa Ibom State. But to the Claimant the cause of action arose on the 18th October, 2016, when the 3rd Defendant received and acknowledged the demand letter for the payment of Salaries/Allowancewhich was not replied or acted upon by the Defendants.
Again to sort out this contention, recourse must be had to the case law. It was O. O. Adekeye, J.S.C. who put it tersely in Bala Hassan v. BabangidaAliyu (2010) 43 N.S.C.Q.R. 220, thus:
“For the purpose of the limitation of action, time begins to run from the moment the cause of action arose or accrued. Therefore in determining whether an action is statute-barred or not, it is pertinent to ask when time begins to run. Time begins to run when there is in existence a person who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.”
At this point a critical look at the argument of the Claimant/Respondent that the date of accrual of the cause of action is 18th October is imperative. He submitted that it is trite law that refusal to reply official correspondence is evidence as to the content but did not back it with any authority. I don’t know any law which support this position either. All I know is that, it trite that acknowledgement of debt or liability has to be in writing, unconditional and unequivocal to revive an action.See the case of NSTEMB v. KLIFCO (Nigeria) Limited (2010) 43 N.S.C.Q.R. 399, where C. M. Chukwuma-Eneh, J.S.C. held:
“However, where there is acknowledgement of debt, which must be in writing signed by the party that is liable, the right to recover the debt by action is revived and what constitutes acknowledgement in such cases is a matter of fact in each case, if I may repeat. In other words, what constitutes acknowledgement will depend on the construction placed on the words by the Court in ascertaining what the words mean.”
In this case there was no reply from the Defendant for the court to consider and it is not for the court to speculate.
I also find no difficulty in agreeing with the Defendants/Applicants that negotiation or correspondence does not stop the period of limitation from running as in the cases of Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649 SC and Nwadiaro v. Shell (1990) 5 NWLR (Pt. 150) 233. I therefore reject the argument and submission of the Claimant/Respondent that the date of the accrual of the cause of action was 18th October, 2016.
The task before me is now simple, that is, to determine when the Claimant’s cause of action begins to run. I have found a complete answer to this in the Court of Appeal case of Lagos University Teaching Hospital and Management Board v. Prince M. B. Adewole (1998)5 NWLR (Pt. 550) 406, where it was held that in a claim for payment of salaries wrongfully withheld, the cause of action accrues from the date the salaries are due for payment. In the case at hand the Salaries and Allowances remained unpaid for a period of one (1) year, four (4) months effective from January, 2009 to April, 2010. So the cause of action for the non-payment of Salaries and Allowances arose on April, 2010. But the Claimant only filed his Complaint on 18th November, 2016. By simple arithmetic, this period is over six (6) years and therefore caught by the provision of the limitation law of Akwa Ibom State. Accordingly, my finding and holding is that this suit is statute-barred and I have no discretion to hold otherwise.See the case of Adekoya v. Authority (2008) 4 S.C.N.J. 162, where F. F. Tabai, put it in no uncertain language:
“It is a matter of calculation of raw figures in the determination of whether an action is statute barred or not. A court has no discretion in the matter. It is as stringent as that.”
In spite of this holding, can the submission by the Claimant/Respondent that the limitation law is not applicable to contract obligations be of any assistance to his case? In other words, can that take it within the exceptions to the application of the Public Protection Law of Akwa Ibom State? The answer is in the negative. This is because the applicability of Limitation Law to employment contracts is no longer in doubt. The Supreme Court case of Ibrahim v. Judicial Service Commission, Kaduna State (supra), TajudeenC.1. P.S (supra), is a case in point.This position was confirmedas recent as 21st December, 2016,by the Court of Appeal in Securities and Exchange Commission v. AbiloUboboso unreported Appeal No. CA/A/388/201. The long and short of it, is that the Claimant/Respondent’s argument on contract of employment cannot bringthis claim within the exceptions of the application of the Statutes of Limitation. I so hold.
On the whole, I find and hold that this suit is statute-barred and hereby dismissed. I am fortified in this regard by the dictum of Mahmud Mohammed, J.S.C.(as he then was now retired CJN) in N.P.A. v. Lotus (2005) 12 S.C.N.J. 183:
“Where a defendant raises a defence that the plaintiff’s action is statute barred and the defence is sustained by the trail court, the proper order for the trial court to make is an order of dismissal of the plaintiff’s action and not to merely strike it out.”
Judgment entered accordingly.
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HON. JUSTICE M. A. NAMTARI
