BARR. GABRIEL-OSIMEN ENABOIFO & 3ORS VS THE SPEAKER, EDO

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AKURE JUDICIAL DIVISION

HOLDEN AT AKURE

BEFORE HIS LORDSHIP HON. JUSTICE A.A ADEWEMIMO

DATED: 24^THJANUARY, 2019

SUITNO: NICN/BEN/25/2017

BETWEEN

BARR. GABRIEL-OSIMEN ENABOIFO
MR. JULIUS ASHUMA ASEMOTA
MR. GODDY DADA TSEUMAH
MR. GOODLUCK ADAGBONYIN OKHUAHEROB

CLAIMANTS

AND

THE SPEAKER, EDO STATE HOUSE OF ASSEMBLY
EDO STATE HOUSE OF ASSEMBLY
EDO STATE HOUSE OF ASSEMBLY SERVICE

COMMISSION

ATTORNEY GENERAL OF EDO STATE

DEFENDANTS

REPRESENTATION:-

S. OSIN APPEARS FOR THE CLAIMANTS
I. D. OKEZIE FOR THE 1^ST– 3^RDDEFENDANTS.

I.O. KADIRI (SSC, EDO MINISTRY OF JUSTICE) FOR THE 4^TH DEFENDANT.

JUDGMENT

The Claimants by way of Originating Summons filed before this Court on the 18^thof December, 2017, claim against the defendants as follows:

A Declaration that the Resolution of Edo State House of Assembly (the 2^nd Defendant) passed on 7^th February, 2012 dissolving the Edo State House of Assembly Service Commission (3^rd Defendant) is unconstitutional, invalid, null and void and of no effect whatsoever.

A Declaration that the Claimants cannot be removed from office as Members respectively of the Edo State House of Assembly Service Commission (i.e. 3^rdDefendant) before the expiration of their five years tenure on 31^st March, 2015 except for an established act of misconduct under the Law.
An Order setting aside the aforesaid Resolution of the 2^nd Defendant dissolving the 3^rd Defendant and removing the Claimants from office as members respectively of the 3^rd Defendant.

A Declaration that the Claimants are entitled to their salaries, allowances and fringe benefits for their un-expired tenure as follows:-

1^st Claimant – (Member of 3^rd Defendant)

Entitlements for BARR. GABRIEL OSIMEN ENABOIFO – (Member)

MONTHLY ENTITLEMENT

Basic = 104,175.83
Rent = 78,131.87
Transport = 78,131.87
Utility = 31,252.75
Entertainment = 46,879.12
Domestic = 78,131.87
Personal Assistant = 15,626.37
Newspaper = 15,626.37

Total Monthly = 447,956.05

447,959.05 x 38 months salaries remaining for the

Unexpired term between February 7^th, 2012 – 31^st March, 2015 17,022,329

Unpaid furniture allowance 3,750,330
Leave allowance for 2 years (for 2013 and 2014) 125,011 x 2 250,022
Severance 3,750,330
Grand Total 24,773,011

(Twenty Four Million, Seven Hundred and Seventy Three Thousand and Eleven Naira)

2^nd Claimant – (Member of 3^rd Defendant)

Entitlements for MR. JULIUS ASHUMA ASEMOTA – (Member)

MONTHLY ENTITLEMENT

Basic = 104,175.83
Rent = 78,131.87
Transport = 78,131.87
Utility = 31,252.75
Entertainment = 46,879.12
Domestic = 78,131.87
Personal Assistant = 15,626.37
Newspaper = 15,626.37

Total Monthly = 447,956.05

447,959.05 x 38 months salaries remaining for the

unexpired term between February 7^th, 2012 – 31^st March, 2015 17,022,329

Unpaid furniture allowance 3,750,330
Leave allowance for 2 years (for 2013 and 2014) 125,011 x 2 250,022
Severance 3,750,330
Grand Total 24,773,011

(Twenty Four Million, Seven Hundred and Seventy Three Thousand and Eleven Naira)

3^rd Claimant – (Member of 3^rd Defendant)

Entitlements for MR. GODDY DADA TSEUMAH – (Member)

MONTHLY ENTITLEMENT

Basic = 104,175.83
Rent = 78,131.87
Transport = 78,131.87
Utility = 31,252.75
Entertainment = 46,879.12
Domestic = 78,131.87
Personal Assistant = 15,626.37
Newspaper = 15,626.37

Total Monthly = 447,956.05

447,959.05 x 38 months salaries remaining for the

Unexpired term between February 7^th, 2012 – 31^st March, 2015 17,022,329

Unpaid furniture allowance 3,750,330
Leave allowance for 2 years (for 2013 and 2014) 125,011 x 2 250,022
Severance 3,750,330
Grand Total 24,773,011

(Twenty Four Million, Seven Hundred and Seventy Three Thousand and Eleven Naira)

4^th Claimant – (Member of 3^rd Defendant)

Entitlements for GOODLUCK ADAGBONYIN OKHUAHEROBO (Member)

MONTHLY ENTITLEMENT

Basic = 104,175.83
Rent = 78,131.87
Transport = 78,131.87
Utility = 31,252.75
Entertainment = 46,879.12
Domestic = 78,131.87
Personal Assistant = 15,626.37
Newspaper = 15,626.37

Total Monthly = 447,956.05

447,959.05 x 38 months salaries remaining for the

Unexpired term between February 7^th, 2012 – 31^st March, 2015 17,022,329

Unpaid furniture allowance 3,750,330
Leave allowance for 2 years (for 2013 and 2014) 125,011 x 2 250,022
Severance 3,750,330
Grand Total 24,773,011

(Twenty Four Million, Seven Hundred and Seventy Three Thousand and Eleven Naira)

The Claimants filed in support of the Originating summons an 18 paragraph affidavit deposed to by Gabriel Enaboifo Esq. and a written address, they also filed a 9 paragraph further and better affidavit on 30^th May, 2018, and a list of additional authorities. A.S Osin of counsel for the claimants relied on the affidavits filed and adopted the written addresses on behalf of the claimants.

The 1^st – 3^rd Defendants filed a memorandum of conditional appearance, a 5 paragraph counter affidavit to the originating summons deposed to by Joy Obasi a Female, Litigation Secretary of Ray I.D Okezie accompanied by a written address on the 8^th of May, 2018 in this matter, and on the 20^th of June, 2018 a 4 paragraph further and better counter affidavit was again filed in opposition to the Originating summons. The 1^st -3^rd Defendants earlier filed a motion on notice on the 12^th of March, 2018 praying this court to direct the filing of pleadings in this case and an 18 paragraph affidavit deposed to by the same Joy Obasi. All the parties agreed on the 22^nd of October, 2018, to take this motion together with the Originating summons, R.I.D. Okezie of counsel adopted the written addresses in opposition to the originating summons and his motion on notice at the hearing of the case.

The 4^th Defendant filed his counter affidavit on the 19^th of March, 2018, deposed to by one James Jatto, male, Christian, Senior litigation officer, Edo State Ministry of Justice, it is a 10 paragraph affidavit, I.O Kadiri (SSC) relied on the affidavit and adopted the written address at the hearing.

The claimant in their address formulated two issues for determination;

Whether the removal of the claimants from their respective positions by the 1^st and 2^nd defendants is not unconstitutional, invalid, null and void, and of no effect whatsoever?
If the answer to question 1 above is in the affirmative, what is the remedy available to the claimants?

It is the case of the claimants that they were appointed as members of the 3^rd Defendant by the then Governor of Edo state on the 31^st of March, 2010, and the 1^st and 2^nd Defendants by a resolution dissolved the 3^rd Defendant and they were removed from office. On the 1^st issue, A.S Osin of counsel for the claimant submitted that the claimants’ appointment was statutorily protected, in that they have a fixed tenure of 5 years and they cannot be unilaterally removed without due adherence to the statute guiding their appointment or the principle of fair hearing as enshrined in Section 36 (1) of the Constitution. Learned counsel submitted that their removal without the approval of the Governor was unconstitutional, and the 2^nd Defendant cannot exercise the powers of the Executive, stating that the 1^st and 2^nd Defendants did not comply with the method of their removal as prescribed by statute. He cited Olaniyan V. University of Lagos 1985 2 NWLR Part 9, 599 and several other cases. Counsel submitted that having not complied with the prescribed procedure, the consequence is that their removal was a nullity, on this he cited Governor of Kwara State V. Ajibara 2006 18NWLR Part 102, 645,:661, and urged the court to resolve this issue in his favour.

On issue 2, claimants’ counsel submitted that, the remedy available to the claimants if the court rules in their favour are the salaries and allowances for their unexpired tenure, as the consequence of the finding is that in the eyes of the Law the claimants have not been removed and are therefore entitled to all the benefits attached to their office, he referred again to Kwara State Government V. Ajibara supra, and stated that the remuneration due to the claimants are as set out in 2^nd Schedule of the Political and Public Officers Emolument Law, 2007 of Edo State, and their right to same has been established by them. He concluded by urging the court to enter Judgment for the claimants.

The learned counsel for the 1^st -3^rd Defendants in his address in opposition to the originating summons, dated and filed 8th May, 2018, formulated two issues for determination to wit:

(1) Whether having regard to the findings of this Honourable court in its judgment of 25^th September, 2017 in Suit No. NICN/AK/35/2013, the claimants herein were not unlawful and illegal occupants and/or appointees of the offices alleged by them as the basis for the claims and reliefs they are seeking in this suit.

(2) And if issue (1) above is answered in the affirmative, whether the claimants herein are imbued with any legal rights to support and/or to be entitled to the grant of the reliefs and/or claims they have itemized in their originating summons.

Counsel submitted that the two issues, are relatively interwoven and that by virtue of the findings of this court contained in Suit No. NICN/AK/35/2013, of 25^th of September, 2017, delivered by my learned brother O. Oyewunmi. J. the appointments upon which this suit is premised were unlawful, illegal and unconstitutional, such that no legal rights can issue from them to entitle them to the reliefs being sought by them in in the present suit.

Counsel pointed out that the findings of the court in the aforementioned judgment revealed that the tenure of the Claimants in that case was for five (5) years with effect from the 21^st of February, 2007 to 21^st February, 2012, and that their tenure preceded that of the claimants in this present suit and was subsisting when the claimants in the present suit were illegally appointed as members of the 3^rd Defendant.

He further submitted that the implication of the cited Judgment is that the appointment of the claimants in the present suit was unlawful since at the time of their appointments, there were no vacancies as the tenure of the earlier occupants were yet to expire.

Counsel submitted that where appointments were unlawfully made or illegally secured as found in the cited Judgment, no legal right can accrue or inure to the appointees such that could entitle them to claim any legal right against the

Defendants. He cited the case of U.A.C. v. MACFOY (1962) AC 158, to buttress this position.

He further submitted that by the rule of stare decisis, this court is bound by its previous decision, the only exception under the rules is as set down in Young v. Bristol Aeroplane Co. 1944 1KB 718.

Learned counsel urged the court to follow the decision in NICN/AK/35/2013 and hold that since the appointments of the claimants were still subsisting as at 24^th of February, 2010 when the claimants in this suit were appointed, the said appointments were unlawful, illegal, null and void and of no effect whatsoever.

He finally urged the court to resolve the two issues raised above in favour of the 1^st – 3^rd defendants herein and dismiss this suit for grossly lacking in merit.

In arguing his motion on Notice, learned counsel for the 1^st – 3^rd Defendants prayed this court to direct the parties in this suit to file and exchange pleadings and conduct the trial of this case in accordance with the rules on pleadings. The grounds of the application are stated as follows:

This suit is predicated on contentious facts such that it cannot be lawfully commenced vide Originating Summons.
That 1^st – 3^rd Defendants/Applicants have a defence of Res Judicata against the Defendants.
That the Claimants/Respondents lack the legal rights and/or capacities to institute and maintain this action against the 1^st – 3^rd Defendants/Applicants by virtue of the Judgment of this Honourable Court in Suit No. NICN/AK/35/2013 dated 25^th September, 2017.

In support of the application is a written address where a sole issue was formulated for determination to wit:

“Whether the Defendants/Applicants have not shown by their affidavit evidence that the facts of this suit are essentially contentious such that it cannot be commenced by Originating Summons.”

Learned counsel noted that the claimants did not file any counter affidavit to his application and urged the court to hold that their application is unopposed and grant same. He submitted that it is a settled rule of law that matters which are contentious in nature in any form should be commenced by writ of summon and statement of claim to enable the parties therein plead and cross plead as to sufficiently ventilate their grievances to enable the court arrive at a final and lasting determination of the issues brought before it by the parties for resolution. Counsel argued that it is also the law that Originating Summons is used only for non-contentious actions, that is, those actions where facts are not likely to be in dispute. He cited Anagwu v. I.N.E.C. [2012] All FWLR (pt 652) p. 1689 at pp. 1729-1730, paras D-C and others, and that the facts contained in the affidavit evidence of the Defendants/Applicants supporting this application overwhelmingly discloses that the facts are very contentious, and that the Originating Summons initiated by the claimants to commence this action will grossly prejudice the Defendants. He cited the provisions of Order 3, Rule 17(2) of the rules of this Court and urged the court to grant his application by directing parties to file and exchange pleadings for the purpose of trial.

The 4^th defendant in his written address formulated a lone issue for determination to wit:

“Whether this suit is competent”

I .O Kadiri of counsel for the 4^th Defendant raised the issue of jurisdiction and argued that this suit is incompetent in that same was filed outside the Limitation period prescribed by Section 2(a) of the Public Officers’ Protection Law, Cap 137 Laws of the Defunct Bendel State, 1976 as applicable to Edo State. He argued that the Defendants are public officers as defined under the CFRN 1999, and that the Claimants had three (3) months after 7/2/2012 when the cause of action arose i.e when their appointments were terminated to initiate a suit against the Defendants, but filed this suit on 18/12/2017, 5 years, 10 months and 11 days after the cause of action arose. He therefore submitted that the claim of the claimants is stale, statute barred and unenforceable, counsel cited the following cases; EMIANTOR vs. NIGERIA ARMY (1999) 72 LRCN 3132 at Page 3143 Paragraphs D-E; IBRAHIMS vs. OSIM (1987) 4 NWLR (part 67) 965 and others in support of his submission.

He urged the court to hold that this suit is statute barred and dismiss same with punitive cost.

The Claimants in response filed a reply to the 4^th defendant’s counter affidavit on the 25^th of October, 2018 and argued that the defendants argument challenging the jurisdiction of this Court to hear and determine the originating Summons filed by the claimants are frivolous, vexatious and devoid of merit. He stated that claims as endorsed in their originating summons are for breach of an existing contract of appointment and a declaration that the claimants are entitled to their salaries, all allowances and fringe benefit for their un-expired tenure. He further stated that Section 2(a) of the Public Officers Protection Act, does not apply to cases founded on contracts, claim for Work/Labour done etc. He urged the court to dismiss the 4^th Defendant’s counter affidavit and grant the reliefs in this suit.

I have carefully considered all the processes filed by all the parties in this suit, the submissions and the authorities cited. I have come up with a sole issue for the determination of this suit to wit;

Whether or not the court has the requisite jurisdiction to adjudicate over this suit.

It is the argument of the 1^st – 3^rd Defendants that the Claimant instituted this action outside the three months statutory period required for instituting an action against a public officer, and that in as much as the Defendants are public officers the action cannot be maintained against them outside the statutory period provided by Section 2(a) of the Public Officers Protection Law, Cap 137 Laws of the Defunct Bendel State, 1976 as applicable in Edo State.

The Claimants on the other hand argued that claims as endorsed in their originating summons are for breach of an existing contract of appointment and a declaration that the claimants are entitled to their salaries, allowances and fringe benefit for their un-expired tenure. Learned counsel further stated that the Law cited which is the basis of the defendants counter- affidavit and written address does not apply to cases founded on contracts, claim for Work/Labour done etc.

It is trite that jurisdiction is the threshold upon which a matter stands or collapses as it goes to the root of a case and it forms the basis upon which a court can entertain a suit. The jurisdiction gives life or otherwise to a suit. The jurisdiction of a court, once challenged should be determined first and foremost before delving into the main issue(s) in a case. See the case of Senate President v. Nzeribe (2004)9 NWLR (Pt 878) P251-257. In order to determine the jurisdiction of a court, a careful examination of the originating processes is required to ascertain if indeed a court possesses the requisite jurisdiction to entertain same. See the case of Corporate Affairs Commission v. The Governing Council of the Industrial Training Fund and Anor [2015] 1 NWLR (1439) P114.

A careful perusal of the originating processes discloses that the 1^st -3^rd defendants are in the Legislative arm of Edo state Government, while the 4^th Defendant is the chief law officer of the state. The claimants were appointed as members of the Edo State House of Assembly Service Commission (3^rd Defendant) on the 2^nd day of April, 2010 but with effect from 31^st of March, 2010. The commission was later dissolved vide a resolution of the 1^st and 2^nd Defendants on the 7^th February, 2012.

It is a notorious fact that the defendants in this suit are public officers, section 318 (h) of the 1999 constitution as amended defines public service of the federation as the service of the federation in any capacity in respect of the Government of the federation, while public officers is defined in the Interpretation Act as an officer in the public service of the federation or the State.

The court has elaborated on the term public officer in Asogwa v. Chukwu [2003] 4 NWLR (PT 811) 540 at 551, Per Aboki JCA: ‘the term public officer referred to in the interpretation Act can only be described to be referable to those enjoying employment with statutory flavors as reflected in section 318(1) of the constitution as amended”

Continuing section 2(a) of the public Officer Protection Act provides a shield for officers in the public service to the extent that an action against a public officer ought to be instituted within 3 months of the act; neglect or default complained of by the aggrieved party. It provides as follows;

Where an action, prosecution or proceedings is commenced against a person for any act done in pursuance or execution or in intended execution of any law or any public duty or authority, or in respect of any alleged neglect or default in the execution of any such law duty or authority, the following provision shall have effect-

(a) The action, prosecution or proceedings shall not lie or be instituted unless it is commenced within 3 months next after the Act, neglect or default complained of, or in a case of continuance of damage or injury, within three months next after the ceasing thereof’’

The law is clear that an action is said to be statute barred when it is barred by the provision of the law or enabling statute i.e once the time limit within which certain actions or steps are to be taken has lapsed, see Araka v. Ejeagwu (2000)12 SC (PT 1) 99, Daewoo Nigeria Ltd v. Project Masters Ltd (2010) LPELR 4010 (CA). The issues raised by counsel in this suit affects the competency of this court to hear this suit and as such the court has the duty to ascertain from the pleadings/ originating processes of the claimant and determine when the cause of action arose, and if it is found that the date is beyond the period prescribed by the limitation law, the action is statute barred, see Woherem J P v. Emereuwa & Ors (2004) 6-7 SC 161; Kofa & Anor v. Kaita & Ors (2011) LPELR 8952 (CA); Where the court of appeal Per Ogbuinya J.C.A held that;

“The formula for measuring statute bar is very simple. The court is enjoined to examine a writ of summons or statement of claim, filed by the party, which invariably discloses when (the date) the cause of action arose and situates it with the date when writ of summons or action was filed in court. If the date of filing as endorsed on the writ is beyond the period allowed by limitation law, then the action is statute barred. If the period is within the time frame prescribed in the limitation statute, then it is not caught/statute barred. See Duzu v. Yinusa (2010) 10 NWLR (1201) 80; Hassan v.Aliyu (2010)17 NWLR (PT 1223) 547; Elabanjo v. Dawodu (2006) 15 NWLR (1001)…..”

In the case of Mrs. O Adekoya v. Federal Housing Authority [2008] 4 SC 167 the court stated that a cause of action arises the moment a wrong is done to the plaintiff by the defendant; and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a court of law by way of enforcement.

The background of the instant suit is that the claimants’ appointment as members of the 3^rd Defendant was terminated in 2012, and their grouse is that their appointment was statutory for a certain term which was due to terminate in 2015, and that the 1^st -3^rd Defendants unlawfully terminated their tenure before its expiration. They therefore instituted this action for the court to resolve the questions raised in their Originating Summons and declaratory reliefs mandating the Defendants to pay their allowances, fringe benefits and salaries for the unexpired term of their tenure.

It is not in dispute from the fact in this case that the cause of action in this suit arose on the 7^th of February, 2012 when the 2^nd Defendant dissolved the 3^rd Defendant.

A look at the originating summons and affidavit in support of this suit discloses that the suit was filed on the 18^th day of December, 2017, paragraphs 9 of the affidavit in support also reveals that the cause of action in this suit arose on the 7^th day of February, 2012 when the 1^st and 2^nd Defendants passed a resolution dissolving the 3^rd defendant and thereby removing the claimants from their respective offices.

Claimants’ counsel contended that a public officer can be sued outside the limitation period of three months if at all times material to the commission of the act complained of, he was acting outside the colors of his office or outside the statutory or constitutional duty. He further contended that by section 2(a) of the Public Officers Protection Law Cap 137, Law of Bendel State, 1976 as applicable to Edo State, the Defendants must show that they acted within the law. The 4^th defendant founded their objection on the facts set out in paragraph 7 of their counter-Affidavit, filed in opposition to the Originating Summons, and the summary of the deposition is that the Defendants are public officers, whose actions are covered under the limitation law and that the claimants’ action is statute barred.

It is trite law that he who assert must prove. Section 131 and 132 of the Evidence Act, 2011, provides thus;

1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. (Underlining mine for emphasis).

The contention of the claimants that the Defendants acted in bad faith, and that this case is not affected by the Public Officers Protection Law is not supported by settled authorities and the facts in this case, as the termination of their appointment brought the employment relationship to an abrupt end, which ought to have been resolved three months next after the cause of action arose, so the issue of contract or work or Labour done will not arise in this case, See Bureau of Public Enterprises v. Reinsurance Acquisition Group Ltd & Ors. [2008] LPELR-8560 (CA); F.G.N v. Zebra Energy Ltd [2002]18 NWLR (Pt.798) 162; Mbonu v. Nigeria Mining Corp. [2006] 13 NWLR (Pt.998) pg.659

The principal claim this court is called upon to resolve in this suit is whether the defendants has the power to dissolve the 3^rd Defendant in 2012. This gave rise to a cause of action for the claimants, however having regard to the provisions of the Public Officers Protection Act/ Law, any action against the Defendants who are public officers must be initiated within three months after the cause of action arose, this the claimants failed to do, hence I find that to resolve the principal claim, the Claimants should have initiated legal action within three months after the dissolution. I so hold.

The time lag between the 7^th day of February, 2012 when the cause of action arose and 18^th day of December, 2017 reveals a period of 5 years and 10 months. The Claimant instituted this action after 5 years and 10 months, clearly outside the 3 months prescribed period under the limitation law. The Claimants’ case is therefore statute barred having been caught by the Public Officers’ Protection Law, Cap.137, Laws of the Defunct Bendel State as applicable in Edo State.

Furthermore, it is trite that where the main relief that birthed the ancillary reliefs fails, then the latter will also fail, as they have no leg to stand on. See the case of Atunka & Anor v. Aboki & Anor [2016] LPELR-41199 (CA). The holding above will affect all the other reliefs in this case, as the issue of jurisdiction transcends all of the reliefs.

Having held that this case is statute barred, I find it unnecessary to delve into the 1^st– 3^rd Defendants application to convert this suit to pleadings, as the foundation of this suit has been removed and the issue of jurisdiction takes precedence over any other application.

It is trite that the issue of statute of limitation affects the foundation of a suit thus affecting the life and existence of the case, and consequently affects the competence of the court to entertain same. See Magaji v. Nigerian Army [2008] 8 NWLR (pt.1089) 388 @ 393. Para D (SC)

It is also settled law that where a defendant raises a defence that the claimant’s action is statute barred in his statement of defence or by way of preliminary objection or in any way and the court upholds and sustains the defence, the proper order for the court to make in such a circumstance is dismissal. See Yakubu & Anor. V. NITEL &Anor [2005] LPELR-11909 (CA); Eboigbe v. NNPC [1994] 5 NWLR (Pt 347) 649; Etim v. IGP [2001] 11 NWLR (Pt 724) 266 at 285

This suit is hereby accordingly dismissed having been found to be statute barred contrary to the provisions of Section 2(a) of the Public Officers’ Protection Law, Cap. 137, Laws of the Defunct Bendel State as applicable in Edo State.

I make no order as to Cost

Judgment is accordingly entered.

Hon. Justice A. A. Adewemimo

Judge