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Hon. Jidda Tom Hassan & Ors V. Borno State Govt & Ors. (CA/K/153/2015, 11 Mar 2016)

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➥ CASE SUMMARY OF:
Hon. Jidda Tom Hassan & Ors V. Borno State Govt & Ors. (CA/K/153/2015, 11 Mar 2016)

by Branham Chima (LL.B.)

➥ SUBJECT MATTER(S)
Statute barred;
Labour law;
Retrial.

➥ CASE FACT/HISTORY
The facts of the case are that the Appellants claim against the Respondents jointly and severally the sum of N205 ,577,862.36 (Two Hundred and Five Million, Five Hundred and Seventy Seven Thousand, Eight Hundred and Sixty Two Naira, Thirty Six kobo) being their outstanding one year severance gratuity owed by the Respondents. The Appellants who were ex-political office holders served the Respondents in positions of Vice-Chairmen, Leaders, Deputy Leaders, Councilors and supervisory Councilors between 2008 and 2010. The remuneration and all other allowances of the Appellants were determined by the Revenue Mobilization, Allocation and Fiscal commission.

After leaving office in 2010, the Appellants had to institute an action before the High Court of Borno State against the Respondents in 2011 wherein they claimed the outstanding balance of their entitlements, to wit, arrears of salary, balance of accommodation and furniture allowance and severance gratuity. While the arrears of salary and furniture and accommodation allowances were paid by the Respondents to the Appellants, their severance gratuity was not paid due to paucity of funds then but on the understanding that same would be paid whenever the financial position of the Respondents improved. While it is asserted by the Appellants that the Respondents failed to pay them their severance gratuity, the Respondents allege that the severance gratuity of the Appellants was cancelled by the Revenue Mobilization Allocation and Fiscal Commission in 2009 when the Appellants were in office.

It was the above that prompted their instituting an action before the High Court of Borno State in 2013 to recover same. After service of the Court processes in the matter was effected on the Respondents, they defaulted in filing their appearance and defence within time and had to seek and obtain leave of the Court to do so out of time. Thereafter, by way of an application, the Respondents prayed the Court to strike out the Appellants’ suit on the ground that the Borno State High Court had no jurisdiction to hear same since the matter involved payment of severance gratuity between employers and employees and thus more of an industrial matter. In his Ruling, the learned Judge of the High Court of Borno State transferred the matter to the National Industrial Court which by law has the jurisdiction to hear the matter and the suit was subsequently assigned to the Kano Division of the National Industrial Court of Nigeria by the President of that Court for hearing.

While the matter was pending for hearing, the Respondents by their counsel filed a Notice of Preliminary Objection challenging the jurisdiction of the Court below to hear same on the ground that the suit was caught up by Section 2(a) of the Public Officers Protection Law of Borno State and thus statute barred. The learned Judge of the Court below without first resolving the issue of the validity and competency of the Respondents’ preliminary objection went ahead to deliver his ruling in the matter which he captioned “Ruling/Judgment” wherein he dismissed the Appellants’ suit that it was statute barred. The Appellants, dissatisfied with the said judgment, appealed vide a Notice of Appeal.

➥ ISSUE(S)
I. Whether by the Preliminary Objection of the Respondents, the trial Court was right to hold that the Appellants’ case was statute barred?

➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]

↪️ ISSUE 1: IN APPELLANT’S FAVOUR, IN PART.

[FAILURE TO PRONOUNCE ON THE COMPETENCE OF THE PRELIMINARY OBJECTION IS NOT THE GRIEVANCE OF THE APPELLANT
‘In pages 4-8 of the Appellants’ Brief, it has been so hotly argued that the trial Court failed to consider and pronounce on the competence of the Preliminary objection filed by the Respondents. I wonder how this has become a grievance to the Appellants in this appeal to become an issue for determination. More so, I had patiently waited to see what injustice or wrong this has occasioned the Appellants, yet I see none. I think the Counsel to the Appellants has done well to cry more for the bereaved! In OMOTESHO v. ABDULLAHI (2008) 2 NWLR (PT.1072) 526 AT 545 PARAS B-D, it was held that the mere consequence of a decision does not vest a person with the status of an aggrieved party. Thus, where a party is not clearly aggrieved by the order of a trial Court itself but by the consequence which arises from it, such a party is not entitled to appeal having not shown his legal grievance. See also MOBIL PRODUCING (NIG.) LTD. v. MONOKPO (2003) 18 NWLR (PT. 852) 346; UBA PLC v. ACB (NIG.) LTD. (2005) 12 NWLR (PT. 939) 232. A party aggrieved, as stated by the Supreme Court in NWAORGU v. ATUMA (No. 1) 2013 9 NWLR [pt. 1358] 113 AT PAGE 129, is a party who has suffered legal grievances or a party against whom a. decision has been pronounced which has wrongfully deprived him of something or wrongly refused him something or wrongly affected his right or title to something. See UNILORIN v. AKINYANJU (2008) ALL FWLR (PT.406) 1989 AT 2005 – 2006, PARAS. G – A (CA), MOBIL PRODUCING (NIG.) UNLIMITED V. MONOKPO (2003) 18 NWLR (PT. 852) 346, (2003) 12 SCNJ 206, (2004) ALL FWLR (PT. 195) 575 (2004) 115 LRCN 3016. I sincerely do not think that the Appellants have any inch of right to formulate any ground of appeal or issue on the competence or otherwise of the Motion filed by the Respondents at the trial Court.’

Available:  Ubaka Ifeajuna v. Charles Nnaife Ifeajuna & Anor (1998) - CA

THE COURT DELVED INTO THE SUBSTANCE OF THE CASE WHILE CONSIDERING THE PRELIMINARY OBJECTION BUT THIS HAS NOT CAUSED ANY MISCARRIAGE TO THE APPELLANT
‘Another issue I am called to consider is whether the trial Court delved into the merit of the case at the stage of Preliminary Objection and went outside the pleadings of the Appellants. This has been conceded-even by the Respondents’ Counsel at paragraph 2.28 and 2.34 of pages 10 and 11 respectively of his brief. It must be observed with disdain that the law forbids what the trial Court did and this Court cannot give its approval. See GLOBAL FISHING IND. LTD v. COKER (1990) 7 NWLR (PT.162) 265, AKAPO V. HAKEEM-HABEEB and ORS (1992) 16 NWLR (PT.247) 266. See also WOHEREM J.P. V. EMEREUWA and ORS (2004) MJSC 108 AT 122, where the Court frowns at going outside the pleadings of the Claimant to decide on the issue of period of limitation. ?The Apex Court in D.P.C.C.L v. B.P.C.L (2008) VOL. 4 M.J.S.C 161 AT 179-179 PARAS E-A, stated that the law is trite that at the stage of interlocutory application, the Court should not attempt to go into the merit of the matter in controversy else it is tempted to determine the case at that stage and leave nothing for the just and proper determination of the suit after the hearing. However, I have not seen where the Appellants have suffered any miscarriage of justice thereof. Thus, the law has been over-flogged that it is not every mistake, slip or error in a judgment that will result in an appeal being allowed since it is only where the error is substantial that it can be seen that it has occasioned a miscarriage of justice which makes it mandatory for the Appellate Court to interfere and have the judgment upset. See TSOKWA MOTORS (NIG.) LTD. V. U.B.A. PLC. (2008) 2 NWLR (PT.1071) 347, ALLI V. ALESINLOYE (2002) 6 NWLR (PT.660) 177 AT 213, EZEOKE V. NWAGBO (1988) 1 NWLR (PT.72) 616.’

THE MATTER IS NOT STATUTE BARRED BEING A LABOUR MATTER
‘I do not think that there will be justice to political office holders and other persons who have dealings with the Government, either of the Federation, the State or the Local Government, to be denied their entitlements, monies for contracts, salaries, allowances, gratuities, pensions, etc, under the guise that they instituted the action after either 3 or 6 months as the case may be. The end of the law is justice.?Obviously, the spirit and intent of the Public Officers Protection Act or Law is not to work out injustice or deny people their hard earned rights. Thus, a person or authority cannot be in a breach of a law or contract and hide under the umbrella of the law. He who comes to equity must come with clean hands. It is the law therefore that for every general rule, there must be exceptions thereto. By “Document number 3” dated 17/12/2009, the Respondents refused to pay the Appellants their allowances and were in breach of their duty, undertaking and commitment to pay them in compliance with the approved Remuneration package in respect of Political Office Holders by the Revenue Mobilization, Allocation and Fiscal Commission. Besides, it must be noted that the claims of the Appellants is for “work and labour done” during their tenure from 2008-2010, as Political Office Holders, which cannot be affected by Sections 2(a) of the Public Officers Protection Law of Borno State, and 145 of .the Borno State Public Officers (Protection) Law, 2000, although it was instituted after 3 or 6 months thereafter. In ENERGY MARINE AND INDUSTRIAL LTD. V. MINISTER OF THE FEDERAL CAPITAL TERRITORY and ANOR. (2010) LPELR-19774(CA), it was held thus: “Even though Section 2(a) of the Public Officers Protection Act stipulates that actions against Public Officers ought to be instituted within 3 months of the act, neglect or default complained of by an aggrieved Plaintiff, but there are some exceptions to that general position of law, for example the law is not applicable in cases of recovery of land, breaches of contract and claims for work and labour done. The above view is fortified by the decision of the Supreme Court in:- – Nigerian Ports Authority v. Constuzoni Generali Farsura Cogefar SPA and Another (1974) 1 All NLR Part 2 Page 463 Or (1974) All NLR Page 945 at 957 where IBEKWE JSC stated as follows:- “… We agree that the Section applies to everything done or omitted or neglected to be done under the powers granted by the Act, but we are not prepared to give to the Section the stress which it does not possess. We take the view that the Section does not apply to cases of contract The Learned Chief Justice, in deciding this point, made reference to the case of. Salako v. L.E.D.B. and Another 20 NLR Page 169 where De Commarmond S. P. J. as he then was, construed the Provisions of Section 2 of the Public Officers Protection Ordinance which is almost identical with Section 97 of the Ports Act, and thereafter stated the law as follows:- “I am of the opinion that Section 2 of the Public Officers Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done etc.” See also F.G.N. V. ZEBRA ENERGY LTD (2002) 18 NWLR (PT.798) 162. Again, on this, the Court held in AKWA IBOM STATE CIVIL SERVICE COMMISSION and ORS V. AKPAN (2013) LPELR- 22105(CA): “On the purport and scope of Section 2(a) of the Public Officers Protection Act, it is well established that the Act given full protection or cover to all public officers or persons engaged in the execution of public duties who at all material times acted within the confines of their public authority and are not acting outside their statutory or constitutional duty. A public officer can be sued outside the limitation period of three months if, at all material times to the commission of the act complained of, he was acting outside the colour or scope of his office or outside his statutory or constitutional duty. Where he acted within the colour or scope of his office, he can only lose protection of the limitation laws if he is sued within three months, Ibrahim v. JSC, Kaduna State (1998) 14 NWLR (Pt 584) Pg. 1.” The provisions of Section 2(a) of the Act considered in the case are the same with the provisions of Section 1(1) of cap 40, applicable to the Respondent’s case before the High Court. Dealing with the same provisions of the Act, the apex Court in the more recent case of A.G., Rivers State v. A.G., Bayelsa (2012) 6-7 MJSC (Pt III) 149 at 181 and 182 had said:- “The Act is intended as much as within the ambit of the law to protect a public officer from detraction and unnecessary litigation, but never intended to deprive a party legal capacity to ventilate his grievance on the face of stark injustice. That is why public officers or heads of the Agencies of the Federation or state are protected; two most important exceptions are prescribed by the Act. Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months. The second exception to the application of the Act as a defence is that it does not cover a situation where the person relying on it acted outside the colour of his office or outside his statutory or constitutional duty.” See also NWANKWERE V. ADEWUMI (1967) NWLR 45 AT 49; ANOZIE V. ATTORNEY GENERAL OF THE FEDERATION (2008) 10 NWLR (PT. 1095) 278 AT 290-291, NIGERIA STORED PRODUCTS RESEARCH INSTITUTE V. BOARD OF INTERNAL REVENUE, KWARA STATE (2013) LPELR-22073(CA).’]
.
.
.
✓ DECISION:
‘The Ruling/Judgment of the National Industrial Court, holden at Kano in Suit No. NICN/ABJ/53/2014, delivered on 9/7/2014 by Hon. Justice Lawal Mani, is set aside and the case is hereby remitted to the President, National Industrial Court of Nigeria for retrial by another Judge of the Court. I make no order as to costs.’

Available:  Josiah Olomosola & Anor. v. Chief Aladire Oloriawo & Anor. (2001)

➥ FURTHER DICTA:
⦿ PRELIMINARY OBJECTION ON JURISDICTION SHOULD BE HEARD FIRST
A preliminary objection seeks to determine a bad process in limine upon grounds of law and thereby saves all the parties involved in engaging in a futile exercise. It follows therefore that the earlier it is raised, the better. See MANSON v. H.E.S. (NIG.) LTD (2001) ALL FWLR (PT. 358) 1067 AT 1094 PARAS E-G. ?Nevertheless, it is trite that where a jurisdictional issue is raised, it must be considered first. This is because jurisdiction is a radical and crucial question of competence. See LAWAL v.. OKE (2001) 7 NWLR (PT.711) 88, A.G. LAGOS STATE V. DOSUNMU (1989) 3 NWLR (PT. 111) 552 AT 566; FUMUDOH v. ABORO (1991) 9 NWLR (PT. 214) 210. It is settled law that the issue of jurisdiction is of such a fundamental nature that must be considered and disposed of first since any adjudication without jurisdiction would amount to a nullity. See ANPP and ANOR. v. PDP and ORS (2006) LPELR-7588(CA), MOYOSORE v. THE GOVERNOR OF KWARA STATE and ORS (2011) LPELR-8813(CA). — U.M. Abba Aji JCA.

Available:  Momoh Jimoh Salau v. The State (2019)

⦿ TO DETERMINE STATUTE BARRED, IT IS TO TAKE A LOOK AT THE ORIGINATING PROCESS
It is foremost to note that in determining the limitation period, it is advisable to look at the processes filed by the Claimants herein the Appellants. In MIL. ADMIN, EKITI STATE v. ALADEYELU (2007) 14 NWLR (PT.1055) 619, it was held by the Supreme Court: “…for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the Statement of Claim only. I will however add, where one has been filed, It is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiffs’ cause of action. When that ascertained date is compared with the date the writ of summons or originating process was filed in Court, it can then be determined whether the action was instituted within the period allowed by law or outside it when it is found that the action was instituted within the period allowed by law, the action is said to be competent and the Court has the jurisdiction to entertain same but where it is found to have been instituted outside the period allowed by law, the action is said to be statute barred and consequently’ the Court is without jurisdiction to entertain same.” — U.M. Abba Aji JCA.

⦿ WHERE THE COURT HAS NO JURISDICTION, THE PROPER THING IS TO STRIKE OUT THE CASE
In the last paragraph of page 306 which contains the judgment of the trial Court, the trial Judge “dismissed” the Appellants’ case for lack of jurisdiction. The Court cannot dismiss a claim the merit of which it is not competent to enquire into. See ADESOKAN V. ADETUNJI (1994) 5 NWLR (PT.346)540. ?In OKWU and ANOR V. UMEH and ORS (2015) LPELR-26042(SC), it was held that the correct position of the law therefore is that where the finding goes to the jurisdiction of the Court and denies it jurisdiction to determine the action, the proper order, in such a situation therefore, is to strike out the claim. See OKOYE V. NIGERIAN CONS. and FURNITURE CO. LTD (1991) 6 NWLR (PT.199) 501, HERBERT OHUABUNWA EMEZI V. AKUJOBI DAVID OSUAGWU and ORS (2005) 12 NWLR (PT. 939) 340, THOMAS V. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669. — U.M. Abba Aji JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Uwani Musa Abba Aji, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
A.J. Igoche, Esq.

⦿ FOR THE RESPONDENT(S)
B. Adamu, Esq., (D.D.C.L.), Ministry of Justice, Borno State.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

End

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