IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE
HOLDEN AT JOS
ON THURSDAY THE 11TH DAY OF OCTOBER, 2018
BEFORE HIS LORDSHIP: JUSTICE M. I. SIRAJO ……………….…….….JUDGE
SUIT No. PLD/J280/2014
BETWEEN:
QUMECS NIG. LIMITED ……………………………………………PLAINTIFF/RESPONDENT
AND
The plaintiff took out a Writ of Summons against the defendants claiming various sums of money being the unpaid amount of Certificate of Valuation, interest over the unpaid amount, interest over paid amount due to delayed payment, price variation over Bisichi and Bukuru projects as well as compensation for wrongful determination of contract without notice and the accrued loss that followed the determination. The details of the plaintiff’s claim are particularized at paragraph 104 of the Amended Statement of claim.
This suit is a fall out of the termination of two main contracts for the construction of Bukuru Low Cost – Nyango – Gyel Road and Bisichi - Korot – Fan - Rite -Mangu Halle Road awarded by the defendants to the plaintiff in 2008 as well as some other subsidiary road construction contracts.
In response to the claim, the defendants filed a statement of defence and also a notice of preliminary objection to the competence of the suit. The preliminary objection is predicated on two grounds; to wit;
“1. That this suit, having been instituted over two years after the termination of the contract is statute barred and in breach of section 2(a) of the Public Officers’ Protection Law Cap III Laws of Northern Nigeria, 1963 applicable to Plateau State.
2. That based on the terms and conditions of the Contract Agreement executed by both parties particularly clause 66 of the standard conditions of contract (Road Works) vol. 1, any dispute arising from this Agreement must first be submitted to arbitration.”
The defendants sought for an order striking out the suit for want of jurisdiction or an order dismissing the suit. In support of the preliminary objection is an affidavit of 8 paragraphs sworn to by one Laraba Peter, a litigation clerk in the Ministry of Justice, Jos. There is also a written address of counsel settled by T. P. Chigero, Esq, Senior State Counsel. This Ruling is in respect of the preliminary objection.
Responding to the preliminary objection, the plaintiff filed a counter-affidavit of 16 paragraphs deposed to by one Francis Michael, a litigation clerk in the law firm of J. J. Usman & Co; of Area 8, Garki Abuja. A. G. Adama, Esq, settles the written address filed along with the counter-affidavit. Learned Counsel, T. P. Chigero Esq and J. J. Usman Esq adopted the processes filed on behalf of their respective clients when the preliminary objection came up for hearing on 18/07/2018.
In his written address, T. P. Chigero Esq formulated two issues for determination as follows:
In a similar vain, learned counsel for the plaintiff/respondent formulated the following two issues for determination –
The issues formulated by the parties are similar and carry the same meaning though worded differently. I have decided to adopt the issues formulated on behalf of the defendants/objectors in the determination of this preliminary objection.
In an exhaustive and lengthy argument, laced and garnished with several judicial authorities, learned senior State counsel submitted in respect of issue one that the plaintiff’s suit is statute barred having been filed more than three months after the alleged breach of the contract by the Governor of Plateau State and therefore cannot be heard by this Court. Heavy reliance is placed by the learned Senior State counsel on section 2 of the Public Officers Protection Law, CAP 111, Laws of Northern Nigeria, 1963, applicable to Plateau State.
It is also argued that since the Governor and all Commissioners falls within the definition of Public Officers, their official actions are covered and protected by the Law in question. He urged the Court to hold that this suit is statute barred having been commenced two years after the alleged breach of contract and to proceed to decline jurisdiction to entertain same.
Mr. Chigero also objected to the competence of the counter-affidavit and written address filed on behalf of the plaintiff/respondent on the ground that same was filed out of time.
In response, learned counsel for the plaintiff/respondent conceded that the defendants are Public Officers whose actions in pursuance or execution or intended execution of any Act or Law or of any public duty or authority cannot be challenged in Court after three months as provided for by section 2 of the Public Officers Protection Law. He submitted that the protection provided Public Officers by the Public Officers Protection Law does not extend to action for breach of contract which is the foundation of the present suit. Learned counsel cited several judicial authorities to buttress his submission while urging the Court to hold that Section 2 of the Public Officers Protection Law does not apply to the instant suit. It is further argued for the plaintiff/respondent that the statutory provision applicable to this suit is section 18 of the Limitation Edict, No. 16 of 1988, which provides that action for breach of contract shall not be brought after the expiration of 5 years from the date the cause of action accrued. Learned counsel contended that since the cause of action in the instant suit accrued on 8th June, 2012 and this suit was filed on 3rd June, 2014, Section 18 of the Limitation Law cannot operate to render the suit statute barred. The Court is urged to resolve this issue in favor of the plaintiff/respondent.
On the contention of the objectors that the counter-affidavit is incompetent, learned counsel submitted that by section 15 (4) (5) of the Interpretation Act, the Plaintiff/respondent is not out of time in filing his counter-affidavit.
I will address the above challenge to the competence of the counter-affidavit here and now. The notice of preliminary objection was served on the plaintiff/respondent on 2nd November, 2016. The plaintiff/respondent’s counter- affidavit was filed on 9th November, 2016, 7 days after service. Paragraph 3.02 of the Practice Direction No. 1 of 2007 provides that a counter-affidavit in opposition to any application shall be filed within 5 days of the service of the application.
In determining whether the counter-affidavit in the instant application was filed within time or not, I shall have recourse to the provision of Order 22 Rule 1 (c) of the High Court of Plateau State (Civil Procedure, Rules, 1987, which provides:-
“1. Where by any written law or any special order made by the Court in the course of any proceedings, any limited time from or after any date or even is appointed or allowed for the doing of act or the taking of any proceeding, and such time is not limited by hours, the following rules shall apply.
(a)
(b)
(c ) Where the time limited is less than five days, no public holiday, Saturday or Sunday shall be reckoned as part of the time.”
The implication of this provision is that where the time prescribed for doing any act is five days or more, then public holidays, Saturday and Sunday shall be reckoned with in the computation of time.
In the instant case, since the Practice Direction provides for 5 days for filing a counter-affidavit, public holidays, Saturday and Sunday shall be part of the time to be taken into account. It would have been otherwise if the time provided is less than 5 days. Therefore, by filing his counter-affidavit on the 7th day after service of the notice of preliminary objection, the plaintiff/respondent is clearly outside the time allowed by the practice direction. Having not applied for and obtained leave for extension of time before or after the filing of the counter-affidavit, the plaintiff’s counter-affidavit is incompetent. The Interpretation Act relied upon by learned counsel for the plaintiff/respondent is inapplicable here as the Rules of Court has clearly made adequate provisions for computation of time. Furthermore, the Interpretation Act is not intended for use in the interpretation of State Laws and other instruments. It is an Act promulgated to aid the interpretation of enactments made by the National Assembly and Instruments issued by the Federal Government. In the circumstance, the counter-affidavit filed on the 9th November, 2016, seven days after the service of the Notice of Preliminary Objection on the plaintiff/respondent, is incompetent, same having not been filed with leave of Court. It is hereby discountenanced.
Assuming I am wrong in discountenancing the counter affidavit and the written address filed along with it, I will now proceed to deal with the objection as if the counter-affidavit was properly filed.
I will start by addressing the applicability or otherwise of the Public Officers Protection Law, CAP 111, Laws of Northern Nigeria, 1963, to Plateau State in the light of the enactment of Edict No. 16 of 1988 titled “The Limitation Edict.”
Section 18 of the Limitation Edict or Law, 1988, provides inter alia; that action for breach of contract shall not be statute barred if commenced within five years from the date the cause of action arose. This is the extant law that governs limitation of periods for instituting actions for breach of contract and other classes of actions. The Public Officers Protection Law, CAP 111, Laws of Northern Nigeria, 1963, ceases to have legal effect in Plateau State since the coming in to force of the Limitation Edict in 1988. I have expressed this view in a recent case, and still tenaciously hold on to the same view. In the case of H.R.H. Mr. Jauro Magaji (The Ujah of Anaguta Chiefdom, Jos North L.G.A, Plateau State) vs. Governor of Plateau State and 3 others, suit number PLD/J222/2017, I held at pages 17 and 18 of the unreported judgment delivered on 26th April, 2018 as follows:-
“Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) listed matters which are within the Exclusive Legislative List. Item 53 thereof is the Public Service of the Federation. The implication is that only the National Assembly can legislate on matters pertaining to the Federal Public Service and its Officers. Meanwhile, with the respect to the State Public Officers, the Public Officers Protection Laws of the various States applies. In the case of Plateau State, the applicable law was the Public Officers Protection Law, CAP 111 Laws of Northern Nigeria, 1963. However, with the enactment and coming into force of the Limitation Law of Plateau State in 1988, the Public Officers Protection Law ceases to have effect in Plateau State by virtue of Section 44 thereof which provides:
“Any enactments relating to the Limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to exist.”
It may be argued that the above quoted provisions only abrogated existing Limitation Laws and therefore does not apply to Public Officers Protection Law. However, Section 42 of the Limitation Law puts the issue beyond argument. That section provides for time limit for institutions of actions against the state and public authorities and officers. It provides:
“Notwithstanding anything contained in any other enactment or rule of law to the contrary, all actions to which this Edict applies howsoever arising against the State or against any state public authority, or officer thereof or any person acting in the stead of such public authority or officer thereof, for anything done or intended or omitted to be done in pursuance or execution of any such act, duty or authority or in respect of any neglect or default in the execution of any such act, duty or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual.”
In the circumstance therefore, I agree with Mr. Ugwuala that the Public Officers Protection Act and the Public Officers Protection Law cannot afford the defendants any protection from legal action as they are inapplicable for the reasons stated supra.”
I adopt the views expressed and quoted above in its entirety. I accordingly hold that the instant suit, which was filed in June, 2014, two years after the termination of the contract in June, 2012, was initiated within the time permitted by law, as the Public Officers Protection Law which limits the institution of actions against public officers to three months, no longer has legal force in Plateau State.
Assuming again that I am wrong in so holding, which I did not concede, I will now consider the position of the Public Officers Protection Law as it relates to cases of specific contracts. Section 2 (a) of the Public Officers Protection Law CAP 111, Laws of Northern Nigeria, 1963 provides:-
“Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or Law or of any public duty or authority the following provisions shall have effect –
a. the action, prosecution, or proceeding 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 thereof”
These types of statutory provisions are intended to shield or protect public officers in the execution or intended execution of their duties and to limit law suits which would hinder them in the performance of their functions. In interpreting provisions similar to the one quoted supra as contained in the Public Officers Protection Act, Public Officers Protection Ordinance, section 97 of the Port Act and section 26 (1) (a) of the Nigerian Agricultural Insurance Act, the Court of Appeal and the Supreme Court held, among other things, that the provisions do not apply to cases of breach of specific contract. See
F.G. N. vs. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162;
Salako vs. L. E. D. B. 20 NLR 169;
Nigeria Ports Authority vs. Constrizioni (1974) 1 ALLNLR (Pt. 2) 463;
Wema Securities and Finance PLC
vs.
Nigeria Agricultural Insurance Corporation (2015) LPELR- 24833 (SC)
In the case of Wema Securities and Finance PLC (supra), Nweze, JSC held at 64 - 65 after a thorough review of plethora of authorities, that –
“It is now settled that section 2 of the Public Officers Protection Act and all such enactments similarly worded like it for example, Section 26 (1) (a) and (b) of the Nigerian Agricultural Insurance Act, do not apply to cases of contract…. To hold otherwise would be to negate the general principle upon which the law of contract is based.”
Daniel-Kalio, JCA in Ojediran vs. The Governor of Oyo State (2013) LPELR-21116 (CA) further elucidates the rationale for the non-applicability of the Public Officers Protection Law to cases of contract, in the following words:-
“The rationale for the provision that the Public Officers Protection Act does not apply to cases of contract is probably rooted in the maxim pacta sunt servanda i.e. agreements must be kept. It seems to me that it will be a negation of the age old concept of sanctity of contracts if a party to it being a public officer when sued, takes refuge under the Public Officers Protection Act.”
The net effect of all these authorities is that in cases involving specific contract, such as the one in this suit, public officers who are parties to such contracts cannot be afforded the protection provided for in the Public Officers Protection Act or Law. Accordingly, I resolve issue 1 against the defendants/objectors by holding that even if the Public Officers Protection Law is applicable to Plateau State, it cannot avail them as to render this suit incompetent.
I shall now proceed to the second issue, which is –
“Whether this suit as presently constituted is not premature same having not been instituted in compliance with clause 66 of the Standard Condition of Contract.”
Presenting argument on issue 2, Mr. Chigero submitted that clause 66 of the Standard Conditions of Contract, which was incorporated into the contract entered into by the parties herein by virtue of paragraph 2 (b) of the contract agreement, makes provision for reference to arbitration in the event of dispute or disagreement. He argued, that the failure of the plaintiff to resort to this internal mechanism for dispute resolution before coming to Court renders the plaintiff’s suit premature and incompetent and robs the Court of jurisdiction to entertain same. It is submitted for the defendants/objectors that resort to arbitration is a condition precedent to the institution of any suit by any of the parties to the said contract. The Court is urged to dismiss and/or strike out the suit. Learned counsel cited and relied on the following authorities:-
Alabi vs. Kwara State Polytechnic (2012) LPELR-921; Onyekwelu vs. Elf Petroleum (2009) 2 SCNJ 58 @ 70; N.N.P.C vs. Lutin Investments (2006) 1 SCNJ 131 @ 143 – 144; Agbareh vs. Mimra (2008) ALL FWLR 568; Madukolu vs. Nkemdilim (1962) NSCC 374 at 379- 380.
In his reply submission, A. G. Adama Esq, who settles the written address filed on behalf of the plaintiff/respondent, submitted that all the authorities cited by the learned Senior State Counsel are not apposite to this case as they are clearly distinguishable. He submitted that clause 66 of the Standard Condition of Contract which provides for reference to arbitration cannot oust the jurisdiction of this Court. He submitted that a party to an agreement with arbitration clause has the option to either submit to arbitration or to have the dispute decided by the Court. On this submission, learned counsel referred the Court to City Eng. (Nig.) Ltd vs. F. H. A. (1997) 9 NWLR (pt. 520) 224 @ 240; L. A. C vs. Air Atlantic Nig. Ltd (2006) 2 NWLR (Pt. 963) 49 @ 73.
It is the further argument of Mr. Adama that the defendants cannot at this stage complain that the plaintiff has not referred the matter to arbitration after taking steps in the proceedings, which include filing of pleadings. He urged the Court to dismiss the preliminary objection after placing reliance on section 5 (1) of the Arbitration and Conciliation Act, 1990 and the authority of Sino-Afric Agriculture & Ind. Co. Ltd vs. Ministry of Finance Incorporation (2013) LPELR-22370 (CA).
Both parties are agreed that in the Road construction contract agreement between them, the Standard Conditions of Contract (Road Works) was incorporated in paragraph 2 (b) thereof as forming part of the agreement. The parties are also at one that clause 66 of the Standard Conditions of Contract provides that in the event of any dispute between the parties, resort shall be heard to arbitration for resolution of the said dispute.
Upon a calm reading of clause 66 of the Standard Conditions of Contract, I discovered that even before a dispute is referred to an arbitrator, it shall first be referred to the Engineer for settlement. It is when either of the parties is dissatisfied with the decision of the Engineer that the matter shall be referred to an Arbitrator either jointly appointed by the parties or by the Chief Judge. The parties to the Contract, whose execution leads to this dispute have appended their hands to both the Contract Agreement and the Arbitration Contract, which in the eyes of the law is a different and distinct Contract. I am in agreement with Mr. Adama that the arbitration clause cannot oust the jurisdiction of this Court. This has been judicially settled. In the case of –
R. C. Omeaku & Sons Ltd vs. Rainbownet Limited (2013) LPELR-22055 (CA), Okoro, JCA (as he then was), now JSC, said at pages 13 – 14 of the report:
“I wish to add here that an arbitration clause in an agreement is only procedural in that a provision whereby the parties agree that any dispute should be submitted to arbitration does not exclude or limit rights or remedies but simply provides a procedure under which the parties may settle their grievances. It is not, as I said, an exclusion or ouster clause properly so called. Thus, the parties are free, such clause notwithstanding, to pursue their claims in the Courts subject of course, to the rights of the Court to grant a stay of proceedings.”
Not being an exemption or exclusion clause, an arbitration clause cannot oust the jurisdiction of the Court. However, such a clause has the capacity to delay the exercise of the Courts’ jurisdiction until the provisions of the agreement freely entered into by the parties with regard to reference to arbitration is complied with. The essence of this is to give effect to the intention of the parties as expressed by them in the contract agreement. See the case of R. C. Omeaku & Sons Ltd (supra) where the same Okoro, JCA, held at page 12 as follows;-
“It is now well settled that where parties to an agreement make provision for arbitration before an action can be instituted in a Court of Law, any aggrieved party must first seek the remedy available in the arbitration. It is also a sound principle of law that where a plaintiff fails to refer the matter to arbitration first, but commences an action in a Court of law, a defendant shall take step to stay the proceedings of the Court and the Court will stay proceedings if it is satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission.”
The Supreme Court, per Iguh, JSC in The Owners of M. V. Lupex vs. Nigerian Overseas Chartering and Shipping Ltd (2003) LPELR-3195 (SC) held:
“The law is also settled that the mere fact that a dispute is of a nature eminently suitable for trial in a Court is not a sufficient ground for refusing to give effect to what the parties have, by contract, expressly agreed to … So long as an arbitration clause is retained in a contract that is valid and the dispute is within the contemplation of the clause, the Court ought to give due regard to the voluntary contract of the parties by enforcing the arbitration clause as agreed to by them”
In the instant suit, I cannot do less. In view of the incorporation of the Standard Conditions of Contract which contained an arbitration clause in their contract agreement, the parties herein have agreed to refer their dispute to arbitration and not directly to Court. Having not referred the dispute to arbitration before jumping to Court, the plaintiff has failed to fulfill the condition precedent for the exercise of the jurisdiction of this Court over his dispute with the defendants. Having arrived at this conclusion, what then is the fate of this suit? Should the proceedings be stayed pending referral to and conclusion of arbitration or should it be struck out?
Answers to these posers can be found in the Arbitration and Conciliation Act. Section 5(1) of the said Act provides:
“5 (1) If any party to an arbitration agreement commences any action in any Court with respect to any matter which is the subject of an arbitration agreement, any party to the arbitration may, at any time after appearance and before delivering any pleadings or taking any other steps in the proceedings, apply to the Court to stay the proceedings.”
It is clear that while the Court is empowered by the Act to stay proceedings pending arbitration, the Act restricted the exercise of that power to cases where the party asking for a stay, that is, the defendant, did not take any step in the proceedings other than entering appearance. See - The Owners of M. V. Lupex vs. Nigerian Overseas Chartering and Shipping Ltd (supra); Onward Enterprises Ltd vs. M. V. Matrix (2010) 2 NWLR (Pt. 1179) 530.
In Obembe vs. Wemabod Estates Limited (1977) LPELR – 2161 (SC), Fatai Williams, JSC, (as he then as) observed:
“At common law, the Court has no jurisdiction to stay such proceedings. Where, however, there is provision in the agreement for submission to arbitration, the Court has jurisdiction to stay proceedings by virtue of its powers under section 5 of the Arbitration Act …. No stay was asked for by the respondents after they were served with the Writ of Summons. On the contrary, they accepted service of the statement of claim, filed their own statement of defence… In order to get a stay, a party to a submission must have taken no step in the proceedings. A party who makes any application whatsoever to the Court, takes a step in the proceedings. Delivery of a statement of defence is also a step in the proceedings.”
In the instant suit the defendants/objectors were served with the Writ of Summons on 2nd July, 2014. They promptly filed a memorandum of Conditional appearance on 4th July, 2014. On 3rd October, 2014 the Hon. Attorney General prepared a motion on which he asked for extension of time within which the defendants can file their statement of defence out of time. Both the motion on notice and the statement of defence of the three defendants/objectors were filed on 23rd October, 2014. Two years after the filing of the defence the defendants filed this notice of preliminary objection on 2nd November, 2016 asking the Court to dismiss and/or strike out the suit. There is no doubt that the defendants have taken more than a step in the proceedings by properly joining issues with the plaintiff. The step thus taken by the defendants amounts, in my view, to waiving their right to insist on arbitration as contained in their contractual agreement. I can not, in the circumstance, strike out the suit for non-fulfillment of a condition precedent to its institution. In the same vain, I can not exercise my power under section 5 of the Arbitration and Conciliation Act to stay proceedings in view of the gargantuan steps taken by the defendants in the proceedings, coupled with the fact that it has not been asked for by the defendants. In the final analysis, I hold that the suit is competent and the Court has jurisdiction to hear and determine same.
The 4th and final aspect of this matter is to state that my decisions above on the two issues formulated on the two grounds of objection would not have been different even in the absence of a counter-affidavit by the plaintiff/respondent. My reason for arriving at this conclusion is that it is settled law that a preliminary objection such as this shall be determined on the merit even in the absence of counter-affidavit especially where the grounds relied upon are grounds of law. I venture to add that even where the grounds of objection are predicated on facts before the Court, the Court is obliged to read through the processes filed before it in the suit in order to arrive at a just decision. On the whole, this preliminary objection fails and is hereby overruled and dismissed.
Justice M. I. Sirajo
Judge
11/10/2018
Appearances:
