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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP: HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: April 23, 2015 SUIT NO. NICN/LA/135/2013 BETWEEN OLATUNDE OLUWAFEMI -CLAIMANT AND AIR FRANCE NIGERIA -DEFENDANT REPRESENTATION O.C Abuadinma, with Ken Akunebu for the claimant. Joy Ihionu, for the defendant. RULING The claimant filed this Complaint against the defendant on 14th March, 2013 seeking the following reliefs: 1. A declaration that the claimant herein is entitled to terminal benefits accruing to him from the coffers of the defendant computed premised on the principles found in the provisions of the document entitled “Condition of service for Air France Nigeria” particularly but not limited to the provisions of Articles 30 and 32(a) and (b) thereof. 2. A declaration that the defendant/Air France Nigeria by itself its agents servants and privies have defaulted in complying with the provisions of the document entitled “Condition of service for Air France Nigeria” particularly Articles 30 and 32(a) and (b) therefore denying the claimant his terminal benefit, which entitlement fell to him premised on his letter of resignation of employment to the defendant dated the 10th September, 2003. 3. A declaration that the defendant/Air France Nigeria by itself, it’s agent, servants and privies have defaulted in complying with the provisions of the document entitled “Condition of service for Air France Nigeria” particularly Articles 37 thereof in their conduct of disciplinary proceedings carried on against the claimant in September, 2003. 4. An order directing the defendant/Air France Nigeria by itself, its agents, servants or privies, successors in title, to pay to the claimant the sum of N1,010, 826 (One million and Ten Thousand, Eight Hundred and Twenty Six Naira) or such other sum as this court may assess or compute as falling due to the plaintiff as part of his terminal benefits under the provisions of the document entitled “Condition of service for Air France Nigeria” particularly but not limited to the provisions of Articles 30 and 32(a) and (b) thereof. 5. An order directing the defendant/Air France Nigeria by itself, its agents, servants or privies, successors in title to pay to the claimant, his service person benefit and the proceeds of the claimants insurance policy totaling N431,882.40 (Four Hundred and Thirty One Thousand, Eight Hundred and Eighty Eight Naira, Forty Kobo) or such other sum as this court may assess or compute or adjudged due to the claimant under the provisions of the document entitled “Condition of service for Air France Nigeria” particularly but not limited to the provisions of Articles 30 (2). 6. An order directing the defendant/Air France Nigeria by itself, its agent, servants or privies, successors in title to pay to the claimant interest on any such sum awarded by this court under reliefs 3, 4 and 5 above, at the rate of 21% per annum from the 10th day of September, 2003 up and until the sum adjudged due to the claimant is fully liquidated. 7. An order directing the defendant Air France Nigeria by itself, its agent, servants or privies, successors in title to pay to the claimant all costs incidental to the institution and prosecution at this suit including but not limited to filing fees and professional fees for Counsel. 8. An order directing the defendant/ Air France Nigeria by itself, its agent, servants or privies, successors in title to pay to the claimant the sum of One Million Naira being general damages in consequence of the defendant’s breach of the disciplinary procedure set out in the condition of service. 9. An order directing the defendant Air France Nigeria to issue a Testimonial Certificate of Employment to the claimant in consonance with Article 35 of the condition of service. Accompanying the complaint is the statement of facts and other accompanying originating processes. The defendant entered appearance and filed its statement of defence and accompanying processes on 26th April, 2013. Thereafter the defendant filed a motion on notice on 2nd July, 2013 which is the subject matter of this ruling praying for the following: 1. An order of this Honourable Court striking out this case as the cause of action is statute barred. 2. An order of this Honourable Court striking out this suit for lack of jurisdiction. 3. And for such further or other orders as this Honourable Court may deem fit to make in the circumstances. The grounds upon which the objection is based are as follows: 1. The issue of terminal benefits the claimant asserts is accruable to him, which is the cause of action in this case and which arose from a simple contract between both parties is statute barred and therefore contrary to Section 8(1) (a) of the Limitation Law of Lagos State, and Section 7 (1) (a) of the Limitation Act, Cap 522 Laws of the Federation of Nigeria 1990 and Section 3 of the Statute of Limitation 1623 which is Statute of General Application applicable in the Federal Republic of Nigeria. 2. The issue of limitation of action has an effect on the jurisdiction of this court. 3. The said cause of action arose in 2003 a period of 10 years before the institution of this action in 2013. 4. The court cannot entertain this matter, as the matter is frivolous, vexatious and baseless in law. The motion is supported by a 9 paragraph affidavit sworn to by Zahradeen Ahmad a Legal practitioner and a written address. In opposing the motion, the claimant on the 19th September 2013 swore to a counter affidavit of 12 paragraphs and filed a written address. Learned counsel to the defendant raised the following issues for determination: 1. Whether this cause of action is statute barred 2. Whether this court has the jurisdiction to entertain this court. He submitted that Section 8(1) (a) of the Limitation Law of Lagos State, and Section 7 (1) (a) of the Limitation Act, Cap 522 Laws of the Federation of Nigeria 1990 and Section 3 of the Statute of Limitation 1623 which is Statute of General Application provide that an action based on contract shall not be brought after the expiration of six years from the date on which the cause of action accrued. He submitted that from the facts pleaded that what existed between both parties is merely a simple contract as evidenced by the claimant’s letter of appointment dated the 11th September, 1997 issued by the defendant which was voluntarily terminated by the claimant’s letter of resignation and instrument of release dated 10/09/2003 and 23/09/2003. He submitted that the claimant cannot bring this action which is founded on a contract of employment after the statutory period of six years. He referred the court to the case of Min of F.C.T V. M.N (Nig) Ltd (2011) 9 NWLR (pt. 1252) 209, Nduka V. Ogbonna (2011) 1 NWLR (pt. 1227) 1-226, Muomah V. Spring Bank Plc (2009) 3 NWLR (pt.1129) 553, Ogundipe V. N.D.I.C (2009) 1 NWLR (pt.1123) 473. Learned counsel submitted that a successful plea of limitation of action ousts the jurisdiction of the court in the proceeding in which it is raised citing CRUTEC V. Obeten [2011] 15 NWLR (pt. 1271) 437. He stated that the claimant had earlier instituted this suit at the Lagos State High Court and after the Third Alteration Act 2010 which ousted the jurisdiction of the Lagos State High Court, the claimant failed to take advantage of Section 24(3) of the National Industrial Court Act and apply that the matter be transferred to this court. He argued that in allowing the action to be struck out and then subsequently filing this suit, it is caught by the Limitation law. He referred to Section 24(3) of the NIC Act 2006 and John & Ors v. Igbo Etiti LGA (2013) 7 NWLR (Pt. 1352) 1-206 and submitted that Section 24(3) was enacted to save pending litigations that may be caught by the limitation law if such cases were to start afresh. He added that the claimant failed to take advantage of this provision and as such suit is statute barred and the court lacks jurisdiction to entertain it. He urged the court to dismiss it. Learned Counsel for the claimant raised one issue for determination as follows: Whether the plea of Limitation will avail the defendant to rob this court of jurisdiction in the instant case. He argued that the provision of Section 8(1) (a) of the Limitation Law of Lagos State is not immutable as it has created exceptions to the general rule which includes fraud, admission, acknowledgement, part payment concealment and mistake. He submitted that in these instances, the limitation period is postponed and time will begin to run from the date of the discovery of the fraud or admission, acknowledgement, part payment and or mistake which is the intendment of Sections 37, 38, 45, 48 and 49 of part 3 of the said Lagos State Limitation Law. He submitted that Exhibit “D” and “E” referred to in the supporting affidavit particularly paragraph 5(e) are both admissions, acknowledgement and part payment of the defendant’s liability to the claimant. He submitted that time stopped running against the claimant and recommenced from the date of admission, acknowledgement and part payment of the defendant’s liability to the claimant, on the 10th day of February 2011 by Zenith Bank cheque Nos. 00011152 and 00011153 issued by the defendant in favour of the claimant. He urged the court to assume jurisdiction in this matter. He referred to Uni-Ibadan V. Adetoro (1991) 4 NWLR (pt. 185) 375, Nwadiaro V. Shell Petroleum Development Co. of Nigeria (1990) 5 NWLR (pt. 150) 322. He further submitted that in the light of the above authorities and the circumstance of this case the plea of limitation of action by the defendant will not avail in the light of Exhibit D and E referred above which constitutes admission, acknowledgement and part payment of their liability citing Thadani & Anor V National Bank of Nigeria (1972) 1 SC 75. He argued that considering the fact that the cause of action arose on September, 2003 and the defendant commenced an action in the High Court of Lagos State on the 24th March, 2004 is evidence that the claimant never slept on his right. He submitted that the suit at Lagos High Court was struck out for lack of jurisdiction by virtue of the provisions of Section 254C (1) of the 1999 Constitution, Third Alteration Act 2010. He argued that the Lagos State High Court does not have the powers to transfer matters hence the order of striking out for want of jurisdiction. He submitted that having regard to the admission and acknowledgement of liability by the defendant, it will be otiose for the defendant to invoke the plea of Limitation of action. Replying on points of law, learned counsel submitted that the payments made by the defendant to the claimant in February, 2011 do not amount to an acknowledgement of the claim. He argued that the cases of Uni-Ibadan V. Adetoro, Nwadiaro V. Shell Petroleum Development Co. of Nigeria and Thadani & Anor V National Bank of Nigeria are not relevant to this case. He referred to Section 83(3) of the Evidence Act and submitted that the statements and transaction leading to the payment made by the defendant in February, 2011 to the claimant were made in furtherance of amicable settlement of the dispute and at the instance of the court while legal proceedings were pending in the High Court. It was his submission that the circumstances were therefore privileged and are caught by the provisions of Section 26 of the Evidence Act, 2011. He urged the court not to allow the claimant to rely on the transaction to his own advantage to the detriment of the defendant. He submitted that the said transaction and statements and payments are inadmissible in evidence and cannot be relied upon by the claimant. He cited the case of Chief (Dr. ) Peterside & 4 Ors V. Chief Wabara & 2 Ors (2011) 6 NWLR (pt. 1243) 328, Ogidi V. Egba (1999) 10 NWLR (pt.621) 42. Having carefully considered the processes filed in this suit, there is no dispute between the parties that the cause of action arose in 2003 when the claimant put in his letter of resignation. The evidence before the court is that the claimant filed an action against the defendant at the Lagos State High Court in 2004. This action was struck out after the enactment of the Third Alteration Act 2010 which amended the 1999 Constitution and conferred exclusive jurisdiction in respect of labour and employment matters on this court. The claimant then filed this fresh action in 2013 in this court. The defendant has raised this objection arguing that the suit is statute barred and the court deprived of jurisdiction to entertain. The applicable law in this instance is Section 8 (1) of the Limitation Law of Lagos State. It provides that actions founded on simple contract shall not be brought after the expiration of six years. However, there are exceptions to the limitation as provided in Sections 38, 45 and 49 which are relevant for the purpose of this ruling. They are reproduced below as follows: FRESH ACCRUAL OF RIGHT OF ACTION ON ACKNOWLEDGEMENT 38. Action to recover debt (1) Where – (a) any right of action has accrued to recover any debt; and (b) the person liable therefore has acknowledge the debt; the right of action shall be deemed to have accrued on and not before the date of the acknowledgment. FRESH ACCRUAL OF RIGHT OF ACTION ON PART PAYMENT 49. Action to recover debt (1) Where – (a) any right of action has accrued to recover any debt; and (b) the person liable therefore makes any payment in respect thereof; the right of action shall be deemed to have accrued on and not before the date of such payment. (2) Payment of interest in whole or in part shall, for the purposes of this section, be treated as a payment in respect of the principal debt. At this juncture, it is pertinent to reproduce below paragraph 5 of the affidavit in support of this application for a clearer picture of what the facts in this matter are: 5. That the doctrine of statute of limitation referred to in paragraph 4 above arose from the following facts; a. The claimant/respondent resigned his employment with the defendant/applicant by a letter dated 10th September 2003 and by a letter dated 11th September 2003, the said resignation was accepted by the defendant/applicant. Attached herewith and marked Exhibits A and B respectively are copies of the said letters. b. Following the resignation of the claimant/respondent, the claimant/applicant calculated the claimant/respondent’s terminal benefits as the sum of N296,153.77 (Two Hundred and Ninety Six Thousand, One Hundred and Fifty Three Naira, Seventy Seven Kobo) and issued a Capital Bank cheque number 07061815 dated 11th March 2004 and offered same to the claimant. c. The claimant/respondent signed a letter of Release in favour of the defendant/respondent, but refused to collect the said payment. d. The claimant/respondent instituted Suit No: MIK/653/04 at the Lagos High Court claiming several reliefs against the defendant/applicant to which the defendant/applicant responded by denying the claims and allegations made by the claimant/respondent. The defendant/ applicant however acknowledged its liability to the claimant/respondent in the sums of N296,153.79 (Two Hundred and Ninety Thousand, One Hundred and Fifty Three Naira, Seventy Nine Kobo) and N220,409.00 (Two Hundred and Twenty Thousand, Four Hundred and Nine Naira only). Attached herewith and marked Exhibit C is a copy of the Writ of Summons with Suit No: MIK/653/04. e. Based on the said admission of the defendant/applicant and in order to promote settlement between the parties the Lagos state High Court ordered the defendant/applicant to pay over the admitted sums to the claimant/respondent and the defendant/applicant complied by paying to the claimant/respondent the said sums of N296,153.79 and N220,409.00 by two Zenith Bank cheques numbers 00011152 and 00011153 respectively, both dated 10th February 2011. Attached herewith and marked Exhibit D and E respectively are copies of the above mentioned Zenith Bank cheques. f. The claimant/respondent received the payments referred to in the proceeding paragraph and chose to continue to fight the case until the Lagos High Court lost jurisdiction due to the constitutional amendment on the exclusive jurisdiction of the National Industrial Court over employment matters. g. Rather than take advantage of the provisions of Section 24(3) of the National Industrial Court Act and apply for the transfer of this case from the Lagos High Court to the National Industrial Court, the claimant/respondent allowed the case to be struck out by the Lagos High Court for want of Jurisdiction. h. The claimant/respondent then proceeded to institute this fresh action 10 (ten) years after the cause of Action that led to this case arose. The claimant in paragraphs 7, of his counter affidavit responded in the following manner: 7. That while acknowledging the receipt of Exhibits D and E annexed to the affidavit of Zahradeen Ahmed Esq. I proceeded as of right to press for my further entitlements in Suit No. M/653/2004 until same was struck out for want of jurisdiction by the Lagos State High Court. It is clear from the affidavit evidence in paragraphs 5 (d) & (e) that the defendant initially denied liability in its pleadings at the High Court but later on acknowledged liability and made some payments on 10th February 2011 about eight years after the cause of action arose. While the defendant has not stated the exact date it acknowledged the debt, Section 38 provides that the right of action is deemed to have accrued on the date of acknowledgement. However, the date the defendant made the two payments is disclosed. Applying the provisions of Section 49 of the limitation law, the claimant’s right of action is deemed to have accrued when the defendant acknowledged the debt and made part payments of the claim on 10th February 2011. I find that this suit is not caught by the provisions of Section 8 of the limitation law and as such it is not statute barred. I hold that a fresh accrual of the claimant’s right of action occurred on 10th February 2011 and the court is not deprived of jurisdiction to entertain this matter. The application is hereby dismissed. The case is to proceed to hearing. I make no order as to costs. Ruling is entered accordingly. _____________________________ Hon. Justice O.A Obaseki-Osaghae