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BEFORE THEIR LORDSHIPS Hon. Justice. I. Kola-Olalere - Presiding Judge Hon. Justice U. A. Obaseki-Osaghae - Judge Hon. Justice T. Agbadu-Fishim - Judge DATE: 13TH JANUARY 2011 SUIT NO. NIC/ LA/12/2009 BETWEEN 1. CAPTAIN TONY OGHIDE 2. CAPTAIN TANKO AFEGBUA 3. C/E GODWIN EHIWE 4. SFE ANUOLUWAPO OGUNMOLA 5. SFE FUUNSO SUNDAY FABIYI 6. SFO ALAN BANDELE 7. SFO ANSLEM OKOJIE 8. A/F EDWARD OWOICHO 9. MR. OLAWALE AMOS OLAJIDE 10. L/M YAHAYA BAIYEE 11. A/T JOHN AYANWU 12. ASSIST. O/M GBEMIGA AJOSE 13. ASSIST. O/M DAPO AFOLABI – CLAIMANTS AND 1. JASON AIR LIMITED 2. ADE A. BABINGTON-ASHAYE (Liquidator of Nigeria Airways Ltd- in-Liquidation) - DEFENDANTS REPRESENTATION Odiana Eriata, for the claimants S. M O. Mohammed, for the 1st defendant. The 2nd defendant was not represented by counsel throughout and did not appear in person. RULING The Claimants activated this action before this court by way of complaint under Order 3 Rule 1 of the National Industrial Court Rules 2007 and claim the following against the defendants: A. A DECLARATION that the claimants are entitled to their outstanding salaries as computed in Exhibit ‘C’ having worked for the 1st defendant who had been paid her indebtedness by Nigeia Airways Ltd in liquidation. B. A DECLARATION that the claimants’ outstanding salaries form part of the Nigeria Airways in liquidation indebtedness to the 1st defendant. C. AN ORDER compelling the defendants to pay directly to the claimants their outstanding salaries between 1997 and 1998 in line with Exhibit ‘C which forms part dthe claims of the 1st defendant, against the Nigeria Airways in liquidation by the 2nd defendant. ALTERNATIVELY AN ORDER compelling the lst defendant to pay the claimants their oustanding salaries, between 1997 and 1998 in line with ‘Exhibit C’ While filing his memorandum of appearance and other related processes, the 1st defendant counsel also filed a preliminary objection. It was brought pursuant to sections 3, 5, 6. 7 and 12 of the Trade Disputes Act; section 7(4) of the National Industrial Court Act, 2006 and under the inherent powers of this court. The motion is seeking for: AN ORDER of the Court dismissing or striking out this action for lack of jurisdiction by the Court a hear and determine same on the grounds set out in paragraphs 6, 7 and 8 OR IN THE ALTERNATIVE paragraph 9 of the 1st defendant’s Statement of Defence dated 15th April, 2010 and filed on the same date. The preliminary objection is dated and filed on 3rd of June, 2010. It is supported by a five-paragraphed affidavit deposed to by one Clement Shola Ogundipe, a litigation clerk in the Law Firm of S. M. O. Mohammed, Solicitors to the 1st defendant/applicant. There are 3 exhibits attached to the affidavit namely Exhibits ‘A’, ‘B’ and ‘C’ respectively. Exhibit ‘A’ is the unsealed renewed originating complaint dated 17th March, 2010. Exhibit ‘B’ is the statement of facts also dated 17th March, 2010 whilst Exhibit C’ is the 1st defendant/applicant’s statement of defence wherein the points of jurisdictional objection were raised. The lst defendant/applicant relied on the affidavit and the supporting exhibits for this aplication. Arguing his preliminary objection on behalf of the 1st defendant/applicant, Mr. S. M. O. Mohammed, stated that he based this application on the following grounds: i. This action is not a ‘trade dispute’ and/or a ‘civil cause or matter relating to labour’ within the meaning of the National Industrial Court Act, 2006 and the Labour Act where from the jurisdictional powers of this Court is derived. ii. Sections 7(l) and 11(1) of the National Industrial Court Act, 2006 are inconsistent and in violent conflict with section 272(1) of the Constitution of the Federal Republic of Nigeria, 1999 and to the extent of the inconsistency are void and of no legal consequence. iii. This action is not maintainable in law by virtue of section 8(1)(a) of the Limitation Law, Cap. 118, Laws of Lagos State, 1994 as it is statute-barred. To the 1st defendant/applicant, the issue is: Whether or not this Court, in law, has jurisdiction to hear and determine this action? OR ALTERNATIVELY Whether or not this action is statute or time-barred by virtue of section 8(1)(a), Limitation Law, Cap. 118, Laws of Lagos State, 1994. Arguing “whether or not this court, in law, has jurisdiction to hear and determine this action”, the 1St defendant applicant submitted that as a preliminary point that it is a settled principle of law that for the purpose of the determination of whether or not this court has jurisdiction to hear and determine tb instant case, it is the claim of the claimant that the court must look at referring to Alhaji Usrnan Magaji v. Maidorowa Matari [2000] 5 SC 46 at 57 paras 24 — 29. The 1st respondent applicant pointed out that the reliefs of the claimants/respondents as contained in the complaint (i.e. Exhibit ‘A’) and the statement of facts (‘Exhibit B’) are not exactly the same. But it is trite la’ that where the prayers being sought by the claimant as formulated on the write of summons (in this case the complaint) and the statement of claim (i.e. the statement of facts) are different and/or at variance those on the writ of sununons are superseded by the prayers/reliefs on the statement of claim, The 1st defendant/applicant cited Corporal Emmanuel Amodu v. The Commandant, Police College Maiduguri [2009] 15 NWLR (Pt. 1163) 75 at 80 paras A — B. The 1st respondent applicant then proposed to argue both grounds (i) and (ii) of its objection above together with this issue. It submitted that the section that confers jurisdiction on this court in relation to this action is section 7(1)(a), paragraphs (i) and (ii) and section 54 (1) of the National Industrial Court Act, 2006. To the 1st defendant/applicant the words ‘employee’ and ‘employer’ are aslso’ defined in section 54(1) of the National Industrial Court Act. It contended that these provisions are unarguably clear and unambiguous; hence the court is expected to adopt the literal rule of interpretation. See Attorney-General of Kano State v. Attorney-General of the Federation [2007] 3 SC (Pt. 1) 59 at 79 paragraphs 24 to 40 and Abubakar v. Yar‘Adua [2008] 19 NWLR (Pt. 1120) 1 at 94 paras. E—G. It urged the court in its interpretation of section 7(i)(a, paragraphs (i) and (ii) of the National Industrial Court Act and the definition of the term ‘trade dispute’ as contained in section 54(1) of the National Industria1 Act to give the provisions their ordinary and plain meaning. The 1st defendant/applicant urged the court to note that this action has no bearing or relation to labour from the definitions in the referred sections especially considering the interesting dimension of the formulation of the claimants’ case to include the 2nd defendant, Ade A. Babington-Ashaye (Liquidator to Nigeria Airways Ltd) when in fact there is no allegation that the relationship of employer and employee ever existed between the 2nd defendant and the claimants referring to National Union of Electricity Employees v. Bureau of Public Enterprises [2010]7NW R (Pt. l194) 538 at 564—565 paras. C—G, 566 paras. E—F. The counsel to the lst defendant/applicant pointed out that although the term ‘contract of employment’ is employed in both definitions of the words ‘employee’ and ‘employer’ above, the term is unfortunately not defined by the National industrial Court Act. Section 91(1) of the Labour Act Cap L1, Laws of the Federation of Nigeria, 2004, however, defines contract of employment to mean - …….agreement, whether oral or written, express or implied, whereby one person agree to employ another as worker and that other person agrees to serve the employer as a worker. The same section goes on to define the word ‘worker’ to mean — any person who has entered into or works under a contract with an employer, whether the contract is for manual labour or clerical work or is expressed or implied or oral or written, and whether it is a contract of service or a contract perso tally to execute any work or labour, but does not include —if any person employed in a vessel or aircraft to which the laws regulating merchant shipping or civil aviation apply. To the 1st defendant/applicant it is crystal clear from its pleadings especially in ‘Exhibit B’ that the alleged employment of the claimants/respondents by the 1st defendant/applicant which gave rise to the institution of this action was in respect of the operation of aircraft. Counsel to the 1st Defendant/aj licant referred the court to paragraphs 1, 2, 3 and 4 of the statement of facts ‘Exhibit B’ in particular and contended that by virtue of the clear provisions of section 91(1)(f) of the Labour Act, the alleged ‘contract of employment’ between the claimants respondents and the 1St defendant/applicant being in relation to aircraft to which the laws regulating Civil aviation apply, the jurisdiction of this court to entertain this action is clearly ousted and the court ought to strike it out; otherwise it would amount to an exercise in futility. He then referred to Alhaji Usman Magaji v. Maidorowa Matari, (supra). The 1st defendant’s counsel argued that the second aspect o: this issue of whether or not this court is in law vested with the jurisdiction to hear and deennine this action relates to the effect that section 272(1) of the Constitution of the Federal repuplic of Nigeria. 1999 has on sections 7(1) and 11 of the National Industrial Court Act, 2006. The combined effect of the two sections is that it cor ers exclusive jurisdiction on this court in relation to all the causes and matters mentioned urJer section 7(1). Section 11 of the National Industrial Court Act states without any ambiguity tin I to the extent that exclusive jurisdiction is so conferred upon this Court, the Federal High Court, High Court of the State and the High Court of the Federal Capital Territory, Abuja shall coase to have jurisdiction in relation to such causes and matters over which this court has jurisdiction. Counsel went on to state that section 272(1) of the 1999 Constitution of Federal Republic of Nigeria provoles thus: Subject to the provisions of section 251 and other provisions of this Constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in wL ch the existence or extent of a legal right, power, duty, liability, privilege, interest, oblig tion or claim is in issue… The counsel to the 1st defendant/applicant argued that the Supreme Court of Nigeria had occasion to ronounce on the above constitutional provisions in relation to the provisions of the Trade Dispuses Act (as amended), that is, Decree No. 47 of 1992 (now Act of the National Assembly) i. the case of National Union of Electricity Employees & anor v. Bureau of Pubic Enterprises 2010] 7 NWLR (Pt. 1194) 538 at 570 — 572. After an exhaustive consideration of the provisiors of the Trade Dispute Act which confer jurisdiction on the then National Industrial Court which provisions are similar in wording to sections 7(1) and 11 of the National Industrial Court Act 2 306, the Supreme Court in declaring those provisions of the Trade Disputes Act inconsistent vith the 1999 Constitution states the law thus:- The provisions of section 272(1) are plain and the phrase ‘subject to the provisions of the Constitution is used to the effect that the jurisdiction of the State High Court can only be restored by the provisions of the 1999 Constitution and not as is being urged by the appeant by any Act of the National Assembly otherwise specifically conferring excursive jurisdiction to a court or whatever to override the jurisdiction of the State High Court. .In summary, the implication of conferring exclusive jurisdiction in trade disputes on the National Industrial Court is to exclude the wide powers of the State I-ugh Court thus musing the conflict between Decree No. 47 and section 272 of the 1999 Constitution and as I have outlined above any inconsistency with section 272 of the 1999 Constitution in that regard is void to the extent of the inconsistency. This conclusion has knocked the bott in off the defendants/appellants’ case in that regard as I declare Decree No. 47 null and void being inconsistent with section 272 of the 1999 Constitution. The 1st defendant/applicant strongly contended that on the strength of the National Union of Electricity employees’ case (supra) the provisions of sections 7(1) and 11 of the National industrial Act, 2006 are inconsistent with section 272(1) of the 1999 Constitution and to the extent of the inconsistency void and of no legal consequence. As a resut it urged the court to strike out iris case as this court lacks jurisdiction to hear and determine the matter; the appropriate court being the High Court of Lagos State. The 1st defendant/applicant submitted that the alternative issue it postulated is closely related to first issue of jurisdiction argued above which is whether or not this action is statute or time barred by virtue of section 8(l)(a) of the Limitation Law Cap. 118, Laws of Lagos State, 1994.” This is dictated by the originating complaint and the statement of facts. To this end, pararaphs 3, 4 and 6 of the claimants/respondents’ statement of facts dated 17th March, 2010 and filed on 25 March, 2010 are very relevant and instructive. To the 1st defendant/applicant, the following facts are clear and borne out from the referred paragraphs: i. That the said Nigeria Airways contract was to last for six months from the 17th October, 1997, that is, from 17th October, 1997 to l6th April 1998. However, the claimants/respondents, according to paragraphs 3 and 4 of their statement of facts were kept on beyond 16th April, 1998 until the end of July 1998. ii. That the claimants/respondents were at all times material aware of the nature, the terms and conditions, including the mode of payment to the 1st defendant/applicant, of the contract as the contract was signed by the 3 claimant/respondent on behalf of the managing director and chief executive of the lst defendant/applicant. By the end of July 1998, according to the lst defendant/applicant, the claimants/respondents were clearly in a position and indeed ought to have gone to court to claim their alleged unpaid salaries as all the facts they needed to do so were as at then unarguably available. It contented that the cause of action in this matter arose immediately subsequent to the expiration of the contract on 16th April, 1998 and that for the purpose of the limitation law that was when time begins to run. The learned tounsel referred the court to Dr. Charles Oladeinde Williams v. Madam Olaitan Williams [2008] 10 NWLR (Pt. 1095) 364 at 383 paras. C — E where the Supreme Court per PCI. Musdapher, JSC, relying on the old English case of Board of Trade v. Cayzer, Iryine & Co. Ltd [1927] AC 610, held: Time, therefore, begins to run when there is in existence a person sued, and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. At page 387, paras. C — E of the Williams case, the Supreme Court relying on its earlier case of Lasisi Fadare & ors v. Attorney General of Oyo State [1982] 4 SC 1 at page 7 per Aniagolu, JSC, went on to define the term ‘cause of action’ as — denoting every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgntent of the court. The 1st defendant/applicant also cited Elabanjo & anor v Dawodu [2006] 6—7 SC 24 at 43 and P. N Udoh tmrading Company Ltd v. Abere [2001] 5 SC (Pt. II) 64; [2001] 11 NWLR (Pt. 723) 113 at 129. The 1st defendant/applicant argued that the claimants/respondents did not have to wait till the year 2005 when there was a publication in the Punch Newspaper listing the 1st defendant/ap- licant as a creditor to the Nigeria Airways before instituting this action as all the facts they needed to support their right to judgment were all available as at the time of the expiration oi the contract on 16th April, 1998. It went on to contend that having regard to the nature of that contract between the claimants/respondents and the 1st defendant applicant, which is a simple aontract of employment, the claimants/respondents have a right to their alleged unpaid salaries once they had done the work for which they were employed. This is more so when the 1st defendant/applicant’s contract with the Nigeria Airways, which was just for six months had expired on 16th April, 1998. The Court of Appeal in National Bank of Nigeria v. Arison Trading & Engineering Company Ltd [2006] 16 NWLR (Pt. 1005) 210 at 223 – 224 paras. H – A held — A cause of action matures and arises on a date or from the time when a breach of any duty or act occurs, which warrants the person thereby injured or victim who is adversely affected by such breach to take a court action in assertion or protection of his legal that has been breached. The 1st defendant/applicant went on to submit that it is trite law that in determining whether or not a cause of action is statute-barred, it is the claimant’s originating process, in this case the originating ccmplaint, and the statement of facts that must be looked at. In Egbe v. Adefarasin [1987] 1 NW R (Pt. 47) 1 Oputa, JSC held thus:- A cause of action is said to be statute-barred if in respect of (its) proceedings (it) cannot be brc’ught because the period laid down by the Limitation Law or Act had elapsed. How does no determine the period of limitation? The answer is simple-by looking at the writ of sun u-nons and the statement of claim alleging when the wrong was committed which gave ie plaintiff a cause of action and by comparing that date with the date on which the writ o summons was filed. This can be done without taking oral evidence from the witness if the time on the writ is beyond the period allowed by the Limitation Laws, then the action is statute-barred. That once time begins to run, it remains unbroken and unaffected by any circumstance, such as negotiations Lxcept there is a clearly fresh acknowledgement. The 1st defendant/applicant also cited National Bank of Nigeria Ltd v. Arison Trading & Engineering Company Limited (supra) at page 222, paras. F — G. To the 1st defendant/applicant, by the averments of the claimants/respondents in paragraphs 7, 8 and 9 of their statement of facts to the effect that they refrained ftom taking steps to enforce their right to the a leged unpaid salaries because of promises made by the 1st defendant/applicant to pay once payment was made by Nigeria Airways are unhelpful to them. The counsel to the 1st defendant/applicant cited section 8(1)(a) of the Limitation Law Cap. 118, Laws of Lagos State, 1994 thus:- The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued (a) Actions founded on simple contract, The 1st defendant/applicant then contended that the oral contract of employment between the claimants/respondents and the 1st defendant/applicant which gave rise to this action is in law a simple contract. The 1st defendant/applicant then referred to the Black’s Law Dictionary, 8th Edition for the definition of simple contract. That being a simple contract, the action must be commenced rot later than July 2004 for it to be valid. It further contended that this action, filed on 24 April 2009 having been commenced on a date later than July 2004 is statute barred and ought accordingly to be struck out. To the 1st defendant/applicant, the fundamental question of whether labour rights are caught up by limitation laws remains a sore point to be addressed. It pointed out that this court has held, in at least two cses, that claims for salaries and wages of workers cannot become barred by statute of limitation. In Captain Tony Oghide & ors v. Shona Jason (Nigeria Ltd unreported Suit No. NIC/3/2008, this court so ruled on 18th July, 2008 in a similar application to this: In so ruling, the court heavily celled on its earlier ruling in the John Ovoh v. The Nigerian Westminster Dredging and Marine Ltd unreported Suit No. NIC/9/2002 delivered on 1st April. 2008, where this court held as follows:- Assunming we are wrong in all we have said so far, and it is that issues of limitation of action actually go to jurisdiction, the point remains whether labour rights are covered by the limitations laws. The respondent seems to think so, arguing in the process that collective agreements are contracts and so covered by the limitation laws, We do not share his view of the respondent. The limitation laws cited by the respondent talk of simpple or quasi contracts. We do not think collective agreements can be so branded... Consequently we do not think that the rights of workers are caught up by the limitation laws for to think otherwise would mean that even rights as to salaries and entitlements of an office would be time-barred. Counsel to the 1st defendant/applicant, however, contended that the case of John Ovoh v. The Nigerian Westminster Dredging and Marine Ltd (supra) is quite clearly distinguishable from this action in these respects: i. The application upon which the court ruled in the John Ovoh case was brought after judgment. The ruling is understandable as the issue of statute bar was held, rightly in our humble view, to be more of a defence and, therefore, can be waived in appropriate cases if not raised on time. ii. This court held in the John Ovoh case that the contract upon which the action was founded, a collective agreement, was not a simple contract. iii. We have in this case raised the issue of statute bar at the earliest opportunity as a defence and the contract upon which this action is founded is not a collective agreement but a simple contract entered into individually and separately between each of the claimants/respondents and the l defendant/applicant. In view of these distinguishing features, the l defendant/applicant urged the court not to follow its decision Li the John Ovoh case in determining this application as the two cases are dissimilar and not the ame. In addition, it contended that if appropriately worded the legislature through the instrumentatality of a statute can change or modify the principles of the common law and/or our labour laws as discernible in cases or international conventions that are already part of our local or mur cipal laws. Our law books are replete with such changes and/or modifications of the common law principles through codification. One of such modification is the common law doctrine of state immunity from tortious liability which even when it had long been discarded in England was still part of our law until its abolishment by the 1999 Constitution of Nigeria. (See section 6(6) (b) thereof) It contended that section 8(l)(a) of the Limitation Law Cap. 11 8, Laws of Lagos State is another of such modifications through codification. The 1st defendant’s counsel submitted that the provisions of section 8(1)(a) of the Limitation Law of Lag as State is plain, clear and unambiguous and must, therefore, be given its ordinary literal meaning in order to give effect to the clear intention of the law giver. It contended that Judges are merely to express the clear intention of the law giver no matter how undesirable; and not to make law. It is clear beyond any form of dispute from section 8 subsections 2 and 3 of the Limitation i aw under reference what the intention of the law giver is, that is, that rights and duties of both employers and employees are caught up by that law once those rights and duties are founded on simple contract. The 1st defendant/applicant pointed out that section 8(2) of the limitation law under reference specifically provides that section 8(1) is applicable to an action to recover a seaman’s wages. As the applicai on of section 8(1) is general, this specific provision was onl necessary because of the general exclusion of causes of action within the admiralty jurisdiction from the limitation law as provided under section 8(3) of the law. The 1st defendants counsel urged the court that in determining this application, it should not follow its ruling of 18th July, 2008 in Captain Tony Oghide & 14 ors v. Shona Jason (Nigeria Limited referred to earlier on because, in coming to its decision in the John Ovoh case which was deliver just few months earlier. This is in spite of coming to the conclusion that, unlike John Ovoh case, which involved a collective agreement, that action (i.e. Captain Tony Oghide v. Shona Jason) was founded on simple contract. The two cases were, therefore, clearly dissimilar and in deciding the latter one, the court ought not to have followed the John Ovoh case as it did. In conclusion, the defendant/applicant urged the court to strike out dismiss this action and/or decline juristhrtion to entertain same for the following reasons: i. This action is not a trade dispute and/or cause or matter relating to labour within the meaning of sectio.n 54(1) and 7(l)(a) of the National Industrial Court Act, 2006 and section 91(1) of the Labour Act Cap. Li, Laws of the Federation of Nigeria, 2004 in that - (a) There is no employer and employee(s) relationship between the claimants/respondents and the 2’ defendant/respondent, and (b) By virtue of section 91(1)(I) of the Labour Act Cap. Li, Laws of the Federation of Nigeria, 2004 this Court has no jurisdiction over a person employed in an aircraft as he is not a ‘worker’ within the meaning of the section. ii. On the strength of the Supreme Court case of National Union of Electricity Employees v. Bureau of Public Enterprises [20101 7 NWLR (Pt. 1194) 538 at 564 565 paras. C — G, 566 paras. F — F, sections 7(1) and 11 of the National Industrial Court Act 2006 are null and void and of no legal consequence being inconsistent and in violent conflict with section 272(1) of the 1999 Constitution of Nigeria and this Court is accordingly robbed of jurisdiction to hear and determine this action. iii. By the virtue of section 8(1)(a of the Limitation Law Cap. 118, Laws of Lagos State, 1994, this action is statutebarred having been commenced more than 6 years after the cause of action arose as having regard to both ‘Exhibit A’ and ‘Exhibit B’ (i.e. originating complaint and statement of facts) it could not have been validly initiated or commenced later than July 2004, that cause of action having arose in July 1998. iv. In the court’s determination of this action, it urged the court to refrain from following it ruling delivered on 1st April, 2008 in John Ovoh v. The Nigerian Westminster Dredging and Marine Limited unreported Suit No. NIC/9/2002 in order to obviate a miscarriage of justice as the case is distinguishable from this action for the reasons that: a. The application in the John Ovoh case upon which this Court ruled was brought after judgment. The ruling is understandable as the issue of statute bar was held, rightly in its view, to be more of a defence and, therefore, can be waived in appropriate cases if not raised on time. b. This Court held in John Ovoh case that the contract upon which the action was founded, a collective agreement, was not a simple contract. c. It has in this case raised the issue of statute bar at the earliest opportunity as a defence and the contract upon which this action is founded is not a collective agreement hut a simple contract entered into individually and separately between each of the claimant’s respondents and the 1st defendant/applicant. v. It urged the court to refrain from following its ruling delivered on 18th July, 2008 in the Captain Tony Oghide & 14 on ors v. Shona Jason Nigeria Limited unreported No. NIC/3/2008 for the reason that in coming to its decision in that ruling, this court was influenced by its ruling in the John Ovoh case which was delivered just a few months before though the facts of the two cases are rot the same. In response to the 1st defendant/applicant’s motion, the claimants respondents’ counsel Mr. Eriata Odiana, submitted a written argument dated and tiled 26th October 20 0. Or the ths: issue raised by the St respondent/applicant, which is: whether the claimants’ ease is a oh ii cause or matter within ae meaning of the National Industrial Court Act 2006, the counsel submitted that by virtue of s ction 7(1) and (2) of the National Industrial court Act 2006, the reliefs being sought by them are within the jurisdictional powers of this Court. TIe went on to state that section 54(1) interpre s ‘claimant’ to include every person asking for relief (otherwise than by way of counter-claim s a defendant) against any other person by any form of proceeding, whether the proceeding is y action, suit, petition, molion, summons or otherwise. The section also defines an ‘employee’ and an employer. To counsel, the relevance of the National Industrial Court Act 2006 as agai ist the Trade Disputes Act and other ancillary provisions of labour related enactments ar. meant to be construed with such modifications as may be necessary to bring them in conformity vith the provisions of this Act, referring to section 54(4) of the National Industrial Act 2006, The claimants, respondents’ position is that their reliefs before the court is about their welfare and the work dot o which is ancillary to the contractual obligations between them and the 1st d’efendant/app icant and that same does not rob on section 272(1) of the Constitution of the Federal Repu lic of Nigeria 1999 or any Admiralty Act or Rules as being suggested by the 1st defendant/app icant. Therefore, the case of the National Union of Electricity Employees & anor v. Bureau of Public Enterprises [2010] 7 NWLR (Pt. 1194) 538 at 570 — 572 is inapplicable in the instant case. The reason being that that case was instituted before the enactment of the National Industrial Court Act 2006 and the facts and reliefs sought for in it are quite different from those a the present case. Hence, the claimants/respondents urged this court to discountenance the said authority. The claimants’ counsel submitted that this case was properly commenced b fore this court; that the court has the inherent jurisdiction by virtue of section 7 of the Act 2006 to adjudicate on it and so the court should dismiss the 1st defendant/applicant’s application. On the second issue raised by the 1st defendant/applicant, which is, whether section 8 (1)(a) of the Limitatiot Laws Cap. 118 Laws of Lagos State 1994 is applicable to claims for wages of the work and lab anr done, the claimants/respondents submitted that the claims endorsed in their complaint da td 17th day of March, 2010 as renewed by the order of this Court on the 16th day of February 2011, is not caught by section 8(l)(a) of the Limitation Laws Cap. 118 Laws of Lagos State of Nigeria, 1994. They submitted that they have shown in their complaint and statement of facts that the reliefs being sought is for the work done and that the l defendant/applicant has been paid ovr 50% of its indebtedness by the 2nd defendant, which is Ade Babington Ashaye, liquidator of Ore Nigeria Airways Ltd in liquidation, and that by virtue of Exhibit D referred to in their statement, the 1st defendant was listed as one of the creditors to the Nigeria Airways Ltd vide the Pun h publication of 11th of May, 2005 for a claim of $l9,838,793.00 (Nineteen Million Eight Hundred and Thirty Eight Seven Hundred and Ninety Three Dodars) and that the 1st defendant teived the creditor’s certificate from the 2nd defendant and have benefited immensely frim the interim disbursement. The claimants/respondents also referred to the Punch of Wednesday 17th July, 2005. The claimants/respondents contended that the cause of action in this case has not ceased for which reason the 2nd defendant was obliged to pay the 1st mni without raising any issue of statute bar on the said claim. That it will be uncharitable on the part of the 1st defendant/applicant to plead the doctrine of statute bar against the claims of the claimants/ respondents which form part of the original bills submitted to the Nigeria Airways by the 1st defendant application and her management. They submitted that since the case of the claimants/ respondents is for work done, section 8(l)(a of the Limitation Laws Cap 118 Laws of Lagos State of Nigeria 1994 does not affect their claims. That in construing a similar limitation clause in section 2(a) of Public Officers Protection Act, in FGN v. Zebra (2003) 3 WRN 1 at pages 33 — 34 lines 5 — 45 Mohammed, JSC stated thus:- We shall now deal with the other point which to our minds, does not seem to be wellsettled, namely, whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether section 97 of the Ports Act applies to cases of contract. We think that the answer to this question must be in oie negative. We agree that the section applies to everything done uiider the powers granted by the Act. But we are not prepared to give to the section, the stress which it does not pc ssess. We take the view that the section does not apply to case of contract. The learne 1 Chief Justice, in deciding this point, made reference to the case of Salako v. LEDE & anor 20 All NLR 167 where Commarmond SPJ, as he then was construed the provis on of section 2 of the Public Officers Protection Ordinance which is almost identical with section 97 of the Ports Act, and thereafter stated in law as follows: I am of the opinion that section 2 of the Public Officer Protection Ordinance does not apply in cases of recovery of land, breaches of contract, claims for work and labour done etc. We too are of the opinion that de Commarmond SPJ, had quite rightly stated the law in the passage of his judgment cited above. It seems to us that an enactment of this kind i.e. section 97 of the Ports Acts is not intended by legislature to apply to specific contract. Counsel to the claimants/respondents also referred this court to the decision of the Court of Appeal sitting in Lagos, in the case of CBN v. Adedefi [2005] 26 WRN 1-209. The Court of Appeal state in the leading judgment read by M. D. Muhammad, JCA at pages 61 — 62 lines 5 - 10 repeated ne above quotation. Delivering the judgment of the court at p. 794, Brett MR. held that — It has been contended that this is an action in contract, and that whenever an action is brought upon a contract, the section does not apply. I think that where an action has been brought for something done or omitted to be done under an express contract the section does Elot apply; according to the cases cited an enactment of this kind does not apply to sped: contract. Again, when goods have been sold, the section will not apply to an actio upon a quantum meruit, because the refusal or omission to pay would be a failure to cmnply with the terms of the contract and not with the provisions of the statute. It is clear from the foregoing that respondent’s right of an action and access to relief can’t be extinguished on basis of the Public Officers Protection Act branded by the appellant. We are all bound by the quoted decision. See also FGN v. Zebra Energy Ltd [2001 12 SC (Pt. 11) 136 at 150—151. The claimants/respondents urged the court to adopt the reasoning of their Lordships in the cases of FGN v. Zebra Energy (supra) and CBN v. Adedeji & anor (supra) in coming to the conclusion that the case a hand does not fall within the ambience of section 8 (1)(a) of the Limitation Laws 1994. They, threfore, urged this court to resolve issue two in their favour. The claimants/respondents referred this Court to its decision in the case John Ovoh (suing for himself and as Representative of 679 Junior Staff of Nigerian Dredging and Marine Limited Retrenched 1994) v. Nigerian Dredging and Marine Limited — page 286 DJNIC and referred same part of e decision as done by the 1st respondent/applicant. The urged the court net to depart from that decision which is on all fours with the present case in terms of the Limitation Act. The claimants respondents went on to state that assuming without conceding that the statute of limitation affe tts the instant case, they submitted that the doctrine creates an exception where the injury complaned of is a continuing one. See Kwara State CSC. v. Abiodun [2010] 11 NWLR 52 at 112 — 114 where it was held as follows — In determining the date of accrual of a cause of action, the court must examine the plaintiff’s claim as expressed on the writ of summons and the statement of claim so as to identify the material incident which constitute the cause of action and determine when they occured. For the purpose of limitation law time begins to run froni the date of the occurr nce of the cause of action. The court must begin to calculate when there is in existence a person who can sue or another who can be sued and all the facts that have happened which are material to be proved to entitle the plaintiff to succeed. See Eboigbe v. NNPC [1994] 5 NWLR (Pt. 3470) 649; [1994] 6 SCNJ 71 and Egbe v. Adefarasin (No. [20)2] 14 WRN 57; [1987] 1 NSCC (Vol. 18) 1; [1987] 1 NWLR (Pt. 47) 1. The law is trite that where the injury complained of is a continuing one, time does not begin to run until the cessation of the event leading to the cause of action, per Agube, JCA p. 112— 114) lines 30—5. See also Offoboche v. Ogaja L/Govt. [2001] Vol. 8 MJSC 153. The claimant/respondents urged the court to dismiss the 1st defendant/applicant’s application and discountt nance the judicial authorities listed on pages 20 and 21 of its written argument. In conciusion the claimants/respondents urged this court to hold as follows — (1) That this court has the jurisdiction to entertain this suit; (2) That the suit is not statutebarred; and (3) That the 1St defendant/applicant’s application be dismissed with excruciating cost. We have carefully considered the submissions of both counsel on this preliminary objection together witi the cited authorities and referred statutes. By way of remarks, we must point out that referenc to section 91(1) of the Labour Act by counsel to the 1st defendant/applicant for definition o workers in other to determine the jurisdiction of this court shows a warped application f that provision. This is because the definition of workers in section 9 1(1) of the Labour Act relevant only in terms of the categories of people to which the Labour Act applies. It does not rdate to the court that exercises jurisdiction on labour matters. The jurisdiction of this court is not letermined by the Labour Act but by section 7(1) of the National Industrial Court Act 2006. 11 is, therefore, a poor appreciation of the essence of the Labour Act to allude to the section in thL context it was used in the argument of counsel to the 1 defendant’ applicant. It is trite learning that it is the claims of the claimant that determines whether a court has jurisdiction or not. Since section 7 of the N1C Act is the section that grants jurisdiction on this court and the section is specific in providing for issues relating to labour industrial relations and trade unions as well as matters incidental thereto, we looked through the statement of facts of the claimants/respondents and found that nowhere did it show any employee/ employer relationship between the claimants/respondents and the 2nd defendant. The 2nd defendant is the liquidator Nigeria Airways in liquidation. The claimants want this court to make orders directing the Nigeria Airways in liquidation to redeem its indebtedness to the 1st defendant in a manner as to enable the salaries owed to them by the 1st defendant to be settled. There is no way this court can make such orders without an incursion into the propriety or otherwise of the liquidation of Nigeria Airways and the rights and obligations that flow therefrom, an issue that is squarely not covered by section 7 of the NIC Act. The claimants are not employees of Nigeria Airways in liquidation for this court to order that their salaries be settled by the 2nd defendant. In our opinion, therefore, the 2nd defendant is not a proper party before this court as the claimants/respondent did not disclose any cause of action against him in their complaint and in their statements of facts. In the same vein, reliefs B & C of the claimants/respondents on the complaint are not covered by section 7(1) (a) of the National Industrial Court Act 2006. This Court does not have power to declare that the claimant/respondents’ outstanding salaries should form part of the Nigeria Airways in liquidation indebtedness to the 1st defendant. This court as well does not have power to compel the two defendants jointly to pay directly to the claimants/respondent their outstanding salaries between 1997 and 1998 since there is no cause of action disclosed against the 2nd defendant. We rule that the claimants/respondent claims in paragraph B & C are not actionable in this court. By their relief A and the alternative relief in the complaint, the claimants/respondents are essentially asdng the I St respondent/applicant to pay to them their outstanding salaries and allowances accruable to them as,a result of the work done for the 1st respondent/applicant. In the claimants/res ondents’ statement of facts, they were in the einployinent of the respondent/applicant between 1997 and 1998. In the statement of fact, the claimants/respondents stated that th’y were employees of the 151 respondent/applicant who was their employer. As a result, this dh pute is on non-payment of the claimants/respondents’ due wages. This is a dispute in relation to abour or work done by the claimants/respondents for the 1st respondent/applicant. Therefore, th s matter is a civil cause that relates to labour or matters incidental thereto as per section 7(1)(a) of the NIC Act 2006 for which this court has jurisdiction to try it, Another point raised by the respondent/applicant’s counsel is that even if this matter is a trade dispute, it is statute-barred, meaning that the claimants/respondents can no longer claim their said arrears of salaries and allowances anymore because they were late in instituting this action. To the 1st defendant/applicant, the claimants/respondents had only six years within the time the cause of action accrued and the time the present action was instituted but that this action was initiated clearly after six years from the period the dispute became actionable. This court has held severally tha labour disputes associated with salaries or payments for work done cannot be caught up by the limitation laws. See John Ovoh v. The Nigeria Westminster Dredging & Marine Ltd unreported Suit No. NIC/9/2002 the ruling of which was delivered on 1st April, 2008 and Captain Tor Oghide & ors v. Shona Jason (Nigeria) Ltd unreported Suit No: NIC/3/2008 delivered on uly 18, 2008. We must point out that contrary to the submission of the 1st defendant applicant, this court refused to apply the limitation law in John Ovoh ‘s case not only because that issue came up after judgment ha been delivered and that it involved a collective agreement but mainly because the claims involved affected workers’ due wages. We consequently agree with the submission of counse1 to the claimant/respondents and rule that since the case of the claimants/respondents is on work done for which they are yet to be paid, section 8(i) (a) of the Limitation Laws Cap 118 Laws of Lagos State of Nigeria 1994 does not affect their claims. See also FGN v. Zebra [2003] 3 WRN 1 at 33 — 34, lines 5-4. Counsel to the 1st defendant/applicant, Mr. Mohammed, raised this same issue in Captain Tony Oghide & 14 ors v. Shona Jason Nig. Ltd, supra, as the counsel to the applicant Mr. Mohammed himself referred the court to our ruling in that case and even attached a copy of it to his written address. Unfotunately, counsel has not convinced us as to why we should depart from our position in that case. On the whole, the preliminary objection of the 1st respondent/applicant succeeds in part and fails in part as follows: The court rules that the 2nd defendant is not a proper party before it since there is no cause of action disclosed against him in the complaint and the statement of facts of the claimants/respondents. The 2nd defendant’s name, Ade A. Babington (liquidator Nigeria Airways in liquidation), is, therefore, and hereby struck out as a party in this case. Claim B & C in the claimants/respondents complaint are struck out because they are not within the jurisdictional competence of this court. They are covered by CAMA and they come within the adjudicative purview of the Federal High Court. Claim A and the alternative claim of the claimants/respondents are covered by section 7(1)(a of the NIC Act 2006 because they are claims for work done but for which the 1st respor lent/applicant has not paid. This matter is a labour one or one that is incidental to labour consequently this court has jurisdiction to try it. The claimants/respondents’ relief A and the alternative relief are not vitiated by section 91(1) of the Labour Act, section 8(1) (a) of the Limitation Law, Cap. 118 Laws of Lagos State and section 272(1) of 1999 constitution of the Federal Republic of Nigeria; as the said caims are hinged on due wages of employees. The reliefs come under section 7(l)(a of the NIC Act 2006. Claim A and the Alternative claim shall, therefore, proceed to trial. We make no order as to cost. Ruling is entered accordingly. ___________________________ Hon. Justice. I. Kola-Olalere Presiding Judge _______________________ _______________________ Hon. Justice U. A. Obaseki-Osaghae Hon. Justice T. Agbadu-Fishim Judge Judge