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<p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><u>REPRESENTATION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">V. E. Otomiewo, with D. O. Jarikre, for the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Ladipo Soetan, Olamide Balogun, with Miss Suzie Momoh, for the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>RULING<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">On 24<sup>th</sup> February 2014, the claimants instituted an action vide a complaint against the defendant. The action is for themselves and on behalf of Chevron-Texaco Retirees of between the year 1995 and 1999. To the claimants, they were compulsorily retired and/or forced into early retirement by the defendant before they attained the retirement age which was put at 60 years old by the agreement contained in the contract of employment between the claimants and defendant and/or as contained in the Texaco Overseas (Nigeria) Petroleum Company Retirement Benefit and Gratuity/Life Assurance Schemes Explanatory Booklet (which said company is now merged with Chevron Nigeria Limited). That all efforts they made to have the defendant remedy the breach of the terms of their employment as contained in the aforesaid Booklet has failed, hence this action, wherein they are praying for the following reliefs –<o:p></o:p></p> <ol style="margin-top:0in" start="1" type="1"> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo2">A declaration that the retirement age of 60 years as contained in the contract of employment between the claimant (sic) and defendant and/or as contained in the Texaco Overseas (Nigeria) Petroleum Company Retirement Benefit and Gratuity/Life Assurance Schemes Explanatory Booklet (which said company is now merged with Chevron Nigeria Limited) is binding on the claimants and the defendant.<o:p></o:p></li> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo2">A declaration that any unilateral decision to abrogate or modify the terms of employment of the claimants taken by the defendant is unfair and/or in breach of the contract of employment between the claimants and the defendant and therefore null, void and of no effect whatsoever.<o:p></o:p></li> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo2">An order compelling the defendant to pay to the claimants their entitlement to 60 years of retirement as contained in the Texaco Overseas (Nigeria) Petroleum Company Retirement Benefit and Gratuity/Life Assurance Schemes Explanatory Booklet which is the extant document guiding the employment of the claimant (sic) with the defendant.<o:p></o:p></li> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo2">The sum of N500,000,000.00 (Five Hundred Million Naira) as general and/or exemplary damages for breach of contract, the pains, mental torture, agony and psychological trauma the claimants have been subjected to by the unwarranted and/or forced and/or early retirement of the claimants by the defendant contrary to the retirement age of 60 years contained in the claimants contract of employment.<o:p></o:p></li> <li class="MsoNormal" style="text-align:justify;mso-list:l3 level1 lfo2">Any other suitable relief(s).<o:p></o:p></li> </ol> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">At the Court’s sitting of 28<sup>th</sup> January 2015, this Court noted that the cause of action arose variously as to the claimants between 1995 and 1999; and the present action was filed on 24<sup>th</sup> February 2014. That this raises the question whether the matter is not statute-barred. Parties were then asked to file written addresses on the issue starting with the claimants. This they did. The claimants’ written address is dated 3<sup>rd</sup> March 2015 but filed on 6<sup>th</sup> March 2015, while that of the defendant is dated 11<sup>th</sup> March 2015 but filed on 13<sup>th</sup> March 2015. The claimants’ reply on points of law is dated 27<sup>th</sup> April 2015 but filed on 11<sup>th</sup> May 2015.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">By way of introduction, the claimants informed the Court that they were claimants in a similar action earlier filed at the High Court of Justice, Delta State of Nigeria in Suit No: EHC/280/2004 between <i>Isaac Oghuvbu & ors v. Chevron-Texaco Corporation</i>. The said action was filed on 3/12/2004. That upon an application dated 6/5/2013 and filed on 7/5/2013 by the defendant in the aforesaid action, which is also the defendant in the present suit, the said Suit No: EHC/280/2004 was struck out on 25<sup>th</sup> October 2013 on the ground that after one year of the commencement of the National Industrial Court (NIC) Act 2006, the State High Court ceased to have jurisdiction to entertain any suit dealing with labour and/or employment issues and matters incidental thereto. The said High Court of Justice, Effurun Judicial Division, Delta State held that it is the NIC that is vested with jurisdiction to entertain the cause of action and/or claim under NIC Act 2006. That flowing from the decision of the State High Court declining jurisdiction in respect of the aforesaid Suit No: EHC/280/2004, the claimants in accordance with the rules of this Court instituted the instant suit praying for the reliefs they claim.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants then framed two issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo4"><!--[if !supportLists]-->1.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimants’ action and/or reliefs in this suit are founded on simple contract and, therefore, regulated by limitation laws.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l5 level1 lfo4"><!--[if !supportLists]-->2.<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the cause of action in this suit is statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1, it is the claimants’ submission that their action and/or the reliefs therein are not founded on simple contract and are, therefore, not guided by the limitation laws. That to determine whether it has jurisdiction to entertain a suit, the law is that the Court is to look at the writ of summons and statement of claim only, referring to <i>Goldmark (Nig.) Ltd v. Ibafon Co. Ltd</i> [2013] All FWLR (Pt. 663) 1 at 1855 and <i>Ajayi v. Adebiyi</i> [2012] All FWLR (Pt. 634) 1 at 30.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That in the instant case, as can be gleaned from paragraphs 3, 4, 5, 6, 10 and 15 of the claimants’ statement of facts and the reliefs sought, the complaint of the claimants is that they were employees of the defendant but were compulsory retired by the defendant between 1995 and 1999 before attaining their retirement age of 60 years. That the claimants were summarily and/or compulsorily retired from service without prior notice and under a disgraceful, embarrassing and shocking condition as they were asked to leave their offices under the watchful eyes of armed mobile policemen drafted into the premises by the defendant. The claimants’ employments were clearly stated as pensionable with normal retirement age at 60 years old for both male and female employees. It is the above decision of the defendant to retire the claimants and also the failure and/or refusal by the defendant to pay to the claimants their entitlement to 60 years of retirement as contained in the Texaco Overseas (Nigeria) Petroleum Company Retirement Benefit and Gratuity/Life Assurance Schemes Explanatory Booklet which is the extant document guiding the employment of the claimants with the defendant that has made the claimants to approach the Court for redress or for the reliefs in paragraph 26 of the statement of facts.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the claimants, there is no law that limits the time within which a claimant can demand that a defendant honours the provision or conditions under which “he was employed” and/or to pay him the outstanding salaries for the period the parties agreed that the claimant should work for the defendant, referring to <i>John Ovoh v. The Nigerian Westminster Dredging & Marine Ltd</i> unreported Suit No. NIC/9/2002 delivered on 1<sup>st</sup> April 2008 and <i>Tony Oghide & ors v. Shona Jason (Nig) Ltd</i> unreported Suit No. NIC/3/2008 delivered on 8<sup>th</sup> July 2008, where this Court held that labour rights such as the claims for salaries and wages for workers cannot become statute-barred. That in the instant case, all the claimants are demanding is for the defendant to pay them the outstanding balance of their terminal benefits and/or entitlement as contained in the Texaco Overseas (Nigeria) Petroleum Company Retirement Benefit and Gratuity/Life Assurance Schemes Explanatory Booklet which is the extant document guiding the employment of the claimant with the defendant. This is more so that the parties agreed that the claimants can only be retired when they attained the age of 60 years and same was by way of collective agreement, which the defendant has unilaterally abrogated, referring to reliefs 1 – 3 contained in paragraph 26 of the claimants’ statement of facts.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That interpreting the claimants’ reliefs and/or complaints to fall under the category or species of simple contract would serve no purpose but to make the limitation law applicable to the claimants and prevent them from enforcing their rights to the reliefs claimed, referring to the ruling of this Court in <i>Captain Tony Oghide v. Jason Air Ltd & anor</i> unreported Suit No. NIC/LA/12/2009 and urging the Court to give such interpretation to the said provisions of the limitation law and resole issue 1 in favour of the claimants.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 2 i.e. whether the cause of action is statute-barred, the claimants submitted that flowing from issue 1 above, assuming the Court holds that the limitation law is applicable to the claimants’ cause of action, then the claimants’ cause of action is not statute-barred. That for a claimant to approach a court for redress there must be a cause of action. That in the determination of when a cause of action arose and period of limitation, the courts have held that it is the writ of summons and statement of claim that are relevant, citing <i>William v. William</i> [2008] All FWLR (Pt. 433) 1245 at 1257 and <i>Adekoya v. FHA</i> [2008] All FWLR (Pt. 434) 1452 at 1463. That in the instant case, the claimants’ cause of action can only be ascertained from the statement of claim i.e. the statement of facts) filed by the claimants. The claimants then submitted that their cause of action arose in 1999, when the claimants were retired, and this suit was filed in 2014. However, that this does not without more demonstrate that the claimants’ suit is statute-barred because in paragraph 23 of the statement of facts, the claimants averred as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The claimants had earlier filed a similar action at the High Court of Justice, Delta State of Nigeria in Suit No: EHC/280/2004 between ISAAC OGHUVBU & ORS. VS. CHEVRON-TEXACO CORPORATION. The said action was filed on 3/12/2004. Upon an application dated 6/5/2013 and filed on 7/5/2013 by the defendant, the said suit was struck out on the 25<sup>th</sup> day of October, 2013 on the ground that it is this Honourable Court that has jurisdiction to entertain the cause of action and/or claim after one year of the commencement of National Industrial Court Act, 2006.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is, therefore, the claimants’ submission that having instituted a suit at the High Court of Justice Delta State within the period of limitation and which said suit was later struck out for want of jurisdiction upon application by the defendant, the cause of action of the claimants is not statute-barred. That the law is that time begins to run for the purposes of limitation of action in a suit that was struck out and re-filed on the day the suit was struck out. Thus, where a claimant has instituted an action within the period provided under the relevant law which suit was later struck out and subsequently re-filed in another court as in the instant case, the cause of action will be revived by the re-filing as the Court will reckon with the period when the suit was filed in the former Court. The cause of action will be revived and limitation period will begin to run from the date the suit was struck out, referring to <i>Addax Pet. Dev. (Nig.) Ltd v. Emef Int’l Operations & 2 ors</i> [2012] All FWLR (Pt. 621) 1585 at 1596, where to the claimants the Court held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The crucial issue to be resolved however is the effect of striking out of the suit by the State High Court and the subsequent re-filing of the action in Federal High Court. Learned counsel for the appellant has argued that the suit earlier filed in the High Court of Cross River State was only revived when it was re-filed in the Federal High Court since the re-filing took effect from the date the action was first filed in the High Court, but learned counsel for the respondents are submitting to the contrary i.e. that since the cause of action arose on 5<sup>th</sup> January 2005 and the suit was struck out on 14 July, 2005, the action had become statute-barred at the time it was filed in the Federal High Court on 14 July, 2005. If the matter had been transferred from the State High Court to the Federal High Court, it would have created no problem, instead, the suit was struck out and a fresh action had to be filed in the Federal High Court. Computation of time therefore started on 14 July 2005 and not 25 February, 2005 when it was filed in the High Court…The objection is therefore overruled. The answer to issue 1 in the appellant’s brief is that the life of suit FCA/CA/CS/60/2005 commenced on 14 July, 2005 and not on 28 February, 2005 when suit No. HC/75/2005 was filed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">It is, therefore, the claimants’ submission that the order made by the High Court of Delta State before whom the suit was pending striking out same does not put an end to litigation as the consequence is for the claimants to re-file the suit in a court with competent jurisdiction as they have done in this case. That when litigation is pending time does not run, referring to <i>ACB Ltd v. Nnamani</i> [1991] 4 NWLR (Pt. 186) 486 at 496<b>, </b>where the Court held thus –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Generally, time does not run in the eyes of the law when a litigation in a matter continues and has not abated or come to an end. In the context of this case, (if I may say so naively restrict myself) time can only start to run in relation to Order 4 Rule 8(1) after the legal processes in this matter, up to the Supreme Court, if any of the parties so wish and by the time they reach the end of the litigation the party in victory will urge the court to invoke the provision of Rule 8(2).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Also referred to the Court is <i>Sayanwo v. Akinyemi</i> [2001] 8 NWLR (Pt. 714) 95 at 112, where the court held thus: “Time does not run in the eyes of the court when litigation has not come to an end”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">What is more? That the case of the claimants submitted before the High Court before it was struck out, necessitating the need to re-file the same suit before this Court, was not heard on the merit. Therefore, given the instant case the same treatment i.e. aborting the claimants’ case <i>in limine</i> like the High Court did will amount to a grave injustice to the claimants as they cannot be said to have been given fair hearing. That the Courts have also been admonished in the case of <i>Ayua v. Gbaka</i> (<i>supra</i>), at 670 (complete citation was not supplied), as follows:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">It is both a fundamental and an elementary principle of the administration of justice that whenever it is possible to determine a case on its merits, the court should not succumb to the temptation of hastily determining it <i>in limine</i> without hearing the complainant because of delay which may arise from the temporary inability of the complainant to prosecute his case. There is the real need for the court to appreciate the interest of the proper administration of justice which demands that a complainant should be given reasonable opportunity to present his case for its determination on the merit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That the court held in the case of <i>Offor v. State</i> [1999] 12 NWLR (Pt. 832) 608 at 622 as follows:<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">A fair hearing does not mean a fair trial. A fair hearing must involve a fair trial and fair trial of a case consists of the whole hearing. The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in this case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that in <i>Princewill v. Usman</i> [1990] 5 NWLR (Pt. 150) 274 at 284, commenting on the issue of fair hearing, the court held that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Fair hearing means trial conducted according to all legal rules formulated to ensure that justice is done to the parties. A hearing which denies a party an opportunity for him to be fully heard is not a hearing within the meaning of S. 33(1) of the 1979 Constitution.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants accordingly urged the Court to hold that the claimants’ cause of action is revived by this suit and it is, therefore, not statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In reaction, the defendant formulated two issues for the determination of the Court, namely –<o:p></o:p></p> <p class="MsoListParagraphCxSpFirst" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo7"><!--[if !supportLists]-->1)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether the claimants’ action and/or reliefs in this suit are founded on simple contract and therefore regulated by the Limitation Law.<o:p></o:p></p> <p class="MsoListParagraphCxSpLast" style="text-align:justify;text-indent:-.25in; mso-list:l0 level1 lfo7"><!--[if !supportLists]-->2)<span style="font-stretch: normal; font-size: 7pt;"> </span><!--[endif]-->Whether or not the cause of action in this suit is statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding issue 1), the defendant contended that the claimants in analyzing this issue cited <i>Tony Oghide & ors v. Shona Jason (Nigeria) Ltd</i> (unreported) Suit No: NIC/3/2008. To the defendant, <i>Tony Oghide’s case</i> is of limited use but since the claimants have raised it, it has become important to analyze the case. That the facts in <i>Tony Oghide’s case</i> are significantly different from the claimants’ case and distinguishable. The defendant first reproduced the claims prayed for in <i>Tony Oghide & ors v. Shona Jason (Nigeria) Ltd</i>; and then submitted that in that case most of the defendant’s employees were not issued appointment letters, but issued identity cards signed by the MD/CEO. That the defendant kept all staff on hold after the expiration of the Nigeria Airways contract up to the end of July 1998. The defendant was unable to continue the business due to the money owned by the Nigeria Airways which was then in liquidation and consequently could not pay the claimants’ salaries. That all efforts to get the staff’s outstanding salaries failed, and consequently, the defendant could not pay the claimants. In appreciation of the defendant’s predicament, the claimants agreed to wait for the payment of the outstanding bills but Nigeria Airways was not forthcoming. When Nigeria Airways eventually paid, the defendant reneged on the understanding between it and its workers and refused to pay the arrears of salaries owed to the claimants. That it was this, therefore, that necessitated the institution of the action in court. That it is clear that the claim was for outstanding salaries owed them for work already done.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant continued that the issue that arose for determination before the Court in that case was <i>inter alia</i> whether the claimants’ rights to outstanding salaries due to them for work and labour rendered is caught by section 8(1)(a) of the Limitation Law Cap. 118 Laws of Lagos State 1994. That this Court, guided by the decision of the Supreme Court in <i>Egbe v. Adefarasin</i> [1987] 1 NWLR (Pt. 47) 1, held that the rights of the claimants to receive salaries for work done is not caught by the limitation laws.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, in the present suit, the claimants were employees of the defendant in the 1990s by virtue of a contract of employment as stipulated in the Texaco Overseas (Nigeria) Petroleum Company Retirement Benefit and Gratuity/Life Assurance Schemes Explanatory Booklet. During the subsistence of their employment, they were paid their salaries and wages. The claimants were offered an early retirement and accepted the offer. Upon retirement, they were paid their full entitlements. That it is not the claimants’ case that they are being owed salaries for work already done. Therefore, the claimants were not owed salaries or wages as in the <i>Tony Oghide’s case</i>.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that it is crystal clear that the facts in <i>Tony Oghide & ors v. Shona Jason (Nigeria) Ltd</i> and the present suit are far apart and distinct from each other. That the present suit is predicated on the voluntariness of the termination of employment and not for recovery of salaries owed for work already done. That termination of employment, which is the sum of the claimants’ case, is a breach of a simple contract. Thus, the authority cited by the claimants is not applicable to the present case, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant proceeded to define the term “Contract of Employment”, referring to that given by the Supreme Court in <i>S.S. Co. Ltd v. Afropak</i> [2008] 18 NWLR (Pt. 1118) 77 at 82 as –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">The Labour Act, Cap. 198, Laws of the Federation on Nigeria, 1990 which applies to workers, strictly to the exclusion of the management staff, defines a contract of employment as any agreement, whether oral, written, express or implied, whereby one person agrees to employ another as a worker and that other person agrees to serve the employer as a worker.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, in view of this definition, the claimants agreed to serve the defendant as its workers. That it is safe and correct to submit that the claimants were governed by a contract of employment between them and the defendant and thus the claimants’ action is founded on simple contract of employment. That the claimants in paragraphs 5 and 6 of their statement of facts only referred to the Booklet, which is the lifeblood of their contract of employment. That it is the contract of employment itself and the alleged termination thereof that is subject matter of this suit and that subject matter is subject to the limitation law.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants also cited the case of <i>John Ovoh v. The Nigeria Westminster Dredging & Marine Ltd</i> (unreported) Suit No. NIC/9/2002. To the defendant, this case turned on the interpretation of a collective agreement, which is not the fact in issue before this Court; referring to <i>Osho v. Unity Bank</i> [2013] 9 NWLR (Pt. 1358) 1 SC at 8 where a collective agreement was defined. That the Supreme Court has held that collective agreements between employer and employees or between an employer and union of employees are not included to create any legal relations giving rise to any contractual obligations and are, therefore, not justiciable; except where the terms of the agreement have been incorporated expressly or by necessary implication into the contracts of employment of the employees, citing <i>Osho v. Unity Bank</i> (<i>supra</i>) and <i>UBN v. Edet</i> [1993] 4 NWLR (Pt. 287) 288. Therefore, that it is safe to state that a collective agreement derives it justiciability from the contract of employment. In this case, what is in contention between the parties is not a collective agreement but a contract of employment pursuant to the Texaco Overseas (Nigeria) Petroleum Company Retirement Benefit and Gratuity/Life Assurance Schemes Explanatory Booklet.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant then submitted that the legal basis of employment is the simple contract of employment. That this is important in itself, that it gives rise to a common law action for its enforcement or for damages for its breach, referring to <i>Halsbury’s Laws of England</i>, Volume 16, 4<sup>th</sup> Edition Reissue, page 7 paragraph 1. That the fulcrum of the claimants’ claim in this suit is based on the contract of employment and parts thereof being the Texaco Overseas (Nigeria) Petroleum Company Retirement Benefit and Gratuity/Life Assurance Schemes Explanatory Booklet. This generates and reflects a contractual relationship at common law. Therefore, as with other simple contracts under the law, limitation of action applies to enforcement of claims for its alleged breach.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In the light of the foregoing, the defendant contended that the claimants’ action and reliefs are founded on alleged wrongful termination of employment and breach of the contract of employment which are thus subject to the limitation laws, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On issue 2) i.e. whether or not the cause of action in this suit is statute-barred, the defendant submitted that the claimants’ claim is predicated on the purported wrongful termination/early retirement or forceful retirement of their employment with the defendant at various times between 1995 – 1999; as such the claimants’ suit is predicated solely on a breach of a simple contract of employment that arose at various times between 1995 – 1999 when the purported retirement application was accepted and confirmed by the defendant. That the claimants filed this action against the defendant at least fifteen (15) years (1999 to 2014) after the cause of action arose. Consequently, that by virtue of the limitation laws the claimants’ action is statute-barred and cannot be commenced after the expiration of 6 years which is the statutory limit for commencing such actions, referring to <i>Crutech v. Obeten</i> [2011] 15 NWLR (Pt. 1271) 588 at 595 and <i>Minister of FCT v. M. H. (Nigeria) Limited</i> [2011] 9 NWLR (Pt. 1252) 272 at 278.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant also referred to section 8(1)(a) and (b) of the Limitation Law of Lagos State Cap. L67 Laws of Lagos State of Nigeria, which provides that 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; and (b) actions founded on quasi-contract. That where the provision of a statute is garbed with the word “shall” it connotes that it is imperative that the provision be obeyed. This is so because the word “shall” is a word of command. It imposes a duty and makes the provision mandatory, citing <i>Corporate Idea Ins. Ltd v. Ajaokuta Steel Co. Ltd</i> [2014] 7 NWLR (Pt. 1405) 165 SC.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, the general principle of law, as entrenched by the Supreme Court in <i>Muhammed v. Ahmadu Bello University, Zaria</i> [2014] 7 NWLR (Pt. 1407) 431, is that –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">Where a statute provides for the institution of an action within a prescribed period, proceedings shall not be instituted after the time prescribed by such statute. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence an action would have been extinguished.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify">Also referred to the Court is <i>Ibrahim v. Judicial Service Committee, Kaduna State</i> [1998] 14 NWLR (Pt. 584) 1; and that the Court of Appeal in <i>Plateau Const. Limited v. Aware</i> [2014] 6 NWLR (Pt. 1404) 519 similarly held that the question or issue as to whether an action has been commenced within time or otherwise, in order to determine whether it is statute-barred or not, is a matter of computation or calculation of raw figures. Indeed, a court of law has no discretion in the matter, citing <i>Ama v. Jinadu</i> [1992] 4 NWLR (Pt. 233) 91.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant went on that the claimants made copious reference to and heavy weather of the fact that they commenced proceedings in an earlier claim in Suit No: EHC/280/2004 before the High Court of Delta State of Nigeria. That in proceedings before the High Court, Hon. Justice P. O. Onajite-Kuejubola struck out the claimants’ suit based on the defendant’s application dated 6<sup>th</sup> May 2013 for want of jurisdiction. That in an attempt to mislead this Court, the claimants have alluded to the fact that their commencement of the suit that was struck out was within time and as such, the filing of this present matter before the National Industrial Court is a revival or continuation of the said claim before the High Court of Delta State in Suit No: EHC/280/2004. That the claimants’ therefore contended that their claim before this Court is not statute-barred and so takes their claims in this suit out of the purview of the limitation law.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In response to this argument by the claimants, the defendant submitted that the matter before the High Court of Delta State was struck-out by that Court for want of jurisdiction, which then led to the commencement of this matter <i>de novo</i> before this Court. That on the effect of striking out of a suit, the Supreme Court in <i>Y.S.G Motors Limited v. Okonkwo</i> [2010] 15 NWLR (Pt. 1217) 524 at 539, stated as follows: “striking out of a suit or a case in its general connotation is the act of discontinuance or termination of the lifespan of that suit or case either temporarily or permanently”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That as it applies to the claimants’ Suit No: EHC/280/2004, the High Court terminated the action before it permanently for lack of jurisdiction. That the claimants cited <i>Addax Petroleum Dev. (Nig) Ltd v. Emef Int’l Operations</i> [20121 All FWLR (Pt. 621) 1585 at 1596 which also supports the defendant’s arguments hereof. To the defendant, in that case and the quote cited by the claimants, the Court held that the time for computation of the cause of action for the suit before the Federal High Court started running on 14<sup>th</sup> July 2005 when the matter was instituted before the Federal High Court as opposed to when it was commenced before the High Court of Rivers State on 28<sup>th</sup> February 2005 who struck out the matter. That in commencing this matter before the NIC <i>de novo</i>, the claims of the claimant are coming before the hallowed halls of justice for the first time in the eyes of the law. This is not a claim that is in <i>continuum</i> or revival or a claim being transferred between courts. Therefore, the date the cause of action accrued to the date this matter was brought before this court exceeds the expiry date required by law for the institution of an action for breach of contract, as such, it is statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Furthermore, that where a law stipulates a durational period for the institution of a suit, such an action cannot be commenced after the expiration of the statutorily prescribed period, citing <i>P. N. Udoh Trading Co. Ltd v. Abere</i> [2001] 11 NWLR (Pt. 723) 114, <i>Ibrahim v. J.S.C Kaduna State</i> (<i>supra</i>), <i>Adeosun v. Jibesin</i> [2001] 11 NWLR (Pt. 724) 290 and <i>Plateau Const. Limited v. Aware</i> (<i>supra</i>).<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant proceeded to address three related issues: when a cause of action accrues and time begins to run; the proper order to make where an action is statute-barred; and whether ignorance of the law can be used as a defence.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><b> </b></p> <p class="MsoNormal" style="text-align:justify">As to when the cause of action accrues and time begins to run, the defendant referred to <i>J. K. K. Ltd v. Gov., Lagos State</i> [2014] 5 NWLR (Pt. 1399) 151, which held that a statute of limitation begins to run from the moment the cause of action arose. That it is immaterial that a party was absent from the jurisdiction or that there was no court within jurisdiction to entertain the claim. Similarly illiteracy will not avail a claimant because ignorance of the law is no excuse. That it is settled law that the time starts to run in a case where a statute of limitation has been invoked as a defence from the date or period the cause of action accrues or where the right of action is concealed, referring to <i>Registrar, College of Education, Katsina-Ala v. Gbande</i> [20141 5 NWLR (Pt. 1201) 589 and <i>Eboigbe v. NNPC</i> [1994] 5 NWLR (Pt. 347) 649. To the defendant, in this instant case the time began to run since 1995 – 1999 when the claimants’ cause of action in this suit arose.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That where an action is statute-barred, a plaintiff is left with a worthless and empty shell, as his right to an enforceable cause of action has become stale, extinguished and lost forever. This is more so, because no valid action can be brought after the right to do so has been lost. The effect is that such action is empty or bare cause of action which cannot be enforced in any court of law, citing <i>Ataloye v. Gov., Ondo State</i> [2014] 8 NWLR (Pt. 1410) 620. That this present claim, being one brought or instituted outside the period allowed by the limitation law is invalid and incompetent. The effect of a cause of action that has become statute-barred is that it removes the right of action of the plaintiff or claimant from within the competence of the Court, citing <i>Obi v. Onyemelukwe</i> [2011] 1 NWLR (Pt. 1228) 400 at 408. The defendant accordingly prayed the Court to decline jurisdiction and hold that the cause of action in this suit is dead and cannot be revived.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Regarding the proper order to make, the defendant referred to <i>Crutech v. Obeten</i> (<i>supra</i>), which held the proper order to be one of dismissal, not just striking out. To the defendant then, the claimants’ case having been inescapably caught by the statute of limitation, the proper and only order to make is one dismissing the suit, urging the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, by <i>Ebo v. Amadi</i> [2012] 8 NWLR (Pt. 1301) 69 CA, “the period of limitation is also extended in the case of disability of a plaintiff from infancy or unsoundness of mind”. However, that in the instant case none of the claimants has such disabilities or deformity to accord them such opportunity to fall under this ambit of the law. Hence the period of limitation cannot be extended for them in the present circumstances, praying the Court to so hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On whether ignorance of the law can be used as a defence, the defendant submitted that the maxim, “<i>ignorantia juris quodquisque tenetur scire neininem excusat</i>”, meaning ignorance of law excuses no man, furnishes no ground in law or equity. That it is totally irrelevant and immaterial that the claimants were confused and lacked knowledge as to where to institute an action for an enforcement of a simple contract of employment. That the reasons given for the delay by the claimants was mistake of law and it is elementary that ignorance of law is not an excuse; more particularly where the said mistake of law is self-induced by the claimants as in this present claim, citing <i>Akibu v. Azeez</i> [2003] 5 NWLR (Pt. 814) 643.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">To the defendant, it is without doubt that the claimants’ claims are caught by the web of limitation and thus foreclosed by the limitation laws from raising the issues contained in their statement of facts as the cause of action is time-barred, having waited at least fifteen (15) years before they realized the need to file this suit against the defendant.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The defendant concluded by praying the Court to dismiss the claimants’ case in its entirety, for the writ of summons, statement of facts and all other frontloaded documents filed by the claimants are incompetent, frivolous, vexatious, lacking in merit and void <i>ab initio.<o:p></o:p></i></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants reacted on points of law. To the claimants, the authorities cited by the defendant in its written address did not address the points canvassed by the claimants to the effect that this suit is not statute-barred. That the authorities of <i>Crutech v. Obeten</i> [2011] 15 NWLR (Pt. 1271) 588 at 595 and <i>Minister of FCT v. M. H. (Nigeria) Limited</i> [2011] 9 NWLR (PT. 1252) 272 at 278 cited by the defendant are not in any or all fours with the facts and circumstances of this case and are distinguishable. That in <i>Crutech v. Obeten</i>, no issue was raised concerning the law of contract of employment and six (6) year limitation period for the institution of an action bordering on “simple contract” as the defendant wants this Court to believe. That the said authority was in respect of termination of employment tainted with statutory flavor and the provision of section 2(a) of the Public Officers Protection Law of Cross Rivers State as it relates to protection of public officers in the discharge of official function.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">That <i>Minister of FCT v. M. H. (Nigeria) Limited</i> did not fare better as the issues raised and determined therein are in respect of notice of revocation of certificate of occupancy and the challenge to the validity of same. That the issue of statute-barred was only raised as a defence under section 2(a) of the Public Officers Protection Act. It has nothing to do with the law of contract of employment and/or collective agreement or payment of salaries or entitlement as in the instant case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants then submitted that by the showing of the defendant vide the authority of <i>Y. S. G.<o:p></o:p></i></p> <p class="MsoNormal" style="text-align:justify"><i>Motors Limited v. Okonkwo</i> [2010] 15 NWLR (Pt. 1217) 524 at 539, a suit struck out only suffers a temporary setback and the proceedings are not terminated for all intents and purposes as the claimant can re-file same, referring to <i>Sayanwo v. Akinyemi</i> [2001] 8 NWLR (Pt. 714) 95 at 112 where the court held thus: “Time does not run in the eyes of the court when litigation has not come to an end”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants went on that their rights to their salaries and work related entitlements from the defendant cannot be caught up by the limitation law. That the view canvassed or expressed by the defendant in its written address is a misapprehension and misunderstanding of the law on the issues and reliefs sought by the claimants in this case, referring to <i>John Ovoh v. The Nigerian Westminster Dredging & Marine Ltd</i> (unreported) Suit No: NIC/9/2002 delivered on 1<sup>st</sup> April 2008 by this Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants submitted further that the only way justice can be done in this case is to hear same on the merit and not to strike out the suit on technical grounds, citing <i>Otapo v. Sunmonu</i> [2011] All FWLR (Pt. 576) 419 at 472, which held as follows: “it is the duty of courts to aim at doing substantial justice between the parties and not let that aim be turned aside by technicalities”; and <i>Odigwe v. JSC Delta State</i> [2011] All FWLR (Pt. 583) 1919 at 1937, which held: “Courts are enjoined to dispose of matters on the merit and not to scuffle them on alter of technicality as the latter approach tends to smack of high-handedness”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In adopting their written addresses, the claimants’ counsel referred the Court to <i>Sifax Nig. Ltd & 4 ors v. Migfo Nig. Ltd & anor</i> [2015] LPELR-24655(CA) as a case supporting the stance of the claimants that the instant case is not statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In conclusion, the claimants urged the Court to hold that this it is vested with jurisdiction to entertain this suit.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center"><u>COURT’S DECISION<o:p></o:p></u></p> <p class="MsoNormal" style="text-align:justify">I heard learned counsel and considered all the processes filed in this matter. The simple issue before the Court is whether this case is statute-barred. In this regard, the claimants had first submitted in terms of their first issue that the reliefs they seek are founded on a simple contract and so not regulated by the limitation laws. It is in this respect that the claimants went on to contend that labour rights such as claims for salaries and other entitlements are not caught up by the limitation laws, citing some decisions of this Court i.e. <i>John Ovoh v. The Nigerian Westminster Dredging & Marine Ltd</i>, <i>Tony Oghide & ors v. Shona Jason (Nig) Ltd</i> and <i>Captain Tony Oghide v. Jason Air Ltd & anor</i> (all <i>supra</i>). This no doubt is true, but only in the context of continuing damage or injury as laid down by the Supreme Court in<i> AG, Rivers State v. AG, Bayelsa State & anor</i> [2013] 3 NWLR (Pt. 1340) 123. This Court has since the cases cited by the claimants in tune with Supreme Court cases recognized that the limitation law applies with equal force to employment contracts as of other contracts. In <i>Mr. Iyede Onome Festus & anor v. Management Board of Delta State University Teaching Hospital & anor</i> unreported Suit No. NICN/LA/312/2013 the ruling of which was delivered on July 3, 2014, this Court reviewed the authorities and held as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify"><span lang="EN-GB">In support, the claimants referred to <i>Osun State Govt. v. Danlami (Nig) Ltd</i> [2007] 9 NWLR (Pt. 1038) at 66 83 – 84 and 100, where the Supreme Court held that section 2 of the Public Officers Protection Act does not apply in cases of breaches of contract or claims for work and labour done. In contrast, the defendants referred the Court to <i>Akauve Moses </i><i>Osoh & ors v. Unity Bank Plc</i> [2013] 9 NWLR (Pt. 1358) 1 at 48 and 50, where the Supreme Court held that the action instituted by the claimants robbed the Court of its jurisdiction because as at the time the action was brought the claimants were no longer in employment of the defendant. Termination of employment cases have generally been held by the Courts to be capable of being caught up by the limitation laws. But are all labour/employment cases so caught up? This remains the question. </span>In earlier cases such as<i> John Ovoh v. The Nigerian Westminster Dredging & Marine Co. Ltd</i> [2008] 1<span lang="EN-GB">4</span> NLLR (Pt. <span lang="EN-GB">37</span>)<span lang="EN-GB"> 68</span>, this Court had held that the labour rights are not 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. This reasoning was followed in subsequent cases such as <i><span lang="EN-GB">Captain Tony Oghide & ors v. Shona Jason (Nigeria) Ltd</span></i><span lang="EN-GB"> unreported Suit No. NIC/3/2008 the ruling of which was delivered on July 18, 2008 and <i>Captain Tony Oghide & ors v. Jason Air Ltd</i> unreported Suit No. NIC/LA/12/2009 the ruling of which was delivered on January 13, 2011</span>. In <i>Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State & ors</i> [2013] 32 NLLR (Pt. 91) 63 NIC, this Court attempted a rationalization of the authorities as follows –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:1.0in;text-align:justify">…the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in <i>AG, Rivers State v. AG, Bayelsa State & anor</i> [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1<sup>st</sup> defendant who had raised it. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. In this sense, for the ‘continuing injury’ exception to apply, the employee would need to be in employment; for otherwise, the claim that the deprivation continues would not stand. In the instant case, the claimants ceased to be in office in 2010. There is, therefore, no question as to the existence of a deprivation of an entitlement which comes in periodically and has not ceased after 2010. This being the case, the claimant in the instant case cannot claim the benefit of the exception to the Public Officers Protection Law of Cross River State.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">What this rationalization means is that the argument of the claimants in this regard is untenable and so must be rejected. The claimants’ action and reliefs claimed are regulated by the limitation laws; and I so find and hold.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">This leaves out the question whether this suit is statute–barred; and here, given the argument of the claimants, the claimants did not contest the fact that if taken in isolation, this case would ordinarily be statute-barred. The claimants acknowledged that their cause of action arose in 1999 and the present action was filed on 24<sup>th</sup> February 2014. The claimants agree that their cause of action is their compulsory and pre-mature retirement from service without notice and the refusal to pay them their entitlements, all of which happened between 1995 and 1999. With this set of facts, and if taken in isolation, what it means is that the instant case was filed some 15 years after the cause of action arose; and so by section 8 of the Limitation Law of Lagos State the action would be statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">However, the key argument of the claimants is that they had filed on 3/12/2004 this matter at the High Court of Justice, Delta State of Nigeria as <i>Isaac Oghuvbu & ors v. Chevron-Texaco Corporation</i> Suit No. EHC/280/2004. That upon an application dated 6/5/2013 and filed on 7/5/2013 by the defendant, the said suit was struck out on 25<sup>th</sup> October 2013 on the ground that it is the NIC that has jurisdiction to entertain the case. To the claimants then the order made by the High Court of Delta State (before whom the suit was pending) striking out same did not put an end to litigation as the consequence is for the claimants to re-file the suit in a court with competent jurisdiction as they have done in this case. They relied on <i>Addax Pet. Dev. (Nig.) Ltd v. Emef Int’l Operations & 2 ors</i> [2012] All FWLR (Pt. 621) 1585 in support of their submission. One of the grounds upon which this case was fought on appeal is the question when time begins to run for the purposes of limitation of action in a suit that was struck out and re-filed. After making the statement the claimants quoted at page 1596 of the judgment, the Court of Appeal per His Lordship Kumai B. Akaahs, JCA (as he then was) at page 1601 then held: “The judgment of the Federal High Court dismissing the action as not maintainable is hereby set aside. The action can be prosecuted outside the 3 months from the date the cause of action arose”. It is this holding that the claimants relied on to urge this Court to hold that their case is not statute-barred. However, there are a number of issues here.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In the first place, earlier authorities such as <i>UTA French Airlines v. Williams</i> [2000] 14 NWLR 271 coming to a different conclusion were not referred to and considered in <i>Addax Pet. Dev. (Nig.) Ltd v. Emef Int’l Operations & 2 ors</i> (<i>supra</i>) as to show an actual change in the law on the issue. In <i>UTA French Airlines v. Williams</i>, the plaintiff had first filed the action, <i>within the limitation time</i>, at the Lagos High Court. On advice of the Lagos Chief Judge, she filed fresh processes at the Federal High Court. This latter case was held to be different from that of the Lagos High Court; and because it was filed out of the limitation period, it was held caught up by the limitation period of two years under the relevant law. Incidentally, this Court applied<i> UTA French Airlines v. Williams</i> in <i>Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors</i> unreported Suit No. NICN/ABJ/120/2011 the ruling of which was delivered on February 13, 2013.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The second issue is that the judgment in<i> Addax Pet. Dev. (Nig.) Ltd v. Emef Int’l Operations & 2 ors</i> was actually delivered on 12<sup>th</sup> July 2010 though reported in a 2012 law report. Now, in a judgment delivered on 10<sup>th</sup> December 2012 i.e. <i>Echelunkwo John O. & 90 ors v. Igbo-Etiti Local Government Area</i> [2013] 7 NWLR (Pt. 1352) 1, the issue was whether the trial Enugu State High Court sitting in Nsukka was right to have struck out the suit instead of transferring same to the NIC. The Court of Appeal per John Inyang Okoro, JCA (as he then was) at pages 16 – 17 held the provision of section 24(3) of the NIC Act 2006 directing High Courts to transfer cases to the NIC when they do not have jurisdiction over same to be binding on all State High Courts. His Lordship proceeded to state –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">…the appellants’ suit by section 136 of Local Government Law Cap 109 Laws of Enugu State 2004, would be statute barred should it be filed afresh at the National Industrial Court. There was the need therefore, in order to save the suit for the appellants who had filed same within time at the court below to make an order of transfer in accordance with section 24(3) of the National Industrial Court Act 2006, instead of striking the said suit out.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">By this statement, His Lordship acknowledged that the law is that a case struck out by, or withdrawn from, one court and re-filed in another remains a new case for which time will run as from the date of re-filing. This is the law as stated and applied in <i>UTA French Airlines v. Williams</i>. Additionally, in <i>Dr Andy Uba v. (Prince) Hon. Nicholas Ukachukwu & anor</i> [2013] LPELR-22045(CA), Okoro, JCA (as he then was) held that it is trite that an amendment of a writ of summons or pleadings which will have the effect of reviving a cause of action which is barred by statute of limitation at the time of the amendment is not permissible because it has the tendency of taking away the defendant’s right which has vested in him and would be prejudicial to him. The question that arises here is: if the amendment of a writ of summons or pleadings in a <i>pending</i> case cannot revive a cause of action that is statute-barred at time of the amendment why would a re-filed case, which is actually a new case, have the opposite effect as the claimants are arguing?<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants placed much reliance on <i>Sifax Nig. Ltd & 4 ors v. Migfo Nig. Ltd & anor</i> [2015] LPELR-24655(CA) as the hottest case in town on the issue at stake. It may be necessary to rehearse the facts of this case. The respondents had filed Suit No. FHC/L/CS/664/2006 in respect of the dispute at hand and got judgment, which was appealed against at the Court of Appeal. The Court of Appeal affirmed the judgment of the Federal High Court (FHC). On a further appeal to the Supreme Court, the case was struck out by the Supreme Court on 8<sup>th</sup> June 2012 on the ground that the FHC which heard the matter had no jurisdiction to do so. The respondents accordingly filed a fresh action at the High Court of Lagos State on 18<sup>th</sup> July 2012. The appellants as defendants reacted by filing a motion on notice wherein they prayed that the suit be struck out on the ground that it is statute-barred. In a ruling delivered on 5<sup>th</sup> July 2013, the Lagos High Court held that the action was not statute-barred because it was not caught up by section 8 of the Limitation Law of Lagos State. Dissatisfied, the appellants appealed against the ruling on a number of issues including whether or not the suit was statute-barred.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In determining whether the trial judge was right in holding that the action is not statute-barred, the Court of Appeal first accepted that the cause of action that gave rise to the respondents’ right of action accrued on 20<sup>th</sup> July 2006, the date they obtained the certified copies of the documents from the Corporate Affairs Commission (CAC) showing that the 5<sup>th</sup> appellant was incorporated and the 1<sup>st</sup> and 3<sup>rd</sup> appellants were made shareholders and Directors to the exclusion of the respondents contrary to their joint venture agreement. The Court of Appeal then proceeded to hold that “computing the Limitation period of six years from the said 20-7-2006 to 18-7-2012 when the respondents commenced this action, it no doubt shows that they are still within the ambit of the six years period of Limitation as prescribed by Section 8(1)(a) of the Limitation Law of Lagos State, granted that the transaction falls within the realm of a simple contract”.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">On the issue whether time can be suspended or put in abeyance in certain instances for the purpose of computing time for limitation period, the Court of Appeal agreed with the trial judge that time does not run between 2005 and 8<sup>th</sup> June 2012 when the Supreme Court decided the matter. The trial judge had reasoned (which was reiterated and affirmed by the Court of Appeal) that learned senior counsel for the applicants (appellants) did not put forward any contrary argument on the point. The Court of Appeal then held that the appellants must be deemed to have conceded that point at the Lagos High Court.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The Court of Appeal then proceeded to address what it termed “the recondite nature of the law relating to whether time ceases to run upon the filing of an action by a party, which Suit is subsequently struck out for the purpose of the Limitation Law”. Here, after considering a number of case law authorities, the Court of Appeal agreed with the trial judge that time ceases to run when a plaintiff commences legal proceedings in respect of a cause of action in question. That this accords with justice and common sense. To the Court of Appeal, where an aggrieved person commences an action within the period prescribed by the statute and such action is subsequently struck out for one reason or the other without being heard on the merit or subjected to an outright dismissal, such action is still open to be recommenced at the instance of the claimant and the limitation period shall not count during the pendency of earlier suit. In other words, that computation of time during the pendency of an action shall remain frozen from the filing of the action until it is determined or abates. The Court of Appeal then held that as regards the suit before it, time ceased to run from the filing of Suit No. FHC/L/CS/664/2006 on 9-8-2006 until 8-6-12 when it was struck out by the Supreme Court. In other words, that the suit was not caught up by the statute of limitation.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Is <i>Sifax Nig. Ltd & 4 ors v. Migfo Nig. Ltd & anor</i> distinguishable from the instant case? This remains the question. As can be seen from the narration made so far, the Court of Appeal made a specific finding that given when the cause of arose and even when the appellants filed their suit at the Lagos High Court, they were still within the limitation time of six years. Secondly, the Court of Appeal held that arguments on aspects of the issue were actually not contested by opposing counsel for which they were accordingly held to have conceded same. Thirdly, the Court of Appeal relied on <i>Alhaji Haruna Kassim (Trading as Cash Stores) v. Herman Ebert</i> [1966 – 69] NNLR 75, but it must be noted that the case dealt with the issue of relisting a case that was struck out. It is in that context that the Supreme Court in that case held that a cause of action is said to be pending in a court of justice when any proceeding can be taken in it – the test being if you can take any proceeding then it is pending. Lastly, the case ran the course of being decided on merit at the trial court and Court of Appeal. It was only struck out at the Supreme Court for want of jurisdiction (note that the Supreme Court reserves the right to decide a case on just one issue if that issue will determine it). As acknowledged by the Court of Appeal, the Supreme Court could have invoked its powers to transfer the case to the appropriate State High Court. All of these facts are not in issue in the instant case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Additionally, I earlier referred to <i>Echelunkwo John O. & 90 ors v. Igbo-Etiti Local Government Area</i>, <i>UTA French Airlines v. Williams</i> and <i>Dr Andy Uba v. (Prince) Hon. Nicholas Ukachukwu & anor</i> as dealing directly with the issue in the instant case. I read through <i>Sifax Nig. Ltd & 4 ors v. Migfo Nig. Ltd & anor</i>. In nowhere in it was any of these cases cited and considered. So it cannot be that what these cases decided can be said to have been overruled and so is no more good law. In this sense, I think that <i>Sifax Nig. Ltd & 4 ors v. Migfo Nig. Ltd & anor</i> is distinguishable from the instant case.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">In an earlier suit, <i>Mr. Abiodun Akinsanya v. Schlumberger Nigeria Limited</i> unreported Suit no. NICN/LA/296/2014 the ruling of which was delivered on 16<sup>th</sup> February 2016, this Court rejected a similar argument raised by the claimant upon a similar preliminary objection raised by the defendant against the suit. This is what this Court said –<o:p></o:p></p> <p class="MsoNormal" style="margin-left:.5in;text-align:justify">In orally arguing his case, the claimant had informed the court that he filed this same case in Port-Harcourt (the High Court of Rivers State) as Suit No. PHC/1385/2007, which suit was struck out for lack of diligent prosecution. Instead of applying for the order of striking out for lack of diligent prosecution to be set aside or appealing against it as enjoined by <i>NBCI v. MGI Co. Ltd</i> [1992] 2 NWLR (Pt. 221) 71 at 84, the claimant chose to file a fresh action in this court relying on the unreported case of Appeal No. CA/L/843/2013 of <i>Sifax Nig. Ltd & 4 ors v. Migfo Nig. Ltd & anor</i>. His lordship Okoro, JCA (as he then was) held in<i> Echelunkwo John O. & 90 ors v. Igbo-Etiti Local Government Area</i> [2013] 7 NWLR (Pt. 1352) 1 at 14 – 17 that a suit struck out in one court and re-filed in another remains a new and fresh suit capable of being caught up by the limitation laws. See <i>UBA v. Ukachukwu</i> [2013] LPELR 22045(CA), which upheld this rule in respect of amendments introducing new causes of action in an action.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">The claimants have accordingly not convinced this Court that re-filing this suit revives that which they filed at the Delta State High Court as to warrant the non-application of the limitation laws. The instant case is a new case for which time runs as per the date of filing i.e. 24<sup>th</sup> February 2014. This being the case, and given that the cause of action arose between 1995 and 1999 as per the individual claimants, it is my finding and holding that this case is statute-barred. As enjoined by <i>Nigerian Ports Authority Plc v. Lotus Plastics Ltd & </i>anor [2005] LPELR-2028(SC); 19 NWLR (Pt. 959) 158, this case is hereby dismissed.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify">Ruling is entered accordingly. I make no order as to cost.<o:p></o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" style="text-align:justify"><o:p> </o:p></p> <p class="MsoNormal" align="center" style="text-align:center">……………………………………<o:p></o:p></p> <p class="MsoNormal" align="center" style="text-align:center">Hon. Justice B. B. Kanyip, PhD<o:p></o:p></p>