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BEFORE THEIR LORDSHIPS Hon. Justice B. B. Kanyip - Presiding Judge Hon. Justice V. N. Okobi - Judge Hon. Justice F. I. Kola-Olalere - Judge Hon. Justice O.A. Obaseki-Osaghae - Judge Hon. Justice J. T. Agbedu-Fishim - Judge DATE; JULY 18, 2008 SUIT NO. NIC/3/2008 BETWEEN 1. CAPTAIN TONY OGHIDE 2. CAPTAIN TANKO AFEGBUA 3. G/E GODWIN EHIWE 4. SFE ENOCH OGUNMOLA 5. SFE SUNDAY FABIYI 6. SFO .A. BANDELE 7. SFO ANSLEM OKOJIE 8. ENGR. E. OWOICHO 9. MR. OLAWALE AMOS OLAJIDE 10. L/M OYAYA BAYEE 11. MR. JOHN ANYANWU 12. MR. G. AJOSE 13. MR. OLOBIO 14. MR. AMEH 15. MR. D. AFOLABI………………………………..….Claimants/Respondents AND 1) SHONA JASON (NIGERIA) LIMITED (Trading & doing business with the name Jason Air) 2) AVM FEMI JOHN FEMI……………………….……. Defendants/Applicants REPRESENTATION Odiana Eriata, for the claimants/respondents S.M.O. Mohammed, for the defendants/applicants RULING This is a Motion on Notice dated 25th March, 2008 brought by the 1st and 2nd defendants/applicants pursuant to section 65 of the companies and Allied Matters Act 1990, section 8(1)(a) of the Limitation Law Cap. 188, Laws of Lagos State 1994 and the inherent Jurisdiction of his court seeking the following orders: 1. An order striking out dismissing this action in its entirety OR Alternatively. 2. An order striking out the name of the 2nd defendants/applicants in this action for misjoinder. The grounds under which the orders are sought by the defendants/applicants are as follows: 1. That this action, being founded on simple contract, is time or statute barred by virtue of section 8(1)(a) of the Limitation Law Cap. 118, Laws of Lagos State of Nigeria 1994. 2. That the 1st defendant/applicant (i.e. Shona Jason (Nigeria) Limited) having been registered under Nigerian Law is a juristic person and for all purposes vested with separate legal personality and identifiable by its registered name fully answerable for its action and/or wrongs. 3. The claimants/respondents have no lawful reliefs and/or claim against the 2nd defendant/applicant in this action. 4. There is no basis in law for the joinder in this action of the 2nd defendant/applicant as a party otherwise than to embarrass and scandalize him and bring his name to public ridicule odium. The motion on notice is supported by an 8-paragrahed affidavit sworn to by Segun Akinola Oshodi to which are attached 5 exhibits namely: Exhibit S01 A - Certificate of Incorporation Exhibit S01 B - Certified True Copy of the Memorandum and Articles of Association Exhibit S01 C - Certified True Copy of the Particulars of Directors Exhibit S02 A - Claimants/Respondents’ Complaint Exhibit S02 B - Statement of Facts. The claimants/respondents filed a 17-paragraphed counter-affidavit sworn to by Odiana Eriata to which are attached 8 exhibits namely: Exhibit A: Letter dated 19th June 2000 Exhibit B: Nigeria Airways Liquidators publication in Punch Newspaper of 11th May, 2005. Exhibit C: Nigeria Airways Liquidator publication in Punch Newspapaer of 7th May, 2005 Exhibit D: Certificate of vehicle insurance and licence. Exhibit E: Defendants’ letter of demand for payment to Nigeria Airway dated 16th March 1998 Exhibit F1: Photocopy of Passport Exhibit F2: Photocopy in invitation to Irish Embassy Exhibit F3: Deposition in case between the Defendants/Applicant and Omega Air. In accordance with the rules, the parties filed and exchanged written addresses. The defendants/applicants’ written address is dated 25th March 2008. Both parties adopted their written submissions and made oral submissions to explain further some of the arguments that had been canvassed in their written address. In the written address of the defendants/applicants, learned counsel raised two issues essentially and indentified one as the “sole issue” The sole issue raised is: i. Whether the action as constituted is not statute or time barred. The second issue was raised and agued in the alternative ii. Whether the 2nd defendant is not improperly joined as a party to this action. Similarly, the claimants/respondents identified only one issue for determination which is:- i. Whether section 8(1)(a) of the limitation Laws cap. 118 of Laws of Lagos State 1994 is applicable to claims for work and labour done? In arguing the sole issued raised by the defendants/applicants, learned counsel submitted that by virtue of section 8(1)(a) of the limitation Laws of Lagos State the cases of Elabanjo & anor v. Dawodu (2006) 6-7 SC 24 at 43 and P.N. Udoh Trading Company Limited v. Abere (2001) 5 SC (Pt.11) 64;(2001) 11 NWLR (Pt. 723) 113 at 129 for the definition of cause of action. He submitted that the contract of employment between the parties was one of simple contract as distinct from contract under seal. That the appropriate time to have brought and filed this complaint was within six years i.e anytime between August 1998 to July 2004 and not 23rd January 2008 when the complaint was filed which is about 9 years since the accrual of the cause of action. He referred to the Blacks Law Dictionary 8th edition for the definition of simple contact and the case of Donatus I. Onumalobi v. NNPC & ANOR (2004) I NLLR (Pt. 2) (Pt. 2) 304 at 323 paragraph A – C which was not included in the written submission. Learning counsel then urged the court to discountenance the counter-affidavit of the claimants/respondents for not being relevant to the determination of this application. He submitted that in determining this application as it relates to limitation law, the only process that the court needs to consider is the originating complaint and statement of facts alleging when the wrong was committed which gave rise to the cause of action. He then cited Elanbanjo & anor v. Dawodu, supra. On the second issue raised and argued in the alternative, counsel contended that by virtue of the combined effect of sections 35 and 65 of the companies and Allied mater Act LFN CAP 20, 2004 and the common law principle of legal personality as enunciated in the case Solomon (1887) Act 22, The 1st defendant/applicant by the fact of its incorporation is answerable for its actions, wrongs and/ or omissions. He cited the case of Ikolo v. Union Bank of Nigeria Ltd (2004) 1 SC (P.t.1) 1 at 21. Counsel further argued that it was worng and improper in law to join the 2nd defendant/applicant when no wrong was alleged against him. He referred to the case of Ajayi v. Jolayemi (2001) 5 SC (Pt. 11) 31 at 47 paragraphs 17-20 and submitted that the 2nd defendant/applicat is not one of the directors of the 1st defendant as alleged; that the motive for joining the 2nd defendant was to embarrass him. He drew the attention of the court to the fact that the claimants/respondents in their written brief had conceded that the 2nd defendant/applicant was improperly joined as a party and his name should be struck out. Finally, he submitted that in the event of the first prayer being refused, the court should strike out the name of the 2nd defendant/applicant who ought not to have been joined in the first place. Responding, learned counsel to the claimants/respondents submitted that the claims endorsed in their originating complaint of 23rd January 2008 are not caught by section 8(1)(a) of the limitation law Cap. 118 Laws of Lagos State 1994. He referred the court to the claims contained in the originating complaint and aligned himself with defendants/Applicants’ counsel submission that the court is restricted to the statement of facts and complaint filed by the claimants on 23rd January, 2008 in determining this application. He referred to the case of Aremutu v. Adekanye (2204) 2 WLRN 1 AT 17 paragraphs 5- 15 which was not included in his written submission. He further submitted that the claimants seek their salaries and entitlements and urged to look closely at paragraph 10, 11, 12 and 13 of the statement of facts. The claimants’ counsel also argued that the court has the jurisdiction to entertain this action being a claim for work done or labour by the claimants for the defendants. He relied on the case of CBN v. Adedeji (2005) 26 WRN 38 AT 60 – 63 and submitted that section 8 (1)(a) & (b) of the limitation law of Lagos State 1994 is in pari material with section 2 of the Public Officers Protection Act Cap. 379 LFN 1990, which was considered in the case. He also referred the court to the case of Nigeria Ports Authority v. Construzioni Generali Farsupra Cogefar SPA & anor (1974) ANLR 945 at 955 in which section 97 of the Port Act was considered and contended that its provision is similar to section 8(1)(a) & (b) of the limitation Law of Lagos State 1994. He urged the court to hold that claimants; case is based on specific contract and as such cannot be vitiated by section 8(1)(a) of the limitation Law> He cited the case of FGN v. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162 in support and referred to the ruling of this court on 1st April 2008 in the case of John Ovoh v. The Nigeria Westminister Dredging and Marine Ltd unreported Suit No. NIC/9/2002 at page 21-22. He argued that the application of the defendant/applicants is behind the growth terminations/applications’ counsel is not applicable as it deals with termination/dismissal and the interpretation of the NNPC Act which is not relevant to the present application. The claimants’ counsel conceded to the defendants’ written submission that there is no basis in law for the joinder of the 2nd defendant/applicant as a party to this action as no wrong is alleged against him. Furthermore, that the 1st defendant/applicant is a juristic person. Finally, counsel submitted that the rights of the claimants for their salaries and work related entitlements from the defendants cannot be caught up by the limitation Law and that the application is misconceived and should be dismissed with costs. In reply on points of law, learned counsel for the defendants/applicants contended that the argument of the claimants/respondents that section 8(1)(a) of the limitation law cap. 188 laws of Lagos State 1994 does not apply is misconceived in law. He argued that case decided in relation to Public officer protection Act cap. 379 LFN 1990 and section 97 of the Nigeria Ports Authority Act cited by the claimants/respondents are not in pari materia with section 8(1)a(a) of the limitation law under which the application was brought and both statues are not helpful for the determination of this application. He reiterated that section 8(1)(a) of the limitation law of Lagos State cap. 118 1994 related to simple contracts alone and. That the cases of CBN v. Adedeji, Nigeria Ports Authority v. Construzioni generali Farsupra Cogefar SPA, FGN v. Zebra Energy Ltd and John Ovoh v. The Nigerian Westminster Dredging and marine Ltd cited by the claimants/ respondents counsel are not applicable. On the operation of the principle star decision he submitted that a judicial decision will only be binding if it relates to facts and legislation that are the same or similar to the being considered. He referred to the case of CBN v. Adedeji, Supra, with particular reference to the pronouncement of Muhammed, JCA at page 57 lines 20-25. We have carefully considered all the submissions of counsel in this matter, both oral and written. The issues for resolution are: i. Whether labour rights in general and the claimants’ right (in particular) to outstanding salaries due to them for work and labour rendered is caught by the limitation law cap. 118 Laws of Lagos State. ii. If labour rights are caught up by the limitation law, whether the claimants’ action is in fact statute-barred under the provisions of section 8(1)(a) of the limitation law cap. 118 laws of Lagos State 1994. iii. Whether the 2nd defendant is a necessary party to the action. On the first issue regarding labour rights and the limitation law, the common law and labour laws in general impose several duties on the employer for the benefit the employee. These duties range from safety in the work place to health, to provision of work and also the duty to pay monetary remuneration in terms of salary recognized and upheld these duties of the employer to the worker (Ekpe v. Mid-west development Corporation (1967) NMLR 407). On the state of the pleadings, the claimants merely seek to claim their fair share of the wealth they have helped to generate for the 1st defendant in the nature of their outstaying salaries. The question which arises is whether the employers’ duties are caught by the limitation law in the same way it is contended in this instance that the rights of the claimants to their salaries is caught by section 8(1)(a) of the limitation laws cap 118 Laws of Lagos State. Of the answer to this question is in the negative i.e. that employers; duties are not caught by limitation law, then the rights of the clainmants to receive salries for wrok done is also not caught by the limitation law. This court, in the case of John Ovoh v. The Nigeria Westminster Dredging and Marine Ltd, supra, held as follows: …the point remains whether labour right are covered by the limitation laws… we do not think that the rights of workers are caught up by the Limitation Laws; for to think otherwise would mean that even right as to salaries and entitlements of an office would be time-barred. We have not been shown any reason why we should depart from this ruling consequently, we hold that the limitation law cannot be applicable to claims for work and labour done. Assuming, however, that labour rights are caught by the limitation, there is the second issue either in fact the present action is statute-barred. On this issue, the question can best be answered if reference is made to the limitation law and the originating processes comprising the complaint form and the statement of facts. The relevant section of the limitation Law of Lagos State Cap 118 1994 under which this application is brought is reproduced as follows: 8(1) 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; It is trite law that in determining whether a cause of action is statute-barred, it is the claimants’ originating complaint and statement of facts that is to be looked into. This has been so decided by the supreme court in the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1. The dictum of Oputa, JSC in this case is to effect that: A cause of action is thus said to be statute-barred if in respct of (its) proceedings (it) cannot be brought because the period laid down by the limitation law or act had elapsed. How does one determine the period of limitation? The answer is simple- by looking at the write of summons and the plaintiff a cause of action and by comparing that date with the date on which the write summons was filed. This can be done without taking oral evidence from witnesses. If the time on the write is beyond the period allowed by the limitation laws, then the action is statute barred. To determine whether the claimant’s action is actually statute-barred, it is necessary to refer to the claimants’ claim against the defendants/applicants and paragraphs 5 – 13 of the statement of facts. The claims of the claimant are:- a. A DECLARATION that the claims of the claimant are: salaries as computed in Exhibit “C” having worked for the defendant who has been paid her indebtedness by Nigeria Airways Ltd in liquidation. b. A DECLARATION that the plaintiffs outstanding salaries form part of the Nigeria Airways in liquidation indebtedness to the defendants. c. AN ORDER COMPELLING the defendant to pay to the claimants their outstaying salaries between 1996 and 1998 in line with Exhibit “C” The statement of facts in paragraphs 5 – 13 provide as follows: 5. That most of the the staff of the 1st defendant were not issued appointment letters, but issued identity cards signed by the MD/CEO Mrs. Victorua Adah femi, wife of the 2nd defendant. Attached and marked exhibit B, B1, B2, B3 is a copy of one of the identity cards. 6. That the 1st defendant kept all staff on hold after the expiration of the Nigeria Airway contract up to the end of July, 1998. 7. That the 1st defendant was unable to continue the business due to the money owned by the Nigeria Airways now in liquidation and consequently could not pay the claimants. 8. That all effort to get the staff outstanding salaries failed, but the 2nd consequently could not pay the claimant. 9. That in appreciation of the defendants’ predicament, the claimants agreed to wait for the payment of the outstanding bills but the Nigeria Airways was not forthcoming. 10. That the outstanding total sum of $340,488,00 (Three Hundred and Forty Thousand, Four hundred and Eight Eight U.S. dollars) is being owned the claimant by the defendant. Attached and marked Exhibit “C” is the Original copy with defendant. 11. That the 1st defendant otherwise called Jason Air is one of the listed creditors to Nigeria Airways Limited vide punch publication of 11th of May 2005 for a claim of $19,838, 793, 00 (Nineteen million, Eight Hundred and Thirty Eight Thousand, Seven Hundred and Ninety Three U.S Dollars) Attached and market exhibit “D” is the Punch Publication of 11th may 2005. 12. That the 1st defendant was on of the creditors who received from the creditors appointed 14. That before the letter from our solicitor, we wrote to the defendant about our entitlement but no response. Attached and marked Exhibit “G” is the copy. To determine when the cause of action in this suit arose, the claim and statement of facts are very clear particularly paragraphs 7, 8, 9, 11 and 12 which are fundamental and critical to the claimants action. on the state of the defendant allegedly benefited from the 15% interim Disbursement from the official Receiver of Nigeria Airways in liquidation, Babington Ashaye & Co (vide Exhibit E referred to in paragraph 12) and subsequently neglected to pay the claimants their alleged outstanding salaries. This was when the wrong was committed which gave the claimants a cause of action. Guided by the decision of the Supreme Court in Egbe V. Adefarasin, Supra, if the time on the originating complaint is beyond the period allowed by the Limitation law the action is statute-barred. The complaint Form and the statement of facts were both filed on the 23rd January 2008. The cause of action arose on September 7, 2005. Clearly the period between when the alleged wrong was committed, which gave rise to the cause of action, and the date on which the complaint was filed is a period of 2 years and 4 months. This is clearly within the period of 6 years prescribed by section 8(1)(a) of the Limitation Law Cap. 118 laws of Lagos State. We, therefore, find that this action is not statute-barred. The claimants have the right of action. It is the contention of learned counsel to the claimants that the contract of employment between the claimants and defendants is a specific contract and not a simple contract. Looking at paragraph 5 of the statement of facts, the contract of employment was not in writing. It is, therefore, a simple contract. The case of FGN V. Zebra Energy Ltd, Supra, cited by counsel in support of his contention is not applicable. The following cases cited by both counsel, Donatus Onumalobi v. NNPC & anor, CBN v. Adedeji, Nigeria Ports Authority v. Construzioni Generali Farsupra Cogefar SPA and FGN V. Zebra Energy are not relevant to the determination of this application as the facts and statutes considered therein are not similar to section 8(1)(a) of the limitation law of Lagos State and have no bearing on this application. On the third issue, regarding the joinder of the 2nd defendant to this action, the claimed in their written address have already conceded to the argument of the Learned counsel to the defendants/applicants that the 2nd defendant was improperly joined. We agree with the submission of both counsel on this issue. Consequently, we hereby order that the name of the 2nd defendant/applicant, AVM Femi John Femi, should be struck out for misjoinder. All the court processes are to be amended to read the name of the 1st defendant/applicant Shona Jason (Nigeria) Limited only. No order as to costs. Ruling is entered accordingly. Hon. Justice B.B. Kanyip Presiding Judge Hon. Justice V.N Okobi Hon. Justice F.I. Kola Olalere Judge Judge Hon. Justice O.A. Obaseki-Osaghae Hon. Justice J.T. Agbadu Fishim Judge Judge