Download PDF
Ige Asemudara, and with him are Mrs. Omone Tiku and Tochukwu Chikwendu, for the claimant. E. O. Pippa, for the defendant. RULING The claimant took up a complaint dated and filed on 3rd June 2013 against the defendant praying for – a) A declaration that the decision of the defendant dismissing the claimant from its employment and the letter of dismissal dated 24/6/2004 was made in breach of natural justice or constitutional right of fair hearing and that the said decision and letter are null and void. b) A declaration that the dismissal was in breach of the terms and conditions of employment between the parties and same was therefore invalid and void. c) An order directing the defendant to compute and pay the retirement benefits of the claimant from October 2002 till date. d) An order for the payment of all claimant’s outstanding salaries and other benefits forthwith from June 2004 till date with interest at 21% per annum from date of accrual to judgment and 6% thereafter until full liquidation. e) Damages in the sum of N4,000,000.00 for work-related libel meted out by the defendant against the claimant by publishing and circulating the news bulletin mentioned above. f) The sum of N639,431.00 and interest on the sum at the rate of 15% from 30/9/2002 until judgment is delivered and 20.5% till repayment. g) Cost of the action assessed at the cost of N1,000,000.00. h) General damages in the sum of N10,000,000.00. Accompanying the complaint are the statement of fact, claimant’s written statement on oath, list of claimant’s witnesses, list of documents and copies of the documents to be relied upon at the trial. The defendants entered appearance by filing its memorandum of conditional appearance together with a notice of preliminary objection. In support of the preliminary objection are an affidavit and a written address. The claimant reacted by filing a counter-affidavit and a written address. The defendant did not file any reply on points of law. The defendant’s preliminary objection is based on the ground that by virtue of section 8(1)(e) and (6) of the Limitation Law of Lagos State Cap. L67 of Laws of Lagos State of Nigeria 2003, this Court does not have jurisdiction over this suit as same is statute-barred. The claimant had instituted this action at the High Court of Lagos State in Suit No. LD/305/2010 against the defendant in February 2010 for wrongful dismissal, which dismissal was in June 2004 i.e. barely 4 months before the matter would have been caught up by the limitation period of six years. The suit was struck out by the Lagos High Court on 21st June 2012 for want of jurisdiction. The claimant then filed the instant action. The issue for determination, according to the defendant, therefore, is whether or not in the circumstance of this case the claimant’s action is maintainable before this Court by virtue of section 8(1)(e) and (6) of the Limitation Law of Lagos State 2003. Section 18(1)(e) and (6) of the Lagos State Limitation Law provides as follows – (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) ……….. (b) ……….. (c) ……….. (d) ……….. (e) Actions to recover any sum recoverable by virtue of any enactment…. (2) ……… (3) ……… (4) ……… (5) …….... (6) No arrears of interest in respect of any debt shall be recovered after the expiration of six years from the date on which interest became due. The defendant cited Texaco Inc. v. SPDC Nigeria Ltd [2005] 5 NWLR (Pt. 759) 209 at 241 and Raleigh Industries (Nigeria) Ltd v. Nwaiwu [1994] 4 NWLR (Pt. 341) 370 and argued that in determining whether a cause of action is statute-barred, the Court in looking at the statement of claim will know when the cause of action arose and the writ will show when the suit was filed in Court and this can be done without taking oral evidence as no further proof is needed. As to what is a cause of action, the defendant referred the Court to Rinco Construction Company v. Veepee Industries Ltd & anor [2005] 9 NWLR (Pt. 929) 825, Nosiru Bello & ors v. AG, Oyo State of Nigeria [1986] 5 NWLR (Pt. 45) 828 and Ibrahim v. Osim [1988] 3 NWLR (Pt. 82) 257 at 267. As to when a cause of action arose, the defendant referred to Onadeko v. Union Bank of Nigeria Plc [2005] 4 NWLR (Pt. 916) 440 at 460. To the defendant, the claimant stated in his statement of fact that he was “purportedly dismissed” by the defendant on 24th June 2004; so the cause of action arose on 24th June 2004. As to when an action becomes statute-barred, the defendant referred the Court to Enugu state Civil Service Commission & ors v. Geofry [2006] 18 NWLR (Pt. 1011) 293. That in the instant case, the claimant’s writ was filed on 3rd June 2013, almost 9 years after the cause of action arose, which is clearly in breach of the provisions of the statute of limitation and such an action is not maintainable before this Court. The defendant also referred to Adekoya v. FHA [2008] 11 NWLR (Pt. 1099) 539 at 557. That the question of limitation of actions is not a matter of practice and procedure but an issue of law (Onadeko v. Union Bank of Nigeria Plc, supra, and Eboigbe v. NNPC [1994] 5 NWLR (Pt. 346) 649). The defendant then submitted that the claimant having waited for almost 9 years after the action accrued, he can no longer competently institute an action as the cause of action has become statute-barred, urging the Court to grant the application of the defendant and dismiss the claimant’s action accordingly. In reaction, the counter-affidavit of the claimant averred to how he had first filed this action at the Lagos State High and upon the passage of the Third Alteration to the 1999 Constitution, the present defendant filed a preliminary objection to the matter; and even when the judge at the Lagos State Court was disposed to transferring the matter to this Court, the defendant again objected to that. In the end, the Lagos High Court had no option but to strike out the case for want of jurisdiction in a ruling it delivered on 21st June 2012. That it was even lack of funds that stalled the immediate filing of the instant case before this Court. The claimant then adopted the issue framed by the defendant for the determination of this Court together with a second issue i.e. “whether the defendant’s preliminary objection is competent”. Regarding the issue framed by the defendant, the claimant submitted that section 8(1)(e) and (6) of the Lagos State Limitation Law 2003 does not apply in the circumstances of this case. That section 8(1)(e) refers to amounts recoverable as statutory fees, charges, penalties, tax and such like sums by regulatory bodies claiming under their enabling statutes. That the proviso to section 8(1)(e) makes this point clear by excluding sums recoverable as penalty, forfeiture, sums payable to a company by members under its articles of association, etc. That the crux of the claimant’s suit is for declaratory and mandatory reliefs for unlawful dismissal, breach of natural justice and fair hearing, and non-compliance with conditions of employment. That it is not founded on simple debt or simple contract. To the claimant, since he is seeking redress for breach of his right to fair hearing under section 36 of the 1999 Constitution, as amended, section 8(1)(e) does not apply as he is not claiming any specific amount due under the Constitution. In any case, that the right to redress which accrues under section 36 is separate from the right to recover amounts due under enactment as contemplated by section 8(1)(e). The claimant went on that actions founded on fundamental rights are not affected by any statute of limitation, referring to Orders 2(2) and 3(1) of the Fundamental Rights Enforcement procedure Rules 2009. Also that section 8(1)(e) is not applicable in the instant case as the section relates to interest due on commercial debt which limitation period starts to run on the date on which the interest became due. That this envisaged interest is different from a pre-judgment or post-judgment interest as is being sought by him in the instant case. That this Court has the power to award judgment interest under Order 21 Rule 4 of the National Industrial Court (NIC) Rules 2007. The claimant continued that the whole essence of statutes of limitation and the mischief they seek to remedy is that situation where the claimant slept over his rights and suddenly wakes up after several years to haunt the defendant when the defendant may have lost all evidence or sources of evidence to defend the action, citing Lafia Local Government v. The Executive Government of Nasarawa State [2013] All FWLR (Pt. 668) 957. That this is not the case in the instant case where the claimant had filed the initial action well within the alleged 6 years. In any event, that limitation action ceases to run during the period of litigation, citing Andrew McGee’s Limitation Period 8th Edition, Sweet & Maxwell at page 21. The claimant referred the Court to section 24 of the NIC Act 2006, which to him prohibits the striking out of cases on ground of improper venue but provides for the transfer of such cases from the High Court to this Court and vice versa. To him, the High Court and this Court are deemed to be of concurrent ranking, such that a matter pending before any of these Courts and adjudged to have been wrongly commenced in one or the other Court can only be transferred to the appropriate Court but not struck out. That such a matter is continuous and is treated as one and the same litigation even to the point of appeal. That Order 28(3) of the NIC Rules makes it clear that any matter in the High Court which ought to have been filed at the NIC shall be treated as if it had been originally filed at the NIC. To the claimant, the essence of all of this is that assuming limitation period was applicable in this case, time ceased to run from the time when this suit was instituted at the High Court until the conclusion of litigation. In other words, that the institution of this suit at the NIC relates back to 2010 when the claimant commenced legal action at the High Court. The claimant went on that as the Court would see from his counter-affidavit, the defendant by its whims and caprices succeeded in moving the High Court to strike out the case instead of transferring same to this Court all in a bid to create a situation of avoiding continuity of litigation as envisaged by section 24 of the NIC Act. That the Court should note that at the time of filing the suit at the High Court, the Third Alteration Act was nonexistent and so the High Court had full jurisdiction to entertain the suit. Unfortunately, that the claimant became a victim of technical justice as opposed to substantial justice. To the claimant, the Courts have moved away from the trend of technical justice to substantial justice. That Courts are now enjoined to consider substance rather than form, citing Falobi v. Falobi [1976] 9 10 SC 1 and Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 503. That it is for this reason that the NIC Act and Rules prohibit the striking out of a case based on being allegedly commenced in the wrong judicial division and that the Court should note that the High Court was not the wrong division at the time of filing Suit No. LD/305/2010. That the decision of the State High Court was in error but unfortunately the NIC does not provide for appeal against a decision of the State High Court on the issue of transfer. In any case, that Courts must guard their jurisdiction jealously, citing Ajayi v. Military administrator, Ondo State [1997] 5 NWLR (Pt. 504) 237. That in the circumstances of the instant case, this suit is not statute-barred and the claimant is entitled to maintain this action before this Court, urging the Court to dismiss the defendant’s preliminary objection. On whether the preliminary objection is even competent, the claimant contended that objection based on statute of limitation does not amount to a challenge to the jurisdiction of the Court, citing Madukolu & ors v. Nkemdilim [1962] 1 All NLR (Pt. 4) 587 at 589 – 590. That the NIC Rules do not provide for filing of preliminary objection in lieu of statement of defence or demurrer proceedings. That a defendant wishing to rely on points of law to raise a preliminary issue is required to set out such points of law in the statement of defence before the preliminary issue is regarded as properly raised, citing Mobil Oil (Nig) Plc v. IAL 36 Inc. [2000] 6 NWLR (Pt. 659) 146 at 175 – 176. That the law is that statute of limitation must be pleaded and proved, referring to Savannah Bank v. Pan Atlantic [1987] 1 NWLR (Pt. 49) 212 at 259; and this can only be done by statement of defence. The claimant then submitted that the preliminary objection is incompetent and so should be struck out. Secondly, that the preliminary objection is incompetent for not disclosing any rule of court or law under which it was brought as required by Order 11 Rule 1 of the NIC Rules 2007, referring to Ekpan v. Uyo [1986] 3 NWLR (Pt. 26) 63 at 73. Also that the preliminary is incompetent on the ground that the defendant is not properly before the Court as its memorandum of appearance was not filed within 14 days as prescribed by Order 9 rule 1 of the NIC Rules 2007, citing Inakoju v. Adeleke [2007] 4 NWLR (Pt. 1025) 474 (note that the paging here is different from that when the case was first cited earlier). The claimant then urged the Court to hold that the preliminary objection is frivolous, incompetent and lacking in merit. The defendant did not file any reply on points of law. I heard learned counsel in the matter and considered all the processes and submissions advanced. The issue this Court must resolve is whether the case at hand is statute-barred. While the defendant thinks it is, the claimant thinks otherwise – in fact, the claimant additionally thinks the preliminary objection itself is incompetent in the first place. In determining whether an action is statute-barred, the authorities are pretty clear on how the Courts must go about it. By Popoola Elabanjo v. Chief (Mrs.) Ganiat Dawodu [2006] 6 – 7 SC 24, the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the limitation law, the action is statute-barred. And by Okenwa v. Military Governor of Imo State [1997] 6 NWLR (Pt. 507) 154 at 167, a cause of action accrues on the date on which the incident giving rise to the cause of action arose. A statute of limitation begins to run from the moment the cause of action arose. Thus, for the purpose of instituting an action in Court, time begins to run from the date the cause of action accrues. The case of Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167 went on to state that a cause of action arises the moment a wrong is done to the plaintiff by the defendant; and the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a court of law by way of enforcement. All of this has been recognised and applied by this Court in (amongst others) the recent cases of Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors unreported Suit No. NICN/ABJ/120/2011 the ruling of which was delivered on February 13, 2013 and Hon. Runyi Kanu (JP) & ors v. The Attorney General & Commissioner for Justice Cross River State & ors unreported Suit No. NICN/CA/39/2012 the ruling of which was delivered on March 13, 2013. The claimant filed this action on 3rd June 2013; and his action relates to his dismissal on 24th June 2004 (reliefs a and b), a claim for retirement benefits from 2002 to date (relief c), a claim for outstanding salaries and other benefits forthwith from June 2004 till date (relief d), damages for work-related libel (relief e), etc. Taking the base date of June 2004, and the fact that this action was filed in this Court on 3rd June 2013, it means that this case was filed some nine years after the cause of action arose; and I so find and hold. Section 8 of the Lagos State Limitation Law provides a six year limitation period. This means that the claimant’s action is way out of the six-year limitation period allowed for actions to be filed. See Dr. Charles Oladeinde Williams v. Madam Olaitan Williams [2008] 4 – 5 SC (Pt. II) 253 and Alhaji Bello Nasir v. CSC, Kano State & ors [2010] 6 NWLR (Pt. 1190) 253. The claimant’s argument is that his case is not even caught up by the Lagos State Limitation law. The case of LUTH & MB v. Adewole [1998] 5 NWLR (Pt. 550) 406 held where the claim is that payment of salaries has been wrongfully withheld, the cause of action accrues from the date the salaries are due for payment; and the liability of the employer does not generally depend on demand for payment. And in Mr. Dosunmu Oloto v. Power Holding Company of Nigeria unreported Suit No. NIC/LA/214/2011 the ruling of which was delivered on February 13, 2014, this Court rejected the argument that a claim for pension, gratuities and severance packages cannot be statute-barred. This means that the claimant’s argument in terms of his claims for salaries and outstanding retirement benefits not being caught up by the limitation law cannot stand. The claimant also argued that his action is founded on fundamental rights, invariably referring to relief a). To the claimant, actions founded on fundamental rights are not affected by any statute of limitation, referring to Orders 2(2) and 3(1) of the Fundamental Rights Enforcement Procedure Rules 2009. This argument loses sight of the fact that this Court is not contemplated under the Fundamental Rights Enforcement Procedure Rules 2009 cited as authority by the claimant. See Comrade (Evang.) Olowo Preye Grace v. PENGASSAN & 3 ors unreported Suit No. NIC/EN/10/2011 delivered on July 5, 2011. When reacting to the submissions of the defendant, the claimant presented an interesting, what I dare call an ingenious, argument in terms of the continuity of suit argument. The summary of the claimant’s argument here is that time ceased to run from the time when this suit was instituted at the High Court until the conclusion of litigation. In other words, that the institution of this suit at this Court relates back to 2010 when the claimant commenced legal action at the High Court. I must first note, even if as an aside, that the Courts have generally frowned on the relation back theory. In the context of joinder of parties or cause of action, the Courts have preferred “The No Useful Theory” to “The Relation Back Theory” and in the process held that “the court has never treated it as just to deprive a defendant of a legal defence”. See Alhaji M. Balogun v. Panalpina World Transport (Nig.) Ltd & anor [1999] 1 NWLR (Pt. 585) 66, Ashimiyu Oduola & ors v. Chief A. B. Ogunjobi [1986] 2 NWLR (Pt. 23) 508 and this Court’s decision in Hon. Peter Ekun & ors v. Akoko-Edo Local Government, Edo State & anor unreported Suit No. NIC/LA/34/2011 the ruling of which was delivered on July 9, 2013. The call, therefore, by the claimant that the instant action should be related back to the action he filed at the State High Court in 2010 in other for him to escape the limitation law, as ingenious as it is and sound, cannot stand in the circumstances of this case. The Courts have never treated as continuous an action filed in one Court, struck out in that Court and re-filed in another Court as one that is continuing. The emotional plea of the claimant that this Court should treat this case as continuing that which he filed at the State High Court but was struck out for want of jurisdiction is against the weight of the authorities. The reference to section 24 of the NIC Act 2006 and Order 28(3) of the NIC Rules 2007 by the claimant as justification for the continuing of suit argument is completely out of context and does not aid the claimant’s case at all. These authorities contemplate a valid transfer of a case from the High Court to this Court in the first place, not cases struck out by the High Court and re-filed in this Court. In any event, a similar argument to that presented by the claimant here was presented in Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors unreported Suit No. NICN/ABJ/120/2011 the ruling of which was delivered on February 13, 2013. This Court in that respect held as follows – The claimant pressed his case further when he cited Jerry Amadi’s book, Limitation of Action, Statutory and Equitable Principles Vol. 1 at page 330 where he stated that “[o]ne point which does seem to be unresolved by decisions of Court is the possibility of an action to be filed after the expiring of time, when a prior similar action, filed within the statutory time failed. Put another way, can the claimant file another action after the period of limitation had set in on justification that a previous action had been filed within time, except that prior action failed or was not determined on the merit”. Relying on this viewpoint by Jerry Amadi, the claimant then submitted that the Public Officers Protection Act is a law meant to protect public officers against action filed by persons outside 3 months allowed by the Act and not those who filed within 3 months period allowed by the Act and had their cases terminated without deciding on the merit. This viewpoint does not seem to take account of the case of UTA French Airlines v. Williams [2000] 14 NWLR 271. In that case, the plaintiff had first filed the action, within the limitation time, 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. Indeed, by Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation [2008] 5 – 6 SC (Pt. II) 189, even an admission during proceedings cannot revive an action commenced outside of the limitation period. An appeal to emotions – this is really what the submissions of the claimant relying on Jerry Amadi amounted to – cannot be sustained in the light of the authorities. The instant case before this Court is a fresh case from that of the Federal High Court; and I so find and hold. …………………………………………………… …Unpleasant as this may be and sound especially from the standpoint of the claimant who went to the right Court at the time of suing at the Federal High Court only to be legislated out by the Third Alteration to the 1999 Constitution (and here I actually agree with the defendants that the claimant should have appealed against the ruling of the Federal High Court when his application for transfer of the case to this Court was rejected), I hold that the preliminary objection of the defendants has merit and it succeeds. This Court, therefore, has no jurisdiction to entertain the case of the claimant, which is hereby struck out. In the instant case, therefore, unpleasant as it may be to the claimant, his best option remains appealing (that is if he is still within time to appeal) against the refusal of the State High Court to transfer the case before it to this Court. Hon. Justice Okoro, JCA (as he then was), anticipated this scenario and the inequity it may present when in Echelunkwo John & 90 ors v. Igbo-Ekiti LGA [2013] 7 NWLR (Pt. 1352) 1 especially at 14 – 17 he cautioned High Courts against holding that they were not bound by section 24 of the NIC Act 2006, which enjoins them to transfer suits that they no longer have jurisdiction over. His Lordship was quite emphatic that failure to transfer such cases may mean that the claimant may be caught up by the limitation laws. This is exactly what has happened in the instant case. The failure of the State High Court to transfer the suit to this Court has resulted in the claimant being caught up by the limitation law. The remedy of the claimant lies at the Court of Appeal, not in this Court. The claimant’s appeal to emotions cannot alter this. On the competence of the preliminary objection, the claimant had argued that it is incompetent for not disclosing any rule of court or law under which it was brought. Here the claimant seems to forget that a preliminary objection as to jurisdiction (I do not agree with the claimant that issues of limitation of action are not issues of jurisdiction) is first and foremost an issue of law, which does not even require a formal motion. It can be raised even orally. See Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd [1992] 5 NWLR (Pt. 244) 675 at 693. This is because the law is trite that an objection that a Court has no jurisdiction to entertain a matter or action is treated not as an ordinary point of law. In any event, the issue of jurisdiction cannot be defeated by the provisions of rules of court. See S. O. Akegbejo & 3 ors v. Dr D. O Ataga (Director NIFOR) & 3 ors [1998] 1 NWLR (Pt. 534) 459 CA. The defendant had further and emphatically argued that objection based on statute of limitation does not amount to a challenge to the jurisdiction of the Court, citing Madukolu & ors v. Nkemdilim; that the NIC Rules do not provide for filing of preliminary objection in lieu of statement of defence or demurrer proceedings; that a defendant wishing to rely on points of law to raise a preliminary issue is required to set out such points of law in the statement of defence before the preliminary issue is regarded as properly raised, citing Mobil Oil (Nig) Plc v. IAL 36 Inc; and that the law is that statute of limitation must be pleaded and proved, referring to Savannah Bank v. Pan Atlantic [1987] 1 NWLR (Pt. 49) 212 at 259; and this can only be done by statement of defence. In the face of more recent authorities, these arguments of the claimant cannot be correct. In Mr. Popoola Elabanjo & anor v. Chief (Mrs.) Ganiat Dawodu Suit No. SC386/2001 the judgment of which was delivered on Friday, the 23rd day of June 2006, the Supreme Court held as follows – To say, as did the trial Court and canvassed by the Appellants in their arguments before this Court, that objection to jurisdiction should only be taken after the filing of a Statement of Defence, is indeed a misconception. This entirely depends, on what materials were available. Objection to jurisdiction could be taken on the basis of the Statement of Claim as in Izenkwe v. Nnadozie [1953] 14 WACA 361 at 363; Adeyemi v. Opeyori [1976] 9 – 10 SC 31 and Kasikwu Farms Ltd v. Attorney-General of Bendel State [1986] 1 NWLR (Pt. 19) 695. It could be taken on the evidence received as was the case in Barclays Bank of Nigeria Ltd v. Central Bank of Nigeria [1976] 1 All NLR 409; or by a motion on notice supported by affidavit giving the facts upon which reliance is placed as in National Bank (Nigeria) Ltd v. Shoyeye [1977] 5 SC 181 at 194. In fact, it could be taken even on the face of the writ of summons before filing Statement of Claim. See Attorney-General Kwara State v. Olawale [1993] 1 NWLR (Pt. 272) 645 at 674 – 675 and the recent decision in Arjay Ltd. v. Airline Management Support Ltd [2003] 7 NWLR (Pt. 820) 577 at 601. The Supreme Court went on to hold that the case of Savannah Bank v. Pan Atlantic relied upon by the Appellants was decided on its own peculiar facts where the defence under limitation statutes generally was considered. What all of this means is that the defendant was not in error when it filed its preliminary objection even without filing the statement of defence or other defence processes. The argument of the claimant in that regard consequently fails and is hereby rejected. On the whole, and for the reasons given, the preliminary objection of the defendant has merit and accordingly succeeds. The case of the claimant is hereby struck out; it is statute-barred. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip