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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP: HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: February 20, 2015 SUIT NO. NICN/LA/435/2012 BETWEEN OLUSEGUN ALABI L.K ADEDEJI MR. S. K YUSUF MR. D KARIMU - CLAIMANTS MR. S.A BALOGUN (Suing on behalf of themselves and the retrenched Staff of Obafemi Awolowo University) AND THE GOVERNING COUNCIL OBAFEMI AWOLOWO UNIVERSITY OBAFEMI AWOLOWO UNIVERSITY - DEFENDANTS REPRESENTATION Audu Augustine, for the claimant. D.C Omuna-Amadi, for the defendant. RULING The claimants filed this complaint against the defendant on 24th August, 2012 seeking the following reliefs: 1. A declaration that the claimants having had their employment terminated on ground of redundancy are entitled to the payment of three months salary in lieu of notice and one year salary as gratuity in accordance with the provision of chapter 2 regulation 4 of Obafemi Awolowo University, Regulations governing conditions of service of junior staff. 2. A declaration that the claimants having served the defendant for a period of 14 years six months and above and having only few months to qualify for pension before they disengaged are presumed to remain in the employment of the defendants until they are 15 years in service. 3. A declaration that the claimants having served for a period of 15 years are entitled to be paid pension from the 1st October, 1984. 4. A declaration that the stoppage of the claimants pension on the 14th of July, 1986 was wrongful, unlawful, null and void and of no effect whatsoever or howsoever. 5. An order of court compelling the defendants to pay the claimants three months salary in lieu of notice and one year salary as gratuity. 6. An order of court compelling the defendants to pay the claimants pensions allowance from 1st October, 1984 and until their death. 7. An order awarding a 30% interest on the judgment sum. Accompanying the Complaint is the statement of facts and other accompanying processes. The defendant entered a conditional appearance on January 23, 2013 and filed a Notice of Preliminary Objection on 10th December, 2013 praying for the following: 1. An order declaring that this court has no jurisdiction and/or should not exercise any jurisdiction to entertain this suit. 2. An order striking out and or dismissing this suit. 3. And for such further or other orders as this court may deem fit to make in the circumstances. The grounds upon which the objection is made are as follows: a. The suit was filed by the plaintiff in contravention of the Pre-action notice condition in Section 49 of the Obafemi Awolowo University (Transitional Provision) Act. b. The condition precedent to the exercise of jurisdiction to entertain this suit has not been fulfilled. c. The claimants’ purported pre-action notice did not comply with the mandatory and obligatory requirement of Section 49 of the Obafemi Awolowo University (Transitional Provision) Act. d. The suit is statute barred. e. The suit is an abuse of court process. f. The suit is otherwise wholly incompetent. g. The court in all the circumstances has no jurisdiction to entertain this suit. The Preliminary Object is supported by an 11 paragraph affidavit and a written address. In opposing the objection, the claimant filed a counter affidavit and a written address dated 3rd, February, 2014. The defendant filed a reply on points of law dated 8th April, 2014. Learned counsel to the defendant raised three issues for determination as follows: 1. Whether having regard to Section 49 of the Obafemi Awolowo University (Transitional Provision) Act the condition precedent to the exercise of jurisdiction to entertain this suit against the defendants has been fulfilled. 2. Whether the instant action is statute barred. 3. Whether the claimants’ claim is not frivolous and/or vexatious or constitutes an abuse of court process. He submitted that a condition precedent refers to that which must be done before the right of a party to bring an action may arise, citing the case of Nigercare Dev. Co. Ltd V. A.S.W.B (2008) 9 NWLR (pt. 1093) 498. He argued that in the instant case the condition precedent that must be satisfied before the plaintiff can exercise the right to institute an action is prescribed in Section 49 of the Obafemi Awolowo University (Transitional Provision) Act which provides that a pre-action notice must be served on the defendant as prescribed in the statute. Counsel submitted that non-compliance with the law is fatal and renders the claimants suit incompetent. He argued that where a special statutory provision is made for commencement of a suit, that special procedure must be followed and failure of to comply robs the court of jurisdiction to entertain the suit citing City Engineering Nig. Ltd V. Nigerian Port Authority (1999) 11 NWLR (pt.625) 76. He submitted that no notice of intention to commence the suit has been given or served on the University as required by Section 49 of the Obafemi Awolowo University (Transitional Provision) Act. He urged the court to hold that this suit is premature and incompetent. Learned Counsel further submitted that this suit is barred-barred by reason of the provision of Section 8 of Limitation Law of Osun State which 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) Actions founded on simple contract; (b) Actions founded on quasi-contract; (c) Action to enforce a recognizance; He submitted that the cause of action in this suit accrued as far back as 1984 when the defendants terminated the contract of employment of the claimants. That it is clear on the face of the complaint that the claimants commenced this action against the defendants on 24th August, 2012 a period of 28 years. He submitted that to determine whether an action is statute barred, the court will look at the writ of summons or the statement of claim alleging when the wrong was committed which gave the claimant the cause of action and compare the date on which the writ of summons was filed. He cited the case of Egbe V. Adefarasin (1987) 1 NWLR (pt. 47) 1, Lawal V. Ejidike (1997) 2 NWLR (pt. 487) 319. Counsel submitted that being an action in the realm of contract in which the claimants had 6 years to sue and having failed to do so within the period fixed by law the instant suit has become statute-barred and he urged the court to so hold. Learned Counsel submitted that the facts of this case shows that the claimants’ action constitute an abuse of court process being unfounded and unsupportable in law. He argued that the claimants have brought this suit in bad faith, for the main purpose of enforcing an alleged right on which they had slept for the past 28 years. He submitted that the law is that once an action amounts to abuse of court process the court will dismiss the suit, citing the case of Onyeabuchi V. Independent National Electoral Commission (INEC), Abuja & Ors (2002) 4 S.C (pt.2) 27. He urged the court to dismiss this suit. Learned Counsel for the claimants raised four issues for determination as follows: 1. Whether the pre-action notice dated 10th April, 2012 and served on the defendant is invalid. 2. Whether the action is statute barred. 3. Whether the present suit as constituted is an abuse of court process. 4. Whether the preliminary objection filed by the defendants without a statement of defence does not constitute a demurer. He submitted that the pre-action notice was served on the Secretary of the Council of the Defendant and argued that where there is substantial compliance with the provisions of law such step taken will not be invalid, citing Section 23 of the Interpretation Act. Arguing issue two, Learned Counsel submitted that jurisdiction is conferred on the court by the claims the court is to adjudicate on, citing the case of Egbonu V. B.R.T.C (1997) 12 NWLR (pt. 531) 29. He submitted that in a case where the claim is for wages or payment for work done, the statute of limitation will not apply citing FGN v Zebra (2003) 3 WRN 1, C.B.N V. Amao (2010) 16 NWLR (pt. 1219) 271. He submitted that being action on pension, the cause of action arises every month that the defendants fail to pay the claimants their entitlements. It was his submission that statute of limitation does not apply where there is an acknowledgement citing Thadant v National Bank (1972) 7 N.S.C.C 28, Nwadiaro V Shell Dev Co. Ltd (1990) 5 NWLR (150) 322, R.C.C (Nig) Ltd V. Burrato (1993) 8 NWLR (pt. 312) 508. He submitted that the cause of action is not statute barred and urged the court to so hold. It was his submission that the claimants did not institute multiple actions against the defendants on the same subject matter on the same issue. Counsel stated that the defendants have not filed a statement of defence and submitted that this preliminary objection by the defendants without a constitute a demurer. He cited the case of Idachaba V. Ilona (2007) 6 NWLR (pt. 1030) 277, WATANMAL (SINGAPORE) v. LIZ OLOFIN & CO (1998) 1 NWLR (PT. 533) 311. He finally urged the court to dismiss the preliminary objection filed by the defendants for being incompetent. Replying on points of law, learned counsel submitted that the case of Ntiero V. N.P.A (supra.) referred to by the claimant is not helpful. He submitted that Section 23 of the Interpretation Act referred to by the claimant does not in any way refer to the manner, mode or procedure of fulfilling a condition precedent prescribed in a statute. He added that the cases of Amadi V. NNPC (supra), CBN V. AMAO (supra) cited by the claimant are not applicable to this present application. He submitted that an acknowledgement or admission of debt must be absolute, unconditional and be made to the creditor for it to fall outside the Limitation law. On whether this suit is an abuse of court process, he submitted that contrary to the claimant’s argument the objection of the defendant does not in any way constitute a demurrer. He cited NDIC V. CBN (2002) 7 NWLR (pt. 766) 272, Arjay Ltd V. Airline Management Support Ltd (2003) 7 NWLR (pt. 820) 577. He urged the court to dismiss this suit with substantial cost. Having carefully considered the originating processes filed by the claimants, the submissions of counsel and the authorities relied upon, a court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfillment of any condition precedent to the exercise of its jurisdiction. See Madukolu v Nkemdilim [1962] 2 SCNLR 341. Section 49 (1) of the Obafemi Awolowo University (Transitional Provisions) Act provides: No suit shall be commenced against the University until at least three months after written notice of intention to commence the same shall have been served on the University by the intending plaintiff or his agent: and such notice shall clearly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims. It is therefore a condition precedent to the exercise of jurisdiction for the claimants to serve the defendant with a pre-action notice that complies with the above provision. The claimants have frontloaded the notice served on the defendants and have exhibited the affidavit of service. However, the question is whether the notice has complied with the provisions of Section 49 (1) of the Obafemi Awolowo University (Transitional Provisions) Act. The said notice is addressed to both the Registrar and Secretary to Council. It states the cause of action, particulars of claim and the reliefs sought. It does not state the name of any of the claimants or their place of abode. This action was commenced without complying with the required statutory pre-condition of stating the names of the claimants and their place of abode. This action is therefore premature. See Niterio v NPA [2008] 10 NWLR (Pt 1094) 129 at 139, Nigercare Dev Co Ltd V A.S.W.B [2008] 9 NWLR (Pt 1093) 498. On the issue of Limitation raised by the objector, a careful look at some paragraphs of the statement of facts reveals the following: 3. The Defendants determined the claimant’s employment in 1984 following the Federal Government Policy to stop meal subsidy in all the Federal Universities in the Country. 13. That some of the claimants were enjoying monthly pension until sometime on the 14th of July 1986 when the payment of monthly pension was stopped without any justification. The claimants shall at the trial rely on the Internal Memorandum dated 14/7/89. 14. The claimants aver that having all served for a period of 14 years and six months and above their period of service is to be approximated to the nearest figure which is 15 years to enable them qualify for pension since they did not deliberately retire from service but were forced to retire as being the practice in the civil service. The cause of action arose in 1984. Some of the said claimants were qualified for pension and began receiving their pensions while some others were not qualified to receive pension. I find two different sets of claimants in this action. This suit was filed on 24th August, 2012 which is 28 years after the cause of action accrued. A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the Limitation Law has elapsed. See Egbe v. Adefarasin [1985] 1 NWLR (pt. 3) p. 549, Sadiq V. Akinkunmi (2000) 2 NWLR (pt. 696) 101. The Limitation Law however recognizes the exception of continuance of injury which is not caught up by the Limitation. See the test “continuance of damage or injury” laid down in the Supreme Court decision in A-G, Rivers State v. A-G, Bayelsa State & Anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150. The defendant’s alleged action of stopping the payment of monthly pension to some of the claimants is a continuous injury for as long as the denial or failure to pay pension continues. The exception of continuous injury avails those claimants whose pensions were stopped. They have a right of action which is not statute barred. However, the other claimants who do not fall within this group have no right of action having slept on their rights for 28 years. Their action is statute barred. I find the entirety of this action as presently constituted to be premature and incompetent. I hereby decline jurisdiction to entertain this suit. It is hereby struck out. I make no order as to costs. Ruling is entered accordingly. ______________________________ Hon. Justice O.A Obaseki-Osaghae