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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP HON. JUSTICE O.A. OBASEKI-OSAGHAE DATE: March 18, 2015 SUIT NO. NICN/LA/437/2013 BETWEEN DR. ODE OKORIE - CLAIMANT/RESPONDENT AND GUARDIAN PRESS LIMITED - DEFENDANT/APPLICANT REPRESENTATION RULING MOTION ON NOTICE BROUGHT PURSUANT TO: 1. ORDER 11 RULE 1 (1) OF THE NATIONAL INDUSTRIAL COURT RULES 2007; 2. SECTION 8 (1), LIMITATION LAW, CAP.70, LAWS OF LAGOS STATE, 1973; AND 3. THE INHERENT JURISDICTION OF THIS HONOURABLE COURT 1. An order of this Honourable Court striking out this suit for want of jurisdiction to adjudicate on same, the claimant/respondent’s action being statute barred. 2. And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstance. WRITTEN ADDRESS IN SUPPORT OF THE DEFENDANT/APPLICANT’S MOTION ON NOTICE ISSUES FOR DETERMINATION: We submit that a sole issue arises before this court for determination, viz: “Whether the cause of action of the claimant/respondent is not statute barred and liable to be struck out by this Honourable Court”. SUBMISSIONS We respectfully submit as follows: i. That the relevant law governing the limitation of action in this suit, is the Limitation Law as at the time the cause of action in this suit purportedly accrued. We respectfully refer your lordship to the case of Humbe v A.G, Benue State [2000] 2 NWLR (Pt. 649) Pg. 419 at 434 paras B-C, where it was held per Hon. Justice Mangaji, J.C.A that: “there is a plethora of judicial authorities clearly expressing the legal position that the law applicable to a matter is that in force at the time the cause of action arose”. Please see also Olaniyi v Aroyeun [1991] 5 NWLR Pt. 194 Pg. 652. ii. That accordingly, the purported cause of action having accrued, by the averments of the claimant himself in the statement of facts, on, about or before the 15th of January 1985, the relevant law governing the limited of action at the time was the Limitation Law, 1966, contained in Cap.70, Law of Lagos State, 1973. iii. That Section 8 (1) Limitation Law, Cap 70, Laws of Lagos State, 1973 provides as follows: “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…” iv. That an action for, and arising out of, breach of an employment contract is an action founded on ‘simple contract’. We respectfully refer your Lordship to the case of Humbe v A.G, Benue State [2000] 3 NWLR (Pt. 649) Pg. 419. v. That accordingly, the claimant’s action in this suit being one for breach of contract was required to be brought before court within 6 years of the accrual of the cause of action, whereof there is abundant evidence by the claimant’s own averments, that the accrual date was not later than the 15th of January 1985. vi. That there is a plethora of judicial authorities, inclusive of the case F.R.I.N. v Gold [2007] 11 NWLR (Pt. 1044) Pg. 59, SC where the courts have held that in determining whether or not an action is statute barred: “The answer is simply – by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred”. vii. That this action now filed by the claimant on the 13th of August 2013, seeking remedies for purported breaches which allegedly occurred in 1985, in fact seeks remedies founded on a purported breach of a simple contract, a whole twenty-eight (28) years after the purported breaches occurred, and in direct violation of the specific provisions of Section 8(1) of the Limitation Law, 1966, contained in Cap.70, Laws of Lagos State, 1973. That in the case of Humbe v A.G, Benue State (Supra), the Court of Appeal while restating the law in an action for wrongful termination of employment such as this, has held that a party, having filed an action outside the statutory period, losses his right to seek any judicial relief in respect thereof. Please see also the cases of Mrs. Grace Ngozi Enemali v The Nigerian Security Printing & Minting Plc (unreported) Suit No. NICN/LA/390/2012 delivered on 29th January, 2014 by this Honourable Court and Egbe v Adefarasin [1987] NWLR (Pt. 47) 1. viii. That accordingly when the claimant’s action is statute barred, it ought to be struck out by court. Egbe v Adefarasin [1987] 1 NWLR (Pt. 47) 1. ix. That it is well settled that the issue of whether a suit is statute barred is a jurisdictional issue. In the case of Nasir v C.S.C., Kano State [2007] 5 NWLR (Pt. 1190) SC 253 at 270 paragraph C-D, the Supreme Court per Mukhtar JSC stated the law thus; “the statute of limitation is a matter of jurisdiction which can be raised at any state of litigation, and I will add here, even in the Supreme Court”. Emphasizing further in page 269 paragraphs A & B that “An elementary principle of the law and which has been dealt with in a plethora of authorities is that an object to the jurisdiction of a court can be raised at the beginning or the end of a proceedings, even just before judgment state”. Please see also the cases of Egbe v Adefarasin [1987] 1 NWLR (Pt. 47) 1 (a case where the issue of Limitation Law was raised and the court held that counsel was right in filing a motion to strike out the action in limine); UBRDBDA v ALKA [1998] 2 NWLR (Pt. 537) 328. Also the case of Mrs. Grace Ngozi Enemali v The Nigerian Security Printing & Minting Plc (unreported) Suit No. NICN/LA/390/2012 delivered on 29th January, 2014 by this Honourable Court. x. That the Supreme Court has even more importantly further held as follows: a. That the defendant/applicant is not estopped from relying on the defence of Limitation Law even when it did not plead same in its statement of defence, as same is a point of law which touches on the jurisdiction of this Honourable Court. Please see the case of Elebanjo v Dawodu [2006] 15 NWLR (Pt. 1001), Pg. 76, where the Supreme Court decided that a defendant need not even file a statement of defence before a preliminary objection on the competence of a suit which touches on the jurisdiction of a court can be raised. The court was of the view as follows: “the issue of jurisdiction (on the basis of statute of Limitation) need not be pleaded once it could be obvious from the materials before the court and could be raised by a party and/or even suomotu by the court”. Please see also the case of Amata v Omofuma [1997] 2 NWLR (Pt. 485) Pg. 93 particularly p. 111, paras C-F. b. In the case of Nasir v CSC Kano State (supra, Pg. 269 para H and 270, paras A-D) where the claimant had opposed the defendant’s application that the suit be struck out for being statute barred, on account that the defendant had not specially pleaded the defence of statute bar in his statement of defence, the Supreme Court stated the law succinctly, and we quote extensively, thus: “the purpose of pleadings and rising any point there … is to avoid springing surprises on parties and this is an elementary law of practice and procedure which does not require … interpretation … to understand. If the function of pleadings is to put the other party on notice of what to expect at the trial, then motion on notice (as was in the instant case) to dismiss a case on point of law precludes elements of surprises. The appellant cannot feign ignorance of the point of law raised before the motion was moved. The appellant was very much aware of what the respondents were seeking from the court and had the opportunity to meet it head long. The appellant cannot say he was prejudiced for I believe even if raised in defence he could not have proffered more argument than he did in the course of the proceedings in respect of the motion. As I have stated earlier in the judgment … the statute of limitation is a matter of jurisdiction which can be raised at any stage of litigation and I would add here, even in the Supreme Court”. CONCLUSION On the strength of the foregoing we respectfully urge this honourable court to dismiss the claimant’s action for want of a competent cause of action and lack of jurisdiction of the court to entertain same, as was held by the Hon. Justice Aniagolu, JSC in the case of Egbe v Adefarasin (Supra at Pg. 13 paras G-H). WRITTEN ADDRESS IN SUPPORT OF CLAIMANT’S/RESPONDENT’S COUNTER-AFFIDAVIT ISSUES FOR DETERMINATION We agree with the issue formulated by the defendant/applicant though we will prefer to reframe it slightly differently as follows: “Whether considering the circumstances of this case the cause of action is statute barred and liable to be struck out by this honourable court”. ARGUMENTS Whether considering the circumstances of this case the cause of action is statute barred and liable to be struck out by this honourable court. We agree that the relevant law governing the limitation of action in this suit is the Limitation Law, Cap 70, Laws of Lagos State, 1973. Section 8 (1) of the law provides as follows: “The following actions shall not be brought after the expiration of six (6) years from the date on which the cause of action accrued – (a) Action founded on simple contract. It is trite that time begins to run when the cause of action arises. It has been held in plethora of cases that in deciding whether a cause of action is caught by law on limitation of actions, regard must be had to when the cause of action accrued – causes of action accrue when the cause of action becomes complete so that the aggrieved party can begin and maintain his action. Time begins to run when a demand is made. There must however be proof of such demand. We respectfully refer to the following cases:- Wema Bank Ltd v Okutoro [1980] 1-3 CCHCJ 219; Okechukwu Adimora v Nnayelugo Ajufor [1988] 6 SCNJ 18 at 30; Olaogun Enterprises Ltd v S.J & M [1992] 4 NWLR (Pt. 235) 361 at 367. We refer the honourable court to the Letter of Termination (Exhibit A and defendant’s Solicitor’s Letter of Demand Exhibit B) and submit that the cause of action in this matter arose on 10th February 1986 being the date of the demand for settlement of the claimant’s entitlements made by his solicitors. Claimant filed his action as per Suit No. LD/1200/86 in February 1986 which is within the six (6) years duration stipulated by the Limitation Law of Lagos State aforesaid. If we accept the date of January 15 1985 being the date of the Letter of Termination canvassed by the defendant/applicant as the date the action arose we still come to the inevitable conclusion that the claimant filed his suit at the Lagos High Court within time. We refer to the paragraphs 6 and 7 of the counter-affidavit, Exhibits D and E and respectfully submit that:- (i) This case before this honourable court is a continuation of the Lagos State Suit No. LD/1200/86 which was filed within time – few months after the cause of action arose. (ii) Limitation Law referred to is intended to bar from commencing belated litigation, parties who have slept on their rights. In this case, the claimant filed his action at the Lagos High Court within time and he cannot be held liable for the protracted delay, of the matter at the High Court of Lagos State where the matter went through five (5) Judges over a period of Twenty-seven (27) years and the defendant used all conceivable tricks and schemes to frustrate the hearing of the case. Further and in addition to the above submissions, we respectfully refer the honourable court to Section 38 (1) of the Limitation Law of Lagos State, Cap 70 which provides as follows where: (a) Any right of action has accrued to recover any debt and (b) The person liable therefore has acknowledged the debt, the right of action shall be deemed to have accrued on and not before the date of acknowledgment. Acknowledgment made by the debtor’s solicitor in pleadings or otherwise is binding on him. We respectfully refer to the case of: Mosheshe General Merchant Ltd v Nigeria Steel Products [1987] 2 NWLR (Pt. 55) 110; Ikabaka v Ojosipe [1988] 4 NWLR (Pt. 86) 119. We submit that the defendants/applicants solicitors in their statement of defence filed in this honourable court (Exhibit E) in paragraph 4 (iv) admitted to the fact of termination of the claimant’s employment on the 15th January 1985 and also in paragraph 4 (vii) admitted to owing the claimant parts of the payment in foreign currency. Their excuse that failure to settle the debt was due to foreign currency prohibition is negated by the fact that they could have paid the claimant in the Nigerian currency. This acknowledgment re-validates the cause of action, if the honourable court finds that it had been statute barred before that date and we respectfully urge the court no to so find. CONCLUSION The claimant have demonstrated before your Lordship that the defendants/applicants motion on notice dated 27th May 2014 is misconceived and should be struck out in that:- (i) The claimant acted timeously and filed his action as per Suit No. LD/1200/86 at the High Court of Lagos State within time and the case before this honourable court is a continuation of that suit. (ii) The defendant’s/applicant’s solicitors in their pleadings – statement of defence filed at this honourable court admitted the fact of termination of claimant’s employment and also acknowledge the debt – (at least Forty-two Thousand Dollars ($42,000) owed to the claimant by the defendant/applicant. We finally submit, my Lord, that substantial injustice would be done to the claimant in this case by a strict adherence to the Section 8 (1) Limitation Laws of Lagos State, and the defendant’s/applicant’s motion on notice should be struck out as it is mischievous and lacks merit.