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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: February 23, 2015 SUIT NO. NICN/LA/661/2012 BETWEEN MR. CHIEDOZIE OBIDIKE OKUBUIRO CLAIMANT/RESPONDENT AND 1. ZENITH BANK OF NIGERIA PLC 2. GODWIN EMEFIELE DEFENDANT/APPLICANT REPRESENTATION Tolu Agbona for the claimant. F.O Ogungbemi for the defendant. RULING The Claimant commenced this action by a General Form of Complaint dated 21st December, 2012 and filed on the same date seeking the following relief: 1. A declaration that the contractual relationship between the claimant and the defendants subsisted until January 6, 2009 when the claimant voluntarily resigned from the 1st defendant. 2. An order of this court directing the defendants to pay to the claimant the sum of N121,438.068.00 (One Hundred and Twenty One Million, Four Hundred and Thirty Eight Thousand, Sixty Eight Naira only) as special damages representing the arrears of salaries and other entitlements due to the claimant from the defendants from August, 2005 to January, 2009. PARTICULARS OF SPECIAL DAMAGES A i. Salaries from August, 2005 to December, 2005 at N400,000.00 per month =N2,000,000.00 ii. Salaries from January, 2006 to December, 2006 at N437,500.00 per month =N5, 250, 000.00 iii. Salaries from January, 2007 to December, 2007 at N437,500.00 per month =N5, 250, 000.00 iv. Salaries from January, 2008 to December, 2008 at N437,500.00 per month =N5, 250, 000.00 v. Salaries for January, 2009 at N437,500.00 per month = N437,500.00 B i. 473, 500 shares at N1 per share in 2006 = N473, 500 ii. 546, 875 shares at N1 per share in 2007 = N546, 875.00 iii. 546, 875 shares at N1.70 per share in 2008 = N929, 688.00.00 iv. 683593 shares at N0.45 per share in 2010 = N307, 620.00 C i. Repacement of knocked engine of Honda Accord (official car) =N603,000.00 ii. Ikoyi Club Subscription from 2006 to 2009 =N128, 966.00 iii. Ikoyi Club subscription from July 2007 to December, 2007 =N34, 506.00 iv. Apapa Club subscription from 2006 to 2009 =N46,000.00 v. Transformer bill wrongly debited to the claimant’s account =N179,500.00 N121,438,068.00 3. An order of this court directing the defendants to pay the claimant in monetary terms the equivalent of the market value of 683, 593 (Six Hundred and Eighty Three Thousand, five hundred and ninety three ) units of shares being the claimant’s stock option yet to be liquidated by the defendants. 4. An order directing the defendants to pay the claimant the sum of N500,000.00 as general damages for untold hardship, depression and psychological trauma which the defendant have subjected the plaintiff to since August, 2005 till date. Accompanying the complaint is the statement of facts and other accompanying processes. The defendant entered appearance on the 25th January, 2013. It filed its statement of defence and counter claim together with the other accompanying processes and a Notice of Preliminary Objection on 26th April, 2013 praying for the following: 1. An order of court declining jurisdiction in this suit. 2. An order of this court dismissing this suit for disclosing no reasonable cause of action 3. And order of court striking out the name of the 2nd defendant in this suit. 4. And for such further orders and this court may deem fit to make in the circumstance. The grounds for the application are as follows: a. The claimant’s action lacks reasonable cause of action; b. The claimant’s action is statute barred; and c. The claimant has no cause of action against the 2nd defendant. The Preliminary Objection is supported by an affidavit and a written address. In reaction, the claimant filed a counter affidavit and a written address on 11th June, 2013. Learned counsel to the defendant raised two issues for determination as follows: 1. Whether the claimant’s action discloses reasonable cause of action against the defendants. 2. Whether the claimant’s action is not statute-barred. He submitted that a cause of is a combination of facts which when proved would entitle a claimant to a remedy against the defendant. He submitted that in order to decide whether the claimant’s action discloses a reasonable cause of action it is the statement of facts that must be looked at to see if they give rise to an enforceable claim which the court can be called upon to determine. He cited NICON Insurance Corporation V. Olowofoyeku (2006) 5 NWLR (pt. 973) 244, Rockshell Int’l Ltd V. B.Q.S Ltd (2009) 12 NWLR (pt.1156) 640. He argued that there is nothing in the statement of facts to show any contractual relationship between the claimant and the 2nd defendant or any legal right enforceable against the 2nd defendant. He further argued that the claimant failed to state or show that his alleged suspension was wrongful and as such failed to show cause of action. He urged the court to hold that the claimant’s claim does not show a cause of action against the 2nd defendant. He submitted that the claimants action is statute barred relying Section 8 of the Limitation Law, Laws of Lagos State of Nigeria, 2003 and submitted that the time limitation within which the claimant can claim any right thereon is 6 years. He urged the court to hold that the cause of action in this case arose in 2005 when the claimant alleged he was suspended. He submitted that a simple computation of the time the cause of action in this suit arose on 13/07/2005 and the time the suit was filed on 19/12/2012 shows that the claimant’s action is statute barred as it was filed after six years from accrual of cause of action. He submitted that by Section 8 of the Limitation Law, Laws of Lagos State of Nigeria the claimant’s action is statute barred and this court has no jurisdiction to entertain this suit citing N.N.P.C V. Abubakar Abdulrahman (2006) 12 NWLR (pt. 993) 202. He urged the court to dismiss this suit. Learned counsel to the claimant raised two issues for determination as follows: 1. Whether the claimant’s suit as made out in his complaint and statement of facts discloses a cause of action against the 1st defendant. 2. Whether the cause of action in this suit arose in 2005 when the claimant was orally suspended from the defendant or in 2009 when the claimant voluntarily resigned his appointment with the 1st defendant. He conceded to the defendant’s submission that there is no cause of action disclosed against the 2nd defendant and he urged the court to strike out the name of the 2nd defendant. He contended that that this suit discloses a reasonable cause of action against the 1st defendant. He cited the case of N.E.P.A V. Olagunji (2005) 3 NWLR (pt. 913) 602, Cookey V Fombo (2005) 15 NWLR (pt. 947) 182 on the definition of a cause of action. He submitted that the claimant’s statement of facts is the only basis upon which a court is obliged to rely on to determine whether a cause of action is made out against the 1st defendant to vest the court with jurisdiction and not the defendant’s defence. He referred to paragraphs 4, 9, 10, 11, 12, 16, 17 and 22 and submitted that from the averments therein a cause of action has been made out against the defendant. He submitted that suspension does not amount to termination or dismissal and as such an employee who is on suspension has a right to draw the benefits or salaries that ordinarily accrue to his office or position citing Longe V. F.B.N (2010) 6 NWLR (Pt. 1189) 1. He submitted that the claim of the claimant for arrears of salaries from August, 2005 to January, 2009 cannot be yardstick for computation of time for purposes of limitation of action. He argued that the cause of action arose in January 2009 when the claimant terminated his contractual relationship with the defendant and not when the defendant placed him on suspension. He argued that between 6th January, 2009 when the claimant resigned from the 1st defendant and 19th December, 2012 when he filed this action is approximately a period of 3 years. He urged the court to hold that Section 8 of the Limitation Law, Laws of Lagos State of Nigeria does not apply in this case. Having considered the processes and submissions of counsel and the authorities relied upon, I will begin by striking out the name of the 2nd defendant from this suit, the claimant having conceded to the submission of defence counsel that there is no cause of action disclosed against the 2nd defendant. 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. In deciding whether a case is statute barred or not, the court only has to look at the complaint and the statement of facts alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the complaint was filed. If the time on the complaint is beyond the period allowed by the Limitation law, the action is statute barred. See Elabanjo v Dawodu [2006] 6-7. The law is that suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather then terminate the contractual obligations of the parties to each other. See Longe v F.B.N. Plc [2010] 6 NWLR (Pt 1189)1 at 60. The claimant was in the employment of the defendant up till 6th January 2009 when he resigned his appointment. The cause of action therefore arose on 6th January 2009 when he put in his resignation letter and the 1st defendant refused to respond to it. This action has been filed within the six years period of accrual of cause of action. I hold that the action is not caught by the provisions of Section 8 of the Limitation Law of Lagos State. This suit is not statute barred. I therefore assume jurisdiction to entertain it. I find from the averments in paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 to 21 that a reasonable cause of action has been disclosed against the 1st defendant that gives rise to an enforceable claim. The matter shall proceed to trial. I make no order as to costs. Ruling is entered accordingly. ______________________________ Hon. Justice O.A Obaseki-Osaghae