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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 27, 2015 SUIT NO. NICN/LA/502/2012 BETWEEN 1. ABBA AYEMI 2. SYLVERSTER OKONKWO 3. CHILEKWE MAJOR 4. FREEDOM ORUKWO 5. LORI MAJEMITE CLAIMANTS/RESPONDENTS 6. EDWARD IGONI 7. ANSWER PETER 8. DIKE PATRICK (Suing for themselves and on behalf Of 110 dismissed security officers) AND 1. TOTAL E & P NIGERIA LIMITED DEFENDANT/APPLICANT 2. THE NIGERIA POLICE FORCE DEFENDANT/RESPONDENT REPRESENTATION O. J. Irerhime Esq for 1st defendant. No representation for claimant. No representation for 2nd defendant. RULING The claimant filed this complaint on 28 September 2012 against the defendants claiming jointly and severally as follows: 1. A declaration that the claimants were in the employ of the 1st defendant having individually entered into their respective contracts of employment with the 1st defendant and were therefore not members or staff of the 2nd defendants as erroneously portrayed by the 1st defendant. 2. A declaration that the claimants were entitled to the same salaries, benefits, rights, emoluments, privileges, immunities, conditions of service and all legitimate protections as the 1st defendant conferred upon its junior staff employees engaged in the security services of the 1st defendant’s company. 3. A declaration that notwithstanding the appellation, police ranks, police uniforms and other police insignia, the appointments of the claimants were not made in accordance with the provisions of sections 18, 19, 20 and 21 of the Police Act, (CAP P29) Laws of the Federation of Nigeria, 2004. 4. An order mandating the 1st defendant to in conjunction with the claimants take an account and compute all salaries, allowances, bonuses, subsidies and other entitlements howsoever described paid to the other junior staff employees of the 1st defendant pursuant to the terms, conditions and scales of remuneration and other benefits negotiated and prescribed for junior staff employees in the Management. 5. An order mandating the 1st defendant to pay the claimants through their counsel, the law firm of Falana & Falana Chambers, the sums found due to the claimants from the 1st defendant on the taking of the said account and for interest thereon pursuant to the provisions of the Rules of this Court and at the rate of 22 percent from the date of judgment until the full liquidation of the judgment sum. IN THE ALTERNATIVE 1. A declaration that the purported dismissal of the claimants by the 2nd defendant whilst they were in the employ of the 1st defendant is null and void and of no effect whatsoever and howsoever. 2. A declaration that the contractual employment relationship between the claimants and the 1st defendant is still subsisting as neither of the party has in reality terminated the relationship. 3. A declaration that the claimants were entitled to the same salaries, benefits rights, employments, privileges, immunities, conditions of service and all legitimate protections the defendant conferred upon its junior staff employees engaged in other departments other than in the Security services of the defendant company prior to the purported dismissal of the claimant by the 2nd defendant. 4. An order mandating the 1st defendant to take an account and compute all salaries, allowances, bonuses, subsidies and other entitlements howsoever described paid to the other junior staff employees pursuant to the terms, conditions and scales of remuneration and other benefits negotiated and prescribed for junior staff employees in the Management prior to the purported dismissal of the claimants. 5. An order mandating the 1st defendant to pay the claimants through their counsel, the law firm of Falana & Falana’s Chamber the sums, if any, found due to the claimants from the 1st defendant prior to the purported dismissal 100% interest thereon pursuant to the provisions of the Rules of this Court and at the rate of 22 per cent from the date of judgment until the full liquidation of the judgment debt. Accompanying the complaint is the statement of facts and other accompanying processes. The 1st defendant entered a conditional appearance on 6th February 2013 and filed a motion on notice dated 5th March, 2013 pursuant to Order 11 Rule 1 of the Rules of Court praying for the following: 1. An order striking out this suit for being incompetent 2. And for such further orders and this court may deem fit to make in the circumstance. The grounds upon which the application is made are as follows: 1. This suit is not properly constituted as a representative action and is incompetent as the cause of action of each of the 110 dismissed security officers is personal, separate and distinct and is not shared or suffered by any other person 2. There is no corporate interest by the 110 dismissed security officers in the terms and conditions of employment of each other so as to permit a representative action to lie at their joint instance. 3. The suit is statute barred having been commenced well over 12 years from the accrual of the cause of action in December, 1999. The application is supported by an affidavit sworn to by Faith Adarighofua, a legal practitioner and a written address. In opposing the motion, the claimant filed a counter affidavit which was sworn to on June 11 2013 by Kayode Ogunmefun a litigation officer and a written address in support. Learned Counsel to the 1st defendant raised two issues for determination to wit: 1. Whether each of the 110 dismissed claimants have joint and collective interest in the employment of one another so as to entitle them to file a representative action? 2. Having regards to the date of the accrual of action as pleaded in paragraphs 23, 25 and 26 of the statement of facts, which is December, 1999, is this suit not statute barred? He submitted that representative action is permissible in law where several persons jointly own a property or have the same interest in a thing over which a wrong has been committed. That for a representative action to lie, three fundamental features must be present, namely that the persons named in the suit as well as the persons represented must have the same interest in the subject matter of the suit citing Adeniran V. Interland Transport Ltd (1991) 9 NWLR (Pt. 214) 155. He submitted that from paragraphs 1,8,10 and 13 of the statement of facts, the claimants allege that each of them individually applied for and was engaged as such by the 1st defendant. It was his contention that the said paragraphs clearly reveal that the cause of action of each claimant is distinct and separate citing Oragbade V. Onitiju (1962) All NLR (Pt.1) p. 32, Elija Idise &Ors V. Williams Intn’l Ltd (1995) 1 NWLR (Pt. 370) p. 142 and Amachree V. Newington 14 WACA 97. Counsel submitted that the alleged breach of the understanding entered into individually with each of the represented claimant constitutes a wrong only to that person and creates a separate cause of action. He urged the court to resolve this issue in favour of the 1st defendant and strike out this suit for being improperly constituted. Learned Counsel further submitted that it is a settled principle of law that in order to determine whether a cause of action is statute barred, the originating process and the statement of claim is looked at to see when the wrong was allegedly committed which gave rise to the complaint and thereafter comparing that date with the date on which the action was filed citing Amusan V. Obideyi (2005) 14 NWLR (Pt. 945) 322 at p. 328, Egbe V Adefarasin (1987) NSCC (Vol. 18) (Pt. 1) p.1. Counsel referred the court to paragraphs 1, 13, 23, 25 and 26 of the statement of facts and submitted that the cause of action arose in 1999. He argued that by their own admission, the cause of action was in 1999 and this action was filed on 28th September, 2012 well over 12 years from the accrual of the cause of action. He submitted that by the provision of Section 16 of the Rivers State Limitation Law, Cap 80, Laws of Rivers State, 1999, the claimants have 5 years from the date the cause of action arose to institute this action. That this case was instituted outside the limitation period and is therefore statute barred. He urged the court to resolve this issue in it favour and hold that this suit is statute barred. Learned Counsel to the claimants formulated two issues for determination as follows: 1. Whether the action was properly commenced in a representative capacity. 2. Whether having regards to the circumstances of this case, this action is statute barred. He submitted that in determining whether the claimants and the people they represent have a common interest and a common grievance, recourse must be had to the statement of claim and not any other process citing Tobiowo V. Disu (2008) 7 NWLR (Pt. 1087) 533. He submitted that a dispassionate examination of the statement of facts and the reliefs sought in this suit show that the claimants and those people they represent have a common interest. He referred the court to paragraphs 8, 9, 11, 13, 14, 16, 17, 19, 20 and 21 of the statement of facts and submitted that the claimants and those they represent have a common interest and common grievance relying on Adefule V. Oyesile (1989) NWLR (Pt. 122) p. 396. He submitted that the reliefs sought by the claimants are beneficial to them and the 110 people they represent in this suit and that the claimants need not file separate suits to ventilate their rights as to do so will amount to over burdening of the court referring to Mozie V. Mbamalu (2006) 15 NWLR (Pt .1003) 466. He submitted further that at this stage of this case the court is only invited to resolve the preliminary objection filed by the 1st defendant, therefore, the court is bound to make reference to the statement of facts of the claimant and not any other documents. Learned Counsel submitted that this suit is not statute barred. He referred the court to paragraphs 25 and 26 of the statement of facts and paragraph 3 of the counter affidavit and argued that the claimants challenged their dismissal in court in 1999. He submitted that time cannot be said to have been running whilst the claimants were in court between 1999 and 2011 when the various suits challenging their purported dismissal were filed and struck out citing Fasakin Foods Nig. Ltd V. Shosanya (2006) 40 WRN pg. 138. He submitted that a cause of action is the set of facts which establishes or gives rise to a right of action, a factual situation which gives a person judicial relief. He cited Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47)1, Lasisi Fadare & Ors V. A.G Oyo State (1982) Vol. 13 NSCC p. 32 at 60, L.U.T.H & M.B v Adewole (1998) 5 NWLR (Pt. 550) p. 406. He added that the claimants approached the State High Court in 1999 in two separate suits and also filed a fresh action in 2007. That the claimants having instituted their action within the time frame envisaged by the limitation laws of Rivers State or any other laws the claimants cannot be said to have slept on their rights. He submitted that assuming but not conceding that time was running while the claimants were in various courts between 1999 and 2011, that the claims being for labour rights and work done cannot be said to be caught by any limitation as to render same statute barred. He cited the case of Aremutu V. Adekanye (2004) 2 WLRN 1 at 17, Captain Tony Oghide and Anor V. Shona Jason (Nigeria) Limited and Ors Suit No. NIC/3/2008 delivered on 2008/07/18, Federal Government of Nigeria V. Zebbra Energy Limited (2002) 12 S.C (Pt.II) 136. He submitted that the claims of the claimants border on their entitlements and labour which cannot be caught by any limitation law. He then urged the court to dismiss this application. I have carefully considered the processes filed by the parties, the submissions of the counsel and the authorities relied upon. I will begin with the issue of Limitation. 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 SC 24. 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 (1987) 1 NWLR (47) p.1 at 20, Udoh Trading Coy Ltd v Abere (2001) 11 NWLR (pt. 723) p. 114. The cause of action arose in 1999 when the claimants were dismissed by the 2nd defendant via announcement on Radio Rivers in December, 1999 and they subsequently instituted Suits Nos. PHC/512M/99, LD/2868/99, and PHC/453/2007 challenging their dismissal and seeking the enforcement of their fundamental rights. Suit No PHC/512M/99 was struck out for being incompetent. Suit No LD/2868/99 was discontinued and therefore struck out. Suit No PHC/453/2007 was dismissed for incompetence. The claimants have now filed this action upon the same set of facts seeking declaratory reliefs. This I find to be an abuse of the process of court. In any event, Section 16 of the Limitation Law of Rivers State, Cap. 80 Laws of Rivers State of Nigeria, 1999 provides: No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued” This is a fresh suit filed by the claimants on 28th September 2012 outside the five years of accrual of cause of action. The claimants’ counsel has submitted that a claim for work and labour done cannot be caught up by the Limitation as the claimant’s are seeking for their salaries and other entitlements. He has cited this court’s decision in the case of Captain Tony Oghide & ors v. Shona Jason (Nigeria) Ltd unreported Suit No. NIC/3/2008; ruling delivered on July 18, 2008. In earlier cases decided by this court such as John Ovoh v. The Nigerian Westminster Dredging & Marine Co. Ltd[2008] 14 NLLR (Pt. 37) 68, this Court had held that labour rights are not caught up by the limitation laws: for to think otherwise would mean that even rights as to salaries and entitlements of an office would be time-barred. This reasoning was followed in subsequent cases such as Captain Tony Oghide & ors v. Shona Jason (Nigeria) Ltd supra and Captain Tony Oghide &ors v. Jason Air Ltd unreported Suit No. NIC/LA/12/2009; ruling delivered on January 13, 2011. In Hon. Runyi Kanu (JP) & ors v. The Attorney-General & Commissioner for Justice Cross River State &ors [2013] 32 NLLR (Pt. 91) 63 NIC, my learned brother Hon Justice B.B.Kanyip attempted a rationalization of the authorities as follows: – In cases of claims for salary and allowances, the decisions of this Court in John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd would appear to be good law if the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v. AG, Bayelsa State & Anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1st defendant who had raised it. ……. In any event, the definition of the phrase “continuance of the injury” by case law authorities to mean continuance of the “act which caused the injury” and not the injury itself presupposes that this Court’s stance in cases such as John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd must be understood qualifiedly. I have not been given any reason why I should depart from this position in light of the Supreme Court’s decision in A-G Rivers State v A-G Bayelsa State supra which came after this Court’s decision in Captain Tony Oghide & ors v. Shona Jason supra.This suit is caught by the provisions of Section 16 of the Limitation Law of Rivers State. I hold that this action is statute barred. Consequently, there is no need to rule on the issue of the representative capacity. I hereby dismiss this action in its entirety. I make no order as to costs. Ruling is entered accordingly. _____________________________ Hon Justice O.A.Obaseki-Osaghae