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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: APRIL 23, 2015 SUIT NO: NICN/LA/30/2014 BETWEEN 1. Mr. Edmund C. Ekpemogu 2. Mr. L.O. Nwakwoke 3. Mr. Olusegun Orogbemi 4. Mr. E.O. Eze 5. Mr. Godwin Agodu Okoli 6. Mr. Imeobong Sandy Akpan Okorie 7. Mr. Stephen .C. Emoleke 8. Engr. Edet Ekanem Udoh - Claimants 9. Mr. Vajimeh 10. Mr. Tolulope Kolawole (Suing as Administrator of the Estate of Late Mr. V. Kolawole) 11. Mr. Modestus Amadi (Suing as Administrator of the Estate of Late Mr. A.C. Amadi) AND Bank of Industry Limited - Defendant REPRESENTATION C.S. Nwangba for the Claimants. T.A.B. Oladipo with E.A. Oset for the Defendant. RULING On 28/1/14, the Claimant by his Form 1 claims against the Defendant as follows - (i). The total sum of =N=89,347,500 (Eighty Nine Million, Three Hundred and Forty Seven Thousand and Five Hundred Naira) as their full and final entitlement and terminal benefits having served the Defendant for twenty (20) years respectively. (ii). The sum of =N=5,000,000 (Five Million Naira) as General Damages. (iii). Interest on the sums at the rate of 21% per annum until judgment and thereafter at the rate of 10% per annum until liquidation of the debt. (iv). Cost of this action. The Claimant's Form 1 was accompanied by Verifying Affidavit, Statement of Facts, List of witnesses, written statement on oath of claimants' witnesses, List and copies of documents to be relied on at trial. On 19/2/14, the Defendant entered an appearance by filing its Memorandum of Appearance. Defendant also filed a statement of defence along with it in which it indicated that it shall before or at the hearing raise a preliminary objection that this Court lacks jurisdiction to hear and determine the Claimants' claim and shall urge the Court to dismiss the claims in limine. On 23/5/14, the Defendant brought a Notice of Preliminary Objection pursuant to Order 15 Rule 1 of the National Industrial Court Rules, 2007 and the inherent jurisdiction of Court. In it, the Defendant prayed the Court for an Order striking out the action in its entirety on the ground that the same is incompetent. The particulars in support of the ground of objection, as put forward by the learned Counsel are that- 1. The cause of action of the Claimants' or each of the Claimants', is statute barred. 2. The claims of the Claimants' are not related to or connected with labour or employment in respect of which this Court is conferred with jurisdiction to the exclusion of any other Court and matters within the meaning of Section 254C(1)(a) of the Constitution of the Federal Republic of Nigeria, as amended by Act No. 3 of 2010. The Notice was supported by a written address. On 17/9/15, learned Counsel to the Claimants filed a Reply on point of law to the written submission of the Notice of Preliminary Objection of the Defendant. On 10/2/15 while arguing his Notice of Preliminary Objection, learned Counsel to the Defendant applied to withdraw the second prayer of his application relating to section 254C(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and adopted his written address as his written submission in support of the preliminary objection. In his written address, learned Counsel had referred the Court to paragraph 4 of the Claimants' statement of facts where the Claimants alleged that they were disengaged from service vide a letter of disengagement from service dated 31/12/2003. Counsel further pointed to paragraph 5 of the same statement of facts where the Claimants alleged payment of their terminal benefits when they were disengaged from the Defendant, the fact that the terminal benefit was far below the amount they should have received and that the Claimants have now commenced this action more than ten years after the alleged disengagement and claiming for the payment of the short fall in the terminal benefits given to them by the Defendant. According to the learned Counsel, whatever rights the Claimants have to bring an action for payment of the alleged short fall in their terminal benefits accrued on that day and any action that may be instituted to seek redress must be commenced in accordance with time limits provided for in the Limitation Law. Learned Counsel submitted that in determining whether or not a cause of action is statute barred, it is the Claimant's originating process, in this case the Statement of Facts, that must be looked at, citing Oputa JSC in Egbe v. Adefarasin (1987)1 NWLR (Pt. 47) 1; that by section 8(1)(a) of the Limitation Law Cap. 118 Laws of Lagos State 1966, the Claimants have six years within which to bring an action for the enforcement of their rights and that the effect of statute of limitation is that the right of action is lost if the action is not brought within the stipulated time, ignorance of the limitation of time or time taken by negotiation between parties being irrelevant, citing Kolawole Industry Company Limited v. A. G. Federation (2012)14 NWLR (Pt. 1320) 221 at 243. Learned Counsel urged the Court to decline jurisdiction and dismiss the Claimants' suit same having been commenced outside the period stipulated by law. In his Reply on Point of Law, learned Counsel for the Claimants set down 2 main issues for determination as follows - 1. Whether the Claimants' claims and action are statute barred in the light of the demand letter dated 15th August, 2013. 2. Whether the Claimants' claims are not related to or connected with labour or employment and within provision of section 254(1)(a) of the Constitution of the Federal Republic of Nigeria, as amended. While adopting his written submission, learned Counsel to the Claimants stated that he would confine his argument to only issue one as stated since the Defendant has withdrawn his prayer 2. Counsel submitted that this case was a debt owed by the Defendant to the Claimants; that the cause of action arose on the day the Claimants wrote a letter of demand to the Defendant and that the demand letter dated 15/8/13 revived the cause of action for the debt, citing Hanna Bako Kolo v. First Bank of Nigeria Plc (2003)3 NWLR (Pt. 806) 216 & Victor Amede v. UBA (2008)8 NWLR (Pt. 1090) 623. Learned Counsel finally submitted that the Claimants' action is not statute barred and that the cause of action accrued on 15/8/13 when the Claimants demanded for the payment of the short fall in their terminal benefits which equally tantamount to a debt being owed them by the Defendant. Counsel prayed the Court to so hold. I read and understood all the processes filed by learned Counsel on either side of the divide. I also listened with attention to the oral submissions by Counsel in this case. Having done so, I here set a lone issue for determination as follows - Whether the suit by the Claimants is or is not statute barred. A suit is said to be statute barred if it is instituted outside the time limit as prescribed by a statute. For the purpose of determining this, the position of the law is that a trial Judge is only expected to concern himself with the originating processes as filed by the Claimant. In the instant case the focus and concern of the Court is with respect to the General Form of Complaint filed by the Claimants. The essence of this is to enable the Court determine when indeed the cause of action leading to the suit arose vis-a-vis when the suit itself was instituted in the light of the time limit allowed by the statute of limitation. On what is a cause of action and when it is said to arise, Kanyip, PJ of this Court in Mr. Edwin Ejehu & Anor. v. Bank of Industry & Ors. Suit No. NICN/LA/449/2013 delivered on 18/3/15, spared time to espouse on these issues in the following words - ''Cause of action is said to be the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See AG, Federation v. AG, Abia State & ors [2001] 11 NWLR (Pt. 725) 689 at 733. Accordingly, cause of action is said to have arisen when all that is required to go to Court by the claimant is in place and for which the claimant is thereby entitled in terms of the right to come to Court''. In order to determine when the cause of action of the Claimants in this case arose recourse must be made to their statement of facts. In this wise, 2 paragraphs of the statement of facts are germane. They are paragraphs 4 and 5 and for emphasis, I reproduce them as follows - '4. The Claimants state that they attained the position of Senior Managers of the Defendant Bank before they were disengaged from service vide Letters of Disengagement from service dated 31st December, 2003. The Claimants shall rely on the Letters of Disengagement from service at the trial of this suit'. '5. The Claimants states that the 1st-9th Claimants including the Late A.C.Amadi and V. Kolawole were paid the sum of about =N=4,640,505.04 (Four Million, Six Hundred and Forty Thousand, Five Hundred and Five Naira) each as terminal benefit when they were disengaged from the service of the Defendant which is far below the amount that should have been paid as their full and final terminal benefit'. From the statement of facts of the claimants, it is obvious that as at 31/12/03, the Claimants' right to proceed against the Defendant had accrued. Thus it is safe to state very categorically that the cause of action of the Claimants against the Defendant arose on that date. It further means that that right of action must be exercised within the time stipulated by the statute, if any. Otherwise that right is extinguished. Now, what is the state of the law on limitation in Lagos State? Learned Counsel to the Defendant citied Limitation Law Cap. 118 Laws of Lagos State 1966 as the applicable law in Lagos State. That appears to be a dead law. For that law has since been replaced with Limitation Law, Cap. L67, Laws of Lagos State the commencement date of which is 31/12/66. Section 8 of this Law deals with actions barred after certain periods of six years. paragraph (a) of subsection 1of this Law states 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). action founded on simple contract''. The contract between the parties was a simple contract of employment. That contract, as I already found here, was effectively brought to an end on 31/12/03. Paragraph 4 and 5 of the statement of facts refer. I have also found and held that the cause of action arose on that date. It thus portends that by Cap. L67, Laws of Lagos State, the Claimants had six years within which to commence judicial proceedings for the enforcement of their contractual employment rights against the Defendant. Unfortunately, this action was filed on 28/1/14 more than a decade after the accrual of cause and right of action. I have no hesitation in holding, and I here hold that the present suit is caught and barred by the statute of limitation. Needless for me to add that equity does not aid the indolent. A party who believes he has cause of action and right to institute same must be up and doing. If he however fails to and elect, either intentionally or in advertently, to go to bed over his right, he will, as in the instant case, have himself to blame. My lord, Hon. Justice Chuckwuma-Eneh JSC said as much in Sulgrave Holdings Inc. v. F.G.N (2012)17 NWLR (Pt. 1329) 309 at 338. For well over ten years since their disengagement from the services of the Defendant, the Claimants in this case were either sleeping or slumbering. Rather than blame the state of the law, the Claimants should put the blame on their own door steps of nonchalant disposition towards the enforcement of their rights of action. Finally and for the avoidance of doubt, I find and hold that this case is caught and barred by the statute of limitation and the right of action of the Claimants is foreclosed. In the circumstance, this case is struck out. I make no order as to cost. Ruling is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE J. D. PETERS DATE: APRIL 23, 2015 SUIT NO: NICN/LA/30/2014 BETWEEN 1. Mr. Edmund C. Ekpemogu 2. Mr. L.O. Nwakwoke 3. Mr. Olusegun Orogbemi 4. Mr. E.O. Eze 5. Mr. Godwin Agodu Okoli 6. Mr. Imeobong Sandy Akpan Okorie 7. Mr. Stephen .C. Emoleke 8. Engr. Edet Ekanem Udoh - Claimants 9. Mr. Vajimeh 10. Mr. Tolulope Kolawole (Suing as Administrator of the Estate of Late Mr. V. Kolawole) 11. Mr. Modestus Amadi (Suing as Administrator of the Estate of Late Mr. A.C. Amadi) AND Bank of Industry Limited - Defendant REPRESENTATION C.S. Nwangba for the Claimants. T.A.B. Oladipo with E.A. Oset for the Defendant. RULING On 28/1/14, the Claimant by his Form 1 claims against the Defendant as follows - (i). The total sum of =N=89,347,500 (Eighty Nine Million, Three Hundred and Forty Seven Thousand and Five Hundred Naira) as their full and final entitlement and terminal benefits having served the Defendant for twenty (20) years respectively. (ii). The sum of =N=5,000,000 (Five Million Naira) as General Damages. (iii). Interest on the sums at the rate of 21% per annum until judgment and thereafter at the rate of 10% per annum until liquidation of the debt. (iv). Cost of this action. The Claimant's Form 1 was accompanied by Verifying Affidavit, Statement of Facts, List of witnesses, written statement on oath of claimants' witnesses, List and copies of documents to be relied on at trial. On 19/2/14, the Defendant entered an appearance by filing its Memorandum of Appearance. Defendant also filed a statement of defence along with it in which it indicated that it shall before or at the hearing raise a preliminary objection that this Court lacks jurisdiction to hear and determine the Claimants' claim and shall urge the Court to dismiss the claims in limine. On 23/5/14, the Defendant brought a Notice of Preliminary Objection pursuant to Order 15 Rule 1 of the National Industrial Court Rules, 2007 and the inherent jurisdiction of Court. In it, the Defendant prayed the Court for an Order striking out the action in its entirety on the ground that the same is incompetent. The particulars in support of the ground of objection, as put forward by the learned Counsel are that- 1. The cause of action of the Claimants' or each of the Claimants', is statute barred. 2. The claims of the Claimants' are not related to or connected with labour or employment in respect of which this Court is conferred with jurisdiction to the exclusion of any other Court and matters within the meaning of Section 254C(1)(a) of the Constitution of the Federal Republic of Nigeria, as amended by Act No. 3 of 2010. The Notice was supported by a written address. On 17/9/15, learned Counsel to the Claimants filed a Reply on point of law to the written submission of the Notice of Preliminary Objection of the Defendant. On 10/2/15 while arguing his Notice of Preliminary Objection, learned Counsel to the Defendant applied to withdraw the second prayer of his application relating to section 254C(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and adopted his written address as his written submission in support of the preliminary objection. In his written address, learned Counsel had referred the Court to paragraph 4 of the Claimants' statement of facts where the Claimants alleged that they were disengaged from service vide a letter of disengagement from service dated 31/12/2003. Counsel further pointed to paragraph 5 of the same statement of facts where the Claimants alleged payment of their terminal benefits when they were disengaged from the Defendant, the fact that the terminal benefit was far below the amount they should have received and that the Claimants have now commenced this action more than ten years after the alleged disengagement and claiming for the payment of the short fall in the terminal benefits given to them by the Defendant. According to the learned Counsel, whatever rights the Claimants have to bring an action for payment of the alleged short fall in their terminal benefits accrued on that day and any action that may be instituted to seek redress must be commenced in accordance with time limits provided for in the Limitation Law. Learned Counsel submitted that in determining whether or not a cause of action is statute barred, it is the Claimant's originating process, in this case the Statement of Facts, that must be looked at, citing Oputa JSC in Egbe v. Adefarasin (1987)1 NWLR (Pt. 47) 1; that by section 8(1)(a) of the Limitation Law Cap. 118 Laws of Lagos State 1966, the Claimants have six years within which to bring an action for the enforcement of their rights and that the effect of statute of limitation is that the right of action is lost if the action is not brought within the stipulated time, ignorance of the limitation of time or time taken by negotiation between parties being irrelevant, citing Kolawole Industry Company Limited v. A. G. Federation (2012)14 NWLR (Pt. 1320) 221 at 243. Learned Counsel urged the Court to decline jurisdiction and dismiss the Claimants' suit same having been commenced outside the period stipulated by law. In his Reply on Point of Law, learned Counsel for the Claimants set down 2 main issues for determination as follows - 1. Whether the Claimants' claims and action are statute barred in the light of the demand letter dated 15th August, 2013. 2. Whether the Claimants' claims are not related to or connected with labour or employment and within provision of section 254(1)(a) of the Constitution of the Federal Republic of Nigeria, as amended. While adopting his written submission, learned Counsel to the Claimants stated that he would confine his argument to only issue one as stated since the Defendant has withdrawn his prayer 2. Counsel submitted that this case was a debt owed by the Defendant to the Claimants; that the cause of action arose on the day the Claimants wrote a letter of demand to the Defendant and that the demand letter dated 15/8/13 revived the cause of action for the debt, citing Hanna Bako Kolo v. First Bank of Nigeria Plc (2003)3 NWLR (Pt. 806) 216 & Victor Amede v. UBA (2008)8 NWLR (Pt. 1090) 623. Learned Counsel finally submitted that the Claimants' action is not statute barred and that the cause of action accrued on 15/8/13 when the Claimants demanded for the payment of the short fall in their terminal benefits which equally tantamount to a debt being owed them by the Defendant. Counsel prayed the Court to so hold. I read and understood all the processes filed by learned Counsel on either side of the divide. I also listened with attention to the oral submissions by Counsel in this case. Having done so, I here set a lone issue for determination as follows - Whether the suit by the Claimants is or is not statute barred. A suit is said to be statute barred if it is instituted outside the time limit as prescribed by a statute. For the purpose of determining this, the position of the law is that a trial Judge is only expected to concern himself with the originating processes as filed by the Claimant. In the instant case the focus and concern of the Court is with respect to the General Form of Complaint filed by the Claimants. The essence of this is to enable the Court determine when indeed the cause of action leading to the suit arose vis-a-vis when the suit itself was instituted in the light of the time limit allowed by the statute of limitation. On what is a cause of action and when it is said to arise, Kanyip, PJ of this Court in Mr. Edwin Ejehu & Anor. v. Bank of Industry & Ors. Suit No. NICN/LA/449/2013 delivered on 18/3/15, spared time to espouse on these issues in the following words - ''Cause of action is said to be the aggregate of facts giving rise to or upon which an enforceable claim is anchored. It is the fact(s) that establish or give rise to a right of action. Cause of action, therefore, consists of all those things necessary to give a right of action. The things so necessary must have happened and so includes every material thereof that entitles the plaintiff to succeed that the defendant has the right to traverse. See AG, Federation v. AG, Abia State & ors [2001] 11 NWLR (Pt. 725) 689 at 733. Accordingly, cause of action is said to have arisen when all that is required to go to Court by the claimant is in place and for which the claimant is thereby entitled in terms of the right to come to Court''. In order to determine when the cause of action of the Claimants in this case arose recourse must be made to their statement of facts. In this wise, 2 paragraphs of the statement of facts are germane. They are paragraphs 4 and 5 and for emphasis, I reproduce them as follows - '4. The Claimants state that they attained the position of Senior Managers of the Defendant Bank before they were disengaged from service vide Letters of Disengagement from service dated 31st December, 2003. The Claimants shall rely on the Letters of Disengagement from service at the trial of this suit'. '5. The Claimants states that the 1st-9th Claimants including the Late A.C.Amadi and V. Kolawole were paid the sum of about =N=4,640,505.04 (Four Million, Six Hundred and Forty Thousand, Five Hundred and Five Naira) each as terminal benefit when they were disengaged from the service of the Defendant which is far below the amount that should have been paid as their full and final terminal benefit'. From the statement of facts of the claimants, it is obvious that as at 31/12/03, the Claimants' right to proceed against the Defendant had accrued. Thus it is safe to state very categorically that the cause of action of the Claimants against the Defendant arose on that date. It further means that that right of action must be exercised within the time stipulated by the statute, if any. Otherwise that right is extinguished. Now, what is the state of the law on limitation in Lagos State? Learned Counsel to the Defendant citied Limitation Law Cap. 118 Laws of Lagos State 1966 as the applicable law in Lagos State. That appears to be a dead law. For that law has since been replaced with Limitation Law, Cap. L67, Laws of Lagos State the commencement date of which is 31/12/66. Section 8 of this Law deals with actions barred after certain periods of six years. paragraph (a) of subsection 1of this Law states 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). action founded on simple contract''. The contract between the parties was a simple contract of employment. That contract, as I already found here, was effectively brought to an end on 31/12/03. Paragraph 4 and 5 of the statement of facts refer. I have also found and held that the cause of action arose on that date. It thus portends that by Cap. L67, Laws of Lagos State, the Claimants had six years within which to commence judicial proceedings for the enforcement of their contractual employment rights against the Defendant. Unfortunately, this action was filed on 28/1/14 more than a decade after the accrual of cause and right of action. I have no hesitation in holding, and I here hold that the present suit is caught and barred by the statute of limitation. Needless for me to add that equity does not aid the indolent. A party who believes he has cause of action and right to institute same must be up and doing. If he however fails to and elect, either intentionally or in advertently, to go to bed over his right, he will, as in the instant case, have himself to blame. My lord, Hon. Justice Chuckwuma-Eneh JSC said as much in Sulgrave Holdings Inc. v. F.G.N (2012)17 NWLR (Pt. 1329) 309 at 338. For well over ten years since their disengagement from the services of the Defendant, the Claimants in this case were either sleeping or slumbering. Rather than blame the state of the law, the Claimants should put the blame on their own door steps of nonchalant disposition towards the enforcement of their rights of action. Finally and for the avoidance of doubt, I find and hold that this case is caught and barred by the statute of limitation and the right of action of the Claimants is foreclosed. In the circumstance, this case is struck out. I make no order as to cost. Ruling is entered accordingly. ____________________ Hon. Justice J. D. Peters Presiding Judge