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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE OWERRI JUDICIAL DIVISION HOLDEN AT OWERRI BEFORE HIS LORDSHIP HON. JUSTICE O. Y. ANUWE Dated: March 18, 2015 SUIT NO. NICN/OW/60/2014 Between 1. Mr. Goddy Ezumezu 2. Mr. Emmanuel Njoku (for themselves and representing that Certain 21-number Members of Staff of Alcon (Nig.) Ltd., namely: Mr. Alex Ezebuife Mr. Friday Ahiakwo Mr. Okere Romanus Mr. Victor Chinwe Mr. Temple Amadi Mr. Emmanuel Njoku Mr. Nwaokoro Kumalo Mr. Obinwanne Vitalis Mr. Goddy Ezumezu Claimants/Respondents Mr. Osondu Solomon Mr. Celestine Anyanwu Mr.Rufus Amuso Mr. Ambrose Amuanama Mr. Israel Osuagwu Mr.Colinase Abemaco Mr. Udofia Sunday Mr. Okechukwu Okonkwo Mr. Sunday Jack Mr. Yusuf Mohammed Mr. Richard Obeten Mr. Chinenye Dennis And Alcon Nigeria Limited Defendant/Applicant Representation Paul Madu esq. for the Claimants/Respondents C. D. Green (Mrs.), with V. C. Anyanechi esq. for the Defendants/Applicants RULING/JUDGMENT The Claimants took out a Complaint against the defendant on the 7th day of July 2014, claiming against the defendant as follows: a. A Declaration that the Defendant is in breach of her Contract of employment with the Claimants. b. Special Damages i. 9-month unpaid salaries and entitlements due the Claimants for the period between August 2008 to May 2009 = N27,687,239.40 ii. Special unpaid permit of 15 working days per year at the rate of N73,246.66 x 21 number Claimants = N1,538,179.96 iii. 1 month salary as end-of-contract allowance at the rate of N146,493.33 x 21 Claimants = N3,076,359.93 iv. Accommodation and Feeding Allowance as provided in the memorandum of Understanding of 8-8-2008 = N22,680,000.00 v. Solicitors’ fees = N22,000,000.00 vi. General Damages for breach of Contract = N20,000,000.00 Total = N96,981,779.30 By a Motion on Notice brought pursuant to Section 16 of the Limitation Law of Rivers State, Cap 80 Laws of Rivers State of Nigeria 1999, Order 11 Rule 1 of the NIC Rules 2007 and under the inherent jurisdiction of the court, the defendant prays this Court for: 1. And Order declaring that this Honourable Court lacks Jurisdiction to hear this matter. 2. An Order dismissing the Claimant’s action or in the alternative striking out the action in limine. 3. And for such further or other orders as this Honourable court may deem fit to make in the circumstance. The ground upon which the objection is brought is that: i. That claimant’s case as formulated against the applicant is statute barred having been instituted outside the time stipulated by Section 16 of the Limitation Laws of Rivers State Cap 80 Laws of rivers State of Nigeria, 1999 the orders as shown on the face of the motion paper. The motion is supported by an affidavit of 5 paragraphs deposed to by one Zita Amadi, upon which Counsel placed reliance. In the written address accompanying the application, counsel for the defendant applicant stated briefly the facts of the case as follows: The claimants filed this suit on the 7th of July, 2014 wherein they claimed that they were employees of the defendant who were sent on leave on the 5th of September, 2008 and that they were not recalled until the Okoloma project for which they were engaged ended in May, 2009. The Claimants have alleged that the defendant has breached its contract with the claimants, in consequence of which the claimants have brought this action for a declaration that the defendant has breached its contract of employment and in respect of which the claimants have claimed special and general damages for breach of contract. Counsel proceeded to formulate a sole issue for the determination of the Court, which is: Whether the claimant’s action as constituted is statute barred and should be dismissed. In arguing the sole issue, Counsel for the defendant submitted that from the statement of facts in this case, the cause of action arose on the 5th of September, 2008 when the claimants were allegedly sent on “compulsory leave” whereas this suit was instituted on the 7th of July, 2014 which is a period of five years, ten months and two days from the date of the accrual of the cause of action. Section 16 (1) of the Limitation Laws of Rivers State provides as follows: “No action found 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 arose”. It is Counsel’s submission that from the above provision of the Limitation laws of Rivers State (where the cause of action arose) actions founded on contract are statute barred if they are not instituted within 5 years of the accrual of the cause of action. Counsel contended that any suit instituted outside the time stipulated by the limitation law, including this suit, cannot be entertained by the courts. See the case of UNITY BANK vs. NWADIKE (2009) 4 NWLR (Pt. 1131) 352 TEXACO PANAMA INCORPORATION vs. SPDC (2002) FWLR (Pt. 96) 579. Counsel submitted further that in arriving at a decision whether or not a case is statute barred the court has to take into consideration the date on which the wrong giving right to the cause of action took place as it is from that date that time begins to run. In addition, the court have to calculate the years, months and days from which the cause of action arose up till the date the case was filed in court and in doing so, the only documents to be considered are the Writ of Summons and Statement of Claim. Please see the following cases: EGBE vs. ADEFARASIN (1987) 1 NWLR (Pt. 47) 1, SULGRAVE HOLDINGS INC. vs. F.G.N. (2012) 17 NWLR (1238) 309, IBEKWE vs. ISEMB (2009) 5 NWLR (Pt. 1134) 234 @ 257 PARA. D – E. According to counsel for the applicant, the date on which the cause of action arose in this case is expressly stated in paragraph 22 of the Statement of facts which is reproduced below: Paragraph 22 “The claimants aver that on the 5 – 9 - 2008, the defendant directed the claimants to resume their leave until recalled by the defendant. However, the defendant has refused to pay the claimants their salary for September, 2008 through May, 2009, when the defendant’s gas project contract came to an end. This by simple arithmetic is the sum of N146,493.33 withheld from September, 2009 to May, 2009 (A total of nine months) for each of the claimants; which is the sum of N146,493.33, multiplied by nine months owed the claimants; and further multiplied by the 21 number of the claimants; which is N27,687,239. 40.00 (twenty seven million, six hundred and eighty seven thousand, two hundred and thirty nine naira, forty kobo).” From the above paragraph, it is abundantly clear that the cause of action in this suit arose on the 5th September, 2008. By Section 16 of the Limitation Laws of Rivers State referred to above, this action ought to have been filed latest on the 4th of September, 2013. Assuming but not conceding that there had been continuance of damage up till May 2009, the matter is still statute barred because it was filed on the 7th of July, 2014 which still exceeds the five years limitation period stipulated by law. See paragraphs 3a. 3b, 4a, 4b, 4c and 4d of the applicant’s affidavit in support of the motion. Counsel urged the Court to hold that this suit is statute barred, and accordingly dismiss same. See the case of IBEKWE vs. ISEMB (2009) 5 NWLR (Pt. 1134) 234 @ 257 A – C. In the said case, the Court of Appeal held that: The trial court was right when it looked at the law and held that the action of the Appellant was statute barred. Furthermore the court stated that: Non-compliance with the relevant provision of the statute of limitation leaves that appellant with a barred and empty or hollow cause of action which he cannot enforce (pages 254 paragraphs E – F) See also the case ABOLASHE & ORS. vs. MESSRS CHEVRON NIGERIA LTD. & ANOR (2014) 46 NLLR (Pt. 150) Pg. 624 @ Pg. 648 PARA. H Counsel referred to the Ruling delivered by this Honourable Court on the 3rd of October 2014 in respect of Suit No. NICN/EN/102/2012. SPEEDWELL OZOEMENA NWANERI vs. GOVERNOR OF IMO STATE & 3 Ors. (Unreported). He went further that this application is timely because the issue of jurisdiction is a fundamental point which can be raised at any stage of the proceedings. See the case of NDIC vs. CBN (2002) 7 NWLR (PT. 766) 272 @ 296 – 297 and AJAYI vs. ADEBIYI (2010) 11 NWLR (Pt. 1310) 137. See also the case of ABOLASHE & ORS. vs. MESSRS CHEVRON NIGERIA LTD. & ANOR (2014) 46 NLLR (Pt. 150) PG. 624 @ 645 PARAS. E – F where Honourable Justice O. A. Obaseki-Osaghae stated as follows: “On the submissions of learned counsel to the claimants that parties have not joined issues in the pleadings on the defence of limitation, the law is settled that the limitation law is a threshold issue which can be raised at any time and is not limited to being raised as a special defence”. See also the case of NDIC vs. CBN (2002) 7 NWLR (Pt. 766) 272 @ 296 – 297 where the Supreme Court stated how and the materials which are necessary to raise objection to the jurisdiction of court. In that case, the Supreme Court pronouncing on the issue stated as follows: “Objection to the jurisdiction of court can be taken at any time depending on what materials are available. It could be taken in any of the following situations: (a) On the basis of the Statement of Claim; or (b) On the basis of the evidence received; or (c) By a motion supported by affidavit giving the full facts upon which reliance is placed; (d) On the face of the Writ of Summon, where appropriate as to the capacity in which action was being brought or against whom action is brought. Page 296 paragraphs B – E From the claimant’s averments and reliefs sought in the Statement of Facts, it is abundantly clear that the claimants’ action is founded on an employer – employee contract and therefore is caught by the statute of limitation. According to Counsel, the following paragraphs of the Statement of Facts are instructive: Paragraph 3: The claimants were variously employed by the defendant between 2006 and 2007 respectively as Technicians of various trades/profession for the defendant’s multi billion Naira Okoloma Gas Project at Afam Oyigbo in Rivers State. Paragraph 5: The claimants shall lead evidence at the trial to show that when they were employed, they and the defendant entered into what the defendant called CONSULTANT AGREEMENT. Paragraph 20: Meanwhile, the claimants hereby plead the monthly salary of Mr. Goddy Ezumezu for the months of June, July and August 2008 respectively which shows that the said Mr. Ezumezu earned the following sums of money for the aforesaid months: June 2008 N146,750.00 (One Hundred and Forty Six Thousand Seven Hundred and Fifty Naira), July 2008, N139,920.00 (One Hundred and Thirty Nine Thousand, Nine Hundred and Twenty Naira), August 2008, N152,810.00 (One Hundred and Fifty Two Thousand, Eight Hundred and Ten Naira). Paragraph 22: The claimants aver that on the 5th September 2008, the defendant directed the claimants to resume their leave until recalled by the defendant. However, the defendant has refused to pay the claimants their salary for September, 2008 through May, 2009, when the defendant’s gas project contract came to an end. This by simple arithmetic is the sum of N146,493.33 withheld from September, 2008 to May 2009 (A total of nine months) for each of the claimant; which is the sum of N146,493.33 multiplied by nine months owed the claimants; and further multiplied by the 21 number of the claims; which is N27,687,239.40 Twenty seven million, six hundred and eighty seven thousand two hundred and thirty nine naira forty kobo). The reliefs claimed in paragraph 51 of the Statement of Facts can be summarized as follows under 3 categories: 1. A declaration that the defendant is in Breach of her contract of employment with the claimant. 2. Special damages comprising of unpaid salaries and entitlements for a period of 9 months, amongst others. 3. General damages for breach of contract. These reliefs clearly show that the main claim of the claimants is for breach of contract and damages in respect of same. Please see paragraphs 3b, 3c and 3d of the affidavit in support of the motion. The 1st claimant has frontloaded his contract of employment to show the contractual relationship between himself and indeed the other claimants on the one hand and the defendant on the other hand. He has also frontloaded his pay slips for the months of June, July and August, 2008 which form the basis of the claim for salaries and allowances as stated in paragraph 22 and 51(b) of the Statement of Facts, this goes further to buttress the fact that the claim is based on contract. According to counsel for the defendant/applicant, it is worthy of note that the claimant’s contention is that they ought to have worked up till May, 2009 when the Okoloma Project for which they were engaged ended; but that the defendant breached their contract of employment by sending them on leave on the 5th of September 2008 by reason of which the claimants are claiming salaries and allowances (amongst others) for the period, September 2008 to May 2009. It is abundantly clear from the Statement of Facts that the claim is not one in respect of salaries and allowances for work done but rather for salaries, allowances and entitlements which the claimants would have earned but for the alleged breach of contract on the part of the defendant which took place on the 5th of September and damages arising therefrom. Counsel submitted that by reason of the above stated facts, this is a matter firmly rooted, grounded and founded on the respective contracts of employment entered into between the claimants and defendant. Please see the case of ABOLASHE & ORS vs. MESSRS CHEVRON NIGERIA LTD. & ANOR (2004) 46 NLLR( Pt. 150) PAGE 624 @ PAGE 645 PARAS. B – E where Honourable Justice O.A. Obaseki-Osaghae stated as follows: It is trite law that the employment relationship between an employer and employee is based on an offer and acceptance referred to as a contract of employment. The claimants have referred to themselves as the employees of the 1st defendant and in (paragraph E) of their claims against the defendant reproduced above have made a claim for the sum of N25,000,000.00 (Twenty Five Million Naira) each as general damages for 1st defendant’s breach of contract of employment between the claimants and 1st defendant. By his own claim, this action is clearly founded on a contract of employment. Counsel urged the Court to hold that from the pleadings of the claimants, this case is based, rooted and founded in contract and ought to have been brought to court within five years of the period when the cause of action arose which is 5th September, 2008. Where a case is found to be statute barred, the proper order for the court to make is an order dismissing the claim. See the case of UNITY BANK vs. NWADIKE (Supra) 352 @ 381 paras. B – D Counsel urged the Court to hold that this suit is statute barred and incompetent and dismiss same with substantial costs as it ought not to have found its way into the court in the first instance. In opposition to the defendant’s preliminary objection, the Claimants on the 13th day of November 2014, filed a Counter Affidavit of 6 paragraphs deposed to by the 1st Claimant, upon which Counsel placed reliance. In the Written Address in support of the claimants’ Counter Affidavit, Counsel gave a brief summary of the Claimants’ case as follows: The claimants, who are the staff of the defendant, were on the 5th September 2008 directed by the management of the defendant to commence an indefinite leave. While the leave lasted, the claimants repeatedly approached the management of the defendant to duly terminate their contract of employment; and to pay them their entitlements accordingly. But the defendant repeatedly advised the claimants to hold on; and assured the claimants that they were being preserved for other pending jobs/contracts of the defendant with the assurance that they (claimant) would be paid all their entitlements accordingly. The most convincing reason that made the claimants to believe and waited for the defendant, was the latter’s argument that it is cheaper and cost effective in the long run to work with a trained and tested workforce than to recruit and experiment with some unknown untested and inexperienced staff, for some important projects such as the Akwa Ibom Airport project, etc. See paragraphs 9, 10, 22 (first 2 lines), 24, 25, 26, 27, 28, 29 and 31 of the Statement of Facts. Meanwhile, some other “important” colleagues of the defendant and who knew the defendant to be fraudulent, quickly initiated a law suit against the defendant at the Rivers State High Court of Justice, sitting at Oyigbo in Suit No OYHC/72/2009. It was when the defendant refused to reply the claimants’ protest letter dated the 28 – 4 – 2009, (see item No. 10 of the list of Documents earlier filed in these proceedings) that the claimants saw the need to commence a legal action against the defendant. Consequently, on the 21st March, 2012, the claimants filed an application to join in a pending Suit No OYHC/72/2009, which is between a colleague of the claimants on the one hand; and the same defendant on the other hand; and touching on the same subject of the defendant’s breach of contract. Unfortunately on the 22nd May 2014, the Rivers State High Court ruled that the claimants’ joinder will slow down Suit No OYHC/72/2009, and directed that this Court is better seised with labour related matters. Hence, the re-filing of this suit. According to Counsel, by the subject Preliminary Objection, the defendant is erroneously contending that the claimants’ first attempt at exercising their right of action was on the 7th July 2014 when the claimants re-filed this suit, and not on the 21st March 2012 when the claimants first approached the Court to ventilate their rights. Counsel for the Claimants formulated the following issues for the determination of the Court: i. Whether the Claimants first approached the Court and subsequently exercised their right of action against the defendant on 7-7-2014. ii. Whether the statute of limitation applies in cases of concealed fraud. It was Counsel’s submission that in arguing this motion, certain basic principles of the law must be emphasized. One of such is the well-established principle which says that an application by way of a Preliminary Objection for the dismissal of a suit in limine, can be made on points of law; and where there are no facts in dispute for the determination of such an objection. See WOHEREM JP vs. EMEREUWA & ORS. (2004) 11 MJSC 108; BELLO ADEGOKE FOKO & ORS vs. O. FOKO & ANOR (1968) NMLR 441. The second basic principle of law in an application of this nature according to Counsel is that the Applicant must rely on the facts as stated by the plaintiff in the plaintiff’s Writ and Statement of Claim. In other words, the defendant is deemed to have admitted the facts as stated in the Writ and Statement of Facts hook, line and sinker? See AYANBOYE vs. BALOGUN (1990) 5 NWLR (Pt. 151) 392 @ 407. However, if facts exist, which must first be adduced in or established by evidence to enable a point to be sustained, then the Preliminary Objection cannot properly be taken. Such a point therefore is a matter that will be properly answered by evidence during trial and rightfully construe an issue for determination at the trial. See BANJO & ORS vs. ETERNAL SCARED ORDER OF CHERUBIM & SERAPHIM (1975) 3 SC. 37 Counsel then proceeded to apply these basic principles to resolve the issues as formulated by Counsel. On issue one whether the Claimants first approached the Court and subsequently exercised their right of action against the defendant on 7-7-2014, counsel referred to the averments of paragraph 33 of the Statement of Facts, to which the defendant is deemed to have admitted, the relevant portions of which says that: “The claimants state that when they got no reply from the defendant and they were also not paid till June 2009, they sought to join in a pending suit already filed by one of their colleagues… in suit No. OYHC/72/2009. By paragraph 4 of the claimants’ Counter Affidavit, followed by “Exhibit 1” thereto, the claimants have shown that they did make their first move at exercising their right of action against the defendant on the 21st March 2012. It is trite that one of the most potent reasons for an application for joinder to a pending suit, is so as to avoid being estopped from raising the issue again, having stood by and presumably acquiesced when the litigation went on. Another reason for joinder is so that the interests of all potential parties are thereby completely and effectually determined. For these propositions of the law, Counsel referred to the case of ADEDIRAN vs. INTERLAND TRANSPORT LTD. (1991) 9 NWLR (Pt. 214) 155; LEAD MERCHANT BANK LTD. vs. SALAMI (2008) All FWLR (Pt. 404) 1587 @ 1598 PARA. C – H. The claimants having duly exercised their right of action against the defendant on the 21st March 2012, Counsel submitted that what became of that exercise is of no moment in determining the question as to when the claimants first exercised their right of action against the defendant over the subject breach of contract. He urged the court to so hold. On issue two whether the statute of limitation applies in cases of concealed fraud, Counsel submitted as a preliminary point that a cause of action is to be distinguished from a right of action. He submitted that a right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation) which gives rise to a right of action which itself is a remedial right. So held Oputa, JSC. in the case of Egbe vs. Adefarasin (1987) 1 NWLR (pt. 47) 1. Meanwhile, Section 16 of the Limitation Law CAP. 80, Laws of Rivers State of Nigeria, 1999, provides that: “No action founded on contract …. Shall be brought after the expiration of 5 years from the date on which the cause of action accrued” It was Counsel’s submission that the operative phrase in the highlighted portion of the law is “from the date on which the cause of action accrued”. However, the law is that where the cause of action is concealed by fraud, the period of time for the computation of the 5 years period necessary for the exercise of the cause of action, does not commence until the fraud is discovered. See NWOSU vs. OFFOR (1997) 1 KLR (Pt. 47) 272 @ 278. It has long been established that it is only in cases of concealed fraud that the Statute of Limitation becomes inoperative. This is particularly so where the party defrauded remains in ignorance of the fraud without any fault of his. See AROWOLO VS. IFABIYI (2002) 4 NWLR (Pt. 757) 356. In paragraphs 22, 24, 25, 26, 27, 28, 29, 30, 31 and 32 of the Statement of Facts, the claimants gave a graphical account of how the defendant deceived them into believing that their contract of employment was still running with the defendant. The most heart-rending according to counsel is the last 4 lines of paragraph 31 of the Statement of Facts where the defendant deceived the claimants by promising that she had “the intention of using the claimants for the execution of other pending contracts and therefore cannot afford to lose her trained workers”. In the circumstances, it has been held that fraud may be presumed from the nature of a bargain… circumstances and conditions of the parties contracting, weakness, one-sided, extortion and advantage taken of that weakness on the other. Fraud in such cases does not mean deceit or circumvention; it means unconscionable use of the power arising out of the circumstances and condition of the parties. The above dictum was the opinion of Onu JSC, in the celebrated case of OKOLI vs. MORECAN FINANCE (NIG.) LTD. (2007) 14 NWLR (Pt. 1053) 37. On the other hand, fraud has been defined as an action or conduct in a representation recklessly made without any belief in its truth; but made with the intention that the person receiving that misrepresentation should act on it. This is exactly the case here where the defendant kept deceiving the claimants by promising them both heaven and earth; only to turn around to mock the claimants for bringing this action. The above diction is that of TOBI, JSC in ONWUDIWE vs. F.R.N. (2006) 10 NWLR (Pt. 988) 382; (2006) 4 SC (Pt.11) 70. From the above premises, it is clear that the defendant deceived the claimants at the material time; and hence the Statute of Limitation cannot run against the claimants in this suit. Counsel submitted that this Preliminary Objection is merely designed to delay and derail the course of justice in these proceedings. And from a review of the law and the facts of this case, the application is doomed to fail. He urged the court to dismiss the preliminary objection for the following reasons: i. The claimants first exercised their right of action against the defendant in this suit on the 21st March 2012; and not on the 7th July, 2014 as erroneously postulated by the defendant. ii. Assuming without conceding that the claimants are out of time, the authorities cited are to the effect that Statute of Limitation does not apply in cases of concealed fraud; which the defendant played on the claimants. Counsel urged the court to dismiss this preliminary objection with punitive costs; and to order for an accelerated hearing of this suit. On the 11th day of December 2014, the defendant/applicant filed a Further Affidavit and a Reply on points of Law wherein arguments were proffered as follows: The defence counsel reiterated that the claimants/respondents have argued that as a basic principle of law, application by way of preliminary objection for the dismissal of a suit in limine can be made on points of law and where there are no facts in dispute for the determination of such objection. The cases of Woherem JP vs. Emereuwa & Ors and Bello Adegoke Foko & Ors vs. O Foko & Anor were cited in paragraph 4.1 of their Written Address in opposition to the preliminary objection. While the defendant agrees that the above position is correct only as it affects the date when the cause of action arose for the purpose of computation of time as it relates to limitation of action, Counsel submitted that evidence must not necessarily be taken before the determination of an objection to jurisdiction which is based on statute of limitation. In the case of Woherem JP vs. Emereuwa cited by the claimants/respondents, also reported in (2005) 2 FWLR (Pt. 262) 460, the Supreme Court stated in page 475 paras. F – H as follows: “What needs to be emphasized is that the determining factor is the averment in the plaintiff’s Writ of Summons and Statement of Claim. This is the case, however, where at the end of settlement and exchange of pleadings or after the plaintiff has filed his Statement of Claim, the defendant is obliged at that stage to contest in limine by way of preliminary objection that the plaintiff’s action is statute-barred and ought to be struck out. The position is different where issue is joined by the parties in their pleadings as to the date the cause of action in the suit arose. In that case, such an issue must be proved by the parties in the course of hearing of the suit by credible evidence…” (Emphasis mine) It thus becomes clear that the defendant must not, as of law, file a Statement of Defence when his contention as to the date of commencement of action and the other facts relied on in raising the point of law in the application are drawn purely from the facts pleaded in the Statement of Facts by the claimants/respondents. The claimants/respondents cannot be heard to deny facts pleaded in their Statement of Fact just for the purpose of alleging that there are disputed facts, with the sole intent of defeating the present application. A person cannot blow hot and cold at the same time nor can he approbate and reprobate. See Ajide vs. Kelani (1985) 3 NWLR (Pt. 12) 248; (1985) 11 S.C. 124. According to the defendant, it is important to observe that in the case of Bello Adegoke Foko cited by the claimants/respondents, the preliminary objection was raised after close of pleadings. The preliminary objection was not based on limitation statute. Thus, this case, as sought to be relied upon by the respondents, is inapplicable in the instant case, the applicant in that case prayed the court to dismiss the suit on the ground that the suit was misconceived and frivolous. The respondent therein contented that it was too late to raise the objection as the parties have joined issues. The court per Aguda J held at page 444 as follows: “In my view, there is nothing in the rules of practice or procedure to prevent the applicant from making this application at this stage (see for example, Peter Olabiyi & Anor vs. Sule Abiona (3) but this is not to say that the application could not have been taken earlier, for example, after the filing and service of the Statement of Claim on the defendant, but before the filing of Statement of Defence, or even after the Writ before pleadings are ordered”. The above position of the court in the case buttresses the fact that the claimants/respondents cited the case out of context, and that the case is rather in consonance with the elementary principle of law to the effect that objection to jurisdiction can be raised at any time, even for the first time on appeal. Counsel submitted further that the conspicuous and notorious principle governing the determination of the question as to whether an action is statute barred is to the effect that the court will have recourse only to the Writ of Summons and Statement of Claim. See the case of Ibekwe vs. Imo State Education Management Board (2009) 5 NWLR (Pt. 1134) 234 @ 257 paras. D – E. Consequently, it follows that filing or failure to file a Statement of Defence has nothing to add or remove from the determination of the question that has arisen in this application. In reaction to the argument in paragraph 4.2 of the claimants/respondents’ address citing the case of Ayanboye vs. Balogun to the effect that by bringing a preliminary objection as the defendant had done in this suit, the defendant is deemed to have admitted the facts as stated in the Writ and Statement of Facts hook, line and sinker. According to Counsel, the case of Ayanboye vs. Balogun was also cited out of context as the issue and the said principle did not arise for determination in that case. The position canvassed by the claimants/respondents is a clear misstatement of the law. It is clear from the case of Woherem JP vs. Emereuwa (Supra) @ pp. 474 – 476 paras. H – D that what is seen to be admitted is the date the cause of action arose as contented by the defendant from the Statement of Claim and not the entire facts in the Statement of Claim. In reaction to paragraph 4.3 of the claimants’ Written Address where it was argued that where facts exist which must first be adduced in or established by evidence to enable a point to be sustained; the Preliminary Objection cannot properly be taken; where Counsel’s contented citing the case of Banjo vs. Eternal Sacred Order of Cherubim & Seraphim that such point is a matter that will be properly answered by evidence during trial and rightfully construed an issue for determination at the trial; Counsel for the defendant contended that the case of Banjo vs. Eternal Sacred Order of Cherubim & Seraphim was cited by the claimant’s counsel out of context, as the facts of the said case are clearly different from the situation at hand. In Banjo’s case, the application brought was not on jurisdiction of the court but rather one seeking to set aside the Writ of Summons for an alleged failure of the plaintiffs to seek consent of the defendants before bringing the action. The present objection challenges the jurisdiction of the court to hear this suit on the ground that the suit is statute barred having been caught by the limitation law. It is clearly not one on which evidence must be taken for the court to resolve. The law is trite that the claimants’ pleadings. It is misleading to suggest that evidence must first be adduced before the issue can be determined. Further reliance was placed on counsel’s submission in paragraph 1.3 above, and paragraph 4.6 on page 4 and 5 of the Written Address in support of the defendant’s motion dated 30/10/2014. In paragraphs 4.4 of the claimants’ Address, the claimants/respondents raised the issue as to “whether the claimants first approached the court and consequently exercised their right of act against the defendant on the 7th July 2014” when this present suit was filed. In paragraph 4.6; the claimants/respondents argued that following their “Exhibit 1” (which is a mere application to be joined in a Suit No. OYHC/72/2009 which application was made on 21/3/12), they made the first move at exercising their right of action against the defendant. It is the submission of Counsel for the defendant/applicant that the claimants/respondents have failed to cite any statutory or case law authority which supports their position to the effect that an application for joinder (which was rightly refused and dismissed by the Rivers State High Court sitting at Oyigbo) is equivalent to an Originating process of court, and therefore a competent suit which will dilute the effect of the statute of limitation. The cases of Adediran vs. Interland Transport and Lead Merchant Bank vs. Salami cited by the claimants have no relevance to the issue that has arisen for determination in the present application. As regards Suit No. OYHC/72/2009, the claimants were neither parties thereto as they were neither the claimants therein nor the defendant. The Supreme Court in the case of Bello vs. INEC (2010) 8 NWLR (Pt. 1196) 342 @ 382 paras. C – G defined “a party” to a suit as “Persons whose names appear on the record as plaintiff or defendant.” See also the case of Fawehinmi vs. NBA (No. 1) (1989) 2 NWLR (pt. 105) 494 @ 550. By Order 2 Rule 1, of the Rules of this Court, “Subject to the provisions of the Act on transfer of suits, an originating process in respect of a matter in which the court has jurisdiction shall be filed in any registry of the court nearest to where the defendant or respondent resides or has presence or in which the defendant or respondent carries on business.” Order 1 Rule 3 thereof defines Originating Process to mean “a complaint or any other court process by which a suit is initiated”. Similarly, Order 3 Rule 1 of the Rivers State High Court (Civil Procedure) Rules, 2010 provides thus: 1. Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun by originating summons, originating motion or petition, a writ of summons shall the form of commencing all proceedings: a. Where a claimant claims: i. Any relief or remedy for any civil wrong or ii. Damages for breach of duty, whether contractual, statutory or otherwise To the defendant, the claimants/respondents have not shown that their application for joinder in Suit No. OYHC/72/2009 is a properly commenced suit, either under the rules of this court or that of the Rivers State High Court, against the defendant in exercise of their right of action or that they filed any other suit anywhere in compliance with the rules of this court or that of the Rivers State high Court. An application for joinder is not a mode of commencement of suit under the rules of both courts. Assuming in the unlikely situation that this court holds that an application for joinder to this court, the said application for joinder is a competent and full-fledged suit, Counsel submitted that in the absence of an order of the Rivers State High Court transferring the application for joinder to this court, the said application for joinder is distinct from the present suit and the issues raised in the present suit do not revive those of the application for joinder for the purpose of holding that the present suit was brought within the time allowed by the Statute of Limitation. Counsel submitted further that the claimants/respondents raising the issue of their failed/dismissed application for joinder in Suit No. OYHC/72/2009 before this court is tantamount to an attempt to call on this court to sit on appeal over the issue of joinder conclusively decided upon by the Rivers State High Court sitting in Oyigbo. This court lacks jurisdiction to hear appeals from decisions of State High Courts. The claimants/respondents argued in paragraph 5.2 that where a cause of action is concealed by fraud, the period of time for the computation of limitation period does not commence until the fraud is discovered. The case of Nwosu vs. Offor was cited. It was argued in paragraph 5.3 that a case of concealed fraud is one of the instances where limitation statute is made inoperative especially where the party defrauded remained ignorant of the fraud without any fault of his. The case of Arowolo vs. Ifabiyi was cited. The claimants/respondents also referred the court to some paragraphs of the Statement of Facts while concluding that the claimants/respondents were deceived into believing that their contract of employment was still running with the defendant. In this regard, Counsel for the defendant submitted that while agreeing that in the case of concealed fraud, time does not start to run against a Plaintiff until the fraud is discovered, the case of NWOSU vs. OFFOR and AROWOLO vs. IFABIYI are inapplicable here as there is neither fraud nor concealment of same in the instant case. It must not be forgotten that the pleadings of the claimants/respondents, that is, the complaint and Statement of Facts are the materials the court will look at in determining the question raised in this application, not their Counter Affidavit. A thorough look at the complaint and the Statement of Facts shows beyond doubt that fraud or fraudulent concealment was not pleaded in any manner anywhere in the said documents except the present attempt to make a fuss over same in the Counter Affidavit in opposition to this application which is an attempt to take the defendant/applicant by surprise. It is a trite principle of law that a party who seeks to rely on fraud must specifically plead same and furnish the particulars of the fraud in his pleadings. Reiterating this hallowed principle in the case EZENWA vs. OKO (2008) 3 NWLR (Pt. 1075) P. 610 @ 631 para. D. the Supreme Court per Onnoghen JSC held. “On the third issue which deals with fraud, it is trite law of practice and procedure that for one to rely on fraud in any case, he must first and foremost specifically plead same and in addition supply the particulars of the alleged fraud so as not to take the other party by surprise. Counsel referred the Court to the case of Ezekiel Okoli vs. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37 @ 61 – 62, paras. E – H. There is nowhere in the Statement of Facts where an allegation of (concealed) fraud was made neither is any particular of same pleaded. It is obvious that the claimants/respondents have decided to throw in the issue of concealed fraud as a spanner in the mill of justice with the intention of distracting this court from focusing on what is in issue in this application by raising same in their Courter Affidavit. The claimants/respondents cannot rely on concealed fraud to defeat this application as same is not pleaded in their Statement of Facts. Black’s Law Dictionary 8th Edition at page 306 defines fraudulent concealment as “the affirmative suppression or hiding, with intent to deceive or defraud, or a material fact or circumstance that one is legally (or, sometimes, morally) bound to reveal.” Assuming, without conceding that the claimants/respondents pleaded fraudulent concealment in their Statement of Facts, the claimant pleaded, in paragraph 39 of the Statement of Fact, a letter dated 21/01/2009 written by the defendant’s solicitor in reply to a letter previously written by the claimants’ solicitors. That letter dated 21/01/2009, which the claimants seek to rely on and consequently frontloaded and listed as no. 11 on the claimants’ list of documents is attached to the defendant’s further affidavit and marked EXHIBIT ZA1. A look at Exhibit ZA1 shows that before 21/01/2009 the claimants had full knowledge of the facts constituting the present claim in this suit. The defendant, by Exhibit ZA1 and without mincing words promptly denied all the claims made against it by the claimants in their letter of 23rd December, 2008 and made it clear that there was no breach of any contract it had with the claimants. By the same Exhibit ZA1, the defendant/applicant made it clear to the claimants that the claimants were not being owed and that they would not be reinstated. The last paragraph of page 2 of Exhibit ZA1 states that, “No worker was asked to go on compulsory leave. Workers were however disengaged at different stages of the contract depending on their level of expertise or need, since the contract at Okoloma is almost at an end. All disengaged workers have received their full severance benefits in accordance with the Collective Agreement or the GMOU. Therefore, there can be no reinstatement of workers. The workers engagement was never intended to be permanent since the contract was for a limited duration.” Fraudulent concealment of facts constituting cause of action cannot be alleged in the face of such clear and timely denial of liability in Exhibit ZA1. Exhibit 1 is therefore inconsequential and of no importance more so because Exhibit 1 did not allege any fraudulent concealment. Citing with approval the case of Akibu v. Azeez (2003) FWLR (Pt. 149) @ 1511, the Supreme Court held in the case of UBA v. BTL Industries Ltd (2007) 2 FWLR (Pt. 360) 1647 @ 1708 paras. B – D: “Apart from fraudulent concealment of right of action which itself furnishes a cause of action, knowledge cannot be said to be relevant. In order to constitute such fraudulent concealment as would, in equity, take a case out of the law of limitation, it is not enough that these should be merely tortuous acts unknown to the injured party or the enjoyment of property without title while the rightful owner is ignorant of his agent, there has to be some abuse of a confidential position, some intention at imposition, or even some deliberate concealment of facts.” It is left to be found in the present case how a party who wrote Exhibit ZA1, to deny claims made against it, could be said to have fraudulently concealed the existence of the facts constituting the cause of action in the present case. Assuming without conceding, that the claimants/respondents became aware of the facts constituting the cause of action on April 28, 2009 when Exhibit 1, purportedly served on the defendant, was written, the point still remains that the present suit is still statute barred as there is over a period of 5 years between April 28, 2009 and July 7, 2014 when the claimants/respondents filed this suit. Similarly, by the Statement of Facts, and to the knowledge of the claimants/respondents, the contracts over which the claimants allege breaches against the defendants were concluded in May 2009. Assuming without conceding that time began to run from the end of the contract in May 2009, the period between end of May 2009 and July 7, 2014 when this suit was filed is clearly more than 5 years. Thus, however it is looked at, the present action brought by the claimants is still caught by the limitation law and therefore the cause of action is dead having been extinguished by statute. Counsel urged the court to determine at this stage the question raised in the defendant’s preliminary objection and to uphold the prayers in the interest of justice and for the purpose of saving the time and energy of the court from being utilized in respect of dead claims filed by indolent litigants. Adumbrating with leave of court in response to fresh issues raised by the defendant in its reply on points of law, Counsel for the Claimants submitted as a preliminary point that it is a misconception for the applicant to come under section 16 of the Rivers State Limitation Law. He stated that this court cannot apply the Rivers State Laws for the determination of a matter brought before it. He said that this court is not enjoined by law to apply the Rules of the Rivers State High Court. He went on that the Rules of this court do not make room for demurrer proceedings which is what these proceedings are. He cited the case of NDIC vs. CBN (2002) 4 SCM 128 in aid of this point. According to Counsel for the Claimants, by filing this motion, the defendants intend to rely on the special defence of limitation. Such a defence must be specifically pleaded so as to put the Plaintiff on notice. On this point, counsel cited the following cases: ATILA vs. LAWAL (2005) All FWLR 278 Pg. 1158 @ 1169 para. D – F.; GEORGE vs. DOMINION FLOUR MILLS (1963) 1 All NLR 71; ADEKEYE vs. AKIN OLUGBADE (1987) 6 SCNJ 127; SHELL vs.AMADI (2011) All FWLR 608 Pg. 80 @ 102 paras. E – F To Counsel, special defence must be specifically proved. The era of technical justice is gone. The Court should hear the parties and decide according to the merits of the case. For the reason that the application is brought under a state law; and also for the reason of not pleading it as a special defence, Counsel urged the court to dismiss the application. In the event that the court rules otherwise, on the Claimant’s preliminary point; Counsel adopted the Claimants’ Counter Affidavit and Written Address on filed on 13th November 2014. Counsel adopted the arguments therein and urged the court to dismiss the application. With reference to the further affidavit of the defendant, Counsel for the Claimant drew the Court’s attention to the heavy weather made by the defence counsel, of who is a party to a suit with respect to whether the claimants are parties to the suit. He submitted that a party who applies to be joined in a suit is already a party to the suit. On this point, he cited the case of MAYA vs. OSUNTOKUN (2001) FWLR (Pt. 81) PG. 1777 @ 1800; BAMIGBOYE vs. CHIEF AWOYINKA (2002) FWLR (Pt. 113) pg. 396 @ 406; Augustine Nduluwe vs. Onyekwulunne (2002) 5 SCC (Pt. 2) pg. 1 @ 135. He submitted further that in law, a person can become a party to a pending suit under (3) three conditions:- 1. Having his name as plaintiff or defendant on the records 2. By reason of application for joinder 3. By court joining a party suo-motu. He cited in aid of this point, the cases of Emezi vs. Osuagwu (2005) All FWLR (Pt. 259) 1891 @ 1909 para. G; and Agbi vs. Ogbeh (2003) FWLR Pt. 169 pg. 1245 @ 124 para. B – C. He went on that reference to the Rivers State High Court Rules in page 5 of the reply on points of law is misconceived as it cannot apply to this court. Reacting to paragraph 2.4 of the defendant’s reply on points of law, Counsel for the Claimant submitted that in the case of Okoye vs. Niger Construction Ltd. (1991) 22 NSCC (Pt. 2) 422 @ 424, it was held that a court can declare its own judgment or that of a court of co-ordinate jurisdiction null and void. He urged the court to so hold. He urged the court to hold that the refusal to grant the application for joinder in Rivers State High Court was wrongly made; and he urged this court to set it aside and to dismiss this application with punitive cost. Counsel for the defendant applicant urged the court to distinguish between the cases cited by counsel from the facts of this case; and urged the Court to exercise its discretion in favour of granting the application. From the forgoing submissions of the counsels to the parties and having read the affidavits of the parties in respect of the application, a sole issue arises for determination. The issue is as formulated in the written address by the learned counsel for the defendant. I shall adopt the same issue in this ruling. It is: Whether the claimants’ action as constituted is statute barred and should be dismissed? The contention of the defendant in this application is that by virtue of 16 (1) of the Limitation Laws of Rivers State, this suit is statute barred and ought to be dismissed as the court lacks jurisdiction to continue to hear it. The facts founding the defendant’s application is as stated in the affidavit in support of the application. It is deposed that this suit was filed on 7th July 2014 while the claimants’ cause of action accrued on 5th September 2008. It is the claimants’ case that as employees of the defendant, they were sent on leave from the defendant’s employment on 5th September 2008 and the defendant refused to recall them till their contract with the defendant determined in May 2009. Therefore, the claimants’ cause of action and the time allowed by law for the claimants to file their case has elapsed. This court consequently lacks jurisdiction to entertain the suit and the effect is that the suit be dismissed. The claimants filed a counter affidavit to oppose the application. In the counter affidavit deposed by the 1st claimant, they denied the facts deposed by the defendant in paragraph 4 and 5 of the defendant’s affidavit. By this denial, the claimants are saying in effect that the cause of action did not arise on 5th September 2008; the time allowed for them to file their claim has not elapsed and this court does not lack jurisdiction to entertain their case. Further to the facts denied, the claimants averred they have tried to join suit OYHC/72/2009, which was filed by some other persons in respect of the same subject matter before the Rivers State High Court but their application to join the suit was refused. They averred also that the defendant played fraud on them by making them believe they were being retained for other projects thereby deceiving them from initiating a suit. According to the claimants, statute of limitation does not apply to cases of concealed fraud. Before I go on to determine the issue in this application, I find it necessary to address a vital issue raised by the claimants counsel in his written address. The learned counsel submitted in paragraph 4.1 to 4.3 of his written address that the grounds of this preliminary objection rest on facts, therefore, the preliminary objection cannot be properly determined until evidence is taken at the trial of those facts. Furthermore, during the hearing of the application on 2/2/2015, the learned counsel for the claimants argued that this application amounts to demurrer proceedings. According to counsel, since the defendant intended to rely on the special defence of limitation, such a defence must first be specifically pleaded. By failing to plead the limitation, the court should, among other reasons, dismiss the application. It has now been well settled that when it is contended by a party to an action that the action is statute barred, it is not necessary that the party must file a defence or evidence led in the matter before the issue can be determined. In GULF OIL CO LTD vs. OLUBA (2003) FWLR (Pt. 145) 712 at 721, it was held that recourse can be had to the writ and the statement of claim in determining if an action is statute barred without necessarily taking oral evidence. The same position was taken in DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1345 where it was stated that statute of limitation can be raised in limine without any evidence in support. From these authorities, it is clear that the question whether a suit is caught by statutory limitation is determined from the writ of summons and the statement of claim and not necessarily after defence has been filed or evidence has been led in the suit. I must also mention here that unlike the various High Court Rules which prescribe certain points of law, like the limitation law, to be specifically pleaded, the rules of this court does not have such provision. The implication is that parties before this court are not obligated to specifically plead a special defence or limitation of action before they can rely on it. Therefore, defence need not be filed before raising limitation. Furthermore, the ground of this preliminary objection is on the jurisdiction of this court to entertain this suit. By Section 16 of the Rivers State Limitation Law, actions commenced beyond 5 years of the accrual of the cause of action can no longer be entertained by the court. The provision clearly touches on the jurisdiction of this court to determine this matter. Such an issue of jurisdiction can be raised at any stage of proceedings, even before filing defence. Jurisdiction is a fundamental requirement in the adjudicatory process and a court must have jurisdiction before it can hear a matter or make any binding decision on it. It does not matter at what stage of the proceedings the objection to jurisdiction was raised or by which method. Once the issue of jurisdiction of court is raised, it must be decided at that stage before the court can proceed any further in the matter. See MUSA vs. MADWETTE (2008) All FWLR (Pt. 421) 937 at 947; KWARA POLYTECHNIC vs. OYEBANJI (2008) All FWLR (Pt. 447) 141 at 177. It is for these reasons I will discountenance the argument canvassed on this point by the claimants counsel. It is my view that this application has been properly brought. Section 16 (1) of the Limitation Laws of Rivers State reads thus: “No action found 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 arose”. The provision of the above law is very clear. It is to the effect that actions founded on contract are statute barred if they are not instituted within 5 years of the accrual of the cause of action. Such suit instituted outside the time stipulated by the limitation law cannot be entertained by the courts. By the provision, this action, which is founded on contract of employment, ought to be commenced against the defendant within five years of the accrual of the cause of action. Let me digress a little to recall the submission of the claimant’s counsel during the hearing of this application on 2/2/15 where he contended that this court cannot apply a Law of Rivers State. It appears to me his contention is that this court, being a Federal Court, cannot apply a State Law in proceedings before it. One of the functions of every court is to interpret and apply laws, whether State Law or Federal Law. The basis on which the court will apply such law in the proceedings will be that the law is applicable to any of the issues in the case. The limitation law relied upon by the defendant in this application is a law applicable in Rivers State and the contract between the parties was performed in Rivers State. That is also where the cause of action arose. Therefore, the law of the place of contract applicable to the parties is the Laws of River State. Be that as it may, the judicial powers granted to this court in section 6 (6) of the 1999 Constitution (as amended) and of course to all the courts established under the section, extends to the application of all statutes or legislations in so far as it relates to the determination of the questions submitted for the adjudication of the court. This is an elementary principle of law. I therefore find the submission of the learned counsel to the claimant illogical. In view of 16 (1) of the Limitation Laws of Rivers State, is this suit statute barred? In determining whether this action is statute barred, there is the need to determine when the cause of action arose and when this suit was filed. The defendant, in paragraph 3 (a) and 4 (a) of the affidavit in support of the motion, deposed to the fact that the claimants filed this suit on 7/7/2014 while their cause of action arose on 5/9/2008. The claimants on the other hand have not disputed the date this suit was filed but they generally denied the applicability of statutory limitation to their action. In actual fact, when the court is to determine whether a suit is statute barred, the processes to which recourse should be had are the writ and the statement of claim. It is from these processes the date of accrual of the cause of action and the date the suit was filed can be deduced. See the Supreme Court cases of JSF INV. LTD vs. BRAWAL LINE LTD (2011) All FWLR (Pt. 578) 876 at 902; ELEBANJO vs. DAWODU 2006 All FWLR Pt. 328 604 at 646. In AMEDE vs. UBA (2009) All FWLR (Pt. 469) 479 at 506/507, the principle was stated this way- “In order to determine if a party’s action is statute barred, the court is only enjoined to look at the plaintiffs’ claims. The period of limitation is determined in a case by looking at the writ of summons and the statement of claim which alleges when the wrong suffered by the plaintiff was committed and placing it side by side with the date on which the writ was issued”. Accordingly, I have examined the complaint and the claimant’s statement of facts in order to ascertain the date on which the claimants’ cause of action accrued and when this suit was filed. I shall resolve the date of the claimants’ suit first. There appears not to be any dispute between the parties as to when this suit was filed. It is clearly disclosed on the complaint that this suit was filed on 7/7/2014. The claimants have however contended that the date of this suit should not be used in determining the date of their action against the defendant. According to the claimants in their deposition in paragraph 6 (ii) of their counter affidavit, they first exercised their right of action on 21/3/2012 when they attempted to be joined in suit No OYHC/72/2009. In his written address, the claimants’ counsel argued that the claimants having duly exercised their right of action against the defendant on the 21st March 2012, it should be considered in determining the question as to when the claimants first exercised their right of action against the defendant in respect of the breach of contract. It appears to me the claimant’ counsel is suggesting that the question of when the claimants filed a suit against the defendant should be considered by the date of their application for joinder in suit OYHC/72/2009 and not by the date of this suit. The claimants’ position in respect of suit OYHC/72/2009 has been disclosed in paragraph 4 of their counter affidavit. It is shown in this paragraph that they filed an application to be joined in the pending suit which was in respect of the same subject matter but on 22/5/2014, their said application was refused. That being the case, it is thus clear they were not the ones who initiated suit OYHC/72/2009 against the defendant and the refusal of their application to join the said suit means that they were never parties to that suit. An application seeking leave of court to be joined in a suit is not an Originating process and it does not make the applicant a party to the suit until the court makes the order joining the applicant as a party to the suit and their names appear on the record as plaintiff or defendant. See Bello vs. INEC (2010) 8 NWLR (Pt. 1196) 342 at 382; Fawehinmi vs. NBA (No. 1) (1989) 2 NWLR (Pt. 105) 494 at 550. During the hearing of this application on 2/2/15, the claimants counsel further urged this court, in his oral submission, to set aside the order of the Rivers State High Court refusing their application to join suit OYHC/72/2009. That prayer of the learned counsel is tantamount to asking this court to sit on appeal over the order of the Rivers State High Court, a court of co-ordinate jurisdiction to this court. I need not expend time on the point. Besides that, there is no fact shown in this application to support the prayer to set aside the order of the Rivers State High Court, the learned counsel for the claimants should note that this court does not have that jurisdiction to sit on appeal over the judgment or orders of a court of co-ordinate jurisdiction, let alone set same aside. See AGWU vs. JULIUS BERGER NIG PLC (2012) All FWLR (Pt. 653) 1852 at 1893; UWAIFO vs. GOVERNOR, LAGOS STATE (2008) All FWLR (Pt. 417) 184 at 193. The facts are clear that the claimants were at no time parties to suit OYHC/72/2009. Consequently, the first exercise of the claimants’ right of action against the defendant in respect of the alleged breach of the contract of employment by the defendant is this suit instant suit. Therefore, this application will be determined from the date of this suit. As to when the claimants’ cause of action arose in this suit, the defendant contends that it arose on 5/9/2008 but the claimants deny that fact. The claimants however did not state any other date in which their cause of action arose. As I have earlier mentioned in this ruling and by the authorities cited in that regard, the question as to when the cause of action arose in this case can only be determined from the Complaint and the Statement of Facts. I have read the claimants statement of facts and these facts are necessary for the issue under consideration. The claimants were employed by the defendant between 2006 and 2007 as technicians. Upon their employment, they entered into a “consultant agreement” with the defendant, which agreement was later overtaken by a collective agreement titled “memorandum of collective agreement” in 2008 under which they were entitled to various sums. Their contract of employment with the defendant was to end in December 2009. Paragraphs 22 to 26 becomes instructive at this point. It is averred in these paragraphs that by a memo dated 5/9/2008, the defendant directed the claimants to proceed on leave, which leave was ordinarily to last 21 working days. After the 21 days, they reported to work but the defendant’s officers on the site informed them that their leave has not expired and assured them that their salaries will be paid. Based on this assurance, they went home to wait for their salaries and allowances. In their subsequent visits to the defendant’s office, they discovered that the defendant was winding up its contract but the defendant continued to assure them of payment. But up till May 2009 when the defendant concluded its contract, it did not pay the claimants their salary from September 2008 to May 2009. It is on these facts that the claimants claim, inter alia, for their salaries for the period. In AMEDE vs. UBA (SUPRA) at 507, it was held that the test of determining when a cause of action accrues is when it can be said or where there exists a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed. The same view was held in DAWODU vs. AJOSE (2011) All FWLR (Pt. 580) 1334 at 1348 where it was stated that- “Time begins to run for the filing of an action when the cause of action arose. This means that once there exists two people with interests at variance to each other over a subject matter, then the aggrieved party must go to court timeously” Also in ACCORD PARTY vs. GOVERNOR OF KWARA STATE (2011) All FWLR (Pt. 555) 220 at 277, it was held that – “A cause of action cannot be said to accrue to the appellant unless and until there emerges a factual situation which gives her a right of action”. From the facts of the claimants pleading set out above, it is their case that they proceeded on leave on 5/9/2008 and the leave was to expire 21 days after. That is to say, the claimants were to resume work on the 27th September 2008. According to them when they went back to work after the leave, they were told not to resume work and that their salary for that month was not paid. The claimants ended up not being called to resume work till the defendant’s contract ended in May 2009. Their salaries up to May 2009 were also not paid. From the facts, there is no gainsaying that the claimants’ cause of action arose on the day their leave expired and the defendant refused to allow them back to work and to pay them their salary for the month of September 2008. The claimants have however, in their counter affidavit, raised the issue of fraudulent concealment, whose effect will be to take the date of the accrual of the claimants’ cause of action beyond the date they were not allowed to resume from their leave. It is deposed in their counter affidavit that the statute of limitation does not apply to cases of concealed fraud. The claimants alleged in paragraph 5 of their counter affidavit that the defendant played fraud on them by deceiving them that they were being preserved for other jobs. In emphasizing this point, their Counsel argued in paragraph 5.2 that where a cause of action is concealed by fraud and the party defrauded remains in ignorance of the fraud without any fault of his, the period of time for the computation of limitation period does not commence until the fraud is discovered. He cited NWOSU vs. OFFOR and AROWOLO vs. IFABIYI in support. To counsel, the claimants were deceived into believing that their contract of employment was still running with the defendant by the defendant’s promise that they will be retained for other contracts. Upon a reading of the claimant’s statement of facts, it is found that they did not specifically plead fraud or fraudulent concealment. However, they pleaded that the defendant kept deceiving the claimants by promising to retain them and pay them when it knew its contract ends in May 2009. That is why counsel submitted that fraud has been defined as an action or conduct in a representation recklessly made without any belief in its truth; but made with the intention that the person receiving that misrepresentation should act on it. The question arising from this argument is: whether the claimants’ reliance on fraudulent concealment exempts the application of the limitation law in the suit? It is trite that statute of limitation will not apply in cases of concealed fraud but before a party can rely on fraudulent concealment it has to be shown that he was not aware of the conduct of the other party and was not guilty of delay in bringing the action upon becoming aware of the facts. This principle was applied in AROWOLO vs. IFABIYI (SUPRA) relied on by the claimants. The transaction between the parties in that case took place in 1978 and after the respondent had repaid the loan to the appellant, the respondent consistently made demands for the return of his documents from the appellant without success. It was in June 1987 when the respondent threatened to report the matter to the police that the respondent learnt for the first time that the appellant had used the documents to raise a loan for himself. Hence the respondent filed that action. The Supreme Court held at page 313 as follows- “It is clear that the respondent only became aware for the first time in June 1987 that the appellant surreptitiously and fraudulently made use of the respondent’s title document to mortgage the respondent’s house for a loan from the 2nd defendant bank. The respondent, exactly three months thereafter, filed the present action against both the appellant and the 2nd defendant bank. It seems to me clear under such circumstance that in equity, no length of time can be a bar to relief particularly in a case, such as the present, where concealed fraud is involved and no laches on the part of the party defrauded”. In this instant case, I find a different situation from the Arowolo case. The facts pleaded in paragraphs 29 to 32 of the statement of facts show that between March and May 2009, the claimants were aware that their interest in the defendant was being affected. It is shown in these paragraphs that the claimants’ regular visits to the defendant’s site revealed that the defendant’s contract will end in May 2009 and when they noticed the defendant disengaging its staff and paying them off, they became apprehensive and protested to the defendant’s Managing Director. When they got no response nor were paid, they attempted to join suit OYHC/72/2009 filed by one of their colleagues in respect of the same subject. It is clear to me that before May 2009, the claimants had become aware that they were being deceived. In its further affidavit, the defendant referred to a letter written by it in reply to the letter written by the Law firm of Festus Keyamo marked Exhibit ZA1. The claimants too have pleaded this letter in paragraph 39 of their statement of facts. A look at Exhibit ZA1 shows that by the date of that letter, dated 21/01/2009, the claimants had full knowledge of the facts constituting their claims in this suit. They should have approached the court immediately but they didn’t. It is their case that the defendant’s contract ended in May 2009; which suggests that whatever fraudulent concealment the defendant allegedly put up terminated with the cessation of the contract in May 2009. But the claimants waited till June 2014 to file this action. I find that the claimants were not only aware of the facts constituting the alleged fraudulent concealment; they were also grossly guilty of delay in bringing an action since becoming aware of the facts. Between May 2009 to June 2014 when this action was filed is a period of more than 5 years. In this situation, the plea of fraudulent concealment will not avail the claimants. See UBA PLC vs. BTL INDUSTRIES LTD (2007) All FWLR (Pt. 352) 1615. From the foregoing, the fact still remains that the factual situation which entitled the claimants to exercise their right of action against the defendant in respect of their present claims commenced on the day they resumed work from leave and they were disallowed from work. The time started counting against them from that day. From the time the claimants’ cause of action arose and the time this suit was filed, it is clearly more than a period of 5 years. It is in view of this fact that the defendant has contended in this application that the claimant’s suit is statute barred in view of section 16 of the Limitation Law of Rivers State 1999. By the application of section 16 of the Rivers State Limitation Law, the claimants’ suit is clearly statute barred. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action which is not brought within the prescribed period offends the provision of the law and does not give rise to a cause of action. Hence, when an action is statute barred the claimant who might have a cause of action, losses his right to enforce the cause of action by judicial process because the right has been extinguished by law. See AJAYI vs. ADEBIYI (2012) All FWLR (Pt. 634) 1 at 21; ELABANJO vs. DAWODU (2006) All FWLR (Pt. 328) 604. The right of the claimants to any relief in this case has therefore been extinguished by law. In the final analysis, it is clear from the facts of this application that this suit was filed more than five years from the date the cause of action arose. The claimants’ cause of action arose on 27/9/2008 when the defendant did not allow the claimants resume work, having expended their 21 days leave period but the claimants did not commence the present action until 7/7/2014, a period of about 5 years and ten months since the cause of action arose. The claimants did not institute this action against the defendant within the statutorily prescribed period. Consequently, this suit is statute barred and this court lacks jurisdiction to determine same. The appropriate order to make in the circumstance is to dismiss the suit. Accordingly, the claimants’ suit is hereby dismissed, having become statute barred. Parties are to bear their costs. Ruling is entered accordingly. Hon. Justice O. Y. Anuwe Judge