IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HONOURABLE JUSTICE S. A. YELWA

THIS 29^TH DAY OF APRIL, 2024.

SUIT NO NICN/LA/270/2022

 

BETWEEN:

NDIDIAMAKA FELICIA UMEH………………..CLAIMANT/RESPONDENT

AND

UNITED BANK FOR AFRICA………………..DEFENDANT/APPLICANT

 

RULING:

By a preliminary objection dated 1^st day of August; 2022 and filed on the 11^th day of August; 2022 the applicant prays this Honorable court for:

AN ORDER of this court striking out this suit on the ground that this suit is statute barred.

The grounds upon which this objection is premised are as follows:

a)    That the claimant in this suit lacks the Right of action to institute this suit before this court; and

b)    That this court lacks the jurisdiction to hear and determine this suit on the ground that the claimant’s suit is incompetent.

The applicant indicated on the face of the objection that at the hearing of the preliminary objection, he shall place reliance on the originating processes filed, particularly the general form of complaint, statement of facts and the frontloaded documents dated 1^st July; 2022 respectively.

 

2.  The preliminary objection is supported by a 6 paragraphs affidavit deposed to by one Anuoluwapo Adedoja of the Human Resources Department of the Defendant/Applicant and same is also accompanied by a written address filed along with. While moving the preliminary objection, counsel adopted the written address as his oral argument. In his written address, 2 issues were raised for the determination of the objection as follows:

A.   Whether the suit of the claimant as presently constituted is statute barred. And

B.    If this issue is answered in the affirmative; whether the claimants suit being statute barred has rendered this suit incompetent and consequently robbed the court of jurisdiction to hear this suit.

 

3.  Learned counsel while submitting on the first issue relied on section 8 of the  Limitation Law of Lagos State, 2015 and maintained that in an action for a simple contract, the limitation period within which to bring an action is 6 years whereas a perusal of the originating process of the claimant reveals that the crux of this matter is the purported breach of contract of employment between the claimant and the defendant which occurred on the 11^th June, 2009 which is a period of over 13 years ago.

 

4.  Counsel cited the Supreme Court case of FROZEN FOODS (NIG) LTD & ORS V. ESTATE OF OBA JOHN AGBOLA OJOMO & ORS (2022) LPELR -57815 (SC) as well as MILITARY ADMINISTRATOR OF EKITI STATE V. ALADEYELU (2007) 14 NWLR PT 1055 P619, WILLIAMS V. WILLIAMS (2008) 10 NWLR PT 1095, OKAFOR V. BENDE DIVISION UNION BRANCH 300 (2017) 5 NWLR PT1559 P385 at422 per JOHN INYANG OKORO (JSC) where counsel quoted the lengthy pronouncements of the  Learned Jurist in his written address in an effort to show that the case of the claimant as it is constituted is statute barred.

5.  It is the submission of Counsel that based on the facts and decisions in the above cited cases and the claimant having brought this case against the defendant 13 years after the cause of action arose, the claimant lacks the right to institute same as her claim becomes statute barred consequent upon which the suit to be struck out.

 

B.   On the second issue; Counsel submitted that the suit filed by the claimant having been a statute barred the situation has rendered this suit incompetent and has consequently robbed this Honorable Court of the jurisdiction to entertain same. Counsel referred this court to the case of MADUKOLU & ORS V. NKENDILIM (1962) 2 SCNLR 341 per VAHE ROBERT BAIRAMIAN JSC at pages 9-10 and submitted on the factors that warrant a court of law to exercise jurisdiction in a matter brought before it.

 

6.  Counsel submitted that this suit as currently constituted has a feature which is preventing this court from exercising jurisdiction over, as the claimants right of action to institute this suit has since elapsed and the claimant cannot put something on nothing. Finally, counsel urged this court to strike out this suit on the ground that the claimant has lost the right to institute the instant action and the court lacked the jurisdiction to hear and determine same.

 

7.    The claimant while opposing the preliminary objection filed 8 paragraphs counter- affidavit deposed to by Ms Ndidiamaka Felicia Umeh who is the claimant herself in this case. Accompanying the counter affidavit is the written address of the claimant dated 25^th January 2023 and filed the same day. In it, counsel rose a sole issue for determination to wit: Whether the claimants suit herein is statute barred”

While reacting to the preliminary objection, counsel adopted his  accompanying written address and further submitted that this Honorable court in a number of cases before it, in recent decisions in suit NO. NICN/LA/553/2018 Between MR GODSON IKECHUKWU  NKUME V. FIRST BANK OF NIGERIA PLC and SUIT NO. NICN/LA/402/2018 Between LILIAN NNENNA AKUMAH V. FIRST BANK OF NIGERIA, PLC  made a radical departure from this age- long law that the defendant/ applicant has relied upon when it  held that contracts of service were no longer subject to

Limitation Laws.

 

8.  Counsel further contended that The National Industrial Court  of Nigeria in coming to its position as above, relied on the case of the Supreme Court in NATIONAL REVENUE MOBILIZAZTION ALLOCATION & FISCAL COMMISSION 7 & ORS V. AJIBOYE JOHNSON & ORS (2019) 2 NWLR  PT 1656 P 247 at 270-271.  Moreso, counsel submitted that the above cases decided by this court that contracts of employment are no longer subject to statute of limitation now represent the position of the law.

 

9.  With regards to the second issue for determination raised by the applicant in this matter, counsel for the claimant submitted that in resolving jurisdictional issue, the Supreme Court emphatically held that whether it is the Public Officers Protection Act or Limitation Law of Lagos State that is being resorted to whether Federal enactment or state law that the law stands side by side as not statute barred in so far as it relates to limitation of action in contract of employment.

 

10.  Counsel further submitted that assuming, but not conceeding  the case boarders on the limitation law of Lagos State, he said the case of the claimant is instituted within the time of 6 years period in view of the certified true copies of the judgment of the High Court of Lagos State discharging the claimant on 28/2/2017 and that of the Court of APPEAL discharging  the claimant on 23/3/2018 and the solicitors letter of demand of 17/12/2021.

 

11. Consequent upon the filing of the claimants counter -affidavit, the defendant filed a 5 paragraphs further affidavit on the 6/2/2024 which depositions therein was sworn to by Dayo Abe who is a litigation clerk in the Law Firm of Babafemi Akinsete & co. counsel to the defendant/applicant. This is also accompanied by a written address to wit, counsel, in reaction adopted the written address wherein counsel submitted that the earlier contention of the counsel for the claimant that limitation laws do not apply to contract of employment based on the Supreme Court judgment in NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION is incorrect and misconceived as the Supreme Court never decided such. He submitted that a case cannot be a precedent for another except the facts or principles of law are similar. Counsel cited THOMAS V. FEDERAL JUDICIAL SERVICE COMMISSION (2016) LPELR 48124 SC and UDO V. STATE (2016) LPELR-40721 (SC.) Counsel contended that in all instances, the Supreme Court is mindful of the overall purpose of

 the Public Officers Protection Act having held that the public officers protection Law is to protect officers in civil liability for any wrong doing that occasion damages to any citizen if the action is instituted within 3 months after the act. Counsel submitted that this court is not bound by the decisions in those cases cited as they are decided by this court and they are only of persuasive effect.

 

12.  Counsel stated that the argument profered by the claimants counsel to the effect that the suit was filed within time in view of the decisions of High Court Lagos and Court of appeal is misconceived as it is trite law that limitation period will begin to run from when the cause of action crystalized and he relied on the case of STATOIL (NIG) LTD V. INDUCTION (NIG) LTD no citation was supplied. And finally, this court was urged to strike out this case for being statute barred.

 

13.    COURTS DECISION:

I have carefully read the processes that gave rise to this matter along with the statement of material facts and statement of defence of the defendant. I have also listened to the submissions of counsel on both side in this matter and in determining this matter, I will adopt the lone issue for determination formulated by the claimant counsel to wit:

 

14.  “Whether the claimants suit is statute barred”

The defendant/applicant argued that the claimant’s suit dated 1^st July, 2022 and filed on the 11^th August, 2022 as it is constituted be struck out on the ground that it is statute barred and that being so, the suit is incompetent. Counsel maintained that once this suit is found to be statute barrred , this court would not have jurisdiction to entertain the suit rather he sought for an order of striking out the suit for being incompetent and want of jurisdiction.

15. It is clear that both counsel in this matter argued their respective positions from the perspective of “statute barred and jurisdictional or competence of this Honorable court. The applicants counsel submitted that the claimants suit which is based on the purported breach of contract by the defendant is statute barred and that the claimants right to institute this suit before this court has since elapsed. He hinged and supported his position with the provision of section 8 of the Limitation Law of Lagos State, 2015 where in an action for simple contract, the limitation period within which to bring an action to court is 6 years.

16.   Counsel contended that a perusal of the claimants originating process reveals that the crux of this matter is the purported breach of contract of employment between the parties which occurred on 11^th June 2009 which is a time of over 13 years. I have looked very closely not only the date of filing the suit, but noted the nature of the suit. The suit therein is of course one of a contract of employment and the claimant holds the terms favorable were breached hence the filing of the suit in this court.

17.  I agree with the submission of the claimant’s counsel that the suit is one of breach of contract of employment and on the basis of the cases cited in his submissions I’m of the firm view that section 8 of the Lagos State Limitation Law just like section 2 of the public officers protection Act shall not apply to defeat the case at hand. Over the time recent, this court in its numerous decisions which follow the Supreme Courts decision in the case of NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION & ORS V. AJIBOLA JOHNSON & ORS supra has maintained that suits that are within the context of contract of employment/service are not subject to limitation laws in terms of instituting an action in court.

18.  I do not agree with the submissions of learned counsel for the applicant with respect to the cases he cited hence these cases are those that were basically decided on the basis of or out of civil claims simpliciter rather than matters of contract of employment.

19.  It is not out of place that before July, 2019 courts were unanimous that suits instituted outside the period stipulated by limitation laws were most likely to be struck out or dismissed as was the position in the case of IBRAHIM V. JUDICIAL SERVICE COMMISSION (1998) 14 NWLR PT584 P1. However, the position of the law has been shifted after the decision in the case of NRMAFC & ORS V. AJIBOLA JOHNSON (supra) by which the Supreme Court was emphatic that the limitation of action does not apply to contract of service.

20.  In the recent times, labour jurisprudence is fast developing.  This suit NO. NICN/LA/270/2022 cannot be defeated by the application of section 8 of the Limitation Law of Lagos State. See similar holding in this courts ruling in LILIAN NNENNA AKUMAH V. FIRST BANK OF NIGERIA PLC. Suit NO. NICN/LA/402/2018 delivered on 10/10 2019 as per Dr. I.J.Essien (J)

21.  From my analysis above I have no hesitation to hold that this suit as it is constituted is not statute barred by virtue of the time and circumstances of its filing. It is not statute barred and this court is competent to hear same. Accordingly, the preliminary objection lacks merit and same is hereby dismissed.

 

Ruling is accordingly entered.

 

…………………………………………………………………….

HONOURABLE JUSTICE S. A. YELWA.

(JUDGE.)