IN THE NATIONAL INDUSTRIAL COURT Of NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP, HON. JUSTICE (Dr) l. J. ESSIEN

DATE: 10th October, 2019

     Suit No NICN/LA/402/2O18

BETWEEN

LILIAN NNENNA AKUMAH ----------------------------------------- CLAIMANT

AND

FIRST BANK OF NIGERIA PLC. ---------------------------------- DEFENDANT

 

                                                                        RULING.

The defendant/applicant counsel by a notice of preliminary objection brought pursuant to section 8(1) (a) of the Limitation Law Cap L67 Laws of Lagos State 2003, sought an order of this court dismissing and or striking out this suit in limine and declining jurisdiction to determine this suit on the following grounds:

 

a.      That the cause of action is irreparably statute barred having been extinguished pursuant to Section 8 (a) of the Limitation Law. Cap.  L67, Laws of Lagos State, 2003.

b.        That the writ of summons dated 27th July 2018 is not signed by the Claimant or a legal practitioner thereby rendering this suit incompetent.

The grounds upon which the application is predicated are that;

i)                  By the averments of the claimant as contained in her writ of summons and statement of facts. Her cause of action is rooted in an alleged unlawful termination of her employment contract with the Defendant by a letter dated 21st October 2008 and alleged refusal to pay her purported benefits. And that by virtue of the express provisions of 8 (1)(a) of  the Limitation Law of Lagos State, the limitation period for commencing this suit elapsed on or about the 21 October 2014 and the claimant’s cause of action accordingly became extinguished and barred with effect from that date thereby depriving this Honourable Court of the jurisdiction and competence to entertain this suit.  

ii)                The Respondent writ of summons dated 27th July, 2018 being her originating process is not howsoever signed by the claimant or a legal practitioner

At the hearing of the application the 2nd prayer and the grounds in support was withdrawn and accordingly struck out. The application is supported by the applicant’s counsel written address filed along with the origination process.

 

In response to the preliminary objection, the claimant counsel with the leave of court filed a reply/written address to the notice of preliminary objection on the 4/2/2018. On the 16/7/2019, counsel un-behalf of the parties canvased their respective positions before the court.

 

ISSUES FOR DETERMINATION.

From the grounds upon which the preliminary objection is predicated, two issues will be determined in this ruling to wit:

 

(1)  Whether the cause of action in the suit is statute barred by virtue of section 8(1) (a) of the Limitation of Action Law, cap L67, Laws of Lagos State 2003.

(2)Whether the writ of summons was not signed by the claimant counsel and if so, whether this can render the suit incompetent.

 

ON ISSUE 1.

 In his written address, the defendant/applicant counsel argues that so long as the claims of claimant as revealed in the particulars of claim is rooted in the alleged unlawful termination of contract vide the letter of termination dated 21/10/2008, the cause of action is caught up by the provision of section 8(1)(a) of the Limitation Law of Lagos state. Counsel argued and cited the case of Asepo V. Cotecna Destination Inspection Ltd. [2015]63 N.L.L.R. 400, stating that the court has to look at when the cause of action arose and when this action was filed in court in order to determine whether it is within the 6 years allowed by the Limitation of Action law of Lagos State. He argued that the claimant cause of action accrued on the 21/10/2008, while the claimant instituted this suit on the 27/7/2018 i.e. four years after the claimant ought to have instituted this action thereby making the action to be statute barred. Counsel relied on the case of Diyaolu V. Oando PLC. [2015]54 N.L.L.R. 397 and urged the court to dismiss the action.

 

In his written submission the claimant counsel argued that S. 8(1)(a) of the Limitation law of Lagos State applies to simple contract, and the contract between the parties in this action is not a simple contract having regards to letter of appointment of the claimant dated the 22/8/1988. He argued that unlike a simple contract which is not made by deed or made orally or in writing rather than a contract under seal, the letter of 22/8/1988 has all the trappings of a contract under seal as it has the seal of the defendant on it. It is signed by the claimant and it is witnessed by referees. He relied on Black’s Law Dictionary and argued that a simple contract is a contract not made by deed which may be implied by evidence of the conduct between the parties. He posited that a simple contract is a contract that is not signed as a deed. He argued that the letter of offer of employment of the claimant dated 22/8/88 is a formal contract. That there is a seal of the defendant on the letter, both parties signed thereon and it is witnessed by three witnesses expressly stated as referees.

I have carefully considered the argument of counsel for the parties on this issue, I have also carefully examined the letter of offer of appointment dated the 22/8/88. From the nature of the letter one cannot say that that the contract of employment between that parties can be termed as a simple contract. the format of the execution of the contract of employment can only draw an irresistible conclusion that the contract is a formal contract and one which has the effect of one being under seal, the mere fact that the bank failed to execute its own portion of the contract does not affect the character of the contract contemplated. Therefore, the provision of S. 8(1)a of the Limitation Law of Lagos State,  has no application to the contract of employment between the parties in this action. Having said this, the defendant counsel has argued that this present action is statute barred and should be dismissed. I have carefully considered the argument of the defendant counsel on this issue. While I agree with learned counsel that before July 2019 the decisions were unanimous that as regards limitation of action law, where an action is instituted outside the period stipulated for an action to be instituted such action is likely to be dismissed, see the case of Ibrahim V. Judicial Service Commission [1998] 14 NWLR (pt 584) pg.1.  However the position of the law has since changed after the decision in the case of NRMAFC & 2 ORS V. Ajibola Johnson [2019]2 NWLR (pt. 1656) 247 at 270-271 the Supreme Court was emphatic that limitation of action does not apply to contract of service. The defendant counsel has tried to argue that the above cited Supreme Court decision does not apply to the present case because it was decided based on the S. 2 (a) of the Public Officers Protection Act. While the present case, is considered under S. 8(1) a, of the Limitation Law of Lagos State. That distinction is neither here nor there. Both statutes are statutes of limitation of action. The subject matter of what they deal is contract of employment Therefore both statutes stand side by side in so far as it relates to limitation of action in contract of employment. While one is a federal enactment the other is a state law. The decision of the Supreme Court on any of the statute must of necessity guide a court of record in the application of any of those enactment on the subject matter of limitation of action in contract of employment. It is for this reason that the distinction sought to be made by the defence counsel is hereby discountenanced.  In the case of Ajao V. Permanent Secretary Ministry of Economic Planning Budget Civil Service Pensions Office & Anor [2016] LPELR 41407 (CA), the Court of Appeal held that limitation of action does not apply to pension claims as well as contract of service. Part of the reliefs of the claimant in this suit relates to claims in respect of the mandatory contribution fund operated by the defendant for the benefit of its employees. This claim is a pension claim. On the strength of the above authority, this action cannot be defeated by S. 8(1)a of the Limitation Law of Lagos State.  For the above reason stated in this ruling this issue is hereby resolved in favour of the claimant respondent. The objection on this grounds fails and is hereby dismissed.

 

ON ISSUE 2

‘Whether the writ of summons was not signed by the claimant counsel and if so, whether this can render the suit incompetent’.

 

On this issue it is the contention of the defendant counsel that the suit as presently constituted is  grossly incompetent, due to the claimant’s legal practitioner failure to sign the writ contrary to the provision of Order 3 Rule 10, paragraph c (i) which states: ·’the complaint shall be signed by the party to the proceedings or by such party’s legal practitioner’ He argued that an unsigned writ is fundamental and goes to the jurisdictional competence of the court. He urged the court to dismiss/strike out the suit.

In his response the claimant counsel argued that from the nature of Form1 ie the writ, it only makes provision for the signing of same by the Registrar who is the only person with the power to command the appearance of a party named in the writ. That the signature of the claimant is not necessary for the validity of the writ. He argued that the duty to issue the writ is not that of the claimant, but the registrar of court. He argued that the writ was properly commenced when the appropriate fees was paid to the court. He urged the court to discountenance the objection of the defence counsel.

I have carefully considered the argument put forward by learned counsel for the parties in this suit. Order 3 Rule 10 paragraph c (i) of the National Industrial Court Civil Procedure Rules 2017 provides, ‘The complaint shall be signed by the party to the proceedings or by such party’s legal practitioner’. While compliance with the provision of the rules is expected of counsels who file a complaint un-behalf of their client, Order 3 Rule 10 c(i) is subject to the general provision of the rules of this court governing non compliance with the provision of the rules of this court. To this effect, Order 5 Rule 1 provides ‘Failure to comply with any of these rules may be treated as irregularity and the court may give any direction as it thinks fit’

The contention of the counsel to the defendant here is that failure to sign the complaint by the claimant counsel is fatal to the complaint and affects the competence of the court to assume jurisdiction over this matter. This position cannot be the intendment of the rules of this court in view of the Order 5 Rule 1, of the rules of this court. I have examined the complaint filed by the claimant counsel, though the format for form 1, is such that there is no express column which the claimant counsel is required to sign the form of complaint, however the practice has been for the claimant counsel to endorse his signature across his name at the portion which indicates the legal practitioner taking out the writ or complaint un-behalf of the claimant. It is the opinion of this court that the failure to endorse counsel signature cannot be fatal to the complaint. This is so because such non-compliance will be cured by Order 5 Rule 1, and would be treated as an irregularity which the court is given the powers to deal with it, by giving directions as the court may deem fit under the circumstances. I have also noted that all the other processes accompanying the form of complaint are endorsed with the signature of the claimant counsel. I cannot visit the sin of failure to append his signature on the form of complaint on the litigant (the claimant in this case). This I am emboldened to do because Order5 Rule 6(3) of the rules of this court which I see legal cover provides:

Order 5 Rule 6(3)

In any proceeding before it, the court shall apply fair and flexible procedure and shall not allow mere technicality to becloud doing justice to the parties based on law, equity and fairness while also considering the facts of any matter before it.

The objection of the defendant counsel on this issue being a technical objection  is without merit and must be discountenance. Having said this I hereby exercise the powers conferred on me by Order 5 Rule 1 and herefore direct that the claimant counsel to endorse his signature on the copy of the originating process in the court’s file and also on the copy served on counsel for the defendant.

 

On the whole this preliminary objection fails and it is hereby dismissed.

 

Ruling is entered accordingly

 

_______________________________

Hon. Justice ( Dr.) I. J. Essien

(Presiding Judge)