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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE IBADAN JUDICIAL DIVISION

HOLDEN AT IBADAN

 BEFORE HIS LORDSHIP HON. JUSTICE J.D. PETERS

 

DATE: 5TH MAY 2026                                                 

SUIT NO: NICN/IB/14/2021

 

BETWEEN:

Mr. Oyetunji Ajao                                          -                 -                 - Claimant 

 

AND

First Bank Plc -           -           -           -           -           -           -                              Defendants

REPRESENTATION

D. E. Durosaro for the Claimant

Sunday Ikeh Esq. for the Defendants

 

JUDGMENT

1.         Introduction & Claims

1.         The Claimant commenced this Suit by his General Form of Complaint dated and filed on 2/3/2021 along with a statement of facts, witness statement on oath, list and copies of documents to be relied upon at trial and sought the following reliefs -

1.          A          Declaration of this Honourable Court that the Claimant is entitled to be paid a sum of =N=1,917,083.04 (One Million, Nine Hundred and Seventeen Thousand, Eighty-Three Naira, Four Kobo) being sum of the Claimant's gratuity due from the Defendant. 

2.          An Order of this Honourable Court compelling the Defendant to pay to the Claimant, the sum of =N=1, 917,083.04 (One Million, Nine Hundred and Seventeen Thousand, Eighty-Three Naira, Four Kobo) being the sum due to the Claimant from the Claimant's gratuity and Contributions at the time of the Claimant's retirement from the service of the Defendant. 

3.          A Declaration of this Honourable Court that the Claimant is entitled and qualified under the early retirement scheme of the Defendant and consequently entitled to all the early retirement incentives of the Defendant as contained in the Defendant's handbook. 

4.          An Order of this Honourable Court compelling the Defendant to pay over to the Claimant the sum of =N=5, 998, 336.88 (Five Million, Nine Hundred and Ninety-Eight Thousand, Three Hundred and Thirty-Six Naira, Eighty-Eight Kobo being the Early Retirement Incentives benefit due to the Claimant at the time of the Claimant's retirement in 2008 as follows:

 

  1. Basic Pay payable Monthly                                     =N=703,458.00
  2. Leave (calculated as 12% of 

Annual Basic Salary                                                  =N=84,360.00

  1. 13th Month Salary payable in December             =N=58,621.00

Monthly Benefit for a year

  1. Domestic Allowance                                                =N=336,000.00
  2. Launch allowance                                                                 =N=223,278.00
  3. Medical Allowance                                                   =N=100,000.00
  4. Transport Allowance                                                            =N=504,000.00
  5. Club Subscription                                                                 =N=70,000.00
  6. Utility Allowance                                                                  =N=239, 400.00
  7. Entertainment Allowance                                                   =N=198, 450.00

Quarterly Benefits

  1. Education                                                                          =N=528, 482.00
  2. Location                                                                                =N=1,021,129.00
  3. Clothing                                                                             =N=567, 360.00

Annual Payment

  1. Furniture                                                                           = N=276, 768.00
  2. Holi day Travel                                                                          =N=1,192,756.00
  3. Housing Allowance                                                                    =N=560,625.00

Total                                                                                           =N=6,700,687.00

Less Variable pay ending March 2008                     N702,350.12

Early incentives package                                                                    =N=5,998,336.88

 

5.       A Declaration of this Honourable Court that the Defendant to pay over to the Claimant, the sum of =N=702, 350.12 (Seven Hundred and Two thousand, Three Hundred And Fifty Thousand Naira, Twelve Kobo) being the variable pay due to the Claimant for the financial year ending in March 2008 paid in accordance with the specification of the Defendant's Memo dated 8th of March, 2007. 

6.       General Damages in the sum of =N=3,000,000.00 (Three Million Naira) being compensation for the delay in life endeavours caused by the acts of the Defendant since the Claimant's retirement in 2008.

7.       An Order of this Honourable Court directing the Defendant to pay over to the Claimant the cost of this present suit in the sum of =N=500,000.00 (Five Hundred Thousand Naira).

 

2.         Defence & Counterclaims

2.         The Defendant entered an appearance to this suit on 22/6/2021 and on the same day filed a statement of defence and counter claim dated the 20th June 2021 and counter claimed as follows –

  1. The sum of =N=15, 857, 023. 68 k DR (Fifteen Million, Eight Hundred and Sixty-Seven Thousand, Twenty-Three Naira, Sixty-Eight kobo) being the Defendant's outstanding indebtedness to the Counterclaimant as at 30th March 2021 which sum the Defendant has failed, refused and neglected to pay despite repeated demands. 
  2. 10% per centum interest per annum on the sum of =N=15, 857, 023. 68 (Fifteen Million, Eight Hundred and Sixty-Seven Thousand, Twenty-Three Naira, Sixty-Eight kobo) from the date of judgment until the whole sum is fully liquidated.
  3. The cost of this suit. 

3.         Case of the Claimant

3.         Claimant opened his case on 19/2/2025 and testified in chief as CW1, adopted his witness depositions of 2/3/2021 & 8/11/2021 as his evidence. Witness also tendered 4 documents which were admitted in evidence and marked as Exh. OA1 – Exh. OA4. 

 

4. CW1 testified under cross examination that while he was with Defendant, there was never any allegation against him; that he was once the Branch Manager of Molete Branch; that as a Branch Manager, he was not in charge of opening of account; that he has an officer in charge of that; that he did not allow funds of Wealth Solution Ltd to be used to open another account of Microtech Ventures Ltd; that he did not allow Directors of Wealth Solutions Ltd to be signatories to the account of Microtech Ventures Ltd; that he was not summoned to the Disciplinary Panel and that he was given a letter of early retirement by the Defendant. Witness added that he was not paid his gratuity when he left on early retirement; that he wrote the Defendant to pay him his benefit under early retirement scheme; that Defendant did not respond to the letter; that he left service in 2008 and wrote about 3 months later for the payment of his benefit; that till date Defendant has not paid him; that from May 31 2008, he was no longer on the payroll of the Defendant; that Banks normally declare profit at the end of the year; that his retirement was not voluntary; that he did not take any facility of =N=2million from Defendant while working with it; that he took a Building loan of =N=600,000 from Defendant and that he deposited the Building documents as collateral sometime in 1989; that he has fully repaid the loan; that he maintained a salary account with the Defendant and that he does not have any outstanding with the Defendant.

 

4.         Case of the Defendant

5.         On 20/5/2025, the Defendant commenced its defence when it called one Abdurazak Momodu as its lone witness – DW1. The witness adopted his witness statement of 4/7/2022 as his evidence in chief and tendered 13 documents as exhibits. The documents were admitted in evidence and marked as Exh. D1 – Exh. D13 respectively.

 

6.         While under cross examination on 4/6/2025, DW1 stated that he works with HR Department of Defendant; that staff of Defendant may be disengaged either through retirement, dismissal or resignation; that the letter for disengagement will show the reasons for the disengagement; that when a staff is cited for misconduct, a Disciplinary Committee will be constituted; that after the sitting of the Committee, there is still a body that gives final decision – The Management Committee; that the final decision of the Management Committee is usually communicated to the affected staff; that when a staff applies for a loan from Defendant, the terms of same are contained in the offer letter; that the interest rate is also included in the offer letter. Witness stated that in 2008, Claimant applied for a loan from the Defendant to be paid back within a stipulated period in the offer letter. Claimant applied for personal loan of =N=2,000,000 for a period of 36 months; that the said loan has not been recouped fully from the Claimant; that in 2008 after Claimant was compulsorily retired, his entire gratuity was used to partly defray his outstanding indebtedness to the Defendant; that Claimant’s salary was to be deducted monthly to partly defray the loan; that between February 2008 and May 2008 when Claimant left the employment of Defendant, he did not default in making payments to Defendant; that Defendant’s claim before the Court is to recover commercial loan given to the Claimant; that as at July 2008 when Claimant’s gratuity was used to defray his indebtedness, the 36 months period for repayment had not expired.

 

7.         On 24/6/2025, upon agreement by both learned Counsel, learned Counsel to the Defendant tendered a Certified True Copy of – a Deed of Legal Mortgage dated 27/8/2002 and registered as No. 23 at page 23 in vol. 3394 of Lands Registry, Ibadan from the Bar. The document was admitted in evidence without objection and marked as Exh. D14 and Counsel applied to close the case of the Defendant and case was adjourned for the parties to file and adopt their final written addresses in accordance with the Rules of Court.

 

5.         Final Written Addresses

8.         The Defendant filed a 26-page final written address on 23/9/25. It was dated same date. In it, learned Counsel set down the following issues for determination –

  1. Whether the Claimant’s testimonies before the Court can be relied upon.
  2. Whether by the compressed facts of this case, the Claimant is entitled to the payment of variable pay and early retirement benefits under the Defendant’s employee Handbook.
  3. Whether the Claimant’s case against the Defendant is not statute barred.
  4. Whether the Defendant/Counterclaimant had proved its counter claim and is entitled to the relief sought.

9.         Learned Counsel submitted that Claimant was inconsistent in his testimonies; that in his evidence in chief he testified that he was summoned to and appeared before a disciplinary panel yet while under cross examination Claimant had testified that he was neither invited nor appeared before any disciplinary panel; that these testimonies are material and that the Court is not at liberty to pick and choose which of the conflicting testimonies to rely on. Citing Jimoh Wasiu v. David Amos & Ors (2014) LPELR-2242(CA). Counsel urged the Court to reject and discountenance the whole evidence of the Claimant submitting that a witness who is shown to have given inconsistent and contradictory statements should not be believed by a Court of law, citing Agbi v. Ogbeli (2005)8 NWLR (Pt. 956) 40 at 138.

 

10.       On issue 2, learned Counsel submitted that the provision of the Defendant’s Employee Handbook on Variable pay shows that it is a reward for good conduct and performance; that for a staff to be entitled to same the Bank must achieve its target, the performance of staff claiming the variable pay and his Department and branch must meet the Bank’s expectations and a staff claiming the variable pay must be on the Bank’s payroll on the date of the payment. Counsel submitted that Claimant in the instant case who has the evidential burden failed to establish via cogent and compelling evidence that he fulfilled the criteria as set out in the Employee Handbook. Counsel added that by Article 9.2 of the Defendant’s Employee Handbook staff who have received warning letters, or on suspension or not on the payroll of the Bank as at the date of the payment of the variable pay which is usually in December/January are not entitled to receive or be paid variable pay. On claim for early retirement benefit, learned Counsel submitted that Claimant is not entitled to same as Claimant did not voluntarily retire from the Defendant; that his retirement arose from disciplinary hearing in which he participated even though the letter did not state as such; that several correspondences exist pointing to the reason for directing the Claimant to proceed on early retirement citing Alliance International Limited  v. Sam Kolo International Enterprises Limited (2022) LPELR-57984(SC) holding that pleading of parties in a case must be read as a whole and not in isolated patches so as to be clear on the case presented by a party. On the claim for gratuity and contribution by the Claimant learned Counsel to the Defendant submitted that the Defendant by a letter dated 24/7/2008 informed the Claimant of the payment of his gratuity to his loan account and current account on 24/11/2008 and thereby reducing his indebtedness to the Defendant and that Claimant failed to contradict the position asserted by the Defendant.

 

11.       On issue 3 which is whether the case of the Claimant is not statute barred, learned Counsel submitted that the cause of action of the Claimant arose in 2008; that this suit was filed in 2021; that by section 18, Limitation Law, Laws of Oyo State, Claimant has 5 years within which to bring this action and that having been brought outside the 5 year period allowed by the statute, this case is barred and the Claimant loses his right to ventilate his right via judicial process citing Duru v. Yanusa (2010)10 NWLR (Pt. 1201) 80 at 111 & CBN v. Jacob Oladele Amao (2007)Al FWLR (Pt. 315) 1490 at 1526. Counsel urged the Court to so hold and dismiss the case of the Claimant citing Amadi & Anor v. INEC & 2 Ors. (2012)2 MJSC (Pt. 1) 1 at 43.

 

12.       On issue 4 which is whether the Defendant/Counter-claimant had proved its counterclaim and is entitled to the relief sought, Counsel adopted his argument respecting issue 1 and submitted that if the Court finds and resolves issue 1 in favor of the Defendant Counter/Claimant the implication is that the Claimant did not lead any evidence to controvert the counter claims; that there is evidence to the effect that Claimant applied for and was granted a personal welfare loan in the sum of =N=2,000,000.00 on 22/2/2008; that at the time of his disengagement, Claimant had not fully repaid the said loan; that Claimant failed to respond to correspondences to him on the loan and must be taken to have admitted the contents of the those correspondences citing UBN v. Obajunmi (2022) LPELR-57354(CA) which held that failure to respond to business correspondence which should attract reaction amounts to admission. Learned Counsel prayed the Court to hold that Counter claimant having proved that Claimant was advanced loan facility and has yet to pay same back is under an obligation to repay same citing Alh. Buba Kembu v. First City Monument Bank Plc (2022) LPELR-58826(CA).

 

13.       Finally, learned Counsel urged the Court to dismiss the case of the Claimant and grant all the counter claims sought.

14.       On 21/11/2025, learned Counsel to the Claimant filed a final written address dated 20/11/2025. Dapo Durosaro Esq of Counsel set down 2 issues for determination thus – 

  1. Whether the Claimant in this case has not proved that he is entitled to the claims before this Court as per the statement of facts.
  2. Whether the Defendant has made out a case for the grant of its Counter claim in this case.

15.       Learned Counsel proffered argument in respect of relief 3 first and submitted that Exh. OA2 simply talked of early retirement while the Defendant seeks to exclude the clear provision of the exhibit bringing in the issue of recommendation of a disciplinary committee; that an oral evidence or pleadings cannot exclude the content of a document admitted as exhibit citing Section 128(1), Evidence Act, 2011, Chemical and Allied Product Plc v. Vital Inv. Ltd (2006)6 NWLR (Pt. 976) 220 at 267 & Ogundele v. Agiri (2009)18 NWLR (Pt. 1173) 219 at 239. Learned Counsel urged the Court to hold that Exh. OA2 cannot be excluded and that the Court should expunge the evidence of DW1. Counsel prayed the Court to grant relief 3 as sought.

Respecting relief 1, learned Counsel submitted that the relief is not contested at all; that the Defendant already pleaded that it paid Claimant’s gratuity; that this amount to an admission that Claimant is entitled to same and that what is admitted need no further proof citing Zubairu v. The State (2015)16 NWLR (Pt. 1486) 504 at 527. On relief 2, learned Counsel submitted that it is clear from the testimony of DW1 that the Defendant created a set off on Claimant’s gratuity; that a loan is a form of contract with terms and conditions which parties are bound by and the Court will interpret those terms in the interest of justice citing Savanah Sugar Company Ltd v. Wabbey Farms Ltd (2013) LPELR-22129(CA); that at the time of Claimant’s exit from the Defendant the loan has not become due to be enforced to the extent of setting same off from Claimant’s gratuity referring to the evidence of DW1. Learned Counsel urged the Court to hold that the said set off claimed by the Defendant is illegal and such practice cannot be said that the Defendant has paid the Claimant’s gratuity.

 

16.       As for reliefs 4 and 5, Counsel submitted that these reliefs are creation of paragraph 8.12 of Defendant’s Handbook and the calculation of the said early retirement incentive is already provided in paragraph 8.12.1; that Claimant met all the requirements to be entitled; that Claimant has successfully categorised his one year emoluments and computed same and tendered his pay slips as well. Counsel urged the Court to hold that the Claimant has sufficiently placed before this Court all the requirements to qualify under the said provisions and is therefore entitled to be paid. Finally, learned prayed the Court to resolve issue 1 in favor of the Claimant and grant all the reliefs sought against the Defendant.

 

17.       On issue 2, learned Counsel submitted that the Defendant has failed woefully to demonstrate that it is entitled to the counter claims sought; that the Defendant did not show the particulars of the purported loan; that the Defendant cannot unilaterally fix the interest rate on the purported loan. Counsel further submitted that the remedy of counter claim cannot be found in this forum; that the counter claim bothers on commercial loan; that this Court cannot in consideration of Section 254C(1)(a)-(m),(2)-(6) entertain jurisdiction on a matter pertaining to a commercial loan contract as shown to be the basis of the counter claim. Counsel prayed the Court dismiss the counter claim. 

6.         Decision

18.       The crux of the case of Mr. Oyetunji Ajao is that he was employed by the Defendant in April of 1977; that he remained an employee till May of 2008 when he was directed by the Defendant to proceed on retirement after 31 years of service. According to the Claimant his retirement benefit is covered by the Staff Handbook of the Defendant; that his retirement incentive is the value of his yearly emolument less the variable pay and that even though he was qualified for the early retirement incentives the Defendant refused to pay same till date. It is the case of Defendant/Counter-Claimant that Claimant took a loan while he worked with it which loan has not been fully repaid; that Claimant severance benefit was paid into his loan account it and used to defray his outstanding indebtedness; that Claimant is yet till date to fully pay the said loan and that in any event the case of the Claimant is caught by the statute of limitation and hence cannot enforce his rights via judicial process. I have read and clearly understood all the processes filed by the parties in this case. I listened attentively to the oral testimonies of the witnesses called at trial, watched their demeanor and carefully reviewed and evaluated all the exhibits tendered and admitted. Having done all this, I set down these issues for the just determination of this case thus –

  1. Whether the case of the Claimant is caught by any limitation instrument.
  2. Whether Claimant has sufficiently proved his entitlement to the reliefs sought.
  3. Whether the Counter Claimant has proved its counterclaim to be entitled to same.

 

19.       Learned Counsel to the Defendant made issue of jurisdiction a centre of his argument. Counsel had submitted that the case of the Claimant is caught by Section 18, Limitation Law of Oyo State.

 

20.       When a litigant contends that the suit against him is barred by the statute, it raises question as to the competency of the suit before the Court. It is a fundamental challenge to the Court before which the suit is filed to exercise its judicial power over the parties and the suit. Once a Court lacks jurisdiction to hear and determine a cause or matter, it is immaterial the erudition and the genuine intention of the Judex, any effort dissipated in resolving same is an effort in futility. Now in a matter of this nature, it is imperative for the Court to first find out when the cause of action arose. This is determined by looking at the time when the Claimant’s cause of action accrued and find out the date when the Claimant filed his suit and compare same with the period allowed by the statute. By paragraph 6 of his statement of facts and paragraph 3 of his witness deposition, Claimant attested to the fact that he was directed by the Defendant to proceed on retirement on 31/5/2008. This fact is also reflected in the reliefs sought against the Defendants. It means therefore that from the date Claimant was directed to proceed on retirement, the cause of his action against the Defendant had arisen. It means also that the period began to count from that date within which he was to approach the Court for redress. 

 

21.       It is on record that this suit was filed on 2/3/21. Now, how long did the Claimant have within which to file his action within the confines of the statute? Learned Counsel to the Defendant cited Section 18, Limitation Law of Oyo State, 2000. The legislation provides that –

 

“No action founded on contract, tort or any other action not specifically provided for in Parts 2 and 3 of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued”.

 

22. Claimant had five years from 2008 within which to seek judicial redress. He waited till 2021 when he filed this action. That is a period of about 13 years when his cause of action accrued. It is apparent that this is outside the period allowed by the applicable limitation law. The position of the prevailing leading appellate decisions is that the statute of limitation applies to a case of this nature. The Supreme Court so held in Micheal Idachaba & Ors v University of Agriculture, Makurdi & 4 Ors (2021) LPELR- 53081 (SC). Again, the apex Court maintained and reaffirmed the same position in Dr. Moses U. Anolam v. The Federal University of Technology Owerri (FUTO) & Ors (2025) LPELR-80027(SC) delivered on 17/1/25. The facts which were not contested were that in 1989, the Appellant became a Lecturer in the 1st Respondent's institution established by the Federal University of Technology Act. In the course of his employment, the Appellant was alleged to have without authorization levied a fee of =N=500 (Five Hundred Naira) on all the students of his Department. The 1st Respondent discovered same and queried the Appellant and was subsequently asked to appear before two administrative Panels set up by the 1st Respondent. The Appellant was indicted for gross misconduct hence his employment was terminated on the 21st day of February 2003.

 

23.       Dissatisfied with the termination of his employment by the 1st Respondent, the Appellant having lost in the 2 Courts below appealed to the Supreme Court. One of the issues the Court had to consider was whether the Statute of Limitation, such as the Public Officers Protection Act, is applicable to contract of employment with statutory flavor. The Court per Stephen Jonah Adah JSC considered the provisions of the relevant legislation and held quoting Aba Aji JSC in Mr. Michael Idachaba & Ors. v. The University of Agriculture, Makurdi (2021) LPELR-53081 (SC) inter alia -

“By the above provision, they appellants were by law supposed to institute their grievances, if any, within 3 months of the purported termination of their employment. It is noted that the cause of action arose supposedly on 30/4/1999. Thus, the appellants' action was maintained only within 3 months after the cause of action arose. In all actions, suits and other proceedings at law and equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his rights or has led the opposite party responsible for or guilty of such infringement to believe that he has waived or abandoned his right. See Per GALADIMA, JSC, in INEC v. Ogbadibo Local Govt. & Ors. (2015) LPELR - 24839 (SC) (PP. 30 -31, Para. D). It is therefore trite that where the law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period." This decision makes it settled that the Public Officers' Protection Act is applicable to issues of employment with statutory flavour such as the employment of the appellant in the instant case."

 

24.       Again, in Chukwuka Okoronkwo v. Independent National Electoral Commission (2025) LPELR-80425(SC) delivered on 7/2/25 the Appellant was employed by the Respondent in 1989 as an Administrative Officer. In January 1997, he was appointed an Electoral Officer by the Respondent and posted to Anambra State. On September 13, 1997, he was suspended from work by the Respondent. In an action commenced at the Federal High Court in April 2000 challenging his suspension, the Claimant had sought inter alia (i). Declaration that the purported suspension of the plaintiff and confirmed in Defendant's correspondence Ref NECON/AN/P.59/90 of 13th September 1997 from the service of the Defendant is wrongful, ultra vires, null and void and of no effect whatsoever, (ii). Declaration that Plaintiff is entitled to be continued in his employment in the service of the Defendant uninhibited by the letter of suspension and (iii). Declaration that Plaintiff is entitled to his salary, promotion and other emoluments and benefits from 13th September 1997. By an Amended Statement of Defence thereof, the Respondent denied the claim and equally raised a preliminary objection, thereby challenging the jurisdiction of the Court to entertain the suit.

 

25.       The trial Federal High Court entered Judgment in favour of the Appellant, thereby granting all the reliefs sought. On an appeal the Court of Appeal allowed the appeal. In a further appeal to the Supreme Court, the apex Court was to determine among others (i). Whether the Court of Appeal was correct in law to have discountenanced the fact that in the circumstances, the Appellant's suspension was a continuing injury or damage as stipulated under Section 2(a) of the Public Officers Protection Act Cap 379 Laws of Federation of Nigeria 1990 and not limited to the date of the letter of suspension - 13th day of September, 1997 only, and in so doing held that the Appellant's cause of action is statute barred & (ii). Whether the Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria 1990 applies to a cause of action founded on breach of contract of service/employment and as a corollary, whether the failure/omission of the Court of Appeal to determine the application or otherwise of the said limitation law did not occasion a miscarriage of justice.

 

26.       The Supreme Court per Jummai Hannatu Sankey, JSC held emphatically that by the provisions of Section 2(a) of the Public Officers Protection Act, 1990 (which has replica provisions as Section 18, Limitation Law of Oyo State under consideration). His lordship held that –

 

“…it is mandatory for any action commenced against any public act by a public officer to be so commenced within three months from the date of which the cause of action arose. In juxtaposition to the instant case, the Appellant commenced this action at the trial Court in April of the year 2000, essentially challenging his suspension by the Respondent. The said suspension occurred on 13-09-1997. Contrary to the argument of the Appellant that the cause of action is one that is continuing in nature, the cause of action apparently arose on the 13-09-1997. Thus, the Appellant's suit ought to have been commenced three months from that date and not beyond. In other words, the action is statute barred."

 

27.       The Claimant chose to file this action outside the five-year period of accrual of cause of action. The position of the law is that where a Claimant who might have had a legitimate cause of action brings such an action outside a limitation period created by statute, the action is statute barred and he loses his right to enforce the cause of action by Judicial process because the period of time laid down by the limitation law for instituting such action has lapsed. It is worthy of note, as the Court of Appeal pointed out in Bernard Nwobele & Ors v. Nigeria Security and Civil Defence Corps (2023) LPELR-60151(CA) that the importance of statute of limitation which is founded on the principles of equity and fairness is to prevent a sleeping or an indolent Plaintiff to wake up at his own peril to commence a suit or action against a Defendant. In the case of Abdulrahman v. NNPC (2020) LPELR-55519 (SC) where the apex Court of the land had to consider Section 12 (1) of the Nigerian National Petroleum Corporation Act, the Court had espoused that -

 

“Statute of limitation is a law that bars claim after a specified period. It is a statute which establishes a time limit for swing in civil cases based on the date the claim accrued. The purpose of such a statute is to require diligent prosecution of known claims thereby providing finality and predictability in legal affairs. The purpose of limitations, like equitable doctrine of lashes, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber”.

 

28.       The cause of action of the Claimant arose in 2008. Claimant has 5 years within which to seek judicial intervention. For reasons best known to him or his Counsel or both, he waited for about 13 years before approaching this Court for intervention. This action is barred by the statute and unfortunately this Court cannot help the Claimant. The effect of an action that is statute barred is that it renders the action barren, sterile, incompetent and the Court is robbed of the exercise of its judicial powers. I resolve issue 1 in favor of the Defendant and against the Claimant. I hold that the case of the Claimant is caught by the statute of limitation.  

 

29.       In a successful argument that a cause or matter is statute barred as in the instant case, the appropriate order to make is that of dismissal. For the matter cannot be represented to the Court for a review or any other intervention except an appeal is filled. Accordingly, I dismiss the case of the Claimant in its entirety.

 

30.       The second issue for determination is whether Claimant has sufficiently proved his entitlement to the reliefs sought. With the resolution of issue 1, any attempt at resolving this issue becomes otiose or at best an academic exercise. The case of the Claimant having been barred statute there is no valid case before the Court for the Court to consider. Accordingly, I pronounce that Claimant has failed to sufficiently prove his entitlement to any of the reliefs sought.

 

31.       The third issue for determination is whether the Counter Claimant has proved its counterclaim to be entitled to same. Defendant/Counterclaimant sought 3 main reliefs in counterclaim. These are (i). The sum of =N=15, 857, 023. 68 (Fifteen Million, Eight Hundred and Sixty-Seven Thousand, Twenty-three Naira, Sixty-Eight kobo) being the Defendant's outstanding indebtedness to the Counterclaimant as at 30th March 2021 which sum the Defendant has failed, refused and neglected to pay despite repeated demands. (ii). 10% per centum interest per annum on the sum of =N=15, 857, 023. 68 (Fifteen Million, Eight Hundred and Sixty-Seven Thousand, Twenty-Three Naira, Sixty-Eight kobo) from the date of judgment until the whole sum is fully liquidated. (iii). The cost of this suit.

 

32.       Counterclaim is a distinct and separate action on its own. As the Court of Appeal pointed out in Saliu v. Dogonbale & anor (2018) LPELR-46116(CA) citing Okorie v. Chukwudi (2013) 35 WRN 140, and Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 366 at  395, Counter claim has the same position as an action being in itself a cross action and subject to the same rules as regards pleadings and evidence in Court. Commenting on Counterclaim in Oroja & Ors v. Adeniyi & Ors. (2017) LPELR - 41985 (SC), the Supreme Court per Rhodes Vivour, J.S.C. held thus -

 

"...A counterclaim is an independent action where the parties in the main action are in reverse roles. The Plaintiff becomes the defendant, while the defendant becomes the plaintiff..." 

 

33.       A counterclaim, in the words of   Monica Dongban-Mensem, J.C.A  (as he then was) (now Hon PCA) in Olayiwola v. Minister, F.C.T & Ors (2021) LPELR-53044(CA) is governed by the same rules that regulate claims made by the Claimant except that it is part of the Defendant's response to the Claimant's claim. Therefore, the Defendant in his counterclaim must prove his case by presenting evidence that supports the averments in the counterclaim. The duty of the trial Court with regards to the Counterclaim remains the same as the claim which is the evaluation of the evidence and the ascription of probative value on the evidence of both parties to the case. The burden of proof does not rest on one party but keeps shifting among the parties. The same rules and procedure which apply to the main suit apply to counterclaim. The Claimant or Defendant in a counterclaim must discharge the burden of establishing his entitlement to the reliefs which he claims. In much the same vein, just as the Claimant must ensure that his action is not incompetent under any guise, a Counterclaimant is under a similar obligation.

 

34.       In the resolution of the first issue set down for determination, this Court has held that the action of the Claimant is barred by the Limitation Law, Laws of Oyo State. The Defendant’s counterclaim is founded on the case of the Claimant which was not instituted within the period of 5 years allowed by the statute. The Defendant’s statement of defence and counterclaim was filed on 22/6/2021. The cause of action leading to the counter claim arose from the disengagement of the Claimant in 2008. The case of the Claimant was dismissed for having been barred by the Limitation Law of Oyo State. Defendant counter claimant should have instituted its separate action within the 5-year period allowed by Section 18, Limitation Law, Laws of Oyo State. It is apparent that the counter claim of the Defendant is without an iota doubt also caught by the statute. I so hold. Therefore, having failed to comply with the statutory provision respecting limitation of action of this nature in Oyo State, I hold that the counterclaim of the Defendant/Counterclaimant is barred by the statute and same cannot be ventilated via judicial process. Accordingly, I dismiss the counterclaims as sought for being incompetent. 

7.         Conclusion

35.       Finally, for the avoidance of doubt and for all the reasons as contained in this Judgment, I dismiss the case of the Claimant for being barred by the statute of limitation. In much the same vein and for the same reason, the counterclaim of the Defendant/Counterclaimant is dismissed.

 

36.       I make no order as to cost.

  

37.       Judgment is entered accordingly.

 

 

____________________

Hon. Justice J. D. Peters

Presiding Judge