IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE UYO JUDICIAL DIVISION

HOLDEN AT UYO

BEFORE HIS LORDSHIP, HON. JUSTICE S. H. DANJIDDA.

DATE:  25^TH OF JULY, 2024                                         SUIT NO. NICN/UY/11/2023

BETWEEM

MRS ENO RAPHAEL ELIJAH    -           -           -           -           CLAIMANT

AND

WEST AFRICAN EXAMINATION COUNCIL            -           -           DEFENDANT

REPRESENTATION:

SAMUEL IKPO for the Claimant

ISAAC EPHRAIM for the Defendant

RULING

This is a Ruling in respect of a Notice of Preliminary Objection (NPO) dated 12/06/2022 but filed on the 09/08/2023, which is brought pursuant to section 6 part 111 Vol. iv of the Limitation Law of Akwa Ibom State, CAP. 78, Laws of Akwa Ibom State of Nigeria. The (NPO) prays the Court for the following order;

"That this suit is Statute Barred and therefore incompetent as this Honourable Court has no jurisdiction to hear and determine same."

The Grounds upon which the NPO is brought are as follows:-

"1.      In paragraph 3 of the Claimant’s Statement on Oath filed on the 23/03/2023

before this Court, the Claimant states as follows:

“That I am the Claimant and was employed by the Defendant...Until sometime on or about the 12^th day of May, 1992 when I had risen to Grade Level 6 was compulsorily retired DUE TO DWINDLING PERFORMANCE...

2.        In paragraph 6 of the same Claimant’s Statement on Oath. The Claimant states:

“That I have written thrice to the Defendant to register my dissatisfaction for the unlawful termination of my employment and once through my lawyer whereof the defendant replied twice (6-01-2017, and on 20-11-2020) justifying their action...

3.        In paragraph 7 of the same Claimant’s Statement on Oath, the Claimant avers:

“That the letter of compulsory retirement issued to me on the 12^th of May,1992 was not proper, as “dwindling performance “ is no ground for compulsory retirement”

4.        The Claimant filed this action against the Defendant for the first time on 21/3/2023, thirty one (31) years after the Claimant received her Letter of Retirement from the Defendant dated 12^th of May, 1992.

Section 16 of the above cited law provides thus:

“No action founded on contract, tort or any other action not specifically provided for in parts 1 and 11 of this law shall be brought after the expiration of FIVE YEARS from the date on which the cause of action accrued”.

“Except where subsection (3) of this action applies, the period of limitation applicable under Section 16 in respect of actions to which this section applies shall be reckoned from the date on which the cause of action accrued or the date of knowledge”.

Accompanying the NPO is a Written Address filed by the Counsel for the Defendant/Applicant where a lone issue for determination was submitted to wit;

“Whether this suit commenced more than five years, precisely 31 Years, after the cause of action arose is still competent having regards to the provision of Section 16 of the Statute of limitation Cap. 78 Laws of Akwa Ibom State, Vol. 1V."

Samuel Ikpo Esq, counsel for the Defendant submitted that as at the time of filing this suit on 23/3/2023, precisely thirty-one (31) years after the cause of action arose, the period of five years allowed for institution of the action had elapsed, thus making this suit Statute barred and therefore robs this Honourable Court of jurisdiction to entertain the case. Counsel relied on the Supreme Court case of Mercantile Bank of Nigeria Plc V. Feteco (Nig) Ltd (1998) 2 NWLR  (Pt. 540) 143 at 156- 157.

To the Defendant, the Statute of limitation is a law that defines the period during which a law suit can be brought in court, and when the period specified has passed, the law suit will no longer be filed. Counsel also referred to the case of Mercantile Bank of Nigeria Plc V. Feteco (supra) and submitted that the importance of having a limitation is to ensure that all claims are made diligently and in timely manner while the evidence is still available, and the memory of the witness is still fresh.

It is the submission of counsel that the Claimant having become aware of the purported wrong when she received the Letter of Compulsory Retirement  on 12/5/1992 could not approach the Court to seek redress until 21/3/2023 when she filed this suit, which clearly shows that she had slept on her right longer than expected. That in Sifax Nig. Ltd V Migfo Nig. Ltd & Anor. (2019) Vol. 288 LCRN Pg.163@ 173 Ratio 11, the Supreme Court accentuated this point by stating that “It is a well established principle that the right of action accrues when the person that sues becomes aware of the wrong...”. Citing also Abubakar V M.M.T.S Ltd (2020) Vol. 308 LRCN Pg. 48 @55-56 Ratio 3.

Counsel maintained that the right of the Claimant to commence an action would have been extinguished if the action is instituted after the stipulated period by the Statute. Counsel cited the case of Awolola V Governor of Ekiti State. Counsel also cited the case of Elijah Alphonsus Akpan V Akwa Ibom State University & Ors in Suit No. NICN/UY/59/2020 which judgment delivered by His Lordship Hon. Justice M. A. Namtari where the Court held that the suit was statute barred.

Counsel posited that the proper order to be made when an action is statute barred is dismissal.

Counsel urged the Court to find and hold that the cause of action is not competent and that the Court lacks jurisdiction to entertain the case.

REPLY OF THE CLAIMANT TO THE DEFENDANT'S NOTICE OF PRELIMINARY OBJECTION

Claimant counsel, Grace Ladi Edet Esq contended that the Limitation Law of Akwa Ibom State cited by the Defendant does not apply in the instant case, the Defendant being a Federal Agency. That the application is wrongly brought before this Court.

Counsel submitted that the National Industrial Court is governed by its own laws according to the National Industrial Court Act 2006, that this application should be brought under the appropriate provision of the National Industrial Court Rules.

Counsel also submitted that in the case of WAEC V. Omodolepo Yemisi Adeyangu (2008) LLJR-SC and by WAEC Act Cap 468 Laws of the Federation of Nigeria 1990, the Defendant is a Federal Agency.

It is the further submission of counsel that Federal Agency is not governed by state laws as relied upon by the Defendant. That the Defendant is a Federal Agency and the application so brought and solely relied upon is the Limitation Law of Akwa Ibom State Cap, 78 Laws of Akwa Ibom State. Counsel urged the Court to so hold.

REPLY ON POINTS OF LAW

Counsel for the Defendant on 28/05/2024 filed a Reply on points of Law and argued that the Claimant’s contention that the Defendant is a Federal Agency as such should not be governed by Akwa Ibom State Laws is quite misconceived.

On 07/06/2024, Defendant's counsel filed an additional authority and attached the judgment of this Court on Section 16 of the Limitation Law of Akwa Ibom State in Suit No. NICN/UY/59/2020 between Elijah Alphonsus Akpan and Akwa Ibom State University & Ors.

COURT’S DECISION

I have carefully considered the processes filed and the written submission of counsel to both parties and in determining the NPO, the issue that calls for determination is;

“Whether this Court has the jurisdiction to entertain this suit?"

The facts of this case are that the Claimant instituted this action against the Defendant and predicated her claim on alleged unlawful termination of her employment contract with the Defendant on the ground of “Dwindling Performance". Claimant sought for declaration that the termination of her employment was unlawful and asked for an order of court directing the Defendant to pay all her salaries and financial entitlements following the unlawful termination.

A Court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. See Madukolu V. Nkemdilim (1962) 2 SCNLR 341.

In deciding whether a case is Statute barred or not, the Court only has to look at the Writ of Summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the Writ of Summons was filed. If the time on the Writ of Summons is beyond the time allowed by the Limitation Law, the action is statute barred. See Elabanjo V Dawodu (2006) 6-7 SC 24.

As a general rule, once an action is caught by a limitation law, it cannot be sustained and a Court is divested of the jurisdiction to entertain it. It is the position of the law that there is a time limit for instituting civil actions and any action caught by the Statute of Limitation is dead for all ages. Thus, where a statute of limitation prescribed a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See Ogunko V. Shelle (2004) 6 NWLR ((Pt. 868) page 17, and Osun State Government V. Dalami  Nig. Ltd (2007) All FWLR (Pt.365) page 438.

For ease of reference, the provision of Section 16 of the Limitation Law of Akwa Ibom State is reproduced below;

“No action founded on contract, tort or any other action not specifically provided for in parts 1 and 11 of this law shall be brought after the expiration of FIVE YEARS from the date on which the cause of action accrued”.

“Except where subsection (3) of this action applies, the period of limitation applicable under Section 16 in respect of actions to which this section applies shall be reckoned from:

a.         The date on which the cause of action accrued or

b.        The date of knowledge”

In the case of National Revenue Mobilisation Allocation and Fiscal Commission  & Ors V. Ajibola Johnson & Ors (2019) 2 NWLR (Pt.1656), the apex court held that Section 2 of the Public Officers Protection Act which stipulates a three-month limitation period for suits against public officers, does not apply to employment contract disputes. HIS LORDSHIP ARIWOOLA (JSC) then now CJN at pages 270-271, paras F-B states thus:-

“There is no doubt, a careful reading of the Respondents’ claim will show clearly that it is a contract of service. It is now settled law that Section 2 of the Public Officers Protection Act does not apply to cases of contract...

I have no slightest difficulty in holding that the appellants are not covered by the Public Officers Protection Act as to render the Respondents’ action statute barred.

In sum I hold that the learned Justices of the Court below are right in holding that the Appellants do not enjoy the umbrella of Public Officers Protection Law in the contract of service involving the Respondents...”

With the above position of the law by the Supreme Court, this Court has made a significant departure by following the decision in several cases. In Lilian Nnenna Akumah V First Bank of Nigeria in Suit No. NICN/LA/402/2018, this Court PER Hon. Justice Essien held on 10^th October 2019 that Section 8(1)(a) of the Limitation Law of Lagos State does not apply in contract of service.

The Supreme Court however in Idachaba V. University of Agriculture, Makurdi (2021) 11 NWLR (Pt.1787)209 held in another twist that Section 2 of the Public Officers Protection Act applies to employment contract cases.

In a surprising turn of events, the Supreme Court recently in its decision on 2^nd December, 2022, in the case of Rector Kwara Poly V. Adefila (2024) 9 NWLR (Pt. 1944)529 has held that Public Officers Protection Act does not apply to employment contracts. Essentially, the Court has reverted to its original stance taken in Ajibola's case.

On 28/3/2024, the Court of Appeal in NOUN V. IOREMBER (2024) LPELR-61882(CA) on appeal from the decision of this Court held that section 2 of the Public Officers Protection Act is inapplicable in contract of employment.

Similarly, on 28/6/2024, the Court of Appeal too affirmed the decision of this Court in the unreported case of NATIONAL UNIVERSITIES COMMISSION V KUNLE ROTIMI, APPEAL NO. CA/LA/CV/997/2020 that:-

"It is my firm view that the Limitation Law of Lagos State does not apply to this case and I so hold. The Respondent's suit was founded on the contract of service between him and the appellant. The Appellant is a commission established by the Federal Government of Nigeria, created by statute and under the direct control of the Ministry of Education, a Federal parastatal. Both parties are presumed to have consented to their relationship being governed by the Appellant's Enabling Act and related regulations. The Appellant, a Federal Agency, is therefore not bound by the "Limitation Law of Lagos," which is not a creation of an Act of Parliament under the Exclusive Legislative List. I wish to emphasize that the lower court is not the High Court of Lagos."

Suffice it to say that a Court of law has to guard its jurisdiction jealously and must do everything to preserve its jurisdiction in favour of litigation. See Adeogun V. Fashogbon (2008) LPELR-131(SC).

Arising from the above, I also hold that the Limitation Law of Akwa Ibom State is not applicable in the instant case.

On the whole and for all the reasons given, the Notice of Preliminary Objection of the Defendant has no merit and is accordingly dismissed. In consequence, I hereby hold that Claimant’s case is not caught up by Section 16 of the Limitation Law of Akwa Ibom State.

Ruling is delivered accordingly with no order as to cost.

HON. JUSTICE S. H. DANJIDDA

(PRESIDING JUDGE)