BABAJIDE MICHAEL OLUDELE v. WEMA BANK PLC (2014)

BABAJIDE MICHAEL OLUDELE v. WEMA BANK PLC

(2014)LCN/7331(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of June, 2014

CA/I/112/2013

RATIO

DAMAGES: CONTINUE OF INJURY; THE MEANING OF CONTINUE OF INJURY

In the case Alhassan v. Aliyu & Ors. (2009) LPELR – 8340 (CA) Pp.31-32 this per Okoro JCA (AHTW) held that:- “Continue of injury means, the continuance or repeat of the act which caused the injury. It does not and cannot be said to mean the concomitant effect of the damage or injury. In Olaosebikan vs Williams (1996) 5 N.W.L.R. (Pt.449) 437 at 456, Salami, JCA quoting Dickson, J haq this to say:- “The issue is very well illustrated by the dictum of Dickson J, in Michael Obiefina Vs. Alexander Okoye (1961) All N.L.R. 357. At pages 360 and 362 Dickson J, said the Continuance of injury or damage means Continuance of the legal injury, and not merely continuance of injury or damage within the meaning of the Public Authorities Protection Act 1893: 20 Halsbury (2nd Edition) page 771…… with regards to the construction of those words, I am clearly of opinion that the matter is governed by the decision of the court of Appeal as far back as 1903, in the case of Curey Vs. Metropolitan Borough of Bermondey (67 J. P. 447), confirming the judgment of Channel J., in that case, reported in the same volume at page 111. Lord Halsbury, L. C. in giving judgment in the Court of Appeal in that case, affirming the judgment of channel J, said:- “It is manifest that continuance of the injury or damage’ means the continuance of the act which caused the damage. It was not unreasonable to provide that, if there was the continuance of an act causing damage, the injured person should have a right to bring an action at any time within the months of the ceasing of the act complained of.” I concur. I have nothing to add.” For me, I agree as that is the correct interpretation of that section.” per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

STATUTE OF LIMITATION: APPLICATION OF STATUTES OF LIMITATION; THE RATIONALE OR JUSTIFICATION FOR THE APPLICATION OF STATUTES OF LIMITATION

To claim a fresh cause of action or for the above cited case to be relevant, then there is need for the Appellant to show vide the records and his brief that he suffered an injury that result in continuance of damage but this is lacking as evidenced in the instant appeal. The Appellant cannot be availed as equity aids the vigilant and not the indolent. So this exception envisaged by the above authority is not supportive simply because there was nothing on record to show that the Appellant suffered continuous damage.
The same authority of AREMO 11 V. ADEKANYE (Supra) pg. 592 states the rationale or justification for the application of statutes of limitation which are:

(a) that long dormant claims have more cruelty than justice in them
(b) that a defendant might have lost the evidence to disprove a state claim; and;

(c) that persons with good causes of action should pursue them with reasonable diligence. per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

APPEAL: GROUND OF APPEAL; THE CONSEQUENCE OF A GROUND OF APPEAL THAT DOES NOT ARISE OUT OF THE JUDGMENT APPEALED AGAINST

LABOR LAW: PUBLIC OFFICERS (PROTECTION) ACT; HOW TO DETERMINE WHETHER THE PUBLIC OFFICERS (PROTECTION) ACT IS APPLICABLE TO A PARTICULAR EMPLOYMENT

By the authority of MUSA V. NIMR (2010) 11 NWLR (PT.1205) 271 the court held:- “In order to determine whether the Public Officers (protection) Act is applicable to a particular employment, regard has to be had to the distinction between a contract which is simple and specific or special. This would entail determining whether parties had freely agreed to terms of the relationship between them; that is, a contract of employment bothering on master/servant relationship; or whether the employment has statutory flavor or involves the performance of public duty by public institution as protected by the provision of the law.”
A claim of this nature should be filed in court within 3 months period of the happening of an event. Even if the Respondent were a Public Officer by whatever interpretation, the Appellant moved too late. Three months had since lapsed since the alleged wrongful act occurred. (see Utih v. Egor (1990) 5 NWLR (Pt.153) p.771 & Chigbu v. Tonimas (Nig) Ltd (2006) 31 WRN P.179; (2006) 9 NWLR (Pt.984) p.189.) per. MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

Between

BABAJIDE MICHAEL OLUDELE Appellant(s)

AND

WEMA BANK PLC Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.(Delivering the Leading Judgment): This appeal challenges the Ruling of the National Industrial court Ibadan Division, Holden at Ibadan. It was the decision of F. Ikora Olalere, Presiding Judge, delivered on the 26th day of November, 2012 which irritated the Appellant. The Appellant was the claimant at the trial while court the Respondent was the Defendant. In this judgment the claimant will be referred to simply as the Appellant and the Defendant simply as the Respondent. A Notice of appeal containing two grounds seeks an order of this court reversing the decision of the trial court on four issues. The Respondent formulated two issues similar to those of the Appellant.

A brief statement of facts leading to this appeal will simplify the issues formulated.

The Appellant was an employee of the Respondent.
The Appellant was employed sometimes in December, 1989 and his employment was confirmed in October, 1990.

That in the course of his duty, the Appellant was detailed to sort out the mutilation money, he in the process discovered one bundle out of twelve (12) bundles which had been loosed and needed to re-arranged and restamped.

There was a particular bundle that had been torn seriously and the only option left in that situation was to remove it and put it in proper position. The Claimant did but in order to avoid being returned by the Central Bank, the twenty-two (22) pieces which amounted to two thousand two hundred naira (N2,200.00) needed to be cello taped and re-arranged. That in order to avoid a mix-up with other fairly mutilated money which was a sum of Thirty-eight million naira (N38,000,000.00) the Claimant kept the badly damaged mutilated two thousand two hundred naira (N2,200.00) in the pocket of his jacket so that he could take them for the repairs on the table in his office. He had spread and cello-tape as there was no table in the strong-room. The Operation manager was informed about this development, who took him before the Branch Manager.
The Claimant was issued with a query on the 30th day of January, 2004 and 3rd February, 2004 respectively, accusing him of an act of pilfering cash in the strong room amounting to two thousand two hundred naira (N2,200.00). He replied to the queries but consequently a letter of dismissal from the office was given to him on the 15th day of April, 2004.

When the appeal came up for hearing on the 30th April, 2014, Adewale Oyewusi Esq., of learned Counsel for the Appellant adopts the Appellant’s brief of argument prepared by Bayo Alade Esq.. The Appellants brief was dated 28th May, 2013, filed on the 4th June, 2013 in which were raised and argued four issues for determination as follows:-

“1. Whether section 4 (1) of Ondo State Limitation Law as used by the trial court to dismiss the Claimant/Appellants suit is applicable to this case.

2. Whether Public Officers protection Act is not applicable to this case being a labour matter and (or) contractual relationship between the Claimant/Appellant and the Defendant/Respondent.

3. Whether section 2 of the Public protection Act is not superior to the Ondo State Limitation Law (2006) by virtue of being a Federal Act

4. Whether the contractual relationship between the Claimant and Defendant is covered by Ondo State Limitation Law (2006).

Musibau Adetunbi Esq., of learned Counsel adopts and relies on the Respondents’ brief of argument dated 15th day of July, 2013 and filed on the same day. Counsel raised and argued 2 issues for determination as follows:-

1. Whether the learned trial Judge was right when he applied the Ondo State Limitation Law to resolve the issue of jurisdiction predicated on limitation of action against an action sounded in contract before him.

2. Whether the Public Officers Protection Act has any applicability to this very case.

This appeal will be determine on the issues formulated by the Respondents as it is more precise and accommodates the issues as contained in the grounds of appeal.

Issue 1

Appellant maintains that there was no contract between the duo at Ondo State as the Respondent was transferred to Ondo State in the course of his duty. That it is the Lagos state law that should apply.

Appellant states further, that it is only the writ of summons and statement of claim that determines court jurisdiction.

Appellant cites the fact that official letters meant for the Respondent were issued in Lagos e.g. employment letter, confirmation and promotion letter.
Also asserts to have written several letters of protest but the Respondent refused to act on them.
Appellant maintains further that in the instant action, there is a continuity of damage and fresh cause of action arises from time to time, therefore, his suit is not statute barred. (Refers AG RIVERS STATE V. AG BAYELSA STATE (2013) 3 NWLR (PT.1340) @ 123 AT 149 PARA D – E; AREMO 11 V. ADEKAYE (2004) 13 NWLR (PT.891) 572 @ 593 – 594), especially the case of AREMO 11 V. ADEKAYE (Supra) where the court held that:

“admittedly, legal principles are not always inflexible, sometimes they admit of certain exception. This is where there has been continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused”

The learned Counsel for the Appellant highlights paragraphs 31-42 of the statement of claim on the basis that several appeal letters written and acknowledged by the Respondent means that there is a cause of action and that the Limitation Law of Ondo State is inapplicable since the Appellant was not employed in Ondo State.

It is the opinion of the learned Counsel for the Respondent that there was a contract between the Appellant and the Respondent. The law guiding contract of this nature favors law applicable to that place and time and when the cause of action arose. (Refers ARJAY LTD v. AMS LTD (2003) 7 NWLR (pt. 820) 577; UBN PLC V. ABRAHAM (2008) 8 NWLR (Pt.1118) 172: OLUTOLA V. UNILORIN (2004) 18 NWLR (Pt.905) 416; ADESOYE V. GOV. OSUN STATE (2005) 16 NWLR (Pt.950) 1).

All these authorities point to the existence of master/servant relationship between the Appellant and the Respondent.

That the last place of Appellant’s employment was Akure (- see page 8-14 of the record) which is germane to determine the law applicable to this cause of action.
Respondent states that after the dismissal, the Appellant approached National Industrial Court, Ibadan after 7 years precisely on the 8th day of March, 2012 when he approached the trial court to challenge the dismissal.

Respondent maintains that the applicable law guiding the instant action is Ondo State Limitation Law; Laws of Ondo State 2006 which prescribed 6years from the date of accrual of cause of action Section 4(1) of the said law, before the institution of an action of this nature.

The stance of the Appellant on this issue is that it was a continuous injury suffered by the Appellant that led to this suit and that Ondo State Limitation Law is not applicable. (Refers AREMO 11 V. ADEKAYE
(Supra) in support of what constitutes continuing damage or injury.

This above cited case is not supportive of the cause of the Appellant. The case cited is that of the rejection of recommendation of one “Ajayi Judicial Commission of inquiry of 1982”. The court observed that such
rejection could not have resulted in any injury suffered to warrant a fresh cause of action.

The Appellant has failed to state the details of continuance of damage in his case. Was he dismissed more than once? Was he recalled, placed on an indefinite suspension? What constitute the continuance of damage?
What is meant by continuance of damage?

In the case Alhassan v. Aliyu & Ors. (2009) LPELR – 8340 (CA) Pp.31-32 this per Okoro JCA (AHTW) held that:-

“Continue of injury means, the continuance or repeat of the act which caused the injury. It does not and cannot be said to mean the concomitant effect of the damage or injury. In Olaosebikan vs Williams (1996) 5 N.W.L.R. (Pt.449) 437 at 456, Salami, JCA quoting Dickson, J haq this to say:- “The issue is very well illustrated by the dictum of Dickson J, in Michael Obiefina Vs. Alexander Okoye (1961) All N.L.R. 357. At pages 360 and 362 Dickson J, said the Continuance of injury or damage means Continuance of the legal injury, and not merely continuance of injury or damage within the meaning of the Public Authorities Protection Act 1893: 20 Halsbury (2nd Edition) page 771…… with regards to the construction of those words, I am clearly of opinion that the matter is governed by the decision of the court of Appeal as far back as 1903, in the case of Curey Vs. Metropolitan Borough of Bermondey (67 J. P. 447), confirming the judgment of Channel J., in that case, reported in the same volume at page 111. Lord Halsbury, L. C. in giving judgment in the Court of Appeal in that case, affirming the judgment of channel J, said:- “It is manifest that continuance of the injury or damage’ means the continuance of the act which caused the damage. It was not unreasonable to provide that, if there was the continuance of an act causing damage, the injured person should have a right to bring an action at any time within the months of the ceasing of the act complained of.” I concur. I have nothing to add.” For me, I agree as that is the correct interpretation of that section.”

(a) that long dormant claims have more cruelty than justice in them
(b) that a defendant might have lost the evidence to disprove a state claim; and;

It is clear that all the above envisaged focuses more on reasonable diligence, and a period of 7 years interval before bringing an action of this nature defeats the essence of reasonable diligence envisaged by the above authority.

Equally the same authority AREMO 11 V. ADEKANYE (Supra) pg. 592 states a position on when time starts to run and it is said to run from the date on which the cause of action accrued. In this appeal, the cause of action accrued on 15th April, 2004 when the Appellant was served with a letter of dismissal. (pg. 8-14 of the regards). Whereas the Appellant approached the court on 8th March, 2012.

Respondent stress the point that the relationship between the Appellant and the Respondent is that of Master/Servant (relationship and that in law of contract, the law applicable to the place where such contract occurs takes priority. In the case of FIRST BANK PLC v. KAYODE ABRAHAM (Supra), Tabai JSC held at pages 202-203 that:-

“that all suits for specific performance or upon the breach of any contract may be commenced and determined in the judicial division in which such contract ought to have been performed or in which the defendant resides”.

With this authority, where the Defendant resides takes priority. The Appellant was said to have been transferred to Akure, a place where the cause of action accrued and was there at served with a letter of dismissal at Akure, Ondo state. By the authority of FIRST BANK PLC v. KAYODE ABRAHAM (supra), the Ondo State Limitation Law is applicable to the instant action.
Equally the cited case of PROF. ADEREMI DADA OLUTOLA v. UNIVERSITY OF ILORIN (Supra) by the Respondent;

“It states that the law applicable in respect of a cause of action is the law in force at the time the cause of action arose”

The law applicable at that material time is the Ondo State Limitation Law, 2006 S4 (1) of the law which provides that:-

“the following actions shall not be brought after the expiration of six years from the date of which the cause of action accrued that is to say

(a). Actions founded on simple contract or tort”

From the foregoing argument, the failure of the Appellant to act timeously is germane and detrimental to his quest as he had been caught up by the limitation law applicable at that material time which is the Ondo State Limitation law, 2006.

The Appellant having failed to show that any of the findings of the learned trial judge was perverse; there was nothing upon which the specific findings of facts of learned trial judge could be disturbed by this court. (See DAKOLO & ORS V. REWANE-DAKOLO & ORS (2011) LPELR-915 (SC) P.46).

Issue 2

Appellant cites Section 2 of the Public Officers Protection Act and the case of OSUN STATE GOVERNMENT v. DANLAMI (NIG) LTD (2007) ALL FWLR (Pt.365) @ 438 @ 452 to buttress his argument that his suit is not statute barred.

The position of the Appellant is the fact that the bank qualifies as a public service and therefore the applicable law should be public Officers Act, 2004.

Section 2 of the Public Officers Protection Act is not applicable as it does not apply to cases of recovery of land, breaches of contract, etc.

The case of OSUN STATE GOVERNMENT v. DANLAMI (NIG).LTD (Supra).
Appellant posits that this case is synonymous with the intent of S.2 of Public Officers Act Officers Act when dealing with its applicability to cases of contract.

It was argued under this authority that this act does not apply to cases of contract.

The fact that Public Officers Act does not apply to contract cases does not mean that Limitation Law of Ondo State applied was wrong.

Assuming without conceding that this is the Act applicable, then the need for the Appellant to show how Limitation Law is inapplicable and the consequence of its application should be what he should tackle and not providing a new act that will replace the former.
I do not see any nexus between the instant appeal and Public Officer Protection Act.

The appropriate question is whether a bank in this instant action is a Public officer in line with Public Officers protection Act.

By the authority of MUSA V. NIMR (2010) 11 NWLR (PT.1205) 271 the court held:-

“In order to determine whether the Public Officers (protection) Act is applicable to a particular employment, regard has to be had to the distinction between a contract which is simple and specific or special. This would entail determining whether parties had freely agreed to terms of the relationship between them; that is, a contract of employment bothering on master/servant relationship; or whether the employment has statutory flavor or involves the performance of public duty by public institution as protected by the provision of the law.”
A claim of this nature should be filed in court within 3 months period of the happening of an event. Even if the Respondent were a Public Officer by whatever interpretation, the Appellant moved too late. Three months had since lapsed since the alleged wrongful act occurred. (see Utih v. Egor (1990) 5 NWLR (Pt.153) p.771 & Chigbu v. Tonimas (Nig) Ltd (2006) 31 WRN P.179; (2006) 9 NWLR (Pt.984) p.189.)

To this end, assuming without conceding that the Appellant was right that it is the Public Officer Protection Act that should be applied.
The said Public Protection Act envisages 3 months after accrual of course of action. From the 15th of April, 2004 to 8th March, 2012, 3 months has since lapsed, therefore, the action is still statute barred.
Lastly, the Respondent challenges the 2 grounds of appeal contained in the notice of appeal and the four issues formulated by the Appellant to the effect that there was no reference to the letter of appeal as no ground and issue was formulated on that issue.

It is trite practice as in GARUBA V. OMOKHODION 46.2 NSCQR 902 per Chukwuma Eneh
“Where a ground of appeal does not arise out of the judgment appealed against, then the validity of the issues raised thereon for determinations cannot be said to have arisen from competent grounds of appeal.
To this end, the Respondent’s argument on this goes to no issue as issues raised on appeal are vital and cannot be treated with levity. The case cited by the Respondent.”
HANI AKAR ENT. LTD V. INMB LTD (2011) 1 NWLR (PT.1228) P.302 @ 318 is not relevant as the issues canvassed in the instant case are numerous and can be sustained by other issues if looked at critically compared to the cited case which contained one issue.

The trial court dealt extensively with these issues. Pages 4-5 of the Ruling and pages 66-67 of the record of appeal, the trial Judge held as follows:-

“after a careful consideration of this application and argument of parties including the authorities cited, the only issue for determination here is whether or not this action is statute barred. The defendant argued that this suit is statute barred while the claimant’s position is that the suit is not statute barred because the matter is a labour one and that this court had previously held severally that limitation laws do not apply to
cases of labour. In the case of Chief J. A. Emasealu v. Akoko-Edo L. G. & Anor unreported Suit No: NIC/LA/31/2011, the Ruling of which was delivered on July 27, 2012 this court stated thus on its previous decisions concerning limitation Laws:

“The hallmark of the limitation laws in general however, be they the limitation of laws of the States or public Officers Protection Act or the applicable law in the instant case which is the Local Government law of Edo State 2000, as amended, is that once the injury in question is a continuing one, the limitation period does not start to run. The authorities are all agreed on this. Even when this court held in previous cases that the limitation law does not apply to labour rights cases, this is mainly because the injuries in question were invariably of a continuing nature”.

From the reproduced portion of the above cited authority, it is very clear that the referred past decisions of the court on the applicability of limitation laws to labour matters are not blanket decisions. The injury in the matter must be a continuing one. As soon as the injury ceases, the cause of action accrues and time begins to run. I, therefore, hold that limitation laws apply to labour or employment matters the moment causes of action accrue. See also Ujoatuonu v. Anambra Government & Anor (2010) 6 NMLR 405. And the unreported case on Hon. (Pastor) Agboola Kehinde & 11 Ors v. Ikole L. G. Suit No: NIC/ABJ/18/2012 Ruling delivered on September 27, 2012.

The matter between the parties here is in relationship to contract of employment which according to the claimant was breached by the defendant for dismissing wrongly thereby abruptly bringing the contract to an end. In determining whether this case is statute barred, it is only the originating processes of the claimant that this court look at. In his statement of facts and his letter of dismissal frontloaded with the complaint, the claimant was dismissed from the defendant’s employment on April 15, 2004 while he filed this action before the court on March 8, 2012. The time differences between these two dates is 7 years, 10 months and 24 days. As rightly submitted by the defendant’s Counsel, the limitation law of Ondo State applies this case since the claimant served the defendant last in Akure from the claimant’s depositions in his statement of facts. Section 4 (1) Limitation Law of Ondo State, 2006 provides:

The following actions shall not be brought after the expiration if six years from the date on which the cause of action accrued, that is to say-
(a) Action founded on simple contract or on tort
(b) Actions to a enforce a recognizance;

(d) Actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.

In the circumstance, section 4 (1) (a) of Ondo State Limitation Law is applicable and by this provision, action based on simple contract must be filed in court within six years from the time of accrual of its cause of action. Since this action was filed almost eight years after the accrual of the cause of action and not within six years, this suit is statute barred.

This preliminary objection, therefore, has merit and it succeeds. This suit is accordingly dismissed as it is statute barred. I make no order as to cost.

Ruling is entered accordingly”.

I have reproduced extensively, the Ruling of the learned trial Judge because it is very clear, that the learned trial Judge has painstakingly set out accurately the law as it applies to the instant appeal. No perversion has been cited against this Ruling and I find none, in accordance with the law. The Ruling shows clearly that the Appellant was dismissed and the reference to the trial court’s earlier decision was conceived. The refusal of the Appellant to accept the fact of his dismissal does not constitute a continuity of a relationship which was determined by the Respondent on the 15th day of April, 2004 and the suit of the Appellant attest to the fact that the relationship has been clearly severed. Rather than challenge the action in court between the Appellant and the Respondent which was determined on the 15th April, 2004 by the termination of his employment, the Appellant engaged in petition writing. He remained in denial until time slipped through his fingers. Six years have lapsed and the courts are powerless to help the Appellant.
This appeal must therefore fail.
The preliminary objection upheld by the trial court was rightly so upheld, and the suit of the Appellant is according hereby struck out as it was filed without the requisite legal backing which has since ceased to exist. This appeal is totally without merit.
The decision of the trial court is hereby affirmed.
I make no order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I read before now, the judgment just delivered by my learned brother, M. B. Dongban-Mensem, JCA.
The Appellant was found to have instituted his action outside the limitation period allowed by the Ondo State Limitation Law, his action became statute barred. The Appellant did not successfully demonstrate that the findings of the learned trial Judge thereon was erroneous or perverse. In that respect, his appeal is without merit. Accordingly, I too, in agreement with the lead judgment, hereby dismiss this appeal.
I abide by the consequential orders made therein.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the opportunity of reading before now the judgment of my learned brother Monica Bolna’an Dongban-Mensem, JCA.
For the reasons given by my learned brother, which reasons I adopt as mine, I too refused this appeal and affirm the decision of the trial court. I dismiss the appeal suit and there shall be no order to costs.

Appearances

Adewale OyewusiFor Appellant

AND

M. O. FolorunshoFor Respondent