IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE KANO JUDICIAL DIVISION
HOLDEN AT KANO
Before His Lordship: HON. JUSTICE E.D.E ISELE – (JUDGE)
DATE: 31st OCTOBER, 2018
SUIT NO: NICN/KN/34/2017
BETWEEN
MALLAM HANNAFI MUSA MORIKI
CLAIMANT’S
AND
ECO BANK NIGERIA LIMITED
RESPONDENT
REPRESENTATION: Parties
S.J. Gani, Esq. with M.M Bello, Esq. and Mohammed Idris, Esq. for the Claimants
Clare Bako, Esq. for the Defendant
JUDGMENT
The Claimant commenced his action by the Writ of complaint filed on the 18th of July 2018 in which he claims in the following particulars:
- a)A Declaration that the dismissal of the Claimant by the Defendant from it’s services vide its letter of dismissal is in violation of the contract between the parties, it is therefore invalid, null and void and of no effect whatsoever.
- b)A Declaration that the Claimant was not given fair hearing.
- c)An Order of this Honourable Court setting aside the letter of dismissal of the Claimant.
WHEREOF the Claimant claimed against the Defendants jointly and severally as in the particulars; a, b and c stated above.
THE CASE OF THE CLAIMANT
It is the case of the Claimant that he was a staff of the defunct Gamji Bank of Nigeria Plc and at all times material to this action was at the Sokoto Market Branch of the said Bank. In support of this he tendered exhibit B & B1 the letter of Offer of Appointment dated 14th October, 1987 as well as an Appraisal letter of 1989 dated 12th February, 1990 in exhibit A. That with the recapitalization of Bank in Nigeria Gamji Bank was merged with/was taken over by the defunct International Trust Bank plc, which later merged with/taken over by the defunct Oceanic Bank Plc. And that the defunct Oceanic Bank Plc later merged with/was taken over by the Defendant Ecobank Nigeria Limited.
It is the case of the Claimant that with the merger/take over the Defendant carried the assets and liabilities of the defunct Bank. That he was an employee of the Defendant and was it’s Sokoto Market Branch Manager until when his appointment was wrongly terminated by the Defendant. He maintained that he was one of the hard working staff of the Defendant as the manager, Sokoto Market Branch to the extent that upon appraisal in 1990 his Salary was increased per Exhibit A. And he was promoted by exhibits C/(letter of promotion dated 1st December 1991) and Exhibit C dated 14th of October, 1991.
He averred that shortly after commendation the Defendant served him with a letter of query which he replied, which the Defendant admitted that it was a mistake on the part of the Claimant and dismissed him without inviting him to appear before the committee that reviewed the case, for this he placed reliance on the letter of dismissal in Exhibit D & D1 dated January 17, 1992. He maintained he was not given fair hearing by the Defendant and his dismissal not in accord with the contract between the parties and therefore null and void. The Claimant, in the course of his testimony tendered Exhibits E & E1 a memorandum titled monthly management report of 12th June 1991 and Exhibit E2 & E3 a memorandum headed.
Mobilization of 8.16 million deposits for the bank dated 10/6/1991. At the end of his testimony in Chief, the Defendant chose not to cross examine the Claimant.
THE CASE OF THE DEFENDANT
The Defendant in denying the claim of the Claimant admitted the face in the series of mergers/takeovers leading to the Defendant Bank. But insisted that it did not acquire the assets and liabilities of Gamji Bank neither did it have any link with the said bank. That it has its own policy and guidelines in relation to its employees and the claimant having failed to provide the staff hand book or policy of Gamji Bank operational at the time in support of his allegation of wrongful dismissal, that it could not assume the liability of another Bank since it (as Defendat) did not acquire the liability of assets of the said Gamji Bank Nigeria Plc.
The Defendant averred further that the claimant’s claims were statute barred; the claimant having slept on his rights, if any for 25 years, and cannot be heard to complain of what he has accepted. At the close of the case of the Defendant after DW1 had been cross examined, parties proceeded to file and adopt their written addresses.
THE WRITTEN ADDRESS OF THE PARTIES
In the written address of the Defendant paragraph 2.0 the Defendant raised a preliminary objection it mentioned in its statement of Defence it was submitted at 2.2 that the suit is statute barred and ought not to be entertained by the court but should be struck out. That employment is a simple contract and by law any action arising from a perceived or actual breach of simple contract must be commenced within 6 years when the cause of action arose. That the applicable limitation law to Sokoto State, where the cause of action arose according to the pleadings of the claimant is the provision of the limitation law 1966 claims of Northern Nigeria, which provides.
“Section 7(1) the following actions shall not be brought after expiration of six years from the date on which the cause of action accorded:
- a)Actions founded on simple contract,
- b)Actions founded on quasi – contract;
- c)Actions to enforce recognizance.
That the above provision is in parimateria material with the limitation laws of all the States of the Federation, including the limitation Act Cap 522.
It was submitted for the Defendant that the failure of the claimant to institute this action robs the Court of the requisite jurisdiction to entertain same. That what helps the Court to determine whether an action is statute barred is the relevant process before the court citing SPEAKER OYUN LEGISLATIVE Council & 10 ORS V. ENGINEER HAMMED ADEBAYO AJIMOTI & 60RS (2011) ALL FWLR (PT. 585) 328 @ 346 paragraph B – C, P. 348, paragraph D – F where the Court held that
“In deciding whether or not an action is caught by a statute of limitation, the determing factors and questions are:
- a)Whether there was a cause of action and
- b)When the cause of action arose. The Court shall look at the initiating process, that is the writ of summons and statement of claim or the Originating Summons and the Applicant evidence or the date or when the cause of action accrued the plaintiff and comparing same with the date or when the initiating process is outside or beyond the period limited by the relevant statute from the date of the accrual of the action, the action is statute barred.
In the final written address of the Claimant a sole issue was formulated for determination.
That being; Whether the Claimant has sufficiently made out a case entitling him to judgment.
Here, it was submitted that that civil cases are won and lost on pleadings, and on the preponderance of admissible, relevant and credible evidence. That by the rules of Court a witness gives evidence through his witness statement on Oath attached to his statement of claim or defence as the case may be.
It was further submitted for the claimant at paragraph 4.02 that based on the state of the pleadings and the evidence adduced the claimant has sufficiently made out a case to entitle him to Judgment. That this was so because the Defendant failed to cross examine the witness of the claimant, citing DAGGASH V. BULAMA (2004) All FWLR (pt 212) 1666 at 1745 paragraph F – H on the effect of failure to cross examine that it means acceptance in entirely of the evidence of the witness as True. That where an adversary does not accept the witness testimony as true, and fails to cross examine him on that fact, a Court can take his silence as an acceptance that an adversary does not dispute the factor.
Reference was made to the cross examination of DW1 who he claimant maintained seemed not to know anything concerning Gamji Bank, International Trust Bank or the taking over of International Trust Bank by Oceanic Bank and was therefore not a competent witness as he did not know the banking industry in Nigeria very well.
In response to the preliminary objection, the claimant at paragraph 5.01 conceded that any action that is statute barred robs the Court of Jurisdiction to hear same as it was the law. The claimant also conceded further that he was dismissed in 1992. That the question now was having admitted the claim of the claimant could the Defendant now turn round to raise a preliminary objection? That answer to be in the negative. That it was so because the law is trite that where a party admits a claim that is statute barred the Defence is no longer available to him. That the Defendant ought to have raised a preliminary before the trial. Considering the fact that the rules of Court permits that the preliminary objection can be taken together with the trial, the Defendants failure to cross examine the PW1 means that the Defendant has admitted the claim and so having done to trial and admitted the plaintiffs claim that it was too late in the day to raise the preliminary objection.
COURT’S DECISION
With regard to the submissions of counsel for the claimant at paragraph 5.01 of the witness address, defendant in its reply on points of law at paragraph 2.1 submitted, and rightly too, that the issue of jurisdiction can be raised at any stage in the proceedings by the Defendant or by the Court Suo Motu even for the first time on appeal to the supreme Court relying on this principle in the case of NYESOM V. PETERSIDE (2016) ALL FWLR (PT. 842) 5.C 1573 @ 1618 paragraph D that:
“The issue of Jurisdiction is so fundamental to adjudication that it can be raised at any stage of the proceedings and even for the first time on appeal to the Supreme Court “
By contrast, on this same point of jurisdiction where the claimant had submitted that the Defendant having admitted the claim of the Claimant could the defendant now turn and raise the preliminary objection and that where a party admits a claim that is statute barred the defence is no longer available to him. Here I found that the claimant did not submit any legal authorities to back up his submissions. I hold that this failure did not help his case. I would even go further to state that failure to cite the authorities by the claimant on those points might be due to the fact that none on the points may exist in the face of authorities such as NYESOM V. PETERSIDE (Supra) relied on by the Defendant. And that of ISHAKU V. NIGERIA SOCIAL INSURANCE TRUST FUND (2015) ALL FWLR (pt 780) 1230 @ 1263 – 1264 paras F – B relied on by the Defendant regarding the issue whether the claimant had sufficiently made out a case entitling him to judgement, where the Defendant had submitted at paragraph 3.1 of its final written address that the Claimant has failed to lead evidence in support of his case where reliance was placed on the Evidence Act 2011 section 131 (1) thereof.
That the Claimant in this case wished the Court to believe that he was employed by Ganji Bank and that Gamji Bank merged with international Trust Bank Plc, which also merged with Oceanic International Bank Plc, a careful perusal of the Exhibits (7 Documents Tendered) showed no shred of evidence to buttress the claim.
Now, in determining the Preliminary Objection first in this matter the Defendant at paragraph 2.4 of its final written address had submitted. That this action is statute barred.
“The reason being that the cause of action arose 25 years ago. The Claimant admitted this fact in paragraph 1 of his statement of claim that he was dismissed by the Defendant in 1992 vide a letter of Dismissal dated 17th day of January, 1992. Since the fulcrum of the claimant’s action is the letter of Dismissal dated the 17th day of January, 1992 or the letter of Dismissal in 1992, it is without doubt that the cause of action arose 25 years ago and the suit was initiated in 2017…”
Now, I have only just read through paragraph 11 of the claimant’s statement of facts (Claim) where the letter of dismissal in exhibit D & D1 of 17th January 1992 is pleaded. There is no doubt in my mind that the Claimant is right or cause of action arose around the period but Ceased with the operation of the limitation law cited earlier in the judgment and relied on by the Defendant. No doubt for more than 25 years or even 19 years given the 6 years period within the limitation law to have filed this action.
The action I find and do hold, is one that had become stale. It is the law that the main purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim. And where an action is statute barred, a claimant who might otherwise have had a cause of action by Judicial process, is barred from proceeding because of the period of time laid down by the limitation law for instituting such an action has lapsed. See the cases: ADEKOYA V. FHA (2008) 11 NWLR (pt 1099) 539, IBETO CEMENT CO. LTD V. A – G FED. (2008) NWLR (pt 1069) 470 and AMEDE V. UBA (2008) 8 NWLR (pt 1090).
In the premi ses of the above reasons and authorities, I hold that the suit is statute barred and is hereby dismissed. I make this holding bearing in mind that the case proceeded to full trial and on the preponderance of the evidence before me in Exhibit A to E1, 7 documents, the claim of the claimant seem for fetched and unproved, firstly, that I have found it to be stale and the court has no jurisdiction to proceed any further. The claim of the claimant fails and is hereby dismissed.
Judgment is entered accordingly.
___________________________________
HON. JUSTICE E. D. E. ISELE (JUDGE)
31th October, 2018
