MR. EHIGIE ODIGIE OSIMEN v. ZENITH BANK PLC & ORS
(2019)LCN/13404(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of May, 2019
CA/L/976/2016
RATIO
CAUSE OF ACTION: DIFFERENCE FROM RIGHT OF ACTION
The question of what constitutes a cause of action has been answered in seemingly endless judicial decisions. In EGBE Vs. ADEFARASIN (1987) 1 NWLR (Pt. 47); (1987) LPELR-1032 (SC) Pg. 32, Paras. D – E, the Supreme Court of Nigeria per OPUTA, JSC (of blessed memory) held that: A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words,a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right. See also COOKEY Vs. FOMBO & ANOR (2005) 15 NWLR (Pt. 947) 182; (2005) LPELR-895 (SC).PER TIJJANI ABUBAKAR, J.C.A.
LIMITATION LAWS: EXCEPTIONS TO THEIR APPLICATIONS
The law is clear that there are exceptions to the application of the Limitation Laws. In OBOT & ORS Vs. SHELL PETROLEUM DEVELOPMENT COMPANY NIG. LTD (2013) LPELR-20704 (CA) Pg. 51-52, Para. D ? D, this Court held that:
There are some exceptions to the limitation law set by various limitation statutes. These statutory limitations cover cases such as fraud, deliberate concealment by the defendant, or mistake. There are also other circumstances which amount to exceptions to the limitation law. These include circumstances where there is a continuing injury or fresh damage arising from the same injury. Each fresh damage arising from the same injury or continuing injury, gives rise to a fresh cause of action. In AREMO II Vs ADEKANYE (2004) ALL FWLR (PT 224) 2113 at 2132 2133 the Supreme Court per Edozie JSC said:
where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused? For example if the owner of mine works them and causes damage to the surface more than six years before action, and within six years of action, a fresh subsidence causing damage occurs, without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives a fresh cause of action.PER TIJJANI ABUBAKAR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
MR. EHIGIE ODIGIE OSIMEN Appellant(s)
AND
1. ZENITH BANK PLC
2. MR. EBENEZER ONYEAGGWU
3. CENTRAL BANK OF NIGERIA Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the National Industrial Court, sitting in the Lagos Judicial Division, delivered by J. D. PETERS, J., on the 19th day of May, 2016 in Suit No: NICN/LA/216/2015 which is contained at pages 93 ? 99 of the Records of Appeal wherein the learned trial Judge in sustaining the 1st and 2nd Respondent?s Notice of Preliminary objection found that the Appellant?s cause of action arose in 2006 and founded on a simple contract and consequently dismissed the Appellant?s suit on the ground that the suit is statute barred. The Appellant as Claimant instituted this suit against the 1st ? 3rd Respondents (as Defendants) at the lower Court on the 2nd day of June, 2015; the Originating Processes are found at pages 1 ? 36 of the Records of Appeal. The 3rd Respondent filed memorandum of appearance on the 27th of July, 2015 as contained at pages 37 ? 38 of the Records of Appeal; while the 1st and 2nd Respondents entered a conditional appearance on the 22nd of July, 2015 found at pages 39 ? 40 of the Records of Appeal.
1
The 1st and 2nd Respondents as Defendants also filed a Notice of Preliminary Objection on the 4th day of November, 2015 praying the lower Court to decline jurisdiction to hear and determine this suit on the ground that the Appellant?s suit is statute-barred and disclosed no reasonable cause of action. The Notice of Preliminary Objection; Affidavit and Written address in support of the objection are contained at pages 41 ? 67 of the Records of Appeal. The Respondent filed Counter-Affidavit supported by a Written Address in opposition to the 1st and 2nd Respondent?s Preliminary Objection on the 25th day of November, 2015 as contained at pages 68 – 80 of the Records of Appeal. The 1st and 2nd Respondent thereafter filed a Reply on points of law filed on the 26th day of February, 2016 as contained at pages 81 ? 85 of the Records of Appeal. Upon hearing the contending parties, the learned trial Judge dismissed the Appellant?s suit and sustained the 1st ? 2nd Respondents Preliminary Objection.
Nettled by the decision of the lower Court, the Appellant filed a Notice of Appeal on the 2nd day of November, 2016,
2
containing three grounds of appeal. The Appellants Brief of Argument was filed by Greg Omoike on 6th day of October, 2016. On the other hand, the 1st and 2nd Respondents? Brief was filed by learned Counsel Opeyemi Usiola-Kuti Esq. on the 10th day of November, 2017 but deemed as properly filed and served on the 5th of March, 2019. The 3rd Respondent filed its Brief of Argument on the 12th day of April, 2018 through learned Counsel Emmanuel Ajegba Esq. The Appellant filed a Reply Brief on the 23rd day of March, 2018 it was deemed as properly filed and served on the 5th day of March, 2019. Learned counsel for the Appellant crafted 2 (two) issues for determination, the issues are as set out below;
1. Whether the Learned Trial Judge was right to have held that the action of the Appellant is based on simple contract of employment which employment was terminated in 2006.
2. Whether the learned trial judge was right in dismissing the Appellant’s suit for being statute-barred.
The 1st and 2nd Respondents counsel on the other hand equally nominated 2 (two) issues for determination which the learned Counsel for the 3rd Respondent
3
adopted; the said issues are as follows:
1. Whether the Appellant?s action as constituted before the lower Court did not emanate from a simple contract?
2. Whether the Appellant?s suit as constituted before the lower Court has not become statute barred as at the time it was filed?
The 3rd Respondent as I stated earlier adopted the 1st and 2nd Respondents issues for determination as its issues in the determination of this appeal. It is not therefore necessary to reproduce the issues again. The issues nominated for discourse in this appeal by the appellant and the 1st and 2nd Respondent, adopted by the 3rd Respondent are similar and only differ in grammatical construction, otherwise they substantially aim at resolving the same issues in controversy in this appeal.
SUBMISSIONS OF COUNSEL
ISSUE ONE
Learned counsel for the Appellant argued that the summary of the Appellant?s case at the lower Court was for a declaration that the 3rd Respondent?s act of blacklisting his name as fraudulent person upon the recommendations of the 1st Respondent on mere suspicion and without a trial and conviction by a Court of law
4
and/or granting him an opportunity to defend himself is a breach of his fundamental rights and therefore unconstitutional; and that he also made a claim for financial compensation. Counsel argued that the Appellant did not challenge the termination of his employment; but that his action only challenges the blacklisting of his name as a fraudulent person without granting him a hearing. Learned counsel contended that since the Appellant was not challenging the termination of his employment, the learned trial Judge had no basis in law to conclude at page 99 of the Records of Appeal that the basis of the suit is a simple contract.
Learned counsel further submitted that although the blacklisting of the Appellant?s name arose as a result of his employment with the 1st Respondent; the action itself is not grounded on a contract of employment because the Appellant is not challenging the termination of his employment. Counsel referred to SOCIETY BIC S. A. Vs. CHARZIN IND. LTD [2014] 4 NWLR (Pt. 1398) Pg. 497; ADEKOYA Vs. FEDERAL HOUSING AUTHORITY [2008] NSCQLR Vol. 34 (Pt. 2) Pg. 952 at 964; Paragraphs 15, 18 ? 26, 29 ? 32, 35 and 43 of the
5
Appellants Statement of Claim and the reliefs sought by the Appellant therein as contained at pages 4 ? 10 of the Records of Appeal to argue that the Appellant?s cause of action is simply the blacklisting of his name by the 3rd Respondent upon the 1st Respondent?s prompting/recommendation and not the termination of employment.
It was further submitted by the learned Counsel for the Appellant that the facts put before the lower Court by the Appellant were not that of wrongful termination of his employment. Counsel also referred to Paragraph 4.05 of the Written Address in support of the 1st and 2nd Respondent?s Preliminary Objection as contained at page 57 of the Records of Appeal to contend that the 1st and 2nd Respondents admitted that the Appellant is not challenging the termination of his contract of employment with the 1st Respondent. Learned counsel submitted that if the learned trial Judge had fully appreciated and considered the Statement of Fact, he would have had no difficulty in coming to the conclusion that the Appellant?s claim is not one founded on a simple contract.
Responding to this issue, the
6
learned counsel for the 1st and 2nd Respondents relied on OSISANYA Vs. AFRIBANK (NIG) PLC [2007] 6 NWLR (Pt. 1031) Pg. 565 and ILODIBIA Vs. N.C.C. LTD [1997] 7 NWLR (Pt. 512) Pg. 174 to submit that the Appellant?s case as constituted before the lower Court was based on simple contract; that the master servant relationship is a matter of simple contract; and that every issue that arises based on master servant relationship shall be treated within the confines of simple contract. Counsel referred to paragraphs 5 ? 10 and 14 ? 16 of the Appellants Statement of Claim at pages 4-10 of the Records of Appeal to submit that the Appellant was in the employment of the 1st Respondent between the periods of 2013 to June, 2016; but that there was a case of missing N100, 000.00 from the vault of the 1st Respondent where the Appellant was found culpable after investigation by the 1st Respondent; and that the employment of the Appellant was consequently terminated by the 1st Respondent.
Learned counsel referred to the letter of termination to submit that the ground for the Appellant?s termination was clearly stated as ?gross
7
professional misconduct and fraudulent activities?; and that the Appellant averred in paragraph 15 of his Statement of Claim that he accepted the termination and did not challenge it. Counsel further submitted that when the Appellant inquired from the 1st Respondent to know why he was blacklisted; it was made known to him that he was blacklisted as a result of the report forwarded to the 3rd Respondent by the 1st Respondent on the reason for the termination of the Appellant?s employment which is in compliance with the 3rd Respondent?s directive. Learned counsel submitted further that it is clear from the Statement of Claim that there was a contract of employment between the Appellant and the 1st Respondent which was terminated; counsel referred to ODUKO Vs. GOVERNMENT OF EBONYI STATE [2004] 13 NWLR (Pt. 891) Pg. 487 at 501-502, Paras. H ? E to submit that the Appellant? right of action to challenge the termination of his employment arose on the day he received the letter of termination dated 16th June, 2006.
Learned Counsel further submitted that forwarding the Appellant?s name to the 3rd Respondent upon his termination
8
by the 1st Respondent is a matter associated with the Appellant?s employment with the 1st Respondent; and that the 1st Respondent only complied with the 3rd Respondent?s directive which required all commercial Banks including the 1st Respondent to forward to the 3rd Respondent the names of any staff terminated or dismissed on grounds of fraud and forgeries for necessary action in compliance with Section 48(d) of the Banks and Other Financial Institutions Act, CAP B3, LFN, 2004. Counsel submitted that the right of the 1st Respondent to comply with the directive of the 3rd Respondent arose from the contract of employment that existed between the Appellant and the 1st Respondent between years 2003 and 2006. Counsel referred to OLANIYAN Vs. UNIVERSITY OF LAGOS & ANOR [1985] 2 NWLR (Pt. 9) Pg. 599 and LONGE Vs. FIRST BANK OF NIGERIA PLC [2010] 6 NWLR (Pt. 1189) to reiterate that the Appellant?s case as constituted before the lower Court is based on contract of employment.
Learned counsel submitted that since the Appellant submitted that he is not challenging the termination or the reason for his termination as stated in the letter of
9
termination; the 3rd Respondent could act on the details forwarded to it by the 1st Respondent; and that the Appellant cannot challenge the blacklisting of his name which was admitted by the Appellant to have resulted from the termination of his employment when the Appellant refused and admitted that he is not challenging the termination of his employment on grounds of fraud. Counsel submitted that the issues pertaining to the termination of the Appellant?s employment by the 1st Respondent and the forwarding of the Appellant?s employment details to the 3rd Respondent cannot be separated.
Learned counsel further referred to EZE Vs. SPRING BANK PLC [2011] 18 NWLR (Pt. 1278) Pg. 113 and ARINZE Vs. F.B.N. LTD [2004] 12 NWLR (Pt. 888) Pg. 663 to submit that contrary to the submissions of learned Counsel for the Appellant that the 3rd Respondent ought not to have acted on the 1st Respondent?s report on him because the 1st Respondent did not try him in a law Court and did not afford him the opportunity to defend the allegations against him; it is not the requirement of law that before an employer can dismiss his employee accused of crime in the
10
discharge of his duty, the employee must be tried before a Court of law before being dismissed or terminated. Counsel further submitted that if the Appellant had disagreed with the termination of his employment or the reason for the termination, he ought to have challenged it in a Court of law as at 2006 when he received the letter of termination dated 16th of June, 2006. Learned counsel argued that the Appellant who claimed that his case was not based on simple contract failed to state in clear terms the specie of his claim; counsel urged this Court to hold that the lower Court was right in coming to the conclusion that the Appellant?s case as constituted sprung from simple contract.
Learned Counsel for the Appellant in the Reply Brief reiterated the submissions in the Appellant?s Brief that the suit is not challenging the termination of employment hence it is not an action founded on simple contract. Counsel further contended that by virtue of Section 1 (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended), the provisions of Section 48(d) of the Banks and Other Financial Institutions Act, CAP B3, LFN, 2004 referred to
11
by the 1st and 2nd Respondents cannot override the provisions of Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended). Learned Counsel further referred to a Publication credited to the 3rd Respondent in THIS DAY Newspaper of Wednesday, 6th of July, 2016 and on the 3rd Respondent?s website ? www.cbn.gov.ng to argue that the 3rd Respondent?s guideline with respect to blacklisting pursuant to Section 48(4) of the Banks and Other Financial Institutions Act, CAP B3, LFN, 2004 requires that the Appellant must have been tried and heard before be blacklisted.
Learned Counsel for the Appellant argued that the cases of EZE Vs. SPRING BANK PLC (Supra) and ARINZE Vs. F.B.N. LTD (Supra) are inapplicable and that the decision in ARINZE Vs. F.B.N. LTD (Supra) is that it may not be necessary to first try and convict an employee where the criminal conduct alleged against him is clear, obvious or incontrovertible but that the Appellant?s employment in the instant case was terminated for alleged gross professional misconduct without setting up a Disciplinary Panel to determine the guilt or otherwise of the
12
Appellant. Counsel referred to Section 133 of the Evidence Act, to submit that having blacklisted the Appellant as fraudulent person the Respondents are obliged to prove the Appellant?s guilt beyond reasonable doubt. Learned counsel maintained that the decision of the lower Court has no basis whatsoever.
ISSUE TWO
Learned counsel for the Appellant contended that the learned trial Judge was wrong to have concluded that the Appellant’s suit was not commenced within the time allowed by the applicable statute. Counsel referred to Paragraph 26 of the Appellant?s Statement of Claim to argue that no date was stated as to when the Appellant?s name was blacklisted by the 3rd Respondent which is the cause of action; that neither the 1st Respondent nor the 3rd Respondent stated when the Appellant?s name was blacklisted in their respective responses to the Appellant?s demand of confirmation as to the blacklisting of his name. Learned counsel further referred to Paragraphs (i) ? (iii) of the 1st and 2nd Respondent?s Notice of Preliminary Objection as contained at page 42 of the Records of Appeal and Paragraph 4.6
13
of the 1st and 2nd Respondents? Written Address at page 60 of the Records to contend that the learned trial Judge relied on the averments and arguments of the Respondents to come to the conclusion that the Appellants cause of action arose in 2006 when his employment was terminated by the 1st Respondent.
Learned counsel submitted that the law is trite that when an objection is raised that an action is Statute-barred, it is only the Writ of Summons and Statement of Claim that the Court is obliged to look at in order to determine whether or not the suit is statute-barred. Counsel submitted that there is nowhere in the Statement of Claim where it is disclosed that the blacklisting of the Appellant by the 3rd Respondent was done in 2006 and/or with his knowledge; and that the Appellant only stated that he found out that he had been blacklisted in 2014 and quickly wrote letters to the 1st and 3rd Respondents to verify the fact. Learned counsel submitted that the 1st and 2nd Respondents failed to prove that the action was statute-barred; that the conclusion of the trial Judge that the action is statute-barred resulted from the misconception that the
14
Appellants action was founded in simple contract; and that the lower Court would not have dismissed the Appellant?s action on the ground that it is statute-barred if it had properly identified the cause of action in the first place.
Learned counsel further submitted that the action leading to this suit arose from the wrongful blacklisting of the Appellants name at the 3rd Respondents Registry on the recommendations of the 1st Respondent which was done without the knowledge of the Appellant and without trial and conviction by a Court of law or any form of hearing; and which was concealed from him until 2014 when his employment was terminated by Access Bank Plc., on grounds of being blacklisted as a fraudulent person. Learned counsel further submitted that in the alternative, assuming but without conceding that the Appellant?s case is founded on simple contract and that the commencement date of the action was in 2006; the Statute of Limitation is still not applicable to the Appellants case because the facts were concealed from the Appellant, he was deliberately denied the opportunity to react. Counsel cited ONYIUKE Vs. OKEKE
15
[1976] 1 NMLR Pg. 285 to submit that the Respondent must not be allowed to benefit from their own wrongful act.
Learned counsel referred to Sections 8, 9, and 58 (1) of the Limitation Law of Lagos State to submit that there is an exception to the general rule as to limitation of time within which an action can be brought; that where, as in the instant case, there is a concealment of the cause of action, time will begin to count when the plaintiff discovered the fraud or could with reasonable diligence have discovered it. Counsel further referred to THE ADMNINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANNI ABACHA Vs. SAMUEL DAVID EKE-SPIFF & ORS (2009) LPELR-SC. 344/2002; [2009] 7 NWLR (Pt. 1139) Pg. 97; MICHAEL AROWOLO Vs. CHIEF TITUS IFABIYI [2002] 4 NWLR (Pt. 757) Pg. 35 at 62 and JALLCO LIMITED & ANOR Vs. OWONIBOYS TECHNICAL SERVICES LTD [1995] 4 NWLR (Pt. 391) Pg. 534 to submit that no prescription runs against a person who was hindered in bringing a Court action; and that for the purpose of Statute of Limitation, time begins to run only when the Claimant becomes aware of the wrong done to him.
Learned counsel for the Appellant further
16
submitted that in the instant case, the blacklisting of the Appellant?s name was concealed from him and he filed this action on the 2nd day of June, 2015 which is eight months after he became aware in August, 2014 that his name had been blacklisted. Counsel argued that within the said interval, he made efforts to ascertain if he was indeed blacklisted as revealed to him by Access Bank Plc.; and that there is clearly no laches on the part of the Appellant. Learned counsel further referred to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) to submit that the Appellant was denied fair hearing by the Respondents who recommended a criminal sanction of blacklisting him as a fraudster without any hearing or conviction. Counsel reiterated that it was wrong for the learned trial Judge to either speculate and/or rely on any averments by the Respondents instead of referring only to the Statement of Claim and Writ of Summons. Learned counsel relied on ADEKOYA Vs. FEDERAL HOUSING AUTHORITY (Supra) to submit that to allow the Judgment of the lower Court subsist under the present circumstance will be grossly unjust to the Appellant
17
as his name will remain blacklisted forever, albeit wrongly and unjustly. Counsel urged this Court to allow this appeal; set aside the decision of the lower Court; and send the matter back to the lower Court to be heard and determined on its merits.
On this issue, learned Counsel for the 1st and 2nd Respondents submitted that the Appellant?s suit as constituted before the lower Court is statute-barred and that the lower Court was right to have declined jurisdiction in respect of the suit. Counsel maintained that the Appellant?s case is predicated on simple contract and that every incidence that led to the blacklisting of the Appellant by the 3rd Respondent on the recommendation are all from the contract of employment between the Appellant and the 1st Respondent. Learned counsel further argued that even if the issue of blacklisting of the Appellant?s name by the 3rd Respondent upon the recommendation of the 1st Respondent is taken not to be a matter arising from simple contract; it is nothing more than a tort arising from contract of employment between the Appellant and the 1st Respondent.
Learned counsel referred to ADEKOYA Vs.FEDERAL HOUSING AUTHORITY
18
[2008] All FWLR (Pt. 434) 1425; UKIRI Vs. FEDERAL CIVIL SERVICE COMMISSION [2011] All FWLR (Pt. 577) Pg. 783 at 794-795, Paras. G ? A; SULGRAVE HOLDINGS INC Vs. FGN [2012] 17 NWLR (Pt. 1329) Pg. 309; MERCANTILE BANK (NIG) LTD Vs. FETECO LTD [1998] 3 NWLR (Pt. 540) Pg. 143 at 156 and INEC Vs. OGBADIBO LOCAL GOVERNMENT (2015) LPELR-24839 (SC) to submit that in determining the issue whether the case as constituted has become statute barred, the Court is enjoined to examine the Originating Processes; the date the cause of action arose; applicable limitation periods; and then determine whether the time from time when the cause of action arose to the date the action was filed has exceeded the period allowed by the enabling Statute.
Learned counsel for the 1st and 2nd Respondents submitted that since it is the Appellant?s submission that he is not challenging the termination of his employment but the act of the 3rd Respondent blacklisting his name in its record/book based on the details forwarded to it by the 1st Respondent in 2006. Counsel submitted that the Appellant?s complaint can be classified under tort; and
19
further referred to Section 8 (1)(a) and 9 (2)of the Limitation Law, CAP 167, Laws of Lagos State, 2003 and the case of INEC Vs. OKORONKWO [2009) All FWLR (Pt. 488) Pg. 277 at 247, Para B ? D to submit that whether classified as tort or simple contract, the Appellant?s action is still statute-barred and could not have been entertained by the lower Court. Counsel argued that the letter of termination was clear as to the reason stated therein for the termination of the Appellant?s employment by the Respondent.
Learned counsel further referred to document attached as Exhibit C to the Further Affidavit in support of the Objection contained at pages 194 ? 197 of the Records of Appeal; and OGBOJA Vs. ACCESS BANK PLC [2016] 2 NWLR (Pt. 1496) Pg. 291; KARIMU Vs. LAGOS STATE GOVERMENT [2012] 5 NWLR (Pt. 1294) Pg. 620; WILLIAMS Vs. WILLIAMS [2008] 10 NWLR (Pt. 1095) Pg. 364 and OMOZEGHIAN Vs. ADJARHO [2006] 4 NWLR (Pt. 969) Pg. 33 to contend that the Appellant was aware of the practice in banks and the 3rd Respondent?s Circular to all banks BSD/3/2004 issued on the 16th of July, 2004 to the effect that all commercial banks must report
20
all cases of terminated/dismissed staff to the 3rd Respondent; and that the Appellant cannot be excused on the grounds of ignorance as he is deemed to know the law.
Learned counsel relied on OLANIYAN Vs. OYEWOLE [2008] 5 NWLR (Pt. 1079) Pg. 144 at 138, Para. E to submit that contrary to the Appellant?s contention, the lower Court is not restricted to considering only the Writ of Summons and Statement of Claim filed by the Claimant in determining a preliminary objection challenging a suit for being statute-barred; the rule has been extended to every process frontloaded and that the era has passed when the Court looks only at the Writ of Summons and Statement of Claim to determine whether an action is Statute barred or not. Counsel submitted that an Appellant, as in the instant case may intentionally avoid his pleadings to state when he suffered the legal injury, because he knows that the fact may demolish his case. Learned counsel cited CHIEF OF AIR STAFF Vs. IYEN [2005] 6 NWLR (Pt. 922) Pg. 499 at 547, Paras. B ? C to submit that litigation is neither a game of hide and seek nor one of chess. Counsel submitted further that the Court is
21
entitled to look at the documents that are pleaded by the Appellant, which he seeks to rely on in the matter; and that the Appellant pleaded and listed the termination letter issued on the 16th June, 2006.
Learned counsel further argued that the Appellant?s reliance on Section 58 of the Limitation Law of Lagos State is bound to fail because the Appellant?s case does not fall under the exceptions stated therein and in view of the event that led to the termination of the Appellant. Counsel argued that the Appellant personally received his termination letter on 16th June, 2006 wherein it was stated that his services will no longer be required with effect from 19th June, 2006; and that the Appellant wrote a letter dated 12th July, 2006 appealing that the 1st Respondent should oblige him to resign instead. It was further contended that the Appellant was aware of the reason for his termination in 2006 but chose to ignore it; and that the 1st Respondent had no duty to bring to the knowledge of the Appellant the fact that the details of the reason for the termination of his employment would be forwarded to the 3rd Respondent in compliance with the law.
22
Learned counsel argued that the cases of THE ADMNINISTRATORS/EXECUTORS OF THE ESTATE OF GENERAL SANNI ABACHA Vs. SAMUEL DAVID EKE-SPIFF & ORS (Supra); MICHAEL AROWOLO Vs. CHIEF TITUS IFABIYI (Supra) and JALLCO LIMITED & ANOR Vs. OWONIBOYS TECHNICAL SERVICES LTD (Supra) relied upon by the Appellant are inapplicable because there was no concealment of any kind committed on the Appellant; that the reason for the termination of Appellant?s appointment was stated in the termination letter; and no fraud or concealment was perpetuated by the 1st Respondent in discharging its legal obligation to the 3rd Respondent. In conclusion, Counsel urged this Court to hold that the Appellant?s suit has become statute-barred and that the lower Court was perfectly right in striking it out.
On this issue, the learned Counsel for the Appellant in the Reply Brief maintained submission on the effect of Section 58 of the Limitation Law, CAP 167 Laws of Lagos State with respect to concealment by the person seeking to rely on the Statute of Limitation; and that the cases cited by the 1st and 2nd Respondents were cited out of con. Counsel further
23
submitted that it is the lower Courts reference to averments and attachment in the Affidavit in support of the Preliminary Objection as well as in the Respondent?s Statement of Defense that led to the erroneous conclusion that the suit is Statute-barred; and that if the learned trial Judge had limited himself to the Writ of Summons and Statement of Claim as stipulated by law, he would have reached a contrary decision. Learned counsel referred to MULIMA Vs. USMAN [2014] 16 NWLR (Pt. 1432) Pg. 160 at 207 and argued thatOLANIYAN Vs. OYEWOLE (Supra) relied upon by the 1st and 2nd Respondents is irrelevant to the instant case as it has nothing to do with the documents to look at in the determination of whether or not an action is statute-barred.
Learned Counsel for the Appellant further submitted that the blacklisting on the Appellant?s name as a fraudulent person on the 3rd Respondent?s Black-book is a continuing wrong. Counsel argued that the issue at this point is whether the Respondents duly complied with the procedure laid down in their guidelines and Regulations; and that the 3rd Respondent?s regulations cannot take away
24
the Appellants right to fair hearing as guaranteed by the Constitution. With Respect to the 1st and 2nd Respondents submission that Section 58 of the Limitation Law, CAP 167 Laws of Lagos State does not apply to the Appellants case because the reason for his termination was not concealed; the learned Counsel for the Respondents argued that since the contents of the said termination letter was not published to the public, the Appellant had no reason in law to go to Court to attempt to establish his innocence just because the letter terminating his employment has accused him of fraudulent activities. Counsel submitted that the 1st and 2nd Respondent?s submission with respect to the Appellants letter dated 12th July, 2006 is in bad faith; and that the argument that the 1st Respondent had no duty to inform the Appellant of the criminal allegations against him and of the fact that he was being blacklisted amounts to a legal heresy. Learned counsel urged this Court to resolve this issue against the Respondents and allow the appeal with substantial cost.
RESOLUTION
ISSUE ONE
I have earlier stated that the two issues
25
crafted for determination by the contending parties in this appeal are substantially the same; for the purpose of resolving the issues therefore I will adopt the issues as formulated by the Appellants. The first issue crafted by the Appellant is: Whether the Learned Trial Judge was right to have held that the action of the Appellant is based on simple contract of employment which employment was terminated in 2006.” The summary of the submissions of learned Counsel on behalf of the Appellant is that the Appellants case at the lower Court was for a declaration that the 3rd Respondents act of blacklisting his name as fraudulent person upon the recommendations of the 1st Respondent on mere suspicion and without a trial and conviction by a Court of law and/or granting him an opportunity to defend himself constitutes a breach of his fundamental rights and therefore unconstitutional; that although the blacklisting of the Appellants name arose as a result of his employment with the 1st Respondent; the action itself is not grounded on a contract of employment because the Appellant is not challenging the termination of his employment; but
26
that his action only challenges the blacklisting of his name as a fraudulent person without granting him a hearing; that since the Appellant was not challenging the termination of his employment; the learned trial Judge had no basis in law to conclude that Appellants claim is founded on simple contract.
The learned Counsel for the Respondents on the other hand submitted that the Appellant?s suit as constituted before the lower Court was based on a simple contract; that the ground for the Appellant?s termination was clearly stated as ?gross professional misconduct and fraudulent activities?; that the Appellant was blacklisted as a result of the report forwarded to the 3rd Respondent by the 1st Respondent on the reason for the termination of the Appellant?s employment which is in compliance with the 3rd Respondent?s directive; that since the Appellant has submitted that he is not challenging the termination or the reason for his termination as stated in the letter of termination; then the Appellant cannot challenge the blacklisting of his name; and that the issues pertaining to the termination of the Appellant?s
27
employment by the 1st Respondent and the forwarding of the Appellant?s employment details to the 3rd Respondent cannot be separated. The Respondents further argued that it is not the requirement of law that before an employer can dismiss his employee accused of crime in the discharge of his duty, the employee must be tried before a Court of law before being dismissed or terminated; that if the Appellant had disagreed with the termination of his employment or the reason for the termination, he ought to have challenged it in a Court of law as at 2006 when he received the letter of termination dated 16th of June, 2006. In Reply, the Appellant argued that no provision can override the Constitutional provision on right to fair hearing; that the 3rd Respondent?s guideline with respect to blacklisting pursuant to Section 48(4) of the Banks and Other Financial Institutions Act, CAP B3, LFN, 2004 requires that the Appellant must have been tried and heard before being blacklisted; and that the Appellant?s employment in the instant case ought not to have been terminated for alleged gross professional misconduct without setting up a Disciplinary Panel to
28
determine the guilt or otherwise of the Appellant.
I will exercise care in the determination of this issue and the appeal as a whole considering the nature of the Ruling which is that the trial Court determined the case pursuant to the preliminary objection of the Respondents and did not consider the substantive suit. The need for the exercise of utmost caution becomes more compelling considering the fact that if this appeal is allowed, the trial Court will have to consider and determine the suit on its merit. I will be circumspect in resolving the narrow issue in controversy between the contending parties by restricting myself to the propriety of the Ruling on the Preliminary Objection without delving into any issue which may prejudice the substance of the case in the event the appeal is allowed and the suit is sent back to the lower Court for trial. The appellate Court has a duty to ensure that it does not make pronouncement on potential issues that may constitute an integral part of the issues to be contested before the lower Court in the event of an order for a fresh trial by this Court.
Having said this much, I have carefully examined the
29
Statement of Claim at pages 4 ? 10 of the Records of Appeal and the Ruling of the lower Court as contained at pages 93 ? 99 of the Records of Appeal particularly at page 99 where the learned trial Judge found and said that:
?I need to reiterate the fact that the present action of the Claimant arose by virtue of his being a former staff of the 1st Defendant. If he were not a staff of the 1st Defendant there would have been no incident which would have warranted the 1st Defendant to terminate his employment and make further recommendation to the 3rd Defendant to act on? Learned counsel to the Claimant had argued that this action is neither in contract nor in tort. Yet he failed to find a proper window or rubric head under which the claims of his client fall. It appears a bit difficult for the Court to be of assistance to him at all. It is for the learned counsel to professional approach the Court in the discharge of his calling. A contract of employment existed between the Claimant and the 1st Defendant at some point. I hold that contract to be a simple contract which formed the basis of the present suit.”
30
In my view therefore, from the facts deposed by the Appellant in the Statement of Claim, the Appellant?s case as constituted before the lower Court was rightly held by the learned trial Judge to have emanated from a simple contract. As submitted by learned Counsel for the Appellant in paragraph 4:35 of the Appellant?s Brief: that looking at the Statement of Claim, there is nowhere it is disclosed that the blacklisting of the Appellant by the 3rd Respondent was done in 2006 and/or with his knowledge The Appellant submitted that he is not challenging the termination of his employment which according to paragraph 5 of the Appellant?s Statement of Claim occurred in 2006. The Appellant also argued that what he is challenging is the blacklisting of his name which he argued he only found out in 2014. However, the question, which the learned trial Judge has adequately answered, is whether the question of blacklisting could have arisen out of the blues if the Appellant had not been first employed by the 1st Respondent and if his employment had not been terminated? I am of the view that the question of the
31
propriety or otherwise of the blacklisting of the Appellant cannot be separated from the termination of his appointment.
?
With respect to the 1st and 2nd Respondents? contention that the forwarding of the Appellant?s details and reason for the termination of his employment was pursuant to the directive of the 3rd Respondent which required all commercial Banks including the 1st Respondent to forward to the 3rd Respondent the names of any staff terminated or dismissed on grounds of fraud and forgeries for necessary action in compliance with Section 48(d) of the Banks and Other Financial Institutions Act, CAP B3, LFN, 2004 of the 3rd Respondent; and the Appellant?s response that no provision can override the Constitutional provisions on the right to fair hearing and the reference to a Publication credited to the 3rd Respondent in THIS DAY Newspaper of Wednesday, 6th of July, 2016 and on the 3rd Respondent?s website ? www.cbn.gov.ng to argue that the 3rd Respondent?s guideline with respect to blacklisting pursuant to Section 48(4) of the Banks and Other Financial Institutions Act, CAP B3, LFN, 2004 requires that the
32
Appellant must have been tried and heard before being blacklisted: I am of the opinion that these submissions by the parties border on the substantive suit before the lower Court which was not at all considered by the learned trial Judge in the Ruling.
The relevant issue which relates to the Ruling is whether or not the learned trial Judge was right to have found that the Appellant?s cause of action was founded on simple contract. The question of what constitutes a cause of action has been answered in seemingly endless judicial decisions. In EGBE Vs. ADEFARASIN (1987) 1 NWLR (Pt. 47); (1987) LPELR-1032 (SC) Pg. 32, Paras. D – E, the Supreme Court of Nigeria per OPUTA, JSC (of blessed memory) held that: ?A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words,a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.? See also COOKEY Vs. FOMBO & ANOR (2005) 15 NWLR (Pt. 947) 182; (2005) LPELR-895 (SC) Pg. 19 – 20, Paras. F – A where EDOZIE, JSC held
33
that:
?A cause of action is the bundle or aggregate of facts which the law will recognize as giving the plaintiff right to make the claim for the relief or remedy being sought. Thus, the factual situation on which the plaintiff relied to support his claim must be recognized by law as giving rise to a substantive right capable of enforcement or being claimed against the defendant
Similarly, in PDP Vs. EKEAGBARA & ORS (2016) LPELR-40849 (CA) Pg. 22-23, Para. E ? D, this Court held that:
?…a cause of action has been defined as the entire set of circumstances giving rise to enforceable claim. It is in effect, the fact or combination of facts which gives rise to a right to sue?
A cause of action is a set of facts, distinct from the evidence averred in the statement of claim, which the plaintiff must prove to support his right to the judgment of the Court. In other words, a cause of action consists of every fact, which the plaintiff must prove, if traversed, in order to support his claim for judgment
See also ATIBA IYALAMU SAVINGS & LOANS LTD Vs. SUBERU & ANOR (2018)
34
LPELR-44069 (SC) Pg. 43-45, Para. F ? B where KEKERE-EKUN, JSC relied on the earlier decision of the Supreme Court in BELLO Vs. OYO STATE (1986) 5 NWLR (Pt. 45) 828 at 876, Paras. A ? B where it was held that: a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.?
?
In the instant case, even though the breach to which the Appellant seeks a remedy is the blacklisting of his name by the 3rd Respondent; the cause of action which gave rise to that right is not unconnected with the termination of his employment which occurred in 2006. The Appellant?s contention that the trial Court took into consideration process other than the Statement of Claim is
35
utterly groundless as it can be easily and clearly deduced from paragraph 5 of the Statement of Claim that his employment was terminated in 2006; and the issue of blacklisting, whether rightly or wrongly, resulted from the termination which occurred in 2006. Without recourse to any other process, it is clear from the Statement of claim that the cause of action arose from the time of the termination of the Appellant?s employment which brings the suit under the head of claims under a simple contract of employment. The Courts must consider the Statement of Claim as a whole and not in fragments or isolation, the entire facts must be considered together to determine the cause of action and not in isolation as the Appellant appears to desire. See: BAJOWA Vs. FRN & ORS (2016) LPELR-40229 (CA) Pg. 18-19, Para. F ? A. The Court cannot shut its eyes to paragraphs 1 and 5 of the Appellant?s Statement of Claim which can be said to be the foundation of the Appellants claim; those claims clearly show that the cause of action arose from the contract of employment which was terminated. In the light of the foregoing therefore, this issue is hereby
36
resolved against the Appellant and in favor of the Respondents. Consequently, therefore, the decision of the lower Court on this issue is hereby affirmed.
ISSUE TWO
The second issue in this appeal which flows from the first issue is: ?Whether the learned trial judge was right in dismissing the Appellant?s suit for being statute-barred.” The Appellants? submission on this issue is that the learned trial Judge relied on the averments and arguments of the Respondents to come to the conclusion that the Appellant?s cause of action arose in 2006 when his employment was terminated by the 1st Respondent; that there is nowhere in the Statement of Claim where it is disclosed that the blacklisting of the Appellant by the 3rd Respondent was made in 2006 and/or with his knowledge. It was also contended that the Appellant only stated that he found out that he had been blacklisted in 2014; that the 1st and 2nd Respondents failed to prove that the action was statute-barred; that the conclusion of the trial Judge that the action is statute-barred resulted from the misconception that the Appellant?s action was grounded on a simple
37
contract; and that the lower Court would not have dismissed the Appellant?s action for being statute-barred if it had properly identified the cause of action in the first place.
With respect to the foregoing submissions of the Appellant, which appears to form the first leg of the Appellant?s contention on the second issue; the said contentions are premised on the Appellant?s belief that the trial Court erred having found that the Appellant?s claim was one founded on simple contract; this formed the fulcrum of the Appellant?s contention under issue No. 1 above which had been determined against the Appellant. In the circumstance therefore, having found under issue No. 1 above that the Appellant?s case was indeed founded on a simple contract which existed between the Appellant and 1st Respondent which was terminated in 2006; it therefore follows, without any difficulty that the Appellant?s cause of action arose in 2006. The foregoing contention of the Appellant therefore goes to no issue and shall accordingly be dismissed; the decision of the learned trial Judge that: the commencement date of his
38
cause of action is 2006 when his employment was terminated by the 1st Defendant is again affirmed.
However, the Appellant in the alternative argued that assuming that the Appellant?s case is founded on simple contract and that the commencement date of the action was in 2006; the Statute of Limitation is still not applicable to the Appellants; that there is an exception to the general rule as to limitation of time within which an action can be brought; that where, as in the instant case, there is a concealment of the cause of action, time will begin to count when the plaintiff discovered the fraud or could have with reasonable diligence discovered it; that in the instant case, the blacklisting of the Appellant?s name was concealed from him and he filed this action on the 2nd day of June, 2015 which is eight months after he became aware in August, 2014 that his name had been blacklisted. It was further submitted that the Appellant was denied fair hearing by the Respondents who recommended a criminal sanction of blacklisting him as a fraudster without any hearing or conviction; and that to sustain the Judgment of the lower Court
39
under the present circumstance will be grossly unjust to the Appellant because his name will remain blacklisted forever, albeit wrongly and unjustly.
The Respondents? submission on this issue is that the Appellant?s suit as constituted before the lower Court, whether classified as tort or simple contract, is statute-barred and that the lower Court was right to have declined jurisdiction in respect of the suit; that the letter of termination was clear as to the reason stated therein for the termination of the Appellant?s employment; that the Appellant was aware of the practice in banks and the 3rd Respondent?s Circular to all banks BSD/3/2004 issued on the 16th of July, 2004 to the effect that all commercial banks must report all cases of terminated/dismissed staff to the 3rd Respondent; and that the Appellant cannot be excused on grounds of ignorance as he is deemed to know the law. The Respondents further contended that the Appellant?s case does not fall under the exceptions stated in Section 58 of the Limitation Law of Lagos State in view of the event that led to the termination of the Appellant; that there was no
40
concealment of any kind committed on the Appellant; that the Appellant personally received his termination letter on 16th June, 2006 wherein it was stated that his services would no longer be required with effect from 19th June, 2006; and that the Appellant wrote a letter dated 12th July, 2006 appealing that he 1st Respondent should oblige him to resign instead; and that the 1st Respondent had no duty to bring to the knowledge of the Appellant the fact that the details of the reason for the termination of his employment would be forwarded to the 3rd Respondent in compliance with the law.
?
In his Reply, the Appellant argued that the blacklisting of his name as a fraudulent person on the 3rd Respondent?s Black-book is a continuing wrong; that the issue at this point is whether the Respondents duly complied with the procedure laid down in their guidelines and Regulations; and further that the 3rd Respondent?s regulations cannot take away the Appellant?s right to fair hearing as guaranteed by the Constitution; that since the contents of the said termination letter were not published to the public, the Appellant had no reason in law to go to
41
Court to attempt to establish his innocence just because the letter terminating his employment had accused him of fraudulent activities; that the Respondent?s submission with respect to the Appellant?s letter dated 12th July, 2006 is in bad faith; and that the argument that the 1st Respondent had no duty to inform the Appellant of the criminal allegations against him and of the fact that he was being blacklisted amounts to a legal heresy.
?
From the foregoing, the Appellant raised two issues in the second leg of the issue under consideration, he raised the issue of concealment as an exception to the law on limitation; and issue of continuing wrong. I peruse the Written Addresses of the parties to be sure that this issue was raised before the lower Court as it was not pronounced upon in the Ruling of the learned trial Judge. The issue of continuing wrong was raised by the Appellant at paragraph 8 (h) of the Appellant?s Counter-Affidavit at page 70 of the Records of Appeal and paragraph 3.9 of the Appellant?s Written Address to the 1st and 2nd Respondent?s Notice of Preliminary Objection as contained at page 76 of the Records of
42
Appeal. As earlier stated, the learned trial Judge did not make a finding on this point.
The law is clear that there are exceptions to the application of the Limitation Laws. In OBOT & ORS Vs. SHELL PETROLEUM DEVELOPMENT COMPANY NIG. LTD (2013) LPELR-20704 (CA) Pg. 51-52, Para. D ? D, this Court held that:
?There are some exceptions to the limitation law set by various limitation statutes. These statutory limitations cover cases such as fraud, deliberate concealment by the defendant, or mistake. There are also other circumstances which amount to exceptions to the limitation law. These include circumstances where there is a continuing injury or fresh damage arising from the same injury. Each fresh damage arising from the same injury or continuing injury, gives rise to a fresh cause of action. In AREMO II Vs ADEKANYE (2004) ALL FWLR (PT 224) 2113 at 2132 ? 2133 the Supreme Court per Edozie JSC said:
where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused? For example if the owner of mine works them and causes damage to the surface
43
more than six years before action, and within six years of action, a fresh subsidence causing damage occurs, without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives a fresh cause of action
See also A. G. OF RIVERS STATE Vs. A. G. OF BAYELSA STATE (2012) LPELR-9336 (SC) per GALADIMA, JSC; NNPC Vs. ZARIA & ANOR (2014) LPELR-22362 (CA) Pg. 56, Para. E ? G; INEC Vs. OGBADIBO LOCAL GOVT. & ORS (2015) LPELR-24839 (SC) Pg. 57-59, Para. C ? C and NWANKWO & ANOR Vs. NWANKWO (2017) LPELR-42832 (CA) Pg. 21-23, Para. F ? E. In the instant case, where the cause of action has been found to be connected to the employment and dismissal of the Appellant; the undisputed fact that the resulting blacklisting of the Appellant?s name and the continued retention of his name in the blacklist of the 3rd Respondent which consequently resulted in the termination of the Appellant?s employment with Access Bank in 2014 as deposed to in paragraph 18 of the Statement of Claim at pages 5 ? 6 of the Records of Appeal in my view
44
constitutes a continuing wrong which is in law, an exception to the limitation law.
This issue was not considered and determined by the learned trial Judge, if the learned trial Judge had devoted little time to this issue; the Court would have come to a different conclusion with respect to the issue of limitation. The fact that the Appellant?s name remains on the 3rd Respondent?s blacklist; which resulted in the termination of his employment with Access Bank; and would invariably, either continue to prevent the Appellant from being employed or likely result in terminating his appointment if he eventually gets employed. The Appellant?s cause of action is therefore one of the exceptions to the general rule on limitations of action. In the light of the foregoing therefore and on the strength of the authorities referred to, I must resolve this issue in favor of the Appellant against the Respondents.This issue is hereby resolved in favor of the Appellant against the Respondents.
In the circumstances, having resolved issues No. 1 in favor of the Respondents and issue No. 2 in favor of the Appellant, this appeal succeeds in part to the
45
extent that the Appellants suit although founded on a contract of employment is not entrapped by the laws of limitation on the ground that the wrong complained of by the Appellant the basis of running to Court for remedy is a continuing wrong. The part of the Ruling of the lower Court delivered by J. D. PETERS, J. on the 19th day of May, 2016 in Suit No: NICN/LA/216/2015 dismissing the Appellant?s suit on grounds of being Statute-barred is hereby set aside by me. Consequently, I hereby Order that this suit NICN/LA/216/2015 be remitted to the President of the National Industrial Court, to be reassigned to another Judge of the Court for accelerated hearing and determination on the merit.
Parties shall bear their respective costs.
MOHAMMED LAWAL GARBA, J.C.A.: I agree
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I had the privilege to read in the draft form, the lead judgment delivered by my learned brother. TIJJANI ABUBAKAR, JCA wherein he held that the appeal be allowed. The issue of limitation of action filed by the Appellant in the lower Court ought to succeed.
I agree with the consequential order
46
made that the Suit No. NICN/LA/216/2015 be remitted to the President of the National Industrial Court and to be re-assigned to another judge of the same Court for it to be accorded accelerated hearing.
I also agree that both parties shall bear their respective costs of the appeal.
47
Appearances:
A I. Uwaka with him, C. K. KonzeFor Appellant(s)
Opeyemi Usiola-kuti with him, Temitayo Agunlejika for the 1st and 2nd Respondent
Emmanuel Ajegba for the 3rd RespondentFor Respondent(s)
Appearances
A I. Uwaka with him C. K. KonzeFor Appellant
AND
Opeyemi Usiola-kuti with him Temitayo Agunlejika for the 1st and 2nd Respondent
Emmanuel Ajegba for the 3rd RespondentFor Respondent
