Mr. Nnamdi Ezebuiro -VS- G.E International Operations (Nig.) Ltd

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT

BEFORE HIS LORDSHIP: HON. JUSTICE P. I. HAMMAN

Date: 9^TH DECEMBER, 2019 SUIT NO: NICN/PHC/116/2017

BETWEEN:

NNAMDI EZEBUIRO———————- CLAIMANT/RESPONDENT

AND

E. INTERNATIONAL OPERATIONS (NIG) LTD ——— DEFENDANT/APPLICANT

RULING/JUDGMENT

The Claimant commenced this suit by way of Complaint and Statement of Facts filed on 8^th November, 2017, claiming against the defendant as follows:

A Declaration that the Defendant’s termination of the Claimant’s employment with the Defendant vide the Defendant’s letter to the Claimant dated the 8^th day of March, 2008 was wrongful and a breach of the Claimant’s contract of employment with the Defendant.

An order for the payment of the sum of 23,850,000.00 (Twenty three million, eight hundred and fifty thousand naira) only, being special damages for wrongful termination of the Claimant’s employment with the Defendant.

An Order for the payment of the sum of N50M being exemplary and punitive damages the Defendant’s contumelious termination of the Claimant’s contract of employment with it.

The Defendant/Applicant filed Memorandum of Appearance on 14^th December, 2017, and subsequently filed a Notice of Preliminary Objection dated 20^th December, 2017 and filed on 9^th January, 2018, challenging the jurisdiction of this court to hear and determine this suit. The grounds for the Objection are as follows:

The Claimant/Respondent commenced this suit on the 8^th day of November, 2017 seeking for the reliefs as set on the endorsement in the general form of complaint.

From reliefs 1 (sic) contained in the general form of complaint and from the reliefs as contained in the Statement of Claim the Claimant/Respondent erroneously stated that his employment was terminated vide letter dated the 8^th of March, 2008 by the Defendant/Applicant.

The Defendant/Applicant vide its letter of termination dated the 8^th of March, 2012 referred to in paragraph 19 of the statement of claim and was frontloaded by the Claimant/Respondent terminated the employment of the Claimant/Respondent in 2012 and not on the 8^th day of March, 2008 as erroneously stated.

The cause of action of the Claimant/Respondent which is founded upon his dismissal by the Defendant/Applicant by the said letter dated the 8^th of March, 2012 arose on the 8^th of March, 2012 when he was dismissed from the Defendant/Applicant’s employment.

By section 16 of the Limitation Law of Rivers State, no action founded on contract shall be brought after the expiration of five years from the date on which the cause of action accrued.

This suit was filed 5 years, 7 months and 27 days from the day the Claimant/Respondent’s cause of action accrued.

This suit as presently constituted is statute barred having been commenced after 5 years when the Claimant’s cause of action arose.

The Honourable Court lacks the jurisdiction to hear and determine this suit as same is statute barred.

In support of the application is an affidavit of 10 paragraphs deposed to by Marthaniah E. Douglas, a Legal Practitioner in the Law Firm of Principles Law Partnership, solicitors to the Defendant/Applicant.

The Defendant/Applicant also filed a Written Address wherein the learned Counsel for the Defendant/Applicant distilled this lone issue for determination:

“Whether this suit as presently constituted is statute barred by virtue of section 16 of the Limitation Law of Rivers State?

It was submitted on the lone issue that, a court is competent only when it is properly constituted as regards the numbers and qualification of the members, the subject matter of the case is within the court’s jurisdiction and the case comes before the court initiated by due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction. That any defect in the competence of the court is fatal to the suit. See Emeka V. Okadigbo (2012) 18 NWLR (Pt. 1331) 83-84, Madukolu V. Nkemdilim (1962) 2 SCNLR 341, Gbileve V. Addingi (2014) 16 NWLR (Pt. 1433) 394 at 427 and Ukwu V. Bunge (1997) 8 NWLR (Pt. 518) 527 at 554.

That in determining whether a suit is statute barred, the court looks at the writ of summons and the statement of claim alleging when the wrong which gave the plaintiff a cause of action was committed, and compare same with the date the writ of summons was filed. See A. G. Adamawa State V. A. G. Federation (2014) 14 NWLR (Pt. 1428) 515 at 550 and Boye V. Adeyeye (2012) 12 NWLR (Pt. 1314) 357 at 384.

According to learned counsel, from the statement of facts in this suit, the cause of action arose on the 8^th of March, 2012 when the claimant was allegedly dismissed from service, and by the provision of section 16 of the Limitation Law of Rivers State which was reproduced by learned counsel, any action founded on contract must be brought within 5 years from the date the cause of action accrued. That since the use of the word ‘shall’ in the statute connotes mandatory, the instant suit filed after the expiration of 5 years is statute barred. The court was referred to the cases of Onochie V. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 89, Babajide Michael Oludele V. WEMA Bank Plc (2014) LPELR, Faroly Establishment V. NNPC (2011) 5 NWLR (Pt. 1241) 457 at 472 paras D-E.

It was finally argued that since this court lacks the jurisdiction to hear and determine this suit for being statute barred by virtue of section 16 of the Limitation Law of Rivers State, the court should resolve the sole issue in favour of the Defendant/Applicant and dismiss the suit.

In opposition to the Notice of Preliminary Objection, the Claimant filed a Counter Affidavit of 14 paragraphs deposed to by the Claimant himself together with a Written Address on 13^th February, 2018, but deemed as having been properly filed and served on 22^nd February, 2018. The learned Claimant’s counsel formulated a lone issue for determination, to wit:

Whether in the circumstance of a continuous injury to the claimant, this suit is statute barred?

According to learned counsel, principles of law are not inflexible, and that the law on limitation of action recognizes a continuous damage as an exception whereby a fresh cause of action arises from time to time. See Folarin & Anor V. Idowu & Ors (2013) LPELR-22123(CA).

The court’s attention was drawn to paragraphs 13 and 14 of the Statement of Facts and the Witness Statement on oath where the claimant stated that he had secured another employment in another organization and tendered his resignation letter to the defendant but the defendant rejected the resignation on the ground that he would not leave until after two years, only to be sacked in less than a year. That the Defendant’s action led him out of employment for a continuous period of 53 months and every month without employment constituted fresh damages resulting in loss of income and inability to sustain himself and his family. See Alhassan V. Aliyu & Ors (2009) LPELR-8340(CA), where it was held that, “—-where the injury complained of is a continuous one, time does not begin to run for the purpose of the application of a limitation law until the cessation of the event leading to the cause of action.”

That the five years limitation period will only count in the circumstance of this case from 16^th July, 2016 when the Claimant was able to secure another job and the court should dismiss the Objection for want of merit.

It is pertinent to state that the Defendant/Applicant filed a Further Affidavit of 7 paragraphs deposed to by Obasi Orji, a Litigation Officer in the Law Firm of Principles Law Partnership, Solicitors to the Defendant/Applicant together with a Reply on Points of Law on 1^st March, 2018. With regard to the Claimant’s contention that this suit is not statute barred because there is a continuous injury, learned counsel argued that the issue of continuous injury is not applicable to this suit. That the fact that the Claimant remained unemployed does not amount to an exception to the law of limitation of action.

That time began to run for the Claimant from 12^th March, 2012 when his contract of employment was terminated. See INEC V. Ogbadibo Local Govt & Ors (2016) 3 NWLR (Pt. 1498) 167 at 205, Olaosebikan V. Williams (1996) 5 NWLR (Pt. 449) 437 at 456 and Asaboro V. Pan Ocean Oil Corp (Nig) Ltd (2017) 7 NWLR (Pt. 1563) 71.

The court is therefore urged to discountenance the claimant’s arguments of a continuous injury as same is misconceived and not supported by law.

By way of adumbration, learned counsel to the Defendant/Applicant argued that the court process filed by the Claimant/Respondent on 15^th August, 2019 as further argument in opposition to the Notice of Preliminary Objection is unknown to law as there is no provision in the Rules of court for such a process. The court was therefore urged to discountenance the said process. With respect to the contention of Claimant’s counsel that the Defendant must file a Statement of Defence before raising any preliminary objection, learned counsel to the defendant referred the court to the cases of Ajayi V. Adebiyi (2012) 11 NWLR (Pt. 1310) 137 and Nasir V. Civil Service Commission Kano State (2010) 6 NWLR (Pt. 1190) 253 at 276 paras. C-D.

COURT’S DECISION:

Having carefully considered the Notice of Preliminary Objection, the affidavits and arguments of learned counsel to the parties in this suit, I am of the view that since the lone issue identified by the Defendant/Applicant is more embracing, same should be adopted for determination in this application. I therefore adopt the said issue which is, “Whether this suit as presently constituted is statute barred by virtue of section 16 of the Limitation Law of Rivers State?

A convenient point to start is to consider some preliminary issues raised by counsel in this suit relating to the competence of the Claimant’s process titled “Further argument in opposition to Preliminary Objection” filed on 15^th August, 2019, as well as the argument of claimant’s counsel that since the defendant did not file statement of defence in this suit, it cannot raise an objection to the instant suit.

By order 17 Rule 1(10) (11) of the Rules of Court 2017, a respondent served with a motion on notice who intends to oppose the application has 7 days within which to file a counter-affidavit and a written address which upon service on the applicant he has 7 days to file a further and better affidavit and a written reply on points of law. This therefore means that in all applications on notice filed before the court the filing of processes ends with the applicant’s further and better affidavit and reply on points of law where the applicant decides to file one. There if therefore no place in the Rules of court for the Respondent who has filed a counter-affidavit and a written address to file a further address in opposition to the application.

The rationale for this is that there must be an end to litigation. In any case, it is observed that the Defendant/Applicant’s Further and Better Affidavit together with the Reply on Point of Law was served on the Claimant/Respondent on the 13^th of March, 2018 at about 10:45am, while the Claimant/Respondent’s process in contention was filed on 15^th August, 2019 ostensibly in opposition to the Objection. I do not think this process filed more than one year after service on the Claimant without being regularized is competent. I agree with Mr. O. O. Laniyan of counsel for the Defendant that the said process is incompetent and same is hereby discountenanced and struck out.

Having struck out the Claimant/Respondent’s Further argument filed on 15^th August, 2019, the claimant’s argument that the defendant must file statement of defence before raising preliminary objection is now of no moment. May I however, for the sake of emphasis state that with due respect to the learned Claimant’s counsel, that argument is misconceived as the provisions of Order 30 Rule 2 of the Rules of Court 2017 cited by counsel does not stop a Defendant from raising objection to the jurisdiction of the court even where the statement of defence has not been filed. It is therefore my view that a preliminary objection can be raised by a defendant who has not filed a statement of defence when the court’s jurisdiction is being contested. See National Electricity Liability Management Limited V. Emmanuel Sunday Omotusi & 400 Ors, ((2016) 17 N.W.L.R. (Pt. 1541) 314 at 329 – 331 paras. B – H.

With respect to the Notice of Preliminary Objection, it is observed that while the learned counsel for the Defendant/Applicant has submitted that the present suit instituted by the Claimant against the Defendant is statute barred having not been commenced within the limitation period of five (5) years as stipulated in section 16 of the Limitation Law, Cap. 80, Laws of Rivers State 1999, the learned Claimant’s counsel on the other hand argued that, the suit is not statute barred because the damage allegedly caused the Claimant is a continuous one hence the cause of action arises from time to time, as often as the damage is caused.

Having carefully considered the facts of this case as pleaded by the Claimant in the Statement of Facts, may I state that while I agree with the legal position as argued by the learned Claimant’s counsel that where the alleged damage is a continuous one, the time will not begin to run for the purpose of computing the limitation period until the injury ceases, I however beg to differ with the claimant’s counsel on the reason given as the continuance of injury. There is nowhere in the reliefs being sought in this suit where the claimant is claiming payment of arrears of salary or any entitlement.

Since there is no claim for payment of any work carried out by the claimant for the defendant, I am of the humble view that the injury or damage suffered by the claimant (if any) is not a continuous one as to stop the cause of action in this suit from running.

Section 16 of the Limitation Law of Rivers State, Cap. 80 Laws of Rivers State 1999, provides as follows:

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

The provision of section 16 of the Limitation Law of Rivers State reproduced above clearly provides that actions founded on contract, tort etc must be brought or commenced within the limitation period of five (5) years from the date the cause of action accrued or occurred.

The law is trite that in determining whether or not an action is statute barred, the court is enjoined to look at the Statement of Claim (in this instance the Statement of Facts) to ascertain when the cause of action arose and compare that date with the date the suit was initiated to see whether or not it was commenced within the limitation period provided by law.

See the case of MRS. COMFORT OLUFUNMILAYO ASABORO AND 1 OTHER V. PAN OCEAN OIL CORPORATION (NIGERIA) LIMITED AND 1 OTHER (2017) 7 N. W. L. R. (PART 1563) 42 AT 67 – 68, PARAGRAPHS H – C, where the apex court held thus:

“It is to be reiterated that an action instituted after the expiration of the prescribed period is said to be statute – barred. That is to say that where the limitation of time is imposed in a statute unless that same law makes provision for extension of time, the courts have their hands tied from extending the time as the action filed outside the stipulated period will lapse by effluxion of time. The follow up to the above is to determine whether an action is statute barred and in doing this the court is expected to peruse the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question occurred and compare it with the date the originating process was filed in court. I rely on the case of Ogundipe V. NDIC (2008) All FWLR (Pt. 432) 1220 at 1239, (2009) 1 NWLR (Pt. 1123) 473.”

Applying the above principle to this case, I have gone through the reliefs sought by the Claimant in this case and the facts pleaded in the Statement of Facts in order to discover when the Claimant’s cause of action arose. By the averments in Paragraph 12 of the Statement of Facts as well as the dismissal letter dated 8^th March, 2012 frontloaded with the originating processes, the claimant was dismissed from service on 8^th March, 2012. I therefore hold the view that the cause of action in this matter arose and time began to run on the 8^th of March, 2012 when the Claimant was aware of his dismissal from service.

The law is trite that a cause of action accrues and time begins to run for the purpose of limitation law when a cause of action becomes complete so that the injured or aggrieved party can begin to maintain his suit as there would have been in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.

In the case of Mrs. Comfort Olufunmilayo Asaboro & 1 Or. V. Pan Ocean Oil Corporation (Nigeria) Limited & 1 Or. (supra), at page 71 Para. D, the apex court per Kekere-Ekun, JSC held as follows: “The law is quite settled that for the purpose of limitation law, time begins to run when there is in existence a person who can sue and another who can be sued and when all the facts have happened, which are material to be proved to enable the plaintiff to succeed.”

See also CHRISTIANA I. YARE V. NATIONAL SALARIES, WAGES AND INCOME COMMISSION (2013) LPELR – 20520 (SC).

I have looked at the Claimant’s originating processes in this matter and it is clear that this suit was filed or commenced on 8^th November, 2017. Comparing the date of accrual of the cause of action (8^th March, 2012) and the date this suit was instituted (8^th November, 2017), it is clear that the Claimant did not file the suit within the limited period of five (5) years in line with the provision of section 16 of the Limitation Law Cap. 80, Laws of Rivers State of Nigeria 1999.

I therefore hold that the Claimant’s suit is statute barred and no longer maintainable even as this court lacks jurisdiction to continue to entertain it. The Notice of Preliminary Objection hereby succeeds.

It is the law that where a court of law finds that an action is statute barred, the right or proper order to make is to dismiss the suit since the suit cannot be properly or validly commenced after the expiration of the limitation period prescribed in the law. See Suleman Lado Mani & 1 Or. V. Rabe Nasir & 7 Ors. (2011) 13 N.W.L.R. (Part 1263) 23 at 34 – 35, Paras. H – A.

In the circumstance, and on the strength of the authorities cited and relied upon, the appropriate order to make is to dismiss the suit for being statute barred. Accordingly, this suit is hereby dismissed.

Before I sign off, may I state that even though I am aware of the recent Supreme Court decision in the case of National Revenue Mobilisation Allocation and Fiscal Commission & Ors V. Ajibola Johnson & Ors (2019) 2 N.W.L.R. (Pt. 1656) 247 where it has been held that section 2(a) of the Public Officers Protection Act does not apply to cases of contract, the said Public Officers Protection Act which applies to cases involving federal public officers is not the subject of interpretation in this case.

I make no order as to cost.

Ruling is entered accordingly.

Hon. Justice P. I. Hamman

Judge

APPEARANCES: