NIGERIAN DEPOSIT INSURANCE CORPORATION (NDIC) V. THE GOVERNING COUNCIL OF THE INDUSTRIAL TRAINING FUND AND ANOR.
(2011)LCN/4556(CA)
In The Court of Appeal of Nigeria
On Thursday, the 19th day of May, 2011
CA/A/120/08
RATIO
DUTY OF THE COURT: WHETHER IN INTERPRETING THE PROVISIONS OF A LAW OR AN ACT, THE PRIMARY CONCERN OF THE COURT IS THE ASCERTAINMENT OF THE INTENTION OF THE LEGISLATURE OR LAWMAKERS
On the intention of the Legislature the Supreme Court had this to say in the case of:- -Agro Allied Ent. Ltd. v. MV Northern Reefer & 2 others (2009) 5-6 S.C. part 1 page 110 at 122 per Onnoghen JSC. “It is my considered view that the provision is very clear and unambiguous. It is now settled that in the area of construction, the primary concern of the Courts is the ascertainment of the intention of the Legislature or lawmakers – From this function, the Court may not resile however ambiguous or difficult of application of words of the law or Act may be, the court is bound to place some meaning upon them. If the language is clear and explicit, the court must give effect to it, for in that case, the words of the statute speak the intention of the Legislature.” PER JIMI OLUKAYODE BADA, J.C.A.
RULE OF INTERPRETATION: WHETHER WHERE THERE ARE TWO PROVISIONS, ONE SPECIAL AND THE OTHER GENERAL, COVERING THE SAME SUBJECT MATTER, A CASE FALLING WITHIN THE WORDS OF THE SPECIAL PROVISION MUST BE GOVERNED THE SPECIAL PROVISION AND NOT BY THE TERMS OF THE GENERAL PROVISION
In Schroder & Co V. Major (supra) which considered the construction of Order 6 Rule 15(1) and 16 of the High Court of Lagos (Civil procedure) Rules 1972, as regards proof of service of a writ of summons to which rule 16 made special provisions and rule 15, on the other hand, made general provisions. On question of which of the said provisions of the said rules had to prevail in the matter of proof of service of the writ of summons, relying on the principle elicited from Bamigboye v. Administrator General (1954) 14 WACA page 616, Agbaje JSC at page 22 observed that on the authorities the provisions of rule 16 which made special provisions for proof of service had to prevail. Also in Bamigboye v. Administrator General (1954) 14 WACA, Page 616 per Bairaman J, as he then was again on the true and proper construction of two statutory provisions, one specific and the other general, covering the same subject matter observed at page 619 as follows:- “It is an accepted cannon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind the rule is that the legislature in making the special provisions is considering the particular case and, expressing its will in regard to that case, hence the special provision forms an exception importing the negative, in other words the special case provided for in it is expected and, taken out of the general provision and, its ambit, the general provisions does not apply. Equally in the case of Ezeadukwa V. Maduka (1997) 8 NWLR Part 578 Page 635 at 657 Paragraphs B – D per Tobi JCA (as he then was) his lordship stated:- “It is the law that where there are two enabling laws, one specific and the other general, the Court should invoke the specific provision. This is because the Court is entitled to presume that the draftsman intended the specific law to govern the matter. The above authorities make it abundantly clear that in circumstances as in the instant matter, the special provision for representation of the State in the Federal High Court was to prevail. Therefore the Court below ought to have in the circumstances invoked the special provisions of Section 56(1) in resolving the impasse.” PER JIMI OLUKAYODE BADA, J.C.A.
PERIOD OF LIMITATION: HOW THE COURT WILL DETERMINE WHETHER OR NOT AN ACTION IS STATUTE BARRED; WHEN DOES THE PERIOD OF LIMITATION BEGIN TO RUN
I am not persuaded by the submissions of learned Counsel for the Respondents because in determining whether or not an action is statute barred, the period limited must be strictly calculated within mathematical accuracy. When a Court is faced with this task it must calculate the minute details, the years, months and days that have elapsed after the accrual of the cause of action. The Respondents’ submission in paragraph 4.48 of the Respondents’ brief of argument that limitation time begins to run at the time an employee must have registered with the Plaintiff is not the correct position under the law. It is trite that period of limitation begins to run at the time the cause of action accrued, or from the moment the cause of action arose. See the following cases:- -Muomah v. Spring Bank Plc (2009) 3 NWLR part 1129 page 553 at 575 – 576 paragraphs H-D: -Chukwu v. Amadi (2009) 3 NWLR part 1127 page 56 at 75 paragraph B-D. PER JIMI OLUKAYODE BADA, J.C.A.
GROUND OF APPEAL: EFFECT OF AN ISSUE FOR DETERMINATION FORMULATED FROM A COMPETENT AND INCOMPETENT GROUND OF APPEAL
By way of analogy, where a party has filed many grounds of appeal, some of which are competent and some are incompetent, if an issue for determination thereon is formulated to encompass both competent and incompetent grounds, the issue itself becomes incompetent as the arguments on the incompetent grounds would have contaminated the arguments on the competent grounds. In Sosanya v. Onadeko (2000) 11 NWLR part 677 page 34 at 53 this Court had to consider the propriety of lumping competent and incompetent grounds together under an issue. This Court held among others as follows:- “In Nwadike v. Ibekwe (supra); Bereyin v. Gbodo (Supra) it was held that an incompetent ground of appeal cannot be argued together, the incompetent ground contaminates the valid ground and they are liable to be struck out as adopted in Idgaayor & another v. Chief Sampson Tigidam (1995) 2 NWLR part 377 page 359, African Continental Bank Plc. V. Eagle Super Pack Nig. Ltd. (1995) 2 NWLR Part 379 Page 590. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
NIGERIAN DEPOSIT INSURANCE CORPORATION (NDIC) Appellant(s)
AND
(1) THE GOVERNING COUNCIL OF THE INDUSTRIAL TRAINING FUND
(2) THE DIRECTOR GENERAL OF THE INDUSTRIAL TRAINING FUND Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Federal High Court in Suit No. FHC/ABJ/CS/624/05 delivered on the 2nd day of August 2006.
The Respondents who were Plaintiffs at the trial Court commenced their action by way of Originating Summons dated and filed on 13th December 2005, seeking determination of the following reliefs against the Appellant who was the Defendant.
“(1) Whether by virtue of Section 6(1) of Decree 57 of 1971 as amended by Decree 50 of 1990 that the Defendant is statutorily mandated to register with the Plaintiffs and contribute to the fund.
(2) Whether by virtue of Section 14 of Decree 47 of 1971 as amended up to date, the Defendants falls within the category of employers that are liable to contribute to the Plaintiffs’ fund.
(3) If the answers to questions 1 & 2 are in the affirmative, the Plaintiffs therefore seek the following reliefs:-
(a) A declaration that the Defendant is within the contemplation of Decree 47 of 1971 as amended up to date.
(b) A declaration that the Defendant has defaulted in complying with the Plaintiffs’ enabling statutes by not contributing 1% of the Defendants’ gross pay-roll to the Plaintiffs and which has accumulated to N350 Million (Three Hundred and Fifty Million Naira only) (covering 1998 – 2004 contributions).
(c) An Order directing the Respondent to comply with the Plaintiffs’ enabling Decree No. 47 of 1971 as amended up to date and render returns of training and account of contributions due from 1998 – 2004 (See Pages 3 – 4 of the Record of Appeal).
In support of the Originating Summons the Plaintiffs/Respondents filed a 26 paragraph affidavit and 7 Exhibits marked ITF1-ITF7.
In response to the Originating Summons the Defendant now Appellant, filed a 32 paragraph “Counter Affidavit” (i.e. affidavit in opposition). (See Pages 26 – 29 of the Record of Appeal).
At the conclusion of hearing, the learned trial Judge in a considered Ruling held among others as follows:-
“On the whole, I hold that the Defendant is qualified to register with the Plaintiffs, and contribute 1% of its gross pay roll to the Plaintiffs. That the Defendant furnish relevant documents to Plaintiffs so that the actual amount payable can be properly calculated. I so hold” (See page 149 of the Record).
The Appellant dissatisfied with the said Ruling appealed to this Court.
The learned Senior Counsel for the Appellant formulated four issues for determination of the appeal. The issues are set out as follows:-
“(1) Whether the claim of the Plaintiffs/Respondents are not caught by the provisions of the Public Officers Protection Cap 379, Laws of the Federation of Nigeria 1990. (Grounds 1 & 2).
(2) Whether in any event the claims/reliefs of the Respondents dealing with or relating to “accrued liability” from 1998 to 2004 can be accommodated having regard to Section 10 of Industrial Training Fund Act Laws of the Federation of Nigeria 1990. (Ground 3).
(3) Whether there is proof that the Appellant is engaged in Commerce and Industry, and, therefore falls within the category of Employers as defined by Section 16 of the Industrial Training Fund ITF Act, Cap 19, Laws of the Federation of Nigeria 1990. (Grounds 4 and 5).
(4) Whether the non-compliance with the provisions of Section 12 ITF Act, Cap 182, Laws of the Federation of Nigeria (LFN) 1990 robbed the trial Court of Jurisdiction to hear and determine the suit. (Ground 6).
The learned Counsel for the Respondents adopted the issues formulated on behalf of the Appellant.
At the hearing learned Senior Counsel for the Appellant referred to the Appellant’s brief of argument deemed properly filed on 28/1/2010 and also the Appellant’s reply brief of argument deemed properly filed on 24/2/2011.
He adopted the two briefs of argument in urging that the appeal be allowed.
The learned Counsel for the Respondents referred to the Respondents’ brief of argument deemed properly filed on 22/9/2010.
He adopted the said brief of argument and urged that the appeal be dismissed.
ISSUES 1 & 2
-Whether the claim of the Plaintiffs/Respondents are not caught by the provisions of the Public Officers Protection Act, Cap 879, Laws of the Federation of Nigeria 1990.
-Whether in any event the claims/reliefs of the Respondents dealing with or relating to “accrued liability” from 1998 to 2004 can be accommodated having regard to Section 10 of Industrial Training Fund Act, Laws of the Federation of Nigeria 1990.
The learned Senior Counsel for the Appellant referred to the Plaintiffs/Respondents Claim and he stated that it is not in dispute that this Suit was filed on 13th December 2005 as apparent on the face of the Originating Summons.
He submitted that this Suit was filed more than three months either:-
(i) From 1998 – 2004 as being claimed by the Plaintiffs in their claim or
(ii) From August 16, 2005, when their Solicitors were demanding compliance.
He also referred to paragraphs 26, 27, 28 and 29 of the “Counter Affidavit i.e. the affidavit in opposition.
The summary of the four paragraphs is that the time within which the Plaintiffs/Respondents could bring this action has lapsed.
He stated that two legislations are to be considered and they are:-
(1) The Public Officers Protection Act and
(2) Section 10 of the Industrial Training Fund Act.
The Public Officers Protection Act Cap 379 Laws of the Federation of Nigeria provides:-
“(2) Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, Law, Duty or Authority, the following provisions shall have effect:-
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
The Plaintiffs/Respondents have argued in paragraph 3.49 of their brief that, the applicable law as to time (limit) allowed to recover fund due to the Plaintiffs is 6 years.
Section 10(1) of the ITF Act provides thus:-
“Notwithstanding any other provisions in this Act, a contribution to the fund shall be recovered by action as a debt owing to the Fund at any time within six years from the date when the contribution became due.”
The learned Senior Counsel for the Appellant submitted that while Section 10(1) of the ITF Act makes provision for general right of the Plaintiffs, that general right becomes limited if and when it is to be exercised vis-Ã -vis a public officer by virtue of the Public Officers Protection Act. Thus, it is trite that in the interpretation of statute, a specific provision prevails over a general provision that is where one statute makes provision in a general term and another statute makes a specific provision on the same subject, the specific provision prevails.
He relied on the case of:-
-Osahon v. F.R.N. (2003) 16 NWLR Part 845 page 89 at 125 and 127.
He went further in his submission to state that the plaintiffs/Respondents have argued that the Defendant/Appellant is not a public officer but a public institution and to that extent the Defendant/Appellant will not be covered under the provisions of the Public Officers Protection Act. He then submitted that Public Officers Protection Act is applicable to public bodies/institutions.
He relied on the following cases:-
-Ibrahim v. Judicial Service Committee & another (1998) 14 NWLR Part 584 Page 1;
-Offoboche v. Ogoja L.G. (2001) 16 NWLR part 739 page 458 at 489 – 490.
He concluded that the Defendant is covered by the provisions of the public Officers Protection Act and the Plaintiffs’ Claim, having been filed well after three months from the date of default as to registration and payment, the claims are caught by the provisions of Public Officers Protection Act, and that they are statue barred and the Court lacks jurisdiction to entertain same. He urged that the claim be dismissed.
The learned Senior Counsel for the Appellant submitted further that if the applicable law as to limitation of action is Section 10 of the Industrial Training Fund Act that the claim of the Plaintiffs will still be statue barred.
He drew the attention of this Court to the fact that the Plaintiffs lumped the amount claimed from 1998 – 2004 together and gave a round figure of =N=350 Million.
He argued further that looking at the Plaintiffs/Respondents Claim for 1998 and the default to register by virtue of Section 10 of the ITF Act will become statute barred by the end of 2004. The Plaintiffs/Respondents have filed this suit on 13th December 2005. Therefore the claims for 1998 and default for non-registration were filed outside the six years period allowed under Section 10 of the ITF Act thereby making same to be statute barred and unenforceable. He relied on the following cases:-
-Obiefana vs. Okoye (1964) NSCC Page 52 at 56;
-Egbe vs. Adefarasin (1987) 1 NWLR Part 47 Page 1 at Page 15.
He argued further that if the claim of 1998 is statue barred, how would the Court deduct that claim from the lump sum of N350 Million. He submitted that having failed to specify what is due for each year made the entire sum to be contaminated with incompetent claim, hence the whole claim is liable to be dismissed.
He relied on the case of:-
-Sosonya vs. Onadeko (2001) 11 NWLR Part 677 Page 34 at 53.
He finally submitted that the Plaintiffs’ Claim is still statute barred and should be dismissed.
The learned Counsel for the Respondents submitted that the cardinal question that is germane to the determination of the issue under consideration is whether the Public Officers Protection Act or Section 10 of the ITF Act should apply.
He submitted that where there is conflict between two laws covering the same subject matter, one specific and the other general, the specific provision of the law prevails. He also relied on the cases of:-
-Osahon v. F.R.N (Supra)
-Bamigboye v. Administrator General (1954) 14 WACA Page 616.
He submitted further that Public Officers Protection Act makes a general provision as to limitation of time for action against public officer/public institutions generally and the provisions of Section 10 of the ITF Act 2004 specifically provides for any action in relation to effective operation of the statute.
He submitted that in the interpretation of statute that it is better to interpret a statute to save rather than destroy the real purpose or intention of the legislature. He relied on the following cases:-
– Savanah Bank Nig. Ltd vs. Ajilo (2001) 1 FWLR Part 75 Page 513 at 526;
– Nafiu Rabiu vs. Kano State (1980) 8 – 11 S. C. Page 130.
On the issue whether the claim for 1998 is statute barred as argued by the Appellant the learned Counsel for the Plaintiffs/Respondents submitted that the proper procedure to be adopted is to consider conjunctively Section 6(2) and 10 of the Industrial Training Fund Act.
“Section 6(1) of the ITF Act states thus:-
(1) Every employer having twenty five or more employees in his establishment shall in respect of each calendar year and or the prescribed date, contribute to the fund 1% of the amount of his annual profit.
(2) In this Section “the prescribed date”
(a) In respect of the year one thousand nine hundred and seventy-one, means a date not later than three months from the commencement of this Act, and
(b) In respect of every subsequent year, means a date not later than 1st April of the following year.”
“Section 10(1) provides thus:-
“Notwithstanding any other provisions of this Act, a contribution to the fund shall be recoverable by action as a debt owing to the fund at anytime within six years from the date when the contribution became due.”
It was argued on behalf of the Plaintiffs/Respondents that the two sections quoted above shows that annual contributions are made payable in arrears and not in advance and also that the contribution year calendar runs from the month of April of a particular year to April of the next year. He argued that it follows that contribution for the year 1998 becomes payable only in 1999.
It was submitted further on behalf of the Plaintiffs/Respondents that the limitation time starts to run at the time an employer must have registered with the Plaintiff. And that the action of the Plaintiffs at the lower Court was to compel the Defendant/Appellant to register with the plaintiffs/Respondents and pay contribution of its arrears as enjoined by Section 13(1) of Industrial Training Fund (Amendment) Decree No. 44 of 1990 which is the basis for the claim of the sum of =N=350 Million being claimed by the Plaintiffs/Respondents.
The learned Senior Counsel for the Appellant in his reply brief of argument contended that Section 2(a) of the Public Officers Protection Act limits the right of action against only public officers after three months of accrual of the cause of action; while the provisions of Section 11(1) of the ITF Act Cap 19 Laws of the Federation of Nigeria 2004 limits recovery of contributions to the fund for a period of six years without specifically restricting the application of that section to either a public or private person.
He submitted further that the omission by Section 11(1) of the ITF Act to restrict the application of the section to either public or private persons makes the section a general law, as the section is made applicable to both public and private persons, while the specific application of Section 2(a) of the public Officers Protection Act to only public officers makes it a specific law.
Therefore where there appears to be a conflict of which of the Specific or General law should apply that it is Section 2(a) of the Public Officers protection Act that will apply to restrain the right of the Respondents to institute any action against the Appellant who is a public person.
He relied on the cause of:-
-Bamigboye v. Administrator General (supra).
The plaintiffs/Respondents’ claim were set out at the beginning of this Judgment. It is not in dispute that this suit was filed on 13th December 2005 as apparent on the face of the Originating Summons.
It was contended on behalf of the Appellant that this Suit was filed more than three months either;
(i) From 1998 – 2004 as being claimed by the Plaintiffs/Respondents in their claim, or
(ii) From August 16, 2005 when their Solicitors were demanding compliance.
The learned Counsel for the Plaintiffs/Respondents stated that the public Officers Protection Act will not be applicable, rather it is Section 10(1) of the ITF Act i.e. Section 11(1) of the 2004 Act that will apply.
The appropriate starting point is to determine whether it is the Public Officers Protection Act or Section 10(1) of the ITF Act i.e. Section 11(1) of the 2004 Act that should apply in this case under consideration.
Learned Counsel for the parties are ad idem on the fact that where there is a conflict between two laws covering the same subject matter, one specific and the other general, that the specific provision of the law prevails.
The area of disagreement is which of the two laws the specific law is and which is the general law. After solving this riddle, it would then be determined which law is applicable to the Plaintiffs/Respondents’ case as constituted at the trial Court.
The two legislations are hereby set out as follows:-
Section 10(1) of the ITF Act (i.e. Section 11(1) of the 2004 Act) provides that-
“Notwithstanding any other provisions of this Act, a contribution to the fund shall be recoverable by action as a debt owing to the fund at anytime within six years from the date when the contribution became due.”
While Section 2(a) of the Public Officers Protection Act provides thus:-
“(2) Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Act or law of any public duty or authority or in respect of any alleged neglect or default in the execution of any such Act, Law, Duty or Authority, the following provisions shall have effect:-
(a) The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.”
The learned Senior Counsel for the Appellant contended that while Section 10(1) of the ITF Act makes provision for general right of the plaintiffs, that general right becomes limited if and when it is to be exercised vis-Ã -vis a Public Officer by virtue of Section 2(a) of the Public Officers Act.
But I do not agree with his contention because an action could only be commenced within the purview of the Plaintiffs enabling laws specifically and any other laws in that regard are just of general application, applicable not only to the Plaintiffs/Respondents alone but general to all and sundry.
It is my view that while the Public Officers Protection Act makes a general provision as to limitation of time for action against Public Officers/public Institutions generally, the provision of Section 10(1) of the ITF Act (i.e. Section 11(1) of the 2004 Act) specifically provides for any action in relation to effective operation of the statute, and the law makers intention in that Section is for the six years time limit to apply specifically where the subject matter of the action is a default of contribution to the Respondents.
A careful reading of the Industrial Training Fund Act showed that the Act applies only to specific categories of Employers of Labour having at least 25 or more employees in their employment and engages in commerce or Industry. To this extent the Industrial Training Fund Act is intended to take care of the ITF special and peculiar cases in relation to the Respondent’s Claims as this is in line with the intention of the Legislature.
On the intention of the Legislature the Supreme Court had this to say in the case of:-
-Agro Allied Ent. Ltd. v. MV Northern Reefer & 2 others (2009) 5-6 S.C. part 1 page 110 at 122 per Onnoghen JSC.
“It is my considered view that the provision is very clear and unambiguous. It is now settled that in the area of construction, the primary concern of the Courts is the ascertainment of the intention of the Legislature or lawmakers –
From this function, the Court may not resile however ambiguous or difficult of application of words of the law or Act may be, the court is bound to place some meaning upon them. If the language is clear and explicit, the court must give effect to it, for in that case, the words of the statute speak the intention of the Legislature.”
My views above are fortified by the decision of the Supreme Court in the case of:-
-Osahon v. FRN (Supra)
Where it was held among other that:-
“Furthermore, it is settled that where there are two enabling provisions as here one specific and the other general, the Court ought to presume without more that the lawmaker has intended the specific provision to prevail over the general provision and so to govern the matter.
See Federal Mortgage Bank of Nigeria v. P. N. Olloh (2002) 9 NWLR Part 773 Page 475, (2002) 4 S. C. Part II Page 117. Schroder & Co. v. Major Co. Ltd. (1989) 2 NWLR Part 101 Page 1 at 21 per Agbaje JSC. Bamigboye V. Administrator-General (1954) 14 WACA Page 616 per Bairamain J. (as he then was).
Let me, however, advert in amplification of the point to one or two of the above sited cases.
In Schroder & Co V. Major (supra) which considered the construction of Order 6 Rule 15(1) and 16 of the High Court of Lagos (Civil procedure) Rules 1972, as regards proof of service of a writ of summons to which rule 16 made special provisions and rule 15, on the other hand, made general provisions. On question of which of the said provisions of the said rules had to prevail in the matter of proof of service of the writ of summons, relying on the principle elicited from Bamigboye v. Administrator General (1954) 14 WACA page 616, Agbaje JSC at page 22 observed that on the authorities the provisions of rule 16 which made special provisions for proof of service had to prevail.
Also in Bamigboye v. Administrator General (1954) 14 WACA, Page 616 per Bairaman J, as he then was again on the true and proper construction of two statutory provisions, one specific and the other general, covering the same subject matter observed at page 619 as follows:-
“It is an accepted cannon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision. The reason behind the rule is that the legislature in making the special provisions is considering the particular case and, expressing its will in regard to that case, hence the special provision forms an exception importing the negative, in other words the special case provided for in it is expected and, taken out of the general provision and, its ambit, the general provisions does not apply.
Equally in the case of Ezeadukwa V. Maduka (1997) 8 NWLR Part 578 Page 635 at 657 Paragraphs B – D per Tobi JCA (as he then was) his lordship stated:-
“It is the law that where there are two enabling laws, one specific and the other general, the Court should invoke the specific provision. This is because the Court is entitled to presume that the draftsman intended the specific law to govern the matter.
The above authorities make it abundantly clear that in circumstances as in the instant matter, the special provision for representation of the State in the Federal High Court was to prevail. Therefore the Court below ought to have in the circumstances invoked the special provisions of Section 56(1) in resolving the impasse.”
In view of the foregoing it is my view that the applicable law and which is specific to this action is the Respondent’s enabling Act i.e. Industrial Training Fund Act 2004 as amended and not Public Officers Protection Act.
In the Originating Summons filed on 13/12/2005 the plaintiffs/Respondents claimed N350 Million as accumulated contributions for between 1998 to 2004.
The question to be answered at this juncture is – Is the plaintiffs/Respondents Claim for 1998 statute barred as argued by the Appellant?
The learned Counsel for the Plaintiffs/Respondents referred to Sections 6(1) and (2) and 10 of the Industrial Training Fund Act and he contended that annual contributions are made payable in arrears and not in advance and the contribution calendar year runs from the month of April of a particular year to April of the next year.
He submitted that the limitation time starts to run at the time an employer must have registered with the Plaintiff. And the action of the plaintiffs/Respondents at the lower Court was to compel the Defendant/Appellant to register with the Plaintiff/Respondent and pay contribution of its arrears as enjoined by Section 13(1) of the Industrial Training Fund (Amendment) Decree No. 44 of 1990 which is the basis for the claim of the sum of =N=350 Million by the Plaintiffs/Respondents. He went further in his submission that there is no limit as to the time the plaintiff can compel an employer to register and pay contribution arrears.
I am not persuaded by the submissions of learned Counsel for the Respondents because in determining whether or not an action is statute barred, the period limited must be strictly calculated within mathematical accuracy. When a Court is faced with this task it must calculate the minute details, the years, months and days that have elapsed after the accrual of the cause of action.
The Respondents’ submission in paragraph 4.48 of the Respondents’ brief of argument that limitation time begins to run at the time an employee must have registered with the Plaintiff is not the correct position under the law.
It is trite that period of limitation begins to run at the time the cause of action accrued, or from the moment the cause of action arose. See the following cases:-
-Muomah v. Spring Bank Plc (2009) 3 NWLR part 1129 page 553 at 575 – 576 paragraphs H-D:
-Chukwu v. Amadi (2009) 3 NWLR part 1127 page 56 at 75 paragraph B-D.
In the instant case the cause of action arose in 1998 being the period plaintiffs/Respondents claimed the Appellant ought to have commenced registration and contribution.
It is also necessary to consider the fact that the plaintiffs/Respondents lumped their claims from 1998 – 2004 together and gave a round figure of N350 Million.
As it is, the Plaintiffs/Respondents have not specified how much is due from the Defendant for each of the year 1998, 1999, 2000, 2001, 2002, 2003 and 2004.
It is my humble view that the Plaintiffs/Respondents should have set out specifically what is due for each respective year stating what the staff strength of the Appellant was for each year of claim, stating this would assist in knowing whether the staff strength has increased or it has increased and whatever the situation is would now translate into Naira and Kobo. Therefore the failure to specify what is due for each particular year is fatal to the case of the Plaintiffs/Respondents.
I am not persuaded by the argument of learned Counsel for the Plaintiffs/Respondents on this issue-
A careful examination of the Plaintiffs/ Respondents’ Claim for 1998 would reveal that the claim for 1998 and the default to register by virtue of Section 10 of the ITF Act (i.e. Section 11(1) of the ITF Act 2004, became statute barred by the end of 2004. This Suit was filed by the plaintiffs/Respondents on the 13th December, 2005, the claim for 1998 and default for non-registration were filed outside the six years period allowed under Section 10 of the ITF Act (i.e. Section 11(1) of the ITF Act 2004) thereby making same to be statue barred and unenforceable.
See:-
Having held that the plaintiffs/Respondents Claim for 1998 is statute barred, how would the Court deduct that claim from the lump sum of =N=350 Million. The learned Senior Counsel for the Appellant submitted that the plaintiffs/Respondents having failed to specify what is due for each year, have made the entire sum to be contaminated with incompetent claim. I agree with that submission, and it is my view that as a result of the failure to specify what is due for each year, the whole claim is liable to be struck out.
By way of analogy, where a party has filed many grounds of appeal, some of which are competent and some are incompetent, if an issue for determination thereon is formulated to encompass both competent and incompetent grounds, the issue itself becomes incompetent as the arguments on the incompetent grounds would have contaminated the arguments on the competent grounds.
In Sosanya v. Onadeko (2000) 11 NWLR part 677 page 34 at 53 this Court had to consider the propriety of lumping competent and incompetent grounds together under an issue. This Court held among others as follows:-
“In Nwadike v. Ibekwe (supra); Bereyin v. Gbodo (Supra) it was held that an incompetent ground of appeal cannot be argued together, the incompetent ground contaminates the valid ground and they are liable to be struck out as adopted in Idgaayor & another v. Chief Sampson Tigidam (1995) 2 NWLR part 377 page 359, African Continental Bank Plc. V. Eagle Super Pack Nig. Ltd. (1995) 2 NWLR Part 379 Page 590. As a result issues 1, 3, 5, 6, 7, 8 and 9, 10, 11 and 12, 13 argued the following grounds of appeal.
(i) Issue 2 based on grounds 4 and 16.
(ii) Issue 3 based on grounds 3 and 19.
(iii) Issue 5 based on grounds 14 and 21.
(iv) Issue 6 based on ground 1 and 22.
(v) Issue 7 based on ground 6 and 24.
(vi) Issues 8 and 9 based on grounds 5, 7, 11, 13, and 23.
(vii) Issue 10, 11 and 12 based on grounds 12, 25, 26 and 28.
(viii) Issue 13 based on grounds 8, 9, 10, 12, 14 and 27, having been argued with incompetent grounds of appeal based upon Nwadike v. Ibekwe (Supra): Bereyin v. Gbodo (supra); Idaayor v. Tigidam (supra); African Continental Bank Plc. V. Eagle Super Pack Nig. Ltd. (Supra) are hereby struck out with the appeal sustained on the omnibus ground 15 that the Judgment is against the weight of evidence which is permissible under the rule in Ezebilo Abasi & Others v. Vincent Ekwalor & another (1993) 6 NWLR part 302 page 643 at per Ogundare JSC.”
Consequent upon the foregoing and applying the principle in the case of:-
-Sosanya v. Onadeko (Supra) to the present case under consideration, it is my view that the Plaintiffs/Respondents’ Claim for 1998 having been found to be statute barred and unenforceable has contaminated the entire lumped up claim of =N=350 Million (Three Hundred and Fifty Million Naira).
In the final analysis, having found that the applicable law as to limitation of action in this case is Section 10 of the ITF Act (i.e. Section 11(1) of the ITF Act 2004) and not the Public Officers Protection Act, therefore Issue No. 1 is resolved in favour of the Respondents.
But as for Issue No. 2 upon which it was found that the plaintiffs/Respondents’ Claim for 1998 has contaminated the entire lumped up claim of =N=360 Million (Three Hundred and Fifty Million Naira), the said claim has become incompetent.
This Issue No. 2 is resolved in favour of the Appellant.
With the resolution of Issue No. 1 in favour of the Respondents and Issue No. 2 in favour of the Appellant whereby the Respondents’ Claim has been declared to be incompetent, therefore, it would not be necessary to deal with issues 3 and 4.
This appeal therefore succeeded in part.
In conclusion, this appeal is allowed, the Judgment of the trial Court delivered on 2nd day of August 2006 is hereby set aside, and in its place the plaintiffs/Respondents’ Claim is hereby struck out for being incompetent.
There shall be no order as to cost.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother Bada JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
For the same reasoning as contained in the read judgment, which I adopt as mine, I allow this appeal and endorse all the consequential orders contained therein including order as to cost.
REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in advance the judgment of my learned brother BADA JCA, just delivered. I agree with the reasonings contained therein which I adopt as mine and the conclusion arrived thereat. I also allow the appeal and abide by the consequential order made therein inclusive of cost.
Appearances
MR. H. O. AFOLABI for the Appellant with him are R. ISAMOTU, G. A. ASHAOLU, M. A. ADELODUN, KAUNA PENZIN and YUNUSA UMARUFor Appellant
AND
MICHAEL BELLO with him is VICTORY ABEBEFor Respondent
