IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: MONDAY 3RD JUNE 2019 SUIT NO.NICN/E/EN/08/2014
BETWEEN:
MR. PETER ONOH NWANI…………………………………CLAIMANT
AND
THE INSTITUTE OF MANAGEMENT
& TECHNOLOGY (IMT) ENUGU DEFENDANT
APPEARANCES:
OBI ILOGHALU, HOLDING THE BRIEF OF CHIEF G.O. OMEH, FOR THE DEFENDANT.
COUNSEL TO THE CLAIMANT ABSENT.
FINAL DECISION
INTRODUCTION
This suit was originally commenced by writ on 17th March 2011 at the High Court of Enugu State, Enugu Division, and transferred to this Court subsequently on 14th November 2013. The reliefs claimed in the Statement of Facts filed in this Court are as follows:
A declaration that his dismissal from the service of the defendant was wrongful.
An order for his re-instatement without loss of promotion and increment.
An order for the payment of his emolument up to date.
IN THE ALTERNATIVE
Payment of his emoluments from the date of his purported dismissal until 2024 which is the due date of his retirement [sic].
An order for the payment of his gratuity as well as his pension.
On 22nd March 2019, the defendant filed motion on notice by which notice of preliminary objection [NPO] against the suit was brought. This was accompanied with an affidavit and a written address. The claimant/respondent filed counter affidavit to this on 16th April 2019 accompanied with a written address. The NPO came up for hearing on 13th May 2019 and was adjourned, after hearing, to 20th May 2019 for ruling. As the ruling was not ready on this date, it was adjourned sine die till its readiness, when date would be communicated to counsel to the parties.
SUMMARIES OF ADDRESSES AND FACTS OF THE CASE
The gravamen of the NPO as distilled from the affidavit in support and the written address is that, the cause of action arose on 3rd May 1996 while this suit was filed 17th March 2011; and thus, by virtue of section 11(1) of the State Proceedings Law, CAP. 146, Laws of Enugu State 2004 [SPLES], the action commenced 15 years after accrual of the cause of action was filed outside the 12 months prescribed by section 11(1) of the SPLES; and therefore statute-barred. The claimant did not dispute the facts contained in the affidavit in support in his counter affidavit but rather, argued that by virtue of the letters annexed by virtue of paragraphs 6 and 8 of the counter affidavit and marked A and B, the cause of action had not been extinguished because, communications kept on between the parties all along, and more importantly because, the defendant committed illegality in terminating his appointment, by not following the mandated procedures. That is all about the contents of the affidavit, counter affidavit and the written addresses of both parties. No reply on points of law was filed. I shall now go on to give my decision.
COURT’S DECISION
I giving my decision, I have carefully read and digested all the processes filed in respect of this NPO. I have equally carefully perused the Statement of Facts [wrongly tagged ‘Statement of Claim’]. I have carefully also studied the statute cited and the principles of law alluded to in the arguments of counsel and the facts deposed in the affidavits of parties alongside the arguments proffered by counsel to the parties.
I would not waste time on the applicability of section 11(1) of the SPLES, which is couched impari materia with section 2(a) of the Public Officers (Protection) Act because, the Supreme Court has most recently held that the POPA is inapplicable to contracts generally, including contracts of service, which employment is and actions founded on illegality – see National Revenue Mobilisation Allocation and Fiscal Commission & 2 Ors v. Ajibola Johnson & 10 Ors (2019) 2 NWLR (Pt. 1656) 247 at 270-271. Arising from this, I hold that, section 11(1) of the SPLES is not applicable to this action, founded on termination of employment and illegality in the procedure of termination.
However, this would not excuse the filing of the suit 15 or 11 years, whichever one is applicable, after the cause of action arose. I now wish to consider section 20(a) of the Actions Law of Enugu State, which provides 6 years, as the limitation grace for bringing this type of action. The defence stated in paragraph 3 of the supporting affidavit that, the cause of action arose on 3rd May 1996 and this action was commenced 17th March 2011; thus, making it 15 or 11 years after the cause of action arose, before it was challenged and 9 or 5 years behind the grace of 6 years allowed by section 20(a) of the Actions Law of Enugu State. In the Statement of Facts [wrongly tagged ‘Statement of Claim’], the claimant pleaded in paragraphs 15 and 16 thereof that, he wrote to notify the defendant on 2nd September 1999 of his resumption and readiness to assume his duties after his overseas medical sojourn but, the defendant refused to assign duties to him and on 1st February 2000, he approached the then Rector of the defendant/applicant, who told him that, he had been dismissed, but that, no letter of dismissal was issued him.
Now, at least, on the 1st February 2000, the claimant/respondent became aware that, the cause of refusal to assign him duties after resumption from his medical sojourn was his alleged dismissal. If the claimant/respondent was not aware of his alleged dismissal of 3rd May 1996 because, as claimed, no letter of dismissal was served on him, he could not claim same of the alleged oral notification of dismissal on 1st February 2000. At least, this evidence came from him and it is an admission against self-interest. Whether or not such mode of communication of dismissal was legal, is a mute point and does not call for examination in the instant application. What calls for examination, is the date of accrual of the cause of action. It is without doubt that, by 1st February 2000, the claimant/respondent, by his own admission, was informed orally that, he had been dismissed and thus, became aware of his alleged dismissal. What the law of limitation demands, is that, at least, from that date admitted by him of awareness of his alleged termination, he must take action within 6 years thereof. It must be noted that, the doctrine of illegality, which exempts actions filed beyond the limitation period provided by section 2(a) of the POPA, when illegality is pleaded, and which I have extended to section 11(1) of the SPLES because, both are impari materia, is not applicable to the general limitation law. Hence, whether an action is illegal or not, it must be challenged within the allotted time, under section 20(a) of the Actions Law of Enugu State, to escape the snare of being statute barred.
The learned counsel to the claimant had argued that, because communications were kept alive, all along between the parties, the cause of action remained alive. In both exhibits A and B of the counter affidavit, I could not find what amounted to acknowledgment of fault or debt on the part of the defendant. The law is that, negotiation does not stop statute of limitation from running – see Eboigbe v. The Nigerian National Petroleum Corporation Suit No. SC.249/1990 [Delivered10/06/1994] at www.lawpavilionpersonal.com. In view of the foregoing, I found that, this action is caught by section 20(a) [erroneously written as “b” in CAP. 4] of the Actions Law, CAP. 4, Revised Laws of Enugu State of Nigeria 2004, which prescribed 6 years limitation period for actions founded on simple contracts. There is no doubt that, employment relations are basically contractual and simple contracts in the absence of proof or pleadings that such was entered to under seal.
Hence, this action commenced 15 or 11 years after the accrual of cause of action and more than 9 or 5 years after the expiration of the statutory 6 years provided by section 20(a) of the Actions Law of Enugu State, is no doubt, statute barred – see the decision of Hon. Justice S. Kado of this Court in Okparaeke v. AG of Enugu State & Ors [delivered 30th April 2019] at the Abuja Division in which section 20(a) of the Actions Law of Enugu State was considered and applied in similar situation. Relying on this authority, I hereby hold that, this action is statute-barred and therefore grossly incompetent. The case is accordingly struck out. This is a final order on the rights of the parties in this suit. I order no cost.
Final decision is entered accordingly.
…………………………..
HON. JUSTICE O.O. AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
