Sifting Through: Has Contract of Employment Now Escaped from the Clutch of Statute of Limitation?

By Hafeez Folohunsho Zubair 

ABSTRACT

Couple of days ago, I was requested to furnish legal opinion on a judgement SUIT NO. NICN/LA/160/2017 delivered in June, 2020 by National Industrial Court of Nigeria. In the said judgement, the honourable trial court, in its respectful wisdom, held that statute of limitation is not applicable to contract of employment. The nucleus of the judgement was the court’s heavy reliance on N.R.M.A. & FC vs Johnson (2019) 2 NWLR (P 1656) SC 247. This piece of writing considers the applicable authorities and maintains that statute of limitation is applicable to contract of employment. 

1. BACKGROUND

The precis of the judgement under examination is that,the claimants were dismissed from the employment of the defendant in 2009-the claimants were natural persons while the defendant was a corporate person. The claimants instituted an action at National Industrial Court in 2010, challenging their dismissal. The judgment of the court was delivered in 2016 in the claimants’ favour. The claimants, yet again, in 2017, approached the same National Industrial Court, claiming for their employment entitlements via another fresh suit. The defendant raised, among others, the defence of statute of limitation. Though finding that the cause of action accrued in 2009, the court assumed jurisdiction and held that the matter was not statute barred. Relying on the judgement of the Supreme Court in N.R.M.A. & FC vs Johnson (2019) 2 NWLR (P 1656) SC 247, the Trial court held:

“I have seen the arguments of counsel and without need to rehash, I find that the position of the law regarding the applicability of statutes of limitation on employment contracts has been clarified by the Supreme Court in the case of N.R.M.A. & FC vs Johnson (2019) 2 NWLR (Pt 1656) SC 247 where His Lordship Ariwoola, JSC declared that statutes of limitation do not apply to employment/service contracts. As the reliefs for the claimants’ gratuity in this case relate to claims that inured as a result of contracts of service with the defendant, this court is bound to follow these decisions of the Appellate courts. I therefore find that this action is not caught by Limitation law of Lagos State. I so hold.”

The twain questions this paper seeks to answer are: 1. Was the case of N.R.M.A. & FC vs Johnson (2019) 2 NWLR (P 1656) SC 247 applicable in this case? 2.  Does contract of employment now enjoy perpetuity going by the reasoning of the trial court?

 

2. EXAMINATION OF N.R.M.A. & FC vs JOHNSON (2019) 2 NWLR (P 1656) SC 247

Johnson and others were employed by National Revenue Mobilization Allocation and Fiscal Commission (N.R.M.A.&F.C.) The Commission later terminated their employment. Johnson and his co-employees sued the Commission for wrongful dismissal and claimed their salaries and other work benefits. The Commission raised the defence that, it, the Commission, was a Federal Government agency and no legal action could be commenced against the Commission except within three months of accrual of the cause of action as provided by section 2, Public Officers (Protection) Act. The relevant provision of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria 1990 relied upon by the Appellant in Section 2 (a) states:

“Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any act or law or 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 damages or injury within three months next after ceasing thereof.”

The Supreme Court, discountenancing this argument, held:

“In this matter, while the appellants maintain that the action is caught by section 2a of the Public officers Protection Act, the respondents argue that the act is inapplicable. There is no doubt, a careful reading of the respondents’ claim will show clearly that it is on contract of service. It is now settled law, that section 2 of the Public officers Protection Act does not apply to cases of contract.”

 

This same position of the law has been variously recognised and echoed by our courts for quite a long period of time before 2019. The Court of Appeal’s decision in  NIGERIAN ARMY v. ABAYOMI (2019) LPELR-47084(CA) buttresses this position when it held, on when the Public Officers Protection Act will apply:

“Two conditions must coexist before a person can avail himself of the protection and these are (i) the person must be a public officer; and (ii) the act done by the person in respect of which the action was commenced was an act done in pursuance or execution or intended execution of a law or public duty or authority – Central Bank of Nigeria Vs Okojie (2004) 10 NWLR (Pt 882) 488, Hassan Vs Aliyu (2010) 17 NWR (Pt 1223) 547. Where either of these conditions is missing, the person concerned does not come under the provisions of Section 2 of the Public Officers Protection Act and an action against him is not caught by the three months limitation period.” Per ABIRU, J.C.A. (Pp. 30-34, Paras. D-B).”

The Johnson’s case in question only excluded application of three months limitation of action contained in Public Officers Protection Act and analogous enactments, in contract of employment or where the defendant government agency does not act in discharge of its duty. The case is not a precedent on employment contract of six/five-years limitation contained in various Limitation Act/Law.

3. DISSIMILITUDE BETWEEN THE TWO CASES

In the Johnson’s case, the party invoking statute of limitation under Public Officers (Protection) Act was a Federal Government Agency and the Supreme Court refused to be swayed. Conversely, in the instant case, the party raising the defence of statute of limitation is not a federal government agency and did not invoke the provision of Public Officers (Protection) Act or Law, rather, it invoked the statute of general limitation i.e. Limitation Law, which is the only limitation law applicable in this case.

For the sake of emphasis and at the risk of repetition, the position taken by the Supreme Court in Johnson has been enjoying full compliance of subordinate courts but not in the manner and instance in which the trial court applied it. The Court of Appeal held in FUTO v. AMCON & ORS (2019) LPELR-47327(CA):

“On the contention that the 3rd party notice is against a public officer which is the Appellant, this issue has long been settled by the Apex Court in a long line of cases that the statute of limitation does not apply to contract, it is the subject matter that determines if the public officer is to benefit from the application. It is granted that the Appellant is established by statute and enjoys the protection of the Public Officers Act but having admitted that the subject matter is simple contract therefore it does not apply to it.”

As indicated above, the case of N.R.M.A. & FC vs Johnson (2019) 2 NWLR (P 1656) SC 247, and similar precedents largely relied on by the trial court, were based on a special provision of limitation in special circumstances against public officers or offices.

 

4. STATUTE OF LIMITATION REMAINS APPLICABLE TO CONTRACT OF EMPLOYMENT

The general position of the law is that, a suit initiated outside the prescribed period of time is statute barred and the potential claimant is deemed to have been slumbering till time lapses and he is left with no legal remedy in a court of law. Limitations to actions are basically provided by statutes, though being a form of procedural law. In Nigeria jurisprudence, there are specific statutes which stipulate time within which legal action could be instituted against some bodies and in some special circumstances. Examples of such special provisions are found in statutes such as Electoral Act, Public Officers Protection Act, Nigerian National Petroleum Corporation Act or similar Acts/Laws establishing government institutions. There is also a general statute of limitation titled “Limitation Act/Law”, which evenly applies to all persons and in all instances.

The scope of applicability of limitation act/law is to all and general matters of any nature except and save the one excluded by another parallel statute. In giving nod to this, the court held in CBN v. HARRIS & ORS (2017) LPELR-43538(CA)

” Now, it is trite that where a statute prescribes that an action must be filed in Court within a specific period, such provisions of the law must be strictly complied with, in order to avoid being caught up by the limitation under the law. In OBA J. A. AREMO II v. S. F. ADEKANYE & ORS (2004) 19 NWLR (pt. 891) 572; (2004) LPELR – 544 (SC), the Supreme Court, per EDOZIE, JSC held at 17, paras C – F, thus: “Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. When an action is statute-barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by Judicial process because the period of the time laid down by the limitation for instituting such an action has elapsed….” Per OBASEKI-ADEJUMO, J.C.A. (Pp. 16-17, Paras. D-D)”

A case on all fours with the case decided by the court in the judgement under appraisal isTRANSOCEAN SUPPORT SERVICES (NIG) LTD v. MINA PRAH (2019) LPELR-47249(CA)in which contract of employment of a claimant was held to be caught by limitation period:

“It is not in doubt that the action was commenced on 30/11/2000 when the writ of summons was filed. The Limitation Law of Rivers State Cap 80 Laws of Rivers State 1999, provides in Section 16 thereof that; 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. From the above provision, it can be seen that the limitation period in actions founded on contract is five years”.

 

The holding quoted above remains the true position of the law; contract of employment is still under the reach of the long hand of limitation law, to hold otherwise would be giving it an eternal life which would be inequitable to the adverse party.

 

5. APPLICATION OF JUDICIAL PRECEDENT

There is no gainsaying that a trial/subordinate court is inescapably duty bound to follow decision of a superior court. The prerequisite for the application of such stare decisis is that there must be substantial similarity between the case decided by the superior court and the one present before a subordinate court; similar facts and similar legal principles, as held in INTEGRATED REALTY LTD V. ODOFIN & ORS (2017) LPELR 48358(SC):

“The application of the principles of stare decisis or judicial precedent does not involve an exercise of judicial discretion. It is what must be done; mandatory. The doctrine is based on the relevant likeness of or between the cases if there is no likeness between the two, it is an idle exercise to consider whether the previous one should be followed or departed from. It is settled law that a previous decision is not to be departed from or even followed, where the facts or the law applicable in the previous case are distinguishable from those in the latter case.”

Also, in LAWAL v. MAGAJI & ORS (2009) LPELR-4427(CA), it was held:

“For a previous decision to serve as an authority in any given case, it must be contextually situated to the facts, law and rules in the case under consideration. Previous decisions do not apply generally across board unless the facts are the same or sufficiently similar and the law/rule applied in the previous case can be said to be in parimateria with that applicable to the case under consideration.” PER SANKEY, J.C.A. (P. 50, paras. C-E)”

It is settled law that where the facts of a case, the principle of law stated by Superior Court (Supreme Court in this instance), is not with exact similitude with the case before a subordinate court, the subordinate court is not duty bound to apply that principle of law.

 

6. CONCLUSION

The right to enforce an action on contract of employment is not a perpetual right but a right generally limited by statute.Public Officers Protection Law and similar statutes of limitation do not apply to contracts which a public authority makes but which is not in the discharge or performance of its statutory duty. However, the protection applies to contracts or actions which the public authority has a duty under a statute to make.The application of judicial precedent is inevitable in the predictability of matter’s outcome as it fine tunes our judicial system and makes sensible the hierarchy of courts. This application is however founded on binary pillars: substantial similarity of fact and of legal principle.

 

 

Author:

Hafeez Folohunsho Zubair is a dynamic lawyer who practises in Lagos, Victoria Garden City (V.G.C.), Lekki, and can be reached on: +2347038816822,[email protected]