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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 is TRANSOCEAN 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 pari materia
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 finetunes 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, hafeez4a@gmail.com