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Performance Performance. Performance cookies are used to understand and analyze the key performance indexes of the website which helps in delivering a better user experience for the visitors. A declaration that the defendant is in Breach of her contract of employment with the claimant. Special damages comprising of unpaid salaries and entitlements for a period of 9 months, amongst others.
General damages for breach of contract. These reliefs clearly show that the main claim of the claimants is for breach of contract and damages in respect of same. Please see paragraphs 3b, 3c and 3d of the affidavit in support of the motion. The 1st claimant has frontloaded his contract of employment to show the contractual relationship between himself and indeed the other claimants on the one hand and the defendant on the other hand.
He has also frontloaded his pay slips for the months of June, July and August, which form the basis of the claim for salaries and allowances as stated in paragraph 22 and 51 b of the Statement of Facts, this goes further to buttress the fact that the claim is based on contract. It is abundantly clear from the Statement of Facts that the claim is not one in respect of salaries and allowances for work done but rather for salaries, allowances and entitlements which the claimants would have earned but for the alleged breach of contract on the part of the defendant which took place on the 5th of September and damages arising therefrom.
Counsel submitted that by reason of the above stated facts, this is a matter firmly rooted, grounded and founded on the respective contracts of employment entered into between the claimants and defendant. B — E where Honourable Justice O. Obaseki-Osaghae stated as follows: It is trite law that the employment relationship between an employer and employee is based on an offer and acceptance referred to as a contract of employment.
The claimants have referred to themselves as the employees of the 1st defendant and in paragraph E of their claims against the defendant reproduced above have made a claim for the sum of N25,, By his own claim, this action is clearly founded on a contract of employment.
Counsel urged the Court to hold that from the pleadings of the claimants, this case is based, rooted and founded in contract and ought to have been brought to court within five years of the period when the cause of action arose which is 5th September, Where a case is found to be statute barred, the proper order for the court to make is an order dismissing the claim.
B — D Counsel urged the Court to hold that this suit is statute barred and incompetent and dismiss same with substantial costs as it ought not to have found its way into the court in the first instance. While the leave lasted, the claimants repeatedly approached the management of the defendant to duly terminate their contract of employment; and to pay them their entitlements accordingly.
See paragraphs 9, 10, 22 first 2 lines , 24, 25, 26, 27, 28, 29 and 31 of the Statement of Facts. Hence, the re-filing of this suit. Counsel for the Claimants formulated the following issues for the determination of the Court: i. Whether the Claimants first approached the Court and subsequently exercised their right of action against the defendant on Whether the statute of limitation applies in cases of concealed fraud.
One of such is the well-established principle which says that an application by way of a Preliminary Objection for the dismissal of a suit in limine, can be made on points of law; and where there are no facts in dispute for the determination of such an objection. In other words, the defendant is deemed to have admitted the facts as stated in the Writ and Statement of Facts hook, line and sinker?
However, if facts exist, which must first be adduced in or established by evidence to enable a point to be sustained, then the Preliminary Objection cannot properly be taken.
Such a point therefore is a matter that will be properly answered by evidence during trial and rightfully construe an issue for determination at the trial. It is trite that one of the most potent reasons for an application for joinder to a pending suit, is so as to avoid being estopped from raising the issue again, having stood by and presumably acquiesced when the litigation went on.
Another reason for joinder is so that the interests of all potential parties are thereby completely and effectually determined. The claimants having duly exercised their right of action against the defendant on the 21st March , Counsel submitted that what became of that exercise is of no moment in determining the question as to when the claimants first exercised their right of action against the defendant over the subject breach of contract.
He urged the court to so hold. On issue two whether the statute of limitation applies in cases of concealed fraud, Counsel submitted as a preliminary point that a cause of action is to be distinguished from a right of action.
He submitted that a right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts the factual situation which gives rise to a right of action which itself is a remedial right. So held Oputa, JSC. Adefarasin 1 NWLR pt. However, the law is that where the cause of action is concealed by fraud, the period of time for the computation of the 5 years period necessary for the exercise of the cause of action, does not commence until the fraud is discovered.
It has long been established that it is only in cases of concealed fraud that the Statute of Limitation becomes inoperative. This is particularly so where the party defrauded remains in ignorance of the fraud without any fault of his.
In paragraphs 22, 24, 25, 26, 27, 28, 29, 30, 31 and 32 of the Statement of Facts, the claimants gave a graphical account of how the defendant deceived them into believing that their contract of employment was still running with the defendant. In the circumstances, it has been held that fraud may be presumed from the nature of a bargain… circumstances and conditions of the parties contracting, weakness, one-sided, extortion and advantage taken of that weakness on the other.
Fraud in such cases does not mean deceit or circumvention; it means unconscionable use of the power arising out of the circumstances and condition of the parties. On the other hand, fraud has been defined as an action or conduct in a representation recklessly made without any belief in its truth; but made with the intention that the person receiving that misrepresentation should act on it.
This is exactly the case here where the defendant kept deceiving the claimants by promising them both heaven and earth; only to turn around to mock the claimants for bringing this action. From the above premises, it is clear that the defendant deceived the claimants at the material time; and hence the Statute of Limitation cannot run against the claimants in this suit. Counsel submitted that this Preliminary Objection is merely designed to delay and derail the course of justice in these proceedings.
And from a review of the law and the facts of this case, the application is doomed to fail. He urged the court to dismiss the preliminary objection for the following reasons: i. The claimants first exercised their right of action against the defendant in this suit on the 21st March ; and not on the 7th July, as erroneously postulated by the defendant.
Assuming without conceding that the claimants are out of time, the authorities cited are to the effect that Statute of Limitation does not apply in cases of concealed fraud; which the defendant played on the claimants. Counsel urged the court to dismiss this preliminary objection with punitive costs; and to order for an accelerated hearing of this suit.
The cases of Woherem JP vs. While the defendant agrees that the above position is correct only as it affects the date when the cause of action arose for the purpose of computation of time as it relates to limitation of action, Counsel submitted that evidence must not necessarily be taken before the determination of an objection to jurisdiction which is based on statute of limitation.
In the case of Woherem JP vs. The position is different where issue is joined by the parties in their pleadings as to the date the cause of action in the suit arose. A person cannot blow hot and cold at the same time nor can he approbate and reprobate.
See Ajide vs. The preliminary objection was not based on limitation statute. Thus, this case, as sought to be relied upon by the respondents, is inapplicable in the instant case, the applicant in that case prayed the court to dismiss the suit on the ground that the suit was misconceived and frivolous. The respondent therein contented that it was too late to raise the objection as the parties have joined issues.
Counsel submitted further that the conspicuous and notorious principle governing the determination of the question as to whether an action is statute barred is to the effect that the court will have recourse only to the Writ of Summons and Statement of Claim.
See the case of Ibekwe vs. Consequently, it follows that filing or failure to file a Statement of Defence has nothing to add or remove from the determination of the question that has arisen in this application. In reaction to the argument in paragraph 4. Balogun to the effect that by bringing a preliminary objection as the defendant had done in this suit, the defendant is deemed to have admitted the facts as stated in the Writ and Statement of Facts hook, line and sinker.
According to Counsel, the case of Ayanboye vs. Balogun was also cited out of context as the issue and the said principle did not arise for determination in that case. It is clear from the case of Woherem JP vs.
Emereuwa Supra pp. H — D that what is seen to be admitted is the date the cause of action arose as contented by the defendant from the Statement of Claim and not the entire facts in the Statement of Claim.
In reaction to paragraph 4. The present objection challenges the jurisdiction of the court to hear this suit on the ground that the suit is statute barred having been caught by the limitation law. It is clearly not one on which evidence must be taken for the court to resolve. It is misleading to suggest that evidence must first be adduced before the issue can be determined.
In paragraphs 4. In paragraph 4. The cases of Adediran vs. Interland Transport and Lead Merchant Bank vs. Salami cited by the claimants have no relevance to the issue that has arisen for determination in the present application.
As regards Suit No. The Supreme Court in the case of Bello vs. NBA No. Subject to the provisions of these rules or any applicable law requiring any proceedings to be begun by originating summons, originating motion or petition, a writ of summons shall the form of commencing all proceedings: a.
Where a claimant claims: i. Any relief or remedy for any civil wrong or ii. An application for joinder is not a mode of commencement of suit under the rules of both courts. Assuming in the unlikely situation that this court holds that an application for joinder to this court, the said application for joinder is a competent and full-fledged suit, Counsel submitted that in the absence of an order of the Rivers State High Court transferring the application for joinder to this court, the said application for joinder is distinct from the present suit and the issues raised in the present suit do not revive those of the application for joinder for the purpose of holding that the present suit was brought within the time allowed by the Statute of Limitation.
This court lacks jurisdiction to hear appeals from decisions of State High Courts. The case of Nwosu vs. Offor was cited. It was argued in paragraph 5. The case of Arowolo vs. Ifabiyi was cited.
In this regard, Counsel for the defendant submitted that while agreeing that in the case of concealed fraud, time does not start to run against a Plaintiff until the fraud is discovered, the case of NWOSU vs. It is a trite principle of law that a party who seeks to rely on fraud must specifically plead same and furnish the particulars of the fraud in his pleadings. Counsel referred the Court to the case of Ezekiel Okoli vs. Morecab Finance Nig. There is nowhere in the Statement of Facts where an allegation of concealed fraud was made neither is any particular of same pleaded.
The defendant, by Exhibit ZA1 and without mincing words promptly denied all the claims made against it by the claimants in their letter of 23rd December, and made it clear that there was no breach of any contract it had with the claimants. Workers were however disengaged at different stages of the contract depending on their level of expertise or need, since the contract at Okoloma is almost at an end.
All disengaged workers have received their full severance benefits in accordance with the Collective Agreement or the GMOU.
Therefore, there can be no reinstatement of workers. The workers engagement was never intended to be permanent since the contract was for a limited duration. Exhibit 1 is therefore inconsequential and of no importance more so because Exhibit 1 did not allege any fraudulent concealment. Citing with approval the case of Akibu v. In order to constitute such fraudulent concealment as would, in equity, take a case out of the law of limitation, it is not enough that these should be merely tortuous acts unknown to the injured party or the enjoyment of property without title while the rightful owner is ignorant of his agent, there has to be some abuse of a confidential position, some intention at imposition, or even some deliberate concealment of facts.
Assuming without conceding that time began to run from the end of the contract in May , the period between end of May and July 7, when this suit was filed is clearly more than 5 years.
Thus, however it is looked at, the present action brought by the claimants is still caught by the limitation law and therefore the cause of action is dead having been extinguished by statute. Adumbrating with leave of court in response to fresh issues raised by the defendant in its reply on points of law, Counsel for the Claimants submitted as a preliminary point that it is a misconception for the applicant to come under section 16 of the Rivers State Limitation Law.
He stated that this court cannot apply the Rivers State Laws for the determination of a matter brought before it. He went on that the Rules of this court do not make room for demurrer proceedings which is what these proceedings are. He cited the case of NDIC vs. According to Counsel for the Claimants, by filing this motion, the defendants intend to rely on the special defence of limitation.
Such a defence must be specifically pleaded so as to put the Plaintiff on notice. E — F To Counsel, special defence must be specifically proved. The era of technical justice is gone. The Court should hear the parties and decide according to the merits of the case. For the reason that the application is brought under a state law; and also for the reason of not pleading it as a special defence, Counsel urged the court to dismiss the application. Counsel adopted the arguments therein and urged the court to dismiss the application.
He submitted that a party who applies to be joined in a suit is already a party to the suit. On this point, he cited the case of MAYA vs. Onyekwulunne 5 SCC Pt. He submitted further that in law, a person can become a party to a pending suit under 3 three conditions:- 1. Having his name as plaintiff or defendant on the records 2.
By reason of application for joinder 3. By court joining a party suo-motu. He cited in aid of this point, the cases of Emezi vs. G; and Agbi vs. He went on that reference to the Rivers State High Court Rules in page 5 of the reply on points of law is misconceived as it cannot apply to this court.
Reacting to paragraph 2. Niger Construction Ltd. He urged the court to hold that the refusal to grant the application for joinder in Rivers State High Court was wrongly made; and he urged this court to set it aside and to dismiss this application with punitive cost.
Counsel for the defendant applicant urged the court to distinguish between the cases cited by counsel from the facts of this case; and urged the Court to exercise its discretion in favour of granting the application. From the forgoing submissions of the counsels to the parties and having read the affidavits of the parties in respect of the application, a sole issue arises for determination. The issue is as formulated in the written address by the learned counsel for the defendant.
I shall adopt the same issue in this ruling. The contention of the defendant in this application is that by virtue of 16 1 of the Limitation Laws of Rivers State, this suit is statute barred and ought to be dismissed as the court lacks jurisdiction to continue to hear it. This court consequently lacks jurisdiction to entertain the suit and the effect is that the suit be dismissed.
The claimants filed a counter affidavit to oppose the application. By this denial, the claimants are saying in effect that the cause of action did not arise on 5th September ; the time allowed for them to file their claim has not elapsed and this court does not lack jurisdiction to entertain their case. They averred also that the defendant played fraud on them by making them believe they were being retained for other projects thereby deceiving them from initiating a suit.
According to the claimants, statute of limitation does not apply to cases of concealed fraud. Before I go on to determine the issue in this application, I find it necessary to address a vital issue raised by the claimants counsel in his written address.
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