Justice Nelson Ogbuanya of the National Industrial Court of
Nigeria (NICN) sitting in Lagos has delivered judgment in a
33-year-old case filed by a veteran journalist, Dr Ode Okore.
The case was filed at the Lagos High Court in August 1986. It
passed through four judges.
After 26 years, the case was struck out in November 2012 for
lack of jurisdiction.
It followed the amendment of the 1999 Constitution (Third
Alteration Act 2010), which took effect on March 4, 2011.
The amendment divested the High Court of jurisdiction on
employment matters and vested it exclusively on the NICN.
The claimant filed another suit at the NICN, Lagos Division, in
August 2013.
Unfortunately, it was discovered that the General Form of
Complaint – the originating court process used to commence the
matter – was patently defective, as it was not duly signed and
properly endorsed.
Consequently, the NICN struck out the suit on March 28,
2017.
Undaunted, the claimant again re-filed the suit on November 8,
2017.
Justice Ogbuanya delivered judgment in the case last Wednesday
after 33 years.
The claimant was the pioneer Foreign Correspondent of The
Guardian newspapers in charge of its North American Bureau in New
York.
He challenged the termination of his employment and demanded
payment of his outstanding entitlements.
The defendant (Guardian Press Ltd) filed a preliminary objection
and a counter-claim.
The claimant said his basic salary was denominated in naira
while other allowances were to be paid in dollars as stipulated in
his employment letter.
He said despite operational challenges, such as lack of office
accommodation, he used his residential apartment and facilities and
was able to report major events, such as the 1984 Democrats
Campaign Convention in San Francisco.
He said as at the time he accepted the offer by the defendant’s
Executive Director, the late Dr. Stanley N. Macebuh, he had a
pending offer as a full-time Assistant Professor in an American
university.
He said he rejected the offer after much persuasion and
assurance that adequate funds would be provided to manage the New
York office.
He testified that his personal expenses incurred in the course
of duty were not refunded and no payment was made in respect of his
use of his private residence as office space.
But, the defendant’s case was that the employment was not of
fixed tenure; and that the claimant’s employment was not valid as
there was no evidence that the late Macebuh had authority to enter
into the employment contract with the claimant on behalf of the
defendant.
The newspaper said it paid the claimant all his entitlements as
per his terms of employment, except parts of the payment in foreign
currency which the defendant could not make on account of the
foreign exchange regime which commenced after the employment
contract was entered.
The defendant maintained that based on the foreign currency
policy, the Central Bank of Nigeria (CBN) could not honour
applications for foreign exchange transfer abroad, which frustrated
the contract.
The defendant said the claimant refused to accept the payment in
naira as at then.
Besides, it said the claimant abandoned his work such that in
the entire period of two years, he filed only a couple of reports,
none of which was prompt.
The defendant said the action is statute barred, and that the
suit was misconceived, frivolous, vexatious, constituted abuse of
court process, and should be dismissed with substantial costs.
In its counter-claim, the newspaper urged the court to declare
that its inability to pay the foreign currency was due to the
Federal Government’s policy in place at the time of the
contract.
It prayed the court to order the claimant to pay the cost of the
action for N1million.
Ruling on the defendant’s preliminary objection, which contended
that the suit was statute-barred, Justice Ogbuanya held that it was
not the claimant’s fault that his case was struck out at the High
Court.
Besides, he said the judiciary was one, therefore, the court the
suit was initially filed did not really matter.
“The jurisprudential operation of the three arms of the
government also lends credence to the liberal judicial view point
on the subject.
“Whereas executive powers are vested in individual executive
leader such as the president or governor, and legislative powers
are vested in the group of law makers, such as the National
Assembly or state house of assembly, the judicial powers are
neither vested in a person nor persons in group but on an
institution called court and administered by the judicial officers
/judges/justices in jurisdictional hierarchy; from the lowest
through appellate to the highest court of the land (the Supreme
Court).
“In my considered view, where a litigant faced with the
consequence of not taking action in his perceived cause of action
within prescribed time and risks losing the right of action in
court, files the action in court in good time, the person has
satisfied the requirement to obviate operation of limitation law,
even if it turns out that it is a wrong court, but which would have
ordinarily had jurisdiction to hear and determine the matter.
“Not to talk of a litigant who filed a Suit in the right court
but was delayed until the court becomes a wrong court, and he is
being punished for the delays in the previous court which was the
right court at the point of the first suit.
“Such a litigant invariably, would be an unjust victim of
extraneous litigation nuances not within his/her direct control,
and thus be denied access to ventilate grievance(s) in the court of
law in search of justice. Would the judicial doorpost to remedy be
shut out against such a litigant in such a circumstance?”
Relying on the celebrated Sifax’Case decided by the Supreme
Court, Justice Ogbuanya dismissed the preliminary objection.
“The ratio of the Supreme Court’s decision in this recondite
issue underpins the preeminence of the evolving principle of
application of the ‘concept of frozen cause of action’ on
limitation law, anchored on the liberal judicial viewpoint…
“I find that the interval between the striking out and re-filing
of each of the successive two suits has not been up to or more than
six years prescribed by the extant limitation law. In fact, each
occasion has been for a period not more than one year. I so find
and hold.
“In the circumstance, I find no merit in the preliminary
objection challenging the competence of this suit on ground of its
being affected by limitation statute. Accordingly, same is hereby
dismissed, I so hold,” the judge held.
In determining the substantive suit, Justice Ogbuanya held that
the claimant’s appointment was wrongfully terminated. He also
dismissed the defendant’s counter-claim.
“He was not found wanting in discharge of his duties abroad,
even without any cost element contributed by the defendant or
payment of his entitled remuneration to support him throughout his
two-year duty tour abroad for the defendant…
“When the Claimant’s employment was abruptly terminated by the
defendant, it was expected that all his outstanding entitlements
and costs/expenses would be paid with immediate effect, but that
did not happen.
“Instead, claimant’s entitlements and costs/expenses incurred in
the course of duty as at 15th January 1985 (about 34 years ago),
were withheld and not yet paid, while he tickles down in age,
losing grip of his hard earned entitlements, but in hopeful
nostalgia for the dawning light of justice to the rescue. That day
has yet come and the hope to embrace justice rekindles in the
temple of justice. The canon is ubi jus ibi remedium!
“I find that the Defendant’s conduct in the employment
relationship with the Claimant is certainly unfair labour practice;
an often derided habit in modern Nigerian labour and employment
landscape, towards attaining the precepts of international best
practice in employment practice and labour relations.
“For clarity and on the basis of the reasons advanced in the
body of the judgment, the terms of this Judgment are as
follows:
“Claimant’s case succeeds to the extent that it is hereby
declared that the Defendant wrongfully terminated his employment on
15th January 1985.
“Defendant is liable and shall pay to the claimant the United
States Ddollars in the sum of $34,200 (outstanding unpaid
allowances); $15,399 (Special damages – unreimbursed costs and
expenses in the course of duty); and $50,000 (general damages);
totaling $99,599.
“Defendant is liable and shall pay to the claimant in naira, the
sum of N2million being damages for the wrongful termination of his
employment.
“Cost of this action in the sum of N1million shall be payable by
the defendant to the claimant.
“The defendant’s counter-claim is hereby dismissed for lacking
merit.
“Monetary payments in this judgment shall be paid within two
months of this judgment.
“Otherwise, 10 per cent interest per annum shall accrue on the
sums due until finally liquidated. Judgment is entered
accordingly,” Justice Ogbuanya held.
The defendant’s counsel said it would to appeal the
judgment.
Culled from Thenation