Introduction

The Nigerian judiciary, as the custodian of justice and the rule of law, is constitutionally empowered to ensure that justice is administered fairly, impartially, and within a reasonable timeframe. Although there are other means of alternative dispute resolution (ADR) but the court system remains the only institution with the most coercive power to administer justice and enforce its decisions.

However, persistent and undue delays in court proceedings have significantly hindered the effective delivery of justice. Undue delay in court proceedings is not merely a procedural lapse. It constitutes an abuse of court process. Abuse of court process refers to the improper use of judicial machinery to harass, irritate, or obstruct the administration of justice.

There is a growing concern against any delay conduct of a party to a suit and there are now grave consequences under most of our Court Rules. For instance, by virtue of Order 12 Rule 4 of the Supreme Court Rules 2024, the Supreme Court can now award ₦2,000,000 or above as cost for abuse of court process which must be paid by the party or else he/she will lose the right of audience before any other court of record in Nigeria. 

The decision in Chidoka v. First City Finance Ltd. (2013) 5 NWLR (Pt. 1346) 144, underscores the judiciary’s intolerance for procedural abuse and delay tactics. In Eze v. F.R.N (2017) 15 NWLR (Pt. 1589) 433 at 478, paras. C–D, the Supreme Court of Nigeria delivered a stern warning that:

“Any person who unduly and deliberately delays the proceedings of the court will have himself to blame if the court takes any adverse decision against him based on such unnecessary delay.” 

To better understand the courts’ view on undue delay, we elucidate in a question and answer format the position of the Court on unduly delaying the proceedings of the Court as follows:

What can amount to undue delay of court proceedings resulting in abuse of court process?

The focus of the abuse here is on that which is occasioned during the pendency of a suit. In Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156 @ p.188, paras. D-E, the Supreme Court held that: “The concept of abuse of judicial process is imprecise. It involves circumstances and situations of infinite variety and conditions. But a common feature of it is the improper use of the judicial process by a party in litigation to interfere with the due administration of justice”.

Undue delay refers to any intentional or negligent act by a party or counsel that prolongs litigation beyond what is reasonably necessary. A delay is undue if it is unwarranted or inappropriate or excessive or disproportionate.

In Nwosu v. PDP (2018) 14 NWLR (Pt. 1640) 532, the Supreme Court held that where a party uses court processes to delay or frustrate proceedings, such conduct amounts to an abuse that warrants judicial sanction, including dismissal of the action. This includes:

(a) Frivolous interlocutory applications: Filing all kinds of irrelevant and unnecessary applications with the intention to delay is an abuse of court process. The prayers and grounds of an application usually betray the intentions of the applicant and abuse is also evident where such frivolous application is eventually withdrawn or abandoned by the applicant. The Court of Appeal case of Obiesie v. Obiesie (2007) 16 NWLR (Pt. 1060) 223 @ p. 230, para. H held as follows: “Frivolous applications tend to make the wheel of justice move at a snail speed, and does not make the process of law dynamic in a growing society.”

(b) Repeated requests for adjournments: Adjournment of cases is subject to a maximum limit under most Court Rules and may attract court-awarded costs. It is an abuse of court process to seek adjournment of case just to delay proceedings of the court. In Abena v. Obi (2004) 10 NWLR (Pt. 881) 319 P. 348, paras. B-D where the Court of Appeal held as follows: “There must be an end to litigation and particularly when such litigations are based on election petitions, of which time is of the essence in their consideration by the court. In the instant case, where it appeared to the court that the appellant was taking it for granted as he failed to respect his earlier undertaking to brief another counsel after the withdrawal of his former counsel, it would amount to a blatant abuse of the process of adjournment to further indulge the appellant with another adjournment after he had been given about twenty days to brief another counsel”

(c) Failure to file processes within stipulated timelines: Unless where cogent reasons are given, delay in. filing court process within the time stipulated by the Rules of Court is an abuse if the delay is avoidable and unexplainable. The Supreme Court in the case of Moore v. Flour Mills (Nig.) Plc (2022) 11 NWLR (Pt. 1841) 365 p. 392 paras F – H upheld the decision of the Court of Appeal when it held that the failure to file a court process with the stipulated timeline is an overdue delay.

(d) Absence of parties or their legal representatives: If a matter is adjourned in the open court with the presence of parties or their counsel, failure to appear on the next adjourned date is an unacceptable practice unless cogent reasons are profered by the absenting party or counsel. Absence of parties or their counsel in the foregoing circumstances can be an abuse of court process is punishable with an award of cost and can b a ground for striking out the case or foreclosure of the guilty party’s right. See Abena v. Obi (Supra).

(e) Use of appeals as a tactical tool to stall proceedings: There are certain interlocutory decisions which do not completely determine the issues in contention between the parties to a dispute. Rather than contest the matters on the merits, some parties may file interlocutory appeals against the interlocutory decisions to stall the continued hearing of the case at the trial court. The Court of Appeal in Seriki v. Aduralere (2007) 3 NWLR (Pt. 1020) 127 P. 146, paras. D-E held that “It is not right to use the instrumentality of interlocutory applications to cause unnecessary delay in dispensation of justice. In the instant case, if the applicants had exercised some patience and allowed the case at the trial court to be concluded, they could appeal against the main decision and raise, simultaneously, the interlocutory matter.”

(f) Filing Multiple Applications in the Same Suit:  This is when a party uses duplicative or overlapping applications to stall proceedings or confuse the court. In Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328, the Supreme Court held that deploying similar processes (e.g. cross-appeal and respondent’s notice) for the same relief is prima facie vexatious. The issues may be different if the first application is incompetent or the court lacks jurisdiction to entertain it.

(g) Any other Improper Conduct to Delay Proceedings: The court may find that the conduct of a party or lawyer is improper and causing unwarranted delay to the progress of the court’s proceedings. Such conduct may be deemed as an abuse of court process.

What are the consequences of Undue Delay as an abuse of court process?

(a) Adverse Judicial Decisions

Courts have consistently held that litigants who deliberately delay proceedings may suffer adverse consequences. In Eze v. F.R.N (Supra), the Supreme Court held that the court is empowered to proceed and determine matters even in the absence of the defaulting party where the absence is calculated to deliberately delay the progress of the case.

(b) Denial of Fair Hearing

Ironically, delay tactics often backfire. Once a party is given ample opportunity to be heard but fails to utilize it, he or she cannot later claim that he was denied of fair hearing. A defendant or respondent who delibraly absents from court proceedings despite having knowledge of the proceedings may be foreclosed on his right to defend the case. See Ogunsanya v. State (2011) 12 NWLR (Pt. 1261) 401.

(c) Striking Out or Dismissal of Cases

Courts may strike out or dismiss cases for want of diligent prosecution. This is particularly common in civil matters where plaintiffs or Claimant fails to take necessary steps to move their cases forward.

(d) Erosion of Public Confidence

Delay in justice delivery erodes public trust in the judiciary. As the adage goes, justice delayed is justice denied. Prolonged litigation discourages investment, fosters impunity, and may lead to resort to self-help.

(e) Increased Cost and Emotional Strain

Litigants bear the financial and psychological burden of prolonged litigation. Legal fees, transportation, and time lost in court appearances can be overwhelming, especially for indigent parties.

What are the Other recognised forms of abuse of court process?

Beyond undue delay of pending proceedings, the Nigerian courts have identified several other forms of abuse of court process. These include:

• Multiplicity of Actions: Filing multiple suits on the same subject matter between the same parties, either simultaneously or successively, is a classic abuse. See Saraki v. Kotoye (supra).
• Forum Shopping: This is when a party deliberately filing the same or similar suits in different courts to obtain a favourable judgment. In Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659, the Court of Appeal condemned the practice of seeking out sympathetic forums as a manipulation of judicial process.
• Filing of Frivolous or Vexatious Actions: Instituting suits that are baseless, lacking in merit, or intended to annoy the opposing party is an abuse of Court process. See Amaefule v. The State (1988) 2 NWLR (Pt. 75) 156.
• Re-litigation of Decided Matters (Res Judicata): Filing a fresh suit on a matter already adjudicated upon by a court of competent jurisdiction. In Arubo v. Aiyeleru (1993) 3 NWLR (Pt. 280) 126, the Supreme Court held that re-litigating settled issues is an abuse and undermines the finality of judgments.
• Improper Use of Court Orders: Using court orders obtained ex parte or through misrepresentation to oppress the other party. In CBN v. Ahmed (2001) 11 NWLR (Pt. 724) 369, the Supreme Court held that it is an abuse where a party uses a court order to freeze bank accounts of other persons without full disclosure of the material facts.
• Filing an action without legal basis: Instituting an action that has no foundation in law or is incompetent. We refer to the case of Idoko v. Ogbeikwu (2003) 7 NWLR (Pt. 819) 275 P. 288, paras. G-H where the Court of Appeal held that “a suit may be said to be frivolous if it has no legal basis or where it is filed often to harass or extort money from the defendant. It is a corollary to a vexatious suit which is a suit instituted maliciously and without good cause.”

Why Counsel and their Clients Must Avoid Delay of Proceedings

The Supreme Court’s decision in Eze v. F.R.N (Supra) is a clarion call to litigants and counsel alike that the courtroom is not a playground for delay tactics. The judiciary is committed to ensuring that justice is not only done but done promptly and visibly. Undue delays are recognised abuse of court process that courts are empowered to punish. Such practices erode the integrity of the judicial process and breach the constitutional right to a fair hearing within a reasonable time under Section 36(1) of the 1999 Constitution (as amended). Thus, when a party engages in tactics such as frivolous applications, repeated adjournments, or failure to comply with procedural timelines, they are not only delaying justice, they are undermining the integrity of the judicial process. Parties must approach litigation with diligence, sincerity, and respect for judicial time. Where they fail, they must be prepared to face the consequences to be imposed on them and their counsel by the Court.

Introduction

Under Nigerian law, employers have several inherent powers, including power to discipline employees in deserving circumstances. One of such disciplinary powers is the power to suspend employees. The inherent power of employer to suspend an employee pending investigation of an alleged misconduct or as punishment for misconduct is unquestionable if it is properly exercised. The power to suspend is judicially recognized. The court will likely side with an employer where an employee rushes to court following his suspension unless in limited circumstances bordering on constructive dismissal or other forms of unfair labour practice.

Our law firm, KORIAT & CO., was privileged to have successfully represented the Claimant in SUIT NO: NICN/LA/53/2020 JATO DANIEL SUNDAY V. BUA INTERNATIONAL LIMITED delivered on 28th of March 2025 by my noble lord, Justice S. H. Danjidda of the National Industrial Court, Lagos Division, holding at Uyo (where my lord was transferred shortly after both parties filed their respective final written addresses).

One of the highlights of the Court’s decision in the above case is his lordship’s agreement with our submission that an employer who suspends an employee has a corresponding duty to recall the employee after the period of suspension and failure to recall a suspended employee amounts to a continuation of the suspension, which is actionable at the instance of the affected employee.

The Court also rejected the defendant’s contention that the employee is deemed to have abandoned his employment by failing to resume work after serving suspension when he had no prior record of abandonment or absence from work without permission. Instead, the court agreed with our submission that the allegation of abandonment of duty is gross misconduct (particularly because, in this case, it leads to an implied termination of employment) and such allegation ought to have been investigated and the suspended employee ought to have been afforded fair hearing by being recalled or invited to explain why he should not be deemed to have abandoned his employment.

Consequently, the Court granted majority of the Claimant’s prayers, including the relief for an order directing the defendant to pay the Claimant all his monthly salaries of over 6 years, from April 2014 (when the claimant was completed the suspension) to 14^th February, 2020, when the claimant instituted the suit.

Summary of the Facts

The Defendant employed the Claimant via a letter dated 27th October 1998 (Exhibit JATO 1) and confirmed his employment after 12 years when he complained in November 2011. He was employed as an office assistant in the office of the Defendant’s Chairman but later became the Chairman’s personal errand boy. In December 2013, while on leave, the Defendant suspended him for three (3) months via the Internal Memo dated 27th December 2013 (Exhibit JATO 4) without salary or any disciplinary hearing either before and after the suspension. The Head of Human Resources telephoned him to report to the office (while on his annual leave) to pick up the memo of suspension.

According to the memo, the Chairman was turned back at the International Airport while attempting to proceed on an overseas trip because his international passport had expired (an event that caused the Chairman serious embarrassment) and the Claimant was blamed for the omission. The Claimant only got to know about the whole story from the Memo and from making further calls to colleagues in the Chairman’s office. No query was issued. No disciplinary proceeding was conducted. Just a Memo suspending him without pay whilst on leave.

The Defendant withheld the Claimant’s salaries even though the Defendant has no such power under the contract of employment. He served the suspension without question. After the suspension, all efforts by the Claimant to resume work proved abortive. When the Claimant resumed work on 27th March 2014 after the suspension, the Defendant told him to go home, that they would get back to him. They never did. On the advice of the Head of HR, who said the Claimant should beg the Chairman, the Claimant texted the Chairman but got no response. Since then the Defendant refused to recall the Claimant back to work despite several attempts he made to resume work.

The Claimant reported the matter to the Public Complaint Commission but the Defendant declined to honour the Commission’s invitation. Then he came to Koriat & Co. As the Claimant’s Solicitors, Koriat & Co. wrote a demand letter to the Defendant requesting that the Claimant be recalled from suspension. The Defendant received the Koriat’s letter but did not reply. The Defendant did not at any time raise the allegation of absence from work without any permission until the Claimant sued for unlawful suspension. The case proceeded to full trial after exchange of pleadings. Thereafter, the parties filed their final written addresses, following which the learned trial judge took oral arguments of counsel and thereafter delivered judgment in favour of the Claimant.

Legal Issues and Perspectives on the Case

The parties were ad idem that the Claimant was suspended for three (3) months by Exhibit JATO 4 dated 27th December 2013 (i.e. the memo) without pay or fair hearing till 26th of March 2014 and the Claimant had no challenge to the decision, even though the “suspension without pay” could be questioned for being wrongful for lack of fair hearing. What the Court was called upon to determine is whether the Claimant remained suspended even after 26th March 2014 given the Defendant’s failure to recall him back to work; or the Claimant is deemed to have abandoned his employment without any permission by his inability to resume work after suspension.

So, on behalf of the Claimant, we submitted the following two issues for determination:
(i) Whether in view of the facts, evidence of the parties and the state of the law, the Claimant’s employment with the Defendant subsists as a result of indefinite suspension or has been lawfully terminated as a result of abandonment of work? and
(ii.) If the answer to Issue 1 is resolved in favour of the Claimant, whether the Claimant is entitled to Reliefs I, II, IV & V in this case? (following our withdrawal of Issue No. III and application to the court to strike out same).

The legal constituents of the above issues can be broken into the following subheadings:

(1) The Legal Effect of Clause 15(a) of Exhibit BUA 1C (Staff Handbook of BUA International Ltd.)

One of the central issues in the case is the legality of the Staff Handbook (Exhibit BUA 1C) which the Defendant tendered and heavily relied on in their defence particularly the curious provision in Clause 15(a) which states that “Any employe who absents himself/herself from duty for three(3) conservation(sic) days or more without any permission will be deemed to have abandoned his/her job and voluntarily withdrawn from the service of the company.” This clause is more interesting in this present case where after suspension, the Defendant’s security personnel and HR staff prevented him from resuming and the Defendant failed to issue a letter recalling him back to work.

Our first submission before the Court is that the BUA Staff Handbook (Exhibit BUA 1C) has no probative value in the resolution of the case because it was never issued to the Claimant. The Claimant has denied the existence or receipt of Exhibit BUA 1C and the Defendant has no evidence before this Court to show that Exhibit BUA 1C was delivered to the Claimant. We referred his lordship to the Acknowledgment Page of Exhibit BUA 1 C tendered by the Defendant, which is blank and unsigned. We urged the Court to discountenanced the Handbook on the ground that “oral evidence cannot contradict the content of documentary evidence; documentary evidence also speaks for itself” as enjoined by the Court of Appeal in
Uttov v. Uttov (2022) LPELR -57729 (CA).

As we all know, Section 7 of the Labour Act mandatorily requires all employers to provide their employees with written particulars of their employment contract within three (3) months of engagement, which the Defendant has no evidence of its compliance with the said law. During cross examination on whether Exhibit BUA 1C was given to the Claimant, both CW1 (Claimant who testified for himself) and DW1 (the Defendant’s witness) respectively testified as follows:

CW1’s cross examination evidence: “I have never seen the document shown to me as the Defendant handbook.”
DW1’s cross examination evidence: “I am sure that Exhibit BUA 1C was given to the claimant but I was not there when it was given to the claimant. I don’t have any record or evidence before the court that the claimant received a copy of Exhibit BUA 1C”.

So, should the Court then countenance the said Handbook? It is our view (though not canvassed at the hearing of the Sunday v. BUA case) that an employer should not be excused from liability where they seek to take cover under or benefit of their omission or wrong. That would be tantamount to eating one’s cake and having it at the same time.

Also, he comes to equity must come with clean hands. The fact that the Claimant worked meritoriously for almost 13 years without confirmation of his probationary employment was one of our reference points in urging the Court to side with the Claimant and not with the Defendant who had acted inequitably and callously in deeming his employment terminated without bothering to care about the circumstances of the Claimant’s whereabouts.

Furthermore, as a general principle, proof of delivery of a document is by production of a dispatch book indicating receipt, or evidence of dispatch by registered post, or evidence of a witness credible enough to prove that the person was served with the document. See Nlewedim v. Uduma [1995] LPELR- 2053[SC] 12-13 and Shoprite Checkers [Pty] Ltd & Anor. v. A. I. C. Ltd [2020] LPELR-49905[CA]. We also referenced the Supreme Court’s decision in OMEGA BANK (NIG) PLC v. OBC LTD (2005) 8 NWLR (PT 928) 547 at 541 that: “Where a document is not signed, it may not be admitted in evidence even if it is admitted in evidence the Court should not attach any probative value to it”.

Alternatively, we argued that Clause 15(a) of the Exhibit BUA 1C amounts to unfair labour practice in view of the facts of the present case, particularly because the Claimant has no history of abandonment or disciplinary record, having worked meritoriously for about 16 years and the said Clause 15(a) permits the Defendant to treat absenting staff’s employment as terminated on the ground of abandonment of work without affording the affected employee a fair hearing opportunity.

Interestingly, the Court did not pronounce on the issue of non-bindingness of a handbook (Exhibit BUA 1C) that was never given to the Claimant apparently because the Court already disbelieved the allegation of abandonment which is founded on clause 15(a) of Exhibit BUA 1C and therefore felt no need to belabour the issue of legality of the Handbook.

Although a court must give a full and dispassionate consideration to all the issues raised and canvassed before it, however, we are well aware that it is not in all instances where a court’s failure to make a pronouncement on an issue raised is fatal to its judgment, particularly in the present case when the only defence of abandonment has crashed woefully for non-observance of basic principle of fair hearing. [See N.C.C. v. Motophone Ltd. (2019) 14 NWLR (Pt. 1691) 1; C. N. Okpala & Sons Ltd. v. Nig. Breweries Plc (2018) 9 NWLR (Pt. 1623) 16; Brawal Shipping (Nig.) Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt. 678) 387].

The learned trial Court recognised the Defendant’s right to suspend an employee when necessary, either as a punishment as in the instant case or to enable the investigation of an infraction, as an integral part of the employer’s right to discipline a staff but nevertheless resolved the first issue for determination against the Defendant when his lordship held as follows:

“I agree with the Claimant’s submission that clause 15(a) of Exhibit BUA1(c) constitutes an unfair term which is unreasonable. It will sound very uncommon that the Claimant who had worked with the Defendant for 15 years would just determine his employment by abandoning his duty. I think, it would have cost the Defendant nothing to look for the Claimant through his addresses and phone numbers which were available on Exhibit BUA1a & b to know his reasons for the alleged abandonment of duty. Arising from the above therefore, I do not believe that the Claimant abandoned his duty after his 3 month suspension. I find that the Claimant attempted to resume at his work place but was asked to hold on until he heard from the Chairman of the Defendant.”

According to the learned trial Court, even though Clause 15(a) of the Defendant’s Handbook says that any employee who absents himself from duty for 3 consecutive days without permission will be deemed to have abandoned his duty and voluntarily withdrawn from the service of the company, but I hold the view that this will only happen when enquiries and investigations are made and it is actually found out that the employee absented from duty without any doubt. The Court held further that regardless of Clause 15(a) of Exhibit BUA1c, the Claimant should still be given fair hearing on the alleged abandonment of duty and that that Clause 15(a) of Exhibit BUA1c cannot override the general principles of fair hearing in the investigation and resolution of alleged misconduct of which abandonment of work is one.

The judicial decisions are consistent on the fact that abandonment of duty without excuse constitutes misconduct. See Ibrahim v. Consumer Protection Council & Ors. [2015] 57 N.L.L.R. (Pt. 195) 318; Sule v. Nigerian Cotton Board (1985) 2 NWLR (Pt. 5) 17; Unical v. Essien (1996) 10 NWLR (Pt. 477) 225. Any employer who accuses an employee of abandonment of duty (being a misconduct) ought to afford the employee fair hearing before deeming him to have abandoned his duty without any permission. See Arinze v. F.B.N. Ltd. (2004) 12 NWLR (Pt. 888) 663 SC.

In this particular Sunday v. BUA case, the phrase “WITHOUT ANY PERMISSION” in Clause 15(a) of Exhibit BUA 1C, in our submission, ought to be construed strictly against the Defendant to impose a duty on the Defendant to first investigate whether the Claimant was, indeed, absent from work with or without any permission before the Defendant could take any cover under or benefit of the clause by raising the defence of abandonment. We argued and the learned trial Judge agreed that the Defendant’s argument that the Claimant abandoned his employment is a desperate attempt to cover up their lapses and an afterthought as they have no evidence of the Claimant’s abandoning his employment and that the testimony of the Defendant that the Claimant did not resume work after suspension is speculative in the light of the testimonies elicited under cross-examination.

(2) The Legal Implication of the Defendant’s Failure to Recall the Claimant after Suspension

Another contentious issue in the case against BUA International Limited (and we dare say, in most employment litigations bordering on abandonment of work after serving suspension) is the consequence of employer’s failure to recall an employee after suspension. On their part, the defence argued that it was unnecessary for it to write to recall or invite the Claimant or enquire its whereabouts after the period of suspension and it was entitled to treat the Claimant’s employment as terminated due to abandonment of work and voluntary withdrawal from work, relying on Clause 15(a) of Exhibit BUA 1C.

However, our submission before the Court is that the Claimant remains suspended in so far as the Defendant fails or refuses to recall him and even though the Defendant did not issue a new suspension letter on 27/03/2014, when the initial 3 months’ suspension lapsed, the refusal of the Defendant to recall or allow the Claimant to resume work means the Claimant remains suspended till he is recalled.

Evidence elicited under cross examination established that the Defendant suspended the Claimant without salary and refused to recall the Claimant or allow him to resume on 27/03/2014 and thereafter they came under clause 15(a) of Exhibit BUA 1C to allege that the Claimant abandoned his work. It is logical that whenever an employer suspends an employee, the employer must either recall or disengage the suspended staff. So, the Defendant was duty bound to either recall or disengage the Claimant but because they did neither, the Claimant’s suspension must be deemed indefinite.

In the Sunday v. BUA case, the learned trial Judge recognised the inchoate and precarious situation of a suspended employee when his lordship held (adopting the views of the Court of Appeal in the case of Globe Motors Holding (Nig) Ltd v. Oyewole (2022) LPELR – 56856 (CA)) as follows:

“Since suspension is not a termination of the employment contract nor a dismissal of the employee, the implication is that the employee is still in continuous employment of the employer until he is RECALLED or formally terminated or dismissed. Pending his RECALL or dismissal, a suspended employee is entitled to his wages or salary during the period of suspension, unless the terms of the contract of employment or the letter of suspension itself is specific that the suspended employer will not be paid salaries during the period of suspension. See National Judicial Council V. Aladejana (2014) LPELR- 24134 (CA).”.

The above pronouncement is also consistent with an earlier decision in S.P.D.C Nig. Ltd v. Emehuru [2007] 5 NWLR (Pt. 1027) 347 where the Court held that: “….where an employee is placed on hold; he lives day by day in anticipation of either being RECALLED or being laid off.”

The Supreme Court in Longe v. First Bank of Nigeria Plc [2010] 6 N.W.L.R. (Pt. 1189) 1 at 60 per Adekeye JSC also held as follows: “Suspension is usually a prelude to dismissal from an employment. It is a state of affairs which exists while there is a contract in force between the employer and the employee, but while there is neither work being done in pursuance of it nor remuneration being paid. Suspension is neither a termination of the contract of employment nor a dismissal of the employee. It operates to suspend the contract rather than terminate the contractual obligations of the parties to each other.”

The totality of the above is that there has to be an end to the period of suspension, meaning a suspension must be definite after which a suspended employee must be recalled or disengaged, as the case may be. Internal policies like Clause 15(a) of Exhibit BUA 1C cannot be relied on to justify an implied disengagement of the employee on the ground of abandonment or voluntary withdrawal from work. Interestingly, in agreeing with us, the learned trial Court held as follows:

“To me, the proper thing to do by the Defendant was to look for the Claimant and find out the reasons for his absence before it deemed his employment determined. After all, the Claimant averred at paragraphs 17 to 19 of his statement of facts that upon the expiration of his suspension period, he dressed up and resumed at the Defendant’s office but the Chairman’s Secretary and the Head of Human Resources Department informed him that he should hold on until he heard from the Chairman.

Eventhough Clause 15(a) of the Defendant’s Handbook says that any employee who absents himself from duty for 3 consecutive days without permission will be deemed to have abandoned his duty and withdrawn from the service of the company, but I hold the view that this will only happen when enquiries and investigations are made and it is actually found out that the employee absented from duty without any doubt. Regardless of Clause 15(a) of Exhibit BUA1c, the Claimant should still be given fair hearing on the alleged abandonment of duty. My view is that Clause 15(a) of Exhibit BUA1c cannot override the general principles of fair hearing. Clause 15(a) is just a presumption that is rebuttable. That was the more reason why the Defendant should have made enquiries and investigations about the Claimant’s absence from work.

I think the question whether the Claimant resumed work or not does not even arise. What is important is whether the Defendant had taken steps to investigate the whereabout of the Claimant with a view to giving him fair hearing.

I do not therefore agree with the Defendant that the best approach to a long serving employee with no prior record of abandonment was to apply Clause 15(a) of the Handbook when he is absent for days. It is unreasonable for the Defendant to refuse to take any action by investigating the whereabouts of the Claimant before it deemed his employment abandoned. The action of the Defendant of not investigating the whereabouts of the Claimant undermines not only the principle of fair hearing but the long standing employment relationship that had been in existence between the Claimant and the Defendant.”

(3) Learning Points for Employers and Employees

One of the learning points from the Sunday v. BUA case is that employers must seek proper legal guidance before undertaking any disciplinary procedure. In the event of suspension, employers must take active step to recall suspended employees after serving the period of suspension. The means of communication with the employee such as his private email address (not his/her official email if access is restricted) or his last known address can be resorted to if the employee is unreachable on telephone.

Also, before deeming an absenting staff’s employment to have been terminated, the employer should take reasonable steps to investigate the whereabouts of the affected employee. By investigating, the employer should invite the employee for questioning or issue a query for the employee’s response, preferably through the email address with which the employee applied for the job. Failure to investigate may amount to breach of fair hearing and nullity of the action of the employer.

Furthermore, the staff handbook ought to be subjected to periodic review to ensure its compliance with employment laws, including recent judicial decisions and international best practices in employment and labour relations.

It is also important for employee to document or keep records of his suspension and attempts to resume work after suspension and everything in-between.

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ABOUT KORIAT & CO.

We are a commercial and litigation law firm in Nigeria with network of lawyers and consultants in Ghana, Kenya and Rwanda. We represent clients in multiple jurisdictions.

The above article is not legal advice and does not automatically make our readers our clients unless they specifically instruct us to act or represent them in any way.

Please contact Koriat & Co. through admin@koriatlaw.com or 09067842241 if you require additional information about or assistance on employment law advice or litigation.

1. Introduction

The Supreme Court of Nigeria is the last hope of the common man, the final stage of dispute resolution and a court whose decisions cannot be review except by legislative amendments. The Supreme Court, as the apex court in Nigeria, has limited original jurisdiction but very broad adjudicatory powers over all civil and criminal appeals from the Court of Appeal, the Legal Practitioners Disciplinary Committee (LPDC) and Presidential Election Petition Tribunal plays a crucial role in shaping the legal landscape and ensuring that justice is served efficiently. Over the years, the procedural framework governing Supreme Court proceedings has evolved very slowly tending to certainty of the court’s processes and ensure predictability. 

Recognizing the need for greater efficiency, reduced case backlog, and modernization of judicial processes, the Supreme Court introduced the Supreme Court Rules 2024 to replace the 1985 Rules, which had governed the Court’s proceedings for nearly four decades. This transformation reflects the Supreme Court’s response to technological advancements, the need for faster case resolution, and a more streamlined judicial system. 

The Supreme Court Rules 2024 introduces significant changes aimed at expediting litigation, enhancing access to justice, ensuring greater transparency, and integrating modern technologies into the apex court processes.

• Key Innovations in the Supreme Court Rules 2024

The Supreme Court Rules 2024 mark a significant stride from the previous procedural framework by incorporating a total of 22 Orders, 216 Rules and 37 Forms (under the First Schedule) as well as the Table Fees in Civil Matters (under the Second Schedule) that regulate the appeal process before the apex court. It is important to note that the wordings of the Rules is simple, judicial interpretation may differ in the future depending on the set of facts before the court and the need to do substantial justice.

Below is a comparative analysis of some of the most critical provisions. 

2.1 General Definition (Order 1 of 2024 Rules of 2024 Rules)

One of the first notable changes introduced by the 2024 Rules is the expansion of definitions under Order 1. Unlike the 1985 Rules, which provided limited definitions, the new rules explicitly define key legal terms such as Act, Appeal, Appellant, Applicant, Bailiff, Cause, Chief Justice, Presiding Justice, Justice, Chief Registrar, Registrar, and Registrar of the Court Below. 

For instance, Order 1 Rule 3 of the 2024 Rules defines an Appeal as the entry of an appeal after the record of appeal has been transmitted from the court below. In contrast, Order 1 Rule 2 of the 1985 Rules provided a more limited definition, simply describing an appeal as an application for leave to appeal. 

2.2 Service of Notice of Appeal (Order 3 of 2024 Rules)

The 2024 Rules introduce stricter obligations for legal practitioners who no longer represent a party. Under Order 3 Rule 3, a lawyer who has ceased to act for a party but is still served with a Notice of Appeal or any other process must inform the Registrar within seven (7) days. Failure to do so may result in penalties, including an order to pay costs and potential disciplinary action for professional misconduct. 

This provision ensures clarity in legal representation and prevents unnecessary procedural delays. 

2.3 Applications to the Court (Order 4 of 2024 Rules)

The process for bringing applications before the Supreme Court has been revised to ensure speed and procedural efficiency. 

Order 4 Rule 1 mandates that every application must be made by motion on notice, specifying the rule under which it is brought, the grounds for the relief sought, and must be supported by an affidavit and a written address. Notably, the written address in support of the motion must now be limited to Ten (10) pages for brevity and clarity. Respondent, who wishes to oppose the motion, has fourteen (14) days to file their response, while the applicant has seven (7) days to file a reply on points of law, if any. 

There is a grave penalty for tardiness under the 2024 Rules in contrast to the 1987 Rules. Where the time prescribed for filing certain court process expires, Order 4 Rule 15 provides an automatic extensions of time for doing so, with penalties for delays beyond the prescribed period. However, applications for extension of time beyond the second instance will not be entertained except in cases involving a death sentence appeal. 

2.4 Time for Transmission of Record of Appeal in Civil and Criminal Proceedings (Order 6 of 2024 Rules)

The 2024 Rules introduce both physical and electronic copies as mandatory components of the record of appeal. 

Order 6 Rule 4 of the 2024 Rules has reduced the timeframe for transmitting the record of appeal from six (6) months under the 1985 Rules to three (3) months.  This change ensures faster commencement of appellate proceedings and aligns with modern best practices. 

2.5. Punitive Costs (Order 12 of 2024 Rules of 2024 Rules)

This provision is one of the most fundamental efforts by the Supreme Court to discourage undue delays and frivolous appeals by litigants. Under Order 12 Rule 4, the new rules introduce structured cost implications for civil appeals to deter frivolous applications: 

1. ₦2,000,000 minimum cost awarded to a successful party in a civil appeal.
2. ₦1,000,000 minimum cost for delaying an appeal hearing. 
3. ₦500,000 minimum cost for applications heard in open court. 
4. ₦2,000,000 minimum cost for abuse of court process. 

These provisions act as deterrents against unnecessary delays and frivolous litigation. In deserving cases, the Supreme Court can award the above costs against litigants and/or their lawyers to be paid within 90 days without which the affected lawyer will lose right of audience before all other courts in Nigeria.

2.6. Brief of Argument (Order 16 of 2024 Rules)

The Supreme Court Rules 2024 introduce significant modifications to the timeframe and format for filing briefs of argument. These changes are aimed at improving efficiency, ensuring clarity, and streamlining appellate proceedings. 

Reduction of Timeframes for Filing Briefs

Under Order 16 Rule 2 of the 2024 Rules, an appellant’s brief must be filed within 45 days from the date of receipt of the record of appeal. This is a significant reduction from the 1985 Rules, which permitted an appellant 10 weeks (approximately 70 days) to file the brief. 

Similarly, Order 16 Rule 4 reduces the timeframe for filing a Respondent’s brief to 30 days from the date of service of the appellant’s brief. This is a marked reduction from the 8 week period (approximately 56 days) provided under the 1985 Rules. Furthermore, an appellant now has 14 days to file a reply brief, ensuring a faster appeal process. 

Stricter Formatting Requirements for Briefs

With regard to the format of briefs, the 2024 Rules introduce detailed formatting requirements and size of briefs of argument. Under Order 16, written briefs must meet the following requirements:

1. It shall not exceed 45 pages,
2. Be legible and well-bound, 
3. Be prepared in 210mm by 297mm paper size (A4-sized paper), 
4. Use a font type of Arial, Times New Roman, or Tahoma, 
5. Be in 14-point font size, 
6. Maintain at least 1.5 spacing between.

Furthermore, all parties with identical interests must file joint briefs, and briefs that fail to comply with format requirements will not be accepted. 

The 2024 Rules allow the Supreme Court to dismiss such appeals suo motu (on its own motion) in Chambers with or without a formal application. 

2.7 Electronic Filing (Order 17 of 2024 Rules of 2024 Rules)

A groundbreaking reform is the introduction of mandatory electronic filing via the NCMS E-Filing Portal. 

Order 17 Rule 1 makes the provision of E-Filing of any applications, documents, and processes after which a date is set by the Chief Justice for hearing.

Order 17 Rule 4(2) empowers the Chief Justice to issue Practice Directions regulating electronic filings periodically. 

This innovation aligns the Supreme Court with global best practices in digital case management. 

2.9. Filing Fees (Order 5 and 2nd Schedule of the 2024 Rules)

The costs of filing court process have ben reviewed upwards with significant increase in both original and appellate jurisdiction as well as general court filings. For instance the costs of every volume of record from the court is N50,000 (this is a huge cost when multiplied by the number of volumes of record to produce, usually 14 or more), filing cost for a notice of appeal is N20,000 whilst motion for leave to appeal is N15,000 whilst briefs of argument is N22,000. The cost of filing motions range from N5,000 to N25,000 depending on the nature of motion. Please note that motions, affidavits and written addresses are all charged separately.

It is now common to get fee assessment of over N2,000,000 as filing cost of court process at the registry of the Supreme Court, a significant different difference from the costs under the 1985 Rules.

2.9 Virtual Hearing (Order 18 of 2024 Rules of 2024 Rules)

Recognizing technological advancements, the 2024 Rules allow for virtual court proceedings. 

Order 18 Rule 1 permits the Court to conduct hearings virtually suo motu or upon a party’s application. 

Order 18 Rule 8 empowers the Chief Justice to issue Practice Directions for regulating virtual hearings periodically. 

This provision is a progressive step towards enhancing access to justice and reducing delays associated with physical court appearances. 

3.0. Conclusion

The Supreme Court Rules 2024 represent a significant stride in addressing some of the long-standing challenges stalling the progress of appeals while incorporating contemporary technological advancements. It is believed that these reforms will foster speedy hearing of appeals, better case management, enhanced access to justice, and greater transparency and accountability amongst litigants.

Factual Summary of the Case of Williams v. Williams

The case of Williams v. Williams (1987) 2 NWLR (Pt. 54) 66 SC represents a strong judicial authority on legal issues in child custody dispute in Nigeria. The case started around 1981 before Hon. Justice Oladipo Williams of the High Court of Lagos State, whose judgement of 12^th November 1982 was reversed by the Court of Appeal Lagos Division (by a majority of two to one) in an appellate decision of 3^rd December 1984, against which a final appeal was filed before the Supreme Court whose final judgment was delivered on 3^rd April 1987. It took the husband and wife a total of about six (6) years to settle their child custody battle through the court system.

The case was filed by Mr. Rasheed Ahmed Williams against Mrs. Theresa Temitope Williams (who at the time was a Chief Magistrate and later appointed Judge of the High Court of Lagos State) following the breakdown of their marriage. The marriage was dissolved by a decree nisi, which was later made absolute. However, an appeal arose against the Judge’s order granting custody of their girl child to the appellant who was absent during the trial. There were three (3) children of the family, namely, Rasheed Ayodele Williams (male); Hakeem Akintola Williams, (male) and Kafilat Abimbola Williams (female). There was no contest about the custody of Rasheed Ayodele Williams and Hakeem Akintola Williams, both of whom have been in the care and custody of the respondent (the father) who enrolled them in a school in England since the parties separated on 1^st October, 1975. The contest was only in respect of the custody of Kafilat Abimbola Williams who had been in the care and custody of the appellant (the mother) since the parties separated.

An excerpt of the respondent’s testimony is as follows:

“I … pray the court not to grant her request for custody of Abimbola. She has no time for her. She leaves for her work at 7.00 a.m. She leaves her in the care of maid who will take her where they want to go and take taxi to school. In the afternoon, she is still in court. She has an arrangement with Mrs. Finnih and Mrs. Egbeyemi, her friends who collect her and help her until she goes to collect her in the evening.

In the last two years she has been travelling in and out of the country leaving the girl in the care of friends. All these convince me that she has no time for her.

I will like the court to grant me a divorce because our marriage has broken down completely and to grant me custody of the girl for a better quality of education and hope thereafter. I want also the custody of the two boys.”

As noted by the Supreme Court, there was no testimony from the appellant. So the judge’s decision was based on unchallenged evidence of Mr. Williams.

The Summary of Decision by the Trial Judge, Court of Appeal and the Supreme Court

Justice Oladipo Williams, who heard and determined the petition, granted custody of the child to the appellant (mother). This was after hearing evidence from only the respondent as the appellant did not attend the proceedings to testify in support of her application for custody and did not appear at the hearing of the petition.

The Court of Appeal to which the respondent took the matter on appeal, by a majority of two to one (coram: Philip Nnaemeka-Agu, J.C.A., presided and delivered the Lead Judgment, Idris Legbo Kutigi, J.C.A., read dissenting judgment,andBarclay P. Pepple, J.C.A.), reversed the decision of Oladipo Williams, J. and granted custody to the respondent. The appellant being dissatisfied has brought the issue of question of custody to Supreme Court for determination, which on 3^rd April 1987, the apex court unanimously allowed but granted joint custody.

The following Justices of the Supreme Court constituted the panel that delivered the unanimous judgment under reference, namely: Andrew Otutu Obaseki, J.S.C. (presided and read the lead judgment), Augustine Nnamani, J.S.C.; Adolphus Godwin Karibi-Whyte, J.S.C.; Saidu Kawu, J.S.C.; Chukwudifu Akunne Oputa, J.S.C.

In its judgment, the Supreme Court stated at page 73 paragraphs E-F of the report that “The desire of the respondent to make available to her the same educational opportunities as the two brothers are enjoying in England, laudable as it is, cannot be a ground for denying the appellant custody of Kafilat. The rebuff the respondent has suffered from the hands of the appellant in his effort to contribute his quota to the welfare of Kafilat is however a ground for granting split or joint custody. A child is entitled to enjoy the best care and attention the parents can offer. Provided that a parent is in a position and willing to provide them, the child should not be denied them by the actions of either parent.”

In granting joint custody, at page 77, paragraph B-C of the law report, the Supreme Court held that: “With respect to the learned Justice of the Court of Appeal, I would say that the absence of any evidence of her character made it impossible to judge her character. I would also go further to say that the absence of any evidence impugning her conduct in the exercise of care, control and supervision of the child made it impossible to damnify and condemn the appellant. The evidence led does not, in the least, amount to an indictment. On one view, it amounts to a commendation and a mother’s concern for the welfare of her child…… In the circumstances, an order for joint custody with care and control to the appellant and responsibility for education to the respondent will be most appropriate. It will meet the justice of the case and take care of the welfare of the child.”

The Lessons for Couples Who Have Child Custody Dispute

There are several legal points and lessons that are deducible from the Williams v. Williams. However, the following lessons are very fundamental and noteworthy for anyone that is currently or potentially entangled in a child custody dispute in Nigeria:

1. Paramountcy of the child’s welfare overrides the superiority of the claims of either parent: This means that, in any proceedings before any court where the custody or upbringing of a minor is in question, the court shall regard the welfare of the minor as the first and paramount consideration and shall not take into consideration whether the claim of the father in respect of such custody is superior to that of the mother or vice versa. What amounts to the good welfare of a child is a question of facts and evidence presented by the spouses, over which the judge has absolute discretion. In the case of Re W (an infant) (1963) 2 All ER 706 at 711, Pennycuick, J. commented and the Supreme Court in Williams v. Williams (per Obaseki, JSC) agreed with him at page 79, paras. D-E that: “………..it is in the interest of the infant that the father should have a practical and effective interests in its education.” Please note that any piece of evidence of a child’s poor academic performance, malnutrition or ill-health of the child is relevant to determine if the child is receiving good care and welfare treatment. Foreign education may be desirable but the fact that one parent decides not to or cannot sponsor a child for foreign education does not mean the child is suffering unduly in Nigeria because he or she has not as yet been given the benefit of the sophisticated education which her siblings or peers are receiving abroad. The other siblings or peers could be more comfortable in their environment in the foreign country but the Williams v. Williams is an authority to the effect that great comfort is not the criterion for measuring the welfare of a child. It has also been held by the court that if a parent could provide a home and the necessities of life to a child, he or she should not be deprived of custody unless he or she is guilty of misconduct. See In Re O’Hara (1900) 2 I.R. 

2. Equal right of both parents: In regard to the custody or upbringing of a child, a mother shall have the same rights and authority as the law allows to a father and those rights and authority shall be equal and exercisable by either without the other. The fact that the mother has custody would not prevent the father from making plans for the infant’s education; and where the custody of the infant is given to one parent, it is always open to the other parent to make a further application to the court for access right. If one parent has legal custody and the other care and control, and they are unable to agree, a further application by one or other to the court is probably inevitable in any case.

3. Conduct of the Parents: The welfare of the child, though the first and paramount consideration, is not the sole consideration and the conduct of the parties is a matter to be taken into account. See Re L (infants) (1962) 3 All ER 1. In Williams v. Williams, where the appellant has had custody of the girl child since her tender age and the respondent/appellant (mother) had not shown that the child was unduly suffering, the trial held and the Supreme Court affirmed the decision at page 78 at paragraph C-D, that “The fact that she (the child) had been in the custody of the appellant (the mother) since 1975 tilted the scale substantially in favour of the appellant. The absence of any evidence of plans and proposal for her future education is definitely against her while the evidence given by the respondent of his plans and proposal for her education is in his favour. In the circumstances, an order for joint custody with care and control to the appellant and responsibility for education to the respondent will be most appropriate. It will meet the justice of the case and take care of the welfare of the child”.

4. Adultery, Smoking, Doing Drugs or Other Misconduct of a Parent is not a Ground for Denying Custody or Access: The adultery of a party is not necessarily a reason for depriving the adulterous party of custody unless the circumstances of the adultery make it desirable to deny him or her thee child custody in order to protect the child from exposure to prostitution, promiscuity or other social vices. The case of Allen v. Allen (1948) 2 All ER 413 – a decision of the English Court of Appeal – is very relevant on the point. After a decree of divorce had been granted to a husband on the ground of his wife’s adultery with the co-respondent, an order was made granting to the husband the custody, care and control of the daughter of the marriage (aged 8 years) who, until then had been in the care and under the control of the mother. Since the decree absolute, the mother had married the co-respondent. The trial Judge, in deciding to make the custody order, regarded the moral welfare of the child as of paramount importance and took the view that the wife, having once committed adultery, was likely to do so again, and that as the husband was re-married to a wife against whose moral character no charge could be made, he was more fit to have the care of the child. The trial judge noted that there was little to choose between the accommodation offered by the parties, but it was undisputed that the child was happy with her mother and making good progress at school and there was medical evidence to the effect that the child’s health would suffer if she were separated from her mother.

On appeal by the wife against the custody order, the English Court of Appeal, in reversing the custody order, held that the Judge had not applied the proper test and that the welfare of the child both moral and physical, being the paramount consideration, and therefore the appeal must be allowed. In his judgment, Wrottesly, L.J. said at page 414: “The welfare of the child, both moral and physical was the paramount consideration. It was impossible to say because a woman had once committed adultery, she was not a fit person vis-a-vis one who had not to look after a child. There was no suggestion that the mother was promiscuous or a bad mother or a bad housekeeper, or anything which made it undesirable for her to look after the child. All the evidence in the case is strongly in favour of leaving the child with her.”

Evershed L.J., (as he then was) also commented, in concurrence, as follows:

“This court is always loath to interfere with the discretion of a learned judge but I agree that here we are compelled to do so. The learned Judge seems to have read the word “moral” into S. l of the Guardianship of Infants Act, 1925 before “welfare”. Further, he has inferred that a woman who has committed adultery will always repeat it. Both suppositions are wrong. It would not be right to snatch this female child of eight from her mother and force her to make a new start with her father and step mother. The court has sympathy with the father who has been gravely wronged and if he wants access to the child, not only on odd days, but for a substantial period during the holidays, he is entitled to have it.”

5. Brotherhood and Sisterhood with other Siblings is a Consideration: The fact and advantages of brotherhood and sisterhood must also be considered when there is more than one child of the family and the court is more inclined to give custody of one child to one person and another to a different person. See Wakeham v. Wake ham (1954) 1 All ER 434 CA at 435.

6. Age of the Child is not a Factor for Determining Custody: There is no settled rule that a child of tender years should remain in the custody of the mother instead of the father. See Re B. (an infant) (1962) 2 All ER 872; W. v. W and C (1968) 3 All ER 408. However, the personal care and supervision that a mother who is not out at work can give to little children is an important factor, which obviously will be far greater than the care and supervision of a busy career woman. See In Re O. (infants) (1971) Ch. 748; (1971) 2 All ER 744 CA at 746, 752.

In Allen v. Allen (1948) 2 All ER 413, Evershe L.J. held that “It would not be right to snatch this female child of eight from her mother and force her to make a new start with her father and step mother.”

However, in W v. W and C (1968) 3 All E.R. 408, the Court of Appeal in England held that it was right for the Court to be guided by the general principle that a boy of eight (8) years old was on the whole, other things being equal, better off with his father. 

So, judicial decisions are not settled on the use of age as a basis for determining who should have custody but the facts and evidence of each case would guide the presiding judge in doing justice in each case.

7. Child Custody or Access Order is not to punish a parent: Please note that an order of custody is not a penal order on either parent and should not be construed as such. It imposes a responsibility not to be lightly taken. In dealing with the questions of custody or access right, the court will have regard to the particular circumstances of each case always bearing in mind that the benefit and interest of the child is the paramount consideration and not the punishment of a spouse for misconduct. See B. v. B. (1924) p.176.

8. Joint Custody is Appropriate where Evidence Shows Equal Capacity and Care from Both Parents or Other Deserving Circumstances: Please note that the court can award legal custody to one parent while care and control is granted to another but the wishes of an unimpeachable parent stand first. See Williams v. Williams, relying on Re Thain, Thain v. Taylor (1926) Ch. 676 which was approved by the English Court in Mckee v. Mckee (1951) AC 352,366; (1951) 1 All ER 942, 949 PC.

However, where evidence before the court shows that both parents have financial capacity and they have equal care and plans for the future of the child, the court will most likely grant joint or split custody to both parents. Take for example, which does frequently arise, parents may be of different religious belief and there is nothing wrong whatsoever to prevent care and control and charge of religious upbringing being committed to one parent and all the other constituents of custody vested in the other. Please note that this is a question of a judge’s discretion in each case.

In the Williams v. Williams case, for instance, there was nothing before the court to disqualify either of the parties from being entitled to an order for the custody of Kafilat Abimbola. It appeared from the facts on record that she was already schooling in England (at the time of the appeal), just like her two brothers who were in the custody of the respondent (the father). The Supreme Court observed that it must be that the appellant (the mother) eventually decided to make available to her the same opportunity for sophisticated western education as the respondent (the father) has made available to her two brothers. In view of the facts of the case, the Supreme Court granted split or joint custody despite the fact that only the respondent gave evidence during the trial proceedings whilst the appellant was absent for no known reason.

It has also been said, as observed in Jussa v. Jussa (1972) 2 All ER 600, that a joint order of custody (with care and control to one parent) should only be made where there is a reasonable prospect that the parties will co-operate. Really, the judge can only hope that the parents will co-operate for the good of the child. Where a party refuses to cooperate, the aggrieved party can, of course, apply for the appropriate injunctive orders.

9. Custody of a Child can be granted to the Relation of a Parent:  It is reasonable to say that the best arrangement for the welfare of any child is that he or she should be with his or her parents. However, there is necessarily no law that says a mother has a paramount claim as against the father’s relations, at any rate where the father is alive and support the application of those relations. See In Re A, an infant (1959) C.L.Y. 950 (1959) Times March 25th C.A. In deserving cases, a father’s relations can apply and obtain custody order of a child notwithstanding the mother’s objection.

Conclusion

Child custody dispute is contested on facts and the judge’s decision is largely discretionary, based on primacy of facts. All the circumstances must be considered. See Re L (infants) (1962) 3 All ER 1. The interest of the child can only be determined by the court after hearing the relevant facts, relationships, claims and wishes of parents, risks, choices, other circumstances and weighing them. (See Rayden on Divorce 13th Edition Vol. 1 pp. 1035 and flq.). 

In H v. H and C (1969) 1 All E.R. 262, it was stressed that issues such as the custody and care and control of a child cannot be determined by the court without hearing the oral evidence of the parties and their witnesses since the character and appearance of the respective parents is very often a decisive matter.

Consequently, material facts and evidence from both parents must be forthcoming for a proper consideration of all these issues mentioned above. Evidence of both parents is imperative. Indeed, such is the importance of the evidence of both parents that by Divorce Rule 92(4)(a) (which admittedly is not part of the law of Nigeria) neither a father nor the mother is entitled to be heard for or against any application for custody, care and control or access unless he or she is available at the hearing to give oral evidence or the Judge directs otherwise.

The reason the trial judge gave custody to the mother in Williams v. Williams, despite the mother’s absence during trial was because the evidence of the father did not indict the mother. In fact, the evidence showed that the mother made adequate support arrangement for the child whilst she was busy at work as Chief Magistrate.

Divorce and child custody issues are complex and emotionally charged aspects of family life. In Nigeria, dissolution of marriage can be according to statute, customs and tradition, depending on how the marriage was formed. A marriage conducted or celebrated under the Marriage Act (usually at the Marriage Registry) is a statutory marriage and as such can only be dissolved in accordance with the relevant statute. The dissolution of statutory marriage is governed by the following:

i.   Matrimonial Causes Act, Cap. M7, Laws of the Federation, 2010 (“MCA”);

ii.  Marriage Act, Cap. M6, Laws of the Federation, 2010 (“MA”);

iii. Matrimonial Causes Rules 1983.

It should be noted that except facts are overwhelming, order of dissolution of marriage is not granted as a matter of cause. Section 11 of the MCA provides for reconciliation, which is termed a duty of the court, and until reconciliation is seen to have failed or impossible, no court is empowered to dissolve a statutory marriage. Also, a divorce may not be granted where the parties are in collusion to get divorce through fabricated facts.

Below are key questions on divorce and child custody under Nigerian law.

1. What is a divorce?

A divorce is a court action filed by a spouse (called petitioner) against the other in a marriage, seeking order of a court to end the marriage. A divorce, also known as the dissolution of marriage, is the formal, legal ending of a marriage by a court. When a court grants a divorce order, it means a marriage is dissolved. A dissolution of marriage completely ends a marriage.

In Nigeria, for a marriage to undergo divorce proceedings in court, such marriage must be a statutory marriage under the Marriage Act, legally conducted and evidenced by a valid certificate from the Marriage Registry. 

2. On what ground can a marriage be dissolved?

The grounds for filing a divorce case are stated in the Matrimonial Causes Act and unless a petitioner meets the statutory conditions, a divorce case may fail. By section 15(1) of the Matrimonial Causes Act, a marriage may be dissolved on the ground that the marriage has broken down irretrievably.

3. How does one prove that a marriage has broken down irretrievably? 

According to S.15 (2) of the MCA, a marriage is deemed to have broken down irretrievably is the petitioner can prove one or more of the following facts:

(a) that the respondent has willfully and persistently refused to consummate the marriage;

(b) that since the marriage the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(c) that since the marriage the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(d) that the respondent has deserted the petitioner for a continuous period of at least one year immediately preceding the presentation of the petition;

(e) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent does not object to a decree being granted;

(f) that the parties of the marriage have lived apart for a continuous period of at least three years immediately preceding the presentation of the petition;

(g) that the other party to the marriage has for a period not less than one year failed to comply with a decree of restitution of conjugal rights made under the Act; and/or

(h) that the other party to the marriage has been absent from the petitioner for such time and in such circumstances as to provide reasonable ground for presuming that he or she is dead.

The petitioner must prove one or more of the above facts before he can succeed. Where the petitioner fails to so prove, the petition for dissolution of the marriage will be dismissed even though the divorce is desired by both parties. Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 CA 25

Please note that there are guiding principles for determining whether any of the above grounds has been sufficiently proved or not. It is therefore important to seek the advice of a divorce lawyer in respect of the marital issues between spouses. 

For instance, the test as to whether a petitioner for the dissolution of a marriage can or cannot be expected to live with the respondent is objective. Consequently, it is not sufficient for a petitioner to merely allege that he or she cannot live with the respondent because of the respondent’s behaviour. The alleged behaviour must be so terrible, traumatic or discomforting or disappointing that a reasonable man cannot endure. 

In Nanna v. Nanna (supra), the court had stated that the two facts are severable and independent and both must be proved. The petitioner must prove the detestable act and condemnable conduct and then proceed to prove that he or she finds the act intolerable to live with the respondent. Unless the petitioner satisfies the court on both of these tests, the court may refuse to hold that the marriage has broken down irretrievably.

4. How does a petitioner prove that a respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent? 

Pursuant to section 16 (1) of the MCA, in order to establish that the respondent has behaved in a way that the Petitioner cannot reasonably be expected to live with the Respondent, the Petitioner must establish amongst others, the following:

(a) that during the marriage, the respondent committed rape, sodomy or bestiality; or

(b) the respondent has, for not less than two years, been a habitual drunkard; or habitually been intoxicated by reason of taking or using to excess any sedative, narcotic or stimulating drug or preparation; or

(c) Since the marriage, the respondent has within a period not exceeding five years, suffered frequent convictions for crime in respect of which the respondent has been sentenced in the aggregate to imprisonment for not less than three years; and habitually left the petitioner without reasonable means or support; or

(d) the respondent has, since the marriage and at the date of the petition, been of unsound mind and is unlikely to recover. 

5. Is cruelty a ground for divorce in Nigeria?

Spousal cruelty is not a statutory ground for divorce in Nigeria though it may establish intolerability of the cruel spouse’s conduct. The Court of Appeal in the case of Bibilari v. Bibilari (2011)13 NWLR (Pt. 1264) 207 CA, held that cruelty is not one of the statutory grounds set out under section 15(2) of the MCA for divorce. However, it remains one of the old grounds for divorce. 

Although cruelty may not be a statutory ground for divorce under the MCA, however, facts related to spousal cruelty can be relied upon to show that the respondent (in a petition for dissolution of a marriage) has behaved or conducted himself or herself in a way that the petitioner cannot be reasonably expected to live with the respondent. This is a matter of procedural technicalities which an experienced divorce lawyer should know. A petitioner cannot ask for divorce order on the grounds that the respondent is cruel; but can succeed if he or she shows that the respondent’s acts are intolerable and therefore the marriage has broken down irretrievably as a result of the respondent’s acts of cruelty. 

In Nanna v. Nanna (supra), the court was satisfied that the undenied acts of aggression and physical violence meted to the respondent by the appellant constituted acts of matrimonial cruelty. 

6. How are proceedings for divorce commenced in Nigeria?

By the provision of section 2 of the MCA, the jurisdiction over a divorce proceeding is vested in the High Court of a State of Nigeria and the Federal Capital Territory (FCT) Abuja. There are High Courts in all the 36 States and the FCT. 

In order to commence a divorce proceeding, a petition can be filed in the High Court of any State or the FCT, accompanied by the original (photocopy) marriage certificate, verifying affidavit, acknowledgement of service, certificate of reconciliation and discretion statement (applicable only where one of the parties has committed adultery).

It may be necessary to apply for leave before filing a divorce proceedings in deserving circumstances, according to the law, especially where the marriage is less than two (2) years. 

7. Can a decree of dissolution of Marriage be made in respect of a marriage that is less than 2 years?

Generally, pursuant to section 30 (1) of the MCA, divorce proceedings shall not be instituted within two (2) years after the date of the marriage, except with leave of court. This is known as the two-year rule.

In order to file a divorce petition for a marriage of less than two (2) years, the permission of the court must be sought first by filing a motion ex-parte, along with a copy of the proposed petition for divorce.  Leave of court will only be granted, if in the opinion of the court, failure to grant such a leave will cause exceptional hardship or depravity to a party to the marriage.

However, there are exceptions to the above two-year rule and in the following instances, a petitioner will not need to seek the leave of court before instituting a divorce proceeding, especially where: 

1. the respondent has willfully and persistently refused to consummate the marriage; 
2. the respondent has since the marriage committed adultery and the petitioner finds it intolerable to live with the respondent; and 
3. the respondent has committed rape, sodomy or bestiality.

8. What must be established to prove adultery in a divorce proceeding?

In Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297 CA, the court defined adultery as consensual sexual intercourse between two persons of opposite sexes, at least one of whom is married to a person other than the one with whom the intercourse is had.

In order to establish adultery, a petitioner must prove all of the following facts:

(a) there was a sexual intercourse;

(b) the sexual intercourse was voluntary; and 

(c) at least, one of the parties is married to someone else.

Proof of adultery is very difficult but not impossible. Apart from direct evidence of adultery, which is very rare, adultery is usually proved by circumstantial evidence, which could take various forms. Few examples are as follows:

1. Familiarity and opportunity: if parties are intimate and they have been together in circumstances in which it could be reasonably inferred that they have committed adultery, then they will be presumed to have done so unless there is evidence to the contrary.
2. Venereal disease: if the petitioner can prove that the respondent had contacted a venereal disease from a third party during the marriage, this will give rise to a presumption of adultery.
3. Brothel: if a spouse visits a brothel with a third party, it will be presumed that such a spouse has committed adultery. In a decided case, a hotel receipt showing a spouse lodged without the knowledge of the petitioner was admitted in evidence to prove adultery.
4. Confessions and admissions of adultery: These types of evidence are usually scrutinized because of the danger of fabrication. The court takes into account all circumstances including the desire for a divorce of the party confessing. In such a case, the court usually insists that the evidence be corroborated, although it may not necessarily refuse a divorce order simply because the evidence is not corroborated. Caution is simply advised in acting on such.
5. The birth of a child, by the co-adulterer for the respondent or vice versa. The birth of a child through another man or woman while married to another is a prima facie evidence of adultery unless a DNA test proves otherwise. See Alabi v. Alabi (2007) 9 NWLR (Pt. 1039) 297 CA 356-357.

9. Can a third party be joined in a divorce proceeding?

Yes. Apart from the husband and wife seeking to end their marriage, a third party may be added to the legal proceedings where there is an allegation of adultery.  Under Nigerian law, a co-adulterer may be joined in a divorce action that is founded on adultery. This is however subject to the rules of court and the peculiar facts of each case.

Other instances where a third party may be added are where:

1. Paternity of the child(ren) of marriage is in issue. That is, where another man claims to be biological father of the child(ren);
2. The petitioner and the respondent jointly own a property or properties with another person’s;
3. The parties to dissolution of marriage have business interests together with another party, etc.

The joinder of a third-party addition is to protect the third party’s interest, if any. For instance, where another man claims to be the biological father of the child(ren) of the marriage, he is expected to seek leave of court to join the proceedings, by filing a motion on notice and other accompanying processes. The court will most likely grant the application for joinder and, thereafter, order a DNA test to establish the true paternity of the child(ren) of the marriage. And where it is established that the child belongs to the third party, the husband in marriage will have a good ground to ask the court to dissolve the marriage on the ground of adultery, and charge the wife and the third party for Bigamy (see section 70 of the Criminal Code Law) and accordingly award the custody of the child as might occur to be appropriate to the court. However, such a child remains an illegitimate one.

With respect to joinder of a third party in a divorce proceeding involving a joint ownership or business venture, the basis for such joinder is to ensure that properties that belong to many are not shared to just only the spouses, who are the initial parties to petition, otherwise, there will be no limit to litigation. So, it is expedient for the court to bring all the parties before it and determine their rights and obligations in one proceeding.

10. What is Custody of a Child?

Child custody refers to the legal and physical right or duty to provide shelter and other necessary care for the child(ren) of the marriage, especially after parents have been legally separated.

After the dissolution of marriage, both parents usually share legal and physical custody of their children. This is called Joint Legal Custody and it has been argued that this is the best type of custody which affords the children opportunity to grow up with equal influence from both parents. 

In the alternative, one parent may be granted physical custody of the children, while the other parent will be given what is commonly known as “access right” or “visitation right”, which is simply the right of a parent to visit, or be visited by the child for a definite time and at a definite place. 

Please note that a denial of a court-ordered custody or access right is a contempt of the court, punishable by imprisonment or fine, as the court may deem fit. However, experience has shown that a parent granted physical custody of the children of the marriage after a fierce divorce proceeding, usually denies the other party access rights out of malice and bitterness. Any aggrieved party who has been denied access rights may commence contempt proceedings against the party with physical custody and pray the court for an order to commit the respondent to jail for flouting the order of court.

11. Will the determination of the custody of children of a marriage affect proceedings for the dissolution of the marriage?

Yes, it will.  By the provisions of the MCA and the Child Rights Act, in any custody and guardianship proceedings, the paramount consideration of the court is the best interests of the children of the marriage and the court may make orders in respect of these matters as it thinks fit. 

Section 71 of the Matrimonial Causes Act, 1970 contains the guidelines the courts are to follow in proceedings in respect of custody of children of the marriage and the section reads, thus:

“(1) In proceedings with respects to the custody, guardianship, welfare, advancement or education of children of a marriage, the court shall regard the interests of those children as the paramount consideration; and subject thereto, the court may make such order in respect of those matters as it thinks proper.

(2) The court may adjourn any proceedings within sub-section (i) above until a report has been obtained from a welfare officer or such matters relevant to the proceedings as the court considers desirable and any such report may thereafter be received in evidence;

(3) In proceedings with respect to the custody of children of a marriage, the court may, if it is satisfied that it is desirable to do so, make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage.

(4) Where the court makes an order placing a child of a marriage in the custody of a party to the marriage, or of a person other than a party to the marriage, it may include in the order such provision as it thinks proper for access to the child by the other party to the marriage or by the parties or a party to the marriage as the case may be.

For emphasis, the paramountcy is such that a decree of dissolution shall not be made absolute until the court is satisfied as to arrangements made for the upbringing of the children of the marriage, and a decree absolute made on an inadvertent non-compliance with the custody and maintenance of the children shall be declared void. See Nanna v. Nanna (2006) 3 NWLR (Pt. 966) 1 CA 35-36.

The court may adjourn any proceedings until a report on the welfare of the children has been obtained from a welfare officer. Also, the court has the discretion to make an order placing the children in the custody of a person other than a party to the marriage.

12. Are there other factors that the court will consider in granting a child custody?

Yes. The court, besides considering the interest of the children to be paramount, regard may be had to other factors, such as:

• The wishes of the child(ren), if any;
• Education and religion of the child(ren);
• Conduct of the parents;
• The age and sex of the child(ren);
• Adequacy of arrangement for the child(ren);
• The wishes of natural parents;
• The medical and psychological factors which may arise from the change of the custody of the child;
• Nationality of the mother;
• The court in giving an order of custody will also consider the equal rights of the parents. See Oluwa v. Oluwa (1980) CCHCJ 239.

Generally, the mother will usually be favourably considered as a better custodian of a child of a tender age though this is not expressly provided in any statute. Also, there is also no rule that when a child is female, her custody should be granted to the mother. However, children who are female and in their growing or formative years are, on the whole, other things being equal, are largely considered to be better off being in the custody of their mother. Following a divorce of a marriage with a child of a tender age, it is presumed that the child will be happier with the mother and no order will be made against this presumption unless it is abundantly clear that the contrary is the situation, e.g. upon proof of immorality of the mother, infectious diseases in the mother, insanity and cruelty to the child. See Alabi v. Alabi (supra).

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The above article is for information only and not to serve as legal advice to readers.

Arbitral awards from domestic and international arbitration are binding and enforceable in Nigeria. It is important to note, however, that the right of enforcement of an arbitral award in Nigeria is not without limitation period. Generally, as provided in section 6 of the Limitation Laws of the respective States of Nigeria, an action for enforcement of contract in Nigeria must be commenced at the High Court not later than six (6) years from the date of breach or when the cause of action arises. It is trite law that any action filed after the prescribed limitation period is bound to fail and likely to be dismissed for being statute barred.

There have been conflicting arguments on when time starts to run against the party seeking to enforce an award by an action in Nigeria. Is it from when the cause of action arises (i.e. at the time of committing breach of the contract that gives rise to arbitration) or after the arbitration award is made? Can limitation period be suspended by the Scott v. Avery clauses, which provide in agreements that no action or proceedings in court in a dispute should be taken until the dispute has been referred to arbitration and an award has been made? 

The former view that time starts to run from the date of breach is based on the Limitation Law whilst the latter view is premised on the assumption that an arbitral award creates a new cause of action and therefore limitation period should commence to run from the date of the award. 

Different interpretations have been given to the decisions in the cases of Murmansk State Steamship Line v. Kano Oil Millers Ltd. (1974) 12 SC 1; Obembe v. Wemabod Estates Ltd (1977) 5 SC. 115; and K.S.U.D.B. v. Fanz Construction Co. (1990) 4 NWLR (Pt. 142) 1 and a few more as well as a quotation from Halsbury’s Laws of England, 4th edition, paragraph 611 at p. 323, on when limitation period should begin to count.

It would appear that the Supreme Court has settled the law in City Engineering (Nig.) Ltd. v. Federal Housing Authority (1997) 9 NWLR (Pt. 520) 224. In that case, the parties herein entered into a written agreement dated 17th day of December, 1974 whereby the appellant was to build a number of housing units at Festac Town, Badagry Road, Lagos. The agreement contained an arbitration clause. A dispute arose on 12th December 1980 when the respondent terminated the agreement and the parties eventually went to arbitration presided over by Architect Akinwande Olumide Craig. The arbitration proceedings commenced on 11th December, 1981 and ended in November 1985 when the Arbitrator made his award in the sum of N3,722,118.75 in favour of the appellant. By letter dated 17th August, 1988, the appellant’s solicitors demanded from the respondent the payment of the said sum. When payment was not forthcoming, the appellant applied, by way of motion on notice, to the High Court of Lagos State, pursuant to section 31 (3) of the Arbitration and Conciliation Act No. 11 of 1988, and/or section 13 of the Arbitration Law Cap. 10 Laws of Lagos State 1973 and Order 40 rule 4 of the High Court of Lagos State Rules, 1974. 

The respondent’s preliminary objection, brought on the ground of limitation law, was upheld by Ayorinde J., whose reserved ruling was upheld by the Court of Appeal (per Sulu-Gambari, JCA, Kalgo, JCA and Tobi, JCA). A subsequent appeal to the Supreme Court was unanimously dismissed and at page 245 paragraphs E-G, the Supreme Court held as follows:

“With profound respect to the learned authors, a distinction must be drawn between an action to enforce an arbitral award – this is provided for in the arbitration law itself, and the relief that can be granted in such an action is an order enforcing the award as if it were a judgment of the court. And an action for damages for breach of an implied promise to perform a valid award where it is open to the court to order damages for failure to perform the award or decree, in appropriate cases, specific performance of the award or grant an injunction restraining the losing party from disobeying the award or grant a declaratory relief. In my respectful view, the statutory period of limitation in respect of the former form of action runs from the breach that gave rise to the arbitration. The action leading to the appeal before us belongs to that category of action. In respect of the latter category of action, limitation period runs from the date the losing party refuses to obey the arbitral award. In either case, the date of the award does not apply.”

At page 246, paragraph C-D of the report, the Supreme Court held concluded thus:

“The conclusion I reach is that Question (2) is resolved against the appellant. The statutory period of limitation of six years began to run from 12/12/80 and appellant’s application to enforce the award was statute-barred when it was brought in 1988. The appellant has itself to blame for the catastrophe that has befallen it. Notwithstanding that there was some delay in the arbitration proceedings arising from various applications made by both sides, the arbitrator gave his award in November 1985, a date still within the statutory period of limitation. For unexplained reasons, the appellant waited another three years before applying to enforce the award in its favour, by which time limitation period had set in.”

It is significant to mention, as opined by the Supreme Court in City Engineering (Nig.) Ltd. v. Federal Housing Authority (supra), that Scott v. Avery clauses have been rendered ineffective and inapplicable in Lagos State as time begins to run from the date of breach irrespective the inclusion of the Scott v. Avery clause or the date of arbitral award. The provisions of Section 63 of the Limitation Law reads, thus: “Notwithstanding any term in a submission to the effect that no cause of action shall accrue in respect of any matter required by the submission to be referred until an award is made under the submission, the cause of action shall, for the purposes of this law and of any other limitation enactment (whether in their application to arbitrations or to other proceedings) be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the submission.”

Under Nigerian law, an arbitral award is recognised as binding on the parties to it, but it does not become enforceable automatically until it has been declared enforceable by the judgment of a court. Section 31 (1) of the Arbitration and Conciliation Act 1988 (“ACA”) states that “an arbitral award shall be recognised as binding, and subject to this section and section 32 of this Act, upon application in writing to the Court, be enforced by the Court.” This implies that the power to enforce an arbitral award lies with the court whether domestic or foreign.

Globally, the power to enforce foreign judgments and awards by the courts, is limited by territorial or jurisdictional boundaries. Nonetheless, the effect of such limitation is mitigated by the theories of reciprocity and obligation. In other words, foreign judgments and awards constitute commercial obligations that are enforceable against a liable party/judgment debtor (wherever he or his assets can be found) subject to certain local or international statutory requirements. 

In Re-Arbitration Between Monotgomery Jones & Co, And Liebenthal & Co (1898) LT 406, 408 Smith L.J, stated the general law (which was quoted with approval by the Supreme Court of Nigeria in Taylor Woodrow (Nig.) Limited v S.E. GmbH [1993] 4 NWLR (Pt. 286) 127 per Ogundare, JSC at page 155 paragraph A) thus “I for my part have always understood the general rule to be that parties took their arbitrators for better or for worse both as to decisions of fact and decisions of law. That is clearly the law.”

Generally, an arbitration award (local or foreign) is final and there is no provision for an appeal against an arbitral award under Nigerian law. However, there are statutory grounds for setting aside a domestic award (under sections 29 and 30 of the ACA) and foreign awards (under Article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958) (“New York Convention”), namely: 

(a) where the arbitration panel exceeded its scope of power; 

(b) upon proof of arbitrator’s misconduct; 

(c) the award deals with a dispute not submitted or was procured improperly or fraudulently;

(d) Where there is breach of fair hearing, illegality, incapacity of the parties, and other vitiating elements or the award is contrary to public policy. See Taylor Woodrow (Nig.) Limited v S.E. GmbH [1993] 4 NWLR (Pt 286) 127. 

In this article we shall examine in a question-and-answer format, the legal framework for enforcing foreign arbitral awards in Nigeria.

1. What are the laws that govern the enforcement of foreign arbitral awards in Nigeria?

(a) The Arbitration and Conciliation Act (ACA)

In Nigeria, the primary legislation governing arbitration is the Arbitration and Conciliation Act. Section 51 (1) of the Act states that

“An arbitral award shall, irrespective of the country in which it is made, be recognized as binding and subject to this section and section 32 of this Act, shall, upon application in writing to the court, be enforced by the court.”

(b) Foreign Judgments (Reciprocal Enforcement) Act

Enforcement of foreign judgments in Nigeria is generally governed by the Foreign Judgments (Reciprocal Enforcement) Act, Judgment according to the Act also includes Arbitral awards because by provisions of section 2(1) of the Act, Judgment is defined as: “a judgment or order given or made by a court in any civil proceedings and shall include an award in proceedings on an arbitration if the award has in pursuance of the law in force in the place where it was made become enforceable in the same manner as a judgment given by a court in that place, …”

Also, in Halsbury’s Laws of England, 4th Edition Paragraph 5 at page 8, the word “Judgment or Order” is defined as including an award which the court has registered for enforcement, ordered to be enforced or given permission to enforce as if it were a judgment or order of the court. This position was used by Pemu, J.C.A. in delivering judgment in the case of Sundersons Ltd. v. C.S. PTE Ltd. (2015) 17 NWLR pt. 1488 p.372 CA.

Flowing from the above stipulation, every requirement for the enforcement of a foreign judgment also applies to foreign arbitral awards if such award has been elevated to the status of a judgment before the court. This was the position of the court in Tulip (Nig) Ltd. v. N.T.M. S.A.S (2011) 4 NWLR pt1237 CA and Emerald Energy Res. Ltd v. Signet Advisors Ltd. (2021) 8 NWLR pt. 1779 CA.

(c) Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958 (“New York Convention)

Nigeria became a signatory to the New York Convention of 1958 in 1970 when it ratified the convention on March 17, 1970. The convention was incorporated by Section 54 and the Second Schedule of the Arbitration and Conciliation Act.

By the provision convention, foreign arbitral awards can be enforced directly by the Nigerian courts.

(e) International Centre for Settlement of Investment Disputes Convention (“ICSID Convention”): This Convention regulates institutional arbitration and permits ICSID arbitral awards to be enforced at the Supreme Court as enshrined in the ratifying Act (ICSID Act, L.F.N., 2010), subject to the right of a signatory nation to plead sovereign immunity. Section 1(1) of the ICSID Act provides that a copy of the award made by the ICSID duly certified by the Secretary-General of the ICSID, can be enforced at the Supreme Court of Nigeria by the party seeking its recognition for enforcement in Nigeria. The award shall be deemed as if it were a final judgment of the apex court of the country (the Supreme Court) and shall be enforceable as such.

(f) Enforcement by Action on the Award (either Garnishee Proceedings under the Sheriffs and Civil Processes Act or Summary Judgment Procedure under Lagos State High Court (Civil Procedure) Rules 2019 or similar procedure under the various rules of High Courts across Nigeria: 

These procedural legislations that guide the issuance and execution of court processes in Nigerian where a judgement creditor seeks to by direct action. A foreign award can be a cause of action for instituting a summary judgment proceeding and a subsequent proceeding to attach judgement debtor’s funds. These legislations contain relevant provisions on enforcement of both judgments and arbitral awards in Nigeria including the conditions for attachment of funds in the possession of public officers. 

2. What is the status of Foreign Arbitral Awards in Nigeria?

Generally, arbitral awards have binding force on the parties to an arbitration agreement. In Ras Palgazi Construction Company Limited v. F.C.D.A. (2001) LPELR-2941 (SC); (2001) 10 NWLR (Pt. 722) 559 at 569, paras. C-E the Supreme Court held: “A valid award on a voluntary reference no doubt operates between the parties as a final and conclusive judgment upon all matters referred. It should be remembered that when parties decide to take their matter to arbitration, they are simply opting for an alternative mode of dispute resolution. It must be emphasized that the parties have a choice to either go to court and have their dispute determined by the court or refer the matter in dispute to an arbitrator for resolution. Reference to arbitration, the mode adopted by the parties in the present case is consistent with the agreement executed by both parties. Arbitration as an alternative mode of dispute resolution has for decades been given legal backing. See Arbitration and Conciliation Act of 1988. See: also the cases of Commerce Assurance Ltd. v. Alhaji Buraimoh Ali (1992) 3 NWLR (Pt. 232) 710; K.S.U.D.B. v. Fanz Construction Co. Ltd. (1990) 4 NWLR (Pt. 142) 1. An arbitrator’s award under the provisions of Section 4(2) of the Act when filed in court should for all purposes have the force and effect as a judgment.

An arbitral award is recognised as binding on the parties when it is made but it does not become enforceable until it has been declared enforceable by the judgment of a court. See Section 31 of the ACA. Also, Section 51(1) of ACA expressly provides that an arbitral award will be recognised as binding and enforceable by the court irrespective of the country in which it is made. The specific words of the Act is that “An arbitral award shall, irrespective of the country in which it is made, be recognised as binding and subject to this section and section 32 of this Act, shall, upon application in writing to the Court, be enforced by the Court.” 

3. What court has the jurisdiction to enforce an arbitral award in Nigeria?

Enforcement of foreign awards can be initiated before a superior court of record in Nigeria. “Court”, according to Section 57 of ACA, means the High Court of a State, the High Court of the Federal Capital Territory (FCT), Abuja or the Federal High Court. See also Section 4(1) of the Foreign Judgment (Reciprocal Enforcement) Act. 

Therefore, both the Federal High Court and the various High Courts of the States or the FCT, Abuja have concurrent jurisdiction to entertain an application to enforce an arbitral award, be it domestic or foreign award. In NNPC v. Fung Tai Eng. Co. Ltd. (2023) 15 NWLR (Pt. 1906) 117 at 184 para. C – F, where the Supreme Court, in holding that the Federal High Court has jurisdiction to recognize and enforce arbitral award, held as follows:

“Recognition and enforcement of arbitral award, is not the same thing and cannot be reasonably equated with thee original jurisdiction of the trial court provided under the Constitution and has no material bearing or connection with such jurisdiction to entertain and try causes or matters specified under the Constitution…….as stated earlier, section 251(1) provides the legislative power and authority of the National Assembly to confer the trial court with the additional jurisdiction over other items and that is what the ACA has done in respect of recognition and enforcement of arbitral awards.”

4. What are the requirements and procedures for the enforcement of foreign Arbitral Awards in Nigeria?

(i) Enforcement of Foreign Arbitral Award under the Foreign Judgments (Reciprocal Enforcement) Act 1988 and Reciprocal Enforcement of Foreign Judgments Ordinance 

The provisions of the enforcement of Foreign Arbitral Award under the Foreign Judgments (Reciprocal Enforcement) Act 1988 and the Reciprocal Enforcement of Judgments Ordinance are quite similar, the distinguishing areas of both laws are as follows:

(a) That Reciprocal Enforcement of Judgments Ordinance is restricted to England, Ireland, Scotland and British colonies while the Foreign Judgments (Reciprocal Enforcement) Act is not.

(b) The limitation period for registering a foreign judgment according to the Ordinance is 12 months while the Act provides that a foreign judgment must be registered 6 years in Nigeria. See Section 2 of the Reciprocal Enforcement of Judgment Ordinance and Section 4(1) of the Foreign Judgment (Reciprocal Enforcement) Act respectively.

For foreign arbitral awards to be enforced in Nigeria under the Foreign Judgment (Reciprocal Enforcement) Act, substantial reciprocity of enforcement of Nigerian judgments and awards must be assured in the superior court of the foreign country. This implies that there must be evidence of reciprocity showing that the country from where the award originated, treats Nigerian judgments and arbitral awards favourably.

Under the Reciprocal Enforcement of Judgments Ordinance and the Foreign Judgment (Reciprocal Enforcement) Act, foreign arbitral awards can only attain the status of a judgement when the arbitral award has been so elevated by an order of a court of the country where the award was obtained following an application to the foreign court by a party seeking to rely on the award.

The Court of Appeal, in interpreting the word “judgment” in the provisions of section 2(1) of the Foreign Judgment (Reciprocal Enforcement) Act, held in Tulip (Nig) Ltd. v. N.T.M. S.A.S (Supra) at 274 as follows: “As rightly submitted by respondent’s counsel by the above interpretation, an award can only be elevated to the status of a judgment if the respondent had applied before the English High Court for leave to enforce the arbitral award in the same manner as a judgment and once the High Court in England grants such an order it then becomes a judgment of the English High Court. It is only then that the Reciprocal Enforcement of Judgment Ordinance,Cap. 175, Laws of the Federation of Nigeria, 1958 and Foreign Judgments (Reciprocal Enforcement) Act, 1990 will apply. In the instant case, having regards to the fact that the arbitral award had not become enforceable as a judgment of court, the provisions of the Reciprocal Enforcement of Judgments Ordinance, Cap. 175, Laws of the Federation of Nigeria, 1958 and Foreign judgments (Reciprocal Enforcement) Act, Cap. 152, Laws of the Federation of Nigeria, 1990 were not applicable to this case.”

Similarly, in Emerald Energy Res. Ltd. v. Signet Advisors Ltd (2021) 8NWLR (Pt.1779) 623, the Court of Appeal held that

“There is no doubt that an arbitral award has the force of a judgment. It has a binding force and operates as a judgment. Without undermining the binding force of an arbitral award, the fact still remains that an arbitral award is conclusive, final and operates as a judgment but it is not a judgment in the strict sense of a judgment. There is a difference between an arbitral award and a judgment of court. To show that an arbitral award is not a judgment in the strict legal sense of the word judgment, particularly as it relates to this case, for an arbitral award to be elevated to the status of a judgment of the court of England, the party relying on that award must follow the procedure I had stated above, which is stated in the case of Tulip v. N.T.M.S.A.S. (supra).”

In addition to being elevated to the status of a judgement as decided in Tulip (Nig) Ltd. v. N.T.M. S.A.S (Supra) above, the foreign arbitral award must also be registered by a superior court in Nigeria in accordance with Section 3(1) a-b of the Foreign Judgment (Reciprocal Enforcement) Act.

In order to qualify for registration, the arbitral award must meet the following requirements:

(a)  The award must be final and conclusive as between the parties;

(b) The foreign award must be a money judgment (must be for a sum certain, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty). See section 3 (2)b of the Foreign Judgment (Reciprocal Enforcement) Act.

(c) The award must be given after the Act came into force.

(d) Any judgment given before the commencement of the Foreign Judgment (Reciprocal Enforcement) Act may be registered within twelve (12) months from the date of the judgment or such a longer period as may be allowed by a superior court in Nigeria. See Section 10 (a) of the Foreign Judgment (Reciprocal Enforcement) Act

(e) Any judgment registered under the Reciprocal Enforcement of Judgments Ordinance at the time of the coming into operation of the Foreign Judgment (Reciprocal Enforcement) Act, shall be treated as if registered under the Foreign Judgment (Reciprocal Enforcement) Act and compliance with the rules applicable to the Ordinance shall satisfy the requirement of the rule made under the Foreign Judgment (Reciprocal Enforcement) Act.

For the purposes of enforcement and execution, a registered foreign arbitral award under the Act and the Ordinance, will be treated by the Nigerian court to have the same force and effect as the original award obtained in the foreign country allowing an applicant to apply for its execution.

(ii) Enforcement of Foreign Arbitral Award under The Arbitration and Conciliation Act (ACA) 1988 and the New York Convention 1958

Schedule II of the ACA sets out the Convention of the Recognition and Enforcement of Foreign Arbitral Award, 1958 (also known as the New York Convention), which also governs the enforcement of a foreign arbitration award in Nigeria and other signatory countries. Unlike the Reciprocal Enforcement Act that requires registration of the award, the ACA and New York Convention offer a more direct approach for enforcement of the foreign arbitral award at the Court. Nevertheless, before an arbitral award can be enforced by a Nigerian court, as provided under the ACA, it must first be recognized. 

For an arbitral award to be valid, according to Section 26 of the ACA, it must: 

1. Be in writing, 
2. Be signed by the arbitrator(s), where the arbitral tribunal comprises more than one arbitrator, the signatures of a majority of all the members of the arbitral tribunal shall suffice, if the reason for the absence of any signature is stated.
3. State the reasons on which the award is based, except in cases where parties have agreed that no reasons are to be given under section 25 of the Act.
4. State the date it was made.
5. State the place of the arbitration (the place where the award was made).
6. Each disputing party must receive a copy of the award.

Also, Section 31 (1) of the ACA provides that, “An arbitral award shall be recognized as binding and subject to this section and section 32 of this Act, shall upon application in writing to the court, be enforced by the court.” In making an application for the enforcement of an award, the party relying on the award shall supply the duly authenticated original award or duly certified copy thereof; and the original arbitration agreement or a duly certified copy thereof and where the award or arbitration agreement is not made in the English language, a duly certified translation thereof into the English language.

Similarly, Article IV of the New York Convention provides that:

1. To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply:

(a) The duly authenticated original award or a duly certified copy thereof;

(b) The original agreement referred to in article II or a duly certified copy thereof.

2. If the said award or agreement is not made in an official language of the country in which the award is relied upon, the party applying for the recognition and enforcement of the award shall produce a translation of these documents into such language. The translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.

It is a fact that Nigeria has made the reciprocity reservation and so only awards made in contracting states that undertake to recognize and enforce awards made in other contracting states, including Nigeria will be recognized and enforced in Nigeria. The effect of this is that awards made in a country which is not a party to the Convention or giving reciprocal treatment to Nigerian awards cannot enjoy in Nigeria the recognition and enforcement provided under the Convention.

5. On what grounds can the Nigerian court refuse to enforce a foreign award?

Please note that, pursuant to Article V(1) and (2) of New York Convention 1958, recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party proves that- 

(a) the parties to the agreement, under the applicable law, are suffering from some incapacity, or the said agreement is not valid under the governing law or under the law of the foreign country where the award was made; or 

(b) the party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or 

(c) the award deals with a dispute not contemplated by or not failing within the terms of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognised and enforced; or 

(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or the law of the foreign country where the arbitration took place; or 

(e) the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the foreign country in which, or under the foreign law of which, the award was made. 

(f) the subject matter of the dispute is not capable of settlement by arbitration under Nigerian law; or 

(g) the recognition or enforcement of the award would be contrary to the public policy of Nigeria.

It is very rare for the Nigerian court to refuse the enforcement of a foreign arbitral award unless in very exceptional cases. The Supreme Court in Taylor Woodrow (Nig.) Limited v S.E. GmbH [1993] 4 NWLR (Pt 286) 127 at 155 para C (per Ogundare JSC), held as follows:

“The grounds stated by counsel for the respondents L, Sanderson Esqr, and approved by the learned Lord Justice, are in these words

“The jurisdiction to remit the matter for reconsideration can be exercised only upon certain grounds. Those grounds are:

(1)that the award is bad on the face of it;

(2)that there has been misconduct on the part of the arbitrator;

(3)that there has been an admitted mistake, and the arbitrator asks that the matter may be remitted; and

(4)where additional evidence has been discovered after the making of the award.”

I can find no such fatal defect in the award on the appeal on hand to call for intervention by us as provided for under section 11(1). In my respectful view, misconduct has not been established.

The conclusion I reach, therefore, is that I agree with both the learned trial Judge and the Court of Appeal that this is not a case where a court would set aside the award of an arbitrator or remit it to the arbitrator for reconsideration.”

6. What is the limitation period for enforcement of arbitral awards in Nigeria?

It is important to note that the right of enforcement of an arbitral award in Nigeria is not without limitation. Generally, as provided in section 6 of the Limitation Laws of the respective States of Nigeria, an action for enforcement of contract in Nigeria must be commenced at the High Court not later than six (6) years from the date of breach or when the cause of action arises. It is trite law that any action filed after the prescribed limitation period is bound to fail and likely to be dismissed for being statute barred.

There have been conflicting arguments on when time starts to run against the party seeking to enforce an award by an action in Nigeria. Is it from when the cause of action arises (i.e. at the time of committing breach of the contract that gives rise to arbitration) or after the arbitration award is made? Can limitation period be suspended by the Scott v. Avery clauses, which provide in agreements that no action or proceedings in court in a dispute should be taken until the dispute has been referred to arbitration and an award has been made? 

The former view that time starts to run from the date of breach is based on the Limitation Law whilst the latter view is premised on the assumption that an arbitral creates a new cause of action and therefore limitation period should commence to run from the date of the award. 

Different interpretations have been given to the decisions in the cases of Murmansk State Steamship Line v. Kano Oil Millers Ltd. (1974) 12 SC 1; Obembe v. Wemabod Estates Ltd (1977) 5 SC. 115; and K.S.U.D.B. v. Fanz Construction Co. (1990) 4 NWLR (Pt. 142) 1 and a few more as well as a quotation from Halsbury’s Laws of England, 4th edition, paragraph 611 at p. 323, on when limitation period should begin to count.

It would appear that the Supreme Court has settled the law in City Engineering (Nig.) Ltd. v. Federal Housing Authority (1997) 9 NWLR (Pt. 520) 224. In that case, the parties herein entered into a written agreement dated 17th day of December, 1974 whereby the appellant was to build a number of housing units at Festac Town, Badagry Road, Lagos. The agreement contained an arbitration clause. A dispute arose on 12th December 1980 when the respondent terminated the agreement and the parties eventually went to arbitration presided over by Architect Akinwande Olumide Craig. The arbitration proceedings commenced on 11th December, 1981 and ended in November 1985 when the Arbitrator made his award in the sum of N3,722,118.75 in favour of the appellant. By letter dated 17th August, 1988, the appellant’s solicitors demanded from the respondent the payment of the said sum. When payment was not forthcoming, the appellant applied, by way of motion on notice, to the High Court of Lagos State, pursuant to section 31 (3) of the Arbitration and Conciliation Act No. 11 of 1988, and/or section 13 of the Arbitration Law Cap. 10 Laws of Lagos State 1973 and Order 40 rule 4 of the High Court of Lagos State Rules, 1974. 

The respondent’s preliminary objection, brought on the ground of limitation law, was upheld by Ayorinde J., whose reserved ruling was upheld by the Court of Appeal (per Sulu-Gambari, JCA, Kalgo, JCA and Tobi, JCA). A subsequent appeal to the Supreme Court was unanimously dismissed and at page 245 paragraphs E-G, the Supreme Court held as follows:

“With profound respect to the learned authors, a distinction must be drawn between an action to enforce an arbitral award – this is provided for in the arbitration law itself, and the relief that can be granted in such an action is an order enforcing the award as if it were a judgment of the court. And an action for damages for breach of an implied promise to perform a valid award where it is open to the court to order damages for failure to perform the award or decree, in appropriate cases, specific performance of the award or grant an injunction restraining the losing party from disobeying the award or grant a declaratory relief. In my respectful view, the statutory period of limitation in respect of the former form of action runs from the breach that gave rise to the arbitration. The action leading to the appeal before us belongs to that category of action. In respect of the latter category of action, limitation period runs from the date the losing party refuses to obey the arbitral award. In either case, the date of the award does not apply.”

At page 246, paragraph C-D of the report, the Supreme Court held concluded thus:

“The conclusion I reach is that Question (2) is resolved against the appellant. The statutory period of limitation of six years began to run from 12/12/80 and appellant’s application to enforce the award was statute-barred when it was brought in 1988. The appellant has itself to blame for the catastrophe that has befallen it. Notwithstanding that there was some delay in the arbitration proceedings arising from various applications made by both sides, the arbitrator gave his award in November 1985, a date still within the statutory period of limitation. For unexplained reasons, the appellant waited another three years before applying to enforce the award in its favour, by which time limitation period had set in.”

It is significant to mention, as opined by the Supreme Court in City Engineering (Nig.) Ltd. v. Federal Housing Authority (supra), that Scott v. Avery clauses have been rendered ineffective and inapplicable in Lagos State as time begins to run from the date of breach irrespective the inclusion of the Scott v. Avery clause or the date of arbitral award. The provisions of Section 63 of the Limitation Law reads, thus: “Notwithstanding any term in a submission to the effect that no cause of action shall accrue in respect of any matter required by the submission to be referred until an award is made under the submission, the cause of action shall, for the purposes of this law and of any other limitation enactment (whether in their application to arbitrations or to other proceedings) be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the submission.”

A banker-customer relationship is a special relationship that is founded on contract, governed by common law, equity and, in some limited respect, statutes such as Acts of the National Assembly, subsidiary legislations including several guidelines and circulars of the Central Bank of Nigeria. In providing financial services to the public members, a bank’s debit or movement of funds from the account of a bank’s customer without the latter’s permission raises several legal questions, touching on breach of contract, security of a person’s right to his property (money), commission of a crime of stealing or tort of conversion, amongst others. Some of the questions are as follows:

Does the bank have absolute power to move funds from a customer’s account without his consent or justification?

Are there special circumstances to override the need to obtain the customer’s consent?

Where such debit is without consent or justification, can the bank be liable for stealing or conversion?

Will a right of lien or charge be a sufficient basis for unauthorized debit of a customer’s account and defence to the allegation of stealing or conversion?

The answers to the foregoing questions as well as the approach to redressing a customer’s grievance will depend largely on the facts of each case leading to the debit transaction and the nature of the parties’ relationship, the form of debit transaction in question and the destination account to which the debited fund has been moved.

For instance, whilst an offence of stealing may attract punishment in terms of imprisonment, fine and/or restitution; a tort of conversion, according to the Supreme Court in C.D.C (Nig.) Ltd. v. SCOA (Nig.) Ltd. (2007) 6 NWLR (Pt. 1030) 300 can only result in a judgment for pecuniary damages, being a single sum representing the value of thing unlawfully converted.

Stealing and Conversion

There is an overlap in the meaning and usage of “stealing” and “conversion” in legal discourse though they represent different legal consequences in law. Stealing is an offence (criminal wrong) attracting penal sanctions, whilst conversion is a tort (civil wrong) that may result in damages. It is noteworthy that the Supreme Court (per Okoro, J.S.C.) held in Timothy v. The People of Lagos State (2021) 11 NWLR (Pt. 1787) 251 at page 288 paragraph B, that the appellant was guilty of “stealing by conversion” under Section 383 (f) of the Criminal Code Act. Also, in Ayeni v. State (2016) 12 NWLR (Pt. 1525) 51, the Supreme Court held that in order to convict a defendant for stealing, the prosecution must prove the taking, the conversion and the fraudulent intention in the taking and/or converting of the subject matter of the stealing.

By virtue of Section 383 (1) and (2) (a-e) of the Criminal Code Act, any person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing. To constitute conversion, according to the Supreme Court in the C.D.C. (Nig.) Ltd. v. SCOA (Nig.) Ltd. case at page 365 paragraph C, there must be a positive wrongful act of dealing with a thing in a manner inconsistent with the owner’s rights, and an intention in so doing, to deny the owner’s rights or to assert a right inconsistent with them.

By law, a thing includes money, which is capable of being stolen. But whether money can be converted will depend on the form or specie of the money in question. The Court of Appeal in Wema Bank Plc. V. Osilaru (2008) 10 NWLR (Pt. 1094) 150 at 170 at page 171 para B-C held as follows: “It has been held by this court that money in specie, for example, coins and notes can be converted while money in abstract, for example, money in a bank account cannot be converted. Thus, the former can be the subject in a claim for detinue or conversion, the latter cannot be. See Afribank (Nig.) Plc v. A.I. Investment Ltd. (2002) 7 NWLR (Pt. 765) 40 at 63 paragraph D-F; p.64, paragraph A).”

Sequel to the above to the above decision in Wema Bank Plc. V. Osilaru (supra), whilst a conversion claim cannot be made in respect unauthorized debit, an offence of stealing may be committed by a bank for unauthorized debit on a customer’s account. Also, the transfer, debit or movement of money out of a customer’s account or from a customer’s account to another person’s account qualifies as “taking” under Nigerian law. The only ingredient that needs to be proved is a “fraudulent intent” or “fraudulent conversion” in the alleged movement of fund.

In a case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is authorized to dispose of the property. See Oyebanji v. State (2015) 14 NWLR (Pt.1479) 270;Clark v. State (1986) 4 NWLR (Pt.35) 381; Mohammed v. State(2000) 12 NWLR (Pt. 682) 596; Ayeni v. State (2016) 12 NWLR(Pt. 1525) 51.

It is instructive to note that the Court of Appeal in Wema Bank Plc. V. Osilaru (2008) 10 NWLR (Pt. 1094) 150, the money in a customer’s bank account is in a bank’s custody and belongs to the bank. According to the Court,

“It seems to me therefore that the customer’s monies in the hands of the banker are not in the custody or under the control of the customer. Such monies remain the property in the custody and control of the banker, and payable to the customer when a demand is made. This is so because if anything happens to the money thereafter e.g. theft of the money, it is the banker and not the customer that bears the loss. Where the customer makes a demand e.g. by issuing a cheque and the banker refuses to pay, it is my view that the customer’s cause of action is in damages under their contractual relationship. See Afribank (Nig.) Plc v. A.I. investment Ltd. (supra).”

The above dictum must be understood in the context of the factual peculiarities of the Wema Bank case in which the Court of Appeal upheld the bank’s right to apply any fund which came into the respondent’s account to settle his indebtedness. Whilst the bank, in that particular case, may be correctly regarded as the custodian of the money in a customer’s bank account, it is, in our view, misleading and contrary to the spirit of letters of the law (either contract law or criminal law in Section 383 of the Criminal Code Act and Section 37(3) of the Cyber Crimes (Prohibition, Prevention Act) 2015)for the Court of Appeal to hold in Wema Bank Plc v. Osilaru (supra)that the money in a customer’s bank account is a property of the bank.

If ownership of the money in a customer’s bank account is vested in the bank, as the Court of Appeal concluded in the Wema Bank Plc v. Osilaru’s case, it would therefore mean not only that a bank cannot be charged with an offence of stealing (as a person can rarely be guilty of stealing his property whilst in its custody) but also, a customer’s remedy can only lie in damages, nothing more. This, however, is not so, particularly in the light of Section 37(3) of the Cyber Crimes (Prohibition, Prevention Act) 2015, which clearly provides for an offence relating to unlawful debit, a customer’s remedy of restitution for the debited sum and a fine of N5,000,000 for failure to reverse the unauthorized debit. If the argument in favour of the bank’s ownership of the money in a customer’s account is sustained, then no bank can be successfully convicted for any offence under Section 383 of the Criminal Code Act or Section 37(3) of the Cyber Crimes (Prohibition, Prevention Act) 2015.

For clarity, by virtue of Section 383 of the Criminal Code Act, cited and relied on by the Supreme Court in convicting the appellant in Timothy v. The People of Lagos State (2021) 11 NWLR (Pt. 1787) 251, a person who takes or converts anything capable of being stolen is deemed to do so fraudulently, if he does so with any of the following intents:

1. An intent to permanently deprive the owner of the thing of it.

2. An intent to permanently deprive any person who has any special property in the thing of such property.

3. An intent to use the thing as a pledge or security.

4. An intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform.

5. An intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion. In the case of money an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.

In particular reference to unauthorized debit transactions, the better judicial position, in our view, is to deem a bank as the custodian of the money in its customer’s account whilst ownership of the fund vests in the bank’s customer contrary to the decision in Wema Bank Plc v. Osilaru’s case. A bank has no absolute power to debit its customer’s bank account without providing legal authorization or justification.

Permanent deprivation vs. Temporary deprivation

It would appear that permanent deprivation of a thing taken is a critical ingredient of stealing and conversion whereas a temporary deprivation appears to negate such allegation. It is interesting to note that the question of whether or not the taking of a “thing” amounts to stealing or conversion is largely dependent on the nature “thing” taken (as demonstrated in the Wema Bank Plc v. Osilaru’s case), irrespective of whether the manifest intention of the taker is to permanently or temporarily deprive the owner or interested person of that thing.

Generally, in proving “fraudulent intent” in taking a thing, the prosecutor will likely secure conviction for stealing if evidence can be led to show any intent to permanently deprive the owner or interested person of the thing or to use the thing as a pledge/security, to deal with the thing in a way that changes the condition of the thing in such a way that the thing cannot be restored by the taker to its original state.  In convicting the appellant in Timothy v. The People of Lagos State (supra), the Supreme Court held that there was a clear case of stealing by conversion because the complainant (PW1) was permanently deprived of the use of the Toyota 4 Runner Jeep, as the car was never found since it was driven away by the appellant and his colleagues.

Consistent with the general criminal law, there is no stealing of a thing if the manifest intent at the time of taking an item is merely to deprive the owner of it temporarily. The Supreme Court in Timothy v. The People of Lagos State (supra) at page 272, paragraphs C-F agreed with the appellant’s counsel that a mere conditional appropriation of a thing is not theft and that if the appropriator has in mind merely to temporarily deprive the owner of such property which, on examination, proves not worth taking and then finding the property useless to him, leaves it ready to hand over to be re-possessed by the owner, he has not committed theft. Although the Supreme Court nevertheless convicted the appellant in that case as his argument predicated on temporary taking of possession of the car in question was without any evidence to back up the submission. More importantly, the defence did not plead any lawful temporary taking of the possession of the Jeep for any legitimate purpose. According to the apex court, the Jeep seized from the PW1, PW2 and PW3 on 5th July 2008 had not been found, seen or returned.

However, with respect to money, including money in the account of a bank’s customer, a temporary deprivation may suffice to ground the offence of stealing if fraudulent intent is proved. In other words, stealing may be proved even if the taker has no intention to permanently deprive the owner but only fraudulently takes or converts the money with the intention to repay the amount to the owner of the money taken. The fundamental ingredient, in the case of money, is to prove fraudulent intention, not a permanent deprivation.

In Ajiboye v. State (1994) 8 NWLR (Pt. 364) 587 at 599 para H, the Court of Appeal held as follows:

“In this appeal, we are dealing with money, which is a movable property and no doubt capable of being stolen. Under S.383(l) above the fraudulent taking of money from someone is stealing, and the fraudulent conversion of money to the use of the taker or to the use of any other person is also stealing. What is essential here in both cases is that the taking or the conversion must be fraudulent. That is why s.383 (2) proceeded to explain or define what would amount to fraudulent act for the purpose of the offence of stealing.”

Please note that the taking or conversion of a thing may be fraudulent although it is effected without secrecy or attempt at concealment. See Ayeni v. State (supra). So, the fact that a bank’s customer receives a debit alert (which presupposes that the bank’s debit is not concealed or done secretly) does not exculpate the bank from the offence of stealing (if the debit is found to be fraudulent) or the tort of conversion (if it is intended to deny the customer’s right to the debited fund). It is also immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession of the person who converts it. See Section 383(3) (4) of the Criminal Code Act.

Offence Relating to Unauthorized Debit Under the Cyber Crimes (Prohibition, Prevention Act) 2015

If there is any doubt about the potential culpability of a bank for an offence in relation to unauthorized debit on a customer’s bank account, the Cyber Crimes (Prohibition, Prevention Act) 2015 has explicitly cleared such doubt. Unlawful debit by banks on their customers’ account is undoubtedly an offence under the Cyber Crimes (Prohibition, Prevention Act) 2015 as shown in the case of U.B.A. Plc v. Vertex Agro Ltd (2020) 17 NWLR (Pt. 1754) 467.

Section 37(3) of the Cyber Crimes (Prohibition, Prevention Act) 2015, provides for an offence relating to unlawful debit, restitution for the debited sum and a fine of N5,000,000 for failure to reverse the unlawful debit. The exact text of S.37(3) of the Cyber Crimes (Prohibition Prevention) Act 2015 reads thusly-

“A financial institution that makes an unauthorized debit on a customer’s account shall, upon written notification by the customer, provide clear legal authorization for such debit to the customer or reverse such debit within 72 hours and any financial institution that fails to reverse such debit within 72 hours, commits an offence and is liable on conviction to restitution of the debit and a fine of N5,000,000.00.”.

It is important to add that by virtue of Section 390 of the Criminal Code Act, any person who steals anything capable of being stolen is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for three years. The foregoing presupposes that the punishment of restitution and fine of N5m in Section 37(3) of the Cyber Crimes (Prohibition, Prevention Act) 2015 will apply to offence of unauthorized debit on the account of a bank’s customer.

Cash transfers to wrong bank accounts or unintended recipients are common in Nigeria. In fact, since the advent of online/mobile banking, the number of wrong transfer cases in the country has increased. Most of them were irrecoverable due to several considerations relating to the cost of pursuing the recovery vis-a-vis the amount to be recovered as well as lack of understanding of the right steps to take. These innocent mistakes cannot be reversed by a customer’s instructions to his bank or the recipient’s bank. No. The bank may not honour such instruction or complaint unless compelled by the court. This is because the only lawful procedure to reverse such erroneous transfer of money is to obtain a court order directing the bank to reverse the payment. 

In order to pursue an erroneous transfer of money, the payer should consult a lawyer who will advise some decisive steps to be taken. Below are some key points to note in seeking to recover money erroneously paid to an unknown person(s):

In this article, we have highlighted the customer’s banking rights in respect of erroneous transfer and procedure for recovery of money paid erroneously to unintended recipients.

 Report to the Bank

The first step to take is for the innocent party to report the wrong transfer to the bank of the recipient, preferably in writing, stating all relevant facts as they relate to the transaction accompanied with any proof of the transaction. Upon receipt of such an application, the bank may or may not place a Post No Debit (“PND”) on such an account that received the sum to restrict its owner from withdrawing below the amount in question while the complaint is being investigated.

In respecting the right to privacy of the recipient customer, the Bank may not disclose the details of the receiving customer (such as phone number, email or contact address) but the bank may contact him to confirm if the complaint made against its account is true. Where the complaint is true and the recipient customer consents to a reversal, the transferred sum will be returned immediately without much ado.

Please note that the bank cannot, on its own, debit the account of the receiver of the erroneous payment without the customer’s consent unless the bank is doing so in satisfaction of a court order or other outstanding obligation owed by the account owner to the bank. In F.B.N. Ltd. v. A.P. Ltd. (1996) 4 NWLR (Pt. 443) 438, the court held that when a bank places to the credit of the customer moneys to which the customer is not entitled or which the customer is liable to re-imburse the bank, the bank is entitled to debit the account of the customer without instructions from the customer. 

Obtain an order of reversal from Court

The service of a legal practitioner is required here. 

Expectedly, the recipient customer will be unreachable to the innocent party as the bank will not disclose the recipient customer’s details. Even, when the recipient customer is reachable, he may refuse to cooperate or consent to the reversal of the transferred sum to the complainant. Where either of the foregoing situations happens, the bank will request for an order of court to reverse the transaction. 

A legal practitioner will draft and file an application by way of originating motion, supported by an affidavit disclosing all facts relating to the transaction, a written address and all necessary documents sought to be relied upon. Necessary documents here would include receipts of the transaction, statements of account displaying such debits and a copy of the complaint to the bank. 

Where to file the case of erroneous reversal of payment

The proper court to hear an application for reversal depends on two considerations: 

• on the sum involved in the transaction and 
• the location of the transaction or the bank (where the transaction is done online, the location of the bank or its branch is where the action can be commenced).

In Lagos State, where the amount sought to be recovered is less than N10,000,000 (Ten Million Naira), the action can be filed at the Magistrates’ Court although the Magistrate’s Court in Abuja can only hear cases in which monetary value is not more than N5,000,000 (Five Million Naira). 

However, where the amount sought to be reversed or recovered is more than N10,000,000 (Ten Million Naira) and the location is Lagos State, then the action must be filed at the High Court of Lagos State. In Abuja, where the value of the case is above N5,000,000 (Five Million Naira), then, the proper court to file the case is the High Court of the Federal Capital Territory, Abuja. 

Where the application is heard and order for reversal granted, and the money is still in the account of the recipient customer, the sum wrongly transferred will be returned to the complainant. 

In instances where there is no money in the recipient’s account or the money in the account is not sufficient to satisfy the order of the court, then the complainant must seek the relief of placing a lien (restriction) on such account until a sum equivalent to the sum wrongly transferred is accumulated and reversed back to the complainant’s account.

What the Claimant/Applicant must prove to get reversal order

The order of court for reversal of erroneous payment may be granted upon application and sufficient proof to justify the order. It is important to note that the following must be established in order to merit an order for reversal of erroneous payment transaction: 

1. Proof of debit of the alleged sum: A person who claims that he made an erroneous payment to another must show proof that his account in a bank has been debited by tendering debit notes covering the sum or his statement of account showing the amount he erroneously paid out. See U.B.N. (Nig.) Plc v. Emole (2001) 18 NWLR (Pt. 745) 501. Usually, a screenshot of the bank’s debit notification (whether SMS or email) or statement of account is sufficient to prove the debit of the alleged sum. Please note that where the evidence is an electronically generated evidence, a certificate of compliance in accordance with the Evidence Act 2011 may be required.

2. Proof that the payment was made in error: Erroneous payment is established if the payer shows that he has no business dealing with the receiver to warrant the payment. Please note that a contractual transaction that goes bad is not the same as an erroneous payment even though there may be an element of mistake of fact in the former. Where a payment has been induced by fraud and the innocent payer becomes aware of the fraudulent scheme and wishes to rescind the transaction, it will be better to consult a lawyer on the best approach to arresting the situation and recovering any money paid. 

3. Proof of the Receiver’s particulars and bank account details: In order to prove that the defendant or respondent against whom an action has been filed is the proper party to sue in relation to erroneous payment transaction, the claimant/applicant must set out in a supporting affidavit or written deposition (as the case may be) the relevant particulars of the receiver of the erroneous payment, namely: Names, Banker, Account Number, Branch (if any) and other relevant information (as may be shown in the bank statement or debit notification).

4. Proof of complaint to the bank and service of demand notice: Usually, the court would like to verify if any pre-litigation efforts were made to resolve the issue before filing an action. Failure to complain or serve demand notice may not vitiate the case but it helps the court to grant the order without delay, especially where the bank and the receiver of the erroneous payment fail to appear in court (as is usually the case). But where a claimant cannot prove that he made such preliminary steps, the Court would be reluctant to grant the order in the defendants’ absence and insist on service of court process and hearing notices more than once to avoid being misled into giving a wrong order.

5. Service of court documents on the bank and the receiver of the erroneous payment: Service of originating court process on any person sued as defendant is fundamental to the success of a case. Failure to effect service of court process evinces a breach of fair hearing for which the action can be struck out or any judgment erroneously given, in such a case, may be set aside on appeal. Usually, since the recipient’s address is unknown (and will not be disclosed by the bank), the claimant is expected to obtain an order of substituted service of the court process on the account owner through his bank. With an order of substituted service, the claimant can serve a copy of the court documents for both the bank and the account owner through any nearest branch of the bank.

The Use of Police to Recover Money

It is wrong to attempt to use or resort to the police for the reversal of an erroneous payment transaction even if the payment was induced by fraud. The police officers have no power or authority whatsoever to order or direct or request a bank to transfer money from a one bank account with the bank to another account with either the same bank or another bank. That is the prerogative of the court. See Societe Generale Bank (Nig.) Ltd, v. Afekoro (1999) 11 NWLR (Pt. 628) 521 (Pp. 539- 540. paras. H-A), where OGUNDARE, J.S.C. at page 540, paras. A-D held as follows: 

“Following 3rd Respondent’s report to the Police that he was defrauded of the sum of seven million Naira (N7m), the Police commenced investigation and, in the process, froze the accounts of some persons (including the 1st Respondent) in the Appellant bank and had the balances on those accounts paid into a suspense account in the bank pending conclusion of their investigations. At the close of their investigations, rather than charge to court the persons, if any, against whom any case was made out and leave it to the court to make an order as to the disposal of the amount in the suspense account, the Police wrote to the Appellant bank ‘requesting’ it to transfer the balance in the suspense account to the account of the 3rd Respondent in the International Merchant bank (IMB). The Appellant bank complied after it had obtained an indemnity from the 3rd Respondent. I have searched through the Police Act and the Criminal Procedure Act and the Criminal Procedure Law of Lagos State and I can find nothing in them to support the action of the Police. Nor has learned counsel for the 3rd Respondent shown to us any authority to back up the Police action. The request for transfer is clearly illegal.”

It is therefore imperative to follow due process in order not to create avoidable liability for the innocent payer who resorts to using the Police for money recovery in violation of the receiver’s rights.

Where money erroneously paid into a bank customer’s account that is indebted to his bank 

Problems may arise if money is erroneously paid into an account of a customer that is indebted to the bank and the bank debits the account to satisfy the customer’s outstanding obligation. The law recognizes the bank’s right to set off against any fund in the account of a debtor customer. According to the court in Barbedos Ventures Ltd. v. FBN Plc (2018) 4 NWLR (Pt. 1609) 241, money paid into a bank customer’s account does not belong to the customer where the customer is indebted to the bank since that money is used to settle the indebtedness. However, it is doubtful if the right of set off can be exercised against money erroneously paid into the bank account of a debtor customer. For the bank’s right of set-off to be exercisable, the money in question must have come into the customer’s account lawfully or he must be entitled to the money in the first place. For example, the bank cannot exercise a set off right against money stolen by the customer or money constituting proceeds of crime or money erroneously transferred by an innocent party.

1. What does Limitation Period Mean?

In Nigeria, there are limitation periods for initiating litigation, so it is necessary to understand the limitation period before going to court. A limitation period is the period during which a lawsuit can be brought in court. And when the period specified in any Limitation Law has passed, it means that the lawsuit will no longer be filed because it will become prohibited by law. A limitation law (where applicable) invalidates a person’s right to seek legal redress. If an aggrieved person exhibits tardiness by suing his wrong doer outside the statutorily allowed time-bracket, his suit becomes statute-barred. Thus, an action is statute-barred when no proceedings can be brought to court on the ground that the statutory period laid down by the law has expired by passage of time. 

In the case of Mercantile Bank of Nig. Plc. v. FETECO (Nig) Ltd. (1998) 2 NWLR (PT. 540) 143 at 156-157, Tobi JCA succinctly explained the matter thus: “A Statute of Limitation of action is designed to stop or avoid situations where a plaintiff can commence action any time he feels like doing so, even when human memory would have normally faded and therefore failed. Putting it in another language, by the Statutes of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different Statutes of Limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering plaintiff. He will be stopped from commencing the action and that is a just and fair situation. A plaintiff who suddenly wakes up from a very deep sleep only to remember that the defendant had wronged him, can, I think, be rightly ‘greeted’ by the defendant with the appropriate limitation statute, waving same to him as a basis for redress.”

2. Why Limitation Law or Period?

The purpose of a limitation law is to ensure that all claims are initiated and prosecuted diligently while the evidence is still available, and the memory of the witness is still fresh, and not to allow a plaintiff the freedom of the air to sleep and wake up at his own time to commence an action against a defendant.

However, it is doubtful if a claimant who wishes to bring an action for breach of employment contract has to worry about limitations period anymore going by the Supreme Court’s decision in the case of National Revenue Mobilization Allocation & Fiscal Commission & Others (NRMAFC) v. Ajibola Johnson & Others (2019) 2 NWLR (Pt. 1656) 247, where the apex court made a radical departure from the previous position of law in holding that limitation law no longer applies to contracts of employment.

3. How can Limitations Period be Determined?

The limitation period is the creation of law, so the limitation laws vary from jurisdiction to jurisdiction. Each State’s limitation law stipulates the time frame within which actions can be initiated, sometimes based on the subject matter of a dispute. Thus in INEC v. Ogbadibo Local Government & Ors (2015) LPELR-24839 (SC), the Supreme Court spelt out the yardstick for determining whether an action is statute-barred or not thus:

a.  The date when the cause of action accrued;

b. The date of commencement of the suit as indicated in the writ of summons;

c. Period of time prescribed to bring an action to be ascertained from the statute in question

4. What are the various limitation periods for initiating actions?

The Limitation of Actions Act 2004 (as amended) and the relevant States Limitation Laws of States prescribe the specific periods within which legal actions are to be commenced or instituted from when the injury or omission, causing the damage or loss, arose or occurred. 

The following are some of the limitation periods for other contracts and actions:

• The limitation period for a simple contract is six (6) years. See section 8(1) of the Limitation Law of Lagos State, 2015 and section 7 Limitation Act, Abuja. Please note that the court held in Unata v. PTML (2015) 58 NLLR (Pt. 199) 66 NIC, that employer/employee relationship is founded on simple contract; (P.90, Paras. A-B).
• The limitation period for a contract under seal is twelve (12) years. See section 12(1) of the Limitation Law of Lagos State, 2015 and Section 11, Limitation Act, Abuja;
• Action for negligence must be commenced within three (3) years. See section 8(1) of the Limitation Act, Abuja and section 9 of the Limitation Law of Lagos State;
• Action for slander must be commenced within three (3) years. See section 9 of the Limitation Act, Abuja and section 10 of the Limitation Law of Lagos State;
• Action by the State Authority to recover land is twenty (20) years in Lagos and twelve (12) years in Abuja. See section 16 of the Limitation Law of State Lagos and section 15 of Limitation Act Abuja;
• Twelve (12) years to make any claim arising from a deceased person personal estate;
• Three (3) months for any action against Public Officers. See section 2 Public Officers Protection Act; and
• Two (2) years to recover any damages from concurrent wrongdoers under any civil enactment.

5. Whether the Supreme Court in NRMAFC’s Case Decided against Limitation of Employment Contract?

The facts of NRMAFC v Johnson (supra) are that the Respondents were offered appointment by NRMAFC, a commission of the Federal Government of Nigeria. The Respondents resumed work until they were orally asked to stay away from work based on a May, 1999 be stopped. In view of this development, the NRMAFC withdrew the Respondents’ respective appointments. The Respondents thereafter instituted action at the Federal High Court claiming that they remain employees of NRMAFC and were entitled to their salaries from June 1, 1999.The Federal High Court granted only the second relief and dismissed the rest of the respondents’ claims. 

The Appellants appealed against the decision, while the respondents cross-appealed. In its judgment, the Court of Appeal dismissed the appeal and allowed the Respondents’ appeal in part. On further appeal to the Supreme Court, one of the issues raised for the determination of the apex court was whether the Court of Appeal was right in holding that the Appellants were not entitled to the protection afforded by the Public Officers Protection Act (POPA) in relation to a contract of service. The Supreme Court held thus: “In this matter, while the appellants maintain that the action is caught by section 2(a) 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 of service….”

6. Is there a limitation period on pension and gratuity claims?

No. Gratuity is a lump sum benefit provided by an employer as a form of reward to an employee upon retirement, termination, resignation, superannuation or death (as the contract may provide). It is a sum paid for an employee’s meritorious service to an organization. While pension on the other hand, is a stated allowance to a person in consideration of past services or payment made to one retired from service, on account of age, disability or other causes, especially, a regular stipend paid by government or corporate organizations. 

The goal of the law of limitation on civil claims is to prevent indolent claimants from sleeping on their rights to institute an action only to wake up from their slumber several years after, when evidence and memories of witnesses have become sketchy. Equity aids the vigilant, not the indolent. 

However, pension and gratuity are immune to limitation law or period. See the case of Ugbeche v NNPC (2016) LPELR-42033 (CA) and Sections 173 and 201(1) and (2) of the 1999 Constitution of the Federal Republic of Nigeria which are to the effect that no claim for pension and gratuity shall be invalid merely because the claimant failed to present his application within the specified period (If any). The court has held that payment of pension and gratuity is not a bounty to the employee by the employer. It is the right of an employee to claim pension and gratuity. The amount should be disbursed without delay and where payment is delayed, the employer cannot challenge the employee’s claim for payment of pension and gratuity on the ground of limitation period.

7. Can salary claims be defeated by any objection founded on a limitation law?

Salary claims, being employment related disputes, cannot in any way be defeated by any objection founded on a limitation law. In the case of Bature Barau Dutsin–Ma v. Governor of Katsina State & Ors., the court per Justice Isele held that “the case of none payment of outstanding salaries, is one that Public Officers Protection Law would not apply as it is one of continuance of injury or damage.” Please note, however, that a claimant may have difficulty in proving an employment benefit claim if relevant evidence has been destroyed or competent witnesses have died or forgotten the facts or become unreachable.

8. What is the Current position of the National Industrial Court of Nigeria on Limitation Period of Employment Contract?

The National Industrial Court seems to have shown consistency in holding that limitation law no longer applies to contracts of employment following the supreme court’s decision in NRMAFC’s case. Hon. Justice (Dr.) I. J. Essien, in a Ruling delivered on 10 October 2019 in Lilian Nnenna Akumah v. First Bank of Nigeria Plc (supra), just three months after NRMAFC’s case, that:

“While I agree with learned counsel that before July 2019 the decisions were unanimous that as regards limitation of action law, where an action is instituted outside the period stipulated for an action to be instituted such action is likely to be dismissed, see the case of Ibrahim V. Judicial Service Commission [1998] 14 NWLR (pt. 584) pg.1.  However the position of the law has since changed after the decision in the case of NRMAFC & 2 ORS V. Ajibola Johnson [2019]2 NWLR (pt. 1656) 247 at 270-271 the Supreme Court was emphatic that limitation of action does not apply to contract of service.

On a similar note, Honourable Justice Ikechi Gerald Nweneka in a judgment delivered on 5th March 2020 in Mr. Godson Ikechukwu Nkume vs. First Bank of Nigeria Plc (supra) followed the same path. Placing reliance on both NRMAFC’s case and Akumah’s decisions, his lordship held as follows: “Furthermore, statutes of limitation of actions have been held not to apply to contracts of service. See National Revenue Mobilization Allocation and Fiscal Commission & Ors. v. Ajibola Johnson & Ors. [supra] at pages 270-271. This decision was applied by this Court in the case of Lilian Nnenna Akumah v. First Bank of Nigeria Plc, Suit no. NICN/LA/402/2018, which ruling was delivered on 10th October 2019. The objection was based on Section 8[1][a] of the Limitation Law of Lagos State. My learned brother, Justice Essien observed that: The defendant counsel has [sic] tried to argue that the above cited Supreme Court decision does not apply to the present case because it was decided based on the S. 2[a] of the Public Officers Protection Act, while the present case is considered under S. 8(1)(a) of the Limitation Law of Lagos State. That distinction is neither here nor there. Both statutes are statutes of limitation of action. The subject matter of what they deal is contract of employment. Therefore, both statutes stand side by side in so far as it relates to limitation of action in contract of employment. While one is a federal enactment the other is a state law. The decision of the Supreme Court on any of the statute[s] must of necessity guide a court of record in the application of any of those enactment[s] on the subject matter of limitation of action in contract of employment.  I completely agree and hold that claims [a][i], [b], [c] and [d] are not statute barred.”

Stemming from the above, an employment dispute can be litigated at any time at the National Industrial Court without any fear of objection founded on a limitation law or period. In other words, employment cases cannot be challenged on the ground that they are statute barred. As already noted somewhere above, a claimant may have difficulty in proving an employment benefit claim if relevant evidence has been destroyed or competent witnesses have died or forgotten the facts or become unreachable.