Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP: HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: May 27, 2015 SUIT NO. NICN/LA/488/2014 BETWEEN MR. IFEANYI OKORO - CLAIMANT/RESPONDENT AND AFRICAN STEEL MILLS NIGERIA LIMITED - DEFENDANT/APPLICANT REPRESENTATION A. A. Laditan (Asst Chief State Counsel), with him A. B Odunlami, and Ademuyiwa Abe for the claimant. Chiamaka Okeke (Miss) for the defendant. RULING The claimant filed this complaint against the defendant on the 24th October, 2014 seeking the following reliefs: 1. An order compelling the defendant to immediately pay the claimant the sum of N20,000,000.00 (Twenty Million Naira) as insurance claim for the loss and amputation of his left leg as a result of poor factory safety environment and procedures during his normal schedule of duty as a crane driver at the defendant factory at Plot 337 Ikorodu Industrial Estate, Odoguya, Ikorodu, Lagos State that occurred on the 24th January, 2007. 2. An order praying for special and general damages to the claimant in the sum of N5,000,000.00 (Five Million Naira) against the defendant on grounds of the trauma and pains of disabilities due to the amputation of the claimant left leg as a result of poor factory safety environment and procedures during his normal schedule of duty as a crane driver at the defendant factory at Plot 337 Ikorodu Industrial Estate, Odoguya, Ikorodu, Lagos State that occurred on the 24th January, 2007. Accompanying the complaint is the statement of facts and other accompanying processes for trial. The defendant on the 28th January 2015 entered a conditional appearance, filed its statement of defence and accompanying processes and a Notice of Preliminary Objection which is the subject matter of this ruling. The defendant/objector is praying the court to dismiss this suit in its entirety upon the following grounds: 1. By Section 9(1) (2) of the Limitation Law Cap L67 Laws of Lagos State 2005 actions founded on tort shall not be brought after the expiration of three years from the date the cause of action accrued. 2. The alleged cause of action as revealed in paragraphs 6, 14, 21 and 22 of the claimant/respondent statement of fact arose sometime in 2007 a period of more than three years before the action was filed, consequently the entire action is statute barred. 3. This court has no jurisdiction to entertain any action which is statute barred. The objection is supported by an 8 paragraphs affidavit and a written address. In opposing the objection, the claimant deposed to a counter affidavit on the 13th, February, 2015 and filed a written address in support. The defendant filed a reply on points of law on the 4th March, 2015. Learned counsel to the defendant raised one issue for determination as follows: Whether the claimant’s action as formulated in the Complaint (Writ of Summons) and Statement of Fact is not statute barred the alleged causes of action having arisen more than 3 years before the suit was filed? He submitted that the issue of whether or not an action is statute barred is one touching on jurisdiction of the court and that no court has jurisdiction to entertain an action which is statute barred. He cited Coop Bank Ltd v Lawal [2007] 1 NWLR (Pt.1015) 287, Madukolu V. Nkemdilim [1962] 2 SCNLR 341, WEMA Bank V. International Fishing Co. Ltd [1998] 6 NWLR (Pt. 555) 557. He stated that the claimant is alleging negligence against the defendant resulting in personal injury. He referred to Section 9(1)(2) of the Limitation Law of Lagos State, 2005 which provides that an action founded on personal injury shall not be brought after the expiration of 3 years of the alleged injury and submitted that the where the law provides for the bringing of an action within a prescribed period, proceeding shall not be brought after the time prescribed by the statute. He cited Obi v Okoye (1961) 1 All NLR 357, Egbe v Adefarasin & Anor (1985) 1 NWLR (Pt. 3) 549. He submitted that any action commenced after the stipulated period is barred as the right of the injured person to commence the action has been extinguished by law citing Tafida V. Abubakar (1992) 3 NWLR (Pt. 230) 511. Learned Counsel submitted that the court determines period of limitation by looking at the complaint and the statement of facts alleging when the wrong was committed which gave the claimant a cause of action and by comparing that date with the date on which the Writ of Summons was filed. He referred the court to paragraphs 6, 14, 21 and 22 of the statement of fact and argued that the cause of action occurred in 2007 while this action was filed on the 24th October, 2014 which is more than the three year period allowed for an action for personal injury. He submitted that this suit is statute barred and urged the court to so hold. Counsel further submitted that preliminary objection challenging the jurisdiction of the court is not a demurrer and be raised any anytime. He cited the case of Arjay Ltd V. Airline Management Support Ltd (2003) 2-3 SC 1, Akegbejo V. Ataga (1998) 1 NWLR (Pt. 534) 459. It was his submission that the Statute of Limitation does not admit of any liberalism and has to be applied peremptorily, citing Lasisi & Ors V. A.G Oyo State (1982) 4 SC 1; that once an action is found to be statute barred it ought to be dismissed. Learned counsel to the claimant adopted the sole issue raised by the defendant and submitted two additional issues as follows: 1. Whether or not paragraphs 9 and 10 of the statement of defence, paragraphs 11 and 12 of the defendant’s witness statement on oath, Mr. Muritala A. Makinde and Roomans Insurance Brokers Limited letter dated the 3rd April, 2014 amounts to the defendant admission that the claimant’s cause of action effectively started from 3rd April, 2014. 2. Whether or not this court should hear the case of the claimant on the merits in order to do substantial justice. Learned counsel submitted that this action is not statute barred on grounds of the defendant’s admission in paragraphs 9 and 10 of the statement of defence and paragraphs 11 and 12 of its witness statement on oath and Roomans Insurance Brokers Limited letter dated 3rd April, 2014. He submitted that the defendant is bound by the admissions in its pleadings and witness deposition and this is admissible as evidence of the truth of the facts asserted in the pleadings citing Cappa & D”Alberto Ltd v Akintilo [2003] 9 NWLR (Pt. 824) 49, Agbahamovo V. Eduyegbe (1999) 3 NWLR (Pt. 594) 170. He submitted that what is admitted does not need further proof, citing Section 122(2) of Evidence Act, 2011 and that evidence on the admitted facts is unnecessary citing Bunge V. Governor of Rivers State (2006) 12 NWLR (Pt. 995) 573. He urged the court to hold that where there are admissions by a party against his interest such admission will be admissible against the party. He urged the court to hear the case on the merits and do substantial justice. He cited Wakwah v Ossai [2002] 2 NWLR (Pt. 752) 548, Odua Investment Co. Ltd V. Talabi (1997) 10 NWLR (Pt. 523) 1. Replying on points of law, defence counsel submitted that what the claimant’s counsel termed “admission” is “acknowledgment” which is an act of a defendant which reactivates a cause of action which is already statute barred referring the to Sections 37 to 45 of Limitation Law of Lagos State. He submitted that by Section 45(1) of the Limitation Law an acknowledgment must be in writing and must be signed by the person making the acknowledgment and that it is only is cases listed in Section 38 to 44 that an acknowledgment can be by an agent. He argued that the claimant has no legal relationship with the Insurer as to create a liability in his favour and the Insurer is not the defendant’s agent such as to assert that it wrote the letter on the instructions of the defendant. He submitted that by Section 45(1) and (2) of the Law the said letter cannot amount to acknowledgment citing Thadani & Anor V. NBN Ltd & Anor (1972) 1 SC 75. He further submitted that the letter cannot amount to acknowledgment unless it is addressed to the claimant and it acknowledges liability in unequivocal terms. He submitted that Sections 9(1) and (2) of the Limitation Law of Lagos State is unambiguous as to when an action becomes statute barred and that time began to run in 2007 and not in 2014 when Insurer sent a discharge voucher regarding claims submitted by the defendant for compensation. Learned Counsel submitted that Limitation Law pursuant to which this application was brought made no provision for admission or acknowledgment in respect of personal injury which is the cause of action in this matter. He cited P.A.S & T.A Ltd V. Babatunde [2008] NWLR (Pt. 1089) 267, Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398, Egbe V Adefarasin (1987) 1 NWLR (Pt. 47) 1. Egbe V Adefarasin (1987) 1 NWLR (Pt. 47) 1. Counsel argued that the extant law at the time the accident occurred was the Workmen Compensation Act Cap W6 LFN 2004 and Section 40 made it compulsory for the defendant to take out an insurance policy and that the defendant has complied with the statutory duty placed on it by the law. He submitted that once an action is found to be statute barred it ought to be dismissed. He urged the court to hold that claimant’s claim is statute barred. Having considered the submissions of counsel, the law is trite that a court can only assume jurisdiction if the subject matter is within its jurisdiction and the case has been initiated by due process of law and upon fulfilment of any condition precedent to the exercise of its jurisdiction. See Madukolu v Nkemdilim [1962] 2 SCNLR 341. In deciding whether a case is statute barred or not, the court only has to look at the complaint and the statement of facts alleging when the wrong was committed which gave rise to the cause of action and comparing that date with the date the complaint was filed. If the time on the complaint is beyond the period allowed by the Limitation law, the action is statute barred. See Elabanjo v Dawodu [2006] 6-7 SC 24, Egbe v. Adefarasin [1985] 1 NWLR (Pt. 3) 549, Sadiq V. Akinkunmi [2000] 2 NWLR (Pt. 696) 101. This complaint was filed on the 24th October 2014. The principal claim before the court as reproduced above is the defendant’s liability to pay compensation to the claimant for personal injury he sustained by accident arising out of and in the course of his employment. The following paragraphs 6, 8, 13, 14, 15 & 16 in the statement of facts are relevant for the purpose of this ruling: 6. That during the course of his duties on the 24th of January 2007 at the defendant factory at plot 337 Ikorodu Industrial Estate, the claimant sustained a serious injury affecting his left leg. 8. The claimant avers that on the 31st January 2007 at the Lagos State University Teaching Hospital his left leg was amputated. 13. The claimant further avers he was reinstated back to the defendant employment after he was discharged from the Hospital after his left leg was amputated. 14. The claimant claims that since after the accident occurred on the 24th January 2007 and the subsequent amputation of the claimant left leg on the 31st January 2007, the defendant has not paid the claimant any form of compensation whatsoever. 15. The claimant states that he has been asking management for insurance compensation over the years since 2007 and that after seven years since the injury happened, the defendant insurance company offered him through the defendant the sum of N389,420.00k as settlement for his injury, the claimant hereby pleads a copy of the said letter dated the 3rd of April 2014 and hereby marked as Exhibit E. 16. The claimant avers that he refused to accept the offer believing that he was unfairly treated as the financial amount was very little indeed and insignificant. Now, the offer of N389,420.00k as insurance compensation for injury which was refused by the claimant precipitated this action. The offer was made to the claimant by the defendant after it received the letter dated April 3, 2014 written by its Insurance Brokers. The exact date the defendant made the offer cannot be ascertained but it must be between April 3, 2014 and August 25, 2014 when the claimant approached the Lagos State Ministry of Justice, Directorate of Citizens Rights to lodge a complaint. I find that the cause of action accrued between April 3, 2014 and August 25, 2014. Section 9 (1) & (2) of the Limitation Law of Lagos State Cap. L67, 2005 provides as follows: (1). This section applies to actions claiming damages for negligence, nuisance, or breach of duty (whether the duty exist by virtue of a contract or of a provision made by or under an enactment or independently of any contract or of any such provision), where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of or include damages in respect of personal injuries to any person. (2). Subject to the provisions of this section, no action to which this section applies shall be brought after the expiration of three years from the date on which the cause of action accrued. The cause of action arose between April 3, 2014 and August 25, 2014. The claimant instituted this action on the 24th October 2014 which is within the three years period of accrual of cause of action. I hold that this action is not caught by the limitation and is therefore not statute barred. The court is not deprived of jurisdiction to entertain the suit. The objection is hereby dismissed. The case is to proceed to hearing. Costs of N5,000 to be paid by the defendant to the claimant. Ruling is entered accordingly. ___________________________ Hon. Justice O.A Obaseki-Osaghae