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The claimant filed a complaint against the defendant on the 3rd July 2012 claiming as follows: (a) USD2, 572,205.00 (Two million, five hundred and seventy-two thousand, two hundred and five United States dollars) being Special Damages for loss of income and diminished earning capacity owing to the negligence of the defendants. (b) The sum of N5,000,000.00 (Five Million Naira) as general damages for pain and suffering, loss of freedom of movement and trauma. (c) Interest at the rate of twenty-one per cent (21%) on the above sums from the date of commencement of this action until judgement is delivered and thereafter at the rate of 10% until the judgement is liquidated. (d) Three Million Naira only (N3,000,000.00) being the cost of this action. Accompanying the complaint is the statement of facts, name of witness, witness statement on oath, copies of documents to be relied on. In reaction, the defendant notice of preliminary objection filed on the 15th October 2012 pursuant to section 9 (1) and (2) of the Limitation Law of Lagos State CAP L67, Laws of Lagos State 2004 praying for: 1. An order striking out this suit in its entirety. 2. And for such further or other orders as the court may deem fit to make in the circumstances. The grounds upon which this application is brought are as follows: 1. The claimant’s perceived cause of action is for damages for personal injuries arising from negligence and a breach of duty. 2. By virtue of the provisions of section 9 (1) and (2) of the Limitation Law of Lagos State, CAP. L67, the claimant’s cause of action is statute barred. 3. The National Industrial Court does not have jurisdiction to adjudicate over claims that are statute barred. The preliminary objection is supported by a written address dated 3rd September 2012. In reaction the claimant filed a written address in opposition and a verifying affidavit in support of this written submission sworn to by Williams Nse a Litigation clerk on the 7th November 2012. It is necessary at this stage to state briefly the relevant facts necessary for this ruling as pleaded in the statement of facts. The claimant who lives in Australia was employed by the defendants to work as a Sea-diver on projects managed by the defendants off-shore. He pleaded that he was assured by the 3rd defendant that he will be transported by helicopter to and out of the off shore oil field location. That on the 9th September 2008, the claimant was transported by vessel “Blue Ocean” together with 26 other passengers and they were captured and taken hostages by the militant group MEND in the Niger Delta. He was released after 9 months seriously sick. As a result of physical and mental disability occasioned by the trauma he could not work for a consecutive period of 14 months after his release; that he resumed partial employment in October 2010. The defendant raised one issue for determination as follows: Whether the claimants cause of action is statute barred or not. Learned counsel to the defendant submitted that by the provisions of section 9(1) & (2) of the Limitation Law of Lagos State, all claims in respect of actions claiming damages for personal injury arising from negligence, nuisance or breach of duty can only be filed within 3 years from the date the cause of action arose. He argued that the claimant did not specifically state the date he was released other than it was after nine months. Learned counsel stated that he was released on 11th June 2009 and therefore the claimants perceived right of action arose on the 11th June 2009. He submitted that the claimants cause of action against the defendant is statute barred because the 3 years period stipulated expired a month before the action was filed. He cited Bakare v N.R.C. [2007] 17 NWLR (Pt 1064) 606 at 635-636, ACB v N.T.S. (Nig) Ltd [2007] 1 NWLR (Pt 1016) 596 at 637, Adeosun v Jibesin [2001] 11 NWLR (Pt 724) 290, Mkpedem v Udo [2001] FWLR (Pt 66) at 827 and submitted that the court lacks the jurisdiction to entertain this suit. He urged the court to uphold the defendants submissions and dismiss the suit as presently constituted. The claimant raised one issue for determination as follows: Whether the present suit is statute barred having regard to section 9 of the Limitation Law of Lagos State CAP L67, Vol 5, Laws of Lagos State of Nigeria 2005? Learned counsel to the claimant submitted that the court is imbued with jurisdiction to hear and determine this suit. He referred to JFS Investment Ltd v Brawal Line Ltd & Ors [2010] 18 NWLR (Pt 1225) 495 at 543 for the steps a court is to apply in determining whether a claim is time barred. He argued that the 3 years limitation period is a general provision which is subject to the provisions of section 9(3) and (4) of the Limitation Law of Lagos State. He submitted that in ascertaining whether a cause of action is extinguished, the proper question to be asked by the court is “what is the cause of action and at what point in time can it be said to have arisen. Learned counsel referred to the case of Savage v Uwechie [1972] All NLR 255 at 561 Julius Berger (Nig Plc) v Omoigui [2001] 15 NWLR (Pt 736) 401, Afolayan v Ogunrinde [1990] 1 NWLR (Pt 127) 369, Alese v Aladetuyi [1995] 6 NWLR (Pt 403)….. for the definition of cause of action. He submitted that to ascertain the cause of action the court is to look at the writ of summons and statement of claim citing Abubakar v B.O.& A.P Ltd [2007] 18 NWLR (Pt 1066) 319. He submitted that in a claim such as this, the cause of action accrues upon the occurrence of the damage that is the mental and physical injury. He cited Afolayan v Ogunrinde supra and argued that the medical condition of the claimant was discovered only after his release from and captivity and examination by a medical doctor, a fact that happened after the nine months period of his detention. It was the submission of learned counsel that the date 11th June 2009 was averred by the defendant and not the claimant and as such the defendant cannot rely on it for purposes of computation of time citing Woherem v Emereuwa [2004] 13 NWLR (Pt 890) 398 at 416. He argued that the damage occurred after 11 June 2009 and that time started running from the date of the diagnosis and not the date of the claimants release. That at the date of his release the claimant was unaware of the extent of the damage until medical examination by doctors and diagnosis of damage between October 2009 and February 2010 as evidenced by the verifying affidavit. He submitted that time started to run from the date of the medical confirmation not the date of his release and therefore the suit is not statute barred citing U.B.A. Plc v B.T.L. Industries Ltd [2005] 4 S.C. 40. Learned counsel submitted that where the date when a cause of action arose is disputed or unclear, the proper order to make in the circumstance is an order setting down the suit for hearing and not an order dismissing the action. He cited Kasandubu v Ultimate Petroleum Ltd [2008] 7 NWLR (Pt 1086) 276. He submitted that the court has jurisdiction to determine this suit by virtue of section 9 (3) & (4) of the Limitation Law of Lagos State because the material fact to the cause of action for negligence was outside the knowledge of the claimant until a date “not earlier than twelve months before the date on which the action was brought”. He submitted that the decisions cited by the defendants were all cited out of context as the orders were made because the actions were statute barred and therefore do not apply to the facts of this case as it is trite that facts and circumstances of each case are inextricably and intimately tied to the peculiarity of any given case. See Adegoke Motors Ltd v Adesanya [1989] 3 NWLR (Pt 109) 250. He urged the court to dismiss the application. I have carefully considered the processes filed, submissions of counsel and authorities cited. Counsel have basically raised the same issue for determination. For the purpose of this ruling, I adopt the issue raised by the claimant as it is all encompassing. The defendant argues that this action is caught by the provisions of section 9 (1) and (9) (2) of the Limitation Law of Lagos State and as such this action is statute barred. The claimant argues that by virtue of section 9 (3) and 9 (4) this suit is not caught by the Limitation Law. This objection cannot be properly treated without considering as well section 9 (3) and 9 (4) of the Limitation Law which is reproduced as follows: (1) This section applies to actions claiming damages for negligence, nuisance, or breach of duty (whether the duty exists 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. (3) Subsection (2) of this section shall not afford any defence to an action to which this section applies in so far as the action relates to any cause of action in respect of which- (a) the court has, whether before or after the commencement of the action granted leave for the purposes of this section; and (b) the requirements of subsection (4) of this section are fulfilled. (4) The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that the material facts relating to that cause of action were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which- (a) either was after the end of the three-year period relating to that cause of action or was not earlier than twelve months before the end of that period; and (b) in either case, was a date not earlier than twelve months before the date on which the action was brought. This suit was filed on the 3rd July 2012 by the claimant. It is trite law that the period of Limitation is determined by looking at the writ of summons and statement of claim only to ascertain the alleged date the wrong in question gave rise to the claimants cause of action. See Woherem v Emereuwa [2004] 13 NWLR (Pt 890) 403. See Ikorie v Edjerode [2001] 18 NWLR (Pt 745) 446. The general principle of law is that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the claimant, proceedings shall not be brought after the period prescribed by statute. A cause of action is said to be statute barred if in respect of its proceedings it cannot be brought because the period laid down by the Limitation Law has elapsed. See Egbe v Adefarasin [1987] 1 NWLR (Pt 47) 1 at 20, FBN Plc v Associated Motors [1998] 10 NWLR (Pt 570) 441, Sadiq v Akinkunmi [2000] 2 NWLR (Pt 696) 101, Udoh Trading Co. Ltd v Abere [2001] 11 NWLR (Pt 723) 114. The question which arises is when did the cause of action arise. The claimant in his statement of claim has averred that he was taken into captivity on the 9th September 2008 for 9 months and that as a result of the suffering, torture and starvation he suffered within the 9 months, he was seriously ill and suffered from post traumatic stress disorder and could not work for a period of 14 months after his release from the hostage – takers. He averred that he resumed partial employment in October 2010. The defendant on the other hand argues that the claimants perceived right of action against the defendant arose on the 11th June 2009. In the case of Woheren v Emereuwa supra, the Supreme Court held that it is not permissible and would be wrong for a defendant relying on the defence of limitation to compute time of accrued of cause of action from the date pleaded in his statement of defence as the date the cause of action arose, unless such date is admitted by the claimant. In this instance, the claimant has not admitted this date but has rejected it outright. From the statement of facts, the claimant was released sometime in June 2009, in a state of ill health. It only stands to reason that the claimant will need to look after his health. I am therefore of the firm view that the cause of action arose after June 2009. It is however not indicated in the statement of facts the date the claimants alleged disability was diagnosed to determine the exact date the cause of action accrued and when time begins to run. It is not the duty of the court to speculate on a question of fact regarding this issue of time frame. In my view, there is a triable issue on the question of the date the cause of action accrued and therefore section 9 (1), (2), (3), (4) of the Limitation Law of Lagos State is not applicable in the absence of the date the cause of action accrued. The Supreme Court in the case of Woherem v Emereuwa supra has held that where the parties have differed on the date a cause of action arose, the trial court ought in the circumstances to try the case on the merits with a view to ascertaining the correct date in the absence of viva voce evidence on the point. See also Kasandubu v Ultimate Petroleum Ltd [2008] 7 NWLR (Pt 1086). Consequently, I hold that this case is to proceed to trial on the merits. I make no order as to costs. Ruling is entered accordingly. _____________________________ Hon. Justice O.A.Obaseki-Osaghae