Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: OCTOBER 9, 2013 SUIT NO: NICN/LA/470/2012 BETWEEN Mr. Adewale Arinde - Claimant AND Food Agro & Allied Industries Limited - Defendant REPRESENTATION Anthony Ogunmola and Miss R. A. Amuda, for the claimant. J. T. Ogunniyi Esq. and A. P. Ogundeji, for the defendant. RULING The claimant took up a complaint dated and filed on 19th September 2012. The claim against the defendant is that “the claimant sustained severe and irredeemable physical and mental injuries and thereby suffers loss and damage”. The particulars of the damage, loss and expenses are – PARTICULARS OF DAMAGE, LOSS AND EXPENSES Special Damages February 19, 2005 a. Transport to and from Hospitals N500,000.00 b. Hospital bills N1,000,000.00 c. Extra Nourishment N1,000,000.00 Special Damages February 11, 2006 a. Transport to and from Hospitals N500,000.00 b. Hospital bills N1,000,000,00 c. Extra Nourishment N1,000,000.00 General Damages February 19, 2005 & February 11, 2006 a. Pain and suffering N5,000,000.00 b. Loss of amenities of life N5,000,000.00 c. Inconvenience and discomfort N9,000,000.00 d. Cost of continuous medical treatment N5.000.000.00 e. Permanent disability N20,000,000.00 Total N49,000,000.00 Accompanying the compliant are the statement of fact, list of witnesses, written statement on oath, list of documents to be relied on and copies of the 4 documents listed. In reaction, the defendant filed a statement of defence, list of witness to be called, witness statement of oath, list of documents and copies of the documents listed. In addition, the defendant filed a preliminary objection dated and filed on 28th January 2013 challenging the jurisdiction of this Court to hear and determine the matter. The preliminary objection is brought pursuant to Order 11 of the National Industrial Court (NIC) Rules 2007, section 4(1)(a) of the Limitation Law of Ogun State and under the inherent powers of the Court. The ground upon which the preliminary objection is brought is that the action is statute-barred by virtue of section 4(1)(a) of the Limitation Law of Ogun State. In support of the preliminary objection is an affidavit of 5 paragraphs sworn to by Olugbenga Alaye, the Administrative Manager of the defendant company and a written address. In reaction, the claimant filed a counter-affidavit sworn to by David Arinde, a Litigation Clerk in the firm of the solicitors to the claimant, and a written address. The defendant framed one issue for the determination of the Court, namely: whether the Court has the jurisdiction to hear and determine this action which is statute-barred. To the defendant, a cursory perusal of the claimant’s statement of fact would reveal that the cause of action, the subject matter of this suit, arose on February 19, 2005 and February 11, 2006 respectively. That it is worthy of note that this action was instituted by the claimant on the 19th September 2012, well over six (6) years after the acclaimed cause of action. That section 4(1)(a) of the Limitation Law of Ogun State stipulates that no action for negligence or breach of duty including damages in respect of personal injuries to any person shall be brought after the expiration of six (6) years from the date on which the cause of action accrued. That this consequently buttresses the defendant’s submission that this action as presented is statute-barred as same is caught by the Limitation Law. The defendant went on that the consequence of a statute-barred action is well considered in the Supreme Court case of P. N. Udoh Trading Co. Ltd v. Sunday Abere & anor [2001] 5 SC (Pt.11) 64 at 73 - 74 where it was held, inter-alia, that when an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the Limitation Law for instituting such an action has elapsed. That in Sanda v. Kukawa [1991] 2 NWLR (Pt. 174) 379, it was held that period of limitation starts to run when the cause of action accrues. To the defendant, it follows from the above that this action is statute-barred after over 6 years of the acclaimed accrual of cause of action. The defendant then submitted that this Court is excluded from entertaining this matter. That the fundamental nature of an issue of limitation is given judicial corroboration in the case of Wema Bank Ltd v. International Fishing Company Ltd & anor [1988] 6 NWLR (Pt. 555) 557 where it was held, inter-alia, that same goes to the root of a suit and its competence. That the acclaimed cause of action being statute-barred goes to the root of the entire suit, thereby robbing this Court of the jurisdiction to hear and determine same. In conclusion, the defendant urged the Court to hold that this action is statute-barred and so the Court does not have the jurisdiction to hear and determine it. In his reply written address, the claimant narrated the facts of the case. That the facts of the case will reveal that his action is not statute-barred. To the claimant, he sustained severe and irreversible injuries and has suffered pain, loss and that the industrial accident which caused his injury occurred both in 2005 and 2006 respectively. That he “has permanently lost four fingers on his right hand and of no serviceable purpose”. Also that he suffers a continuous pain. The claimant then framed two issues for the determination of the Court, namely – 1. Whether the claimant is not entitled to the exception available to him under the Limitation Law to bring this present action. 2. Whether the Court will allow technicality to defeat the end of justice. Regarding issue1, the claimant referred the Court to section 21 of the Limitation Law of Ogun State which provides as follows – Extension of Limitation period in case of Disability If, on the date of any right of action accrued from which a period of limitation is prescribed by this Law, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding the period of limitation. To the claimant, having regard to the facts of this case, the period of the claimant’s disability still subsists and continues and his case falls within the exception provided under section 21 of the Limitation Law, Laws of Ogun State and was, therefore, not statute-barred. That from the wordings of section 21 of the Limitation Law, it depicts that as long as the injuries of the claimant are disabilities to him, his right of action will from time to time arise until the disability ceases, referring the Court to Tekobo v. Adegbite [2013] I NWLR (Pt. 1334) 57 C – E. That the period of limitation shall be extended in accordance with Part 3 of the Limitation Law, Laws of Ogun State in cases of: Disability, acknowledgment, part-payment, fraud and mistake. Based on the above, the claimant claimed the benefit of the exception to the limitation period in case of his disability which is permanent. He then cited Aremo II v. Adekanye [2004] 13 NWLR (Pt. 891) 593 where the Supreme Court stated as follows – Admittedly legal principles are not always inflexible sometimes they admit of certain exceptions. The Law of Limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damages, a fresh cause of action arises from time to time, as often as damage is caused. The claimant also referred the Court to John Ovoh v. Westminster Dredging [2009] 14 NLLR (Pt. 37) 96 where this Court held that – ...we do not think that the rights of workers are caught up by limitation law, for to think otherwise would mean that even as the rights to salaries and entitlements to an office would be time barred. The claimant then urged the Court to resolve issue 1 in his favour. On issue 2, the claimant submitted that it is the law that the Court should think towards doing substantive justice in every case before it without allowing technicality to override the doing of same, citing UTC v. Famotei [2001] 43 Weekly Law Report of Nigeria 53 at 70 where the Court held that – It is well established principle that the duty of the Court to decide the right of the parties are not to punish them for error if any in the conduct of their case by deciding otherwise than in accordance with their rights. That in Menakaya v. Menakaya [2001] 43 Weekly Law Report of Nigeria 1 at 14, it was held that – Where therefore, it is argued that a statutory provision has been waived, it has to be considered whether the statute confers purely private or individual right which may be waived or whether the statutory provision confers right of a public nature as a matter of public policy. If it is the latter, the provision of the law can be waived. To the claimant then, that statute is not constitutionally provided as a result it is purely private and individual right and as such can be waived. The claimant went on that he appreciates that a party cannot waive a rule of public or constitutional policy but what he is saying is that the issue of Statute of Limitation is not a public policy or constitutional policy and so can be waived in the interest of justice. That there is a duty on the Court to ensure that justice is not defeated by the Rules of Court, referring to Nwachukwu v. State [2004] 17 NWLR (Pt. 902) 262 at 274 G – H, where His Lordship, Adeniji, JCA held that – The Courts should see to it that justice is never defeated by technical rules of procedure. The rules should be seen as subservient handmaid to justice and not as omnipotent masters at war with justice. The claimant also referred to Atamgba v. Effimi [2001] 16 WRN 54, Labode v. Otubu [2001] 21 WRN 1, Anakism v. UBAN Ltd [1994] 1 NWLR (Pt. 322) 557 and Edokpolo & Co. Ltd v. Ohenhen [1994] 7 NWLR (Pt. 358) 511 as authority for the proposition that justice should not be sacrificed on the altar of technicality. The claimant then urged the Court to resolve this issue in his favour. In conclusion, the claimant submitted that he is entitled to the exception under the Limitation Law to institute a fresh cause of action as often as damages is caused, notwithstanding that the action is statute-barred. That the continuing disability always gives rise to a fresh cause of action, urging the Court to hold that the action of the claimant was never and is not statute-barred. The defendant did not file any reply on points of law. In considering the merit of the preliminary objection, the issue calling for the determination of the Court is whether the action of the claimant is caught by the Limitation Law of Ogun State as to make the case statute-barred. While the defendant thinks it is, the claimant argues that he comes within the exceptions of the said limitation law. Before addressing the merit of the submissions of the parties, I need to point out that in his submission, the claimant seems to think that the limitation law is an issue of the Rules of Court. In this regard, he called on the Court to do substantive justice, citing Nwachukwu v. State, Atamgba v. Effimi, Labode v. Otubu and Edokpolo & Co. Ltd v. Ohenhen (all supra). Contrary to the thinking of the claimant the issue of limitation law is one of substantive law, not of procedural law. The Court of Appeal decisions in Alhaji M. Balogun v. Panalpina World Transport (Nig.) Ltd & anor [1999] 1 NWLR (Pt. 585) 66 and Ashimiyu Oduola & ors v. Chief A. B. Ogunjobi [1986] 2 NWLR (Pt. 23) 508 at 509 are quite emphatic that the Court has never treated it as just to deprive a defendant of a legal defence especially the Statute of Limitation. That said, the authorities on limitation period (Egbe v. Adefarasin [1987] 1 NWLR (Pt. 47) 1, Ibrahim v. JSC, Kaduna State & ors [1998] 12 SC 20, Popoola Elabanjo v. Chief (Mrs.) Ganiat Dawodu [2006] 6 – 7 SC 24, Mrs. O. Adekoya v. Federal Housing Authority [2008] 4 SC 167, Joshua Mnenge v. Nigerian Army unreported Suit No. NICN/IB/22/2012, the ruling of which was delivered on December 18, 2012, Mr. Friday Idugie v. Auchi Polytechnic, Auchi & ors unreported Suit No. NICN/ABJ/120/2011 the ruling of which was delivered on February 13, 2013, Hon. Runyi Kanu (JP) & ors v. The Attorney General & Commissioner for Justice Cross River State & ors unreported Suit No. NICN/CA/39/2012 the ruling of which was delivered on March 13, 2013 and Dr. Atonte Diete-Spiff v. Governor of Bayelsa State & anor unreported Suit No. NICN/CA/31/2012 the judgment of which was delivered on July 26, 2013) are constant in stating that when confronted with the question whether a case is statute-barred, Courts are to simply look at the writ of summons/statement of facts or claim to see when the cause of action is stated to arise and compare that date with when the action was filed. If after this comparison it is found that the limitation period is exceeded, even if by one day, then the case is statute-barred (Dr. Charles Oladeinde Williams v. Madam Olaitan Williams [2008] 4 – 5 SC (Pt. II) 253 and Alhaji Bello Nasir v. CSC, Kano State & ors [2010] 6 NWLR (Pt. 1190) 253). From the originating processes, this action was filed in this Court on 19th September 2012. By paragraph 3 of the statement of fact, on February 19, 2005, the negligent act of one of the staff of the defendant caused him burnt injury. As a result, he was hospitalized for three months. That on February 11, 2006, he had another fatal accident while on duty wherein his four fingers were cut off. See paragraph 6 of the statement of fact. He was then admitted for two months in the hospital. From these averments, the cause of action of the claimant can be said to have effectively arisen on February 11, 2006 given the second accident, and I so find and hold. This means that the period between the cause of action arising and when the claimant filed this action is over six years. Section 4(1)(a) of the Limitation Law of Ogun State provides that actions founded on simple contract or on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. The instant case is an action in the tort of negligence for injury suffered as can be seen from the particulars of the damage, loss and expenses in the complaint and statement of fact. The case is, therefore, caught up by section 4(1)(a) of the Limitation Law; and I so find and hold. However, the argument of the claimant is that his case comes under the exceptions of the Limitation Law. Section 21 of the Limitation Law of Ogun State, which deals with extension of limitation period in case of disability, provides as follows – If, on the date when any right of action accrued from which a period of limitation is prescribed by this Law, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation has expired: Provided that – (a) this action shall not affect any case where the right of action first accrued to some person (not under a disability) through whom the person under a disability claims; (b) when a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under a disability, no further extension of time shall be allowed by reason of the disability of the second person; (c) no action to recover land or money charged on land shall be brought by virtue of this section by any person after the expiration of thirty years from the date on which the right of action accrued to that person or some person through whom he claims; (d) this section shall not apply to any action to recover a penalty or forfeiture, or sum by way of thereof, by virtue of any enactment except where the action is brought by an aggrieved party. Section 2(2) and (3) then provides that – (2) For the purposes of this Law a person shall be deemed to be under a disability while he is an infant or lunatic, whether so adjudged or not. (3) A person shall be deemed to claim through another person if he became entitled by, through, under or by the act of that other person to the right claimed: Provided that a person becoming entitled to any estate or interest by virtue of a special power of appointment shall not be deemed to claim through the appointor. The question which presently arises is: when the limitation law talks of disability creating an extension of the period to sue, is what is envisaged physical disability or disability to sue? The claimant seems to think that what is envisaged is physical disability. A look at section 2(2), reproduced above will show that what is envisaged is disability in terms of capacity to sue, not physical disability. The subsection gives the examples of infants and lunatics whose disability is not essentially physical but one in relation to the capacity to sue. Both categories of persons are in law disabled from suing; they attain the capacity to sue once the impediment is cured – the child on attaining the age of majority, and the lunatic on being cured of his/her mental infirmity. Section 21 itself talks of right of action accruing. A physically disabled person still retains his/her right of action. In respect of such a person, the right to sue accrues and is never held in abeyance. The only sense in which physical disability is a factor is in relation to the question of continuing injury, not in the sense of the right or capacity to sue. At the risk of repetition, the opening words of section 21 are – If, on the date when any right of action accrued from which a period of limitation is prescribed by this Law, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when the person ceased to be under a disability or died.... In clarifying the concept of disability in section 2(2) by reference to a child and a lunatic, section 21 is quite explicit that the disability envisaged is one as to the right to sue, not physical disability. Provisos (a) and (b) also talk of “the/a right of action” thus reinforcing that what is envisaged is not physical disability but disability as to the right to sue. In any event, section 2(3) talks of claiming through another person. The right to claim through another has to do with the disability as to right to sue; it has nothing to do with physical disability. I consequently find and hold that the disability envisaged for purposes of extension of the period of limitation is one as to the right to sue, not one as to physical disability. The argument of the claimant, therefore, that having to loose four fingers should be read as extending the period of limitation in his favour cannot be tenable and so is accordingly rejected. I indicated earlier that a physically disabled person still retains his/her right of action; and for such a person, the right to sue accrues and is never held in abeyance. That the only sense in which physical disability is a factor is in relation to the question of continuing injury. But even here, the cases of Obiefuna v. Okoye [1961] All NLR 357, Amamiwe v. The Local School Board [1971] 2 NMLR 57 at 58 – 59 and Okafor v. AG, Anambra State [2001] FWLR (Pt. 58) 1127 at 1146 D – G relying on the English cases of Freeborn v. Leeming [1926] 1 KB 160 and Carrey v. Bermonsey Metropolitan Borough [1903] 675 P. 447; 20 TLR 2 held that the phrase “continuance of the injury” means continuance of the “act which caused the injury”, not the injury itself. This means that it is the act which caused the loss of four fingers that must be continuing, not the fact of the loss of the four fingers itself. This principle has been applied variously by this Court. See, for instance, Hon. Runyi Kanu (JP) & ors v. The Attorney General & Commissioner for Justice Cross River State & ors unreported Suit No. NICN/CA/39/2012 the ruling of which was delivered on March 13, 2013. The claimant referred the Court to its decision in John Ovoh v. Westminster Dredging [2009] 14 NLLR (Pt. 37) 96, where the Court held that the rights of workers are not caught up by limitation law, for to think otherwise would mean that even the rights to salaries and entitlements to an office would be time barred. In Hon. Runyi Kanu (JP) & ors v. The Attorney General & Commissioner for Justice Cross River State & ors (supra), this Court rationalized John Ovoh as follows – The claimants had further referred this Court to its decisions in John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd. While it is true that in these cases this Court had held that the limitation laws do not apply to labour rights issues especially as to the claims for salary and entitlements/benefits, the truth is that this Court had had to change that stance in cases other than those relating to salary and benefits given the weight of the Court of Appeal and Supreme Court authorities to the effect that the limitation laws apply to employment cases as of other cases, all of which are binding on this Court. In cases of claims for salary and allowances, the decisions of this Court in John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd would appear to be good law if the test on “continuance of damage or injury” laid down in the recent Supreme Court decision in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 at 144 – 150 is met. In that case, at pages 148 – 149, the Supreme Court held that the case for the deprivation of allocation, which the plaintiff was entitled to every month and same has not ceased, was “a situation continuance of damage or injury which has not ceased”; and so the defence of the Public Officers Protection Act would not avail the 1st defendant who had raised it. I understand this authority to lay down that where an allocation which comes periodically, say, monthly (like salary and allowances, which also come periodically) is deprived a plaintiff State (like salary and allowances deprived to an employee), then there is continuing damage or injury for which the Public Officers Protection Act or Law will not apply. In this sense, for the ‘continuing injury’ exception to apply, the employee would need to be in employment; for otherwise, the claim that the deprivation continues would not stand…In any event, the definition of the phrase “continuance of the injury” by case law authorities to mean continuance of the “act which caused the injury” and not the injury itself presupposes that this Court’s stance in cases such as John Ovoh v. The Nigerian Westminster Dredging & Marine Company Ltd and Captain Tony Oghide and ors v. Shona Jason Nig. Ltd must be understood qualifiedly. The instant case is one in tort, not one as to the payment of emoluments. So the case of John Ovoh is distinguishable. Even the Supreme Court decision in AG, Rivers State v. AG, Bayelsa State & anor [2013] 3 NWLR (Pt. 1340) 123 is distinguishable in that regard. As it is, therefore, the argument of the claimant cannot stand. On the whole, and for all the reasons given, the preliminary objection of the defendant has merit and accordingly succeeds. In consequence, I hereby find and hold that the claimant’s case is statute-barred under section 4(1)(a) of the Ogun State Limitation Law; and the claimant’s case does not come under the disability exception of section 21 of the said Ogun State Limitation Law. The claimant’s case is accordingly dismissed. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip