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IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HIS LORDSHIP HON. JUSTICE B. B. KANYIP DATE: NOVEMBER 19, 2014 SUIT NO. NICN/LA/344/2013 BETWEEN Mr. Ozaha Isaac Okeoghene - Claimant AND Dangote Agro Sacks Limited - Defendant REPRESENTATION Abidemi Taiwo, for the claimant. David Nkire, for the defendant. RULING The claimants by a complaint dated and filed on 28th June 2013 is claiming against the defendant for the following reliefs – 1. The sum of N2,000,000.00 (Two Million Naira) only being general damages for the injury suffered by the claimant while working in the factory of the defendant. 2. The sum of N1,000,000.00 (One Million Naira) only being specific damages for the removal of the two metal pallets in the claimant’s broken hand. 3. The cost of this action in the sum of N200,000.00 being the concessionary fee agreed with the claimant’s counsel. Accompanying the complaint are the statement of facts, the claimant’s list of witnesses, statement on oath, list of documents and copies of the documents. The defendant did not enter formal appearance or file any defence process. At the first sitting of the Court on 20th September 2013 over the matter, the Court noted that the injury complained of by the claimant took place on 24th January 2007 and this action was filed on 28th June 2013; and that this naturally raised the question whether this action is not statute-barred. Parties were then asked to address the Court on the issue by filing and serving written addresses starting with the claimant. The claimant’s written address is dated 30th October 2013 while that of the defendant is dated 26th November 2013. The claimant did not file any reply on points of law. In his written address, the claimant acknowledged that the incident complained of by him, which is the subject matter of this suit, happened on 24th January 2007 and this case was filed on 28th June 2013. The claimant also agreed that this suit was filed out of time given that section 9(2) of the Limitation Law of Lagos State Cap. L67 Laws of Lagos State 2003 provides that “subject to the provision 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”. However, the argument of the claimant is that section 9(3), (4) and (5) of the said Limitation Law allows for his type of action to be filed out of time with leave of Court obtained either before the filing of the case or after the filling of the case upon certain conditions being met. The claimant did not indicate to the Court what these “certain conditions” are and whether the claimant met them. The claimant went on that it is equitable for this Court to allow this case to be filed out of time since the Court is one of law and equity, citing sections 13 and 15 of the National Industrial Court (NIC) Act 2006. To the claimant, the defendant took him to the hospital for treatment after the incident and was financially responsible for the treatment and it was the natural agreement and understanding between the parties that the defendant will be financially responsible for the removal of the two pallets in his arm. That the claimant had been negotiating with the defendant all the while as to the removal of the two metal pallets in his arm. That this case cannot be said to be statute-barred when the defendant has refused to finance the removal of the two metal pallets in the claimant’s arm till this moment, citing Nwadiaro v. Shell Petroleum Company Limited [1990] 4 NWLR (Pt. 150) 322 at 339. The claimant accordingly urged the Court to adjudicate on this case in the interest of justice and equity and upon such terms and conditions the Court may deem fit to make. In reaction, the defendant raised one issue for the determination of the Court, namely: whether or not this matter is statute-barred based on the provisions of the limitation laws. To the defendant this matter is statute-barred as it was initiated six years after the cause of action for the claims arose. That the claimant’s claim is founded on damages for personal injury; and so by section 9(1) and (2) of the Limitation Law of Lagos State 2003, personal injury claims (and the instant case is one such) should be instituted within three years. Accordingly, that the instant case filed outside of the three years allowed is statute-barred and so the rights of the claimant cannot be enforced, citing Adefarasin v. Egbe [1987] 1 NWLR (Pt. 471) 1 and Adekoya v. FHA [2008] 11 NWLR (Pt. 1109) 539 at 552. As to how the statute of limitation is interpreted, the defendant referred the Court to Eboigbe v. NNPC [1994] 5 NWLR (Pt. 347) 649. The claimant had relied on section 9(3) and (4) of the Lagos State Limitation Law 2003. On this, the defendant submitted that the claimant has not furnished any material fact before the Court showing that he has complied with the provision of subsection (3) of the Limitation law. That there is no order of court granting leave to the claimant to file this matter out of time and there is also no process before this Court seeking the order. It is also the submission of the defendant that the claimant did not comply with subsection (4) of the limitation law to warrant him to file out of time as the claimant has not put before the Court any material fact showing that he was unaware of the facts relating to his cause of action within the period specified by this subsection. That the claimant has not fulfilled the requirements in subsection (4), urging the Court to so hold. On sections 13 and 15 of the NIC Act 2006 cited by the claimant, the defendant referred to section 9(5) of the Limitation Law of Lagos State 2003. To the defendant, from this section 9(5), the rule of court or equity cannot, not even any other enactment can, affect the defence of limitation. Therefore, the claimant’s reliance on equity and the NIC Act is not sustainable in this case. Furthermore, that section 15 of the NIC Act talks about the general principle that equity will supersede common law. That this is not the case here, as the limitation law is not a common law provision but an act of parliament; it is statute and can only be repealed by another statute or a similar statute of superior hierarchy. The defendant then referred the Court to Ajayi v, Military Administrator, Ondo State [1997] 5 NWLR (Pt. 604) 234 at 254 and PN Udoh Trading Co. Ltd v. Abere [1996] 8 NWLR (Pt. 467) 479 at 492. The defendant continued that the claimant cannot rely on equity to file this claim out of time because equity aids the vigilant and not the indolent. That the claimant slept over his rights and only just woke up. Additionally, referring to Kolo v. AG, Federation [2003] 10 NWLR (Pt. 829) 602 at 627, that it is necessary as a matter of public policy by legislation to impose preconditions for the exercise of rights so that claims to rights may not be exercised in perpetuity on the premise that – i. Long dormant claims have more cruelty item justice in items ii. The defendant must have lost the evidence to dissolve the state claims. iii. Persons with good cause of action should pursue with them with reasonable diligence. iv. Those who go to sleep on their claims should not be assisted by the courts in recovering their property; and v. There should be an end to stale demands. It is not clear what points the defendant is making regarding items i and ii above. The claimant had stated that he had been negotiating with the defendant for the removal of the two metal pallets in the claimant’s arm and that the case cannot be said to be statute-barred, citing Nwadiaro v. Shell Petroleum Company Limited. To the defendant, the principle derived from Nwadiaro is that only an admission of liability by the defendant can stop time form running and revive a cause of action. That the claimant has put no material fact before this Court showing that the defendant admitted liability to the claimant’s claim; therefore, the claimant cannot rely on Nwadiaro. Similarly, that in Eboigbe v. NNPC (supra) the Court held that time begins to run irrespective of the fact that the parties are still negotiating. The defendant concluded by submitting that the claimant has slept on his rights and so is caught up by the limitation law. The defendant then urged the Court to dismiss the action for lack of jurisdiction as jurisdiction is the life-wire of litigation. I heard learned counsel and considered all the processes in this matter. The sole issue before the Court is whether this case is statute-barred. Indeed, the claimant not is challenging the fact that his action is outside of the permitted period under section 9(2) of the Lagos State Limitation Law 2003. The instant case was filed on 28th June 2013 and the cause of action, the injury to his arm and for which he is claiming general and specific damages, by paragraph 4 of his statement of facts, occurred on 24th January 2007. This means that the instant case was filed over six years after the cause of action arose. By section 9(2) of the Lagos State Limitation Law 2003, this action is actually statute-barred. The argument of the claimant, however, is that he comes within the exception in section 9(3) and (4). However, the argument of the defendant is that even within the exception of section 9(3) and (4), the claimant did not show that he met the requirements needed to come within the said exception. It would be necessary, therefore, to ascertain what the relevant provisions of section 9 of the Lagos State Limitation Law provide. Section 9(1) – (4) of the Lagos State Limitation Law 2003 provides 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 applied 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, the court has granted leave for the purpose of this subsection, and (b) the requirement of subsection (4) of this section has been 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 time outside the knowledge (actual or constructive) of the plaintiff until a date which – (a) either was after the end of three year period relating to that cause of action or was not earlier than twelve months before the end of the date on which the action was brought, and (b) in either case, was a date not earlier than twelve months before the date on which the action was brought. (5) Nothing in this subsection shall be construed as excluding or otherwise affecting – (a) any defence which, in any action to which this section applied, may be available by virtue of any enactment other than subsection (2) of this section whether it is an enactment imposing a period of limitation or not or by virtue of any rule of law or equity, or (b) the operation of any enactment or rule of law or equity which apart from this section after the end of the period of three years from the date on which the cause of action accrued. From thess provisions, I agree with the defendant that the claimant did not seek for the leave of Court as enjoined by section 9(3) and he did not satisfy the requirements of section 9(4) to come within the ambit of that subsection. In addition, by section 9(5) the plea to rules of equity by the claimant cannot be tenable. I accordingly find and hold that the instant case is not within the purview of the exceptions under section 9 of the Lagos State Limitation Law 2003. The claimant’s case is, therefore, statute-barred; and I so find and hold. On that ground, the case is hereby struck out. Ruling is entered accordingly. I make no order as to cost. …………………………………… Hon. Justice B. B. Kanyip