TRANSOCEAN SUPPORT SERVICES NIGERIA LIMITED v. MINA PRAH
(2019)LCN/12729(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 20th day of February, 2019
CA/PH/589/2013
RATIO
ACTION: WHEN AN ACTION BECOMES STATUTE-BARRED
“An action is said to be caught up by statute of limitation or becomes statute barred when the party suing brings his action beyond the period laid down by the statute within which such action must be instituted in Court. See Araka V. Ejeagwu (2000) 12 SC Pt 1) 99. Where an action is statute barred, a plaintiff who might have had a cause of action loses the right of enforcement of such action or claim in a Court of law as a result of the expiration of the prescribed period. See Eboigbe V. NNPC (1994) 5 NWLR (Pt 347) 649; UBA Ltd V. Abimbola & Co (1995) 9 NWLR (Pt 419) 371 and Aremo II V. Adekanye & Ors (2004) 13 NWLR (Pt 891) 572.” PER ABUBAKAR MUAZU LAMIDO, J.C.A.
ACTION: CAUSE OF ACTION
“A cause of action that must be examined in the determination of whether a suit is statute barred is the entire set of facts that gave rise to an enforceable claim, a factual situation which a party relies upon to support his legally recognized claim against another. See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt 117) 517 and Beko V. Attorney General of Oyo State (1986) 5 NWLR (Pt 45) 828. The law is also the law that cause of action accrues when the facts or combination of facts are complete for a claimant to initiate an action against a defendant based on those facts. See UBA Plc V. Abdullahi (2003) 3 NWLR (Pt 807) 359.” PER ABUBAKAR MUAZU LAMIDO, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
TRANSOCEAN SUPPORT SERVICES NIGERIA LIMITED Appellant(s)
AND
MINA PRAH Respondent(s)
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of Rivers State Port Harcourt Judicial Division presided by T.S. Oji, J. delivered on 2nd May 2013.
At the trial Court, the respondent was the plaintiff and he claimed against the defendant now appellant as follows:
1. An Order of Court directing the payment of $30,560.00 (Thirty Thousand Five Hundred and Sixty US Dollars) or its Naira equivalent in Naira by the Defendant to the Plaintiff at the time of termination of this suit, the said amount being and representing the total amount of monies for the entitlements, allowances and redundancy benefits owed the plaintiff by the defendant company.
2. An Order of Court directing that the defendant pay interest on US $30,560.00 at the rate of 20% per annum from November, 1991 till Judgment is delivered and thereafter at the rate of 10% per month until the Judgment debt is full liquidated by the Defendant.
Pleadings were filed and exchanged by the parties. The defendant/appellant filed a conditional memorandum of appearance and its statement of defence.
Hearing in the suit, commenced on 27th March, 2011 and the matter was adjourned for defence. Instead of opening their defence, the defendant/appellant filed a motion on notice seeking for the dismissal of the suit for being statute barred and alternatively sought for an order setting aside the order of substitution made in the suit.
Upon hearing the motion of the Defendant/Appellant, the trial Court struck out the application for being unmeritorious with costs.
Dissatisfied with the ruling of the trial Court, the Defendant/Appellant filed his notice and grounds of appeal. The said notice of appeal contains two grounds. The grounds of appeal are reproduced hereunder without their particulars, thus:
1. ERROR OF LAW
The learned trial Judge erred in law when he held that the suit is not statute barred by virtue of the provisions of Section 16 of the Limitation Laws Cap 80, Laws of Rivers State, 1999.
2. ERROR OF LAW
The learned trial Judge erred in law when he dismissed the Appellant’s application to set aside an earlier exparte order he made on 16th day of December, 2008, substituting NRB Drilling Services Limited with the
Appellant without regard to the elementary principles of corporate personality.
In the Appellant’s brief of argument dated and filed on 20th September 2018 but deemed filed on 25th September, 2018, the Appellant’s counsel U.H. Azikiwe, Esq formulated two issues for determination. These issues are:
1. Whether the learned trial Judge was right in holding that the suit is not statute barred.
2. Whether the learned trial Judge was right in dismissing the Appellant’s application to set aside the order substituting NRB Drilling Services Limited with the Appellant.
On the other hand, in the respondents brief of argument dated and filed on 15th September 2014 but consequentially deemed filed on 25th September, 2018 which brief was settled by Charity Ogabo, Esq. The Respondent adopted the issues as formulated by the appellant’s counsel.
The issues for determination as formulated by the Appellant having being distilled from the two grounds of appeal can effectively resolve the dispute in this appeal one way or the other. I will adopt the two issues for determination in the resolution of this appeal.
At the expense of prolixity, the issues for determination adopted by the Court are thus:
1. Whether the learned trial Judge was right in holding that the Suit is not statute barred.
2. Whether the learned trial Judge was right in dismissing the Appellant’s application to set aside the order substituting NRB Drilling Services Limited with the Appellant.
In arguing Issue 1, learned counsel for the appellant submitted that in view of Section 16 and 27 of the Limitation Law, Cap 80, Laws of Rivers State 1999, the trial Court was wrong in holding that the cause of action in this Suit which is founded on contract is not statute barred. He also stated that the limitation period in most instances is determined by looking at the Writ of Summons and Statement of Claim wherein the date of the accrual of the cause of action and the date of unbaling the Suit can be found. He referred to Elabanjo V. Dawodu (2006) 15 NWLR (Pt 1001) 76; Odum V. Uganden (2009) 9 NWLR (Pt 1146) 281; Ethiopian Airlines V. Afribank Nig Plc (2006) 17 NWLR (Pt 1008) 245 and Rockshell International Ltd V. B.Q.S Ltd (2009) 12 NWLR (Pt 1156) 640.
Learned counsel further stated that the cause of action in this suit accrued to the Respondent in 1991 when his appointment was terminated by NRB Drilling Services Limited and the fact that on his return to Nigeria he could not find or locate any official of his employers to answer his demands of unpaid terminal benefits is of no moment since knowledge of the whereabout of NRB Drilling Services Limited is immaterial for the purposes of limitation period set by law. He referred to Ethiopian Airlines V. Afribank (supra) at P260; Akibu V. Azeez (2003) 5 NWLR (Pt 841) 643 and; Ajibona V. Kolawole (1996) 10 NWLR (Pt 476) 22.
He also argued that the averments in paragraphs 11 and 12 of the Statement of Claim cannot stop the limitation law from running for the Respondent ought to have sued NRB Drilling Services Limited in 1991 and having slept on his rights for 9 – 10 years before instituting a suit against NRB Drilling Services Limited is fatal to the suit of the respondent. The cause of action accrued to the respondent in 1991. He referred to Ethiopian Airlines V. Afribank (supra) and Sanda V. Kukawa Local Government (1991) 2 NWLR (Pt 174) 379.
Learned counsel also contended that Section 27 (1) of the Limitation law applies as in this case to the period between 1990-91 when the Respondent was abroad on a foreign assignment with NRB Drilling Services Limited and does not apply to the period after the respondent returned to Nigeria. He also stated that the facts established that the Respondent was in Nigeria from 1991 but failed to institute an action against his employer whose identity and business address were well known to him.
Finally on this issue, learned counsel submitted that a limitation law is a strict liability and where a case is statute barred, the Court ought to have declined jurisdiction and dismiss the action. He referred to Ibekwe V. I.S.E.M.B (2009) 5 NWLR (Pt 1134) 234; Sanda V. Kukawa Local Government (supra); Oke V. Oke (2006) 17 NWLR (Pt 1008) 224; Yakubu V. Nitel Plc (2006)9 NWLR (Pt 985) 367 and Eboigbe V. NNPC (1994) 5 NWLR (Pt 347) 649.
In arguing this issue, learned counsel for the respondent submitted that even though Section 16 of the Limitation Law stipulates that all actions founded on contract must commence within 5 years, the action at hand was commenced in 2000 and the cause of action accrued in 1995 when the whereabouts of the appellant was known. He referred to UBA V. BTL Industries Ltd (2007) All FWLR (Pt 352) 1615 and Arowolo V. Ifabiyi (2002) All FWLR (Pt 95) 296. The respondent has averred that while on a foreign mission NRB Drilling Services Limited circulated an internal memo of its intention to cease operation in Nigeria in June 1990.
Counsel also stated that upon the return of the respondent to Nigeria in 1991 he could not locate any official of NRB Drilling Services until 1995 when he found that the company resurfaced with a different name of Reading and Bates Falcon Drilling Company. He then made his demands in 1995 for the payment of his terminal benefits and was rebuffed by the said company. The respondent then filed this action in 2000. Counsel therefore argued that the reckoning period is when the respondent started making his demands to the company and that was 1995. He referred toChevron Nigeria Ltd V. Lonestar Drilling Nig. Ltd (2007) 7 SC (Pt II).
Learned counsel also argued that the Limitation Law of Rivers State made provisions for exceptions as to when the time begins to run and as such there can be a postponement of the limitation law. He referred to Section 31 of the Limitation Laws of Rivers State. Counsel then stated that based on the existence of fraud of the appellant in the case at hand, who left the country without fulfilling its obligations, the provision of Section 31 applies. Counsel also argued that the respondent’s right of action was deliberately concealed by the appellant as NRB Drilling Services went into merger with the appellant on record.
Finally, learned counsel contended that the action is not statute barred since the cause of action cannot be said to have accrued where there is no defendant who can be sued. Counsel urged the Court to resolve this issue against the appellant and in favour of the respondent.
The grouse of the appellant is that the suit before the lower Court was statute barred and secondly, the trial Court ought not to have granted the order of substitution in the manner it did. These points were canvassed in the appellant’s motion before the trial Court which motion was struck out after refusing the two main prayers. I shall deal with the issue of statute barred claim first since it touches on the jurisdiction of the trial Court and the law is well settled that where an issue of jurisdiction is raised, the Court ought to settle that issue first before embarking on resolution of other issues. See Oyerogba V. Akinyemi & Ors (2016) LPELR 41940; Obaba V. Military Governor of Kwara State & Ors (1994) LPELR 2147 and Magaji V. Matari (2000) LPELR 1813.
An action is said to be caught up by statute of limitation or becomes statute barred when the party suing brings his action beyond the period laid down by the statute within which such action must be instituted in Court. See Araka V. Ejeagwu (2000) 12 SC Pt 1) 99. Where an action is statute barred, a plaintiff who might have had a cause of action loses the right of enforcement of such action or claim in a Court of law as a result of the expiration of the prescribed period. See Eboigbe V. NNPC (1994) 5 NWLR (Pt 347) 649; UBA Ltd V. Abimbola & Co (1995) 9 NWLR (Pt 419) 371 and Aremo II V. Adekanye & Ors (2004) 13 NWLR (Pt 891) 572.
In the determination of whether an action is statute barred or not, the Court will look at the writ of summons and the statement of claim, these processes will enable the Court to determine when the cause of action accrued to the plaintiff and the time the originating process was filed. In Eregbowa & Ors V. Obanor & Ors (2010) LPELR 8964 @ 37-38; Augie, JCA (as he then was) held that:
‘It is well settled that in determining whether a cause of action is statute barred or not, the crucial consideration is when the cause of action arose, and the period of limitation is determined by looking at the writ of summons and statement of claim alleging when the wrong was committed that gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.’
See also Adekoya V. FHA (2008) 11 NWLR (Pt 1099) 539 and Omomeji V. Kolawole (2008) 14 NWLR (Pt 1106) 180.
A cause of action that must be examined in the determination of whether a suit is statute barred is the entire set of facts that gave rise to an enforceable claim, a factual situation which a party relies upon to support his legally recognized claim against another. See Tukur V. Government of Gongola State (1989) 4 NWLR (Pt 117) 517 and Beko V. Attorney General of Oyo State (1986) 5 NWLR (Pt 45) 828. The law is also the law that cause of action accrues when the facts or combination of facts are complete for a claimant to initiate an action against a defendant based on those facts. See UBA Plc V. Abdullahi (2003) 3 NWLR (Pt 807) 359.
Now, from the writ of summons and the amended statement of claim, as can be seen on PP 1 – 3 and 127 – 131 of the records, it is obvious the respondent claimed that he was employed by NRB Drilling Services Limited and his employment was terminated in November 1991 as a result of the fact that his employer ceased to operate in Nigeria and that his terminal benefits were not paid by his employers. The claim of the respondent further showed that, the reliefs he claimed included payment of bonus and allowance, gratuity etc and 20% interest from November 1991 till Judgment is delivered and thereafter 10% interest until the Judgment?.is liquidated. The suit was filed on 30/11/2000.
The trial Court in its ruling upon a consideration of the originating process and statement of claim held inter alia:-
‘Looking at the writ of summons side by side the statement of claim, it is my view that the cause of action arose when the defendant refused to pay the claimant his terminal benefits allowances and bonuses after he made oral demand for the payment of his unpaid terminal benefit, allowance and bonuses due to him in 1995 when he discovered their whereabouts. This suit was filed in 2000 which in my view is approximately four years plus. Claimant is within the stipulated time. I therefore hold that the suit is not statute barred.’
It seems the learned trial Judge based his finding on the date the respondent said he made an oral claim for the payment of his terminal benefits.
It should be noted that this is an action founded on the fact that the respondent is by the provisions of collective agreement of 1987 between National Union of Petroleum and Natural Gas Workers (NUPENG) and NRB Drilling Services Limited entitled to payment of terminal benefits. Therefore, to my mind, the suit is founded on contract or its breach. There is said to be a breach of contract when a party failed to perform his obligation towards another party and in the words of Wali, JSC in Sanda V. Kukawa Local Government & anor (1991) 2 NWLR (Pt 1740 379. . in action for breach of contract, the cause of action accrues for the plaintiffs benefit from the time the breach of the contract is committed and not when the damage is suffered. The period of limitation will begin to run from the date the cause of action accrues?. See also Iweka V. SCOA (Nig) Ltd (2000) 7 NWLR (Pt 664) 325 and Thomas V. Olufosoye (1986) 1 NWLR (Pt 18) 669.
The learned trial Judge was clearly in error in holding that the cause of action arose in 1995 when the respondent made an oral demand for payment of his terminal benefits to the appellant. The proper finding in my view should have been that the cause of action arose when the NRB Drilling Services Limited terminated the employment of the respondent without paying his entitlements i.e November 1991. It is my humble view that from the writ of summons and the amended statement of claim, the cause of action accrued in 1991 and not 1999 as founded by the trial Court.
It is not in doubt that the action was commenced on 30/11/2000 when the writ of summons was filed. The Limitation Law of Rivers State Cap 80 Laws of Rivers State 1999, provides in Section 16 thereof that;
No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.
From the above provision, it can be seen that the limitation period in actions founded on contract is five years. Having filed this action in 2000 when the cause of action accrued in 1991, a period of nine years, it cannot be said that the action was commenced within the period allowed by the limitation law of Rivers State. Clearly, the action of the respondent was filed outside the allowable period and is therefore statute barred. See Eniang V. Mobil Producing Nig Unlimited (2012) LPELR 7906 and SPDC V. Ejebu & Anor (2010) LPELR 5025.
I note that the respondent contended that he was outside Nigeria when his employers terminated his appointment and left the country and that he could not commence his action when the cause of action accrued in the absence of who to sue because he returned to Nigeria in 1991. Section 27 (1) of the Limitation Law provides that:
Where a person is outside Nigeria when a cause of action accrues in his favour, the relevant period of limitation prescribed under this Law shall not begin to run until he returns to Nigeria.
The above provision freezes the operation of the limitation period where a person is outside the country until he returns. In the case of the respondent, there is ample evidence that he returned to Nigeria in 1991. This fact further supports my earlier stance that the cause of action accrued in 1991. Briefly put, since the respondent?s appointment was terminated in 1991 and he returned to Nigeria in 1991, cumulatively the cause of action accrued in 1991 and he ought to commence his action within a period of five years to be in compliance with the Limitation Law of Rivers State.
Learned counsel for the respondent argued that the Limitation law in Section 31(1) made provision for exceptions as to when the time begins to run. Let’s examine Section 31 to see if the Section confers on the respondent any protection. The section provides:-
31(1) Subject to Subsection (4), where in the case of any action for which a period of limitation is prescribed by this law, either –
(a) the action is based upon the fraud of defendants; or
(b) any fact relevant to the plaintiff?s right of action has been deliberately concealed from him by the defendant; or
(c) the action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered.
The above provision has to my mind stated the period when the limitation period is to run in cases where there is a fraud from the defendant, concealment of the right of action and actions based on relief from the consequences of a mistake. The limitation period will only start to run after the discovery of such facts of fraud, concealment and consequences of a mistake.
The respondent argued that in the case at hand, there is fraud on the part of the appellant and concealment of the right of action by the appellant. First on the allegation of fraud on the part of the appellant who ceased operations in Nigeria without complying with the terms and conditions of the collective agreement, the respondent has not pleaded fraud in his pleading and fraud is one of the issues that ought to be pleaded before it can be relied upon. Secondly, the respondent?s employer is not an individual but a limited liability company and it is not the case of the respondent that the company is either in liquidation or liquidated or has wound up.
There is no evidence of fraud or concealment shown by the respondent to entitle him take a shelter under Section 31 (1) of the Limitation law.
Having found that the respondent’s claim before the trial Court is statute barred, the action is therefore incompetent, the respondent who previously possessed the right of action has lost that right to bring to Court his claims for adjudication because the Court has no jurisdiction to entertain his claim. See Aremo II V. Adekanye (2004) All FWLR (Pt 224) 2113 and Iweka V. SCOA (2000) 7 NWLR (Pt 664) 325.
On the second issue for determination relating to an order for substitution, with the holding that the action of the respondent is caught up by statute of limitation, the order for the substitution of the appellant made by the lower Court is erroneous and same is hereby set aside.
Both issues for determination as formulated and adopted by the Court are resolved in favour of the appellant and against the respondent. Consequently, I find merit in this appeal and it is hereby allowed. The ruling of the Rivers State High Court in Suit No PHC/2544/2000 is hereby set aside and the Suit is dismissed. I make no order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Judgment of my learned brother, ABUBAKAR MUAZU LAMIDO JCA before it was delivered. I agree that there is merit in the appeal and I allow it. I abide by the consequential order.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading before now the lead Judgment just delivered by My Learned brother ABUBAKA MUAZU LAMIDO, JCA.
The appeal has merit and it is hereby allowed. I also abide by all consequential orders in this appeal.
Appearances:
Uzoma H. Azikiwe, Esq. with him, T. F. Oyibo, Esq. and O. NdubuisiFor Appellant(s)
N. Ogbanga, Esq. with him, C.U. Chukwujekwu, Esq.For Respondent(s)
