MR. EDDY OKO-JAJA v. NIGERIA NATIONAL PETROLEUM CORPORATION
(2019)LCN/13207(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of May, 2019
CA/A/361/2018
RATIO
INJURY: THE DIFFERENCE BETWEEN AN INJURY AND THE CONTINUATION OF IT
There is no doubt a distinction between an injury and its effect or continuing injury and the continuing effect of an injury as espoused by this Court in Olaosebikan v Williams (supra) adopting the dictum of Dickson J in Obiefuna v Okoye (1961) All NLR 357. The difficulty is how to determine if the medical condition of the injured person is the injury or a continuation of it or the effect of the injury or a continuous effect of it. Can the Court determine this question without medical evidence of what the injured person’s medical condition is. I do not think that it is question the Court can answer without evidence of the report of the result of the medical examination of the victim.PER EMMANUEL AKOMAYE AGIM, J.C.A.
PERIOD WITHIN WHICH MATTERS SHOULD BE BROUGHT AGAINST THE NIGERIAN NATIONAL PETROLEUM CORPORATION
It is glaring from the express words of S.12(1) of the Nigeria National Petroleum Corporation (NNPC) Act that it provides that the 12 month period within which suits against it must be brought shall commence either after the act in question is done or in case of a continuance of damage or injury that result from the act done, after the damage or injury ceases. Therefore where the injury resulting from an act done is a continual one, then the 12 months will not start running after the act was done, but will start running after the injury ceases.PER EMMANUEL AKOMAYE AGIM, J.C.A.
PERIOD WITHIN WHICH A MATTER OF CONTINUING DAMAGE OR INJURY CAN BE BROUGHT AGAINST THE NIGERIAN NATIONAL PETROLEUM CORPORATION
In a case of continuance of damage, or injury, the determinant of when time starts running is not when the act that caused the injury, ceases but is when the injury resulting from the act ceases. So the proposition that the time would start to run when the act ceases is clearly contrary to the express provision of S.12(1) of the NNPC Act concerning cases of continuance of injury.
I consider it important to state here that the law that governs the limitation of time to bring actions against the respondent is the NNPC Act. It is made specifically for the NNPC. The Public Officers Protection Act 2004 is an act that applies to all public officers and the Limitation Act 1966 applies to suits generally.PER EMMANUEL AKOMAYE AGIM, J.C.A.
STATUTE BAR: WHAT SHOULD BE DONE WHEN OTHER LAWS APART FROM THE NNPC ACT PRESCRIBES A LIMITATION PERIOD
The three statutes prescribe different time limits within which actions can be brought, The NNPC Act prescribes 12 months. The Public Officers Protection Act prescribes 3 months. The Limitation Act 1966 prescribes 3 years for actions for damages for personal injuries to a person due to negligence, nuisance or breach of duty. Where a suit is against the respondent or its staff, the National Petroleum Corporation (NNPC) Act made specifically for such actions, shall override the provisions of the Public Officers Protection Act and the Limitation Act, firstly, on the principle that special provisions override general provisions, and secondly, because S.12(1) of the NNPC Act expressly states that the time limit within which actions against the respondent shall be commenced shall be 12 months “notwithstanding anything in any other enactment”. These words in that provision excludes the application of the provisions of S.2(a) of the Public Officers Protection Act and S.8(1) and (2) of the Limitation Act 1966 to the respondent.PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
MR EDDY OKO-JAJA Appellant(s)
AND
NIGERIA NATIONAL PETROLEUM CORPORATION Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/361/2018 was commenced on 27-7-2017 when the appellant herein filed a notice of appeal against the judgment of the Federal High Court in Suit No. FHC/ABJ/CS/1043/16 delivered on 30-6-2017 by Nnamdi O. Dimgba J. The notice of appeal contains 3 grounds of appeal.
Both sides filed, exchanged and adopted their respective briefs as follows – Appellant’s brief and Respondent’s brief.
The appellant?s brief raised one issue for determination namely- “Whether in the circumstances of this case, the Learned Trial Judge was right in dismissing the appellant’s case holding that the appellant’s case as presented before him was statute barred”.
The respondent’s brief also raised one issue for determination as follows- “Whether the Appellant’s suit which cause of action accrued on 11th March 1990 and the action was commenced on 23rd December, 2016, is not statute-barred?”
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief.
?I have carefully read and considered the arguments of both sides on
1
this issue. The suit was filed on 23-12-2016. The statement of claim of the appellant at the trial Court states the facts that gave rise to this case. It averred thusly-
“2. The Defendant is an Agency of the Federal Government of Nigeria and a statutory body registered with relevant Laws in Nigeria with its head office at Herbert Macaulay Way, Central Business District, Garki Abuja.
3. The plaintiff states that on the 11th day of March 1990, he made a journey in an official vehicle described as Peugeot 504 station wagon car with Registration Number LA 660 AR belonging to the defendant.
4. The plaintiff also states that the Peugeot 504 station Wagon Car with Registration Number LA 660 AR was officially allocated to one of his relations called A. FUGBARA, also known as Mr. A.F. Andrew-Jaja who was then the Head of Insurance in the Defendant’s office at Falomo Lagos.
5. The plaintiff avers that the said Defendant’s Peugeot 504 Car was driven by one Late D.A. Musa who was in the employment of the Defendant.
6. The plaintiff states that the Peugeot 504 car was driven with obviously bad rear tyres which got burst on Lagos ? Benin
2
Expressway in an avoidable fatal accident which resulted in the plaintiff sustaining severe spinal injury as he (plaintiff) journey in the said car with Mr A. F. Andrew-Jaja’s wife (Gladys) and other passengers on board on the ill-fated day.
7. The plaintiff further states that after the accident, he was taken to the Ijebu Ode State Hospital initially and later evacuated to National Orthopaedic Hospital, Igbobi Lagos but medical experts later recommended that he be rushed to the United Kingdom for medical attention.
8. Further to paragraph 7 above, the plaintiff states that the Defendant neglected his plight and watched him languish in pain and trauma until when the Federal Ministry of Transport in conjunction with the Federal Ministry of Finance sent him to a Hospital in the United Kingdom but paid for only one month treatment as against five monthly treatment recommended for the plaintiff’s condition to improve.
9. The plaintiff also states that since the 11th day of March 1990, when the accident occurred till date, the defendant has not contributed any kobo, neither has it activated the comprehensive insurance which he happened to be entitled
3
to by virtue of his involvement in the car accident as a passenger in the ill-fated car.
10. The plaintiff also states that he had severally written to successive Managing Directors, Ministers of Petroleum Resources as well as successive Chairman of the Board of Directors of the Defendant requesting for their intervention to ensure that the defendant takes responsibility and either provide the necessary funds to pay the accumulated hospital bills and other financial burdens which the plaintiff has been battling with in the foreign land since his abandonment in the United Kingdom since 1995 till date or activated the insurance policy so that the insurance company involved will take responsibility for the huge costs so far incurred and cater for his future well-being all to no avail. Copies of the various plaintiffs’ letters referred to above are hereby pleaded and same shall be relied upon at the hearing of this suit.
11. The plaintiff states that flowing from the paragraph 10 above, he commissioned his Legal Solicitors to the defendant on the subject matter and the defendant failed, refused and/neglected to respond to his solicitor’s letter. The said
4
solicitor’s letter dated 27th September, 2016 and received the same day is hereby pleaded and shall be relied upon at the hearing of this suit.
WHEREOF the plaintiff claims against the Defendant as follows:
1. A DECLARATION that the accident which occurred on the 11th day of March, 1990 wherein the rear tyres of the Peugeot 504 station Wagon Car with Registration Number LA 660 AR belonging to the Defendant and driven by the Defendant’s staff, which tyres got burst along Lagos-Benin Expressway, in Ondo State and which resulted in the plaintiff sustaining serious spinal injury, was largely due to the negligent act of the defendant.
2. A DECLARATION that the failure and or refusal by the Defendant to activate the insurance policy at the right time to make funds readily available to the plaintiff to immediately receive the medical attention in the United Kingdom as recommended by medical experts at the National Orthopaedic Hospital, Igbobi Lagos; caused further deterioration of the plaintiff’s health.
?3. AN ORDER mandating the Defendant to immediately pay to the plaintiff the sum of N1,000,000,000.00 (One Billion Naira Only) for spinal
5
injury caused to the plaintiff as a result of the Defendant’s negligence.
4. THE COST of this action”
The respondent herein, after being served the Writ of Summons and the statement of claim accompanying it, without filing a statement of defence, on 22-2-2017 filed a memorandum of conditional appearance and a notice of preliminary objection on the grounds that-
“1. That this Suit was initiated vide a Writ of Summons filed on 23rd of December, 2016 against the Defendant.
2. That the cause of action allegedly arose from an auto accident which allegedly happened on 11th March, 1990, over Twenty Six (26) years before the commencement of this action.
3. That by Section 2 (a) of the Public Officers’ Protection Act, CAP 41 Laws of the Federation of Nigeria 2004 the Plaintiff had Three (3) Months within which to commence any action against the Defendant as a public officer from the date of the accident.
4. That by Section 8(1) of the Limitation Act 1966, the Plaintiff had Three (3) Years within which to commence this action.
5. That by Section 12 (1) of the Nigerian National Petroleum Corporation Act, CAP. N123 Laws of theFederation of Nigeria 2004
6
the Plaintiff had Twelve (12) Months within which to commence any action against the Defendant
6. That this suit is statute barred by virtue of the Public Officers Protection Act; the Nigerian National Petroleum Corporation Act and the Limitation Act.
7. That this suit does not disclose a Cause of Action.”
Both sides filed written addresses on the preliminary objection. In its decision, headed “Judgment”, the trial Court determined the issue of whether the suit was statute barred thusly- “Above is a summary of the submission made by the parties. I have carefully evaluated the legal arguments, as well as fully acquainted myself with the materials relied upon to bring the suit. There is no disputing that the accident which gave rise to this legal action occurred on the 12/3/1990. I can also see from the abstract of the police investigation of the accident that the alleged fault of the Defendant grounding this legal action, the burst tyres of the Defendant’s vehicle in which the plaintiff was being conveyed was also obvious and noted by the police as far back as the period of the accident in the year 1990. This was a
7
clear period of 26 years from the 23/12/16 when this suit was filed. As it is clear from any of the Limitation Act, Public Officers Protection Act, and the NNPC Act cited by the Defendant, the relevant parts of which have been reproduced above, this suit is indeed statute barred. That is not to say that the Court does not sympathise with the Plaintiff. Sympathy is not enough. The Court must do its job and call every English spade by its English name without sentiment.
I agree with the Plaintiff’s counsel that where an injury or damage is a continuing one, the right to sue survives even within a period of 12 months from the end of that injury. But clearly, one must distinguish the continuance of an injury or damage from the continuance of the effect of that injury or damage. What the materials reveal, in my view and assessment, is that the effect of the accident suffered by the plaintiff in 1990 has continued, and probably should, given the gravity of that experience. However, the very injury or damage itself, and its alleged causative fact said to be the Defendant’s fault, all had their terminal dates on the 12/3/90. The plaintiff slept very much on his
8
rights and did not act diligently in bringing this suit. He woke up from his slumber very late. Even the letters done to the Defendant’s Managing Director by the Plaintiff’s solicitors was done on 27%
