DADORU BENSON v. MOBIL PRODUCING (NIG.) UNLTD.
(2012)LCN/5121(CA)
In The Court of Appeal of Nigeria
On Monday, the 30th day of January, 2012
CA/PH/84/2010
RATIO
THE LIMITATION ACT
Does the Limitation Act of 1623 apply? Rights accruing from Oil exploration are new rights which could not have been within the purview of Limitation Act of 1623. In fact in subsequent legislations or Acts enacted or deemed enacted by the National Assembly under section 315 of the 1999 constitution specific provisions are made on limitation of actions. See section 12 of the Nigeria National petroleum Corporation Act of 1977. However in respect of the oil pipeline Act no such provision has been made. It is trite that a Limitation Act removes the right of action of a plaintiff. See Military Administrator of Ekiti State v. Aladeyelu (2007) 40 WRN 158 at 183. It should therefore be strictly interpreted. It seems to me also that the oil Pipeline Act 1990 being a later enactment, the right of action created by it cannot be said to be impacted by the 1623 Act. The two statutes appear inconsistent on the right of action of a plaintiff. The right is uncurtailed under the oil Pipelines Act. I am of the view that 1623 Act cannot be applied to this case. See ODUGBO v. ABU (2005) 49 WRN 1 at 50 – 51. What is more, the Limitation Act of 1623 cannot be said to be an existing law under section 315 of the 1999 constitution. By virtue of section 70 of the Limitation Decree No. 88 of 1966, “Any English Statute of general application relating to the Limitation of actions which were in force in Nigeria immediately before the commencement of this Decree shall cease to apply.” It means that the Limitation Act of 1623 is no longer applicable in Nigeria. PER. T. O. AWOTOYE J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
Between
DADORU BENSON Appellant(s)
AND
MOBIL PRODUCING (NIG.) UNLTD. Respondent(s)
T. O. AWOTOYE J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of appeal against the decision of Federal High Court Yenagoa Bayelsa State delivered on 14/7/09 in suit No. FHC/YNG/CS/4305-4320/06 Dadoru Benson (suing through his lawful attorney Chief Francis E. Egele) V. Mobil Producing (Nig.) Unlimited.
The plaintiffs/appellants took out the writ of summons on 10/11/06. By their paragraph amended statement of claim dated 13/5/2008 the plaintiffs claimed as follows:
“1. Five Hundred and Ninety Nine Thousand Nine Hundred and Ninety Nine (599,999) bundles of fishing nets at N10,000.00 per bundle of net which sum is N5,999,990,000.00.
WHEREOF the plaintiff claims a total sum of five Billion, Nine Hundred and Ninety Nine Million Nine Hundred and Ninety Thousand Naira) being special damages for the destruction of the plaintiff’s fishing nets amounting to 599,999 bundles by the Defendants Oil spillage.”
Paragraphs 4 – 10 of the amended statement of claim aptly summarise the claim of the plaintiffs. They read
“4. On or about the 12th day of January, 1998, the Defendants Oil pipe got ruptured at Idoho (Eket) in Akwa Ibom State Nigeria which resultant effect was an oil spillage (or dissemination of crude oil into the waterways) the defendant tagged the said oil spillage as IDOHO OIL SPILLAGE.
5. The said oil spillage affected the fishing nets of the plaintiff in rivers where it operated in Bayelsa State.
6. As a result of the massive oil spill, which affected parts of Bayelsa State, the defendant co-opted the community Relations committee to jointly carry out the post impact assessment, enumerate the victims and the properties affected as well as take record of same.
7. At the various assessment centers as it affects the plaintiff the defendant and C.R.C enumerated and recorded the bundles of fishing nets affected against plaintiffs name. At the trial plaintiff shall rely on the comprehensive valuation list of the affected victims/properties in Bayelsa State. The plaintiff’s bundle of fishing nets enumerated and recorded is/are six hundred thousand (600,000) bundles of fishing nets.
8. Between September to December 1998, the Defendant made payments to the victims by issuing Allstate Trust Plc cheques in their names and allocated random amounts ranging from N10, 000.00 etc against each name. The least beneficiary was paid the sum of N10, 000.00. At the trial plaintiff shall rely on the payment schedule list as verified by C.R.C. The defendant negotiated and agreed with the Plaintiffs, their attorneys and C.R.C. to pay the sum of N10, 000.00 for a bundle of fishing net/inconvenience. Plaintiff was paid only N10, 000.00 without recourse to the quantum of plaintiffs bundles of fishing nets assessed and recorded.
9. Before the payment exercise plaintiff amongst others complained to defendant and C.R.C. about the irregularity in the payment and defendant by a letter to C.R.C dated 6/10/98 promised to remedy same.
The said letter is hereby pleaded and defendant is given a notice to produce.
10. Despite repeated demands the defendant has failed and or neglected to make adequate payment, commensurate with the number of nets it destroyed as recorded against the plaintiff’s name.”
The defendant filed its statement of defence on 6/11/2008. By paragraphs 4 -5 of the statement of defence the defendant raised the defence that the action was statute barred paragraphs 4 -5 of the statement of defence read thus:
“4. The defendant avers that the Plaintiff’s Writ of summons and Statement of Claim was filed at the Registry of this Honourable Court on 10th November 2006, more than six years since the cause of action in this matter arose.
5. The defendant avers that having commenced the action after six years since the accrual of the cause of action thereof the action is time barred.”
The defendant/respondent subsequently by its motion on Notice filed on 11/5/09 prayed for the dismissal of the action on ground of its being statute barred in view of section 16 of the Limitation Law of Bayelsa State. Section 16 of the Limitation Law reads:-
“No action founded on contract, tort or any other action not specifically provided for in parts I and II of this Law shall be bought after the expiration of five years from the date on which the cause of action accrued.”
After hearing the parties the learned trial judge held as follows:-
“On the defendant’s motion on Notice which raised the issue of statute-bar, the first point is that paragraphs 9 and 10 of the Amended Statement of Claim are correct and there an acknowledgement and thus a revival of the cause of action, time will start to run from 1999.
The applicable law would seem to be the Bayelsa State Limitation Law which prescribes 5 years as the statutory period of Limitation. I am bound by ETIM’s case. In any event, the distinction as the admission of liability by plaintiffs’ counsel in relation to ETIM’s case is of no moment. At best, time started running from the date of admission of liability, assuming this to be so. Therefore ETIM’s case applies. Even if that case does not apply, the Limitation, Act of 1623 which is a statute of general application would apply; Reference is made to the elementary books on Introduction to Nigerian Law and the Nigerian Legal System by P.A.E.W Pank and Prof. OBILADE respectively. In the face of statute, the common law cannot apply. Also equity will not avail plaintiffs as equity only aids the vigilant. I need not quote the Latin Maxim for fear of sounding too archaic or backward.
The defendant’s Motion on Notice therefore had merit. It is granted. The appropriate consequential order is to dismiss as the plaintiffs cannot file a fresh action.”
It is against this ruling that the appellants filed a notice of appeal containing 3 grounds of appeal.
After transmission of records parties filed and exchanged briefs of argument
The appellant’s counsel Chief F.F. Egele formulated one issue of determination:-
“Whether the plaintiff’s (now appellants) action is statute barred either by the provision of Bayelsa State Limitation Law cap. 18 Laws of Bayelsa State or the Limitation Act of 1623.”
Learned counsel submitted that Bayelsa State Limitation Law being a Statute Law could not apply to matters within the exclusive legislative list neither can items 38 and 39 in the 2nd Schedule and section 251(i)(n) of the constitution be construed subject to any state limitation Law. He referred to
(i) NUHU v. OGELE (2004) FWLR (pt. 193) page 362 at 379
(ii) OGBUNIYA V. OKUDO 2001 FWLR (PR 72) Pg 1987 at 1999
(iii) D.E.N.R. LTD V. TRANS INT. BANK LTD 2009 ALL FWLR (PT. 456 Pg. 1851.
(iv) S. P. D. C. V. FARAH (1995) 3 NWLR (PT, 382) Pg. 148 at 2000 – 2001.
He submitted that the reliance of the learned trial judge on ETIM v. IGP (2000) FWLR (PT 21) pg 767 was erroneous.
He submitted further that in view of paragraphs 8-10 of the amended statement of claim, Limitation Act of 1623 was inapplicable in this case. He relied on EBOIGBE v. NNPC (1994) 5 NWLR (pt. 347) pg. 649 at 660.
He finally urged the court to allow the appeal and remit the case back to the lower court for trial.
Babatunde Sodipo, learned counsel, settled the Respondent’s brief Ajumogobia & Okeke, Respondent’s solicitors.
He also formulated one issue for determination: – whether the appellant’s action was not statute barred either by the provisions of Bayelsa State (sic) or the Limitation Act of 1623?”
Learned counsel referred to ETIM v. IGP (2001) 11 NWLR (PT. 724) Page 266 at 283 – 284 and submitted that the Federal High court applied the Limitation Law of Kaduna State to a Federal matter. He relied also on section 44 of the Limitation law of Bayelsa state 2006. Learned counsel for the respondent further contended that Shell V. Farah (supra) was inapplicable to this. He submitted that the observation of Onalaja JCA in Farah’s case relied upon by the appellants’ counsel was an obiter. He urged the court to instead rely on the Supreme Court case of Eboigbe v. NNPC (1994) 5 NWLR (pt. 349) 649 at 659.
Learned counsel for the Respondent argued further that having regard to the doctrine of this court in R.C.C. (Nig.) Ltd. V. Buratto (1993) 8 NWLR (Pt. 312) 508 at 513 the court below rightly held that the Limitation Act of 1623 applied.
He finally urged the court to dismiss the appeal.
Appellant’s counsel filed a Reply brief where he argued that Eboigbe’s case (supra) was distinguishable from this case in that the cause of action in Eboigbes case was not in the Exclusive Legislative list. He urged the court to allow the appeal.
I have carefully considered the submissions of learned counsel on both sides as well as the contents of the record of appeal.
The sole issue in my respectful view to be determined in this appeal is whether or not the action of the appellants in the lower court was statute barred in view of either the Limitation Law of Bayelsa State or Limitation Act of 1623.
It is clear from the amended statement of claim that the cause of action occurred in 1998 and the action was instituted on 10/11/06 eight years after.
This is because the oil spillage according to paragraph 4 of the amended statement of claim took place on or about 12/1/98 and negotiations and payment were on till 6th December 1998. See paragraph 8 of the amended statement of claim.
Now the right of action of the plaintiffs/appellants was created by section 19 of the oil Pipelines Act 1990 which reads.
“19. If there be any dispute as to whether any compensation is payable under any provision of this Act or if so as to the amount thereof, or as to the persons to whom such compensation should be paid, such dispute shall be determined by a magistrate exercising civil jurisdiction in the area concerned if such magistrate has in respect of any other civil matter monetary jurisdiction of at least as much as the amount of compensation claimed and if there be no such magistrate by the High court exercising jurisdiction in the area concerned and, notwithstanding the provisions of any other Act or Law, in respect of the decision of a magistrate in accordance with this section there shall be an appeal to the High Court of the state and in respect of a decision of the High Court of the state under this section, whether original or appellate, there shall be an appeal to the court of Appeal.
Provided that nothing in this Act shall be deemed to confer power upon a magistrate to exercise jurisdiction in a matter raising any issue as to the title to land or as to the title to any interest in land.”
The oil Pipeline Act is a law deemed to have been made by the National Assembly by the provision of section 4(3) of the constitution item 39 of second schedule part 1 and items 67 of the same part 1 of second schedule of the Nigeria constitution.
Section 4(3) of the 1999 constitution reads:
4(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.”
Item 39 and 68 of part 1 of the second Schedule puts the following items under the Exclusive Legislative List.
(39) Mines and minerals including oil fields, oil mining, geological surveys and natural gas
(68) Any matter incidental or supplementary to any matter mentioned elsewhere in this list.”
It appears to me also that a state law limiting the right created by a Federal law is in conflict with the Federal law.
Section 4(5) of the 1999 Constitution is clear on this. It States:
“If any law enacted by the House of Assembly of a state is inconsistent with any law validly made by the National Assembly the law made by the National Assembly shall prevail and that other law shall to the extent of the inconsistency be void.”
The oil Pipeline Act is a Federal Law. The Bayelsa State Limitation Law seeks to curtail the exercise of the right of action created by the oil Pipeline Act. This certainly is unconstitutional and the Bayelsa State Limitation Law cannot be so interpreted. See A.G. Abia State v. A.G. Federation (2002) 6 NWLR (PT. 763) 264. I therefore hold that the Bayelsa State Limitation law does not apply.
Does the Limitation Act of 1623 apply? Rights accruing from Oil exploration are new rights which could not have been within the purview of Limitation Act of 1623. In fact in subsequent legislations or Acts enacted or deemed enacted by the National Assembly under section 315 of the 1999 constitution specific provisions are made on limitation of actions. See section 12 of the Nigeria National petroleum Corporation Act of 1977.
However in respect of the oil pipeline Act no such provision has been made. It is trite that a Limitation Act removes the right of action of a plaintiff. See Military Administrator of Ekiti State v. Aladeyelu (2007) 40 WRN 158 at 183. It should therefore be strictly interpreted.
It seems to me also that the oil Pipeline Act 1990 being a later enactment, the right of action created by it cannot be said to be impacted by the 1623 Act. The two statutes appear inconsistent on the right of action of a plaintiff. The right is uncurtailed under the oil Pipelines Act. I am of the view that 1623 Act cannot be applied to this case. See ODUGBO v. ABU (2005) 49 WRN 1 at 50 – 51.
What is more, the Limitation Act of 1623 cannot be said to be an existing law under section 315 of the 1999 constitution. By virtue of section 70 of the Limitation Decree No. 88 of 1966, “Any English Statute of general application relating to the Limitation of actions which were in force in Nigeria immediately before the commencement of this Decree shall cease to apply.” It means that the Limitation Act of 1623 is no longer applicable in Nigeria.
My attention has been drawn to the case of JOHN EBOIGBE (for himself and on behalf of six other member) V. NNPC (1994) 5 NWLR (PT 347) Page 649. On page 659 of the report Adio JSC (of blessed memory) had this to say:
“Bearing the provisions of section 11(1) of the NNPC Act 1977 and section 4(1) (a) of the Limitation Law Cap 89 of the Laws of Bendel State of Nigeria 1976 which prescribed six years limitation period in mind, the action instituted by the appellant was prima facie statute barred”.
The respondent relying on this statement canvassed that the state limitation law can apply in respect of a Federal enactment. This cannot with due respect be true in the face of the provision of the 1999 Constitution and in view of the fact that Eboigbe’s case was an action in respect of destruction of economic crops. It was not in respect of an item on the exclusive legislative list of the 1999 Constitution. Eboigbe’s case (supra) is therefore clearly distinguishable from this case and the statement of Adio JSC in the case turned on the peculiar facts of the case.
What is more, the concluding part of the lead judgment of Adio JSC in Eboigbe’s case obviates any confusion that might arise on this issue. His Lordship on page 661 of the report said:
“The appellant urge this court to take into consideration the provision of section 25(c) of the Limitation Law which provide that time should not begin to run until the plaintiff has discovered the fraud, where fraud is alleged, or his mistake; section 28 of the Law which empowers a court to refuse the relief on the ground of acquiescence; and section 21 of the Law which provides that time should not begin or continue to run when a party is under disability. Whatever may be the merit, if any, of the submission, the provisions of the Limitation Law suspending the running of the limitation period prescribed in the Law do not apply as the provisions of section 11(1) of the Nigeria National Petroleum Corporation Act, 1979, are applicable notwithstanding anything in any other enactment.”
In the circumstance I resolve the sole issue formulated in favor of the appellant. This appeal is meritorious. It is hereby allowed with the sum of N30, 000.00 awarded in favour of the appellants.
This case is hereby remitted back to the trial court be tried by another Judge other than A. O. Faji J.
M. DATTIJO MUHAMMAD, J.C.A.: My learned brother Awotoye JCA had obliged me the draft of the judgment just delivered and on perusal I share his reasoning and conclusion therein.
Certainly in the system we operate a state legislation being on a lower pedestal cannot govern a transaction in respect of which the National Assembly has legislated upon. The statute of general application in the same vein cannot regulate a transaction so provided for by the National Assembly. By virtue of S.315 of the 1999 constitution as amended read along with S.70 0f the Limitation Act No. 88 of 1966, neither the Bayelsa State Limitation Law nor the statute of general application applies to the instant matter. The matter is founded on the Pipeline Act enacted by the National Assembly. I equally rely on the more elaborate reasons givens the read judgment to allow the appeal and abide by all the consequential orders decreed therein.
PAUL ADAMU GALINJE J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, AWOTOYE JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
Clearly S.16 of the Bayelsa State Limitation Law cannot operate to limit the action of the Appellant which is founded on Oil Pipeline Act, an enactment of the National Assembly.
I also agree with my learned brother, that by virtue of the provision of S.315 of the 1999 constitution of Nigeria read together with section 70 of the Limitation Act. No 88 of 1966, the Limitation Act of 1623, a statute of general application is no longer applicable in Nigeria.
For this reason and the more elaborate reasons in the lead judgment of my learned brother, this appeal shall be and it is hereby allowed by me. I abide by the consequential orders made in the said lead judgment as to cost.
Appearances
Chief F.F. Egele with T.R. Warmate and P. EveforiokumaFor Appellant
AND
Babatunde Sodipo with Olusola OlarewajuFor Respondent
