EDET O. ENIANG v. MOBIL PRODUCING NIG. UNLTD & ORS
(2012)LCN/5787(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of March, 2012
CA/C/54/2010
RATIO
ACTION: MEANING OF A CAUSE OF ACTION
“A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to a right to sue and it consists of two elements; for example, the wrongful act of the defendant which gives the plaintiff his cause of complaint; and the consequent damage. Adesokan vs. Adegorolu (1997) 3 NWLR pt 493 page 261, Afaji Vs. Milad Ondo State (1997) 5 NWLR pt 504 page 232, Rhein Mass Und See GMBH Vs. Railway Lines Ltd (1998) 5 NWLR pt 549 page 265. Emiator Vs. Nigeria Army (1999) 12 NWLR pt 631 page 362, Agbanelo Vs. UBN Ltd (2000) 4 SC pt 1 page 233, Oduntan Vs. Akibu (2000) 7 SC pt 11 page 106.
A cause of action is also the factual situation which a plaintiff relies upon to support his claim, recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. The factual situation must however constitute the essential ingredient of an enforceable right as claimed. See Asaboro Vs. Pan Occean Oil (Nig) Ltd (2006) 4 NWLR pt 971 page 595, Mobil Oil Plc Vs. D. E N. R Ltd (2004) 1 NWLR pt 853 page 142. PER UZO I. NDUKWE-ANYANWU, J.C.A.
ACTION: WHEN WILL A CAUSE OF ACTION ARISE
A cause of action arises on the date of the event whereby the cause of action becomes complete so that the aggrieved party can begin and maintain his action. See Shell Petroleum Dev. Co. (Nig) Ltd Vs. Farah (1995) 3 NWLR pt 382 page 148 Alese Vs. Aladetuji (1995) 6 NWLR pt 403 page 527, Adeosun Vs. Jibesin (2001) 14 WRN page 106. PER UZO I. NDUKWE-ANYANWU, J.C.A.
ACTION: WHEN WILL AN ACTION BE STATUTE BARRED
“where a Statute of Limitation prescribes for a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus an action instituted after the expiration of the prescribed period is said to be statute barred. Ogunko Vs. Shelle (2004) 6 NWLR pt 868 page 17. Osun State Govt Vs. Dalami (Nig) Ltd (2007) ALL FWLR pt.365 page 438.
Time begins to run for the purposes of the Limitation Law from the date the cause of action accrues. Jallco Ltd Vs. Owoniboys Tech Servo Ltd (1995) 4 NWLR pt 391 page 534.
In Akwa Ibom State, S. 16 of the Limitation Law Cap 78 provides as follows:
“No action founded on contract tort, or any other action not specifically provided for in parts 1 & 11 of this Law shall be brought after the expiration of five (5)years from the date on which the cause of action accrued”
It is trite that a legal right to enforce an action is not a perpetual right, but a right generally limited by Statute. Therefore, a cause of action is said to be statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law or Act had elapsed. Adeosun Vs. Jibesin (supra)
By virtue of the Limitation Law Akwa Ibom State, a right of action for breach of contract is extinguished five (5) years after the date on which the cause of action accrued.
Egbe Vs. Adefarasin (1982) 1 NWLR pt 4t page 20, British Airways Vs. Akinyosoye (1995) 1 NWLR pt 374 page 722, Yakubu Vs. NITEI- Ltd (2006) 9 NWLR Pt. 985 page 376.
“Where, therefore, a law provides for bringing an action within a stipulated time any action brought thereafter will be statute barred. Egbe Vs. Adefarasin (supra) Akanbi vs. Gnagnatum (1984) 5 NCLR page 722.” PER UZO I. NDUKWE-ANYANWU, J.C.A.
Before Their Lordships
MOHAMMED LAWAL GARBAJustice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJUJustice of The Court of Appeal of Nigeria
Between
EDET O. ENIANGAppellant(s)
AND
MOBIL PRODUCING NIG. UNLTD & ORSRespondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): The Appellant was the plaintiff in the court below. The Appellant sued the Respondents and claimed as per his writ as follows:-
(1) N10,675,000.00 (Ten Million Six Hundred and Seventy Five Thousand Naira) being remunerations (salary, allowances and other entitlements) that accrued to the plaintiff under his employment with the 1st defendant from September, 2000 to the time of filing of this suit, May 2008.
(2) Payment of all salaries, allowances and other entitlements accruing under his employment with the 1st defendant from May, 2008 till the date of the judgment.
(3) An order that the plaintiff be accorded promotion on the job to be at par with his mates who are on the rank of sergeant in the Security Unit of the 1st defendant and also to be paid arrears of salaries and allowances shortfall from the time due for the promotion to date.
(4) N15,000,000.00 (Fifteen Million Naira) for general damages suffered by the plaintiff.
(5) A declaration that the indefinite suspension of the plaintiff from duty without pay was wrongful, punitive, without any good cause, null and void.
The Appellant in his statement of claim pleaded that he was employed by the 1st Respondent vide letter of offer of employment dated 23rd October, 1996. After his employment, the Appellant was sent to the police Training School at Calabar to undergo Police Basic Training. He was later sent on Mobil Safety Orientation Training. The Appellant was subsequently suspended indefinitely from his employment on 15h September, 2000. The Appellant thereafter brought a civil suit against the Respondents on 3rd June, 2008.
At the inception of the suit, the Respondent filed a motion stating that the trial court had no jurisdiction to deal with the suit as it was statute barred. The trial Judge in his ruling held as follows:-
“that the plaintiffs action in suit No HER/60/2008 is statute barred and should be dismissed, and I accordingly dismiss it”.
Being dissatisfied, the Appellant filed his notice and I ground of appeal on 3rd November, 2009. Later the Appellant filed an amended notice on 1st April, 2011 which was deemed properly filed and served on 9th June, 2011. The Appellant now filed 2 grounds of appeal and articulated 2 issues for determination as follows:-
1. Whether the suspension of the Appellant from duty without more, crystallized a cause of action cognizable in law. (GROUND TWO)
2. Whether considering the material averments in paragraphs 8, 16, 17, 18 and 19 of the statement of claim before the lower court, the Appellant action was based on suspension and same is statute barred. (GROUND ONE)
In reply, the Respondent filed their brief on 21st June, 2011 and articulated just one issue namely:-
“whether the cause of action in this suit as formulated by the Plaintiff/Appellant in his statement of claim is statute barred.
This appeal is hinged on:
“whether or not the suit instituted in the lower court on 3rd June, 2008 was statute barred.”
The learned counsel to the Appellant submitted that it is settled law that an employer can suspend his employee in appropriate situation. See Ayewa Vs. UNIJOS (2000) 6 NWLR pt 659 page 142 which was followed in Amadiume Vs. Ibok (2006) 6 NWLR pt. 975 page 158 where Omokri JCA (of blessed memory) held:
“It is well settled law that a master can suspend his servant when necessary. An employer can suspend his employee when necessary. That cannot amount to breach of the servants or employee’s right.”
Counsel argues that suspension in itself does not amount to a breach of the contract of service. Also suspension does not amount to termination of contract or dismissal of the employee. See Longe Vs. FBN Plc (2010) 6 NWLR pt 1189 page 1, Isiaga Vs. UNICAL (2004) 7 NWLR pt. 872.
Counsel submits that a cause of action is a combination of facts (events) or the operative fact that gives a person a right to judicial relief. Egbe Vs. Adefarasin (1987) 1 NWLR pt. 47 page 1, Adekoya Vs. FHA (2008) 11 NWLR pt 1099 page 539. Counsel submitted further, that the act of suspension as at 1st September, 2000 was inchoate and no cause of action had risen at that point. Suspension is usually a prelude to dismissal from employment.
Counsel urges the court to hold that suspension was not sufficient to give rise to a cause of action cognizable in law in a contract of employment based on a master/servant relationship.
Counsel argues further that suspension was not the cause of action but that the Respondents refused to lift the suspension and also denied being the Appellant’s employer. This therefore brought the contract of service to an end. Counsel submitted that it was at this material point in time, did a cause of action accrue. Thus time began to run for the purposes of the statute of Limitation on 6th February, 2008. Counsel urged the court to hold that the cause of action accrued on 6th February, 2012 when the Appellant was denied by the Respondent and not on 15th September, 2000 when the Appellant was suspended.
In his reply the learned counsel to the Respondent prayed the court to dismiss this action for being statute barred.
Counsel stated that:
“it is a fundamental principle of law that it is the claim of the plaintiff which determines the jurisdiction of the court”
See Amadiume vs. Ibok (supra), A. G. Anambra State Vs. Attorney General of the Federation (1993) 6 NWLR pt. 302 page 692.
From the facts pleaded, in the statement of claim and the reliefs, it is clear that the Plaintiff/Appellant’s case is the fact of the indefinite suspension without pay of the Appellant. The Appellant also made monetary demands alleging that the suspension was wrongful, punitive, without any good cause, null and void.
Counsel argued that the case of Amadiume Vs. Ibok (supra) and Longe vs. FBN Plc (supra) are not on all fours with the instant case. Counsel distinguished these cases with the present appeal and urged the court to hold that a letter of suspension is actionable if it breaches your contract with your employer or your right as provided by law. Counsel stated that in paragraph 11 of the Statement of Claim the Appellant alleged that the 2nd Respondent was collecting his salaries during his suspension. These are serious breaches that are actionable.
Also the trial Judge in his judgment referred to SPDC Vs. Lawson Jack where Uwaifo JCA (as he then was) held:
“…this does not mean that suspension pending investigation does not give rise to a cause of action”
Counsel finally submitted that the cause of action in this appeal arose on 15th September, 2000. Counsel therefore urged the court to follow the case of NPA Vs. Lotus Plastics Ltd (2005) 12 SC pt 1 page 19 where Mahmud Mohammed JSC said:
“The general principle of law is that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the Plaintiff, proceedings shall not be brought after the time prescribed by the statute. Therefore an action brought outside the prescribed period is contrary to the provisions of the law and does not give rise to a cause of action”.
Counsel urges the court to dismiss this appeal and uphold the judgment of the court below.
In considering this appeal, the sole issue articulated by the Respondent captures the gravamen of this appeal and as such I will use it in determining this appeal.
Was the cause of action in the suit in the court below statute barred? To answer this question, I shall first discuss what a cause of action is.
“A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to a right to sue and it consists of two elements; for example, the wrongful act of the defendant which gives the plaintiff his cause of complaint; and the consequent damage. Adesokan vs. Adegorolu (1997) 3 NWLR pt 493 page 261, Afaji Vs. Milad Ondo State (1997) 5 NWLR pt 504 page 232, Rhein Mass Und See GMBH Vs. Railway Lines Ltd (1998) 5 NWLR pt 549 page 265. Emiator Vs. Nigeria Army (1999) 12 NWLR pt 631 page 362, Agbanelo Vs. UBN Ltd (2000) 4 SC pt 1 page 233, Oduntan Vs. Akibu (2000) 7 SC pt 11 page 106.
A cause of action is also the factual situation which a plaintiff relies upon to support his claim, recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. The factual situation must however constitute the essential ingredient of an enforceable right as claimed. See Asaboro Vs. Pan Occean Oil (Nig) Ltd (2006) 4 NWLR pt 971 page 595, Mobil Oil Plc Vs. D. E N. R Ltd (2004) 1 NWLR pt 853 page 142.
A cause of action arises on the date of the event whereby the cause of action becomes complete so that the aggrieved party can begin and maintain his action. See Shell Petroleum Dev. Co. (Nig) Ltd Vs. Farah (1995) 3 NWLR pt 382 page 148 Alese Vs. Aladetuji (1995) 6 NWLR pt 403 page 527, Adeosun Vs. Jibesin (2001) 14 WRN page 106.
To determine whether the suit is statute barred, the court must determine when the cause of action arose. The Appellant in the court below posed the question,
“whether the cause of action began to run at the time of the suspension of the plaintiff or at the time the applicants refused to lift the suspension on the plaintiff.
The cause of action in this case arose on the date of the event whereby the cause of action becomes complete. What is the event in this case? Is it the Indefinite Suspension or the time the Respondent refused to lift the suspension on the plaintiff?
To my mind, the event on this case is the “indefinite suspension” which occurred on 15th September, 2000. It would be recalled, that the Appellant had already filed a suit in the year 2000 against, the 1st and 2nd Respondent in Suit HEK/150/2000. This only goes to show that the Appellant acknowledges that a cause of action has accrued hence the suit in 2000. Refusing to lift the indefinite suspension is not a bigger event than the indefinite suspension itself.
The Plaintiff/Appellant himself recognizes that the cause of action accrued on 15h September, 2000 in his writ of summons which states as follows:
“The Plaintiff is an employee of the 1st defendant under her Security Unit. On 15th September, 2000 the 1st defendant by a letter signed by the 2nd defendant purportedly suspended the plaintiff from work indefinitely without pay and thereby caused the plaintiff to suffer losses and pains”
Running through the plaintiff’s claim it all hinged on the date of the Indefinite Suspension which is 15th September, 2008. Is there any event bigger than his indefinite suspension? That is the date the cause of action accrued. There was some one to be sued and somebody to sue and the wrong or otherwise is already in existence and all the necessary materials to use in this case are available.
There is no doubt that the cause of action accrued on the 15th September, 2000. The letters and information therein does not add to the substance of the event in any way. I therefore hold that the cause of action accrued on 15th September, 2000, the date the letter for the indefinite suspension was written.
The next question is whether the suit instituted in the year 2008 is statute barred.
“where a Statute of Limitation prescribes for a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus an action instituted after the expiration of the prescribed period is said to be statute barred. Ogunko Vs. Shelle (2004) 6 NWLR pt 868 page 17. Osun State Govt Vs. Dalami (Nig) Ltd (2007) ALL FWLR pt.365 page 438.
Time begins to run for the purposes of the Limitation Law from the date the cause of action accrues. Jallco Ltd Vs. Owoniboys Tech Servo Ltd (1995) 4 NWLR pt 391 page 534.
In Akwa Ibom State, S. 16 of the Limitation Law Cap 78 provides as follows:
“No action founded on contract tort, or any other action not specifically provided for in parts 1 & 11 of this Law shall be brought after the expiration of five (5)years from the date on which the cause of action accrued”
It is trite that a legal right to enforce an action is not a perpetual right, but a right generally limited by Statute. Therefore, a cause of action is said to be statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law or Act had elapsed. Adeosun Vs. Jibesin (supra)
By virtue of the Limitation Law Akwa Ibom State, a right of action for breach of contract is extinguished five (5) years after the date on which the cause of action accrued.
Egbe Vs. Adefarasin (1982) 1 NWLR pt 4t page 20, British Airways Vs. Akinyosoye (1995) 1 NWLR pt 374 page 722, Yakubu Vs. NITEI- Ltd (2006) 9 NWLR Pt. 985 page 376.
“Where, therefore, a law provides for bringing an action within a stipulated time any action brought thereafter will be statute barred. Egbe Vs. Adefarasin (supra) Akanbi vs. Gnagnatum (1984) 5 NCLR page 722.”
In Akwa Ibom State the Limitation Law stipulates a period of 5 years. If the cause of action accrued on 15th September, 2000 the Appellant is duty bound to institute his action before the expiration of 5 years as provided in the Limitation Law Akwa Ibom State.
The Appellant in this case instituted his action against the Respondents in 2008, almost 8 years after the cause of action accrued. The reason behind Limitation Law is to ginger litigants into instituting actions to remedy a wrong within time. When suits are not instituted on time especially for institutions and co-operate bodies, the witnesses might have left the service of the company, and facts become hazy. Sometimes after a long period the actions are taken to be vexatious as the employees who are conversant with the events have long since retired or in some cases dead.
At the end of the limitation period provided by statute an aggrieved person still has a cause of action but unfortunately nowhere to ventilate it, as in this case.
I therefore hold that even though the Appellant has a cause of action but it is statute barred by effluxion of time.
The sole issue in the appeal is resolved in favour of the Respondent and against the Appellant. This appeal is therefore unmeritorious and hereby dismissed.
Cost of N150,000.00 to the Respondents against the Appellant.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the lead judgment written by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA, in this appeal and agree that the Appellant’s right of action has been rendered unenforceable by effluxion of the time prescribed by statute for the action. In other words, the Appellant’s suit was statute bared for being initiated or commenced outside or after the expiration of the time prescribed by statute barred for being initiated or commenced outside or after the expiration of the time limited for so doing. I join in dismissing the appeal in the terms of the lead judgment.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading before now the lead judgment of my learned brother, Uzo I. Ndukwu-Anyanwu, JCA dismissing this appeal for being unmeritorious. I agree entirely with this conclusion as well as the reasons therefore. I also dismiss the appeal and abide by the award of N50,000.00 costs in favour of the Respondents.
Appearances
EMMANUEL SANI Esq.For Appellant
AND
EDET BASSEY, Esq.For Respondent
