PRINCE TOM IKECHI EDEBOR v. ELF PETROLEUM NIGERIA LTD (2011)

PRINCE TOM IKECHI EDEBOR v. ELF PETROLEUM NIGERIA LTD

(2011)LCN/5055(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of July, 2011

CA/PH/130/2006

RATIO

DETERMINATION THE PERIOD OF LIMITATION IN A PARTICULAR CASE

In DR. CHARLES OLEDEUNDE WILLIAMS V. MADAM WILLIAMS (2008) 33 WRN 1, 17-18 Musdapher JSC delivering the read judgment explained how to determine the period of Limitation in a particular case thus: “It has been decided that the period of Limitation is only determinable by looking at the writ of summons and statement of claim alone to ascertain the alleged date of the wrong in question which gave rise to the plaintiff’s cause of action and by comparing that date the date on which the writ was filed if the time pleaded in the writ of summons on the statement of claim is beyond the period allowed by the Limitation Law the action is statute-barred. See WOHEREM V. EMEREUWA (2004) 35 WRN (pt.89) 23; SOLOMON V. AFRICAN STEAMSHIP & CO. (1928) 9 NLR 99; KONEY V. UJC 2 WACA 188.” In ascertaining the period of limitation the court must determine the period when all facts have happened which are material to be proved to entitled the plaintiff to succeed. See BOARD OF TRADE v. CAYNER IRVINE & CO. LTD (1927) AC. 10; COOKE V. GILL (1873) LR 1 QB 222, 242; WOLEREM JP V. EMERUWA & ORS (supra). PER. TUNDE OYEBANJI AWOTOYE, J.C.A.

WHETHER AN ACTION THAT IS STATUTE-BARRED IS LIMITED TO THE ON THE WRIT OF SUMMONS AND STATEMENT OF CLAIM

ON THE ISSUES OF PENSION PAYABLE TO EMPLOYEES

It needs be stated that issues of pension payable to employees of even private companies are covered by the provisions of the National Provident Fund 1961 and Nigeria Social Insurance Trust Fund Act 1993. By virtue of the two Federal Laws public fund into which contributions payable for pension of employees have been created. Section 1 of the 1993 Act states: “There is hereby established a fund to be known as the Nigeria Social Insurance Trust Fund (in this Decree referred to as “the fund” into which shall be paid all contributions and other manners as may be required to be paid or contributed under this Decree and which fund shall be operated, and managed as provided in this Decree.” This Decree, by virtue of section 315 of the 1999 Constitution became an existing law in force in the country. Section 10 of the 1993 Act is on coverage and exemptions. The Act covers:-
“every Person who
(a) Is employed by a company incorporated (or deemed to be incorporated) under the companies and Allied Matters Decree 1990…” among others. Section 16 of the Act is clearer on its ambit. It reads:
“16. Subject to this Decree, the following benefits shall be payable to or in respect of a contributor who has satisfied the applicable conditions prescribed by regulations made under this Decree that is –
(a) retirement pension benefits; or
(b) retirement grant; or
(c) survivors benefit; or
(d) death grant; or
(e) invalidity benefit; or
(f) invalidity grant; or
(g) such other benefit as may be approved from time to time by the Board.” PER. TUNDE OYEBANJI AWOTOYE, J.C.A.

Before Their Lordships

MUSA DATTIJO MUHAMMADJustice of The Court of Appeal of Nigeria

ISTIFANUS THOMASJustice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria

Between

PRINCE TOM IKECHI EDEBORAppellant(s)

AND

ELF PETROLEUM NIGERIA LTDRespondent(s)

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the appeal against the Ruling of E.N. Thompson J. of Rivers State High Court sitting in Port Harcourt delivered on 3/06/2005. The defendant in the court below had applied for the dismissal of the action of the plaintiff on the ground that the action was statute-barred. The court below after considering the submissions of learned counsel on both sides dismissed the action on the said ground that the action was statute-barred.
The plaintiff being aggrieved by the Ruling of the trial court filed on appeal to this court on 13/6/2005.
After the transmission of record of appeal to this court the plaintiff now appellant filed his brief of argument which was deemed filed on 15/6/09.
The Respondent, who was the defendant at the court below also cross-appealed. The Respondent subsequently filed Respondent’s/cross-appellants brief.
Counsel for each of the parties filed preliminary objection to the appeal and the cross-appeal respectively.
I shall first deal with the preliminary objections before considering the main appeal.
The arguments on the preliminary objection of the Respondent/cross-appellant to the appeal are incorporated into his brief on pages 25 – 29. The grounds of the Respondents objection are that “the issue as framed and apparently argued are a misnomer and highly imaginable.” The objection of the Respondent is well captured on page 26 of his brief where the submitted as follows:
“It is from this ground that issue No.3 – whether there are any facts in dispute to be established by evidence in this suit – was framed.
In our view, there is a fundamental difference, immediately noticeable, in what, on the one hand, the Ground of appeal complains about, or what it attacks, and what, on the other hand, the issue from which it is supposedly framed highlights. Whereas the complaint in the ground of Appeal is that my lord of the court below held that “for the purpose of determining the ‘objection’, there is no need to call evidence”, the issue 3 formulated form it questions whether, “in this suit” as opposed to ‘the objection’ whether there is any fact in dispute that needed to be established by evidence,
My lords, the difference between the objection and the suit are too, too fundamental to be ignored in that:
1. The learned trial court did not state that there was no need to call evidence in the suit;
2. This is not an appeal against the entire suit per see, as there was no hearing.
There is therefore, no correlation between the Ground of Appeal and the issue which ought to highlight and mirror the ground. In a long line of cases, the appellate courts have warned that ‘while Grounds of Appeal highlight the error being sought to be corrected in the judgment, the issues or question for determination emphasise the kernel of the reason for seeking the error.”
The appellant is his reply brief on page 8 relied as follows:
“The appeal the appellant brought before this Honourable court is not against the objection but on the entire suit. The suit was only determined through an objection. There is no other live issue or matter in respect of this suit that is still pending before the trial court. This appeal is not an interlocutory appeal, it is a substantive appeal. So whether “objection” is used or “in this suit” is used, the same refers to the suit since the same had been determined by the trial court through an objection.”
I have deeply considered the preliminary objection of the Respondent. I agree with the appellants’ counsel in his brief that the objection has no basis in law. Issue 3 as formulated by appellant relates to Ground 3 of the Grounds of appeal. See MANODU V. MOMOH (1991) 1NWLR (PT.169) 608. Issue 3 is based on the decision of the lower court against which the appeal is made. See DUROWODE V. THE STATE (2001) 7 WRN 50.
The preliminary objection of the respondent lacks merit. It is accordingly dismissed.
The appellant also filed preliminary objection against the cross-appeal which goes thus:
“That the condition precedent to the presentation of the ground of the cross-appeal was not fulfilled as no leave of court was obtained before filing same.”
This preliminary objection clearly lacks merit. The decision of Thompson J. delivered on 23/6/2005 was a final decision and an appeal from such decisions to the Court of Appeal is as of right see section 241(1) of the 1999 Constitution.
Without much ado, I hold that the preliminary objection lacks merit. It is also dismissed.
Now to the main appeal. Learned counsel for the appellant formulated 4 issues for determination. They are:-
“1) Whether the claim of the plaintiff is funded on the contract employment and therefore caught by section 16 of the Rivers State Statute of Limitation or is a legal right or capacity acquired as a results of the number of years of service to the defendant.
2) Whether subject of the suit which is pension, can be affected by the Rivers State statute of Limitation.
3) Whether there is any fact in dispute that needed to be established in evidence in this suit.
4) Whether the cause of action in pension matters arises only once learned counsel for the appellant citing several judicial authorities in his submissions on the four issues and finally urged the court to allow the appeal and set aside the decision of the learned trial court for the reason that: –
“1. The claim of the plaintiff is not founded in the contract of employment and therefore not caught by the provisions of section 16 of the Rivers state Limitation Law because there was no material before the trial court to reach this conclusion moreso when the claim of the plaintiff was clearly stated to be pension.
2. The claim for pension cannot be barred by the Rivers state statute of Limitation Law.
3. The learned trial judge rightly held that the appellant became entitled to be receiving his non-contributory pension from the defendant from 30th day of November, 1993.
4. The cause of action to pay pension arose first in November, 1993.”
The Respondent in its brief on the main appear and the cross – appeal formulated two issues in respect of the main appeal as follows:-
“(1) from the statement of claim of the plaintiff the contention of the plaintiff/appellant that he is entitled to the new improved scheme, is it not predicated or based on the contract of employment of the parties?
(2) If so, is the suit not statute barred having regard to section 16 of the Rivers State Limitation Law?”
The Respondent/cross-appellant formulated one issue for determination in his cross-appellant’s brief to wit:
“When did the plaintiff/ appellant disengage/retire from the defendant company. In 1992 or in 1993?”
Learned counsel for the Respondent/cross-appellant argued extensively on the issues formulated in the main appeal and the sole issue formulated in respect of the cross-appeal citing several authorities.
He finally urged the court to
(1) Allow the cross-Appeal is that the court below shut its eyes to the obvious, copious statements of the plaintiff in his statement of claim to the effect that it was in 1992 that he retired from the employment of the company and not in 1993 as the court held and
(2) Dismiss the main appeal in that
(a) The Plaintiff/Appellant claims that by a contract of employment and a pre-retirement contract which he had with the Defendant Company, it was agreed as he alleged he was assessed that he would be part of the beneficiaries of a future pension Scheme not in place when he retired.
(b) For more than B years when he did not get paid the said money he did not do anything until he finally wet to court relying on the contracts which are now caught by the statute of limitation.
(c) The case of CBN V. Amao so heavily relied on by the Appellant does not apply when the content of a contract is in issue as what was decoded in that case was whether, having been paying the pension before they stopped, could they hide under the public officers’ protection law to avoid continuing to pay.”
It must be noted at this juncture that there is no cross-respondents brief filed by the appellant/cross-respondent. However, I am not unmindful of Order 17 Rule 7 of the Court of Appeal Rules 2007.
“A respondent may without leave, include arguments in respect of a cross-appeal in his brief for the original appeal. I shall view the arguments in the above light.”
I have carefully considered the submissions of learned counsel on both sides,
It seems to me that the four issues formulated by the appellant are condensable into one broad issue.
Whether or not the learned trial judge was right to have dismissed the action on the ground that it was founded on contract and therefore statute barred. This sore issue in my respectful view embraces the two issues formulated by the Respondent in his brief.
I shall consider this appeal in the light of the above issue.
At the learned trial judge in his Ruling herd that the action was founded on a contract of employment between the parties. The learned judge held that section 16 of the Limitation Law of Rivers state was applicable and therefore dismissed the action as being statute barred. Section 16 of the Limitation Law of Rivers State states:
“16. Time limit for action in contract, tort etc.
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.”
The section applies to any action founded on contract, or tort other action not specifically provided for in part I and II of the Law.
It has been argued that the action of the appellant before the trial court was founded on pensions and so could not be governed by the Limitation Law of Rivers state, pensions being a matter under the Exclusive Legislative List under the 1999 Constitution.
In DR. CHARLES OLEDEUNDE WILLIAMS V. MADAM WILLIAMS (2008) 33 WRN 1, 17-18 Musdapher JSC delivering the read judgment explained how to determine the period of Limitation in a particular case thus:
“It has been decided that the period of Limitation is only determinable by looking at the writ of summons and statement of claim alone to ascertain the alleged date of the wrong in question which gave rise to the plaintiff’s cause of action and by comparing that date the date on which the writ was filed if the time pleaded in the writ of summons on the statement of claim is beyond the period allowed by the Limitation Law the action is statute-barred. See WOHEREM V. EMEREUWA (2004) 35 WRN (pt.89) 23; SOLOMON V. AFRICAN STEAMSHIP & CO. (1928) 9 NLR 99; KONEY V. UJC 2 WACA 188.”
In ascertaining the period of limitation the court must determine the period when all facts have happened which are material to be proved to entitled the plaintiff to succeed. See BOARD OF TRADE v. CAYNER IRVINE & CO. LTD (1927) AC. 10; COOKE V. GILL (1873) LR 1 QB 222, 242; WOLEREM JP V. EMERUWA & ORS (supra).

Ordinarily it is the defendant that raises the preliminary objection that should establish that the action of the plaintiff is statute -barred. see SAVANNAH BANK OF NIGERIA V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (1987) 1 SC 198. But the writ of summons and the statement of claim, if they supply the relevant facts needed, can relieve the defendant of the duty.

What is crucial in determining whether an action is statute-barred is not limited to the date on the writ of summons and statement of claim but the date when every fact necessary for the plaintiff to prove to support his right took place as can be determined initially from his pleadings or ultimately from the evidence. See THOMAS V. OLUFOSOYE (2004) 49 WRN 32.
In short, the writ of summons and the statement of claim of the plaintiff play a key role when this objection is raised.
Learned counsel for the appellant had submitted vigorously that the laws that govern pensions are, Federal Laws. He referred to pensions Act 1979 statutory corporation Pensionable officers (Retiring Age Limit) Act 19 72 and other laws. He submitted further that pension whether with respect to public or private sector is a creation of statute. He further referred to item 44 in the second Schedule Part I of the 1999 Constitution of Nigeria which puts pension in the exclusive legislative list. He cited the case of NWADI ARO & ORS V. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (1990) 5 NWLR (PT.150) page 322.
For ease of reference, I shall quote item 44 of the Exclusive Legislative List of the 1999 Constitution as follows:-
“Pension, gratuities and any other like benefits payable out of the consolidated Revenue find or any other public funds of the Federation.”
It is to the effect that pensions (for the purpose of this appeal) payable out of public funds are within the exclusive legislative list which can only be legislated upon by the National Assembly.
The Statement of Claim of the appellant (Plaintiff in the court below) refers to shall collective agreement which is pleaded, the contributory pension scheme and some letters.
It needs be stated that issues of pension payable to employees of even private companies are covered by the provisions of the National Provident Fund 1961 and Nigeria Social Insurance Trust Fund Act 1993. By virtue of the two Federal Laws public fund into which contributions payable for pension of employees have been created. Section 1 of the 1993 Act states:
“There is hereby established a fund to be known as the Nigeria Social Insurance Trust Fund (in this Decree referred to as “the fund” into which shall be paid all contributions and other manners as may be required to be paid or contributed under this Decree and which fund shall be operated, and managed as provided in this Decree.”
This Decree, by virtue of section 315 of the 1999 Constitution became an existing law in force in the country.
Section 10 of the 1993 Act is on coverage and exemptions. The Act covers:-
“every Person who
(a) Is employed by a company incorporated (or deemed to be incorporated) under the companies and Allied Matters Decree 1990…”
among others. Section 16 of the Act is clearer on its ambit. It reads:
“16. Subject to this Decree, the following benefits shall be payable to or in respect of a contributor who has satisfied the applicable conditions prescribed by regulations made under this Decree that is –
(a) retirement pension benefits; or
(b) retirement grant; or
(c) survivors benefit; or
(d) death grant; or
(e) invalidity benefit; or
(f) invalidity grant; or
(g) such other benefit as may be approved from time to time by the Board.”
Is the pension scheme a private pension scheme allowed under section 10(3) of the Act or the one to be drawn from the public fund? The facts disclosed in the statement of claim are not enough to jump to a conclusion on this. There is need to see the collective agreement and any other document relied on by the plaintiff. This is important because the statute of limitation relied upon is a state law which cannot limit the operation of Federal Law. See section 4(5) of the 1979 constitution. See also the following cases NWADIARO & ORS V. SPDC (supra). In S.P.D.C. V. FARAH & ORS (supra) where ONALAJA JCA at page 200 stated:
“It is even erroneous to apply the Statute Limitation Law to the Petroleum Act which is Federal Act whilst the Limitation Law is the law of the State. Where there is any conflict under on Constitutional law between a Federal Legislation and state legislation on the same issue the state legislation shall be void to that extent with the Federal Legislation superceding the same.” A State Law cannot limit what the Federal Law has not limited.
No matter how one looks at it the claim of the plaintiff on the face of it is for pension. According to paragraph 10 – 12 of the Statement of claim:-
“10. The plaintiff avers that by 1992 he had worked for about 19 years with the defendant and was due to retire in October, 1993 when he would have attained the retirement age of 55 years old.
11. The plaintiff avers that the concept of optional early retirement is that while the plaintiff was permitted to withdraw his service for the defendant, the defendant is obliged to pay to the plaintiff all his entitlement without exception for the period of possible service up to the due retirement time. The plaintiff avers that he is deemed to have worked with the defendant for (20) years, which by the reasons of the provisions of the staff collective agreement of the defendant and the provisions of the Nigerian Labour Laws are pensionable. The plaintiff shall at the trial rely on the collective agreement.
12. The plaintiff avers that as a union leader, he was personally involved in the negotiation of the staff welfare including Normal – pension scheme or non-contributory pension scheme which was later approved by the defendant on the 1st July, 1992 which took effect from 1st January, 1993. By this arrangement, every staff of the defendant was to be refunded the already accrued contribution, pension scheme provided the retirement comes after January, 1 1993.”
It is not a claim for salary arrears or allowances but a claim under the pension scheme though within a contract of employment. However with the statutory intervention in Nigeria social Insurance Trust Fund Act of 1993, it might be more than a mere contract matter covered by section 16(a) of Limitation Law of Rivers State.
I must state that enough facts have not been disclosed to enable one conclude that the action is statute barred. At least the processes filed so far have failed to do so. It is therefore in my respectful view erroneous for the learned trial judge to have dismissed the action when sufficient facts to justify such were not placed before it. It is the defendant that should establish that the action of the plaintiff is statute – barred. See SAVANNAH BANK OF NIGERIA LTD V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (supra).
I therefore resolve the sole issue is favour of the appellant. This appeal succeeds. It is hereby allowed.

Now to the cross-appeal.
As aforestated the cross-respondent has not filed any cross-respondent’s brief. I have gone through the appellants briefs filed and I am unable to see any answer to the issue raised in the cross-appellants brief. I however hold that the plaintiff stated that he was deemed to have retired in November 1993. Paragraph 15 of the statement of claim of the plaintiff is clear on this.
This cross-appeal in the circumstance lacks merit. It is hereby dismissed.
I hereby remit this Suit No.:PHC/1082/2002 back to the Hon. Chief Judge of Rivers State for re assignment to any other High Court Judge other than E. N. Thompson J. for determination with costs assessed as N30,000 in favour of the appellant.

MUSA DATTIJO MUHAMMAD (OFR), J.C.A.: I had a preview of the lead judgment prepared by my learned brother Awotoye JCA and entirely agree with him that the appeal should succeed while the cross appeal fails. I adopt his reasonings and conclusions to that effect as mine. I abide by the consequential orders the he made in the read judgment as well.

ISTIFANUS THOMAS, J.C.A.: I read before now, the lead judgment of my learned brother, Awotoye, JCA and I entirely agree that, the main appeal is allowed while the cross appeal is dismissed. I abide with the consequential orders including costs.

Appearances

Benjamin Obiora Esq.For Appellant

AND

W. Boms with S. C. Amadi and A. AghedoFor Respondent