ILEMOBAYO EHINMOSAN v. NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR
(2019)LCN/13867(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of March, 2019
CA/B/401/2010
RATIO
CAUSE OF ACTION: HOW TO DETERMINE THE CAUSE OF ACTION OF A PARTY
In this regard, I am inclined to rely on the decision of this Court also cited by the Appellant?s counsel. That is the case of AGBONIKE VS. UNIVERSITY OF ABUJA (2014) All FWLR (PT. 715) 336 wherein it was held per Akomolafe Wilson JCA that:
In the determination of the cause of action of a plaintiff, there must be a community reading of all the averments in the writ of summons and statement of claim. The reliefs sought must not be read in isolation of the other facts in the statement of claim. If the totality of the pleadings were taken into consideration by the learned trial Judge, it would have been clear that the opportunity for an appeal signifies the fact that there was still an avenue for re-consideration of the decision of the audit panel that reduced the grade of the appellants. The accrual date for cause of action for purpose of limitation is the crystallisation of the circumstances that warrant the plaintiffs to file an action against the defendant. A cause of action can only crystalise when all the remedies available to the plaintiffs have been exhausted before he can ventilate his grouse against the defendant.?
I am not unmindful of the Supreme Court?s decision in EBOIGBE VS. NNPC (1994) 5 NWLR (PT. 347) 649 strongly relied upon by the learned trial Judge to the effect that when in respect of a cause of action, the period of limitation begins to run, it is not broken and, it does not cease to run merely because the parties engaged in negotiation. See also A.G. ADAMAWA STATE & ORS. VS. A.G FEDERATION (2014) LPELR 23221 (SC). I humbly bow to the superior wisdom of their Lordships of the Apex Court which I must follow where necessary. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
STATUTE OF LIMITATION: EFFECT OF EXPIRATION OF PERIOD PRESCRIBED BY STATUTE OF LIMITATION
It is therefore an established principle of law that where a statute of limitation prescribes a period within which an action should be instituted against any perceived wrong, legal proceedings cannot properly or validly be instituted after the expiration of the prescribed period. Hence an action instituted after the expiration of the period prescribed by the relevant statute is said to be statute barred. See ANUKWU VS. EZE (2012) 11 NWLR (PT. 1310) 50; CPC VS. INEC (2011) 18 NWLR (PT. 1279) 493; SPDC (NIG) LTD VS. PANAMA INCORPORATION (2002) 3 SCM; OBI VS. ONYEMELUKWE (2011) 1 NWLR (PT. 1228) 400; DENCA SERVICES LTD. VS. IFEANYICHUKWU (OSONDU) CO. LTD & ORS. (2013) LPELR 22005 (CA).
LIMITATION PERIOD: WHEN TIME BEGINS TO RUN
It is also settled law that time begins to run for the purpose of the Limitation Law from the date the cause of action accrues. See ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT. 971) 595; OGUNKO VS. SHELLE (2004) 6 NWLR (PT. 868) 17; SPDC LTD VS. FARAH (1995) 3 NWLR (PT. 382) 148. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
LIMITATION PERIOD: HOW TO COMPUTE
For the purpose of computing the period of limitation, the central focus is on the writ of summons and the statement of claim filed by the plaintiff. See EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) page 1. Also in A.G. ADAMAWA STATE & ORS. VS. A.G FEDERATION (2014) LPELR 23221 (SC), the Apex Court per Ariwoola JSC at pages 52 to 53 made the point clearer as follows:
?In the computation of the period of limitation, what materials are to be considered? The law is already settled that the period of limitation is to be determined by looking at the writ of summons and the statement of claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiff?s cause of action was committed and by comparing that date to the date on which the action was commenced with the filing of the writ of summons. In which case, if the time contained in the writ of summons or statement of claim as the time the cause of action arose is beyond the period allowed by the limitation law, then the action is definitely statute barred. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
ILEMOBAYO EHINMOSAN Appellant(s)
AND
1. NIGERIAN NATIONAL PETROLEUM CORPORATION 2. INTEGRATED DATA SERVICES LIMITED Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): By a writ of summons and statement of claim filed on 11/5/2007, the Appellant herein as plaintiff in the trial Court claimed the following reliefs against the Defendants (now respondents):
?WHEREOF the Plaintiff claims against the Defendants jointly and severally among other things as follows:
(a) A declaration that the Plaintiff followed due process in purchasing Peugeot 504 saloon car with Registration Number Lagos AU 421 LSR from the Defendants.
(b) A declaration that the seizure/take-over, detention and conversion of the said car (Lagos AU 421 LSR) by the Defendants was wrongful.
(c) An order directing the Defendants to return the car to the Plaintiff in the condition it (the car) was when it was wrongfully taken from him, or in the alternative, pay the Plaintiff the sum of N2,000,000.00, being the value of the car at the time of the wrongful seizure/take-over.
(d) An order of Court directing the Defendants to pay the Plaintiff the sum of N12,660,000.00 being the cost of hiring a car of the Make of Lagos AU 421 LSR in Benin City from 8 June, 2004 to 30 April, 2007 at the rate of N12,000.00 per day.
(e) An order of Court directing the Defendants to pay the plaintiff the sum of N12,000.00 per day being the cost of hiring a car of the Make of Lagos AU 421 LSR in Benin City from 1 May, 2007 to the day of judgment.
(f) An order directing the Defendants to pay the Plaintiff the sum of N2,000,000.00 being general damages for the wrongful seizure/take-over and conversion of Plaintiff?s car by the Defendants.?
The Appellant?s case is that he was employed by the 2nd Respondent which is a subsidiary of the 1st Respondent in 1979. In 1995 he was promoted to the rank of Chief Officer and in 1996 a 504 Peugeot Salon car was allocated to him as an operational vehicle and upon being promoted to the rank of Deputy Manager he was by the staff policy entitled to be given a new car as status car but due to the inability of the management to provide one, they decided that the Appellant should retain the operational vehicle as his status car, which by NNPC Staff Benefits Monetization Scheme he has the option to buy when the vehicle is six years old. On 3/11/2003, he purchased the car from the 2nd Respondent for the sum of N97,305.00 and change of ownership was effected. Thereafter the Appellant refurbished the car with the sum of N716,605.05. However on 8//6/2004 the 2nd Respondent recovered the car back from the Appellant and while internal remedies were being explored with the 2nd Respondent to return the car or refund the Appellant the cost of refurbishing the car, the Appellant was compulsorily retired from service on 1/8/2006.
The Appellant then had no choice than to institute the action on 11/5/2007, seeking the reliefs as earlier set out.
Sequel to the exchange of pleadings by the parties, the Respondents filed a motion on notice challenging the jurisdiction of the Court to entertain the suit on the ground that the action is statute barred by virtue of Section 12(1) of the NNPC Act Cap 320 laws of the Federation 1990.
Upon hearing of arguments on the said motion, the trial Court in a Ruling delivered on 30/6/2010 dismissed the action on the ground that it has no jurisdiction to entertain same because it is statute barred having not been filed within twelve months after the cause of action arose by virtue of Section 12(1) of the NNPC Act.
The Appellant being dissatisfied with the said Ruling filed a Notice of Appeal on 8/7/2010.
Upon transmission of Record of Appeal to this Court, the parties filed and served their respective briefs of argument which they adopted and relied on at the hearing of the appeal on 23/1/2019.
In the Appellant?s brief of argument settled by R.O. Isenalumhe Esq., and filed on 10/1/2018, the following two issues were formulated for determination:
?(1) Whether the trial Court was right in dismissing the Appellant?s claim on the grounds that the suit is statute barred. (Grounds 1 & 2)
(2) Whether the wrongful act complained of by the Appellant against the Respondents was not a continuing act, the time the suit was filed on the 11/5/2007. (Grounds 1 & 2)
The Respondents? brief of argument was settled by Chief F.O. Orbih (SAN) FCIArb with P.E. Ebuehi Esq and filed on 31/1/2018. A sole issue was distilled therein for determination as follows:
?Whether the trial Court was right in dismissing the Appellant?s claim on the ground that the suit was statute barred having regard to the facts and circumstances of this case.?
However as rightly pointed by the Respondents? counsel, the Appellant?s issue 2 is already embedded in his first issue which incidentally is in tandem with the sole issue raised by the Respondents.
I will therefore adopt the said sole issue as raised by the Respondents in the resolution of this appeal.
Dwelling on this issue, learned counsel for the Appellant submitted that the learned trial Judge was wrong in dismissing the Appellant?s suit on the ground that it was not brought within 12 months after the alleged wrongful seizure of his car by the 2nd Respondent.
Counsel contended that from the facts averred in the statement of claim and the reliefs contained in the writ of summons, time did not start running against the Appellant from the date he surrendered the vehicle in issue to his employer but from the 1st day of August 2006 when the 2nd Respondent retired the Appellant compulsorily from service without returning the car to him or refund the cost he incurred in refurbishing the said car.
He added that for the purpose of limitation of time for action, time begins to run from the moment the cause of action arose and that is when the facts that are material to be proved happened.
It was further submitted that in determining the cause of action, there must be community reading of all the averments contained in the statement of claim and the reliefs sought in the writ of summons. He cited the case of AGBONKA VS. UNIVERSITY OF ABUJA (2014) All FWLR (PT. 715) 336 AT 353 and NPA VS. AJOBI (2006) All FWLR (PT. 330) 1006.
Learned counsel therefore argued that by a community reading of the averments in the statement of claim and the reliefs sought in the writ of summons as filed by the Appellant, it would be revealed that the cause of action arose in August 2006 when the 2nd Respondent compulsorily retired the Appellant without returning the status car already allocated to him nor pay him the sum of N716,605.05k being the cost of refurbishing the said car by the Appellant who then commenced the action on 11/5/2007.
It was also submitted that having regard to the provisions of the 2nd Respondent?s Corporate Policy and Procedure Guides (CPPG), it was not possible for the Appellant to file any action against the 2nd Respondent as an employee who was bound to comply with the said (CPPG).
Therefore, it was upon retirement that the Appellant was able to sue the 2nd Respondent, moreso that the only remedy available to the Appellant while still an employee were internal remedies which were still being explored before his compulsory retirement. In this regard, the cause of action did not arise until he was retired in 2006 and he filed the suit on 11/5/2007 which is within the 12 months provided by Section 12(1) & (2) of the NNPC Act LFN 1990.
Further in their issue 2, learned counsel submitted that the trial Court was wrong when it held that the action is statute barred, when infact, as at the time of commencing the action on 11/5/2007, the wrongful act done to the Appellant by the Respondents was a continuous one. In this regard learned counsel referred to paragraphs 39, 40, 47, 48, 49, 51 and 55 of the statement of claim.
In support of h
