Nalsa And Team Associates V. Nigerian National Petroleum Corporation (1996)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

In the Port Harcourt Judicial Division of the High Court of Justice, Rivers State, the plaintiff, who is now the appellant, caused a writ of summons to issue against the defendant, who is now the respondent, claiming the sum of N500,000.00 being special and general damages for alleged breach of contract. The cause of action is said to have arisen as the result of a letter dated the 10th day of April, 1979 written by the defendant to the plaintiff terminating a contract between the parties.

Pleadings were subsequently ordered in the suit and were duly settled, filed and exchanged with the same further amended by various orders of the trial court.

The defendant in its amended Statement of Defence raised the issue that the plaintiff’s claim was statute-barred by virtue of the provisions of section 11 of the Nigerian National Petroleum Corporation Act. No. 33 of 1977. This was followed by a formal application on notice by the said defendant for the dismissal of the plaintiff’s action by reason of the fact that it was statute-barred as afore-said.

Section 11 (1) of the Nigerian National Petroleum Corporation Act of 1977 provides thus –

“11 (1) Notwithstanding anything in any other enactment, no suit against the Corporation, a member of the Board or any employee of the Corporation for any act done in pursuance or execution of any enactment or law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any Court unless it is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance or damages or injury, twelve months next after the ceasing thereof “.

The case for the defendant as deposed in its affidavit in support of the application was that although the cause of action arose on the 10th April, 1979, the suit was not commenced in court until the 13th February, 1981, that is to say, one year and ten months after the cause of action arose. The defendant contended that the action was therefore statute-barred by virtue of the said provisions of section 11(1) of the Nigerian National Petroleum Corporation Act. 1977.

The plaintiff’s answer to this averment as deposed in its own counter-affidavit was that following an understanding by the parties to waive or suspend the running of the limitation period prescribed under section 11(1) of the Nigerian National Petroleum Corporation Act. 1977, the parties went into negotiations for an out of court settlement of their dispute. The plaintiff contended that there was an understanding or agreement between the parties that the defendant would not plead the Statute of Limitation if the negotiations protracted beyond the period within which the plaintiff could lawfully file an action against the defendant in respect of the dispute.

In the light of the irreconcilably conflicting facts deposed in the affidavit and counter-affidavit of the parties, the trial court, as it was obliged to do, called for oral evidence from the parties and their witnesses with a view to resolving the said conflicts. See Joseph Falobi v. Elizabeth Falobi (1976) 9 – 10 S.C.1, Eboh and others v. Oki and others (1974) 1 S.C. 179 at 189 Uku and others v. Okumagba & 3 others (1974) 3 S.C. 35 at 56 etc.

At the conclusion of this hearing the learned trial Judge, Okara, J. in a considered ruling on the 26th day of November, 1986, held that the defendant had waived its right to rely on the plea of limitation of the action pursuant to the said section 11 of Decree No. 33 of 1977. The defendant’s application for the dismissal of the suit was accordingly refused.

Dissatisfied with the said interlocutory ruling, but without seeking the leave of either the trial court or the Court of Appeal, the defendant on the same 26th November, 1986 filed an appeal, otherwise also referred to as the first interlocutory appeal, against the said ruling to the Court of Appeal, Enugu Division on a two ground notice of appeal. These grounds complained as follows:-

“(i) The learned trial Judge misdirected himself in law and on the facts in holding that the photocopy of the letter dated 10th April, 1979 allegedly given to the Plaintiff constituted an agreement by the Defendant/Appellant not to rely on the statute of limitation i.e. Section 11 of the Nigerian National Petroleum Corporation Decree 1977.

PARTICULARS OF MISDIRECTION

(1) The original of the said letter was sent to Alhaji Hashim of the Defendant Corporation.