Dunlop Nigeria Plc V. Olubode Fadeyi (2002)
LawGlobal-Hub Lead Judgment Report
O. ADEREMI, J.C.A.
The appeal here is against the ruling of the High Court of Lagos State (coram Holloway J.) delivered on 23rd July 1999 striking out, in limine, the motion of the defendant (hereinafter referred to as the appellant) dated 8th April 1997 praying the court for the following orders:-
(1) an order striking out the writ of summons and statement of claim in this suit the claim having been statute-barred.
OR
(2) an order striking out the writ of summons and statement of claim for disclosing no reasonable cause of action and for being frivolous and vexations.
The respondent, who was the plaintiff in the court below, had by a writ of summons filed on 12th March 1997 claimed from the defendant/appellant as follows:-
the plaintiff’s claim is for the sum of N2,000,000.00 being general damages for injuries suffered by the plaintiff in consequence of an industrial accident in the course of his duty as an operator for the defendant at the defendant’s factory at Ikeja within the jurisdiction of this Honourable Court.
The accident, according to the plaintiff/respondent, was due to lack of provision and maintenance of a safe system of work at the defendant/appellant’s factory. Pleadings in terms of statement of claim and statement of defence were filed and exchanged between the parties. In paragraphs 4 and 9 of the statement of claim the plaintiff/respondent averred:
Para 4
“On or about the 16th of August 1991 plaintiff in the course of his said employment in the night shift at Let Off Section of the defendant’s said factory was injured when the machine which he was operating called Four Roll Stand hook his hand.”
Para 9
The said injuries and loss and damage were occasioned to the plaintiff by reason of negligence and/or breach of duty and/or breach of the said contract of employment on the part of the defendant its servants or agents.
The defendant/appellant’s response to paragraphs 4 and 9 of the statement of claim reproduced supra is as contained in paragraphs 4 and 5 of the statement of defence which read:
Para 4
Further the defendant denies that the alleged injury suffered by the plaintiff was caused or occasioned by the alleged or any breach of contract on the part of the defendant and the defendant is not in law liable for the alleged injury.”
Para 5
“The defendant shall contend at the trial of this suit that the alleged cause of action did not arise within 3 years before this action was commenced and same is barred by section 9 (1) and (2) of the Limitation Law Cap 70, Laws of Lagos State of Nigeria, 1973.
The application of the defendant/appellant dated 8th April 1997 was supported by a 7 paragraph affidavit. In paragraphs 4 and 5 of the supporting’ affidavit the defendant/appellant had deposed:
Para 4
“That according to the statement of claim the cause of action in this suit accrued well over 3 years preceding the day this action was instituted.
Para 5
That I am informed by one Mr. Kayode Adam of counsel, and I verily believe him that in view of the averment in paragraph 4 above this action has become statute-barred by operation of the Limitation Law for the time being in force in Lagos State.
The plaintiff/respondent in re-acting to the application of the defendant/appellant praying the court to strike out his suit for reason of being statute barred filed a counter affidavit on 1st April 1998; paragraphs 4, 5 and 6 of this process which are germane to the consideration of this appeal read:-
Para 4
That the defendant admitted liability for injuries sustained by me on 16th August 1991 and immediately started taking steps to determine the quantum of damages/compensation payable to me by its insurer N.E.M. Insurance Plc.
Para 5
That steps towards the payment of compensation to me by defendant’s insurer still extended till 10th October 1996 when the defendant advised me to present myself for re-examination for purposes of payment of by its insurer. Copy of the said letter is attached and marked Exhibit A.
Para 6
That I could not commence this action prior to the time my appointment was terminated on 13th August 1996 moreso in view of the defendant’s admission of liability and efforts being made to pay compensation to me through its insurer.
Arguments of counsel in respect of the afore-mentioned application were taken by the learned trial judge. In a reserved ruling delivered on 23rd July 1999, the learned trial judge in refusing the said application and making an order that it be struck-out, had reasoned thus:
“Now this letter is between the defendant/company and its insurer – NEM Insurance Plc. The plaintiff on his part is only being used as the subject matter for negotiation would we say because of this the statutory period of limitation has been revived?
I am more persuaded that this case would need evidence to be given and the witness cross – examined in order to determine if the letter Exhibit A a copy of which had been sent to the plaintiff by the defendant company has revived the statutory period.
It is only based on this that the court will refuse the application as made by the defendant.
The motion is therefore struck-out.
Steps should be taken by the plaintiff for the hearing of the matter.
Dissatisfied with this ruling, the defendant/appellant has appealed to this court upon a Notice of Appeal filed on 17th September 1999 which carries two grounds. Distilled for determination and as set-out in the brief of argument of the defendant/appellant is one single issue which is in the following term:
“Whether the trial judge ought to have admitted Exhibit A and rely on it to come to the conclusion that this case would need evidence to be given and witness cross-examined in order to determine if Exhibit A has revived the statutory period and whether the admissibility of such evidence of reliance thereon did not occasion a miscarriage of justice?
When this appeal came before us on 16th October 1992, Mr. Opanubi learned counsel for the appellant adopted his client’s brief filed on 16/2/01 and the Reply brief filed on 17/5/2001 and urged that the appeal be allowed. Mr. Kolawole of counsel for the respondent adopted his client’s brief filed 15/3/01 and urged, that the appeal be dismissed.
I have carefully gone through the brief of argument of the respondent it would seem that he has not formulated any issue for determination. Rather, he was attacking the only issue identified by the appellant for determination as being a play to defeat the ends of justice and causing unnecessary delay in the determination of the suit as ordered by the learned trial judge. The resolution of this appeal will therefore rest on the only issue identified by the appellant.
The Exhibit A referred to in the ruling of the learned trial judge is a letter dated 10th October 1996 addressed by N.E.M. Insurance Plc. to the Company Secretary/Legal Adviser of the defendant/appellant. It was attached to the counter-affidavit of the plaintiff/respondent as Exhibit A. In particular, reference to it was in paragraph 5 of the said process. Exhibit A attached to the counter-affidavit is the letter dated 10th October 1993 between the defendant/company and its insurer N.E.M. Insurance Plc. Suffice it to say that a copy of the letter was sent to the plaintiff/respondent.
That was the letter that informed the refusal of the trial court of the prayer in the application and the consequent striking out of same. Was the trial judge right in law in referring to such a document? I shall start in proffering an answer to this question by saying that the period of limitation begins to run from the moment a cause of action arose. And a cause of action can be said to have arisen when there is a plaintiff who has the legal right to seek a redress in court and there is that person, (a defendant) against whom the redress can be sought and the cause for seeking the redress is justiciable see (1) SANDA VS. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT 174) 379 and (2) EMIATOR VS NIGERIAN ARMY & ORS (1999) 12 NWLR (PT 630) 362.
In the determination of the issue whether a cause of action is statute – barred in the sense that it was filed outside the limitation period all that the trial judge should cast a search light on are only the writ of summons and the statement of claim to see when the alleged wrong was committed which gave the plaintiff the cause of action and comparing same with the date on which the writ was filed. This practice does not admit of taking evidence to determine it see EGBE VS. ADEFARASIN (1987) 1 NWLR (PT 47) 1. Reference must not be made to any other document or court process. In paragraph 4 of the statement of claim the plaintiff/respondent averred:
“On or about the 16th day of August, 1991, the plaintiff in the course of his employment in the night shift at Let Off Section of the defendant’s said factory was injured when the machine, which he was operating called Four Stand hook his hand.
A quick look at the writ shows that it was filed on 12th March 1997. It thus took the plaintiff/respondent about 5 years 7 months. Section 9 (1) and (2) of Limitation Law Cap 118, Laws of Lagos State of Nigeria 1994 which is relevant to this case provides:-
9(1)
This section applies to actions claiming damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an enactment or independently of any contract or of any such provision) where the damages claimed by the plaintiff for the negligence, nuisance, or breach of duty consist of or include damages in respect of personal injuries to any person.
9(2)
Subject to the provisions of this section, no action to which this section applies shall be brought after the expiration of three years from the date on which the cause of action accrued (underlining for emphasis)
It is therefore clear that the action is statute-barred. The only issue raised for determination is answered in the negative.
This appeal therefore succeeds. The judgment of the court below is set-aside while I order that the claim of the plaintiff/respondent be dismissed in toto.
There shall be no order as to cost.
Other Citations: (2002)LCN/1313(CA)