Industrial Training Fund & Anor V. Nigerian Railway Corporation (2005)

LawGlobal-Hub Lead Judgment Report

WALTER SAMUEL NKANU ONNOGHEN, J.C.A.

This is an appeal against the ruling of the Federal High Court holding at Lagos delivered by Hon. Justice A. B. Gumel on the 9th day of January, 1997 in suit No. FHC/CS/436/96 in which he dismissed the said suit for being statute barred.

The facts of the case include the following.

The appellants as plaintiffs in the lower court instituted an action at the Federal High Court Holden at Lagos in suit No FHC/CS/436/96 claiming the following reliefs (both in the particulars of claim filed on 18/4/96 and the statement of claim filed on 17/6/96:

14. Whereof the plaintiff’s joint claims is against the defendant for:

(i) the sum of N70,000,000.00 (Seventy Million Naira) being the total outstanding sum of money due to the plaintiffs from 1990-1995 levy years.

(ii) 5% monthly penalty for non-payment on every month the said sum ought to have been paid until the liquidation of the outstanding sum.

(iii) Cost of this action”.

The facts on which the claims are based are stated in paragraphs 7 to 12 of the statement of claim as follows:

“7. The plaintiffs aver that the defendant has more than 12,600 employees in its establishment and notwithstanding its status failed to comply with the statutory obligation of registering and contributing to the fund.

8. The defendant, by her letter dated 13th June, 1991 applied to be fully registered as a member of the fund after several threaded of sanctions and of court action but failed refused and neglected to complete the necessary I.T.F. Forms for registration in spite of demands on her by the plaintiffs.
9. The plaintiffs aver that the defendant has persistently defaulted from 1971 (sic) to date in settlement of the statutory 1% of her annual gross payroll.
10. The defendant has failed refused and/or neglected to fill I.T.F. Forms for levy year 1990-1995 which forms are expected to show the 1% of the gross payroll payable to the plaintiffs despite demands by the plaintiffs and her solicitors.
11. The plaintiffs aver that the defendant’s estimated a debt is as follows:

(a) 1990 levy year N 10, 000,000.00

(b) 1991 levy year N 11, 000,000.00

(c) 1992 levy year N11, 000,000.00

(d) 1993 levy year N12, 000,000.00

(e) 1994 levy year N12, 000,000.00

(f) 1995 levy year N 14, 000 .000.00

…………………. N 70, 000000.00

The extract from the records of the plaintiffs certified by the Director-General showing the defendant’s estimated levy for the year 1990-1995 as N70, 000,000.00 (Seventy Million Naira) is hereby pleaded and shall be relied upon at the trial of this action.

12. The defendant has failed, refused and/or neglected to pay the said sum despite repeated demands by the plaintiffs” –

The respondent, as defendant in the court below did not file a statement of defence but brought an application on notice filed on 3/9/96 in which it prayed the court for the following reliefs:

“(i) An order that the above mentioned suit be dismissed without any answer upon questions of fact, on the ground that the claim/suit is statute barred as no suit against the corporation (defendant/applicant) or any servant of the corporation for any act done in pursuance of execution or intended execution of any act or law, or of any public duty or authority, or in respect of any alleged neglect or default in the execution of such Act or Law or duty, shall be or be instituted in any court unless it is commenced within twelve months next after the act, neglect or default complained of (section 83 (1) Nigerian Railway Corporation Act Cap 323 Laws of Federation Nigeria, 1990)

(ii) An order that the above mentioned suit be dismissed without any answer upon questions of fact, on the ground that the action is incompetent because the plaintiff/respondent commenced the action before the expiration of required 3 (three months) statutory notice of intention to sue the corporation as required by Nigerian Railway Corporation Act Section 83 (2) Cap 323 Laws of the Federation of Nigeria 1990.

(iii) An order that the above mentioned suit be dismissed without any answer upon questions of fact, on the ground that action is incompetent because the plaintiffs/respondents did not comply with the particulars (ingredients) of 3 (three months) notice of intention to commence legal action against the defendant applicant as required by the Nigerian Railway Corporation Act Section 83 (2) Cap 323 of Laws of the Federation of Nigeria 1990.

In response to the application, learned counsel for the plaintiffs/respondents filed what he termed “Reply to Motion on Notice dated 3rd September 1996” in which he stated thus: –

“The plaintiffs/respondents will at the hearing of the above cited motion contend as follows:

1. The subject matter of the suit (claim involves trust property, the plaintiffs/respondents, as created by the Industrial Training Fund Decree No. 47 of 1971, are charged with the sole responsibility of all sums provided by the Federal Government of Nigeria and all contributions by employers in the prescribed matters and other related matters, and consequently, statute of limitation is inapplicable to the present suit,
2. By the provisions of the Industrial Training Fund Decree No. 47 of 1971 which established the plaintiffs/respondents, the defendant is not entitled to notice of intention to commence legal action against her by the plaintiffs.
3. By virtue of the provisions of section 6(6)(b) of the 1979 Constitution, where the determination of the civil rights and obligation of a person is in issue, any law which imposes conditions is inconsistent with the free and unrestrained exercise of that right and is void to the extent of such inconsistency”.

In dismissing the action of the appellants the learned trial judge held inter-alia as follows:

“I have fully considered these provisions very carefully and am satisfied that S.83 (1) necessarily imports some limitation of time within which legal proceedings can be commenced against the defendant/applicant. But does this action come within such actions are (sic) limited in view of combined effect of the provisions of S.6 (2)(b) of and S. 10 of Cap 182 LFN 1990? I am of the humble view that this question must be answered in the affirmative. I therefore hold that this suit is statute-barred despite the provisions of S. 10 of Cap 182 LFN 1992 (sic), because S.83(1) of Cap 323 LFN 1990 mean to confer a total immunity to legal proceedings instituted outside 12 months of the happening of the event.

I do not agree that the claim of the plaintiff (sic) is for a recurring but not static debt, No. The debt is only for a contribution that is collectable on yearly basis only, i.e. within a Calendar Year as provided in S.6 (1) of Cap 182. I also hold that s. 10 of cap 182, which allows for collection of arrears of contribution for up to 6 years can only operate where there is an express provision for limitation of time against the party from whom the contribution is to be claimed. The intendment of S.83 (2) of Nigeria Railway Corporation Act Cap 139, Laws of Federation of Nigeria 1958 (which section is in pari materia with S.83 (2) of Cap 323 LFN 1990) is to prevent the institution of any court process against the Nigeria Railway Corporation where it has received an advanced written notice of 3 months before the commencement of the process. See the decision of the Court of Appeal in Nigeria Cement Company Ltd v. Nigeria Railway Corporation (supra) at P.761 EF … On this ground alone this suit of the plaintiff (sic) against the defendant/applicant is incompetent and invalid. Also in view of my earlier finding that this action is statute barred; it is hereby accordingly dismissed”.

As stated earlier in this judgment, the appellants are dissatisfied with the above ruling and have appealed to this court vide a notice of appeal to be found at pages 57 to 59 of the record containing four grounds of appeal and filed on 12/2/97. There is no amended notice of appeal.

However and strangely enough learned counsel for the appellants in an appellant’s brief of argument filed on 14/5/97 and signed by Frank Eke Esq, identified and formulated at page 4 thereof a total of nine issues for determination numbered as 3.1 to 3.9.

However from the appellants’ brief in the file a ball point pen has been used to draw lines across issues 3.2; 3.6 and 3.7 of the issues so formulated by virtue of which I consider them probably cancelled. Granted that this view is correct, it will still leave us with six issues formulated out of only four grounds of appeal.

The grounds of appeal and the issues formulated therefrom are reproduced hereunder.

“Grounds of Appeal

1. The learned trial Judge erred in law when he held that the plaintiffs/appellants’ claim is statute-barred.

Particulars of Error

(a) The provisions of S.83(1) and (2) of the Nigerian Railway Corporation Act Cap 323 Laws of the Federation of Nigeria, 1990 is in conflict with S.6(2) and 5.9 of the Industrial Training Fund Decree No. 479 of 1971 now compiled as sections 6 (2) and 10 of the Industrial Training Fund Act Cap 182 Laws of the Federation of Nigeria, 1990.

(b) By the combined provisions of sections 6 and 8 of the Industrial Training Fund Act, Cap. 182 Laws of the Federation, 1990, the defendant/respondent’s debt is a recurring debt.

(c) Limitation of time does not apply to the plaintiffs/appellants claim which is a trust property.

2. The learned trial Judge erred in Law when he failed to determine the status of section 9 of Industrial Training Fund Decree No. 47 of 1971, Laws of the Federal Republic of Nigeria now complied as section 10 of the Industrial Training Fund Act, Cap 182 Laws of the Federation of Nigeria, 1990 vis-Ã -vis section 83(1) and (2) Nigerian Railway Corporation Act, Cap 323, Laws of the Federation of Nigeria.

Particulars of Error

(a) Section 9 of Industrial Training Fund Decree No. 47 of 1971 now compiled as section 10 of Industrial Training Fund Act, Cap 182 Laws of the Federation of Nigeria 1990, supercedes the provisions of section 83(1) and (2) of the Nigerian Railway Corporation Act, Cap 323, Laws of the Federation of Nigeria, 1990 pursuant to the decision in Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt.276) page 410-424.

(b) The provisions of S. 10 of the Industrial Training Fund Act, Cap. 183 Laws of the Federation of Nigeria, 1990 which gives the plaintiffs/appellants unrestricted access to court supercedes the provisions of section 83(1) and (2) of the Nigerian Railway Corporation Act, Cap 323 Laws of the Federation of Nigeria, 1990 which purported to exhibit the plaintiffs/appellants’ unfettered access to court in so far as the debt claimed by the plaintiffs/appellants is a debt owing to the appellant (sic) at any time within six (6) years from the date when the contribution became due.

3. The learned trial judge erred in law when he held that no three months notice was given to the defendant/respondent because the plaintiffs/appellants’ letter No FAE/GOV/001/96 of February, 1996 does not satisfy the requisite notice envisaged by section 83(2) of the Nigerian Railway Corporation Act, Cap 323, Laws of the Federation of Nigeria, 1990.

Particulars of Error

(a) The defendant/respondents preliminary objection was by way of demurer. The letter of 16th February, 1996 was not in evidence before the court but came into being by mere ipse dixit of the defendant/respondent’s counsel. The learned trial judge was thus wrong to have pronounced on a document which was not before the court.

(b) By virtue of section 9(1) of the Industrial Training Fund Act, Cap. 182 Laws of the Federation of Nigeria, 1990, the plaintiffs/defendants need not give the defendant/respondent any preaction notice.

4. The learned trial Judge erred in law when he held that the claim of the plaintiffs/appellants is static and not recurring debt.

Particulars of Error

By the combined provisions of sections 6 and 8 of the Industrial Training Fund Act, Cap. 182 Laws of the Federation, (sic) 1990 the defendant/respondent’s debt is a recurring debt.”

On the other hand, the issues for determination are stated as follows:

“Section 3: Issues for Determination

3.1 Whether the lower court was right in holding that appellant case is statute barred in view of the provisions of section 10(1) of Industrial Training Fund Act, Cap. 182 Laws of The Federation of Nigeria 1990 which empowers the appellants to commence legal action at ANY TIME within 6 years from the date when the contribution became due.

3.2 Whether section 83(1) and (2) of the Nigerian Railways Corporation Act Cap 323 Laws of The Federation is in conflict with Section 10(1) of the Industrial Training Fund Act, Cap 182 Laws of the Federation of Nigeria 1990.

3.3 Whether section 83(1) and (2) of the Nigerian Railway Corporation Act, Cap 323 Laws of the Federation, 1990 prevails over Section 10(1) of the Industrial Training Fund Act, Cap 182 Laws of the Federation 1990.

3.4 Whether the appellants’ claim is predicated on trust property, and if so whether Section 83 (1) of the Nigerian Railway Corporation Act, Cap 323 Laws of the Federation, 1990 applies to the appellants’ claim.

3.5 Whether the appellants are bound to issue 3 months’ pre-action notice to the respondent in view of Section 10(1) of the Industrial Training Fund Act, Cap 182 Laws of The Federation, 1990.

3.6 Whether the provisions of Section 83(2) Nigerian Railways Corporation Act 323 Laws of The Federation of Nigeria 1990, is in conflict with Section 6 of the 1979 Constitution Federal Republic of Nigeria as amended by Decree No. 107 of 1993.

3.7 Whether the lower court was right in holding that the main issue for determination was as to the correct interpretation to be placed on Section 83(1) and (2) of the Nigerian Railways Corporation Act Cap. 323 Laws of the Federation, 1990.

3.8 Whether the lower court was right in holding that appellants’ letter No FAE/GOV/001/96 of 16th February, 1996 does not satisfy the requisite notice envisaged by Section 83(2) of the Nigerian Railway Corporation Act, Cap 323 Laws Of Federation of Nigeria, 1990, when the said letter was not in evidence before the court.

3.9 Whether by the combined provisions of Sections 6 and 8 of Industrial Training Fund Act Cap 182, Laws of The Federation, 1990 the respondent’s debt is a recurring debt. And if so whether the appellants’ claims are caught by the provision of Section 83 (1) of The (sic) Nigerian Railway (sic) Corporation Act Cap 323 Laws of The Federation of Nigeria, 1990.

It should be noted that none of the issues so formulated from the four grounds of appeal has been tied to any of the grounds of appeal so filed. It is still good law that whereas an issue for determination must arise from or relate to a ground or grounds of appeal filed and that an issue which does not relate to a ground or grounds of appeal is incompetent and liable to be struck out, not more than an issue can be formulated from a single ground of appeal though an issue can be formulated from two or more grounds of appeal.

To compound the matter even more learned counsel for the appellants argued all the nine issues in one fell swoop without even the courtesy of stating so in the brief of argument. The brief is therefore one bundle of confusion and everything a brief should not be.

The respondent’s brief filed by T.C. Mbanefo Esq on 18/6/97 identified two issues for the determination of the appeal to wit:

“(i) Whether section 83(1) and (2) of the Nigerian Railways Corporation Act. Cap 323 Laws of the Federation 1990 (hereinafter referred to as NRC Act) which prescribes a pre-action notice as a condition precedent to the exercise of a court’s jurisdiction, and a limitation period, are inconsistent/or in conflict with sections 6, 8 and 10 of the Industrial Training Fund Act, Cap 182 of the Laws of the Federation 1990 (hereinafter referred to as ITF ACT)

(ii) Whether the appellants claim is predicated on trust property, and if so, whether section 83 (1) of the Nigerian Railway (sic) Corporation Act Cap 323 Laws of the Federation 1990 applies to the appellants claim.”

He however failed to identify any of the issues formulated with any of the ground or grounds of appeal.

Like in the appellants’ brief, the two issues so formulated are argued in one fell swoop without stating that they would be argued together. Turning again to the appellants’ brief it is clear that the proliferation of issues therein is not proper in law and they ought to be struck out. It is not the duty of the court to present the case of the parties but that of learned counsel whose professional services has been retained by the litigant for that purpose. It is rather unfortunate that the competence or otherwise of the legal practitioner so retained may affect the fortunes of the litigant; a risk inherent in litigation and which the litigant must take. However though the tendency is to summarily deal with the appeal in view of the fact that the brief of the appellants is everything that a brief should not, I will proceed to consider the appeal on the two issues formulated by learned counsel for the respondent which issues adequately reflect the decision of the lower court as complained of in the grounds of appeal.

On respondents issue No 1 learned counsel for the appellants referred to section 10 (1) of the Industrial Training Fund Act, Cap 182, Laws of the Federation of Nigeria 1990 (hereinafter referred to as Cap 182 of 1990) and submitted that the said sub section clearly empowers the appellants to recover a-debt owed the fund at any time within six years from the date when the contribution became due. That section 6 of Cap 182 of 1990 provides that every employer envisaged under the said cap 182 of 1990 shall contribute money to the appellants yearly and that any and every year of default by the employer gives rise to a cause of action in favour of the appellants. That the claims of the appellants is limited to the six years period provided for in subsection 1 of section 10 of Cap 182 of 1990.

That section 83(1) and (2) of the Nigerian Railway Corporation Act, Cap 323 of the Laws of the Federation of Nigeria 1990 (hereinafter referred to as Cap 323 of 1990) which provided for institution of action against the respondents within 12 months next after the cause of action had arisen and the giving of pre-action notice of three months before the institution of the action is in conflict with section 10(1) of Cap 182 of 1990. Referring to the case of State v. Jammal (1996) 9 NWLR (Pt. 473) 384, Oviawe v. I.R.P. Nigeria Ltd. (1997) 3 NWLR (Pt. 492) 126 at 139 learned counsel submitted that where the words of a statute are clear and unambiguous they should be construed so as to give effect to their ordinary and literal meaning and enforced accordingly. Learned counsel then urged the court to hold that such a conflict exists between the provisions of section 10(1) of Cap 182 of 1990 and section 83 and (2) of Cap 323 also of 1990 and that since Decree No. 47 of 1971 which established the appellant though renamed Act still remains a Decree with all legal trappings of a Decree, it is by the authority of Lekwot v. Judicial Tribunal on Civil and Communal Disturbances in Kaduna State (1993) 2 NWLR (Pt. 276) 410 at 449 superior to Cap 323 of 1990 which is an Act and as such learned counsel further submitted, the appellants have unfettered-latitude to institute the action at any time without the necessity of a pre-action notice. That the case of Lamina v. Ikeja L.G. relied upon by the lower court and the respondent does not apply in that in that case, the appellant did not have the backing of superior legislation empowering him to institute action irrespective of privileges or immunities given to the respondent by virtue of the statute creating it. That the lower court was therefore wrong in holding that the action was statute-barred and that no three months pre-action notice was given to the respondent.

That the lower court also erred in holding that the main issue for determination is the interpretation of section 83 (1) and (2) of Cap 323 of 1990 whereas the argument of counsel for the appellants has been that the said section is in conflict with section 10(1) of Cap 192 of 1990.That in considering the issue the lower court did not examine the provisions of section 10(1)of cap 182of 1990 vis-Ã -vis that of section 83(1) & (2) of Cap 323 of 1990 but referred to section 10(1) only us trussing while it dealt exhaustively with section 83 (1) and (2).

Learned counsel concedes that section 83(1) and (2) of Cap 323 of 1990 “creates a measure of immunity for the respondent from legal suits. The wordings of the statute are clear and unambiguous” counsel however submitted that “such immunity automatically collapses upon meeting a superior legal force such as section 10(1) of the Industrial Training Fund Act Cap 182 Laws of the Federation 1990.

That the lower court erred in referring to a letter referenced as No FAE/GOV/001/96 of 16th February 1996 which said letter was not in evidence before the court since the respondent’s application to which the letter was exhibited had earlier been struck out by the court on 29th August 1996. Finally learned counsel submitted that the decision of the lower court on the said exhibit is not supported by evidence and thereby liable to be set aside and urged the court to so order.

On his part, learned counsel for the respondent submitted that the lower court is right in holding that the action is statute barred. That the submission of his learned friend to the effect that section 10(1) of Cap 182 of 1990 is in conflict with section 83 (1) and (2) of Cap 323 also of 1990 is misconceived. Referring to section 83 (1) of Cap 323 of 1990 learned counsel submitted that the said section made provision for any contrary limitation clause that might be contained in any Act or law by making such provision subject to the said section 83(1).

That section 10(1) of Cap 182 of 1990 can only apply where there is no express provision for limitation of time against a party from whom the contribution is being claimed. That section 10 (1) of cap 182 of 1996 is made subject to any contrary provision that might be contained in any other sections of the same Act and not any Act or law as in section 83 (1) of Cap 323 of 1990. Learned counsel then referred the court to Ezenwosu v. Ngonadi (1992) 3 NWLR (Pt. 228) 154 at 173; Olatunbosun v. NISER Council (1988) 3 NWLR (Pt. 80) 25 at 46.

On the sub-issue as to whether the statute establishing the 1st appellant originally being a decree still retained its original trappings of a decree despite its being renamed an Act, learned counsel for the respondent referred the court to paragraph 1(a) of the Constitution of the Federal Republic of Nigeria (Adaptation of Laws Redesignation of Decrees etc) order 1980 S1. 13 and the case of Adeniyi v. Oroja (1992) 4 NWLR (Pt. 235) 322 at 336.

Referring to the Lekwot case supra, learned counsel submitted that the case is distinguishable from the present one in that that case dealt with a Decree made in 1987 and that the hierarchy of laws stated in that decision relates to the period from 31st December, 1983. That in accordance with the provisions of the Statutory Instrument No 13, of 1980 both Caps 182 and 323 of 1990 are Acts and of equal validity.

Referring to the case of Madukolu v. Nkemdilim (1962) All NLR 587 learned counsel submitted that the giving of a pre-action notice is a condition precedent to the court assuming jurisdiction in the matter and that failure to give that notice robs the court of jurisdiction to entertain the matter, counsel then referred the court to Lamina v. Ikeja L.G. (1993)8 NWLR (Pt. 314) 758; Nigeria Cement Co. Ltd. v. Nigeria Railway Corporation (1992) 1 NWLR (Pt. 220) 747 at 761.

Learned counsel then submitted that the letter of 16th February, 1996 is part of the record of the lower court, the same having been exhibited to an application before that court vide an affidavit sworn to on 27th June 1996, and that the lower court was therefore correct in relying on same referring to NEC v. Wodi (1989) 2 NWLR (Pt.104) 444 at 456; Martins Nig. Ltd. v. U.P.L. (1992) 1 NWLR (Pt. 217) 322 at 333.

Now both parties and the lower court agree that by virtue of the provisions of section 83 (1) and (2) of Cap 323 of 1990 a period of limitation of twelve months following accrual of a cause of action within which an intending litigant must institute his-action against the respondent is created and that before invoking the jurisdiction of the court in relation to that cause of action the litigant must serve on the respondent a pre-action notice of three months.

The said section 83(1) and (2) of cap. 323 of 1990 provides thus: –

“83(1) No suit against the Corporation or any servant of the Corporation for any act done in pursuance or execution or intended execution of any Act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of such Act or law, duty 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 of damage or injury, within twelve months next after the ceasing thereof:

Provided that in the case of a claim for a refund of an over charge in respect of goods accepted by the Corporation for carriage, or for compensation in respect of loss, damage, deviation, misdelivery, delay or detention of or to any goods so accepted, the cause of action shall be deemed to have arisen on the day of such acceptance.

(2) No suit shall be commenced against the Corporation until three months at least after written notice of intention to commence the suit shall have been served upon the Corporation by the intending plaintiff or his agent; and such notice shall clearly and explicitly state the cause of action, the particulars of the claim, the name and place of abode of the intending plaintiff and the relief which he claims”.

Looking at a long line of case law, the term cause of action has been variously defined but the common feature in the definitions include the fact that it is the fact or facts which establish or give rise to a right of action – a factual situation whose existence entitles the plaintiff to obtain from the court of law a remedy against the defendant. See Egbe v. Adefarasin (1987) 1NWLR (Pt. 47) 1; Yusuf v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt. 359) 676; U.S.N. Ltd v. Oki (1999) 8 NWLR (Pt. 614) 244; Adimora V. Ajufo (1988) 3 NWLR (Pt. 80) 1; Ogbimi v. Ololo (1993) 7 NWLR (Pt. 304) 128.

It is trite law that where there is a right, there is a remedy-this is a general principle of law. Put in another way, where there is a cause of action, there is a remedy. However, the legislation has prescribed certain limitation periods for initiating certain judicial proceedings against certain persons. The rationale behind this principle of limitation of actions is said to be based on public policy which enjoins that there should be an end to litigation and that stale demands should not be encouraged for to do so would be unfair to a person to allow claims to be made upon him after a long period during which he may have lost the evidence. Therefore where an action is statute – barred, a plaintiff who would have had a cause of action automatically loses the right to enforce the cause of action by judicial process because the time laid down by limitation law for instituting such an action has elapsed. See S.P.D.C. Ltd v. Farah (1995) 3 NWLR (Pt.382) 148; Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649; Obiefuna v. Okoye (1961) 1 SCNLR 144; Sanda v. Kukawa L.G. (1991) 2 NWLR (Pt. 174) 379; P.N. Udoh Trading Co. Ltd. v. Abere (2001) 11 NWLR (Pt. 723) 114.

Generally speaking, it must be borne in mind that the operation of the limitation law does not extinguish the cause of action but merely bars the remedy of bringing the action after the lapse of the specified time from the date when the cause of action arose. However, in certain cases the limitation law operates not only to bar the remedy but also to extinguish the right or title to the property or claim in question. In such a situation the law is said to operate in a prescriptive manner. See P.N. Udoh Trading Co. Ltd. v. Abere (2001) 11 NWLR (Pt. 723) 114 at 146-147; Odekilekun v. Hassan (1997) 12 NWLR (Pt. 531) 56; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt.27) 241; Fadare v. A.-G, Oyo State (1982) 4 S.C. 1.

In the present case, the case of the appellants is that though the respondent is protected by the provisions in section 83(1) and (2) of Cap. 323 of 1990, that protection or limitation does not extend to cases instituted by the appellants since by the operation of section 10(1) of Cap 182 of 1990, the 1st appellant has the right to recover debts due and payable to it by action within six years of their having become due and payable. That by extension the 1st appellant cannot be bound by the 12 months limitation period within which to institute the present action as provided under section 83 of Cap 323 of 1990 since by the said section 10(1) of Cap 182 of 1990, it has a whole six years within which to act.

Finally, that the two sections are in conflict and since Cap 182 of 1990 originated as a Decree and by judicial pronouncement Superior to an Act (which cap 323) is, the said section 10(1) of cap 282 of 1990 supercedes and takes precedent over and above section 83 (1) and (2) of Cap 323 of 1990 and that in such a conflict section 10(1) must prevail.

What then is the contents of section 10 (1) of Cap 182 of 1990.

It provides as follows:

“10(1) Notwithstanding any other provisions of this Act, a contribution to the fund shall be recoverable by action as a debt owing to the fund at any time within six years from the date when the contribution became due”.

Now, the cardinal principle of interpretation of statutes is that where the ordinary plain meaning of the words used in a statute are very clear and unambiguous, effect must be given to those words without resorting to any intrinsic or external aid. It has been held over and over again by the courts that the duty of the court in such a situation or under those circumstances is to interpret the words strictly giving them their intended meaning and effect.

However, in situation where the court finds that such literal interpretation may result in any ambiguity or injuries, it may seek internal aid from other parts of the statute itself or external aid from interpretation given a provision which is in pari materia with the statute under construction. See Awolowo v. Shagari (1979) 6-9 S.C. 51; Adejumo v. Mil. Gov. Lagos State (1972) 3 S.C. 47; A.-G., Bendel State v. A.-G., Federation (1982) 3NCLR 1; Owena Bank (Nig) Plc v. NSE Ltd. (1997) 8 NWLR (Pt. 515) 1; Mobil Oil (Nig.) Ltd. v. F.B.I.R. (1977) 3 S.C. 53.

Applying the principles of law stated supra to the facts of this case I am of the considered opinion that the provisions in sections 83 of Cap 323 of 1990 and 10(1) of cap 182 of 1990 are very clear and unambiguous and I so hold. Those provisions therefore need neither internal nor external aid in their construction.

However, the plinth of the case of the appellants is that the two unambiguous sections are in conflict with each other and that in such a situation section 10(1) must prevail over section 83 due to the particular nature of its creation. The crucial question that must be determined to resolve the issue is whether in reality the two sections are in conflict. It is my view that it is only after resolving this that one can proceed to consider the effects of that conflict, if it exists, as argued by learned counsel for the appellants. What do we, therefore mean when we say that a piece of legislation or decision of the court is in conflict with another? The word “conflict” is defined by Collins English Dictionary as:

“1. a struggle or clash between opposing forces; battle 2. a state of opposition between ideas, interests etc; disagreement or controversy. 3. a clash, as between two appointments made for the same time …..”

In Chambers 20th Century Dictionary, New Edition, the word is defined as

“Violent Collision; a struggle or contest; a mention struggle; to fight contend: to be in opposition: to clash

While “conflicting” is defined by the same dictionary as “clashing contradictory.”

Blacks law Dictionary, 7th Edition defines “conflict of authority” as

“A disagreement between two or more courts, often courts of Coordinate jurisdiction, on a point of law.”

From the above definitions, it is very clear that for there to be conflict between section 10 (1) of cap 182 of 1990, both provision must be talking of the same thing and in relation to the same person or subject matter.

From the provisions of the two sections of the law in issue, it clear that though both deal with limitation periods, they relate to different persons and for different purposes. In other words, the mischief the legislature intended to remedy are different in the two Legislations. It is very clear that while section 10(1) of Cap 182 of 1990 gives 1st appellant the right to institute actions to recover contributions that had been due within six years of their being due section 83 of Cap 323 of 1990 provides that an action against the respondent must be commenced within twelve months of the accrue of the cause of action and that three months pre-action notices must be given to the respondent before instituting the action. It is most considered view that the two provisions are not in conflict with each other. They would have been if they relate to the same party or person that is if section 83 specifically cuts down the six years granted if section 10(1) of cap 182 to twelve months within which the appellant are now to recover the contributions due and without amending the said section 10(1) of cap 182. As the two provisions stand, I am on the view that they deal with different situations or points and a parties and for different purposes. It is clear that though section 10(1) of Cap 182 of 1990 gives the appellants the right to recover contributions that had been due within six years, that right is subject to the twelve months limitation imposed on actions against the respondent by virtue of section 83 of cap 323 of 1990.

The appellants are not saying that they instituted the action within twelve months as provided in section 83 of Cap 323 of 1990 intention to institute the said action as required by law. The fact of the case being what they are the only irresistible conclusion is that the action so commenced by the appellants contrary to the provision of section 83 of Cap 323 of 1990 is incompetent particularly as the same was not commenced within twelve months of the accrual of the cause of action and therefore statute barred. The said action is also incompetent on the ground that the three months pre-action notice of intention to commence the action against the respondent was also not given. It is trite law that failure of the appellants to comply with the above provisions of the Act robs the lower court of the jurisdiction to entertain the matter which said matter is thereby liable to be struck out for want of jurisdiction.

It is trite laws that any defect in competence is fatal for the proceedings are a nullity however well conducted and decided: the defect being extrinsic to adjudication. A court is said to be competent when it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another and the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. Most importantly and relevant to the present case is the requirement that the case in question must come before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction-see Madukolu v. Nkemdilim (1962) All NLR 587 at 589-590. In the present case the action was not initiated upon fulfillment of the conditions precedent to the exercise of the jurisdiction of the lower court to wit instituting the action within twelve months of the accrual of the cause of action and service of three months pre-action notice on the respondent before initiating the said action. I therefore hold that the lower court is right in holding that the action is statute barred.

There is the argument on the hierarchy of laws which I consider of no moment and very irrelevant. It is very important to note that prior to the accrual of the cause of action in this case and by operation of law, the Decree establishing the appellants had been redesignated Act by virtue of paragraph 1(a) of Statutory Instrument No. 13 of 1980 which provides thus:

“1. Without prejudice to the generality of section 274(2) of the Constitution of the Federal Republic of Nigeria, 1979-

(a) any Decree made between 15th January, 1966 and 30th September, 1979 by any competent authority or person and which was in force on the date of the coming into force of the aforesaid Constitution shall, to the extent that such a Decree relates to a matter with respect to which the National Assembly is empowered by the Constitution to make laws, hereafter be re-designated and referred to as an Act and, accordingly, for the word “Decree” in any such Decree there shall be substituted the word “Act”; and.”

Learned counsel for the appellants has argued in the reply brief that the above provision only changed the nomenclature of the Decree which does not affect its nature or hierarchy as determined by the Supreme Court. With due respect to learned counsel, I do not agree with him. I am of the considered opinion that the above provision not only re-designated Decrees falling within the period stated therein-which includes the one creating the appellants in 1971 but adopts them as Acts of the National Assembly in so far as they relate to a matter(s) with respect to which the said National Assembly is empowered by the Constitution to make laws. That being the case, it is my considered view that in the above provision the nature of Decrees so affected, including their position in the hierarchy of laws in this country as decided by the Supreme Court, became changed to that of Acts of the National Assembly and they so remain until the law states otherwise. In other words the Decrees cannot revert from their new status of “Acts” to “Decree” as and when convenient to the appellants and/or whatever purpose, without the backing of a legal instrument or judicial authority to that effect. That being the case, I hold the view that argument of learned counsel for the appellants in this regard is very much misconceived and is accordingly discountenanced.

The lower court’s holding that the main issue is the interpretation of the provisions of section 83(1) and (2) of Cap 323 of 1990 is very correct because it is the meaning of that section that will determine whether the provision is in conflict with any other section of the Act or any other Act. Interpretation is what brings out the meaning or intention of the legislature.

On the reliance placed on the letter of 16th February, 1996 it is the case of the appellants that the respondent is not entitled to preaction notice so whether the court relied on the letter as providing no evidence of the giving of such notice is of no moment. That apart, it is the case of the respondent that no such notice was given by the appellants. That being the case the burden of proving that any notice was given rests on the appellants-not the respondent who asserts the negative.

Thirdly, the letter forms part of the record and the lower court has the power to take cognizance of it in the manner it did in the ruling.

That being the case the issue under consideration is resolved against the appellants.

On the second issue, learned counsel for the appellants referred the court to the provisions of sections 6 and 8 of Cap 182 of 1990 and submitted that the action of the appellants is in the nature of recovery of a recurring debt which cannot be statute barred because the debts are not static. Learned counsel then referred to the preamble to Cap 182 of 1990 and sections 2 and 6 thereof and submitted that the provisions created a trust with the appellants being trustees and the respondent is one of the cest qui trust or beneficiaries. That the trust so created is by operation of law. That the statute of limitation does not apply to trust property relying on Wassell v. Leggatt (1896) 1 Ch.554.

On his part, learned counsel for the respondent submitted that reading sections 6 and 8 it is clear that no recurring debt is established particularly as the time for collecting the contributions is clearly stated.

That where there is failure to make the contribution, a cause of action accrues to the appellant’s which is subject to the statute of limitation.

That section 2 and 6 of Cap 182 of 1990 do not create any trust as argued by learned counsel for the appellants. He then urged the court to resolve the issue against the appellants.

I have gone through Cap 182 of 1990 and I am of the view that the submission of learned counsel for the appellant is misconceived.

Contrary to the submission of learned counsel, sections 6(1) and 8(1) of Cap 182 of 1990 do not create a recurring debt. Section 6(1) and (2) provide as follows:

“6(1) Every employer having twenty-five or more employees in his establishment, shall in respect of each Calendar year and on the prescribed date, contribute to the Fund one per centum of the amount of his annual pay roll.

(2) In this section “the prescribed date” –

(a) in respect of the year one thousand nine hundred and seventy-one, means a date not later than three months from the commencement of this Act; and

(b) in respect of every subsequent year means a date not latter than 1st April of the following year”.

Section 8(1) provides follows:

“8(1) If any contribution is not paid within the time prescribed in section 6 of this Act, a sum equal to five per centum of the amount unpaid shall be added for each month or part of a month after the date on which payment should have been made”.

From the above provisions, it is very clear that the legislature never intended to nor did it thereby create a recurring debt in relation to the contribution to be made by employers to the appellants. The legislature clearly stated the percentage of what should be paid by an employer falling within the category stated in the law and when the payment must be made. It also provides for penalties for failure to pay within time. It is my view that it is only when a party fails to pay or makes a default in payment that the appellants have a cause of action against the party concerned and such a cause of action is subject to a period of limitation imposed by the Act- see section 10(1) supra which states that the debt is recoverable by action instituted by the appellants within six years of the debt being due. If the argument of learned counsel were correct then there would have been no need for the legislature to impose a period of limitation on the appellants. The fact of limitation period negates the argument that the debt is recurring. To make it more dramatic the appellants did not claim contributions due from the respondent from the time the appellants were created or established by Cap 182 i.e. 1971 but claimed from 1990 – 1995. I therefore agree with the decision of the lower court and the submission of learned counsel for the respondent that the debt claimed by the appellants is static and subject to limitation period provided by law.

Going through Cap 182 of 1990, it is clear and I hereby hold that no trust was created by the said Act neither was any intended by the legislature. Section 2 of Cap 182 of 1990 merely states the social objective intended by the legislature to achieve by establishing the appellants. I am of the considered opinion that if it was the intention of the legislature to create a trust it would have so stated. I therefore resolve the second issue also against the appellants.

In conclusion I find no merit in this appeal which is accordingly dismissed with an order that each party bears its costs.

Appeal dismissed.

Other Citations: (2005)LCN/1686(CA)