Klifco Nigeria Limited V. Nigeria Social Insurance Trust Fund Management Board (2004)
LawGlobal-Hub Lead Judgment Report
OMAGE, J.C.A.
In this appeal, the defendant in the court below seeks an order to set aside the judgment of the Federal High court sitting in Port Harcourt, Coram S. O. Ojuntalayo. The judgment was delivered on 22nd November, 1991. The appellant filed four grounds of appeal and formulated the following four issues:
“(1) Was the debt subject matter of the suit statute-barred and did the pleadings of the defendant/appellant cover the situation?
(2) Was exhibit “J” a letter of the defendant/appellant an admission of a stale debt enough to revive the debt?
(3) Was exhibit “L”, of any probative value in this case?
(4) Was the learned trial Judge right in his interpretation of the probative value and effect of exhibit “C-C1″ and HM-M1”?’
The respondent who was the plaintiff in the court below formulated the following issues:
“(1) Whether the learned trial Judge was right in holding that appellant had not adequately pleaded the defence of limitation of action.
(2) Whether the learned trial Judge was right in holding that the debt had been revived by exhibit “J” assuming (but not accepting) that limitation of action had been sufficiently pleaded by appellant.
(3) Whether the learned trial Judge was right to have admitted exhibit “L” into evidence due regard given to section 38 of the National Providence Fund Act, Cap. 273, Laws of Federation, 1990 (hereinafter referred to as NPF Act, 1990) and the Evidence Act, Cap. 112, Laws of the Federation, 1990 (hereinafter referred to as Evidence Act, 1990).
(4) Whether the learned trial Judge was justified in the interpretation placed on exhibits “C-CI” and “M-Ml” considering the pleadings and evidence before the court.”
The facts of the case in the court below are as follows:
“The respondents as plaintiffs by a writ of summons filed in the Federal High Court, Port Harcourt claimed from the defendant, now appellant; ‘the sum of N38,453.13 which the plaintiff say represent arrears of contribution and interest on demand notes, sent to the defendant on sums of money which the defendant as employers of labour, within the meaning of the NPF Act. 1961; failed and still fails to pay despite repeated demands as per particulars of claim.”
The particulars of claim supplied by the plaintiff and his evidence tendered as contained in exhibits “C-C1” show that the sum claimed covers a period of January, 1980 and December, 1988. Exhibit “CC1” was admitted in evidence, and it is upon this that the plaintiff’s claim was determined in the court below. The trial court rejected and did not consider exhibit “M-M1”, which was subsequently tendered to show a period of January, 1979 – March, 1984.
It is material to consider as vital that the sum of N38,479.94 is as subsequently amended in the course of the trial on exhibit “CCI”.
See pages 2 – 5 of the plaintiff’s claim in the record of proceedings.
The plaintiff in the court below, deposed that it wrote and sent exhibit “H”, to the defendant/appellant in which the plaintiff demanded the settlement of the debt arising from contributions under the NPF Act, 1990. In response thereto the defendant sent exhibit “J”, which in the material part read thus “we refer to your letter NP F RVS Comp./15167/66 of 2nd March, 1989 and reply as follows:
‘that our computation of our indebtedness differs from yours and we have therefore gone back to recheck our figures. As soon as we conclude this exercise we shall let you know’. It was the submission of the plaintiff in the court below, which is contained in the respondent’s brief that the contents in exhibit “J” above is an admission of liability for the claim of the plaintiff and the defendant in the address of counsel in the court below referred to its pleadings and urged the said court to dismiss the plaintiff’s claim because it constitutes a simple debt recoverable within 6 years under the provisions of the NPF Act, particularly under the Laws of Limitation in the Act of 1958. In the court below it was submitted that the acknowledgement of the evidence of the debt by the defendant/appellant in exhibit “J” has the effect of reviving the debt owed to National Provident Fund by the defendant even if the debt has become irrecoverable by a court action under the Limitation Act, furthermore that the failure of the defendant to state in its pleadings that the action is statute barred had embarrassed the plaintiff and had thereby disabled the defendant from relying on the plea of statute of limitation. The defendant had relied on its pleadings, which reads:
“At the hearing of this suit the defendant will tender and rely on all the documents at its disposal in support of this assertion.”
As evidence of its plea of limitation period that the plaintiff’s action is statute barred.
In the course of the hearing in the court below, the plaintiff tendered exhibit “L”. In the respondent’s brief as in its submission in the court below, the plaintiff deposed that exhibit “L”, being a certificate subscribed to by the director of the National Provident Fund which authenticates the indebtedness of the defendant to the National Provident Fund is admissible as a prima facie evidence of the liability of the defendant for the debt stated. Thus the plaintiff submitted, is the provisions of section 38 of the National Providence Fund Act, 1990.
The defendant at the hearing and in the appellant’s brief denied that the document exhibit “L” is admissible in the proceedings because the document exhibit “L”, was made by a person other than the party who is tendering it; and furthermore that it was made since the proceedings in court started for the purpose of the claim in the proceedings.
It is on the above issues that the appellant formulated the issues contained in the appellant’s brief of argument because in the judgment of the court below delivered on 22nd November, 1991; the learned trial court ruled that the claim of the plaintiff before the court is not statute barred for the reasons stated therein:
“( 1) The defendant failed to plead in the statement of defence his statute of limitation and has thereby not put the plaintiff on notice thus embarrassing the plaintiff.
By the admission of the defendant in exhibit “J”; even if the statutory debt owing by the defendant is statute-barred, the admission or acknowledgement of the debt by the defendant in exhibit “J”, has had the effect of reviving the debt for another 6 years, and the defendant has become liable to pay.
The objection to exhibit “L”, made by the defendant as to its admissibility is misconceived because the provisions of Section 39 of the National Provident Fund Act conveys to the court a fait accompli as to the liability of the defendant. For the debt stated and claimed in the said exhibit “L”, once the document is signed by a director; or the director of the National Providence Fund, the rule that the provisions of the Evidence Act which renders inadmissible any document made for the purpose of a pending action in court does not apply.
The learned trial Judge ruled that the provisions of Section 38 of the National Provident Fund is unique in that it renders a document admissible in court proceedings once it is signed by the director.”
In the respondent’s brief, the respondent submitted that the failure of the appellant to plead the statute of limitation here rendered the law inapplicable to the proceedings.
It is trite that parties are bound by their pleadings, and any submission made generally which is not founded on the pleadings will be discountenanced, and it goes to no issue. See (i) Nnamani v. Adigwi (1993) 7 NWLR p. 221; (ii) Woluchem v. Gudi (1981) 5 SC 291; but this is a general rule, because a matter of law need not be pleaded provided the facts upon which the law may be cited is before the court.
The court of law may and should take judicial notice of the applicability of an existing law. See Aondihas v. Gvegareh (1989) 1 NEPLR 39, as per Jacks, JCA (of blessed memory).
The statute of limitation, whether in the Act, as adopted in each state is a statute of general application where the facts in the pleadings compel its application.
It is the duty of a court of law to give effect to the laws of the country. Parties to an action in court cannot by agreement or subterfuge of default in pleading seek to defeat the law of the land. See Alashe v. Olori Ilu (1964) 1All NLR 390 at 397 Supreme Court.It behoves the presiding officer to ensure the observation of the law and not to defeat it. See Opia v. Ibru (1992) 3 NWLR (Pt. 231) 658.
In the instant appeal, in issue one of the appellant and issue one of the respondent which issues I now treat together with the submission of both parties on issue 2, which ask whether exhibit “J” is a letter of admission of a debt claimed by the respondent; and whether the said exhibit “J” has revived it?
The contents of exhibit “J”, are a matter of fact. The issue to be considered therein is whether the wordings of exhibit “J” admit of liability for the sum claimed by the respondent as submitted by the plaintiff in the court below; and if it did, did the admission revive the debt? In my view the submission of the respondent that the debt may be revived is a tacit admission that the statute of limitation has barred the institution of the process in a court of law to claim the debt. The cause of action arose in the list received in 1980 to 1988.
The claim was filed in court in 1990. There is a period of two years and the right to sue for that debt of 1988 is live. The claim from 1980 is barred by law. However the liability for a debt said to have arisen since 1980 is statute barred. The parties in the court below did not separate the claim barred by operation of law and the balance of the debt not affected by the law. The court is empowered by the provisions of section 16 of the Court of Appeal Act to consider the evidence before the court and make any order that the court below could have made but that issue will await analysis hereunder.
In referring to exhibit “J”, the alleged admission of debt in exhibit “J”, does not arise; and in any case does not apply to the period affected by the operation of the statute of limitation. In my view and I so rule there is nothing in exhibit “J”, which admits of liability for the debt said to be owing to the respondent as alleged in exhibit “H”. In fact exhibit “J” denies liability specifically for the sum claimed by the plaintiff. The onus is on the plaintiff to establish and prove his claim before the court. See Kodilillye v. Odu (1935) 2 WACA 337.
The plaintiff cannot seek a loophole in the exhibit tendered by the defendant to prove his claim against the defendant. There is nothing in exhibit “J” which admits liability for the debt in the relevant period of 1988 when the statute of limitation does not apply.
The real period of limitation commenced from the date the cause of action arose in 1980. In the case of a simple debt, the period prescribed by the Limitation Act is 6 years. This period excludes
1980 – 86, when the statute of limitation will apply to bar the claim covered within that period but the period from 87 – 88 is not affected by the statute of limitation when the writ was issued in 1990. In exercise of the powers conferred on the Court of Appeal by section 16 of the Court of Appeal Act, I have looked at the record of proceedings in this appeal, the testimony of the sale plaintiff witness at page 17 of the record of proceedings show that the sum of N3,984 is combined employee/employer contribution for the period July 82 – January 87; N30,309.36 for the period January 1980 – January 1987. Penalties raised for the period is N410.38.
The period from January 1980 – 1986 is by law barred from recovery by court action. Further evidence will be required to determine what is outstanding in the period excluded from the statute of limitation. The Court of Appeal is not empowered to take evidence, and will not presume to direct the plaintiff’s claim in the court below.
I will in the event decline to make an order as to the sum due after 1984; suffice it to say that the appellant succeeds in part on issue one. From the opinion expressed above, the appellant succeeds
in issue 2, as well. I therefore allow the appeal in part and will dismiss in part the plaintiff’s claim, which is barred by the operation of the statute of limitation since the cause of action on the debt arising from 1980 – 1986 cannot be recovered by a court action.
Exhibit “L” is a document made in the course of the hearing of the suit and it was made by a party who is interested in the proceedings. The director who signs it is interested in the proceedings. The objection raised at the hearing by the appellant is in my view well founded and the court below was in error to admit exhibit “L” in evidence. Exhibit “L” is a document made by a director
of the plaintiff who is interested in the on going proceeding. To that extent the said statement or document is inadmissible. See Anyaebosi v. R. T. Briscoe Ltd. (1987) 3 NWLR (Pt. 59) SC at p. 84.
In my view and I so rule, the learned trial Judge was in error, and had a misconception of the impact of section 38 of the NPF. The document prescribes a prima facie evidence, which is rebuttable if the document was not made during the pendency of a proceeding in court, when the document may be admissible. The provisions of section 38 National Provident Fund Act does not and should not have been viewed by the learned trial Judge as defeating the provisions of the Evidence Act on admissibility of evidence. I find nothing to disparage in the admissibility of exhibit “C-C1”. Plaintiff’s claim is founded on it. Exhibit “M-M1′ does not reflect correctly the plaintiff’s claim.
In sum, the appeal succeeds in part; and the plaintiff’s claim in the court below is dismissed in part. There will be no order for costs.
Other Citations: (2004)LCN/1648(CA)