Nigerian Ports Authority Plc V. Lotus Plastics Limited & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

By a writ of summons dated 10-4-96, the plaintiff, Lotus Plastics Limited, instituted an action at the Federal High Court sitting at Lagos against the Nigerian Ports Authority Plc and Elder Dempster Agencies Limited as 1st and 2nd defendants respectively and claimed the following reliefs:-

1. The sum of US$49,300.00 cost of the bus and freight or its Naira equivalent at a date of judgment on commercial exchange rate.
2. The sum of N300,000.00 cost of survey.
3. The sum of N1,000,000.00 general damages.

Pleadings were ordered by the trial Federal High Court on 047- 96. The plaintiff duly complied with this order by filing its statement of claim on 23-7-96. However, the pt defendant, the Nigerian Ports Authority Plc, without filing its statement of defence decided to challenge the competence of the plaintiff’s claim against it by filing a motion on notice dated 16-8-96 pursuant to Order 27 rules 1 and 3 of the Federal High Court Civil Procedure Rules, 1976 and sought for an order:

“dismissing this suit against the 1st defendant/applicant for failure of the plaintiff/respondent to comply with the provisions of section 72(1) of the Ports Decree No. 74 of 1993 and for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

In the affidavit in support of this application, it was averred in paragraphs 3 and 4 thereof as follows:-

“3. That I am informed by counsel handling this matter, Mrs. O. J. Laoye and I verily believe her that the plaintiff/respondent did not commence this action within 12months next after the act, neglect or default complained of.

That I am further informed by the said counsel and I verily believe her that the plaintiff/respondent did not comply with the provision of section 72(1) of the Ports Decree No. 74 of 1993 and this action should be dismissed with costs.”

The motion which came up for hearing before Bioshogun, J. on 31-7-97, was duly argued and in his ruling delivered on 22-9-97, the learned Judge of the trial court upheld the objection of the 1st defendant and dismissed the plaintiff’s claim mainly on the ground that the claim was incompetent for the failure of the plaintiff to bring the action within the 12 months period prescribed under section 72(1) of the Nigerian Ports Decree No. 74 of 1993.

The plaintiff was aggrieved by this ruling of the trial court and therefore appealed against it to the Court of Appeal Lagos Division where the appeal was heard on its 10-10-2000. In its judgment delivered on 29-11-2000, the Court of Appeal allowed the plaintiff’s appeal and held that the trial court was wrong in dismissing the plaintiff’s action. Part of this judgment at pages 113-114 of the record of this appeal reads:-

“In this case the cause of action accrued on 26th May, 1993. Time begins to run from that day till the period of limitation required depending on the type of action. See the case of Adimora v. Ajufo (1988) 3 NWLR (Pt.80) l.

In the instant case, the cause of action arose on 26th May, 1993 upon discovery of damage to the Bus.

The suit was filed on 10th April, 1996 almost 3 years after the cause of (sic) accrued. The action in my view is still in order and not caught by the 12 months bar. I therefore hold that the learned trial Judge was wrong in dismissing the plaintiff’s action as statute barred under section 72(1) of Decree No. 74 of 1993.”

Before arriving at this decision, the lower court examined the nature of the claims of the plaintiff in the statement of claim in relation to the statutory duties and functions of the 1st defendant under the provisions of the stature that created it and came to the conclusion that the defence of the plaintiff’s action being statute barred under section 72(1) of the Nigerian Ports Decree No. 74 of 1993, was not available to the 1’1defendant in private contractual relations with other parties to justify the trial court’s dismissal of the action. The court below also faulted the decision of the trial court raising, suo motu, the issue of the alleged failure of the plaintiff to issue a pre-action notice, without affording the parties a hearing.

The 1st defendant which was not happy with this decision of the Court of Appeal then decided to appeal to this court against it.