Romen Ogboru & Ors V. Shell Petroleum Development Company of Nigeria Limited & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ABBA AJI, J.C.A.

The appellants in this appeal instituted this action against the respondents before High Court Delta State in the Warri Judicial Division claiming the following reliefs jointly and/or severally against the respondents:-

“(1) A declaration that the plaintiffs are the children of late Solomon A. Ogboru who are entitled to service benefits and the scholarship scheme approved by the first defendant for the benefit of the children of the deceased.

(2) Order on the first defendant to pay the service benefits to the third defendant for the service benefits of the children of Solomon A. Ogboru.

(3) Order on the first defendant to replace the names John S. Ogboru, Miss Gasis Ogboru and Miss Areke Ogboru falsely placed in the first defendant’s master list of the children of late Solomon A. Ogboru with the names of the plaintiffs who are the only children of the deceased; Solomon A. Ogboru.

(4) Order on the second defendant to give account of the management of the personal property of the late Solomon A. Ogboru comprising (a) Two Cars (b) One Austin Bedford lorry bearing registration number WF … (c) Two buildings in Warri; and Effurun (d) Money at the African Continental Bank Plc, Ughelli, First Bank of Nigeria Plc (Standard Bank of Nigeria Ltd.) and Union Bank of Nigeria Plc (Barclays Bank of Nigeria Ltd.) with accruable interest of 80%.

(5) N50,000,000.00 (fifty million naira) against the first defendant being general damages in that on the 13th of February, 1981 the deceased S. A. Ogboru was burnt to death in the company premises in Warri in the course of his official duties without any rescue of the deceased from the first accident by the first defendant thereby depriving the plaintiffs their dependancies on their deceased father S. A. Ogboru.

(6) 400% interest on the moneys payable to the plaintiffs as claimed above being the rate of inflation on the said moneys.”

Pleadings were filed and exchanged. Thereafter, the respondents filed a motion under Order 24 of the High Court (Civil Procedure) Rules, 1988 of the Bendel State of Nigeria as applicable to Delta State seeking the Order of the lower court to dismiss the action of the appellants on the ground that the action is statute-barred. The lower court in a reserved ruling delivered on the 28th day of October, 1996 dismissed the suit of the appellants. This is what the learned trial Judge held in dismissing the appellants’ claim:

“In paragraph 5 of the statement of claim, the plaintiffs/respondents averred that Solomon Ogboru, their father was burnt to death while executing his duties in the course of his employment with the 1st defendant on the 13th day of February, 1981. The cause of action therefore arose on the 13th February, 1981 and time begins to run from that date for the purposes of statutory limitation of actions, This action was not filed until 11th day of July, 1995 – a period of 14 years after the cause of action arose, I am therefore of the clear view that the cause of action is statute barred, I am unable to accede to the submission of learned counsel for the plaintiffs that time does not run against the plaintiffs because the 1st and 2nd defendants are implied trustees of late Solomon A. Ogboru and a case of fraud and breach of trust was established against them, Exhibits DM1 and DM2 show clearly that late Solomon Ogboru listed in his record of service with the 1st defendants, Ogboru, Oasis Ogboru, and Anekes, Ogboru as his children and as such the submission of learned counsel for the plaintiffs/respondents that the 2nd defendant/applicant changed or replaced their names as children of late Solomon Ogboru is untenable. Suffice it therefore to say that the plaintiffs/respondents have not established a case of fraud and breach of trust against the 2nd defendant/applicant. The submissions of learned counsel for the plaintiffs/respondents that as the 2nd defendant/applicant filed an unconditional appearance he has waived his right to raise the statute of limitation is misconceived because exhibit DDM7 attached to the reply to the counter-affidavit puts it beyond argument that a conditional appearance was filed by the defendants/applicants and not an unconditional appearance.

The plaintiffs/respondents in this case are left with nothing to enforce because the action is statute-barred and the proper order to make in the circumstances is the one dismissing the plaintiffs’ case in its entirety, Accordingly, the plaintiffs’ claims are hereby dismissed with costs assessed at N200,00 to the 1st and 2nd defendants/applicants,”

The appellants being dissatisfied with the said ruling appealed to this court upon five grounds of appeal. The grounds of appeal without their particulars reads:

“(1) The ruling is against the weight of evidence.

(2) The learned trial Judge erred in law when he held that the action is statute-barred.