Yekini Ogoh V. Enpee Industries Limited (2003)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

T

he appellant, as plaintiff, commenced action against the respondent, then the defendant, at the Lagos State High Court presided by Honourable Justice F. A. Owobiyi. The writ taken out by the appellant is dated 3rd February, 1988. Appellant was by the said writ claiming the sum of one hundred thousand naira being special and general damages against the respondent. Respondent had wrongfully dismissed the appellant from its employment vide the letter dated 3rd July, 1981.
Pleadings were ordered, filed and exchanged between the parties.

By a motion on notice, dated 24th day of March, 1993, the respondent asked of the lower court for:
(1) An order dismissing this suit for not having been commenced within 6 years from the accrual of the alleged cause of action.
(2) And for such further order or orders as this Hounourable Court may deem fit to make in the circumstance.

A seven-paragraph affidavit supported respondent’s application.

Paragraphs 3, 4 and 5 of the supporting affidavit thereto are crucial and have been reproduced hereunder:
“3.That the plaintiff’s employment with the defendant was determined vide the defendant’s letter of dismissal dated 3rd July, 1981.
4. That the plaintiff commenced this action by filing the writ of summons and statement of claim on 3rd February, 1988 and 22nd March, 1988 respectively.
5. That I am informed by counsel to the defendant/applicant. Messers Adenekan, Dosumu & Akinrin (Solicitors) and I verily believe that the action as presently constituted is statute-barred.”

It would seem that appellant had filed a counter-affidavit to oppose respondent’s application. The counter-affidavit reflected at page 63 of the record of appeal has eight paragraphs. Paragraphs 2 to 7 of the counter-affidavit are important and are reproduced below accordingly.
“2. That my counsel Alhaji Ibrahim has shown to me the motion dated 24th March, 1993, filed by the defendant.
3. That I am surprised at the point raised by the defendant.
4. That I believe it is a ploy to delay the action further because it is untrue that my action is statute barred.
5. That the delay in finishing the action was caused by defendant’s failure to get counsel to represent them after the exit of Mr. Bode Popoola.
6. That I am informed by my counsel Alhaji Ibrahim and I verily believe him that my right to this action came to light in 1987 when I was pronounced innocent by the Chief Magistrate, Grade 1 at Yaba Magisterial District.
7. That a copy of the judgment of the court was sent to the defendant.”

Arguments were heard from both sides and the lower court in a considered ruling dated 11th July, 1996 granted the respondent the order sought. In the result, appellant’s action was accordingly dismissed.

Not being satisfied by the lower court’s ruling, the appellant has filed the instant appeal on four grounds. Parties have filed and exchanged their briefs of argument. The briefs contain the issues formulated by them as arising for the determination of this appeal.

The four issues formulated by the appellant are:
“(i) Whether on the totality of the pleadings and the evidence available the learned trial Judge was correct to have dismissed the plaintiff’s claim on the ground that same is statute barred.
(ii) Whether the statute of limitation is a special defence specific pleading in the statement of defence.
(iii) When did the cause of action arise.
(iv) Whether the lower court violated the plaintiff/appellants right to fair hearing by the refusal of the Judge to adjudicate on the plaintiff/appellant’s counter-affidavit.

The lone issue formulated by the respondents reads:
“Whether the learned trial Judge was right in dismissing the action of the appellant having regard to the date when the appellant was dismissed from his employment and the date he instituted his action at the court below.”

At the hearing of this appeal, parties adopted their briefs as arguments in prosecuting the appeal without more.

In arguing the appeal, appellant contends that the lower court’s ruling dismissing his action was wrong at least for three reasons.

Firstly, appellant contends the court was wrong when it decided on respondent’s application for the dismissal of the action without considering the counter affidavit filed thereto.