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Home » Nigerian Cases » Court of Appeal » Yekini Ogoh V. Enpee Industries Limited (2003) LLJR-CA

Yekini Ogoh V. Enpee Industries Limited (2003) LLJR-CA

Yekini Ogoh V. Enpee Industries Limited (2003)

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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.”

See also  Tokunbo Shogbola & Ors V. Alhaja B. Kudaisi (2002) LLJR-CA

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.

Secondly, it is also appellant’s case that respondent could not be said to have discharged the burden placed on him by law to plead and prove the fact that the action filed against him was statute barred. The cause of action in the suit filed by appellant accrued with appellant’s acquittal in the charge No/A/167/81 C.O.P. v. Yekini Ogoh on 3rd August, 1987, and not the 3rd July, 1981.

Lastly, appellant argues that respondent having entered unconditional appearance on the writ of summons taken against it, had voluntarily waived its rights to challenge the competence of the suit. Beyond the appearance which respondent entered, it also filed its statement of defence.

In support of the foregoing contentions, appellant has referred and relied on the following judicial authorities; Jimoh A. Odubeko v. Victor G. Fowler & Anor. (1993) 7 NWLR (Pt.308) 637 at 660; A.C.B. Plc. v. Nbisike (1995) 8 NWLR (Pt.416) 725; Ekiyor v. Bomor (1997) 9 NWLR (Pt.519) 1; and Adene v. Dantumbu (1988) 4 NWLR (Pt.88) 309.

Appellant argued that the appeal be allowed by setting aside the lower court’s ruling. He asked also that we remit the substantive suit for trial on the merits before another Judge.

In arguing his lone issue, respondent argues that since S. 8(1)(a) of the limitation law of Lagos State had provided a time frame within which appellant was to bring his action and appellant had failed to institute the said action within the time the law allowed, appellant cannot in law maintain the action. It is further submitted that appellant’s cause of action had arisen, and both the writ of summons and the statement of claim have averred same, on 3rd July, 1981.

Respondent submits that appellant cannot be heard to say that his cause of action arose in 1988 after his acquittal, as that is not what the law provided.

Lastly, respondent submits that the issue or competence or jurisdiction of a court cannot be waived by parties who relate to such actions. Respondent relies on Michael Obiejima v. Alexander Okoye (1961) 1 SCNLR 144, (1961) All NLR 357; and Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684; (2001) 1 SC 50 at 65.

All the four issues formulated by the appellant seem to be subsumed in the respondent’s lone issue. It is accordingly most convenient to consider the respondent’s lone issue in the determination of this appeal.

Both parties in this appeal appear ad idem as to when appellant’s employment was determined by the respondent. By paragraph 4 of appellant’s amended statement of claim and beyond it paragraphs 3 & 4 of the affidavit in support of respondent’s motion dated 24th March, 1993, the ruling in respect of which brought about the instant appeal, appellant’s employment with the respondent was determined on 3rd July, 1981 vide a letter to that effect.

See also  Emmanuel U. Ezenwere & Anor. V. Donald Ezenwere & Ors. (2002) LLJR-CA

In compliance with the principle enunciated in Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) at 1, the lower court determined when appellant’s cause of action accrued and whether or not the cause of action as accrued was statute barred by reference to appellant’s statement of claim. Appellant’s pleadings contained when he was sacked from respondent’s employment and by which agency. It is this agency, the letter of dismissal and when it was issued which provided for both the appellant’s cause of action and when the cause of action arose.

Appellant has argued that his cause of action arose on 3rd August, 1987, the date of his acquittal by a different court in respect of criminal charge No. A/167/81. This cannot be. The lower court is correct to have held otherwise.

It is trite that cause of action is the circumstance or the entire set of same that gives rise to an enforceable claim. It is otherwise known as such fact or combination of facts which as of necessity the plaintiff must prove to be entitled to a positive decision in respect of his claim. Without such fact or facts in place a right of action would arise. See – Savage v. Brown Uwaechia (1972) 3 SC 214; Emiatar v. Nigerian Army & Ors. (1999) 13 NWLR (Pt.631) 362 and Hanseatic International Ltd. v. Usang (2002) 12 NWLR (Pt.784) 376 at 408.

Like the trial Judge, I am not aware of any law which makes the acquittal of appellant a necessary fact to the accrual of action in a matter that was purely a civil wrong. Unmistakably it was the fact of appellant’s wrongful dismissal from the employment of the respondent as conveyed by the letter to that effect which constituted appellant’s cause of action. The date of the letter which signified such fact, the lower court is right, provides the date when appellant’s cause of action arose.

Respondent invoked S. 8(1)(a) of the Lagos State Limitation Law to ask for the dismissal of appellant’s action at the court below.

S. 8(1)(a) provides:
“(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued:
(a) Actions founded on simple contract.”

We are bound by the ordinary meaning of the constitutive words to the foregoing plain statutory provision. That is what the literal rule of interpretation of statute is all about. See – Ogbuanyinya v. Okudo (1979) 6 – 9 SC 32; Ifezue v. Mbadugha (1984) 1 SCNLR 427 and LCDC Ltd. v. A.-G., Federation (2002) 14 NWLR (Pt.786) 1 at 21 – 22.

In applying the literal rule of interpretation to the foregoing statutory provision vis-a -vis the facts of the instant case, it becomes glaring that the appellant whose cause of action had arisen on or by 3rd July, 1981 but approached the lower court on 3rd February, 1988, was out of the time allowed by the law for the enforcement of such an accrued right of action. In its determination of whether or not appellant was affected by the limitation created by S. 8 (1)(a) the lower court, and rightly too, looked at appellant’s writ and statement of claim as to when appellant was dismissed against the background of the date appellant filed his writ of summons. Not surprisingly, it concluded that the time appellant filed his writ of summons was beyond the six years allowed by law thereby making such a process incompetent.

It is certainly the law that where a statute provides for the bringing of an action within a prescribed period in respect of a cause of action that had accrued to a claimant, proceedings cannot be brought after the time prescribed by such a statute as was sought to be done in the instant case. To the extent, therefore, respondent had by challenging the competence of the action of the appellant in view of the limitation law, and the challenge having been sustained and the accrued cause of action was extinguished, such a plea constitutes a complete and special defence.

See also  Joseph Adeyinka & Ors V. Lydia Mojirola Abidoye (1997) LLJR-CA

Appellant’s argument, in reality, is to the extent that he had suffered some form of disability which made it impossible to commence his action within the time prescribed by the law. The lower court would be wrong in its dismissal of appellant’s action if, the law, had infact recognized the disability appellant canvassed before that court. Instructively, the fact that appellant was stopped from instituting his action within the time allowed by law, in view of the criminal trial he had to undergo, is not a disability recognized by the Lagos State Limitation Law, Cap. 67. Certainly, appellant’s action was neither based on some fraud or mistake on the part of the respondent. Appellant, therefore, cannot seek the postponement of the limitation period by virtue of S. 58 and S. 59 of the relevant statute on the ground that, his action was brought on the discovery of the fraud or mistake. The only other disability by the combined operation of S. 35 and S. 36 of the Limitation Law, that would have extended the limitation period and make appellant’s otherwise unenforceable cause of action competent is, if appellant had shown that he was an infant or a person of unsound mind at the time of the accrual of the cause of action. Appellant was not.

Lest I forget, a suit not commenced by the procedure provided by law cannot be proceeded upon by the court even when parties had consented that it should. Parties cannot confer jurisdiction on a court where none had existed in the first place.

Lastly, appellant has argued that the lower court’s failure to consider his counter-affidavit before dismissing his action on the basis of respondent’s motion is fatal. It is not. There was enough material in the writ and statement of claim of the appellant to sustain the decision of the lower court.

The decision could not have been different from what it presently is, even if, appellant’s counter affidavit, had been considered. After all, in its determination of whether appellant’s action was caught by the limitation law or not, all the court needed to refer to was the time of the accrual of appellant’s cause of action and the time his writ was filed. These are facts discernible from the writ and appellant’s claim rather than the counter-affidavit that merely re-states these facts. Resultantly, the court’s omission to consider appellant’s counter-affidavit in the determination of the controversy before it does not violate appellant’s right to fair hearing. The court had considered all the relevant facts it needed to. The facts as considered justify the decisions reached.

The decision is unassailable.

Invariably, all the four issues raised by appellant must be resolved in respondent’s favour.

Resultantly, I hold that this appeal lacks merit. I dismiss it. I make no order as to costs.

Other Citations: (2003)LCN/1425(CA)

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