IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE PORT HARCOURT JUDICIAL DIVISION

HOLDEN AT PORT HARCOURT.

 

BEFORE HIS LORDSHIP: HONOURABLE JUSTICE Z. M. BASHIR.

 

Dated: 30th day of April, 2024                      SUIT NO:   NICN/PHC/84/2022

 

BETWEEN:

 

MOSES AMADI-IBEH                 -----------------------              CLAIMANT

 

AND

 

OCEAN MARINE SOLUTIONS            ---------------              DEFENDANTS

 

Representations:

U. S.  Ejemrae for the Claimant.

U. O. Umo-Udofia for the Defendants.

 

Judgment.

This suit was commenced by way of a General Form of Complaint filed on the 30th day of June, 2022 along with a verifying affidavit, statement of fact, list of witnesses, witness statement on oath, list of documents and copies of the listed documents to be relied upon at trial.

Arising from the amended statement of fact, the Claimant’s claims against the Defendants are:

1.        A Declaration that by virtue of Article 6 of the Defendant's Staff Handbook and the Defendant's letter dated 2nd April, 2012, the Claimant as a staff of the Defendant is entitled to be paid compensation in respect of the injury sustained on 7 July, 2012, while still a staff of the Defendant.

2.        A Declaration that the failure, refusal and/or neglect by the Defendant to pay to the Claimant, compensation in respect of the injury sustained while on board the Defendant's Vessel as stipulated in Article 6 of the Defendant's Staff Handbook, and the Defendant's letter dated 2 April, 2012 is wrongful, unjustifiable, oppressive, unconstitutional and amounts to torture and a breach of the Claimant's fundamental rights to be treated with dignity to their persons.

3.        A Declaration that the Claimant is entitled to be paid the sum of N20, 000, 000 (Twenty Million Naira) as Compensation as stipulated in Article 6 of the  Defendant's Staff Handbook, and the Defendant's letter dated 2nd April, 2012.

4.        A Mandatory Order of Court directing the Defendant by itself, servants, agents, privies and collaborators to forthwith pay to the Claimant the aforesaid sum of N20, 000, 000 (Twenty Million Naira) as compensation for injuries sustained by him as a staff of the Defendant and while on board the Defendant's vessel.

5.        Interest on the aforesaid sum of N20, 000, 000. 00 (Twenty Million Naira) at the rate of 23% per annum from 20th May, 2022 till the date of judgment in this suit and thereafter until the judgment sum is paid off.

Reacting to the complaint and statement of facts, the Defendant on the 25th day of July, 2022 filed memorandum of appearance, accompanied by statement of defence, list of witnesses, witness statement on oath, list of documents and copies of the said documents to be relied upon at trial.

 

Upon receiving the statement of defence, Claimant filed a reply to the statement of defence on the 10th of October, 2023.

 

Trial commenced on the 11th of October 2023 and the Claimant in opening his case presented himself as the sole witness (CW1), he adopted his witness statements on oath marked as C1 (a) and C1 (b). Through the said CW1, 4 documents were tendered in evidence and admitted as Exhibits C2 – C5. Exhibit C2 is the claimant’s appointment letter dated 28th November 2008, Exhibit C3 is the Handbook, Exhibit C4 is the claimant’s revised terms of employment letter dated 2nd April 2012, Exhibit C5 (a - y) are the medical reports and receipts

Arising from the statement of facts and witness statements on oath, the case of the Claimant is that the Claimant is a Marine Engineer and a professional, who was employed by the Defendant vide a letter of appointment dated 28th November 2008 with responsibilities of ensuring safe navigation of ship, cleanliness and sea worthiness of the ship. And that the claimant’s employment is governed by the Handbook which contains conditions of service and also retirement benefits, pension and gratuity and other benefits. That on the 7th July 2012, there was a fire outbreak in defendant’s vessel NNS Vanguard at the Bonny Shell slot that came to relieve the defendant’s vessel NNS Fortress after a successful voyage. That the Claimant was on board defendant’s vessel NNS Fortress, and that the claimant and one of the personnel on board the vessel NNS Fortress had to risk their lives to put out the fire on vessel NNS Vanguard and as a result of the non-availability of the required protective equipment and tools to put out the fire, the Claimant sustained an injury. And that the claimant was taken to the defendant’s medical facility and he was administered drugs for the pain to subside. The claimant alleged that after the aforesaid fire accident, the claimant has been in and out of several hospitals and have been going through excruciating pain since then till date. And the claimant carried out a MRI Scan which revealed that his spine was adversely affected by the accident and he was in need of urgent medical care and physiotherapy, the Claimant stated further that he notified the Defendant of his discovery but that the Defendant merely referred him to their medical facility. And that all through this period that the Claimant sustained injury, he continued to work for the Defendant under great pains with the aid of a lumber support, posture Corrector and back stretcher to enable him carry out his duties, and as a result of his work schedule, he was unable to meet up with regular medical appointments. That instead of the defendant to ensure adequate medical care for him after 14 years proceeded to terminate his employment on the 30th December 2021. The claimant added that he has become unemployable as a result of the injury sustained while working for the defendant.

Upon cross examination, CW1 admitted that he sustained an injury when the NNS Vanguard caught fire and it caught fire on 29th April 2012 and that he was not a crew member of the said vessel NNS Vanguard but was on board the sister vessel but they were together when the fire started and he brought the fire extinguisher but he slipped when he was approaching the fire. He admitted there were crew members in NNS Vanguard and that nothing happened to NNS Fortress he was in. He admitted that his complaint is the fall as he has been having pains ever since then, he also admitted that he doesn’t have surface injury but that he had MRI Scan and was diagnosed with a slip disc. He insisted that in Exhibit 5(c) it was stated that he has a slip disc and requires surgery/physiotherapy. He stated that St Martin’s hospital has his medical report but that the issue of slip disc was not identified in any of his previous medical checks.

Upon the discharge of CW1, Claimant closed his case while the Defendant on 23rd day of November 2023 opened theirs by calling one witness in the person of Mrs. Chinemerem Ikechi as DW1 who adopted her witness statement on oath which was marked as D1. Through DW1, 2 documents were tendered and admitted as Exhibits D2 & D3 (a – c) respectively. Exhibit D2 is Claimant’s letter to the Defendant dated 13th January 2022, Exhibit D3 are medical assessments of the claimant while Exhibit D4 which is titled OMS1  NNS Vanguard fire outbreak, was tendered by the claimant through DW1 but was admitted under protest.

Arising from the statement of defence and witness statement on oath, the case of the Defendants is that the claimant was an employee of the defendant and that the said employment was governed by a Handbook which contains the condition of work contract. Defendant alleged that contrary to the facts alleged by the claimant, the incident of fire out break on NNS Vanguard happened on 29th April 2012 as against 7th July 2012 stated by the claimant, and that the fire was put out by the Shell Producing Development Company Limited fire service according to the Defendant’s internal investigation report titled NNS Vanguard Fire Outbreak. And that there were 13 crew members on board NNS Vanguard but that the claimant was not one of the crew and that none of the crew member on board NNS Vanguard sustained any injury. The defendant denied that the claimant sustained any injury while in the normal course of his employment with the defendant and that the defendant never referred him to any medical facility. And that there was no correspondence between the claimant and the defendant of the medical condition of the claimant that he suffered. That it was after the claimant’s employment was terminated on the 30th December 2021 that he wrote to the defendant on 13th January 2022 for the first timed alleging he sustained injury. But that during the course of claimant’s employment the claimant undergoes regular medical assessments conducted by the defendant to ensure that the claimant is fit to continue as a seafaring man. The defendant averred further that if the claimant wears lumber support it means that the claimant concealed such fact from the defendant. He added that this suit is statute barred.

Upon cross examination of DW1, he admitted that Vessel NNS Fortress belonged to the defendant but could not confirm if the claimant was on board NNS Fortress on the 29th April 2012 and could not recall the names of the staffs on board the vessel, he denied that NNS Fortress was the first to attempt extinguishing the fire during the fire outbreak on NNS Vanguard, He admitted that some persons sustained injury during the fire out break and that the defendant had fire extinguisher, PPE, water hose as a protective gears for fire, and that a panel was set up by the defendant to investigate the cause of the fire and activities after the fire incident but that he is not aware if the panel obtained any statement from any person on board NNS Fortress. He admitted further that the defendant company does a regular medical check on their employees, and that the kind of injury sustained by the claimant is part of the regular medical check. He denied the defendant being aware of the claimant sustaining any injury and intentionally allowing the claimant to continue work despite the injury. He added that copies of the claimant’s medical report with the defendant were shown to the claimant and that the fitness test is part of the medical examination and also that MRI was carried out. He admitted that NNS Vanguard came to relieve NNS Fortress and that no staff received any treatment as they were not injured and that there was no physical injury. He admitted that the claimant reported injury in 2022 and not 2012.

Upon the discharge of DW1, the Defendants closed their case and the matter was adjourned for adoption of final addresses. The Defendant on the 24th of November, 2023 filed their final written address and arising therefrom, Counsel to the Defendant, U. O. Umo-Udofia Esq., formulated two issues for determination to wit:

1.        Whether this Honourable Court has Jurisdiction to entertain this matter in view of Section 16 and 17 of the Limitation Law of Rivers State 1999?

2.        Whether the Claimant is entitled to his Claims in view of the evidence he adduced?

In arguing the first issue counsel submitted that by the provision of Section 16 of the Rivers State limitation law any action founded on tort or contract cannot be brought after the expiration of five years from the date on which the cause of action accrued. Counsel added that to determine the date when the cause of action accrued resort must be had to the claimants originating processes. Counsel cited AGI V. ENO [2010] 5 NWLR PT 1188 626 r 1 @ 628.  Counsel stated that the Claimant stated the date of the incident to be 7th of July 2012, but admitted under cross examination that the incident actually took place on the 29th of April 2012. Counsel states further that the Claimant initiated this action on the 30th day of June 2022 which is 10 years and 2 months after the cause of action accrued.

Counsel contends that the Claimant’s position that the effect of the injury he sustained is keeping the cause of action alive is erroneous from the principle of continuing trespass. Counsel cited ONAGORUWA V. AKINREMI [2001] 13 NWLR PT 729 38 r 5 @ 48. Counsel contends that the concept of continuing trespass cannot however be juxtaposed in personal injury cases to give life to a cause of action because the effect of the injury continues to persist. Counsel added that effect is different from cause and that what the law recognizes to determine whether or not a cause of action is caught by the statute of limitations is the cause of action not its continuing effect. Counsel cited GULF OIL CO. (NIG.) LTD V OLUBA [2002] 12 NWLR PT 780 92 @ 112 PARA F-H. Counsel submits that the Claimant has referred to one incident where he allegedly he sustained an injury. That it is the date of that incident that will be considered to determine whether or not his action is statute barred and that for the purpose of this matter the date is 29th of April 2012. That the Claimant by reason of Section 16 of the Limitation Law of Rivers State had five years from that date of the alleged incident to initiate an action seeking redress for any alleged breach of duty attributable to the Defendant for the injury he sustained

Counsel submitted further that the Claimant’s action having been brought outside the time prescribed by Section 16 of the Limitation Law of Rivers State is clearly caught by the statute of limitations and is consequently statute barred. And that once an action is statute barred a claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such an action has elapsed. Counsel cited ARAKA V. EJEAGWU [2000] 15 NWLR PT 692 684 r 6 @ pg 693. He added that any action brought outside the time limited by statute is not only incompetent, but robs the Honourable court of the jurisdiction to entertain the action. Counsel cited USENI V ATTA [2023] 8 NWLR PT 1887 519 @ 546 PARA F-G.

In arguing issue two, counsel stated that the Claimant asserted that he sustained an injury as a result of a fire outbreak on the Defendant’s vessel NNS Vanguard. However, the claimant admitted that he was not a crew member of the NNS Vanguard but of the NNS Fortress, and that nothing happened to the NNS Fortress of which he was a crew member of. That the Claimant voluntarily left his vessel that was not in danger and put himself in harm’s without any prompting of the Defendant. Counsel contends that a person cannot complain about any injury suffered resulting from the consequences of his own volition.

Counsel contends that the claimant in his pleadings was silent on the nature of the said injury, how it happened and what caused it, but that under cross examination the Claimant told the court the truth. And according to the Claimant he fell down on the slip way, when crossing from his vessel to the NNS Vanguard to help put out the fire as against his deposition that he sustained the injured as a result of his effort to put out the fire, counsel added that he did not actually sustain any injury. Counsel contends that the claimant contradicted himself when he asserted that the results of the MRI scan indicated that the slip disc diagnosed of was as a result of the fall and he referred the Court to exhibit C5y, counsel contends that Exhibit C5y makes no such allusion. Counsel further posited that Article 6.4 contained in Exhibit “C3”, relied upon by Claimant for his entitlement to compensation indicates that the Claimant must show he suffered loss or injury that permanently incapacitated him from earning or working as an employee of the Defendant, but that the evidence before this Court is that the Claimant continued in the employment of the Defendant after the said incident in 2012 until December 2021 when he was relieved of his employment.  

In conclusion counsel stated that the Claimant has in the circumstances, wholesomely failed to discharge the burden of proof placed upon him, counsel urged the court to dismiss this suit.

The Claimant on his part filed his final written address on the 5th day of February, 2024 and arising therefrom, counsel to the Claimant M. Uzonwanne Esq. formulated a lone issue for determination to wit:

Whether or not from the totality of evidence adduced during trial, the Claimant is entitled to the reliefs as endorsed on the Writ of Summons?

 

Before arguing the said issue counsel first address the issue of jurisdiction raised by the defendant counsel in his address, on the issue of section 16 of the limitation Law of Rivers State counsel submit that by Section 254 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 7 of the National Industrial Court Act, that this court has the jurisdiction to hear and determine this suit. Counsel also relied on Section 9, 12 and 17 of the Employees Compensation Act, 2010. Counsel added that by the combined effect of section 254 (C) (I) (K) of the Constitution of the Federal Republic of Nigeria, Section 7, 12 and 17 of the National Industrial Court Act and Section 17 of the Employees Compensation Act shows that this court has the jurisdiction to hear and determine the claims arising from the incident that led to the claim.

Counsel stated that it is possible for a party to make his claim after the stated period provided by statute of limitation, if he is able to demonstrate that that there was a reasonable cause for delay, in the instant case that the Defendant has been taking care of the Claimant's health needs until his employment was terminated on 30th December, 2021. Counsel stated that the law made exceptions which are; if the injured worker did not lodge a claim as a result of ignorance or mistake, if he was absent from the state, if the injured worker did not become aware of the injury until sometime after the initial date of injury. Counsel stated that the Claimant only got to know about the extent of the injury years later after several tests were conducted on him and that the injury sustained by the claimant is a progressive injury and that the notice period begins to run as soon as the need for eventual corrective surgery arises. That the exception to limitation law is also where there is Fraud, Where there is lack of good faith, where there is abuse of office, where the action was ultra vires or without jurisdiction. Counsel submitted that the Defendant from the time the Claimant sustained the injury till his appointment was terminated acted in bad faith and was fraudulent with the way it handled the whole issue, and that the limitation been relied on by the Defendant cannot avail it in the circumstance, as both parties where aware of the claimant’s injury but didn’t know the extent of it, but that the claimant became aware as he continued having pains and went for further medical checkup before the extent of the injury came to bare.

On the issue raise by the claimant, counsel submitted that the law is trite that in civil cases the burden of proof is on the Claimant to satisfy the court on the assertion made in the pleadings and where a Claimant fails to discharge the onus of proof upon him at the close of pleadings, a Defendant is not obliged to adduce any evidence in rebuttal. Counsel cited HAYDER TRADING MANUFACTURING LTD, & ANOR. V. TROPICAL COMMERCIAL BANK (2013) LPELR. Counsel added that the Claimant must succeed on the strength of his case and not on the weakness of the Defendant's case if any.

Counsel submits that contract is an agreement between two or more parties creating obligations that are enforceable, recognizable at law and therefore binding on parties. He added that the Claimant sustained the injury in question while working for and still under the employment of the Defendant. Exhibit C3, specifically provides that where an employee like the Claimant in this suit suffers any injury in the course of his employment with the Defendant he is entitled to be paid compensation. Counsel also relied on Section 7 of the Employees Compensation Act to state that the claimant is entitled to compensation, as the claimant has proved by oral evidence and Exhibits tendered that he was indeed a staff of the Defendant and the injury sustained was in the course of his employment with them as a result of which he is entitled to damages. Counsel submits that the Claimant has successfully proved his case on the balance of probabilities and urged the court to grant the reliefs.

In response to the final address of the Claimant, the Defendant filed a reply on points of law on the 7th day of February 2024. Counsel in addressing the issue raised by the claimant stated that, on the issue of exception to limitation law raised by the claimant which are; if the injured worker did not lodge a claim as a result of ignorance or mistake, if he was absent from the state, if the injured worker did not become aware of the injury until sometime after the initial date of injury, that the exceptions are matters of fact that needs to be pleaded, but that the claimant never pleaded any of the above exceptions in its pleading and counsel address cannot be a place to introduce new evidence. Counsel cited UBA V. Ozigbo (2022) 10 NWLR [Pt. 1839] 431 @ 461 Paras C-E.

Counsel argues that by Section 4(1)of the Employees Compensation Act 2010 the claimant was bound to put the defendant on notice within 14 days of the occurrence of the injury and that the failure to inform the employer in writing of the injury constitute a bar to a claim for compensation under the Act. Counsel submitted that the failure of the claimant to inform the defendant in writing of his injury with the stipulated time stated by the Act, stands as a bar against the claimant’s claim.

In view of all the foregoing, I have painstakingly evaluated and understood all the processes filed by the parties in this suit. I have reviewed the testimonies of the witnesses called by both parties, watched their demeanor and carefully examined all the exhibits tendered and admitted. I have also taken into account the submissions of learned Counsel to both parties in their respective final written addresses.

Arising from the totality of the issues raised and argued by the Learned Counsel in the final written addresses for both parties, the issues for the determination of this suit are to wit:

1.     Whether or not in view of the facts and evidence before this court, the action of the claimant is statute barred.

2.     Whether the Claimants are entitled to the reliefs sought.

Before addressing the forgoing issues, it is imperative to state that in the course of cross examination of DW1 by counsel for the claimant, M. Uzonwanne Esq. sought to tendered Exhibit D4 through the defendant’s witness (DW1), however counsel for the defendant U. O. Umo-Udofia Esq. objected to the admissibility of Exhibit D4, the said document was subsequently admitted under protest while both counsel were directed to address the court on the admissibility or otherwise of the said document in their final written address. Both counsel failed to address the court on the issue of admissibility of the said document, consequently this court hereby deems the objection on Exhibit D4 as abandoned and admits Exhibit D4 in evidence.

I then turn to resolving the issues before the court, the first issue is whether or not in view of the facts and evidence before this court, the action of the claimant is statute barred.

There is no gainsaying that the issue of limitation raised by the Defendant’s counsel touches on the jurisdiction of this court and it is settled that jurisdiction is threshold hence it deserves every attention it gets and can be attended to at any stage of proceeding. And this court will consider the issue of jurisdiction first before determining whether the claimant is entitled to the relief sought. The court in FEDERAL AIRPORTS AUTHORITY OF NIGERIA v. MAEVIS LIMITED (2018) LPELR-51108(CA) held that, "The question of jurisdiction has become a recurring issue in adjudication. Jurisdiction is undoubtedly a threshold issue. The apex Court described the necessity of a Court to have requisite jurisdiction as follows: "Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit. Where a Court does not have jurisdiction to hear a matter, the entire proceedings no matter how well conducted and decided would amount to a nullity. It is thus mandatory that Courts decide the issue of jurisdiction before proceeding to consider any other matter, see BRONIK MOTORS LTD & ANOR v. WEMA BANK LTD (1983) 1 SCNLR 296." See OBIUWEUBI V CENTRAL BANK OF NIGERIA (2011) LPELR -2185 (SC)”. See also MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341

I recall that counsel for the defendant has argued that by virtue of the provision of Section 16 of the Rivers State limitation law any action founded on tort or contract cannot be brought after the expiration of five years from the date on which the cause of action arose. Counsel contends that the Claimant has referred to one incident where he allegedly sustained an injury which he admitted in evidence had occurred on the 29th of April 2012 as against 7th July 2012 written in his witness deposition. Counsel stated that the date the incident happened will be the determining date to consider whether or not this action is statute barred. Counsel added the Claimant initiated this action on the 30th day of June 2022 which is 10 years and 2 months after the cause of action arose. Hence the said action is statute barred and therefore robs the court of jurisdiction to entertain the suit.

On the other hand, Counsel for the claimant had contended that there are exceptions to limitation law which include where Fraud is involved, Where there is lack of good faith, where there is abuse of office, where the action was ultra vires or without jurisdiction. Counsel contends that the Defendant knew about the Claimant injury from the time he sustained it till his appointment was terminated and that they acted in bad faith and was fraudulent with the way they handled the whole issue, and that both parties were aware of the claimant’s injury but didn’t know the extent of it, but it only became apparent after periodic medical checkup of the claimant.

In the light of the forgoing contentions, the law is certain that in determining whether a Court has jurisdiction on a matter, the only document to be considered is the statement of claim containing the reliefs the claimant seeks from the Court. In MR. ALALADE OF HYDRA AGENCY NIGERIA LIMITED & ORS v. THE PRESIDING PRESIDENT OF THE OTA GRADE 1 CUSTOMARY COURT & ORS (2021) LPELR-55656(CA) the court held that, "I consider it well settled that jurisdiction is determined by the claim of the plaintiff. It is what the plaintiff submits to the Court for adjudication, that is to say, the subject matter and claim, that determines whether the Court has jurisdiction to entertain the claim or not. Therefore, the process to be examined in determining if the Court has jurisdiction to hear and determine the matter submitted to it for adjudication is the plaintiff's claim;

Having said that, the limitation law in question is Section 16 of the Limitation Law, cap 80 Laws of Rivers State, and same deserves a reproduction thus:

”No action founded on contract, tort or any other action not specifically provided for in parts I or II of this Law shall be brought after the expiration of Five years from the date the cause of action accrued”.

With regards to the above provision, the court in NWANOSIKE & ANOR v. UDENZE &
ANOR (2016) LPELR-40505(CA) stated categorically the essence of same when it held that:

"The whole purpose of a Statute of Limitation is that a prospective litigant must institute an action over a right that accrues to him in any matter within the time stipulated to claim his entitlement from the adversary who is making effort to take away his right or property. Where a Claimant instituted his action after or outside the time prescribed by Statute of Limitation or Limitation Law upon becoming aware of the wrongdoing being committed against the Claimant or his property, his right of action or enforcement or vindication of his right becomes terminated or extinguished…’’

In addition, the court in IBRAHIM v. LAWAL & ORS (2015) LPELR-24736(SC) stated the rationale for such provision of limitation law by asserting that:

“One may wonder why a person's right of access to court should be extinguished by law. The rationale for the existence of statute of limitation is that long dormant claims have more of cruelty than justice in them and that a defendant may have lost the evidence to disprove a stale claim and that a person with a good cause of action should pursue it with reasonable diligence”. Per OKORO, J.S.C. See also, OBA J. A. AREMO II VS. S. F. ADEKANYE & ORS (2004) 13 NWLR (PART 891) 572 at 592 A-H -593.

I therefore proceed to determine whether the action  of the claimants are indeed statute barred and it is settled law that in determining the competence of a suit, the determining factor is the plaintiff’s statement of claim, the court has a duty to carefully examine the reliefs sought to ascertain what the claim is all about. In HAMADU ALI AGENCIES LTD v. FIDELITY BANK & ORS (2019) LPELR-47981(CA) the court held that "In AMODU VS AJIBOYE (2000) 14 N.W.L.R. (pt. 686) 15 at 26 paras A-B the Court commenting on the moment when time begins to run for purpose of limitation law held thus: "The period of limitation in respect of any case runs from the date the cause of action accrued. To determine the date of the cause of action, one has to look at the writ of summons and the averments in the statement of claim and the evidence adduced in Court in order to find out when the wrong which gave the plaintiff right to the cause of action arose." See also AKWA IBOM STATE HOUSE OF ASSEMBLY & ORS v. IMENAM (NIG) LTD (2020) LPELR-50268 (CA).

While considering the statement of claim, the yardsticks to apply in determining whether an action is statute barred were clearly laid down by the Court in AJAYI V ADEBIYI (2012) 11 NWLR (Pt.1310) as follows:

a.                 The date when the cause of action accrued;

b.                 The date of commencement of the suit as indicated on the writ of summons (in this case the Complaint and statement of fact); and

c.                  The period of time prescribed to bring an action to be ascertained from the statute in question.

In applying the yardsticks, I have carefully considered the statement of claim where, for more emphasis I will reiterate the case of the claimant which is that the Claimant as a Marine Engineer was employed by the Defendant with the responsibilities of ensuring safe navigation of ship, cleanliness and sea worthiness of ship. That on the 7th July 2012 though he admitted the date of the incident to be 29th of April 2012 during cross examination, there was a fire outbreak in vessel NNS Vanguard at the Bonny Shell slot that came to relieve the defendant's vessel NNS Fortress which the claimant alleged he was in the said vessel NNS Fortress. The Claimant alleged that, he and one of the personnel on board the vessel had to risk their lives to put out the fire and as a result of the non-availability of the required protective equipment and tools to put out the fire, the Claimant sustained an injury. The claimant alleged that after the aforesaid fire accident, the claimant has been in and out of several hospitals and have been going through excruciating pain since then till date. And the claimant carried out a MRI Scan which revealed that his spine was adversely affected by the accident and he was in need of urgent medical care and physiotherapy, the Claimant notified the Defendant of his discovery but the Defendant merely referred him to their medical facility. And that all through this period that the Claimant sustained the said injury, he continued to work for the Defendant under great pains with the aid of a lumber support, posture Corrector and back stretcher to enable him carry out his duties. Unfortunately his employment was terminated on the 30th December 2021.

Learned Counsel to the Defendants, U. O. Umo-Udofia Esq., had based on the above narrative, picked 29th of April 2012 as the date the said fire outbreak occurred. Learned counsel asserted that from that period of 29th of April 2012 to the date the suit was commenced which is the 30th day of June 2022, is well over 10 years and 2 months after the cause of action accrued and that renders this suit statute barred and robs the court of jurisdiction to entertain same.

Accordingly, going by the holding of the court in BANK OF THE NORTH V GEINA (2006) ALL FWLR (Pt.296) 862 at 881 that “A cause of action arises at the date or time when a breach or any act that will warrant the person who is adversely affected by the act to take action in court” I find that rightly so, the cause of action arising from the statement of claim is the alleged fire outbreak incident where the claimant was alleged to have sustained the injury while in the employment of the defendant. Therefore, the learned Counsel to the defendants was right in marking this date as the possible date that can be used to calculate the difference between when the cause of action arose and when the suit was instituted. By the said date, this suit having being commenced on the 30th day of June 2022 was instituted approximately 10 years and 2 months after the alleged fire outbreak.

That notwithstanding, learned Counsel to the Claimant, M. Uzonwanne Esq. argued that there are exception to rule of limitation which are where there is Fraud, mistake, where there is lack of good faith, where there is abuse of office, where the action was ultra vires or without jurisdiction. Counsel contends that the case of the Claimant falls under bad faith and fraudulent attitude of the defendant which lies in the way they handled the whole issue, and that both parties were aware of the claimant’s injury but did not know the extent of the said injury until after the periodic medical checkup of the claimant.

It is without doubt that the law is that legal principles are not always inflexible, sometimes they admit of certain exceptions. In MICHAEL ONUOHA NWANKWO & ANOR v. ABEL C. OGBONNAYA NWANKWO (2017) LPELR-42832(CA) the court held that, "... Indeed, there are some exceptions to the limitation law set by various limitation statutes. These statutory limitations cover cases such as fraud, deliberate concealment by the defendant, or mistake or in a circumstance where there is a continuing injury or fresh damage arising from the same injury. Each fresh damage arising from the same injury or a continuing injury gives rise to a fresh cause of action, the term "continuing injury or damage" is an injury that is still in the process of being committed”.

Based on the authority above, we can elicit the exception to limitation law to be where there is fraud, deliberate concealment by the defendant, or mistake or in a circumstance where there is a continuing injury. Per Edozie in Aremo II v Adekanye (2004) ALL FWLR (Pt. 224) 2113 at 2132 - 2133 JSC while elaborating on continuing injury stated that, " …A continuing damage or injury is not merely continuance of the injurious effects of a legal injury but the continuance of the legal injury itself. It is the continuance of the act which caused the damage. The law is that, generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action. In other words "Continuation of injury" means the continuation of the act which caused the injury. See Abiodun v. Att. Gen. Fed (2007) 15 NWLR Pt. 1057 Pg. 359”.  Based on the forgoing, for the claimant to rely on this exception, the claimant is to show the continuance of the act which caused the damage and in the instant case there is no continuance of the act that caused the alleged injury for this court to infer that this exception to limitation applies to the claimant’s case.

In the aspect of fraud the court in ALFA AROWOSAYE v. FELIX OLUWASEUN OGEDENGBE & ANOR (2008) LPELR-3701 (CA) held thus: "It has long been established that it is only in cases of concealed fraud that the statute of limitation becomes inoperative. Thus, the true position is that the statute of limitation does not apply in cases of concealed fraud so long as the party defrauded remains in ignorance of the fraud without any fault of his own". Also in DUZU & ANOR V. YUNUSA & ORS (2010) LPELR - 8989 (CA) GARBA, JCA stated that the law requires that the facts of fraud specifically be pleaded and proved by the party alleging it. Limitation law is also inoperative where the Plaintiff suffers from a disability either from infancy or unsoundness of mind as held in the case of UBA V. BTL LTD (2006) 19 NWLR (PT. 1013) 67. It is important to state that a party relying on fraud as an exception must plead the particulars of fraud and the relevant particulars should be in the statement of claim as that is where all materials relevant to the determination of limitation are taken.

Upon an in depth consideration of the pleadings of the claimant, I do not find any such materials from which one can find an averment or allegation of fraud. If fraud is not alleged in the statement of claim where then could it be? Nothing useful has been presented before this court to activate any of the exceptions listed in favour of the Claimant. There is a clear dearth of any evidence substantiating any of the elements required for fraud to be established. The statement of claim is bereft of any substance in proof of the allegation of fraud. This court has rightly observed that the issue of fraud against the defendant was only raised by the claimant’s counsel in his address. If limitation law can be suspended, the relevant facts must be in the statement of claim from where the limitation is usually activated. It is trite that address of counsel no matter how well articulated cannot take the place of evidence. See the case of MR. Peter Madubueze & Anor V. Mortgages PHB Limited & Ors (2021) LPELR-53821(CA) where the court held that, “therefore the submission by counsel to the Appellants, no matter how brilliant cannot take the place of evidence. In Jame Chiokwe V. The State (2012) LPELR-19716 (SC) Apex court Peter-Odili, JSC held Thus- “it needs to be reiterated that submissions of counsel however beautiful or enticing cannot take the place of evidence. This is because address of counsel to be accepted and utilized must be a reminder to court on evidence proffered. On its own address of counsel cannot stand.”

Another exception is deliberate concealment by the defendant. Based on Exhibit D4 it is clear that the NNS Vanguard came to relieve NNS Fortress but the said exhibit never stated that any crew member was injured. However the claimant had stated that he was in NNS Fortress and during his cross examination admitted that he slipped while trying to help put out the fire, though he stated in his pleadings that he had injury while trying to put out the fire but he was not specific as to how it happened. He further stated that, immediately after the fire out break which caused him injury in 2012, he was merely given a painkiller by the medical facility of the defendant. He alleged that since after that incident he has been visiting several hospitals for further medical examination and treatment, the claimant admitted to this court that the injury is not a surface injury. The point at this time is at what point did the defendant acknowledge or know that the Claimant had an internal injury and deliberately concealed it. The defendant has tendered exhibit D3 (a-c) which is the claimant’s medical report from 2019- 2022 and this court has carefully examined the said reports with a view to determine whether there was any indication of the deteriorating state of the claimant’s body within the said period, however based on the report the claimant was declared to be fit for his job and there was no indication to the defendant that the claimant is undergoing any internal injury.

On the other hand the claimant has tendered Exhibit C5 (a-y) which is a pile of hospital receipts and report showing the status of the medical condition of the claimant and several test conducted from other hospitals and clinic. The question is whether there was concealment between the medical facility of the defendant and the defendant to the true health condition of the claimant. Or the concealment is between the claimant and the medical facility of the defendant to conceal his true state of health in other to continue his employment with the defendant. Whichever case it is, the fact remains that the claimant was fully aware of his medical condition, he had opportunity and owed a duty to disclose his state of health to the defendant and ask for his compensation within a reasonable time but he failed to do so. The law is trite that equity helps the vigilant not the indolent, it is elementary that rules of equity do not assist an indolent party who failed to pursue his right diligently and within a reasonable time. See the case of Adebayo Olateju Durojaiye V. First Bank Nigeria PLC (2022) LPELR-58600 (CA). Furthermore, the claimant cannot allege it was a mistake for not knowing he was to bring an action for compensation against the defendant if he had sustained an injury while in the employment of the defendant. It is trite that ignorance is not an excuse in law.

Based on the foregoing, it is the irrestible conclusion of this court that the exceptions to the limitation law are inapplicable in the claimant case, as there is no evidence of fraud, nothing to substantiate deliberate concealment by the defendant, no scintilla of evidence was presented to suggest a mistake or in a circumstance where there is a continuing injury. Consequently the action of the claimant is hereby declared statute barred having been instituted beyond 5 years as provided in Section 16 of the Rivers State limitation law and therefore this court lacks jurisdiction to entertain same. The cause of action is hereby declared stale and Moribund.

With regards to issue two which is, whether the Claimants are entitled to the reliefs sought. Having considered the fact that the claimant action is statute barred, which has robbed the court jurisdiction to determine the reliefs, the duty of this court is to end the present suit by dismissing same. Per CHIMA CENTUS NWEZE, JSC in BARRISTER OKEY UZOHO & ORS v. NATIONAL COUNCIL OF PRIVATIZATION & ANOR (2022) LPELR-57680(SC) stated that, "Once the Court finds that it lacks jurisdiction over the matter before it, it has a duty to put an end to the proceedings, Sken-consult (Nig.) Ltd v Ukey [1981] 1 SC 6, 25; Adesokan and Ors. v. Adetunji and Ors. [1994] LPELR-152 (SC); Metilelu v. Olowo-Opejo and Anor [2006] LPELR-11598 (SC)."

Having considered the questions raised for determination, the legal capacity of the Claimants to institute the instant suit is extinguished. I find and hold that the claimant has failed to justify the grant of the relief by establishing his claim to the satisfaction of the court with cogent and credible evidence. It is clear to all and sundry that issue two is resolved in favour of the Defendant to the effect that the Claimant is not entitled to any of the reliefs sought.

In the final analysis, I find the case of the claimant to be statute barred and same is hereby dismissed in its entirety.

Judgement is accordingly entered.

I make no order as to cost

 

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HON. JUSTICE Z. M. BASHIR

JUDGE.