BACK

NICN - JUDGMENT

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, PhD.

 

 

Dated: 23rd day of September, 2025               SUIT NO: NICN/PHC/180/2022

 

 

BETWEEN:

 

GIFT ENYA-------------------------------------------CLAIMANT

 

AND

 

GENESIS FOODS NIG. LTD.

(Also known as Genesis Group Nig. Ltd.)-------------------- DEFENDANT

 

 

REPRESENTATION:

O. L. T. Agorandu for the Claimant.

Jerry Elumeze with M. J. Micah for the Defendant.

 

 

JUDGMENT

This suit was commenced by way of a General Form of Complaint dated and filed on the 22nd day of December, 2022, accompanied by all requisite frontloaded processes, including the Claimant‘s Statement of Facts, List of Witnesses, Witness Depositions on Oath, List of Documents, and copies of documents to be relied upon at trial.

 

The matter was initially assigned to Hon. Justice P. I. Hamman and subsequently re-assigned to this Court on the 8th day of February, 2024.

Arising from the Complaint and Statement of Facts, the Claimant‘s claims against the Defendant are as follows:

1.     A declaration that the Defendant was negligent and failed in its duty to provide the Claimant with the requisite Personal Protective Equipment (PPE), which resulted in an industrial incident and injuries suffered and sustained by the Claimant at her workplace within the Defendant‘s premises, leading to: o Loss of flexion in her 2nd, 3rd, and 4th left fingers; o Disfigurement; o Brain damage; o Occasional loss of memory; and o Resentment from subsequent employers.

The Claimant, therefore, claims general and special damages as follows:

2.     The sum of ?150,000,000.00 (One Hundred and Fifty Million Naira) as compensation and/or cost of treatment for the loss of flexion in her 2nd, 3rd, and 4th left fingers and the brain injury sustained, as well as sponsorship and payment for treatment in any recognized hospital in Nigeria or overseas for brain surgery.

3.     Payment of the Claimant‘s accumulating salaries of ?30,000.00 monthly from the 20th of April, 2020, until the determination of this suit, amounting to ?870,000.00 as at September 2022.

a.            Payment of medical allowance of ?30,000.00 monthly from January 2010 until the determination of this suit, amounting to ?4,320,000.00 as at September 2022.

4.     The sum of ?1,500,000.00 (One Million, Five Hundred Thousand Naira) as legal fees.

 

In response, the Defendant filed its Statement of Defence on the 31st day of January, 2023, accompanied by its List of Witnesses, Witness Statement on Oath, List of Documents, and copies of the documents to be relied upon at trial.

The Claimant, in turn, filed a Reply to the Defendant‘s Statement of Defence on the 15th day of May, 2023.

 

Trial commenced before this Court on the 31st day of October, 2024, with the Claimant opening her case and testifying as the sole witness (CW1). She adopted her Witness Statements on Oath filed on the 22nd of December, 2022, and the 3rd of July, 2023, which were adopted and marked as C1a and C1b respectively.

 

Through CW1, the Claimant tendered a total of fourteen (14) documents, which were admitted in evidence and marked as follows:

·        Exhibit C2 - Genesis Staff ID Card.

·        Exhibit C3 - Genesis Group Staff Handbook.

·        Exhibit C4 - Claimant‘s Pictures.

·        Exhibit C5 - Letter of Employment dated 14th December, 2009.

·        Exhibit C6 - Salary Upgrade Letter dated 18th May, 2012.

·        Exhibit C7 - Redeployment Letter dated 14th December, 2009.

·        Exhibit C8 - Prime Medical Consultant’s Request for X-Ray Services for the Claimant.

·        Exhibit C9 - Prime Medical Consultant’s Medical Report dated 30th April, 2012.

·        Exhibit C10 - Rivers State University Teaching Hospital (BMH), Port Harcourt – Request for Radiological Examination dated 25th July, 2022.

·        Exhibit C11 (a-j) - Brain CT Scan CD from BMH Hospital, pictures of the Claimant, and Certificate of Compliance.

·        Exhibit C12 - Brain CT Scan image and envelope from BMH

Hospital.

·        Exhibit C13 - BMH Hospital Patient Personal Card.

·        Exhibit C14 - BMH Hospital Medical Report dated 26th July, 2022.

·        Exhibit C15 - Claimant‘s Solicitors‘ Letter dated 2nd February, 2021.

 

Arising from the Statement of Facts and the evidence adduced through her Witness Statements on Oath, the case of the Claimant is that she was in good health and without any physical deformity at the time she was employed by the Defendant as an Assistant Pizza Cook on the 14th of December, 2009. She contends that, by the provisions of the Defendant‘s Staff Handbook, the Defendant was obligated to provide her with a complete set of Personal Protective Equipment (PPE) in compliance with applicable international industrial safety standards. It is her case that, notwithstanding repeated requests, the Defendant deliberately failed to supply the requisite PPE safety kits.

 

The Claimant alleged that on the 7th of January, 2010, while performing her duties without the said PPE, she slipped and sustained injuries to her fingers and head, resulting in occasional memory loss and permanent deformity of her left fingers. She stated that she received initial treatment at Prime Medical Centre before being referred to Prime Medical Consultant, who recommended a brain MRI and CT scan, and advised that she should only engage in stress-free work. She further averred that the Defendant failed to provide the urgent medical attention recommended, and that upon resuming work she collapsed on duty and was again taken to Prime Medical Centre. Following this incident, the Defendant instructed her not to return to work, assuring her that her salary would continue and that they would seek a permanent cure for her condition.

 

The Claimant asserted that the Defendant paid her salary and medical allowance until March 2020, when such payments abruptly ceased. She further stated that she later sought treatment at the Rivers State University Teaching Hospital, where a brain CT scan confirmed that she had sustained a brain injury.

 

Under cross-examination, CW1 testified that the incident occurred some 14 years ago. She maintained that she was instructed to remain at home because of her disability, and that she was not aware of any obligation to report her recovery progress to the Defendant. She admitted that one of the photographs tendered showed her wearing an apron but not safety boots. She further stated that the Defendant‘s manager discontinued her medical treatment, and that she did not receive any medical care provided by the company thereafter. CW1 confirmed that she had previously instituted an action in the High Court in which a medical report was required, and she alleged that the said report established that she had suffered brain damage. She also confirmed her claim for medical allowance, though she could not recall whether such an allowance was expressly provided for in the Defendant‘s Handbook.

 

Upon the close of the Claimant‘s case, the Defendant opened its defence and presented one witness, Chizurum Iroezindu, a Human Resources Advisor, who testified as DW1. She adopted her Witness Statement on Oath filed on the 30th of October, 2024, which was marked as Exhibit D1. Through DW1, four (4) documents were tendered and admitted in evidence as Exhibits D2 to D5, namely:

·        Exhibit D2 – Request for X-Ray Services;

·        Exhibit D3 – Sick Certificate;

·        Exhibit D4 – Request for Medical Report; ? Exhibit D5 – Medical Report.

 

From the Statement of Defence and the testimony of DW1, the Defendant‘s case is that the Claimant was employed by Genesis Foods Nig. Ltd., which it says is distinct from Genesis Group Nigeria Limited. The Defendant contends that the Claimant was provided with all necessary PPE for an Assistant Cook, including a uniform, apron, hand gloves, kitchen cap, and canvas shoes — the latter being considered equivalent to safety boots in a kitchen setting, in line with the Staff Handbook.

 

The Defendant asserts that on the 7th of January, 2010, the Claimant tripped on her own accord while at work and fell, sustaining some injuries, but denies that she suffered any brain injury. It claims to have borne all medical expenses, including the cost of an MRI scan which revealed no head injury, and relies on a certificate from Prime Medical Consultant clearing the Claimant to resume work on the 21st of January, 2010. The Defendant argues that if the Claimant had suffered any relapse, she was under a duty to return for further treatment, which she failed to do, and that she never returned to work.

 

Nevertheless, the Defendant maintained payment of her salary until March 2020, when the COVID-19 pandemic forced the suspension of all staff duties and payments. Upon resumption of operations in July 2020, only employees who returned to work were reinstated for payment, and the Claimant did not resume duty. The Defendant further contends that the medical report dated 26th July, 2022, was prepared 12 years after the incident, based solely on the Claimant‘s narration, and was procured for the purpose of this litigation. It also raised the defence that the action is statute-barred.

 

During cross-examination, DW1 confirmed that the Claimant sustained an injury on the Defendant‘s premises, but professed ignorance as to whether the Staff Handbook obligates the Defendant to bear the medical bills of an employee injured at work. She admitted that she was unaware of the contents of the Handbook but confirmed that the Claimant was given a written letter of employment. DW1 testified that the Claimant effectively terminated her employment by absconding from duty in February 2011, though salary payments continued until 2020. She claimed that the Defendant had instructed Prime Medical Consultant to continue the Claimant‘s treatment, albeit without producing evidence to that effect. She added that the Claimant physically worked for just over one year after her employment but remained on the payroll for approximately 11 years.

 

DW1 maintained that the Claimant was provided with safety boots, and stated she did not know whether the Claimant ever wrote to the Defendant about her health condition, but agreed that the Claimant wrote to the Defendant after her salary was stopped. She finally noted that the Claimant, like all other staff, received palliatives from the Defendant.

 

Upon the discharge of DW1, the Defendant closed its case. The matter was thereafter adjourned for adoption of Final Written Addresses. On the 30th day of June, 2025, parties adopted their respective addresses. The Defendant had filed its Final Written Address on the 27th day of May, 2025, wherein learned counsel, Jerry Elumeze, Esq., formulated the following three issues for determination namely:- 

 

1.     Whether the claim for negligence is statute barred and liable to be dismissed on that ground. 

2.     Whether the Claimant has established her claim of negligence against the Defendant

3.     Whether the Claimant is entitled to the special and general damages claimed in this suit.

 

In addressing issue one counsel stated that the purpose of limitation law is to remove and extinguish a right of action when an action is not filed within the statutory period of time. He cited Egbe v Adefaras in (No. 2) (1987) 1 NWLR (Part 47) 1. Counsel added that where a matter is statute barred there can no longer be a right of action and a court of law is robbed of the jurisdiction to hear or entertain the claim. Counsel submitted that by Section 16 of the of the Limitation Law of Rivers State every action on tort or contract shall be within 5 years when the action arose. In determining when the cause of action arose the claimant‘s pleading shall be the determining factor.

 

Counsel pointed out that by paragraph 6 and 7 of the claimant‘s statement of claim, the claimant mentioned that the accident happened on 7/1/2010 and that the claim of negligence arose from the accident that happened on 7/1/2010 hence the cause of action arose on 7/1/2010. Counsel stated that the Claimant's cause of action which accrued on 7/1/2010 expired on 6/1/2015. He contended that the Claimant's suit filed on the 9/1/2023, 13 years after the accrual of the alleged cause of action, is caught up by Section 16 of the Limitation Law of Rivers State and therefore statute barred. He cited SPDC v. West (2018) LPELR-44290 (CA) at 12-20.

 

On issue two counsel submitted that assuming that the claim for negligence is not statute barred, the Claimant has woefully failed to prove her claim of negligence. Counsel stated that in a claim based on negligence the claimant must establish both negligence and damages. He cited Iyere v BFFM Ltd (2008) 18 NWLR (Part 119) 360.

 

Counsel further stated that the fact that the Claimant was in a work place when the accident occurred on 7/1/2010 did not create an actionable cause of action. The Claimant has a legal burden to establish that the workplace accident was caused by the negligence of the Defendant, and secondly that the Claimant suffered damage as a result of the workplace accident.

Counsel submitted that negligence is the breach of duty of care which results in an injury. He added that negligence is a matter of fact and a party alleging negligence must not only plead the act or acts of negligence but must also give specific particulars of the negligence. He cited Aku Nmecha Transport Services (Nig.) Ltd. & Anor. v. Atoloye (1993) 6 NWLR (Part 298) 233 at 248. Counsel stated that the defendant had denied the fact that it never provided the claimant with Personal Protective Equipment (PPE) like safety boots, uniform, protective gear on her head, hand or foot. Counsel argued that the parties have joined issues on the particulars of negligence, that the claimant has the burden of proving negligence which the claimant failed to discharge.

 

Counsel further stated that the claimant had admitted to have been given uniform, apron, cap which contradicts her pleading that she was not given safety kits. And that the claimant‘s exhibit particularly the picture which showed the claimant on uniform without her cap shows that the claimant was careless with her PPE. Counsel added that the claimant failed to show how negligence is a matter of fact, there is a burden on the Claimant to show how the accident was caused by lack of safety boots, or how the accident happened.

 

On issue three counsel stated that the claims of the claimant is not sustainable in law for the simple reason that special damages must be specifically pleaded and strictly proved. He cited Eneh v. Ozor & Anor (2016) LPELR-40830(SC). He added that the claimant did not proffer any iota of proof in support of the claim for N150,000,000. Counsel submitted that the claimant‘s exhibits proves nothing to substantial his claim of N150,000,000.

 

In analyzing the whole exhibits counsel stated that the patient's personal card merely proves that the Claimant went to a hospital on 25/7/2022, a period of over 12 years after the accident. The photographs are mere evidence that the Claimant underwent a scan, but are not evidence of the result of the scan. A request for scan is mere evidence that the Claimant went to a hospital in 2022 and a request was made to carry out a scan on the Claimant and that the compact disc, x rays, the photographs, are mere evidence that that the Claimant underwent brain scan and head x-rays, but they are not evidence of brain injury. And that a neurologist is required to interpret and explain the x rays and compact disc to the court and give evidence whether they show brain injury, but no neurologist was called to give evidence. And that the medical report by Rivers State Teaching Hospital made in 2022by a casualty officer in a hospital is an attempt to deceive the court, in view that a casualty officer is a first line officer who deals with emergencies, and not an accident that happened in the past 13 years and that the report makes no reference to the claimant‘s x-ray/brain scan/MRI and was based on what the claimant told the casualty officer.

 

For the claims of accumulating salaries counsel stated that Salary is reward for work done. He cited Atulomah v. Nigerian College of Aviation Technology (2015) LPELR-25733(CA). Counsel submitted that the Claimant is seeking accumulated salary award for a period in which the Claimant did not work for the Defendant. He contends that Claimant is not entitled to salary for 20/4/2020 till date of judgment as it would be inequitable for the Claimant to receive salary when she did not work. Counsel added that effect of the Claimant's failure to report back to work after the expiration of her sick leave on 3/2/2011 is that she abandoned and absconded from work, and the fact that the Defendant continued paying the Claimant salary for 9 years does not justify the abandonment of her job.

 

Counsel further added that the claimant was not entitled to the claim for medical allowance of N30,000 per month, that her employment letter stipulated that her salary was gross salary which included medical allowance. With regards to the claim for legal fee, counsel stated that there is no judicial support for a claim of legal fees as special damages. He cited Ihekwoaba v ACB Ltd (1998) 10 NWLR (Part 571) 590 at 610 – 611. In conclusion counsel urged the court to dismiss the case of the claimant.

 

In response, learned counsel for the Claimant, O. L. T. Agorondu, Esq., filed the Claimant‘s Final Written Address on the 30th day of June, 2025, wherein two issues were formulated for determination, namely:

1.     Whether the claim for negligence is statute-barred and liable to be dismissed on that ground.

2.     Whether the Claimant has successfully proved her case to be entitled to the reliefs claimed in this suit, hinged on continuing personal injuries, pain, fraud, and concealment arising from the negligence of the Defendant.

 

In arguing issue one, counsel stated that, the claimant‘s suit is not caught by the provisions of Section 16 of the Limitation Law Cap. 80 Laws of Rivers State of Nigeria, 1999 by virtue of Sections 17, 18, 23 and 24 of the said law, as the Claimant still suffers memory loss due to the brain damage which is continuing from the personal injury sustained from the Defendant's negligence.

 

Counsel added that there are exceptions to limitation laws which is provided under Section 31 of the imitation law, and such exceptions includes where there is fraud, concealment or mistake. Counsel contended that the claimant discovered that she was being deceived and defrauded by the Defendant in 2020.

 

Counsel contended that the injuries sustained by the claimant from the negligence of the Defendant is still continuing and constitutes exception and that the cause of action will not abate or become statute barred until the personal injury or damage which is of a continuing nature completely stops or abates. Counsel cited MULIMA VS. ÜSMAN (2014)1l6 NWLR (PT. 1432) 160 and INEC VS. ONOWAKPOKO (2018)2 NWLR (PT. 1602) 134. He added that, in view that the injury sustained by the claimant has not ceased, claimant‘s action is not statute barred. He cited Oko-Jaja V. NNPC (2019) LPELR 48447 (CA). He added that the law is that in a Case of continuance of damage or personal injury, the cause of action is determined when the injury resulting from the act ceases.

 

In arguing issue two counsel submitted that negligence is a question of fact, not law, therefore each case must be treated and decided in the light of it‘s own facts and circumstances. Counsel cited UTB (NIG) VS. 0ZOEMENA (2007)3 NWLR (PT. 1022) 488 SC.

 

Counsel contended that in common law employers have the duties of care to their employees. Counsel contended that there is no closed list of duty, as a result, categories of negligence are never closed. He added that the incident occurred because the Defendant failed or omitted to give the Claimant as provided in its Staff handbook safety shoes. Counsel contended that the defendant handbook paragraph 11, 12 at Page 17 stipulates that the defendant bears the cost of medical treatment for injuries sustained by an employee.

 

Counsel stated that in an action for negligence, the Claimant needs to prove the following; duty of care owed by the Defendant, there is a failure to attain a standard of care prescribed by law; and Damages or injury suffered by the Claimant as a result of the breach of the duty of care owed her by the Defendant. Counsel stated that the claimant in paragraph 5 and 6 of the statement of claim pleaded the particulars of the Negligence and has stated the defendant failed to provide safety boots as provided under Article 16.2of the Defendant's handbook (Exhibit C3), he contends that the safety shoes would have prevented the accident.

 

In the claims for N150,000,000 special and general damages, counsel contended that based on the exhibits tendered before the court which is the medical report it clearly showed that the claimant is suffering from the injuries and needs medical treatment, and need no medical expert to prove pain and suffering. Counsel cited C & C CONSTRUCTION C0. LTD VS OKHAI (2003) 18 NWLR (PT. 85l)79 at 104 - 105.

 

The claimant urged the court to grant payment for accumulated salaries from 2020, in view that there is no document stating or suggesting that the Claimant employment was either suspended, terminated or summarily dismissed or any kind of cessation of her employment or that she absconded or resigned. Counsel contended that the claimant is still a staff and an employee of the defendant. The claimant contended that her situation is a special circumstance of who sustained work place injuries and was asked to stay at home and was being paid by the Defendant, cannot be termed abscondment. Counsel stated that the defendant paid the claimant from when the accident happened to 2020 before they stopped. Counsel stated that the claimant‘s salary was upgraded in 2012, hence the defendant cannot rely on the grounds that the claimant absconded from work in 2011. Counsel added that the claimant is entitled to her salary until she her employment is officially and in writing terminated. Counsel stated that withholding of the claimant‘s salary is unlawful.

 

In addition, counsel stated that the Defendant bears the cost of medical treatment for any employee injuries as provided in Article 11.11 and 11.12 of the defendant‘s handbook. With regards to the solicitor‘s fees, counsel contended that, Claimant's Solicitors fee as a special claim is part of and borne out of the Claimant's cause of action. Counsel cited VANGUARD MEDIA LIMITED VS. BRIGHTWATERS ENERGY LIMITED & ANOR (2022) LPELR-58569 (CA). Counsel urged the court to resolve the whole issues in favour of the claimant.

 

By way of reply on point of law filed on the 4th of July, 2025, counsel to the Defendant posited thatsection 31 of the Limitation Law of Rivers State cited by the claimant alleging the case of the claimant to be under exception of fraud, concealment, or mistake, on grounds that the claimant was deceived is disconnected to the claimant‘s case. Counsel contended that the Claimant's claim is rooted in negligence arising from an industrial accident. He stated that the Claimant is suing for alleged breach of care. Therefore, the issue of fraud or concealment simply does not arise. Counsel submitted that issue of fraud must be pleaded. He cited Belgore v. Ahmed (2013) 8 NWLR (Part 1355) 60.

 

Counsel added that Section 16 of the limitation Law specifically provides that limitation period for actions founded in tort is 5 year, and that the law does not make a distinction between some torts falling within 5 years and other torts exempted from limitation. He contended that the Claimant's claim rooted in negligence is a tort claim and falls within section 16 of the Limitation Law. Counsel submitted that Mulima v Usman (supra) cited by the claimant is an obiter.

 

Counsel contended further that the Claimant failed to adduce evidence of any continuing injury. He added that the claim arose from one accident and not from a series of events. Counsel submitted that the Courts look at the cause and not the effect to determine whether an injury is Continuing. He cited Olaosebikan V. Williams (1996) 5 NWLR (Part 449) 437 at 456. Counsel contended that while the Claimant proved that she underwent scan and MRI in 2022, she failed to disclose to the court the result of the tests. Hence it would be improper to make a finding of continuing injury when there is no medical evidence of injurious effect of the legal injury. In the contention that the defendant promised to continue payment of claimant‘s salary, Counsel argued that there is no evidence before the Court that the Defendant promised to take care of the Claimant by continuing to pay her salary for life even without her working for the Defendant.

 

Upon a careful consideration of all the processes filed by the respective parties in this suit, I have diligently evaluated the pleadings, considered the oral and documentary evidence adduced at trial, and observed the demeanour of the witnesses who testified before this Court. I have also meticulously reviewed the exhibits tendered and admitted in the course of proceedings.

Furthermore, I have taken due account of the reliefs sought by the Claimant vis-à-vis the arguments canvassed by learned Counsel on both sides in their respective Final Written Addresses and Reply on Points of Law.

 

Upon a comprehensive appraisal of the facts, legal submissions, and evidence placed before this Court, I am of the considered view that the issues for determination can be succinctly stated as follows:

1.     Whether or not this Court is vested with jurisdiction to entertain this suit.

2.     If Issue One is resolved in the affirmative, whether or not, in view of the facts and evidence before the Court, the Defendant owed a duty of care to the Claimant, and whether the Claimant is entitled to the reliefs sought.

 

It is imperative to note that the Defendant has raised a preliminary objection to the jurisdiction of this Court on the ground that the Claimant‘s action is statute-barred, having been commenced more than thirteen (13) years after the cause of action arose. Therefore, before delving into the substantive merits of the case, it is essential to first determine whether this Court is clothed with the requisite jurisdiction to adjudicate upon it.

 

It is trite that the issue of limitation, once raised, directly impacts the jurisdiction of the Court. Jurisdiction, being fundamental, is a threshold issue that must be determined at the earliest opportunity, as it can be raised at any stage of proceedings. The Supreme Court in Dr. Joseph Nwobike, SAN v. Federal Republic of Nigeria (2021) LPELR56670 (SC) held:

“The law is well settled that where a Court of law deals with a matter without jurisdiction, so doing amounts to embarking on a worthless exercise because no matter how brilliantly well the case is conducted, it will be a complete nullity. It is the law that an order of the Court made without jurisdiction is a nullity”.

 

See also Odofin v. Agu (1992) NWLR (Pt. 229) 350; Nidocco v. Gbajabiamila (2013) 14 NWLR (Pt. 1374) 350; Ekpeyong v. Nyong (1975) 2 SC (Reprint) 65 at 73–74.

Similarly, in Alhaji Zubairu Muhammad Tarauni v. Alhaji Aliyu Salihu Darma (2022) LPELR-57402 (CA), the Court of Appeal reiterated:

 

“Jurisdiction is the live wire of any litigation. It is fundamental and crucial to the adjudication process. It is settled law that it is the plaintiff‘s claim at the trial Court that determines the jurisdiction of the Court”.

 

See Tukur v. Government of Gongola State (1989) 9 SCNJ 1.

 

It is beyond dispute that the plaintiff‘s claim is the determining factor upon which the Court must decide whether or not it has jurisdiction to entertain a suit. As stated in Mr. Alalade of Hydra Agency Nig. Ltd. & Ors v. The Presiding President of the Ota Grade 1 Customary Court & Ors (2021) LPELR-55656 (CA):

 

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 is the plaintiff‘s claim.

 

Based on the facts presented before this Court, the Claimant asserts that she was employed by the Defendant as an Assistant Pizza Cook on the 14th of December, 2009, and that under the Defendant‘s Staff Handbook she was entitled to a full complement of Personal Protective Equipment (PPE) in line with industrial safety standards. She alleges that despite repeated requests, the Defendant failed to provide her with safety boots and that on the 7th of January, 2010, she slipped, fell, and sustained injuries to her fingers as well as an alleged brain injury.

 

The Defendant‘s contention is that the cause of action accrued on the said 7th of January, 2010, whereas this suit was commenced in December 2022, over twelve (12) years after the occurrence of the event complained of.

 

By virtue of Section 16 of the Limitation Law, Cap. 80, Laws of Rivers State, actions founded on tort or contract must be commenced within five (5) years of the accrual of the cause of action. The provision states:

 

“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”.

 

It is clear from the wording of Section 16 that actions founded on tort, including negligence, must be commenced within five (5) years from the date the cause of action arose.

 

The essence of limitation statutes was aptly stated in Nwanosike & Anor v. Udenze & Anor (2016) LPELR-40505 (CA):

 

“The whole purpose of a Statute of Limitation is that a prospective litigant must institute an action over a right that accrues to him 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 institutes his action after or outside the time prescribed by statute of limitation upon becoming aware of the wrongdoing, his right of action, enforcement, or vindication becomes terminated or extinguished”.

 

In addition, the Supreme Court in Ibrahim v. Lawal & Ors (2015) LPELR-24736 (SC) stated the rationale for the existence of limitation statutes in the following terms:

“One may wonder why a person‘s right of access to court should be extinguished by law. The rationale for the existence of statutes 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 v. S.F. Adekanye & Ors (2004) 13 NWLR (Pt. 891) 572 at 592 A–H”.

 

The yardsticks for 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 originating process (in this case, the Complaint and Statement of

Facts); and

c)     The period of time prescribed by the relevant statute for bringing the action.

Applying the above yardsticks to the facts of this case, I have carefully examined the Statement of Facts, which clearly discloses that the accident giving rise to the Claimant‘s cause of action occurred on the 7th of January, 2010. This was the date when the alleged damage occurred.

 

In Bank of the North v. Geina (2006) ALL FWLR (Pt. 296) 862 at 881, the Court held 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 therefore find that, on the Claimant‘s own pleadings, the cause of action arose on the 7th of January, 2010, when she allegedly slipped and fell due to the absence of safety boots, sustaining injuries in the course of her employment with the Defendant. This is the proper date from which the computation between the accrual of the cause of action and the filing of the suit must be made.

 

By this reckoning, the present action, commenced on the 22nd of December, 2022, was instituted approximately twelve (12) years and eleven (11) months after the alleged incident.

 

That notwithstanding, learned counsel for the Claimant has relied on Sections 17, 18, 23, 24, and 31 of the Limitation Law to contend that the Claimant‘s injuries are of a continuing nature and/or arose from fraud or concealment. It is further argued that the injury has not ceased, and that in cases of continuance of damage or personal injury, the cause of action only accrues when the injury ceases.

 

Indeed, the law recognizes certain exceptions to statutory limitation periods. These include cases involving fraud, deliberate concealment by the defendant, mistake, or a continuing injury/fresh damage arising from the same wrongful act. In such cases, each fresh occurrence of damage or the continuance of the wrongful act may give rise to a fresh cause of action.

 

However, for the continuing injury? exception to apply, the injury itself must be ongoing and must result from continuing acts or omissions of the defendant not merely from the lingering effects of a completed wrongful act. In Mr. George Onyeekwumma Kwuhodu & Ors v. Independent National Electoral Commission (2021) LPELR-55214 (CA), the Court held:

 

“……what is a continuance of damage or injury? In Obiefuna v. Okoye (1961) All NLR 357 at 360, which was quoted in INEC v. Ogbadibo Local Government (supra), the following answer was provided: ?Continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury.”

Similarly, in Michael Onuoha Nwankwo & Anor v. Abel C. Ogbonnaya Nwankwo (2017) LPELR-42832 (CA), the Court held:

 

“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.

 

See Black‘s Law Dictionary (8th Ed.) p. 801. In Aremo II v. Adekanye (2004) ALL FWLR (Pt. 224) 2113 at 2132–2133, the Supreme Court per Edozie, JSC, stated:

 

“Admittedly legal principles are not always inflexible. Sometimes they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused.”

 

A continuing damage or injury is not merely the 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… Continuation of injury means the continuation of the act which caused the injury.

 

See also Abiodun v. Attorney-General of the Federation (2007) 15 NWLR (Pt. 1057) 359.

 

From the foregoing authorities, the term “continuance of injury” refers to the persistence of the legal injury itself, not merely to the enduring consequences of that injury. In the present case, the act complained of the alleged failure to provide safety boots resulting in the fall and injury occurred once, on the 7th of January, 2010.

 

There is no evidence before this Court that the Defendant has since that date engaged in any continuing act or omission constituting the same wrongful conduct.

 

Accordingly, I hold that the “continuing injury” exception is in applicable in the present case, and the Claimant‘s attempt to bring her claim within that exception is misconceived, untenable and is hereby rejected.

 

The Claimant also sought to bring her case within the exceptions to the limitation period by alleging fraud and concealment. On this point, the law is settled that it is only in cases of concealed fraud that the statute of limitation becomes inoperative. In Alfa Arowosaye v. Felix Oluwaseun Ogedengbe & Anor (2008) LPELR-3701 (CA), the Court of Appeal held:

 

“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”.

 

Similarly, in Duzu & Anor v. Yunusa & Ors (2010) LPELR-8989 (CA), Garba, JCA, stated that the law requires that the facts of fraud be specifically pleaded and proved by the party alleging it. It is also trite that limitation laws do not apply where the claimant was, at the time the cause of action accrued, under a legal disability — namely infancy or unsoundness of mind as was held in UBA v. BTL Ltd (2006) 19 NWLR (Pt. 1013) 67. Physical incapacity, however, does not constitute a legal disability for limitation purposes.

 

The law is equally clear that any party relying on fraud as an exception must plead the particulars of such fraud, and those particulars must appear in the Statement of Claim, since it is the pleadings that determine limitation issues.

 

Upon a careful examination of the Claimant‘s pleadings, she alleged that following the accident, due to her incapacity to perform her duties, the Defendant allowed her to remain at home while awaiting a medical solution to her condition, and continued paying her salary until March 2020. The Claimant contends that she only realized in 2020 that she had been deceived and defrauded when the Defendant stopped paying her salary and provided no further treatment.

 

It is not in dispute, and indeed there is uncontroverted evidence, that the Defendant continued to pay the Claimant‘s salary and medical allowance up until March 2020, notwithstanding that she was not performing any official duties. However, the primary cause of action in negligence accrued on the 7th of January, 2010, when the alleged damage occurred. By Section 16 of the Rivers State Limitation Law, the limitation period of five years expired on the 6th of January, 2015.

 

The continued payment of salary and medical allowance does not, in law, stop or extend the limitation period for negligence unless there is an acknowledgment in writing of liability for the injury. No such written acknowledgment has been produced in this case. The payments appear to have been made either as an act of benevolence or pursuant to employment terms, and not as an admission of liability in negligence.

 

More importantly, there is no averment in the Statement of Facts setting out the particulars of fraud, nor is there any credible evidence substantiating any of the essential elements of fraud or deliberate concealment. The pleadings are bereft of the material facts necessary to activate this exception.

 

In the light of the foregoing, this Court finds that none of the recognized exceptions to the limitation statute, whether on the basis of continuing injury, fraud, concealment, mistake, or legal disability has been established on the facts of this case. The act complained of and the damage occurred once, on 7/1/2010, and there is no evidence of any continuing wrongful act thereafter.

 

Accordingly, I hold that the Claimant‘s cause of action accrued on 7/1/2010 and became statute-barred on 6/1/2015. This suit, having been commenced on 22/12/2022, is therefore statute-barred by virtue of Section 16 of the Limitation Law of Rivers State. This Court consequently lacks jurisdiction to entertain the suit, the cause of action is hereby declared stale and moribund, and is accordingly dismissed.

 

With regard to Issue Two — whether the Claimant is entitled to the reliefs sought having found that this action is statute-barred, this Court is precluded from examining the merits. As the Supreme Court held in Barr. Okey Uzoho & Ors v. National Council of Privatization & Anor (2022) LPELR-57680 (SC), once a court finds that it lacks jurisdiction, it must bring the proceedings to an end. See also Skenconsult (Nig.) Ltd v. Ukey [1981] 1 SC 6; Adesokan & Ors v. Adetunji & Ors [1994] LPELR-152 (SC); Metilelu v. Olowo-Opejo & Anor [2006] LPELR-11598 (SC).

 

Nevertheless, and for completeness, even if the suit were competent, the settled principle is that for negligence to be actionable, the Claimant must establish:

(a)      that the Defendant owed her a duty of care;

(b)        that the Defendant breached that duty; and

(c)      that the breach caused her damage. See Lufthansa German Airlines v.      Ballanyne (2012) LPELR-7977 (CA).

 

The evidence before the Court indicates that the Claimant was provided with PPE in the form of an apron, gloves, kitchen cap, and canvas shoes which is standard in a kitchen environment. She admitted being given some PPE but alleged the absence of safety boots. There is, however, no evidence linking the absence of safety boots to her fall, nor any medical expert evidence establishing that she suffered brain injury caused by the fall. The medical reports tendered Exhibits C11, C12, and C14 were prepared some 12 years after the incident, without supporting expert testimony, and cannot be accorded probative weight sufficient to prove the alleged injury.

 

In the result, the action fails at the threshold. It is accordingly dismissed for want of jurisdiction.

 

On the balance of probabilities, the Court finds that negligence has not been proved. The mere occurrence of an accident does not, without more, establish negligence. In Mr. Obadare Onaolapo v. ZTE Nigeria Limited (2022) LPELR-57592 (CA), the Court of Appeal restated the position thus:

 

“The term negligence has been variously defined, but the central key that runs through all such definitions is that it is an omission to do something which a reasonable man guided by those ordinary considerations which ordinarily regulate human affairs would do, or doing something which a reasonable and prudent man would not do. Thus, negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances, or the doing of some act which a person of ordinary prudence would not have done under similar circumstances. In order to establish negligence against a defendant, one pertinent question arises for consideration, and that is whether, as between the alleged wrongdoer and the person who has suffered damage, there is sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter? It is firmly established that a party who alleges negligence should not only plead the act or acts of negligence, but should also give specific particulars. It is not open to the Court to find reasons other than those pleaded to find for the plaintiff in the tort of negligence. The particulars of the alleged negligence must be pleaded in sufficient detail and must be supported by credible evidence at the trial”.

 

See also A.G. Leventis Nig. Plc v. Chief Christian Akpu (2007) 6 SC (Pt.

1) 239; (2007) 17 NWLR (Pt. 1063) 416; Aku Nmecha Transport Services Nig. Ltd & Anor v. Atoloye (1993) 6 NWLR (Pt. 298) 233 at 248; UBN Plc v. Emole (2001) 12 SC (Pt. 1) 106; Aemareli v. AIC Ltd (1986) NWLR (Pt. 443) 449; Rabiu Hamza v. Peter Kure (2010) 10 NWLR (Pt. 1203) 630.

 

Having considered the questions raised for determination, and having found that the Claimant‘s cause of action is statute-barred, the legal capacity to maintain the instant suit is extinguished. Even if the suit were competent, the Claimant has failed to justify the grant of any of the reliefs sought by placing before the Court cogent and credible evidence establishing the pleaded particulars of negligence. It is therefore clear that Issue Two would, in any event, be resolved in favour of the Defendant.

 

In the final analysis, I find and hold that the Claimant‘s case is statute-barred, having been instituted outside the five-year limitation period prescribed by Section 16 of the Limitation Law of Rivers State. This Court accordingly lacks jurisdiction to entertain same. The case is hereby dismissed in its entirety.

             

Judgment is accordingly entered.

 

I make no order as to costs.

 

 

…………………………………………………………………

HON. JUSTICE Z. M. BASHIR, PhD

JUDGE.