Nigerian Ports Authority Plc V. Lotus Plastics Limited & Anor (2005)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

By a writ of summons dated 10-4-96, the plaintiff, Lotus Plastics Limited, instituted an action at the Federal High Court sitting at Lagos against the Nigerian Ports Authority Plc and Elder Dempster Agencies Limited as 1st and 2nd defendants respectively and claimed the following reliefs:-

1. The sum of US$49,300.00 cost of the bus and freight or its Naira equivalent at a date of judgment on commercial exchange rate.
2. The sum of N300,000.00 cost of survey.
3. The sum of N1,000,000.00 general damages.

Pleadings were ordered by the trial Federal High Court on 047- 96. The plaintiff duly complied with this order by filing its statement of claim on 23-7-96. However, the pt defendant, the Nigerian Ports Authority Plc, without filing its statement of defence decided to challenge the competence of the plaintiff’s claim against it by filing a motion on notice dated 16-8-96 pursuant to Order 27 rules 1 and 3 of the Federal High Court Civil Procedure Rules, 1976 and sought for an order:

“dismissing this suit against the 1st defendant/applicant for failure of the plaintiff/respondent to comply with the provisions of section 72(1) of the Ports Decree No. 74 of 1993 and for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

In the affidavit in support of this application, it was averred in paragraphs 3 and 4 thereof as follows:-

“3. That I am informed by counsel handling this matter, Mrs. O. J. Laoye and I verily believe her that the plaintiff/respondent did not commence this action within 12months next after the act, neglect or default complained of.

That I am further informed by the said counsel and I verily believe her that the plaintiff/respondent did not comply with the provision of section 72(1) of the Ports Decree No. 74 of 1993 and this action should be dismissed with costs.”

The motion which came up for hearing before Bioshogun, J. on 31-7-97, was duly argued and in his ruling delivered on 22-9-97, the learned Judge of the trial court upheld the objection of the 1st defendant and dismissed the plaintiff’s claim mainly on the ground that the claim was incompetent for the failure of the plaintiff to bring the action within the 12 months period prescribed under section 72(1) of the Nigerian Ports Decree No. 74 of 1993.

The plaintiff was aggrieved by this ruling of the trial court and therefore appealed against it to the Court of Appeal Lagos Division where the appeal was heard on its 10-10-2000. In its judgment delivered on 29-11-2000, the Court of Appeal allowed the plaintiff’s appeal and held that the trial court was wrong in dismissing the plaintiff’s action. Part of this judgment at pages 113-114 of the record of this appeal reads:-

“In this case the cause of action accrued on 26th May, 1993. Time begins to run from that day till the period of limitation required depending on the type of action. See the case of Adimora v. Ajufo (1988) 3 NWLR (Pt.80) l.

In the instant case, the cause of action arose on 26th May, 1993 upon discovery of damage to the Bus.

The suit was filed on 10th April, 1996 almost 3 years after the cause of (sic) accrued. The action in my view is still in order and not caught by the 12 months bar. I therefore hold that the learned trial Judge was wrong in dismissing the plaintiff’s action as statute barred under section 72(1) of Decree No. 74 of 1993.”

Before arriving at this decision, the lower court examined the nature of the claims of the plaintiff in the statement of claim in relation to the statutory duties and functions of the 1st defendant under the provisions of the stature that created it and came to the conclusion that the defence of the plaintiff’s action being statute barred under section 72(1) of the Nigerian Ports Decree No. 74 of 1993, was not available to the 1’1defendant in private contractual relations with other parties to justify the trial court’s dismissal of the action. The court below also faulted the decision of the trial court raising, suo motu, the issue of the alleged failure of the plaintiff to issue a pre-action notice, without affording the parties a hearing.

The 1st defendant which was not happy with this decision of the Court of Appeal then decided to appeal to this court against it.

The 1st defendant, now the appellant had filed its brief of argument in which two issues for the determination of the appeal were formulated from the three grounds of appeal filed by the appellant.

These issues are:-

“1. Whether the relationship between the appellant and the respondent comes within the statutory duties of the appellant as laid out by the provisions of section 3(1)(a) of the Nigerian Ports Authority Decree No. 74 of 1993 having regard to the averments in the first respondent’s statement of claim.

2. Whether the Court of Appeal was right not to have proceeded under its powers as provided for by section 16 of the Court of Appeal Act to consider and rule on the first respondent’s failure to issue a pre-action notice.”

The plaintiff, which is now the first respondent in this court in its respondent’s brief of argument, had identified three issues arising from the grounds of appeal filed by the appellant for the determination of the appeal. The issues read:-

“(a) Whether the relationship between the appellant and the 151 respondent was a private contract or tort or statutory to enable the appellant claim the immunity provision otherwise known as the time bar provisions of the Ports Act.

Whether the issue of pre-action notice was relevant or applicable to the case and if so whether the Court of Appeal could have applied section 16 of the Court of Appeal Act to consider and rule on the issue of pre-action notice.

Whether an issue not raised at the court of first instance and the Court of Appeal would not require leave of this Honourable Court to be raised.”

Taking into consideration the three grounds of appeal filed by the appellant to challenge the decision of the Court of Appeal in this court, it is my view that the two issues as distilled in the appellant’s brief of argument are the issues arising for determination in this appeal.

However, at the hearing of the appeal in this court on 19-9- 2005, learned counsel to the appellant upon realising from the record of this appeal that the 15t respondent had in fact complied with the

requirement of the law by issuing a pre-action notice to the appellant before commencing its action at the trial court, quite rightly abandoned the second issue for determination in the appellant brief of argument which issue was consequently struck out by this court together with all the arguments in its support in the appellant’s brief.

Following this development, the only remaining issue for determination in this appeal is whether the relationship between the parties in this appeal comes within the statutory duties of he appellant as laid out by the provisions of section 3(1)(a) of the Nigerian Ports Decree No. 74 of 1993 having regard to the averments in the first respondent’s statement of claim. The circumstances that gave rise to the claims of the 151 respondent against the appellant at the trial court some of which were closely examined by the court below in arriving at its judgment now on appeal, are clearly spelt out in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the plaintiff’s statement of claim below:

“2. The 151 defendant is a company set up by statute as a Port.

3. The 2nd defendant is the shipping agent of the Vessel ‘M.V. California Highway’.
4. The plaintiff imported a brand new Tata Bus from Bombay, Ex. M.V. California Highway by a bill of lading No. NSH/LAS/001 dated 19th march, 1993.
5. The bus was put on board ‘M.V. California Highway’ intact.
6. The vessel ‘M.V. California Highway’ arrived Tin Can Island Port Apapa, Lagos on the 17th of April, 1993.
7. Immediately after arrival, the plaintiff instructed its clearing agents mess Anwa Commercial Company Limited to clear and take delivery of the bus on its behalf.
8. The 2nd defendant confirmed the arrival of the consignment on board the vessel M.V. California Highway to the plaintiff’s agent but the bus could not be traced until after a long search lasting for three weeks.

The bus was eventually found at the back of shed one at Roro Port Car Park owned and managed by the 1st defendant.

9. the bus was totally vandalized as all necessary parts had completely disappeared. Particularly the gear box, tyres, engine, electrical, mechanical and panel parts.
10. the plaintiff’s agent wrote a letter to the 1sr defendant dated 20th may, 1993 notifying them of the damage to the bus and requesting to know why the us was not discharged at the Roro Car park which is the usual parking lot.
11. The plaintiff’s insurers, United Nigeria Insurance Company Plc (UNIC) appointed a cargo survey company, FASCO Agencies limited to inspect the said bus at the 1st defendant’s premises and same was carried out on 26 May, 1993 and a report was issued in respect thereof dated 10 June, 1993. Further, the plaintiff’s insures also instructed Joe AMS International (West Africa) Limited, marine Cargo superintendents/surveyors to inspect the subject matter of this suit and a supplementary survey report was issued dated 18 July, 1994.
12. The plaintiff paid the freight and the warehousing fees to the defendants whereof of the defendants are in breach of contract for failure to deliver the said bus in good condition or at all. The value of the car is US$49,300.00.”

Thus, for the failure of the appellant to deliver the bus to the plaintiff now 1st respondent in good condition or at all, the 1st respondent in its action filed on 10-4-96 claimed the sum of $49,300.00 cost of the bus and freight or its naira equivalent at the date of judgment on commercial exchange rate: N300,000.00 cost of survey and N1,000,000.00 general damages.

In support of the lone issue remaining for determination in this appeal, learned counsel to the appellant in the appellant’s brief of argument and his oral submission, referred to the statutory duties of the appellant outlined under section 3(1) of the Nigerian Ports Decree No. 74 of 1993 and the averments in the 1st respondent’s statement o of claim particularly in paragraph 12 thereof and argued that the role the appellant was to perform in taking custody of the plaintiff’s bus into its warehouse was within the appellant’s statutory duties as provided by section 3(1)(2)(b) and (c) of the Nigerian Ports Decree No. 74 of 1993. Learned counsel emphasised that the appellant being a creature of statute, cannot enter into a separate contract with all the ports users outside its statutory functions and the averments in the 1st respondent’s statement of claim underscores the appellant’s role for which the 1st respondent gave consideration. Learned counsel after conceding that the appellant as 1st defendant, not having filed its statement of defence before challenging the competence of the action, was deemed to have admitted the 1st respondent/plaintiff’s statement of claim, maintained that the 1st respondent was obliged under the law to have commenced its action within the period laid down under section 72(1) of the Ports Decree No. 74 of 1993. Not having done so, the respondent’s action was statute barred and that reliance on the case of Nigerian Ports Authority v. Construzioni Generali FCS & Anor (1974) Vol. 9 NSCC 622; (1974) 12 SC 81 which is distinguishable with the present case, could not have saved the respondent’s claim, concluded the learned counsel who urged this court to allow the appeal.

For the 1st respondent however, its learned counsel observed that the appellant by proceeding under Order 27 of the Federal High Court Civil Procedure Rules, was deemed to have admitted the facts contained in the 1sl respondent’s writ of summons and the statement of claim. He therefore submitted that the time bar provision contained in section 72(1) of the Ports Decree No. 74 of 1993, does not apply to the present case in which the claim was based on a simple contract, relying on the case of Nigerian Ports Authority v. Construzioni (supra). Learned counsel pointed out that the present case is distinguishable with the case of Umukoro v. Nigerian Ports Authority (1997) 4 NWLR (Pt.502) 656, in which the action was related to the statutory duties of the appellant and therefore urged this court to dismiss the appeal.

In the resolution of the only issue remaining for determination in this appeal as to whether or not the action of the 1st respondent against the appellant was statute barred having regard to the provisions of sections 3 and 72 of the Nigerian Ports Decree No. 74 of 1993, it is necessary to examined very closely the undisputed facts averred in the statement of claim and the relevant provisions of the Decree. In other words, in deciding whether or not the action was statute barred, I must be satisfied that there was cause of action and when the cause of action arose.

The term ’cause of action’ is defined by Jowitt’s Dictionary of English Law as –

“The facts or combination of facts which give rise to a right to sue … The phrase is of importance chiefly with reference to the Limitations Act 1939 and the jurisdiction of certain courts. Thus, time begins to run when the cause of action arises (unless postponed or revived by reason of fraud, mistake, acknowledgement etc .)…”

In Egbe v. Adefarasin (No.2) (1987) 1NWLR (Pt.47) 1 at page 20 Oputa, JSC in relation to the definition of this term ’cause of action’ said-

“Now let us examine the meaning of cause of action. It is admittedly an expression that defies precise definition.

But it can safely be defined as the fact or facts, which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.”

Other decisions of this court where the term was defined include Nasiru Bello & Ors. v. Attorney-General of Oyo State (1986) 5 NWLR (Pt.45) 828 at 876; Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.l27) 369 at 373; Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) 122; Sodipo v. Lemminkainen OY(1992) 8 NWLR (Pt.258) 229 and P.N. Udoh Trading Co. Ltd. v. Abere (2001) 11 NWLR (Pt.723) 114 at 135.

In the instant case, it is not at all in dispute from the paragraphs of the 1st respondent’s statement of claim earlier quoted in this judgment, that the 1st respondent had a cause of action being the claim for the cost of its bus delivered to the warehouse of the appellant for custody for which appropriate fees had been paid. As to the question when the cause of action arose, both the trial court and the court below relied on paragraphs 10, 11 and 12 of the statement of claim which revealed that the pi respondent was notified of the damage to the bus by a letter dated 20-5-93. The extent of the vandalization of the bus was confirmed to the 1st respondent by a cargo survey company appointed by its insurers which examined the bus at the premises of the appellant on 26-5-93. Thus the facts or combination of facts which gave rise to the right to sue, accrued to the 1st respondent on 26-5-93 when it became fully aware of the extent of the damage to the bus in terms of cost through the expert cargo surveyor.

On the question of when does time begin to run for the purpose of a Statute of Limitation, this court had answered the question in the case of Eboigbe v. Nigeria National Petroleum Corporation (1994) 5 NWLR (Pt.347) 649 at 659 as follows-

“The next question is when does time begin to run for the purposes of a Stature of Limitation Time begins to run from the date that the cause of action accrues. The cause of action generally accrues on the date on which the incident giving rise to the cause of action occurs …. Proceedings must be begun, normally by the issue of a writ of summons within a period prescribed by the relevant statute.”

See also Sosan & Ors. v. Ademuyiwa (1986) 3 NWLR (Pt.27) 241; Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637 at 661-662 and the recent decision of this court in Okafor v. A.-G., Anambra State (2005) 14 NWLR (Pt.945) 210 at 222-223.

In the present case, although the 1st respondent’s cause of action arose on 26-5-1993, it did not file its action in the Federal High Court seeking reliefs against the appellant until 10-4-96 when the writ of summons was filed. The question is whether the claim of the appellant that the action of the 1st respondent against it was statute barred as held by the trial Federal High Court and while on appeal, the Court of Appeal held otherwise, can be sustained by this court on further appeal. The general principle of law is that where the law provides for the bringing of an action within a prescribed period, in respect of a cause of action accruing to the plaintiff, proceeding shall not be brought after the time prescribed by the statute. This was the decision in Obiefuna v. Okoye (1961) 1 All NLR 357.

Therefore an action brought outside the prescribed period is contrary to the provision of the law and does not give rise to a cause of action.

A cause of action as earlier defined in this judgment means the factual situation stated by the plaintiff, if substantiated, entitles him to a relief or remedy against the defendant. See Egbe v. Adefarasin (supra).

Coming back to the instant case, the provisions of the Statute of Limitation relied upon by the appellant are contained in section 72(1) of the Nigerian Ports Decree No. 74 of 1993 which states”

72(1) When a suit is commenced against the company or an employee of the company-

(a) for an act done in pursuance or execution or intended execution of any enactment or of any public duty or authority; in respect of any alleged neglect or default in the execution of the enactment, duty or authority, the suit shall not lie or be instituted in any court unless it is commenced within 12 months next after the act, neglect or default complained of, or, in the case of a continuance of injury or damage within twelve months next after the ceasing thereof.”

In line with the requirement of the well known rule of construction of statute which enjoined courts not to interpret a section of a statute in isolation with other sections but to look at the entire statute, I shall be guided by the decision of this court on the subject in the case of Lamina v. Ikeja Local Government (1993) 8 NWLR (Pt.314) 758 at 767. It is for this reason that in resolving the lone issue for determination in this appeal, I shall not confine myself to the provision of section 72(1) of the Nigerian Ports Decree containing the limitation of action provision. I shall also examine very closely the provision of section 3(1) and (2) of the same Decree in order to determine whether the transaction between the appellant and the 1st respondent comes within or was done in pursuance or execution or intended execution of any enactment or any public duty or authority.

The section reads:-

“3(1) The company shall –

(a) provide and operate in the ports, such port facilities as appear to it best calculated to serve

the public interest;

(b)maintain, improve and regulate the use of the Ports;

(c) provide for the ports, the approaches to the ports and the territorial waters of Nigeria, such pilotage services and lights, marks and other navigational services and aids as appear to it best calculated to serve the public interest; and provide such other services as the Minister may, from time to time, require.

(2) In this section –

‘navigational services’ includes the cleaning, deepening and improving of any waterway;

‘port facilities’ means facilities-

(a) for berthing, towing, mooring, moving or dry docking of ships in entering or leaving a port or its approach.

(b) for the loading and unloading of goods or embarking or disembarking of passengers in or from a ship;

(c) for the lighterage or the sorting, weighing, warehousing or handling of goods; and for the carriage of passengers or goods in connection with any of the facilities.”

Starting with sub-section (1) of section 72 of the Nigerian Ports Decree quoted above, it is quite clear that the provision provides protection to the appellant against any action that may be instituted against it for any act done in pursuance or execution of any enactment or public duty including any act of alleged neglect or default in the execution of the enactment or duty if such action or suit is not instituted within 12 months from the time when the cause of action accrued. The provision of the sub-section is quite clear and unambiguous. Where words of a statute are clear and unambiguous, the rule of interpretation of statutes enjoined courts to give such words their natural, literal and ordinary meaning. In Toriola v. Williams (1982) 7 SC 27 at 47-48, Obaseki, JSC had this to say –

“The wording of the section seems to me clear and unambiguous and one does not have to search hard or strain one’s imaginative and intellectual powers to get at the meaning and intention of the section. I must therefore construe the words of the section according to the ordinary cannon of construction that is to say by giving them their ordinary meaning in the English Language as applied to such a subject-matter in Nigeria unless some gross and manifest absurdity would be thereby produced.”

In any case in the present appeal, in relation to the words of section 72(1) of the Nigerian Ports Decree being clear and unambiguous, it was common ground between the parties that the 1st respondent’s course of action accrued on 26-5-93 but it did not file its action against the appellant until 10-4-96, a period of nearly three years after the accrual of the right of action. In other words, the pi respondent does not dispute that its action was filed outside the period of 12 months period prescribed by the Decree. The need for necessary interpretation of the limitation of action provision in the section therefore hardly arises in the instant case because all the 1st respondent is saying in its argument in this appeal is that having regard to the decision of this court in Nigerian Ports Authority v. Construzioni Generali (supra), the defence of the limitation of action was not available to the appellant in the transaction between the parties relating to a specific contract of bailment. The provisions of the limitation of action that came for consideration by this court in that case are contained in section 97(1) of the Ports Act Cap. 155 of the Laws of the Federation, 1958, then in force. The provisions are virtually the same as those of section 72(1) of the Nigerian Ports Decree now under consideration in this appeal. Section 97(1) of the Ports Act states:-

“97(1) When any suit is commenced against the Authority or any servant of the Authority for any act done in pursuance or execution or intended execution of any ordinance or law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such ordinance, law, duty or authority, such suit shall not lie or be instituted in any court unless it is commenced within 12 months next after the act, neglect or default complained of …”

This court in that case, that is, Nigerian Ports Authority v. Construzioni (supra) in considering whether or not the defence of limitation of action claimed by the appellant was available, had this

to say at page 630:-

“We shall now deal with the other point which to our mind does not seem to be well settled namely whether the kind of statutory privilege which we have been considering is applicable to an action founded upon a contract. In other words, whether section 97 of the Ports Act applies to cases of contract. We think the answer to this question must be in the negative. We agree that the Section applies to everything done or Omitted or neglected to be done under the powers granted by the Act. But we are not prepared to give the section the stress which it does not possess. We take the view that the section does not apply to cases of contract.”

Although it was the decision of this court that the statutory privilege granted to the appellant under section 97(1) of the Ports Act does not apply to cases of contract, the court however had agreed that the section applies to everything done or omitted or neglected to be done under powers granted by the Act. However, the court did not proceed to examine the applicability of the section vis-‘E0-vis the powers of the Nigerian Ports Authority under the Act as the issue was not raised by the parties for determination by the court in that case.

However, in the present case, the sole issue for determination as to whether or not having regard to the statutory duties or functions of the appellant under section 3 of the 1993 Nigerian Ports Decree, the statutory privilege given to it under section 72(1) of the Decree was available to it, did not arise for determination in the Construzioni’s case. In the task of resolving these issues relating to limitation of actions under the English Limitation Act, the learned authors of Preston and Newmans Limitation of Actions, 3rd Edition at page 202 (1953) under the heading – ‘Proceedings For Breach of Contract’ have this to say:-

“The general considerations as to when the section applies are particularly important where the proceedings are not for tort as in most of the cases so far referred to but for breach of contract. … In Clarke v. Lewisham Borough Council where the action was for wrongful dismissal (that is a claim against an employer for breach of a service contract) Bingham J. went so far as to say that “Good Sense” as well as the authorities showed that the Act was not intended to apply to actions for damages for breach of contract at all. This statement however seems to be too wide. It does seem to me after consideration of all the authorities set out in 38 English and Empire Digest at 119-121 para. 824-831 that the question as to whether the protection of a Limitation Act could be relied upon as a defence in any case especially cases arising from breach of contract would depend on the facts on which an individual case turns.”

I entirely agree with this observation.

In the case of Umukoro v. Nigerian Ports Authority (1997) 4 NWLR (Pt.502) 656 at 667 relied upon by the appellant, Kutigi JSC had this to say on the limitation of action defence relied upon by the Nigerian Ports Authority which was the respondent in that case which is now the appellant under section 97(1) of the Ports Act –

“I think section 97(1) of the Ports Act (supra) is quite clear and unambiguous. The imperative nature of the provision is also not in doubt. On these facts, I am in complete agreement with the decision of both the two lower courts (and as rightly conceded by Mr. Eduvie) that the plaintiff’s suit is statute bared and therefore rightly dismissed.”

The claim of the plaintiff in that case arose from the act of the Nigerian Ports Authority in the alleged destruction of the plaintiff’s Raffia Palms and other economic trees at Umunu Island in the course of construction in the expansion of Sapele Port being an act done in pursuance or execution of a public duty under the Act.

The provisions of section 3(1) and (2) of the Nigerian Ports Decree No. 74 of 1993 have clearly outlined the duties and functions of the appellant, the Nigerian Ports Plc which was duly registered as a public limited liability company under the Companies and Allied Matters Act, 1990. The main duty of the appellant under this section of the Decree is to provide and operate in the ports, such ports facilities as appear to it best calculated to serve the public interest.

These port facilities which the appellant was empowered by the Decree to provide in the act of serving public interest, have been specifically defined under sub-section (2) of section 3 of the Decree which states –

“2) In this section –

x x x x x x x x x x x x x x xx

‘port facilities’ means facilities-

(a) x x x

(b) for the loading and unloading of goods or embarking or disembarking of passengers in or from a ship.

(c) for the lighterage or sorting, weighing, warehousing or handling of goods; and

(d) x x x x x”

The above statutory provisions which are quite plain and unambiguous, have clearly empowered the appellant to provide in the ports operated by it, facilities for the loading and unloading of goods being exported or imported into the country through the ports.

Other facilities the appellant was empowered to provide in the ports include facilities for warehousing and handling of goods being imported or exported through the ports being operated by it. Close examination of the action of the 1st respondent as plaintiff against the appellant from the writ of summons and the statement of claim, particularly the facts averred in paragraphs 10, 11 and 12 thereof, reveals that the action was based on the handling of the 1st respondent’s imported goods, namely, the Tata bus which was unloaded into the warehouse of the appellant for which services the 1st respondent paid the warehousing fees to the appellant. It is therefore hardly in doubt that the nature of the public duties performed by the appellant in its contractual relationship with the 1st respondent, were related to the rendering of warehousing and handling of imported goods and services which the appellant was empowered to perform under section 3(1) and (2) of the Nigerian Ports Decree No. 74 of 1993. In other words having regard to the claim of the 1st respondent in the paragraphs of the statement of claim I have earlier quoted in this judgment, it is quite clear that the loss suffered by the 1st respondent which gave rise to the cause of action arose from the use of the appellant’s warehouse. This is because the 1st respondent’s Tata bus which it imported from India into this country was a cargo on board of a ship, he M.V California Highway. The cargo was duly discharged into the appellant’s warehouse at the Tin Can Island Port, Apapa, Lagos and the appropriate fees duly paid. The appellant could not deliver this cargo of the bus to the 1st respondent through its agents because the bus had been vandalized and it became a total loss. This transaction between the appellant and the 1strespondent which may rightly be termed as a contract of bailment as found by the court below, is also entirely within the statutory duties of the appellant as prescribed under section 3(1)(a), 2(b) and (c) of the Nigeria Ports Decree No. 74 of 1993, which specifically empowered the appellant to provide and operate in the ports under its control, such port facilities as appear to it best calculated to serve the public interest. Such port facilities which the appellant was expected to provide and operate in the ports under the enabling statutory provision of section 3 of the Decree, include provisions for warehousing and handling of goods. In this respect, I am of the firm view that the duty performed by the appellant in the transaction between it and the 1strespondent in relation to the Tata bus imported by the 1strespondent, was carried out in the course of execution or in pursuance of execution or intended execution of an enactment or public duty or authority of the appellant. The transaction therefore comes squarely within the provisions of section 72(1) of the Nigeria Ports Decree No. 74 of 1993. To this end, the appellant’s objection to the 1strespondent/plaintiff’s claim rooted in the limitation of action prescribed under the section, is clearly well founded. The lower court was therefore wrong after finding plainly in its judgment that the action of the 1strespondent was filed outside the 12 month’s limitation period prescribed by he section, that the action was still not statute barred. The action of the 1st respondent having been filed nearly 3 years after the accrual of the right of action and nearly 2 years outside the 12 months limitation period prescribed by section 72(1) of the Nigeria Ports Decree No. 74 of 1993, was definitely caught up in the web of this section of the Decree and therefore statute barred.

The question now is what is the effect of the finding that the action is statute barred The general principle of law is that where the law provides for the bringing of action within a prescribed period in respect of a cause of action accruing to a plaintiff, proceedings shall not be brought after the time prescribed by the statute had expired. See Obiefuna v. Okoye (1961) 1 All NLR 357. This means an action brought outside the prescribed period offends against the provision of the statute and does not give rise to a cause of action

This was also the decision of this court in Eboigbe v. NNPC. (1995 NWLR (Pt.347) 649 at 659 where Adio JSC said:-

“Where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce cause of action by judicial process because the per of time laid down by the limitation law for institution such an action has elapsed. See Odubeko v. Fow (1993) 7 NWLR (Pt.308) 637. An action commend after the expiration of the period within which an action must be brought as stipulated in the statute of limitation is not maintainable. See Ekeogu v. Aliri (1991) 3 NWI (Pt.179) 258. In short when the statute of limitation question prescribed a period within which an action must be brought, legal proceedings cannot be proper or validly instituted after the expiration of the prescribe period. See Sanda v. Kukawa Local Government (199 2 NWLR (Pt.174) 379.”

I am indeed bound by the decision of this court in that case an the various decisions of this court referred to and relied upon therein on the position of the law relating to action which are statute barred In this respect, the action of the 1st respondent against the appellant which was statute barred could not have been properly and validly instituted. The action was therefore not maintainable. To this end the position of the law is trite. Where a defendant raises a defence that the plaintiff’s action is statute barred and he defence is sustained by the trial court, the proper order for the trial court to make is an order of dismissal of the plaintiff’s action and not to merely strike it out. See Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 at 15 and Eboigbe v. NNPC. (1994) 5 NWLR (Pt.347) 649 at 666. This should have been the fate of the 1st respondent’s case both at the trial Federal High Court and the Court of Appeal.

In line with my findings in the present appeal that the action of the 1st respondent against the appellant was statute barred, quite contrary to the findings of the court below, this appeal has merit. Accordingly, the appeal shall be and is hereby allowed. The Judgment of the court below of 29-11-2000 now on appeal is hereby set aside. In place of that judgment set aside, I hereby substitute a Judgment dismissing the 1st respondent’s/plaintiff’s action.

There shall be N2,000.00 costs in the court below and N 10,000.00 costs in this court in favour of the appellant against the 1st respondent.

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SC.103/2001