William O. Olagunju & Anor V. Power Holding Co. Of Nig. Plc (2011)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
This is an appeal against the judgment of the Court of Appeal Holden at Ibadan in appeal CA/1/191/2001 delivered on the 21st day of July, 2003 in which the court allowed the appeal of the defendant/respondent, against the judgment of the High Court Holden at Ibadan in Suit No. FHC/IB/CS/89/99 delivered on the 1st day of November, 2000 granting all the reliefs of the plaintiffs/appellants.
By a writ of summons dated 9th September, 1999, the appellants as plaintiffs claimed against the respondent, then defendant the following reliefs:-
”(1) A declaration that the purported dismissal of the plaintiffs by the defendant from the service of the defendant with effect from 14th March, 1997 while serving under Molete District of National Electric Power Authority, Ibadan is irregular and or in bad faith and or in breach of natural justice and therefore null and void.
(2) An order directing the defendant to reinstate the plaintiffs back (sic) to the irrespective posts and duties forthwith.
(3) An order directing the defendant to pay to the plaintiffs all their outstanding salaries and allowances with effect from 14th March, 1997”.
Pleadings were exchanged between the parties. In paragraph 12 of the Amended Statement of Defence the defendant/respondent pleaded as follows:-
“12. The defendant will contend at the trial of this action that the action of the plaintiffs is statute barred.
INHEREOF the defendant says that the plaintiffs’ claim is vexations, trivial and a gross abuse of the process of court and should be dismissed”.
The case of the plaintiffs, as can be gleaned from the record, is that they were former employees of the defendant in its Molete District Store at Jericho, Ibadan and worked under Mr. Adebola Adenuga, who was the District Store Officer.
It is the case of the 1st plaintiff that on 1st January, 1997, a public holiday, he, in the company and on instruction of the said Mr. Adebola Adenuga went to Eleyele NEPA Stores to collect goods/materials intended for the Jericho Stores, but without written authority. The goods/materials were later loaded in a vehicle but the security men on duty refused to allow the 1st plaintiff and one Titilayo Asawale to leave the stores with the goods. Later on, the General Manager of the defendant ordered that the goods be returned to Eleyele stores while the 1st plaintiff was queried, arrested and charged to court for conspiracy and stealing.
On the other hand, the 2nd plaintiff who was a manual worker/labourer also in the employ of the defendant testified that on the 20th January, 1996 he accompanied Mr. Adebola Adenuga, his superior officer, to the defendant’s store at Eleyele to load a vehicle with electrical materials for delivery at Jericho stores. The vehicle for the job was driven by a driver who was not a staff of the defendant; that Mr. Adenuga was later arrested by the police but he jumped bail on his release; that he was not arrested but was queried and he appeared before a panel.
The plaintiffs were dismissed by a letter of 13th March, 1997 issued during the pendency of the trial of the 1st plaintiff in the Magistrate Court, Ibadan. The plaintiffs filed the action sometime in September, 1999. At the trial the defendant did not testify but rested its case on that of the plaintiffs.
As stated earlier in this judgment, at the conclusion of the trial the learned trial judge entered judgment in favour of the plaintiffs/appellants resulting in an appeal which was decided against the present appellants hence the instant further appeal.
The issues formulated by learned counsel the appellants CHIEF BISI ADEGUNLE in the appellants’ brief of argument filed on 16th July, 2005 are as follows:-
“1. Whether the defence under section 2(a) of the Pubic Officers (Protection) Act, Cap 379 Laws of the Federation was properly and adequately raised in the pleadings of the defence.
- If the answer to 1 above is in the negative, whether the Court of Appeal was not in error when it held that “paragraph 12 of the Amended Statement of Defence pleaded in essence that the respondent’s case is statute barred. This in effect gave the trial court notices of the sort of defence put up by the appellant; it was sufficient enough for the trial court to warn itself of the need to give priority to the consideration of that averment”
Looking at the above issue, it is clear that only one issue calls for determination, that is, Issue 1 because whichever way the issue is decided the decision would render the second issue, though allegedly in the alternative, irrelevant. This is so because a positive resolution of Issue 1 will dispose of the appeal and would result in the setting aside of the judgment of the lower court with a consequent reinstatement of the judgment of the trial court earlier set aside by the lower court.
On the other hand, if the issue is resolved in the negative, then the appeal also ends there as there would be no need to consider the second issue as this court would consequently affirm the decision of the lower court setting aside the judgment of the trial court on the ground that the action by the appellants was statute barred. The above being the true state of affairs, I proceed to consider the appeal accordingly.
In arguing Issue 1, learned counsel for the appellants submitted that the defence under limitation law is a special defendce and must be pleaded, relying on Malomo v. Olushola (1955) XV (15) WACA 12; Akwei v. Akwei (1943) 9 WACA III; that where the statute of limitation or limitation law is not so pleaded the defendant cannot take refuge thereunder, relying on Ketu v. Onikoro (1984) 10 S.C. 265 at 267; that the pleading in paragraph 12 of the Amended Statement of Defence, earlier reproduced in this judgment, does not meet the standard required as it does not contain the particulars of the statute of limitation being relied upon, the date the cause of action accrued and the date the cause of action became barred, relying on Nigerian National Shipping Line Ltd. v. Emenka (1987) 4 NWLR (Pt. 63) 77 at 79; that the case of the respondent is made worse as it did not lead evidence on the matter. It is the further submission of learned counsel that the lower court was therefore in error in holding that the defence availed the respondent and urged the court to resolve the issue in favour of the appellants particularly as the respondent, is clear by not calling evidence is deemed to have abandoned its Statement of Defence.
On his part, learned counsel for the respondent Emmanuel Abiodun Esq in the respondent brief filed on 27th May, 2008 formulated one issue for determination which is as follows:-
“Whether or not the appellants have sufficient notice that the issue of Limitation Law was raised in the defence of the respondent”
From what I have discussed earlier in this judgment I hold the view that the above issue is sufficient for the purpose of determining the appeal and is, in substance the same as appellants” Issue 1 though couched differently.
In arguing the issue, however, learned counsel for the respondent referred to the writ of summons filed in September, 1999 challenging the letter of dismissal issued, on 14th March, 1997 as pleaded in paragraph 9 of the Statement of Claim; that the above data was sufficient, without filing a defence, for the respondent to have raised a point of law to the effect that the action was statute barred which point would have been taken in limine, relying on Texaco Panama Inc. v. Shell Petroleum Devt. Corp of Nigeria (2000) 4 NWLR (Pt.653) 480 at 490; that the respondent raised the issue of limitation law in paragraph 12 of the Amended Statement of Defence supra and that the respondent did not call evidence but addressed the court on the point of law so raised but was overruled by the trial court, though it found that the law applied but that the respondent acted ultra vires their power to dismiss the appellants; that the lower court also agreed that the law applied; that the appellants at no time contended that the defence was not specially pleaded neither did they ask for particulars, if in doubt; that the issue of specific pleading of the defence was being raised for the first time in this court as the lower courts were not given the opportunity to consider and determine the issue.
It is the further contention of learned counsel that the defence raised by the respondent in the said paragraph 12 is an issue of jurisdiction of the trial court; that a defendant is not to rely on a defence which is not based on facts pleaded in the statement of claim unless he alleges those facts specifically in the statement of defence by way of special defence, relying on NIPC Ltd v. Bank of West Africa (1962) 1 ALL NLR 556; that appellants were given sufficient notice of the defence relied upon and were consequently not taken by surprise. Learned counsel urged the court to resolve the issue against the appellants and dismiss the appeal.
It should be noted that learned counsel for the appellant did not file a reply brief in reaction to the respondent brief neither was our attention drawn by counsel for the appellants to the existence, in the court file, of any such reply brief.
Both counsel agree, however, that a defendant/party intending to raise/rely on the defence of limitation law/statute of limitation must first of all specifically plead same otherwise the defence, being a special one, will not avail the party concerned. The rationale for the above principle is to be found within the rules of pleadings, the particular intent of which is to give notice to the other party so as not to take him by surprise see Ketu v. Onikoro (1984) 10 S.C 265 at 267.
I had earlier in this judgment reproduced paragraph 12 of the Amended Statement of Defence. The question is whether what is pleaded therein satisfies the requirement of the rules of pleadings with regards to the pleading of special defences such as statute of limitation.
Before proceeding to answer the question, it is important to note that I agree with learned counsel for the respondent that the issue of sufficiency or otherwise of the pleading of the statute of limitation or limitation law is being raised for the first time in this court, the same not haven been raised in either of the lower courts. From the record, the case in the lower courts on the question of limitation law was simply whether section 2(a) of the Public Officers Protection Act applied to the facts of this case which issue was resolved in both courts, in the affirmative. The said issue which was duly considered by the lower courts and decided upon clearly shows that the appellants were fully aware of the defence being relied upon as pleaded in paragraph 12 supra and were therefore not taken by surprise.
It should be noted that appellants did not file a reply brief to challenge the contention of learned counsel for the respondent that the present issue as formulated by the appellants is a fresh issue. It is settled law that where by party intends to raise a fresh issue on appeal, he has to seek and obtain the leave of the appellate court for the issue to be validly raised and entertained. I have gone through the record and have not seen where appellants sought the leave of this court to raise the issue in question. As the appellants failed to file a reply there is nothing to urge on this court in the contrary. I have to point out a trend I have noticed emerging in legal appellate practice which is that some learned counsel keep on changing their case from one court to the other. While there is nothing wrong with that where there is evidence on the printed record to support each version of the case, the law remain; that where a party wants/desires to raise a fresh point on appeal – a point not considered and determined by the lower court (s) – he must seek and obtain the leave of the appellate court. It is trite law.
It should be noted that when a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the court concerned on points of law because where an action is found to be statute barred it means that the court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.
Returning to the issue under consideration, I hold the considered view that paragraph 12 of the Amended Statement of Defence contains sufficient materials for the raising of the special defence of statute of limitation as required by law. The purpose of pleading is to give the opponent notice of the case he is going to meet at trial: Where, however, a defendant desires more particulars of facts/defence pleaded he is at liberty, under the rules of court, to demand same from his opponent who is by law; compellable to oblige him. In the instant case, the appellants never complained of insufficient particulars rather their contention was that the statute of limitation does not apply to the facts of the case – they were therefore not taken by surprise as they knew what was at stake.
Apart from the above, it is settled law that it is the case presented by the plaintiff in his statement of claim that determines the issue of the jurisdiction of the court. In the instant case the date the appellants’ cause of action arose has been stated in paragraph 9 of the Statement of Claim as the 14th day of March, 1997, while from page 2 of the record of appeal, the writ of summons in the case is dated 9th September, 1999.
The above being the case I hold the view that all the necessary facts needed to determine the applicability of section 2 (a) of Public Officers (Protected) Act in the case have been provided in the Statement of Claim and the defendant can raise a point of law in limine on the matter without first filing a defence on the authority of Texaco Panam, a Inc. v. Shell Petroleum Devt. Corp. of Nig. (2000) 4 NWLR (pt.653) 480 at 490. In the instant case, however, the respondent filed a Statement of Defence and specifically pleaded the defence in paragraph 12 thereof.
I hold the considered view that a defendant who pleads the defence of statute of limitation need not call or adduce evidence if the facts needed to establish the defence can be gleaned or are contained or apparent in the case presented by the plaintiff as the defendant can rely on the plaintiffs case to successfully establish the defence, as in the instant case.
From the above, it is clear that Issue 1 should be and is hereby resolved against the appellants.
Haven resolved the only relevant issue for consideration against the appellants, it follows that the appeal is without merit and is accordingly dismissed. The judgment of the lower court delivered on the 21st day of July, 2003 is hereby affirmed with N50, 000.00 (Fifty Thousand Naira) costs to the respondents.
Appeal dismissed.
SC.140/2004
