John Eboigbe v. The Nigerian National Petroleum Corporation

The appellant, in the High Court of the defunct Bendel State of Nigeria, Abudu Judicial Division, instituted legal proceedings against the respondent. The writ was filed on the 13th June, 1985 and the appellant’s claim was for N200,000 being special and general damages for the destruction, by the respondent, of the economic crops of the appellant at Uvbenise, Orhionmwon Local Government area of Bendel State. Pleadings were duly filed and exchanged by the parties. The respondent then filed an application for an order dismissing the appellant’s claim on the ground that the appellant’s action was statute-barred under the following Laws:-
(a) section 11 (1) and (2) of the Nigerian National Petroleum Corporation Act, No.33 of 1977; and
(b) Section 4 (1) (a) of the Limitation Law, Cap. 89 of the Laws of Bendel State of Nigeria, 1976.
The preliminary objection was set down for hearing. It was duly heard and, in his ruling, the learned trial Judge dismissed the application. He held that the appellant’s contention that the respondent was estopped from raising

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or relying on the aforesaid Laws was valid.
Dissatisfied with the ruling, the respondent appealed to the Court of Appeal.
The Court of Appeal allowed the appeal. The court below held that the appellant’s action was incompetent and it dismissed it.
Dissatisfied with the judgment of the court below, the appellant has appealed to this court. The parties, in accordance with the rules of this court, filed and exchanged briefs. Each party formulated, in his/its brief, one issue for determination. The main and only issue formulated in the appellant’s brief, which was based on the ground(s) of appeal, is sufficient for the determination of this appeal and it is as follows:-
“Whether considering the entire conduct and representations of the defendant, especially as highlighted by the plaintiff’s Statement of Claim, the defendant is not estopped from taking the benefit and/or advantage of any statute of limitation.”
The court below gave consideration to the aforesaid issue and came to the conclusion that, on the state of the pleadings, the respondent could in the circumstances of this case take advantage of and rely on the provisions of sections 11(1) and (2) of the Nigerian National Petroleum Corporation Act and section 4(1) (a) of the Limitation Law, Cap. 89 of the Laws of Bendel State. The view of the court below, on the point, as stated in its judgment, was inter alia, as follows:-
“The cause of action in this suit, therefore, accrued and actionable a day after the respondent’s crops were damaged in February, 1979 while the action was brought

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on 13th June, 1985. This was clearly in excess of twelve months permitted by section 11 (1) of Act 33 of 1977; whether the time commenced running from accrual of cause of action in 1979 or from the brake down of negotiations between the parties. On either interpretation the suit was time barred……….
The case of Iga & Ors. v. Chief Amakiri & Ors. (1976) 11 S.C.1. (supra) and section 150 of the Evidence Act do not, in the circumstance of this case, call for consideration. The reason why they are not to be considered being that by any interpretation placed on the date of accrual of the cause of action the respondent’s delay was more than twelve months allowed by the statute; it necessarily follows that their cause of action was statute – barred………………The appellant’s letter of 16/4/84 is of no consequence. This letter was a reaction to the letter caused to be written by a Solicitor to protest against the appellant’s disclaim of liability…………………..This cannot be construed as re-opening of negotiation which had been effectively terminated……………it is neither an excuse under the relevant enactment that the respondent was an illiterate or the literates amongst his family were not immediately available…………….The statute of limitation does not cease to run from the date of accrual of the cause of action irrespective of the status of the parties.”
The foregoing statement by the court below covered related matters such as the effect, if any, which the alleged conduct of the respondent warranting its being estopped from relying on the relevant statutes of limitation herein before mentioned: illiteracy of some members of

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the appellant’s family; travelling by some members of the appellant’s family for a certain period from the place where the alleged destruction of the crops occurred to somewhere within Nigeria; and negotiation which involved exchange of correspondence between the parties for a certain period before it broke down, should have in the determination of the merit or otherwise of the appellant’s claim. The contention for the appellant was that in view of the contents of the letters addressed to him by the respondent and taking into consideration certain things allegedly done by the respondent or its agents pursuant to the claim of the appellant, the respondent should not be allowed to reply on or take advantage of the statutes limitation. Some members of the appellant’s family were illiterates and others travelled out of the place where the destruction of the crops occurred to a place within Nigeria during the relevant period and those aspects of the matter ought to be taken into consideration for the determination of the question whether the action of the appellant was statute-barred. In particular, it was also contended for the appellant, that the period during which the parties engaged in negotiation ought to be excluded. The respondent’s contention was that illiteracy of some members of the appellant’s family and the fact that some of them travelled out of the local government area to a place within Nigeria for a certain period were completely irrelevant to the question whether the appellant’s claim was statute-barred. It was further contended that the exchange of correspondence between the parties and anything done by the respondent as a result of the negotiation, were all part of the negotiation and that in any

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case, negotiation by the parties could not in law, stop the time from running once it had started running
from the time that the cause of action had accrued. It was the respondent’s case that the cause of action accrued in February, 1979 when the crops were allegedly destroyed and since the appellant instituted his action in June, 1985, the action was statute – barred by section 11(1) and (2) of the Nigerian National Petroleum Corporation Act, 1977, and section 4(1) (a) of the Limitation Law.
The first question which comes to mind is the nature of section 11 (1) and (2) of the legislation known as the Nigerian National Petroleum Corporation Act, 1977. As the provisions impose a limitation of time upon existing right of action, they are statutory provisions having the same effect as a statute of limitation. See Eghn v. Yusuf(1992) 6 NWLR (Pt. 245) 1. Section 11 (1) and (2) of the Act provide as follows:-
“11. (1) Notwithstanding anything in any other enactment, no suit against the corporation, a member of the Board or an employee of the corporation for any act done in pursuance or execution any a enactment or law, or of any public duties or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duties or authority, shall lie or be instituted in any court unlesit is commenced within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof.
(2) No suit shall be commenced against the Corporation before the expiration of a period of one month after written notice of intention to commence the suit shall have been

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served upon the Corporation by the intending plaintiff or his agent: and the notice shall clearly and explicitly state the cause of action, the particulars of claim, the name and place of abode of the intending plaintiff and the relief which he claims.”
The next question is when does time begin to run for the purposes of a statute of limitation? Time begins to run from the date that the cause of action accrues. See Sanda v. Kukawa Local Government, (1991) 2 NWLR (Pt 174) 379.
The cause of action, generally, accrues on the date on which the incident, giving rise to the cause of action, occurs and, in the case of section 11(1) of the Nigerian National Petroleum Act, 1977, an action in relation to an incident giving rise to the cause of action must be instituted within twelve months next after the act, neglect or default complained of or, in the case of a continuance of damage or injury, within twelve months next after the ceasing thereof. Proceedings must be begun, normally, by the issue of a writ of summons within the period prescribed by the relevant statute.
In this case, the appellant’s crops were allegedly damaged or destroyed in February, 1979. In accordance with the principles stated above, February, 1979 was the date on which the appellant’s cause of action accrued. It was common ground that the appellant instituted the present action in June, 1985. Bearing the provisions of section 11(1) of the Nigerian National Petroleum Corporation Act of 1977 and section 4(1) (a) of the Limitation Law, Cap. 89 of the Laws of Bendel State of Nigeria, 1976, which prescribed six years limitation period

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in mind, the action instituted by the appellant was prima facie, statue – barred. Where an action is statute – barred a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation Law for instituting such an action has elapsed. See Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637. An action commenced after the expiration of the period, within which an action must be brought, stipulated in statute of limitation is not maintainable. See Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) 258. In short, when the statute of limitation in question prescribes a period, within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See Sanda’s case supra.
The next question is whether there are circumstances, in this case, warranting the relaxation or complete non-application of the provisions of the relevant limitation laws. Certainly, illiteracy of some members of the appellant’s family is totally irrelevant because ignorance of the law is not an excuse. As for the period during which the parties engaged in negotiation, the law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation. The best cause for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails. If, as in this case, the negotiation does not result in a settlement or in an admission of liability, the law will not allow the time devoted to negotiation to be excluded from the period

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which should be taken into consideration for the determination of the question whether a claim has been statute – barred. Negotiation by the parties does not prevent or stop time from running. The following is the statement, on the point, by Fatayi-Williams, J., (as he then was) in Gbadamosi Lahan v.The Attorney-General, Western Nigeria, (1961) WNLR. 39; (1963) 2 SCNLR 47 which, I think, was correctly decided:-
“After perusal, I am unable to find anything in the Act to prevent time from running during negotiations between the parties for the consideration of the claim. This is clearly a case where the Government had been slow in formulating its attitude towards a claim.”
I will later, in this judgment, deal with certain provisions of the said Limitation Law which suspend the running of time in certain circumstances in the light of the expression: “Notwithstanding anything in any other enactment” in section 11 (1) of the Nigerian National Petroleum Corporation Act, 1977. It is sufficient, for the present purpose, to state that there was nothing in the Act or the Law to prevent time from running during negotiations between the parties in this case.
With reference to the allegation that some members of the appellant’s family travelled from the place of the incident to somewhere within the country and stayed there for some time, that fact is irrelevant to the issue involved in this case which is whether the appellant’s action was statute-barred. See Solomon v. African Steamship Co., 9 NLR 99.
In the case of the alleged conduct of the respondent which, according to the appellant, should estop the

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respondent from raising or relying on the Laws of limitation, the appellant cited Ige & ors v. Chief Amakiri (1976) 11 SC. at p. 13 and referred to section 150 of the Evidence Act. The law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling the dispute. Except where as a result there is what can be reasonably regarded as a settlement of the dispute or an admission of liability on the part of a defendant, the limitation time continues to run. If one considers the contents of all the letters written by the parties in this case to each other along with the action, if any, taken by the respondent or its agent or servant during the relevant period, it is quite clear that there was nothing in the manner in which the respondent conducted the negotiation which could estop it from relying on or raising the statutes of limitation. See Gbadamosi Lahan’s case, supra. InHawlett v. London County Council (1908) 24 J.L.R. 331 the letters which the parties addressed to each other contained suggestions for a settlement, the sum which the plaintiff would be willing to accept, and requests for particulars. When negotiation broke down, the plaintiff instituted an action and the defendant relied on section 1 (a) of the Public Authorities Protection Act, 1893, which prescribed a limitation period of six months. It was held, on appeal, that the defendant was not estopped from relying on the Act. The situation in the respondent’s case in this matter was not as bad as the situation in Hawlett’s case and the defendant in that case was not estopped from relying on the statute of limitation.
Another significant aspect of this case was that the appellant did not institute the present action until after one

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year and some months after the respondent had made it abundantly clear that it was not going to pay the appellant for the appellant’s crops allegedly destroyed by the respondent. In a letter dated 1st February, 1984 the respondent told the appellant that he would not be paid any compensation because his claim was not convincing. As a result, the appellant addressed another letter to the respondent. The respondent replied that letter and stated in the said reply dated 9th March, 1984: “In the absence of any more facts we are regarding the matter as closed.” The reply dated 16th April, 1984 was sent by the respondent to another letter of the appellant. In that reply, the respondent stated that the case had been referred to its Legal Department and that it hoped to get the appellant informed of any development soon. There had been no development and the respondent had not addressed any further letter of the appellant. The appellant issued a writ to commence this action against the respondent in June 1985, that is about fourteen months after it had been made clear to the appellant that the respondent did not admit liability. Whatever right the appellant had was completely statute – barred at the time he commenced this action.
The appellant urged this court to take into consideration the provision of section 25(c) of the Limitation Law which provide that time should not begin to run until the plaintiff has discovered the fraud, where fraud is alleged, or his mistake; section 28 of the Law which empowers a court to refuse the relief on the ground of acquiescence: and section 21 of the Law which provides that time should not begin or continue to run when a party is under disability.

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Whatever may be the merit. if any, of the submission, the provisions of the Limitation Law suspending the running of the limitation period prescribed in the Law do not apply as the provisions of section 11 (1) of the Nigerian National Petroleum Corporation Act, 1979, are applicable notwithstanding anything in any other enactment.
The appeal does not succeed. It is hereby dismissed with N1,000.00 costs to the respondent. The judgment of the court below is affirmed.