MARK AMACHERE & ANOR. V. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED (2011)

MARK AMACHERE & ANOR. V. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED

(2011)LCN/4337(CA)

In The Court of Appeal of Nigeria

On Monday, the 28th day of February, 2011

CA/PH/173/2009

RATIO

LIMITATION OF ACTION: WHETHER LIMITATION OF ACTION IS AN ISSUE THAT TOUCHES ON THE JURISDICTION OF THE TRIAL COURT; WHAT DOES THE COURT TAKE INTO CONSIDERATION IN DETERMINING WHETHER IT HAS JURISDICTION TO ENTERTAIN A MATTER

Limitation of actions is an issue that touches on the jurisdiction the trial court has to entertain a matter, The law is settled that in considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the writ of summons and the statement of claim. See TUKUR v GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517; ONUORAH v. K.R.P.C. (2005) 6 NWLR (Pt.921) 393; NKUMA v. ODILI (2006) 6 NWLR (Pt.977); GAFAR v. GOVT. OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375. PER EJEMBI EKO, J.C.A

CONTENT OF AFFIDAVIT: WHETHER A SUPPORTING AFFIDAVIT WHICH VERIFIES THE RELIEF SOUGHT ON THE MOTION PAPER CAN ITSELF CONTAIN OR PUT UP THE RELIEFS SOUGHT

The reliefs sought by the Respondent in the said motion are not in the supporting affidavit, but ex facie the motion paper. A supporting affidavit which verifies the relief sought on the motion paper can not itself contain or put up the reliefs sought. Section 87 of the Evidence Act is very clear. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument, or conclusion. See SODIPO V. LEMMINKAINEN OY (1992) 8 NWLR (Pt.258) 229 at 144 E. PER EJEMBI EKO, J.C.A

RAISING ISSUE SUO MOTU: WHETHER A JUDGE CAN SUO MOTU MAKE A CASE FOR EITHER OR BOTH OF THE PARTIES AND THEN PROCEED TO GIVE JUDGMENT ON THE CASE SO FORMULATED CONTRARY TO THE CASE OF THE PARTIES BEFORE HIM

As stated in COMMISSIONER FOR WORKS, BENUE STATE v. DEVCON CON. LTD (supra) per Karibi-Whyte JSC at page 421; it is an elementary and fundamental principle for determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the Judge to suo motu make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him. PER EJEMBI EKO, J.C.A

PLEADINGS: WHETHER A PLAINTIFF IS BOUND BY THE CASE PUT FORWARD IN THE WRIT OF SUMMONS

…the Plaintiff is bound by the case put forward in the writ of summons, as in A.C.B. LTD v. A,G. NORTHERN NIGERIA (1969) NMLR 231; and that similarly, an applicant is bound by the prayers in his motion. PER EJEMBI EKO, J.C.A

PENDING APPLICATION/MOTION: WHETHER THE COURT BEFORE WHICH THERE IS A PENDING MOTION OR APPLICATION, IS BOUND BY THE TERMS OR PRAYERS IN THE APPLICATION OR MOTION FILED

The court, before which there is a pending motion or application, is bound by the terms or prayers in the application or motion filed. See GOVT. OF GONGOLA STATE v. TUKUR (supra) at page 654 where the Supreme Court applied the principle in COMMISSIONER FOR WORKS, BENUE STATE v. DEVCON DEV. LTD (supra). In the GOVT. OF GONGOLA STATE v. TUKUR (supra) the aggrieved appellant had applied for an order “directing the stay of (the) order contained in-judgment dated 21st June, 1988” pending the determination of the appeal against it. The judgment appealed was merely declaratory. It was not an executory judgment. On whether the Court of Appeal could go outside the terms of the motion; the Supreme Court per Obaseki JSC held at page 654 that:- The Court of Appeal can not go out side the terms of the motion however misconceived it is. It is bound by the terms or prayers in the motion filed. (COMMISSIONER FOR WORKS, BENUE STATE v. DEVCON CONSTRUCTION CO. LTD (1955) 3 NWLR (Pt.83) 407 at 420). Since there was nothing to stay the Court of Appeal was in error to have made the order prayed for. In AYANBOYE v. BALOGUN (1990) 5 NWLR (Pt.151) 392 at 413 and PAVEX INT’L CO. LTD v. IBWA (supra) at pages 690 – 700 similar observations were made. The point has been made by the Appellants. PER EJEMBI EKO, J.C.A

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

(OFR) Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. MARK AMACHERE
2. ELLAH JOJO ABAYE
3. OPUADA SILAS
(for themselves and representing Mini Ama & Krakrama Fishing Settlement Suing by their lawful Attorney, Bless on Resources International Limited). Appellant(s)

AND

THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Respondent(s)

T.O. AWOTOYE, J.C.A (Delivering the Leading Judgment): This is an appeal in respect of the ruling of Federal High Court presided over by CHUKWU J., and delivered on 29/01/2009. The plaintiffs claim in the trial court is as follows:
“(i) A declaration that the Defendant is liable to pay fair and adequate compensation for the escape of crude oil from the Defendant’s Buguma manifold which occurred without the default of the Mini Ama and Krakrama Fishing Settlement or the malicious acts of any third party, on 22/11/95 but is still lingering on and continuously polluting the fish ponds, mangrove swamps, beaches, fishing rights and source of drinking water of the Plaintiffs Fishing Settlements.
(ii) An order of this Honourable Court determining and fixing the compensation die and payable to the aforesaid Fishing settlements, the parties herein, having disagreed on the quantum of compensation due and payable.”
The plaintiffs filed their statement of claim and subsequently amended statement of claim by order of court. The defendant later entered conditional appearance and later filed its statement of defence with leave of court out time.
Paragraph 5 of the defendant’s statement of defence is of particular relevance in this appeal. It reads:-
“(5) The defendant will before, at or after the trial of this suit raise objection to the institution of the suit against background of the following points of law:-
(i) That this action is statue barred.”
The defendant subsequently filed a motion on notice praying for “an order getting claim for hearing the point of law raised at paragraph 5 of the defendant statement of defence”
Parties filed written addresses pursuant to the application and the learned trial judge after considering the various submissions held that the action of the plaintiffs was statute- barred and consequently dismissed it.
It is against this Ruling that the appellant filed Notice of Appeal containing 4 grounds of appeal.
Parties to this appeal later filed and exchanged briefs of argument.
The appellants formulated 3 issues for determination. The issues are:-
“(i) whether or not the learned trial Judge was right to have gone outside the prayer in the Respondent’s motion to grant an order dismissing the Appellant’s claims.
(ii) Whether or not having regard to the pleadings and the unchallenged depositions on oath of the Appellants, the learned trial Judge was right in holding that Appellants’ claims were statute-barred.
(iii) Whether or not the Respondent having made subsequent acknowledgement of liability and agreed to compensate the Appellants and indeed paid the sum of N2 million into an Account for the benefit of the Appellants, the dismissal of the Appellants’ claims was fair.”
The Respondent on the other hand formulated 2 issues for determination as follows:-
“(1) Whether or not having regard to the pleading the learned trial judge was right in holding that the appellant’s claims were statute-barred.
(2) Whether the trial judge has denied the plaintiff now appellant fair hearing by having heard the application of the defendant now respondent on issue of jurisdiction before hearing the evidence of parties on the substantive suit.”
The two issues formulated by the Respondent cover the three issues of the Appellants. I therefore adopt the two issues for the purpose of this appeal.
Learned counsel for the appellants in his brief of argument submitted that the prayer of the Respondent was the settling claim for trial the point of law raised in paragraph 5 of the its statement of defence, but the trial court wrongfully went outside the prayers to grant a substantive relief not sought by the applicant. He referred to COMMISSIONER FOR WORKS BENUE STATE V. DEVCON DEV. LTD & ANOR (1988) 3 NWLR (PT. 83) Page 407; GOVT OF GONGOLA STATE V. ALHAJI TUKUR (1989) ALL NLR 647 at 654 and PAVEX INTERNATIONAL CO. LTD. V. IBWA LTD (1994) 5 NWLR (Pt.347) page 685 at 700.
Learned counsel further submitted that appellants’ claims were not statute barred as the appellants had claim that the crude oil spill was of a lingering nature and that if the learned trial judge had considered the pleadings and deposition on oath filed by the appellants and evaluated the affidavit evidence he would have certainly came to the conclusion that the appellants’ suit was not statute barred. He cited OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD (2008) 2 – 12 SC 1 at 28.
He posited further that issue of jurisdiction especially when raised on disputed facts could not be resolved an affidavit evidence. He referred to IDEH V. GODBLESS MOTORS LTD. (1991) 4 NWLR (Pt. 188) at 699 and 711; AFOLABI V. ADEKUNLE (1983) 2 SCN LR 141 at 149 – 151.
He therefore urged this court to invoke the provision of section 16 of the Court of Appeal Act to hold that the appellant’s claim was not statute barred. He referred to NTEOGWU IJA v. IKIRU (1998) 10 NWLR (Pt. 56) page 267 and ENEKWE v. IMB LTD. (2006) 11 – 12 SC 3.
Learned counsel contented further that the Respondent/Defendant made a subsequent admission of liability and agreed to compensate the Appellants/plaintiff in December 2001 less than five years before the action was instituted. He concluded that the Respondent did not prove its assertion that the suit was statute barred.
I have carefully considered the submissions of learned counsel on both sides.
The first issue to consider is whether or not the learned trial judge was right in holding that the appellant’s claims were statute barred.
In AMUSAN V. OBIDEYI (2005) 31 WRN 1 at 6 Kutigi JSC in the lead judgment explained how to calculate the period of limitation applicable in a matter this way:
“The court will look at the writ and statement of claim which alleges when the wrong suffered by the plaintiff was committed and placing it side by side with the date on which the writ was issued. If the writ was issued beyond the time allowed by the applicable limitation law, then the action can be said to be statute barred.” See also Jallico Ltd V. Owoniboy Tech. Services Ltd. (1995) 4 NWLR (PT. 391) 534 at 538 and Osun State Government V. Dalemi Nigeria Ltd (2003) ALL FWLR (PT. 365) 438.
Paragraph 3 of the plaintiff’s statement of claim in the trial court reads.
“3 On or about 22nd day of November, 1995 without the default of Mini Ama and Krakrama Fishing Settlements, the claimants herein or the malicious acts of a third party, about 1,500 barrels of crude oil escaped from the Defendant’s oil pipeline into the River and carried by trial waves and water to impact the Fishing settlements within the vicinity, including the Mini Ama and Krakrama Fishing settlements whose mangrove swamps, beaches, fish ponds, water rights and sources of drinking water were impacted, polluted and are being adversely affected and continuously causing the death of both fishes, crabs, periwinkles, shrimps and other aquatic lives and fauna. The spilled crude is still lingering on till date.”
The appellant in his argument posited that the oil spill was of a lingering nature, To understand the argument of learned counsel recourse has to be made to paragraph 3 of the appellants statement of claim it states inter alia “The spilled crude is still lingering on till date'”
It is true as explained by Edozie JSC in AREMO II V. ADEHENYE (2004) 42 WRN 1 at 21. “Legal principles are not always inflexible. Sometime they admit of certain exceptions. The Law of Limitation of action recognizes some exception, Thus where there has been continuance of the damage, a fresh case of action arises from time to time as often as damage is caused BATTISHILL V. REED (1856) 18 CB 696 at 714.” See also DARLEY MAIN COLLTERY COUMITCHELL (1886) 11 APP CAS 127, WEST LEIGH COLLIERY CO. LTD V. TUNNIDIFFE HANEPSON LTD. (1908) AC. 27. In a case of water pollution, damage is part of the cause of action and a fresh cause of action arises from time to time as soon as damage is caused. See WHITE HOUSE V. FELLOWES (19861) 10 C. BNS 765; DEVERY V. GRAND CANAL CO. (1875) 1R GCL 194, EXCH. HOLE V. CHARO UNION (1894) 1 CH 293.
Section 16 of the Limitation Law of Rivers state reads:-
“No action founded on contract, tort or any other action not specifically provided for in parts 1 & II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.”
Paragraph 3 and 8(i) of the plaintiff’s claim are very pertinent on this issue. They read thus.
“3 On or about 22nd day of November, 1995 without the default of Mini Ama and Krakrama Fishing Settlements, the claimants herein or the malicious acts of a third party, about 1,500 barrels of crude oil escaped from the Defendant’s oil pipelines into the River and carried by trial waves and water to impact the Fishing Settlements within the vicinity, including the Mini Ama and Krakrama Fishing Settlements whose mangrove swamps, beaches, fish ponds, water rights and sources of drinking water were impacted, polluted and are being adversely affected and continuously causing the death of both fishes, crabs, periwinkles, shrimps and other aquatic lives and fauna. The spilled crude is still lingering on till date.
“8(i) A declaration that the Defendants is liable to pay fair and adequate compensation for the escape of crude oil from the Defendant’s Buguma manifold which occurred without the default of the Mini Ama and Krakrama Fishing Settlement or the malicious acts of any third party, on 22/11/95 but is still lingering on and continuously polluting the fish ponds, mangrove swamps, beaches, fishing rights and source of drinking water of the Plaintiffs Fishing Settlements.”
What the plaintiffs were contending was that the damage was continuing in which case 1995 might not be the date the cause of action accrued. The truth or otherwise of this will be known after both parties have been heard.
The plaintiff also averred in his claim that the defendant subsequently acknowledged liability. The plaintiffs’ claim is silent on the details of the acknowledgement of liability. In truth under section 28(7) and 29 of the Limitation Law of Rivers state an acknowledgement of liability can cause an extension of the period of limitation under certain conditions.
Since there is nothing on the pleadings to show.
(i) that the damage in this case is not of a continuing nature and
(ii) that the acknowledgement of liability as averred in paragraphs 4 of the statement of claim is not valid enough to extend the limitation period under the Limitation Law, the trial court ought not to have granted the application of the defendant and declared the action statute-barred as enough facts were not yet before the court.
Issues once not admitted in the pleadings are supposed to be resolved by evidence. It is in my respectful view, better in a case like this when the pleadings have not shown all the material facts to sustain the preliminary objection to allow parties to ventilate their respective grievance in court by giving evidence and then the court would be able to rule on the objection after having enough facts. See AFOLABI V. ADEKUNLE (1983) 2 SCNLR 141 at 149 – 151.
Learned counsel for the Respondent had contended that even if the Respondent admitted liability and agreed to pay 2 million Naira in favour of the Appellants section 28 of the Limitation Law cited by the appellant was not applicable as the said Section was only applicable to debt in relation to mortgagee of property and not to action in tort as in this present case.
I respectfully disagree.
For clarity’s sake I shall quote section 28 of the Limitation Law of Rivers State in extension.
“(1) Subsections (2) and (3) apply where any right of action (including a foreclosure action) to recover any right of a mortgagee of property of being a foreclosure action in respect of the property has accrued.
(2) If the person in possession of the property in question acknowledges the interest of the person to whom the right action has accrued, the right shall be treated as having accrued on and not before the date of the acknowledgment.
(3) In the case of a foreclosure or other action by a mortgagee, if the person in possession of the property in question or the person liable for mortgage debt makes any payment in respect of the debt (whether of principal or interest) the right shall be treated as having accrued on and not before the date of the payment.
(4) where a mortgagee is by virtue of the mortgage in possession of any mortgaged land and either –
(a) receives any sum in respect of the principal or interest of the mortgage debt; or
(b) acknowledges the interest of the mortgagor, or his equity of redemption,
An action to redeem the land in his possession may be brought at any time before the expiration of ten years from the date of the payment or acknowledgement.
(5) Subject to subjection (6), where any right or action has accrued to recover-
(a) any debt or other liquidate pecuniary claim; or
(b) any claim to the estate of a deceased person or to any share or interest in any such estate,
And the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it, the right shall be treated as having accrued on an not before the date of the acknowledgement or payment.
(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.
(7) Subject to subsection (6), a current period of limitation may be repeatedly extended under this section by further acknowledgments or payments, but a right of action, once barred by the law shall not be revived by any subsequent acknowledgment or payment.”
It is clear that while subsections 1 – 4 of the section are in respect of mortgages subsection 5 is in respect of right of action to recover any debt or pecuniary claim or any claim to the estate of a deceased person or to any share or interest in respect thereof.
Subsection 6 of section 28 of the Limitation Law is in respect of payment of rent interest due.
However, subsection 7, much as it is subject to subsection 6 has an extended application to other actions not specified in subsections 1 – 6 of section 28 of the Limitation Law, (including the present claim in this appeal before this court).
The second issue is on whether or not the trial judge denied the plaintiff now appellant fair hearing by having heard the application of the defendant now respondent on issue of jurisdiction before hearing the evidence of parties on the substantive suit. This issue has been treated in the first part this judgment. What remains to be touched is whether the learned trial judge went outside the prayer in the Respondents motion to grant an order dismissing the appellants’ claim. I have deeply considered the argument canvassed on both sides on this issue. I am impressed by the position of the Respondent to the effect that the appellant who did not object to the allegedly wrong procedure adopted by the court but filed written submission touching on whether or not the action was statute barred is estopped from contending that he was denied fair hearing. See OBINALI V. OKWARANYIA (2004) FWLR (PT’ 213) at 1476.
I have also gone through the written addresses filed by learned counsel for the plaintiff at the lower court. Essentially his submissions were that the plaintiff’s action was not statute-barred. The meaning is, the appellant was heard. I resolve this issue in favour of the Respondent whilst I resolve the issue earlier treated in favour of the appellant.
The appeal has merit it is hereby allowed. The judgment and order of the trial court is hereby set aside. In its place I hereby order that this case be sent back to the lower court to be heard by another judge. I award N50,000.00 cost in favour of the Appellants.

M. DATTIJO MUHAMMAD(OFR), J.C.A: I had a preview of the lead judgment of my learned brother Awotoye JCA and agree with his reasonings and conclusion that the appeal has merit. I, for the detailed and sufficient reasons stated in the lead judgment, also hereby allow the appeal and abide by the consequential orders made by his lordship including the order on cost. I have nothing useful to add to the lead judgment. I adopt same as mine.

EJEMBI EKO, J.C.A: I had the privilege of reading the read judgment just delivered by my learned brother, T.O. AWOTOYE, JCA in draft. I agree with his final conclusion after painstaking analyses of the issues that the appeal has merit. This notwithstanding, I shall add a few comments by way of contribution thereto.
This appeal is against the decision of the Federal High Court (Coram: E.S. Chukwu, J) delivered on 29th January, 2009 in the Suit No FHC/PH/CS/1390/2004 in which the Appellants were the Plaintiffs. The Appellants, as the plaintiffs, took out the writ of summons against the Respondent on 24th June, 2004. The writ was specially endorsed with the statement of claim thereto. The claim and the cause of action disclosed by the statement of claim are as follows-
3. On or about 22nd day of November, 1995, without default of Mini Ama and Krakrama Fishing Settlements, the claimants herein, or the malicious acts of a third party, about 1,500 barrels of crude oil escaped from the defendants oil pipeline into the river and carred by tidal waves and water to impact the Fishing Settlements within the vicinity, including the Mini Ama and Krakrama Fishing Settlements whose mangrove swamps, beaches, fish ponds, water rights and sources of drinking water were adversely affected and continuously causing the death of both fishes, crabs, periwinkles, shrimps and other aquatic lives and fauna. The spilled crude is still lingering on till date.
4. The defendant in a subsequent acknowledgement of liability caused on assessment of individual properties to be carried out wherein in Krakrama: 893.22 bundles of nets, Mini Ama/Omekwe Tari: 700.77 bundles of fishing nets were assessed and Defendant agreed to compensate the Fishing Settlements (including the Plaintiff Fishing Settlements) in December, 2001. The Plaintiffs shall found on Defendant’s Spillage Report part 1 and Report on Individual Net Assessment Exercise at trial. The Defendant is hereby give notice to produce.
6. The Plaintiffs aver that following disagreement on the quantum of compensation: the Defendant is prepared to pay and following conflicting claims to the sum of about N2 million it offered to pay to the Fishing Settlements, the money was lodged with the Defendant’s bankers. The said Fishing Settlements have appointed their joint lawful attorney for the purpose of securing compensation for them. At present the Oruwari Family also has a conflicting claim which is totally different and distinct from Plaintiffs’ and pending in the High Court of Rivers State in respect of the Krakrama and Mini Ama communities.
7. The compensation due and payable to the two Fishing Settlements has been professionally determined, assessed and valued but the Defendant is not prepared to pay anything other than the N2 million it had lodged in its Bank. The Plaintiffs shall found on the valuation Report at the trial.
8. WHEREFORE the Plaintiffs claim the following reliefs –
(i) A declaration that the Defendant is liable to pay fair and adequate compensation for the escape of crude oil from the Defendant’s Buguma Manifold which occurred without the default of the Mini Ama and Krakrama Fishing Settlements, or the malicious acts of any third party, on 22/11/95 but is still lingering on and continuously polluting the fish ponds, mangrove swamps, beaches, fishing rights and source of drinking water of the Plaintiffs Fishing Settlements.
(ii) An order of this Honourable Court determining and fixing the compensation due and payable to the aforesaid Fishing Settlements, the parties herein, having disagreed on the quantum of compensation due and payable.
The defendant, the present Respondent, on 13th June, 2006, by leave of court, filed statement of defence and averred inter alia therein that-
3. Save to admit that the defendant experienced a Minor Spillage form its Buguma Creek manifold on the 22.11.05, the defendant deny (sic) all the material allegation of facts contained in paragraphs 2, 4, 5, & 6 of the Plaintiff Statement of Claim. And shall at the trial of this suit put the plaintiffs to the strictest proof thereof. And in further response, the defendant avers as follows-
i. That as soon as the defendant learnt of the minor escape of crude oil from its Buguma Creek manifold, the defendant moved in men and materials to immediately assess the extent of the leak, contained the leak, repaired the damaged facility and cleaned and restored the impacted areas.
ii. That the defendant further conducted – assessment of the spill and prepared a map showing the areas that we are impacted. The said map is hereby pleaded and shall be relied upon at the trial of this suit.
iii. There is no evidence howsoever that the plaintiffs’ purported settlements were in any way impacted. The defendant shall rely on all documents and reports relating to this incident at the trial of this suit.
iv. The defendant did not at any point in time admit liability to the plaintiffs, neither did the defendant assess or cause to the assessed individual properties howsoever descried nor did the defendant agree to pay the plaintiffs any compensation howsoever descried in December, 2001 or at any other time whatsoever.
v. Neither did the defendant at any time discuss or agree or caused to be agreed any sum of money to be paid to the plaintiffs for alleged damage to their mangrove swamp purportedly polluted by the defendant nor lodged any money in any bank to the benefit of the plaintiff.
4. The defendant deny (sic) all the averments in paragraph 7 of the statement of claim and shall at the trial put the plaintiffs to the strictest proof thereof. And in further response the defendant avers as follows-
i. That the plaintiffs community were (sic) not impacted in any way
ii. That any purported valuation report must have been procured for the sole purpose of this trial.
5. The defendant will before, at or after the trial of this suit raise objection to the institution of the suit against the background of the following points of law-
i. That this action is statute barred.
On 30th October, 2008 and in virtue of its contention in paragraph 5 of the statement of defence that the suit of the plaintiffs against it was statute barred, the Respondent, as the defendant, filed an application wherein it prayed for –
An order setting down for hearing the point of law at paragraph 5 of the statement of defence.
The parties exchanged written addresses. On the 29th January, 2009 the learned trial Judge, in his considered Ruling, held that the suit was statute barred and consequently dismissed it. Aggrieved by this decision the plaintiffs, on 3rd February, 2009, filed their notice of appeal with 4 grounds of appeal. They seek three reliefs, namely –
i. to allow the appeal and set aside the decision of the lower Court.
ii. to invoke section 16 of the Court of Appeal Act and try the issue of limitation raised by the Respondent and hold that the action was not statute barred.
iii. To remit the quantum of com7ensation Pa4able by the Respondent to the Federal High Court for determination before another Judge.
In accordance with the Rules of this Court the parties have exchanged their respective briefs of argument. The Appellants Brief was filed on 22nd April, 2009. It was settled by Emonena B. Ukiri, Esq. The Respondent’s brief, settled by Nneka E. Nwodo, Esq., was filed on 4th June, 2009.
The Appellants formulated three (3) issues for determination out of their four (4) grounds of appeal as follows-
i. whether or not the learned trial Judge was right to have gone outside the prayer in the Respondent’s motion to grant an order dismissing the Appellants’ claim.
ii. Whether or not having regard to the pleadings and the unchallenged depositions on oath of the Appellant, the learned trial Judge was right in holding that Appellants’ claims were statute bared.
iii. Whether or not the Respondent having made subsequent acknowledgement of liability and agreed to compensate the Appellant and indeed paid the sum of N2 million into an account for the benefit of the Appellants, the dismissal of the Appellants’ claim was fair.
The Respondent, on its part, formulated only two issues for determination in this appeal. That is –
1. whether or not having regard to the pleadings the learned trial Judge was right in holding that the Appellants’ claims were statute barred.
2. whether the trial Judge has denied the Plaintiffs, now appellants, fair hearing by having heard the application of the defendant, now respondent, on issue of jurisdiction before hearing the evidence of the parties in the substantive suit.
Limitation of actions is an issue that touches on the jurisdiction the trial court has to entertain a matter, The law is settled that in considering whether a court has jurisdiction to entertain a matter, the court is guided by the claim before it by critically looking at the writ of summons and the statement of claim. See TUKUR v GOVT. OF GONGOLA STATE (1989) 4 NWLR (Pt. 117) 517; ONUORAH v. K.R.P.C. (2005) 6 NWLR (Pt.921) 393; NKUMA v. ODILI (2006) 6 NWLR (Pt.977); GAFAR v. GOVT. OF KWARA STATE (2007) 4 NWLR (Pt. 1024) 375. Counsel for the Respondent, at the court below and here, has made the point when he submitted, on the authority of OGUNDIPE v. NDIC (2008) ALL FWLR (Pt.432) 1222 and CHIEF E, W.J. WOHEREM v. JOE EMEREUWA (2008) ALL FWLR (Pt.262) 464, that in determining whether an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim. This is to ascertain the alleged date the wrong in question was committed and compare such date with the date the writ of summons was taken out. I have stated this by way of preamble. I will now consider the issues argued.
The Appellants argued their issues (i) and (ii) together. Arguing, apparently under issue (i), Appellants submit that it is crystal clear in both the relief on the motion paper and the supporting affidavit that the prayer of the Respondent in the motion on notice was definite and specifically for the setting down for trial the point of law raised in paragraph 5 of the statement of defence. That the Respondent did not ask for the dismissal of the Appellants’ claims for being statute barred. And that the court was not expected to go outside the prayer on the motion paper to grant a substantive relief not sought by the applicant. For this submission Appellants cited COMMISSIONER FOR WORKS, BENUE STATE & ANOR v. DEVCON CON. LTD & ANOR (1988) 3 NWLR (Pt.83) 407; GOVT OF GONGOLA STATE v. ALHAJI TUKUR (1989) ALL NLR 647 at 654; and PAVEX INT’L CO. LTD. V. IBWA LTD. (1994) 5 NWLR (Pt.347) 685 at 700.
I have painstakingly read the Respondent’s Brief. I do not think that counsel for the Respondent really appreciated the fine points of law being canvassed by the Appellants. As rightly reiterated by the Respondent, the respondent fifed a motion to set down the point of law raised in its paragraph 5 of the statement of defence for hearing with its accompanied affidavit on 30th October, 2008. The reliefs sought by the Respondent in the said motion are not in the supporting affidavit, but ex facie the motion paper. A supporting affidavit which verifies the relief sought on the motion paper can not itself contain or put up the reliefs sought. Section 87 of the Evidence Act is very clear. An affidavit shall not contain extraneous matter, by way of objection, or prayer, or legal argument, or conclusion. See SODIPO V. LEMMINKAINEN OY (1992) 8 NWLR (Pt.258) 229 at 144 E. It is therefore idle for the Respondent to argue that the Appellants did not file counter affidavit to the Respondent’s supporting affidavit wherein in paragraph 3, 4 and 5 thereof it is averred that in paragraph 5 of the statement of defence it was pleaded that the Appellants’ claims were statute barred and that if that point of law was set down and determined it would dispose of the Appellants’ claims.
As stated in COMMISSIONER FOR WORKS, BENUE STATE v. DEVCON CON. LTD (supra) per Karibi-Whyte JSC at page 421; it is an elementary and fundamental principle for determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the Judge to suo motu make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him. His Lordship concluded the statement by reiterating the point that the Plaintiff is bound by the case put forward in the writ of summons, as in A.C.B. LTD v. A,G. NORTHERN NIGERIA (1969) NMLR 231; and that similarly, an applicant is bound by the prayers in his motion. In the instant case the prayer on the motion paper is an order setting the down for hearing the point of law raised in paragraph 5 of the statement of defence. The court, before which there is a pending motion or application, is bound by the terms or prayers in the application or motion filed. See GOVT. OF GONGOLA STATE v. TUKUR (supra) at page 654 where the Supreme Court applied the principle in COMMISSIONER FOR WORKS, BENUE STATE v. DEVCON DEV. LTD (supra). In the GOVT. OF GONGOLA STATE v. TUKUR (supra) the aggrieved appellant had applied for an order “directing the stay of (the) order contained in-judgment dated 21st June, 1988” pending the determination of the appeal against it. The judgment appealed was merely declaratory. It was not an executory judgment.
On whether the Court of Appeal could go outside the terms of the motion; the Supreme Court per Obaseki JSC held at page 654 that:-
The Court of Appeal can not go out side the terms of the motion however misconceived it is. It is bound by the terms or prayers in the motion filed. (COMMISSIONER FOR WORKS, BENUE STATE v. DEVCON CONSTRUCTION CO. LTD (1955) 3 NWLR (Pt.83) 407 at 420). Since there was nothing to stay the Court of Appeal was in error to have made the order prayed for.
In AYANBOYE v. BALOGUN (1990) 5 NWLR (Pt.151) 392 at 413 and PAVEX INT’L CO. LTD v. IBWA (supra) at pages 690 – 700 similar observations were made. The point has been made by the Appellants. The learned trial Judge was in error to have gone beyond the terms of the motion before him to have decided that the suit was statute barred. The prayer in the motion before was merely for “an order setting down for hearing the point of law raised at paragraph 5 of defence.” The point of law had not yet been set down for hearing before the learned trial Judge erroneously proceeded to its determination, and thereafter dismissed the Appellants’ claims for being statute barred.
The contention of the Appellants under their issue (ii) is that their claims were not statute barred at the time they took out their writ of summons on 24th June, 2004. They submit that they had pleaded that the escape of crude oil from the Respondent’s oil pipeline is still lingering on and is continuously and adversely affecting them. They refer to paragraphs 3, 5 and 9 of the statement of claim for this allegation. They further submit that though the Respondent admitted that there was a crude oil spill from its pipeline on 22nd November, 1995, it denied the facts pleaded in paragraphs 2, 4, 5 and 6 of the statement. Specifically, the Respondent averred:
That as soon as the defendant learnt of the minor escape of crude oil from its Buguma creek manifold, the defendant moved in men and materials to the immediately assess the extent of the leak, contained the leak, repaired the damaged facility and restored the impacted area.
The Respondent, as the Defendant, had joined issues on whether the escape of Crude oil from its manifold “‘is still lingering on” and was continuously and adversely affecting the livelihood of the Appellants. On this the Appellants submit that once issues are joined by the parties on a particular defence, the issue can not be resolved unless evidence is taken. AFOLABI v. ADEKUNLE (1983) 2 SCNLR 141 at 149 – 151 was cited for this.
The further contention of the Appellants is that the learned trial Judge did not consider the issue of subsequent acknowledgment of liability and agreement to compensate the Appellants in December, 2001 and the alleged actual deposit of N2 million by the Defendant/Respondent in furtherance of that acknowledgement of liability pleaded in the statement of claim. They submit that having regards to the pleadings, their claims were not statute barred.
On its part the Respondent submits that the learned trial Judge, having carefully looked at the pleadings exchanged by the parties, was right to have held that the Appellants’ claims were statute barred. The cause of action, the Respondent submits, arose on 22nd November, 1995 but the writ was taken out only on 24th June, 2004 – 9 years after the accrual of the cause of action. Appellants’ claims, Respondent submits, were caught by sections 16 and 17 of the Limitation Law, 1988 of Rivers State. Section 16 of the Limitation Law, 1988 provides that –
No action founded on contract, tort or any other action not specifically provided for in parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.
Section 22 of the Law states that references to “a right of action” include references to the cause of action. The law itself does not define what a cause of action is. From judicial authorities a cause of action is a fact or set of facts which establishes or gives rise to a right of action. It is a factual situation which gives a person a right to judicial relief or which, if substantiated, entitles the plaintiff to a remedy against the Defendant. See FRED EGBE v, ADEFARASIN (1987) 1 ALL NLR 1; SANDA v. KUKAWA LOCAL GOVT. (1991) 2 NWLR (Pt.174) 379; NNPC & ANOR v. CHIEF STEPHEN ORHIOWA SELE (2004) 5 NWLR (Pt.866) 379, at 408 & 413. As I stated earlier, in deciding whether the statute of limitation has barred or taken away the right of action the court has to critically look at the writ of summons and the statement of claim to see whether it has jurisdiction to entertain the matter. The period of limitation is determined by looking at these processes. The date the alleged wrong was committed, as averred in the writ of summons and the statement of claim, will be compared with the date the writ of summons in the matter was taken out in order to ascertain whether the writ of summons founded on the cause of action was taken out timeously. That is, for the purpose of the instant suit, whether the action was commenced within 5 years mandated by section 16 of the Limitation Law, 1988.
The statement of claim endorsed on the writ of summons avers inter alia
i. that on 22nd November, 1995 about 1,500 barrels of crude oil spilled out of the Respondent’s pipeline into the River around the settlements of the Appellants.
ii. That the oil spill had adversely affected the livelihood of the Appellants,
iii. That “the spilled oil is still lingering on till date” and continuously polluting Appellants’ source of drinking water, fish ponds etc.
iv. That the Respondent subsequently acknowledged liability for the oil spill. It caused assessment to be made for compensation and in December 2001 it agreed to pay the assessed compensation.
v. That there was a dispute over the quantum of compensation to be paid. The Respondent insisted it would not pay more that N2 million as compensation. And following conflicting claims to the compensation the Respondent lodged the N2 million into its bank account.
Now, what is the cause of action entitling the Appellants to claim, as they did, against the Respondent in paragraph 8 of the statement of claim for:
i. A declaration that the Defendant (Respondent) is liable to pay fair and adequate compensate for the escape of crude oil from the Defendant’s Buguma manifold – on 22.11.95 but is still lingering on and continuously polluting the fish pond.
ii. An order of this Honourable Court determining and fixing the compensation due and payable to the aforesaid Fishing Settlements, the parties herein, having disagreed on the quantum of compensation due and payable.
The dispute or disagreement on the quantum of compensation due and payable to Appellants’ community is not the cause of action. Rather, it follows the cause.
The crude oil spill and the consequent nuisance or pollution it has caused constitutes a tort. Each crude oil spill and its nuisance constitute a cause of action. The Appellants aver that on 22 November, 1995 there was an “escape of crude oil from the Respondent’s pipeline whereby 1,500 barrels of crude oil were spewed into the river, swamps, fish ponds etc. That spillage and the attendant pollution constitute a tort. The Appellants further averred that “the spilled crude is still lingering on till date’, or that “the escape of crude oil from Defendant’s manifold – is still lingering on and continuously polluting the fish ponds” etc. The claim of the Appellants for compensation is founded on pollution or nuisance. They say that apart from the pollution caused by the 22nd November, 1995 crude oil spill from the Respondent’s pipeline, more pollutions thereafter continue consequent upon subsequent spill that is still fingering. This Court in GULF OIL CO. (NIG.) LTD. v. OLUBA (2002) 12 NWLR (Pt.780) 92 at 112 per Ibiyeye JCA, stated that in the case of a continuing nuisance or trespass successive actions can be instituted from time to time in its continuance thereby ousting any one particular date for the cause of action to accrue. What distinguishes the instant case from the GULF OIL case (supra) is that the wrong or permanent damage the plaintiffs in the GULF OIL case complained of started in 1973 and continued until the defendant filed its statement of defence in 1989. Distinguishing between the accrual of the cause of action and its effect Ibiyeye JCA states at page 113 –
It is natural that the damage will remain the same as when it was caused because it is permanent. It is common sense to say what has continuation will surely have a beginning. In the instant case, the beginning of the permanent damage was 1973 when undoubtedly the cause of action arose – It is settled law that in an action in tort, the limitation of action runs from its commission. It is immaterial to the date when the cause of action accrued that the effect of the complainant’s injury or wrong continued ad infintum.
Still on the distinction between the cause and the effect Karibi-Whyte, JSC in ADIGUN v. AYINDE (1993) 8 NWLR (Pt.313) 516 at 534, states that –
It is clear the sickness of the plaintiff is the result or consequence of the act, neglect or default complained of. It is not the cause of action.
The cause of action pleaded in that case was the Plaintiff’s injury caused by the reckless driving of the Defendant, a public officer entitled to the protection of Public officers (protection) Law of Niger State. The Plaintiff was required to sue within 3 months of the cause of action. But he sued more than 3 years thereafter claiming that the sickness he got as a result of the cause of action continued thereafter.
The majority opinion in NNPC v. SELE (supra) strengthens my view that if the spillage is of the lingering nature and has not ceased after it was first observed on 22nd November, 1995 and still continues then the claims of the Appellants would not be caught by section 16 of the Limitation Law, 1988 of Rivers state. Muntaka-Coomassie, JCA, (as he then was) who delivered the lead judgment in NNPC v. SELE (supra) found at pages 413, 414 – 415 of the Report that from “the pleadings and evidence adduced by the plaintiffs it is clear that the spillage is of continuance nature” and that “the damage or injury on the Plaintiffs are of lingering nature.” on this basis he held that the date of accrual of the cause of action can not be fixed at the date of the first occurrence of the spillage so as to invoke limitation period. Each spillage and pollution it caused thereafter, as I earlier stated, constitute a cause of action in tort. That is distinct from the first spillage and/or pollution.
I have no hesitation, therefore in view of my foregoing posture, in resolving Issues I and II formulated and argued by the Appellants, in favour of the Appellants.
Issue III formulated by the Appellants is whether the dismissal of the Appellants claims was fair in view of the fact that the Respondent, as pleaded, had made subsequent acknowledgement of liability and agreed to compensate the Appellants and had indeed paid N2 million into a bank account for the benefit of the Appellants. Paragraphs 4, 5 and 6 of the statement of claim plead these facts. Appellants submit that the learned trial Judge failed to consider these facts and that these facts make it inequitable and unfair for the learned trial Judge to have dismissed their claims. For this, reliance was placed on YESUFU v. A.C.B. LTD (1980) 1 – 2 SC 31 at 36 – 37 (Reprint) and the dissenting judgment of K.B. Akaahs JCA in NNPC V. CHIEF SELE (supra). Appellants further contend that their claims were not statute barred by virtue of section 28 of the Limitation Law in view of the subsequent acknowledgement and admission of liability, and the agreement to pay compensation.
In response, the Respondent submits that by paragraph 3 (iv) – (v) of the statement of defence it has denied and joined issues with the Appellants on the alleged admission of liability and agreement to pay N2 million in favour of the Appellants. Respondent further submits that the Appellants neither proved that the alleged N2 million was lodged by the Respondent in any bank account in favour of the Appellants nor did they prove the alleged admission. Appellants ought to have produced or attached to their statement of claim documents attesting to the payment of the said sum, Respondent submits. It further submits that the trite position of the law is that the onus is on the party who asserts to prove his assertion.
At the stage of the proceedings and under the Rules of Practice then prevailing in the trial court, when the only issue is whether the claims of the Plaintiffs are statute barred; the trial court only looks critically at the writ of summons and the statement of claim to decide whether the claims are statute barred. See GULF OIL CO. (NIG.) LTD. v. OLUBA (supra); EGBE v. ADEFARASIN (No.2) (1987) 1 NWLR (Pt.47) 1. Respondent seems to have got it wrong in its insistence that all facts on which issues have been duly joined by the parties ought to have been proved by production of relevant and material evidence for that purpose. At this stage it is merely trial of the point of law and not trial of disputed facts. All that the Defendant, relying on special defence on points of law, like Limitation, is saying is that the Plaintiff, from the processes he has filed and the facts therein, does not have any viable action which in law he can maintain against him. The Appellants submit, on authority of AFOLABI V. ADEKUNLE (1983) (supra) at 149 – 151, and I agree, that once issues are joined by the parties on disputed facts on any particular defence raised by the defence, the issue can not be resolved unless evidence is called. I also agree that on this issue of jurisdiction dependent on disputed facts as in this case; the issue can not be resolved on affidavit evidence. See IDEH v. GODBLESS MOTORS LTD. (1991) 4 NWLR (Pt.188) 699 at 711.
Appellants argue that the subsequent acknowledgment and admission of liability for the oil spill by the Respondent followed by the Respondent depositing N2 million in a bank account in their favour revives or refreshes the cause of action by dint of section 28 of the Limitation Law, 1988. I have read section 28 of the Law. I agree with the Respondent that it does not avail the Appellants. Section 28 seems to focus on any right of action to recover any right in real property. It is therefore irrelevant for the instant case.
Appellants made a point, however that the learned trial Judge failed to consider the facts pleaded by them that the Respondent admitted liability and subsequently agreed to pay them compensation for the pollution caused by the crude oil spill, and that these facts make it inequitable for the Respondent to renege and unfair for the trial court to have dismissed their claims for being statute barred. It has been held in a plethora of cases in this country that ordinarily the period of limitation begins to run from the date the cause of action arose, so long as the claimant is under no legal disability which may postpone the running of the statutory period, and that the mere fact that negotiations are still going on between the parties will not stop the statutory period from running.The rule is subject to one qualification: where, in the course of negotiations some admission of liability had been made by the party raising the defence of limitation and all that remains is the fulfillment of the admission, the cause of action is, as it were, revived by the admission. The statutory period is there and then to be computed no longer from the date the cause of action originally arose but from the time of the admission. The revival of the cause of action in the circumstance is by rules of fairness and equity so that the party admitting would not be allowed to resile from his admission to the detriment of the other party. See EGBE v. ADEFARASIN (1987) 1 NWLR (Pt.47) 1; NWADIARO v. S.P.D.C. NIG LTD (1990) 5 NWLR (Pt.150) 322; R.C.C. (NIG.) LTD v. BURATO (1993) 8 NWLR (Pt.310) 508; NIGERIA CUSTOMS SERVICE & ANOR v. BAZUAYE (2001) 7 NWLR (Pt.712) 357; NNPC v. SELE (supra) at page 444; YESUFU V. A.C.B. LTD (1976) 1 – 2 SC 31. Equity, it is said, follows the law, and acts in personam; and therefore would not allow a party do anything unconscionable. If these facts, as pleaded by the Appellants, as plaintiffs, had been considered by the learned trial Judge the claims of the Appellants would not have been dismissed. He would have allowed them be for the parties to prove their conflicting assertions.
This issue is hereby resolved in favour of Appellants. On the whole, I allow the appeal. The decision of the trial court appealed is hereby set aside. The Suit No FHC/PH/CS/1390/2004 dismissed on 29th January, 2009 shall be, and is hereby, reinstated on the cause list of the Federal High court holden at port Harcourt for hearing before another Judge. Costs assessed at N50,000.00 are hereby awarded in favour of the Appellants against the Respondent.