SOLOMON ADESOJI GBADEHAN V. VICTOR ADESIMBO KILADEJO & ORS.
(2011)LCN/4994(CA)
In The Court of Appeal of Nigeria
On Monday, the 12th day of December, 2011
CA/B/390/2008
RATIO
LIMITATION PERIOD: CONSEQUENCE OF INSTITUTING LEGAL PROCEEDINGS AFTER THE EXPIRATION OF THE PRESCRIBED PERIOD
It has been held in several decided authorities that any provision in any law that imposes a limitation of time upon an existing right of action has the same effect as a statute of limitation. Furthermore, where a statute of limitation provides a period within which an action must be commenced, legal proceedings cannot be instituted after the expiration of the prescribed period. An action instituted after the expiration of the period stipulated in the statute of limitation is not maintainable. It follows that where a statute of limitation applies, a claimant who might have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. It is thus a law of strict liability. See: Eboigbe vs. N.N.P.C. (1994) 5 NWLR (347) 649 at 658 F -A and 659 D – E; Odubeko vs. Fowler (1993) 7 NWLR (308) 637; Sanda vs. Kukawa Local Government (1991) 2 NWLR (174) 379; Oke vs. Oke (2006) 4 NWLR (1008) 224 at 242 C – D. A statute of limitation is usually couched in mandatory terms. It follows therefore that the provisions of the law as stated above must be strictly complied with in order to arm the appellant with an enforceable cause of action. PER KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, JCA
STATUTE BARRED ACTION: WHAT WILL BE CONSIDERED IN DETERMINING WHETHER AN ACTION IS STATUTE BARRED
In order to determine whether an action is statute barred, all that is required is to examine the writ of summons and the statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See: Aremo II vs. Adekanye (2004) 13 NWLR (891) 572 @ 592-593 H – A; Woherm vs. Emereuwa (2004) 13 NWLR (890) 398; Savannah Bank of Nigeria Ltd. vs. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (49) 212. PER KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, JCA
CAUSE OF ACTION: DEFINITION OF CAUSE OF ACTION; DISTINCTION BETWEEN A CAUSE OF ACTION AND RIGHT OF ACTION
Black’s Law Dictionary, 8th edition at page 1349 defines cause of action as: “A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” In the case of Egbe Vs Adefarasin (1987) 1 NWLR (47) 1 @ 20 Oputa, JSC explained what amounts to a cause of action thus: “Now let us look at 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 that gives rise to judicial relief. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation), which give rise to a right of action, which is itself a remedial right. …” PER KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, JCA
ONUS OF PROOF: ON WHOM LIES THE ONUS OF PLEADING AND PROVING THAT AN ACTION IS STATUTE BARRED
It is correct, as submitted by learned counsel for the appellant, relying on the case of Savannah Bank Vs Pan Atlantic (1987) 1 NWLR (49) 212 @ 259 C – H and Woherem Vs Emereuwa (2004) 13 NWLR (890) 238, that the onus of pleading and proving that an action is statute barred lies on the defendant. PER KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, JCA
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
SOLOMON ADESOJI GBADEHAN Appellant(s)
AND
1. VICTOR ADESIMBO KI1ADEJO
2. HIGH CHIEF BAYO AKINNOLA (Lisa of Ondo Kingdom)
3. HIGH CHIEF OLABANJI AKINGBULE (Odunwo of Ondo Kingdom)
4. HIGH CHIEF D. R. AKINOIA (Sasere of Ondo Kingdom)
5. HIGH CHIEF S. K. ADEYEYE (Adaja of Ondo Kingdom)
6. HIGH CHIEF EBUN OLAWOYE (Odofin of Ondo Kingdom)
7. ATTORNEY-GENERAL, ONDO STATE
8. ONDO STATE GOVERNMENT Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO, KEKERE-EKUN, JCA, (Delivering the Leading Judgment): By a writ of summons dated 15/9/06, the appellant herein sought various reliefs against the respondents. Pursuant to an order of court, the appellant filed an amended writ of summons and statement of claim on the 14th day of June, 2007. In paragraph 40 of the Amended Statement of Claim he sought the following reliefs:
1. “A declaration that the selection and nomination of the 1st defendant by the 2nd to the 7th defendants as Osemawe of Ondo land is wrongful, null and void as same is contrary to the tradition and custom of Ondo land pertaining to the selection and appointment of Osemawe of Ondo land.
2. A declaration that the nomination and selection of the 1st defendant by the 2nd to the 7th defendants as Osemawe of Ondo land is in violation of the 1991 Chieftaincy Declaration pertaining to the nomination, selection and appointment of Osemawe of Ondo land.
3. A declaration that the purported approval of the 1st defendant as the Osemawe of Ondo land by the 8th and 9th defendants is wrongful, null and void as the selection of the 1st defendant as the Osemawe of Ondo land by the 2nd to the 7th defendants is not in accordance with the tradition and custom of Ondo land and the provision of the Chiefs Law 1984 and as amended by the 1991 Chiefs Law as well as the 1991 Chieftaincy Declaration appertaining to the nomination and appointment of Osemawe of Ondo land.
4. An order setting aside the nomination, selection and appointment of the 1st defendant made by the 2nd to the 7th defendants.
5. An order setting aside and or nullifying the approval of the 1st defendant as the Osemawe of Ondo land by the 8th and 9th defendants.
6. Perpetual injunction restraining the 8th and 9th defendants from presenting the 1st defendant with the staff of office as Osemawe of Ondo land and from according the 1st defendant any recognition whatsoever as Osemawe of Ondo land.
7. Perpetual injunction restraining the 1st defendant from parading himself or further parading himself, holding himself out or further holding himself out or presenting himself as the Osemawe of Ondo land.”
The Respondents filed their respective statements of defence and raised the issue that the action was statute barred having not been filed within the 7 days stipulated by Section 1 of the Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office, Edict No. 2 of 1992. It was the contention of the Respondents that the cause of action arose on the 6th September 2006 when the letter of approval was given to the 1st Respondent by the Ondo State Government and made public on the 7th September 2006. The Appellant in his reply to the respective statements of defence of the Respondents denied that the cause of action arose on the 6th of September 2006 and maintained that the cause of action arose on 14th September 2006. The Respondents thereafter respectively filed applications to dismiss the action on the ground that it was statute barred. The learned trial Judge after hearing arguments of counsel on the application of the 3rd – 7th Respondents dismissed the action on 7/4/09 and held as follows:
“I agree in toto with the submission of all the defence counsel that the cause of action in this case arose on the 6th September, 2006 following the approval by the State Exco and the announcement of the approval of the 1st Defendant in the Ondo State Radio and Television Stations,
The next question to answer now is whether or not the Plaintiff has instituted the suit pending in the court within the stipulated seven days? From the foregoing analysis, the correct and effective date of appointment of the 1st Defendant and the accrual of the cause of action by “an aggrieved party” under Section 1 of Edict No. 2 of 1912, I have no difficulty in coming undeviatingly to the conclusion that the Plaintiff in this case, Prince Solomon Adesoji Gbadehan has failed to bring his action challenging appointment of the 1st Respondent, Oba Victor Adesumbo Kiladejo as the Osemawe of Ondo land within stipulated time.
The effect of the plaintiff’s failure to comply with the provision of the Edict as regards the time to bring this action in court as aforesaid is that the substantive suit No. HOD/96/2006 is statute-bared … I hereby dismiss it accordingly.”
The Appellant was dissatisfied with the ruling and filed a notice of appeal dated 17/4/08 containing four grounds of appeal. The parties duly filed and exchanged briefs of argument in compliance with the rules of this court. The appellant’s brief dated and filed on 10/3/09 was deemed properly filed on 6/7/2010. He filed a reply brief to the 1st – 7th respondents’ brief dated 8/12/2010 and filed on 9/12/2010 but deemed properly filed on 8/3/2011. He also filed a reply to the 8th and 9th respondents’ brief dated and filed on 8/3/2011. The 1st – 7th respondents’ brief dated 16/8/2010 and filed on 27/8/2010 was deemed properly filed on 8/3/2011. The 8th and 9th respondents’ brief dated 26/11/2010 and filed on 10/12/2010 was deemed property filed on 8/3/2011. Also on 8/3/2011 the name of the 3rd Respondent who had died during the pendency of the appeal was struck out. The 1st – 7th Respondents are accordingly 1st – 6th Respondents while the 8th and 9th Respondents are now 7th and 8th Respondents.
The appellant formulated two issues for determination thus:
1. Whether the learned trial Judge was right in law to have proceeded to determine contestable issues of fact upon which parties in their respective pleadings and affidavit evidence, have joined issues, without taking oral evidence and held that the cause of action arose on 6th September, 2006 hence it is statute bared.
GROUNDS 1 & 4
2. Whether the learned trial Judge was right to have held that the cause of action in the suit arose on the 6th September, 2006 via letter dated 6th September, 2006 written solely to the 1st Respondent by the Ondo State Government notifying him of his appointment.
GROUNDS 2 & 3.
The 1st – 6th respondents appear to have adopted the issues formulated by the appellant. The 7th and 8th respondents also formulated two issues for determination thus:
1. Whether having regard to the provisions of S.1 of the Approval of Appointment of an Oba and Presentation of Staff of Office Edict No. 2 of 1992, the plaintiff/appellant (sic) suit is not incompetent, having been filed outside the seven days statutory period.
2. Whether the plaintiff/appellant’s suit was rightly dismissed by the learned trial Judge,
At the hearing of the appeal on 17/10/2011, OLUWASESAN DADA ESQ., adopted all the briefs filed by the appellant. He made a slight amendment to one of the authorities cited at page 10 paragraph 4.25 of the appellant’s brief and urged the court to allow the appeal.
MR. TAYO OYETIBO, SAN adopted and relied on the 1st – 6th respondents’ brief and made some additional submissions in support of the argument at paragraph 3.06 thereof. He cited the following additional authorities: National Inland Waterways Authority Vs Standard Trust Bank Plc. (2008) 2 NWLR (1072) 483 @ 500 and Umeh Vs Iwu (2008) 8 NWLR (1089) 225 @ 247 – 248. He submitted that the learned trial Judge was entitled to look at the evidence produced by the defendant once the defendant had raised the issue of abuse of process. He submitted that the court was right to look at the letter of appointment since the appellant did not refer to it. He referred to paragraphs 3.09 to 4.06. He referred to the case of Adedolapo vs Military Administrator of Ondo State (2005) 17 NWLR (955) 48 relied upon by learned counsel for the appellant and submitted that the case is distinguishable from the facts of the instant case because there was no evidence of the date of appointment being made known. He noted that the appellant stated when he learnt of the announcement but did not state the date of the announcement. He referred to pages 501 – 502 of Adedolapo’s case. He urged the court to rely on the case of Akinnoye Vs Military Administrator of Ondo State (1997) 1 NWLR (483) 564 and Eboigbe vs. NNPC (1994) 5 NWLR (347) 649 @ 633. He submitted that the Supreme Court decision in Akinnoye’s case was not brought to the court’s attention in Adedolapo’s case. He urged the court to dismiss the appeal.
MR. EYITAYO JEGEDE, SAN, the Hon. Attorney-General of Ondo State adopted and relied on the 7th and 8th respondents’ brief. In further adumbration of paragraph 5.20 thereof he referred to page 233, paragraph 13 of the record of appeal. He submitted that on the authority of Eboigbe Vs NNPC (supra) it is immaterial that a party was absent from jurisdiction. He submitted that there was credible documentary evidence before the court and there was thus no need for oral evidence. He urged the court to dismiss the appeal.
I adopt the issues formulated by the appellant for the resolution of this appeal with some slight amendment to issue 1 as follows:
Whether having regard to the issues of fact upon which the parties had joined issue in their respective pleading and affidavit evidence the learned trial Judge was right in law to have determined the issue as to when the cause of action arose and whether the appellant’s suit was statute barred without taking oral evidence.
I shall take both issues together. In support of this issue, learned counsel for the appellant submitted that it is trite law that the period of limitation of an action is determined by looking at the writ of summons and statement of claim only. He submitted that it is not in dispute that the amended statement of claim makes no reference to the fact that the approval of the 1st respondent as Osemawe of Ondo land was made on 6/9/06 and made public on 7/9/06. These facts were contained in the statements of defence filed by the respondents. He referred to the appellant’s replies to the respective statements of defence of the 1st – 7th and 8th and 9th defendants and submitted that in spite of the fact that the appellant denied these facts and also denied the averments in the respondents’ affidavits the learned trial Judge relied on them to hold that the suit is statute barred. He stated that the appellant in his pleading contended that the cause of action arose on 14/9/06, the date on which the 1st respondent’s appointment was made known to him. He was of the view that oral evidence ought to have been taken to resolve the issue. He relied on the Supreme Court decisions in: Savannah Bank vs. Pan Atlantic Shipping and Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212 @ 259 C – H; Odubeko vs. Fowler (1993) 7 NWLR (Pt. 308) 637 @ 600 D – E; Woherem vs. Emereuwa (2004) 13 NWLR (Pt. 890) 238 @ 416 A – F.
He submitted that it was wrong for the learned trial Judge to have relied on the date pleaded by the respondents as the date the cause of action accrued, as the appellant never admitted those dates. He submitted that the appellant in his counter affidavit to the 3rd – 7th respondents’ application challenged the competence of the deponent to the said affidavit, Otunba Oyewumi Ogunwumiju who deposed to the affidavit in his capacity as the secretary of the Okuta Ruling House, or the ground that the actual secretary of the Ruling House up to 2007 was one Prince Johnson Adesuyi Adepoju and not the deponent. He submitted that there was no rebuttal to the appellant’s assertion, which must therefore be deemed admitted. He contended that the competence of the deponent to the affidavit was an issue that ought to have been resolved by the learned trial Judge before upholding the objection.
On the issue as to when the cause of action accrued, learned counsel submitted that in his reply to the statements of defence, the appellant pleaded that he became aware of the approval and appointment of the 1st respondent as Osemawe of Ondo land on the 14th of September 2006 and therefore the cause of action arose on that date. He referred to Section 1 of the Oba and Presentation of Staff of Office Edict No. 2 of L992, which provides:
“any person who is aggrieved by the appointment of another person as an Oba shall within 7 days of the date of such appointment institute an action in the High Court challenging the appointment.”
He submitted that the dismissal of the appellant’s suit was hinged on the letter dated 6th September 2006 written to the 1st respondent and the purported announcement on radio on 7th September 2006. He argued that since the letter was personally written to the 1st respondent and not copied to the appellant or his ruling house and since he was not a member of the State Executive Council of Ondo State, there was no way he could have seen or been aware of the letter.
He submitted that a cause of action is the factual situation, existence of which entitles one person to obtain from the court a remedy against another person. He relied on: Amusan vs. Obidey (2001) 6 NWLR (Pt.7) 647 @ 655- 656 paras H – A; Ochonga vs. Military Administrator, Benue State (2001) 1 NWLR (Pt. 695) 570 @ 574. He submitted that assuming, without conceding that the approval of the 1st respondent was made on 6/9/06, the appointment would only become effective from the date the appellant could be reasonably expected to have express or constructive knowledge of the fact and date of such approval, which could only be determined by evidence. He relied on the case of: Adedolapo vs. Military Administrator of Ondo State (2005) 17 NWLR (Pt.955) 487 @ 501- 592 G – A. Learned counsel submitted further that there was no evidence that the approval of the 1st respondent’s appointment was published to the public. He urged the court to be guided by the decision in Adedolapo’s case (supra) and to hold that the cause of action arose on 14/9/06 when the appellant became aware of the approval of the appointment and therefore the suit is not statute barred.
In reaction to the above submissions, learned Senior Counsel for the 1st – 6th respondents, Chief F.O. Akinrele, SAN, who prepared the brief of argument submitted that in his statement of claim the appellant carefully avoided any reference to the date of the 1st respondent’s appointment. He submitted that the date was pleaded in the respective statements of defence of the respondents. He submitted that in his reply and also in paragraph 13 of his counter affidavit, the appellant did not challenge the averment that the 1st respondent was appointed on 6/9/06 but rather contended that he was not aware of the appointment and that it was hastily done in violation of the Chiefs Law. He submitted that since the appellant did not proffer an alternative date on which the 1st respondent’s appointment was approved, there was no conflict to be resolved by the taking of oral evidence.
On the issue as to whether the limitation period should begin to run from 6th September 2006 or from 14th September 2006 when the appellant alleged that he became aware of the appointment upon his return to Ondo from Lagos, learned Senior Counsel noted that there are two judgments of this court that appear to be in conflict. He referred to Adedolapo’s case (supra) and Akinnuoye’s case (supra). He submitted that the decision in Akinnuoye’s case has been followed in several authorities of the Court of Appeal and the Supreme Court to the effect that knowledge by the appellant, as in the instant case, does not alter the period prescribed by the language of the Edict. He relied on the following cases: Davies vs. Aiibona (1994) 5 NWLR (Pt. 343) 234; Eboigbe vs. NNPC (supra) at 633 F – G; Aina Vs Jinadu (1992) 4 NWLR (233) 91; Sandra Vs Kukowa Local Government (1991) 2 NWLR (174) 379 @ 389 B. In conclusion he submitted that it is not the function of the courts to make or re-write the law but to enforce the law duly made by the legislative organ of the State.
In his reply brief, learned counsel for the appellant maintained that there were conflicts in the affidavit evidence before the court that ought to have been resolved by calling oral evidence. He contended that learned counsel deliberately misquoted paragraph 13 of the appellant’s counter affidavit at pages 231 – 235 of the record. On the alleged conflict in the decisions in Adedolapo’s case and Akinnuoye’s case (supra), learned counsel submitted that the cases cited by learned Senior Counsel for the 1st – 6th respondents as following Akinnuoye’s case are Court of Appeal decisions. He submitted that Adedolapo’s case being later in time ought to be followed in accordance with the current position of the law. He referred to the case of: Ansa vs. The Registered Trustees of the Presbyterian Church of Nigeria (2008) 7 NWLR (1086) 421 @ 422; Mkpedem vs. Udo (2000) 9 NWLR (673) 631 @ 644 – 645; Nwangwu vs. Ukachukwu (2000) 6 NWLR (662) 674 @ 695. He urged the court to discountenance the authorities relied on by the 1st – 6th respondents and to allow the appeal.
In support of the case of the 7th and 8th respondents, MR. EYITAYO JEGEDE, SAN submitted that the general rule in determining the period of limitation in a suit, as stated by the Supreme Court in the case of Elabanio Vs Dawodu (2006) 15 NWLR (1001) 76 @ 123 – 124 F- B, is by looking at the writ of summons and the statement of claim alleging when the wrong was committed and comparing it to the date on which the writ of summons was filed, which can be done without taking oral evidence. He submitted that where the writ of summons and statement of claim are vague as to the date the cause of action arose, or where the relevant date is withheld, the court is entitled to look at other processes. In support of this proposition he relied on the case of Woherem Vs Emereuwa (2000) 3 NWLR (650) 529 where the court considered the statement of defence along with the statement of claim in determining when the cause of action arose. He submitted further that where, as in this case, evidence which ought to be presented by a party in its pleadings is withheld, the court is entitled to presume that such evidence if produced would be unfavourable to the person who withholds it. He referred to section 149(d) of the Evidence Act and the case of SON Ltd. vs. Saleh (1999) 9 NWLR (618) 331 CAR 14. He submitted that in the instant case the learned trial Judge was correct to have considered the relevant depositions in the affidavits and the annexures thereto, which included the letter of appointment dated 6th September 2006. He submitted that the respondents properly discharged the onus on them of proving that the suit is statute barred. He contended further that it is not in all cases that oral evidence is required to resolve conflicts in affidavit evidence, as the court may resolve such conflict by resorting to the documentary evidence before it. He referred to the case of: Yakubu Vs Nitel Ltd. (2006) 9 NWLR (985) 367.
Relying on Amodu vs. Ajiboye (2000) 14 NWLR (686) 15; NRC Vs. Nwanze (2008) 14 NWLR (1076) 92; Jall Co. Ltd. vs. Owoniboys Tech. Services Ltd. (1995) 4 NWLR (391) 53, he submitted that for the purpose of determining the limitation period time begins to run from the time the cause of action arose. In the instant case, the learned Senior Counsel submitted that the provisions of the Chiefs Law 1984 as amended by the 1992 Chiefs Edict are precise and unambiguous and should be given their natural and ordinary meaning. He submitted that in determining when the cause of action arose it is immaterial that the appellant was absent from the jurisdiction of the court or that he was unaware of the approval of the 1st respondent’s appointment. He relied on Eboigbe vs. NNPC (1994) 5 NWLR (347) 649 @ 652 F – G; Akinnuoye vs. Military Administrator of Ondo State (supra) and submitted that the computation of time starts from the date of approval of the chieftaincy title.
He distinguished the authority of Adedolapo Vs Military Administrator of Ondo State (supra) from the instant case because “in the Adedolapo’s case (supra) the decision relied on an opinion not premised on the fact particularly before the court.” The learned Senior Counsel contended that the decision was based on assumption and speculation and was rendered obiter. He referred to page 501 paragraphs E – G of the judgment. He submitted that the decision of this Court in the case of Akinnuoye Vs Military Administrator of Ondo State (supra) is more in harmony with the Supreme Court decision in Elabanjo Vs Dawodu (supra). He argued further that in the instant case, unlike in Adedolapo’s case, the State Executive Council approved the appointment of the 1st respondent, the letter of appointment was exhibited and the date of approval stated, He noted that the date of approval has neither been controverted nor challenged and is therefore deemed admitted. He submitted that the court rightly held that the appellant could no longer maintain the action in the courts of law and is left with a bare and empty cause, which cannot be enforced. He urged the court to dismiss the appeal with costs.
In reply to the submissions on behalf of the 7th and 8th respondents, learned counsel for the appellant submitted that the decision of this court in Woherem Vs Emereuwa reported in (2000) 3 NWLR (650) 529 relied upon by learned Senior Counsel to the effect that the court is entitled to look at other documents apart from the writ of summons and statement of claim to determine when the cause of action arose was overruled by the Supreme Court in Woherem Vs Emereuwa (2004) 13 NWLR (890) 398 @ 416 A – B. He submitted that while the respondents contend that the 1st respondent’s appointment was approved on 6th September 2006 and publicized on 7th September 2006, the appellant denied this in his reply to the various statements of defence. He contended that it was therefore wrong for the learned trial Judge to have used the date of 6/9/06 pleaded by the respondents as the date the cause of action arose.
On the issue of withholding evidence, learned counsel submitted that Section 149(d) of the Evidence Act is applicable to evidence and not pleadings because pleadings do not constitute evidence and any pleading not supported by evidence goes to no issue and is deemed abandoned. He further submitted that in any event no evidence has been led in the suit. He distinguished the case of SON Ltd. Vs Saleh (supra) relied on by learned Senior Counsel on the ground that in that case the parties led evidence based on their respective pleading. He urged the court to allow the appeal.
An appropriate starting point for the consideration of this appeal is Section 1 of the Approval of Appointment of an Oba and Presentation of Instrument of Office Edict No. 2 of 1992 which provides thus:
“Any person who is aggrieved by the appointment of another person as an Oba, shall within 7 days of the date of such appointment institute an action in the High Court challenging the appointment,”
It has been held in several decided authorities that any provision in any law that imposes a limitation of time upon an existing right of action has the same effect as a statute of limitation. Furthermore, where a statute of limitation provides a period within which an action must be commenced, legal proceedings cannot be instituted after the expiration of the prescribed period. An action instituted after the expiration of the period stipulated in the statute of limitation is not maintainable. It follows that where a statute of limitation applies, a claimant who might have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. It is thus a law of strict liability. See: Eboigbe vs. N.N.P.C. (1994) 5 NWLR (347) 649 at 658 F -A and 659 D – E; Odubeko vs. Fowler (1993) 7 NWLR (308) 637; Sanda vs. Kukawa Local Government (1991) 2 NWLR (174) 379; Oke vs. Oke (2006) 4 NWLR (1008) 224 at 242 C – D. A statute of limitation is usually couched in mandatory terms. It follows therefore that the provisions of the law as stated above must be strictly complied with in order to arm the appellant with an enforceable cause of action.
In order to determine whether an action is statute barred, all that is required is to examine the writ of summons and the statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See: Aremo II vs. Adekanye (2004) 13 NWLR (891) 572 @ 592-593 H – A; Woherm vs. Emereuwa (2004) 13 NWLR (890) 398; Savannah Bank of Nigeria Ltd. vs. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (49) 212.
Black’s Law Dictionary, 8th edition at page 1349 defines cause of action as:
“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”
In the case of Egbe Vs Adefarasin (1987) 1 NWLR (47) 1 @ 20 Oputa, JSC explained what amounts to a cause of action thus:
“Now let us look at 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 that gives rise to judicial relief. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation), which give rise to a right of action, which is itself a remedial right. …”The appellant’s complaint before the lower court is against the selection and nomination of the 1st respondent as the Osemawe of Ondo land by the 2nd – 6th respondents and the subsequent approval and appointment of the 1st respondent by the 7th and 8th respondents as Osemawe of Ondo land. He was a contender for the stool. The selection, nomination, approval and appointment of the 1st respondent as Osemawe of Ondo land therefore constitute the appellant’s cause of action. By Section 1 of the Approval of Appointment of an Oba and Presentation of Instrument of Office Edict No. 2 of 1992 he is mandatorily required to institute his action within 7 days of the appointment. Upon being served with the writ of summons and statement of claim and the amended processes, all the defendants raised the issue of the competence of the suit on grounds of being statute barred in their respective statements of defence.
I shall reproduce paragraph 30 of the 1st defendant’s statement of defence, which is identical to paragraph 30 of the 2nd – 7th defendants’ respective statements of defence:
30. “The 1st defendant shall also contend by way of preliminary objection, before or at the hearing of this suit that the plaintiff’s present action is statute bared.
PARTICULARS
(i) On 6th September, 2006, the Executive Council of Ondo State Government approved the appointment of the 1st Defendant as the Osemawe of Ondo, upon the unanimous decision of the Kings makers on Thursday, 31st August, 2006.
(ii) The approval of the appointment of the 1st Defendant as the Osemawe of Ondo Chieftaincy by the Ondo State Government was publicly announced through the Ondo State Television (DSTV) and the Ondo State Radio Corporation (OSRC) on the same 6th September, 2006; and the same approval was also publicized on the 7th September, 2006 for the purpose of public knowledge
(iii) By the provisions of Section 1 of the Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict No. 2 of 1992, any Person who is aggrieved by the appointment of another person as an Oba shall within seven (7) days of the date of such appointment institute action in the High Court challenging that appointment.
(iv) The Plaintiff commenced this action on the 15th day of September, 2006, outside the statutory period as stated above.
Whereof the 1st defendant states that the claim of the plaintiff is incompetent, misconceived, a gross abuse of court process and shall urge this Honourable Court to dismiss same with substantial costs. ”
In paragraph 14 of his reply to the 1st defendant’s statement of defence, identical to his reply to the 2nd – 7th defendants’ statements of defence, the appellant pleaded thus:
14. (i) “The purported approval of the appointment of the 1st Defendant as the Osemawe of Ondo on 6th September, 2006 ” 6 days after the decision of the king makers was done hastily and in breach of the provisions of the Chiefs Edict which prescribes 21 days for such approval.
(ii) Both the alleged public announcement and publication were never brought to the knowledge of the Plaintiff who was not also aware of same.
(iii) The Plaintiff was not in Ondo State on the 6th and 7th of September, 2006 as he had returned to his Lagos base immediately after the screening exercise conducted by the 2nd – 7th Defendants,
(iv) Immediately he learnt on the 14th day of September, 2006 of the purported approval of the appointment of the 1st defendant as the Osemawe of Ondo by the 8th Defendant, he immediately instructed his lawyer to prepare this action which he promptly filed together with motions praying for injunctive reliefs on 15th September, 2006.
(v) Up till the time of filing this present process, no formal notification in whatever form has been sent to or received by the Plaintiff informing him of the outcome of the selection exercise as well as the appointment of the 1st Defendant as the Osemawe of Ondo.
(vi) The Plaintiff will contend at the trial of this action that he could not have waived a right the accrual to him of which he is not aware neither could he have acquiesced to the premeditated decision of the 2nd – 7th Defendants under the guise of signing preconceived undertakings.
(vii) This action was filed within time and therefore not statute barred. ”
The 8th and 9th defendants raised the same issue in paragraphs 11, 12 and 13 of their statement of defence, which was also denied in the appellant’s reply thereto. As submitted by all learned counsel in their briefs of argument, all the defendants/respondents, by separate motions sought for an order setting down the preliminary objection raised in their respective pleadings for hearing and for an order striking out the suit for being statute barred. Affidavits and exhibits were filed along with the applications and the appellant filed a counter affidavit and further counter affidavit thereto. Among the exhibits attached to the motion is Exhibit C, the letter of appointment dated 6/9/06 addressed to the 1st respondent through the Chairman, Ondo West Local Government. In his counter affidavit the appellant relied on the same facts as pleaded in paragraph 14 of his reply to the various statements of claim and maintained that his suit was filed within time.
As stated earlier in this judgment, the position of the law is that in order to determine whether a suit is caught by a limitation law, the processes to be considered by the court are the writ of summons and the statement of claim or if the action is brought by way of originating summons, the affidavit in support thereof. I have carefully examined the writ of summons and the amended statement of claim filed at the court below. It is no doubt curious that despite the fact that the appellant is challenging the selection, nomination, approval and appointment of the 1st respondent as the Osemawe of Ondo land, there is not a single mention of the date of appointment. It is correct, as submitted by learned counsel for the appellant, relying on the case of Savannah Bank Vs Pan Atlantic (1987) 1 NWLR (49) 212 @ 259 C – H and Woherem Vs Emereuwa (2004) 13 NWLR (890) 238, that the onus of pleading and proving that an action is statute barred lies on the defendant. However, having so pleaded, in order to determine the issue, it is the writ of summons and statement of claim that would be considered by the court. In other words, the court will consider the facts as pleaded by the plaintiff as to when the acts constituting the wrong complained of took place. These facts will then be considered against the date the action was filed to determine whether it was filed within the statutory time limit or not. The challenge arises where, in situation such as the present case, the writ of summons and statement of claim are silent on the issue. It is the contention of the respondents that the court is entitled to consider other processes such as the statement of defence and/or the affidavits in support of the various applications for the striking out of the suit where the writ of summons and statement of claim are vague or evasive on the issue.
All the parties are ad idem on the fact that the date of the 1st respondent’s appointment was supplied in the various statements of defence filed while the letter of appointment dated 6/9/06 was annexed as an exhibit to the various applications seeking to strike out the suit. It is also not in dispute that the learned trial Judge relied on the said letter of appointment in reaching the decision now appealed against.
In the case of Savannah Bank Nig. Ltd. Vs Pan Atlantic Shipping and Transport Agencies Ltd. (supra) at
259 F – H, cited by learned counsel for the appellant at page 9 paragraph 4.21 of his brief, His Lordship, Oputa, JSC stated inter alia thus:
“Time will start to run when the Cause of action arose. It is therefore absolutely necessary when dealing with limitation statutes to determine the precise date upon which the cause of action arose. Without the basic fact it will be impossible to compute the time. Thirdly since the defendant is the party relying on the defence of limitation “the onus is on him to establish when the cause of action accrued to the plaintiff, It is not enough to plead a particular date for if that date is not admitted by any reply of the plaintiff to the defendant’91s statement of defence, then there is nothing on which the necessary computation can be made. Fourthly, it is not permissible and it would be wrong for a court to compute time from a date pleaded in the statement of defence not admitted in the reply and not proved by credible evidence,”
The Supreme Court held a similar view in the case of Odubeko Vs Fowler (supra) at 660 D – E.
It is argued on behalf of the respondents that the appellant did not deny the date of appointment of the 1st respondent, which they contend is the date the cause of action arose. They therefore hold the view that the fact not having been denied is deemed admitted and the lower court was entitled to hold as it did that the cause of action accrued on that date. The situation in the case of Woherem Vs Emereuwa (supra) a decision of the Court of Appeal reported in (2000) 3 NWLR (650) 529 is very similar to the circumstances of the instant case. In a split decision, the Port Harcourt division of this court held that the appellant’s suit was statute barred and dismissed his appeal. In reaching this decision the Court relied on the pleading in the statement of defence and the affidavit in support of the application to dismiss the suit in limine. It was of the view that recourse to the statement of defence and affidavit evidence was proper in view of the vagueness of the appellant’s pleading as to the date the cause of action arose. The court also relied on the failure of the appellant to file a counter affidavit to the motion for dismissal or a reply to the statement of defence.
The Supreme Court, in a unanimous decision, overruled this decision in Woherem Vs Emereuwa. It is reported in (2004) 13 NWLR (890) 398. I shall reproduce the Court’s findings in extensu, as it is very apposite to the facts of this case. His Lordship, Iguh, JSC at page 416 A – F held:
“I think I ought to stress that the law is well established that it is not permissible, indeed it would be wrong, for a defendant relying on the defence of limitation of action to compute time from the date pleaded in his statement of defence as the date the cause of action arose unless such a date is admitted by the plaintiff in his reply to the statement of defence. See Savannah Bank of Nig. Ltd. Vs Pan Atlantic Shipping Transport Agencies Ltd. (1957) 1 NWLR (49) 212 @ 259, Jimo Odubeko Vs Victor Fowler and Another (1993) 1 NWLR (305) 637. The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date of the wrong in question which gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the writ of summons was filed. … What needs to be emphasized is that the determining factor is the averment in the plaintiff’s writ of summons and statement of claim, This is the case however, where at the end of settlement and exchange of pleadings or after the plaintiff has filed his statement of claim, the defendant is obliged at that stage to contest in limine by way of a preliminary objection that the plaintiff’s action is statute barred and ought to be struck out. The position is different where issue is joined by the parties in their pleading as to the date the cause of action in a suit arose. In that case such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the court. See Savannah Bank of Nig. Ltd. vs. Pan Atlantic (supra).”
His Lordship went further at page 417 B – D:
“There are also the averments in paragraphs 9 – 11 and 13 – 16 of the appellant’s statement of claim, which I have set out earlier in this judgment. These paragraphs of the plaintiff’s statement of claim aver in the clearest possible terms that the cause of action against the respondents accrued to the appellant in 1992. The appellant’s suit was filed on the 12th of November 1992. The above averments notwithstanding, the majority decision of the Court of Appeal still went ahead to hold that the appellant’s action was statute barred relying on the averment in the statement of defence to the effect that the casue of action arose in 1967 in which year the 1st respondent allegedly purchased the land in dispute from the 3rd respondent. I think with profound respect that the Court of Appeal was clearly in error in this regard.
The respondents’ application was for an order for the dismissal of the appellant’s suit in limine on the ground that the action is statute barred, The court below arrived at its finding from the depositions in the respondents’ affidavit in support of the application and their averments in the statement of defence, This exercise, in my view, is totally uniustifiable, as it offends all the well known settled principles of law on the subject. The Court of Appeal, with due respect, ought to have confined itself to the averments in the appellant’s writ of summons end statement of claim for the determination of when his cause of action arose in view of the fact that the date fixed by the respondents as when same arose was not admitted by the appellant and the point at that stage was yet to be determined by credible evidence at the hearing of the suit,”
On the view of the Court of Appeal that it was entitled to look elsewhere in a situation where the pleading of the appellant “is vague and obscure making it difficult to know when he really bought the land …” His Lordship held at page 418 B (supra):
‘With profound respect to the court below, the law on the subject is not that if the statement of claim is vague or obscure, recourse should be had to the pleadings of the defendant for the determination of when the plaintiff’s cause of action arose.”
His Lordship also considered the contention that the failure of the appellant to file a counter affidavit or reply to the statement of defence meant that the averments therein were deemed admitted. He held at page 418 D – G:
‘Again, with the greatest respect, there is no legal duty on the appellant to file a counter affidavit or a reply to the statement of defence to further deny or contradict the date on which the respondents in their affidavit alleged that the cause of action arose. Issues on the fact had been joined in the pleadings of the parties and the responden9’ statement of defence did not, on the established rules of pleadings call for a reply from the appellant. … In my view, what emerged from the pleadings was a triable issue on the question of the date the cause of action in respect of title to the property in dispute and the trespass complained of by the appellant arose. Without doubt, the date averred in the statement of claim as to when the cause of action accrued was at variance with the respondent’s statement of defence and the affidavit in support of the application to dismiss the suit. It seems to me that the trial court ought, in the circumstances, to have tried the case on the merits rather than embark on a voyage of discovery with a view to ascertaining which date is correct in the absence of viva voce evidence on the point.”?
At page 419 – 420 H-A His Lordship concluded thus:
“In the present case, the fact relied upon by the respondents as to when the appellant’s cause of action arose neither appeared in the writ of summons nor in the statement of claim, They are facts which may more properly be answered when evidence is adduced at the trial and therefore constitute issues for determination, I think learned counsel for the appellant is quite right in his submission that the court below, with respect, was in grave error gratuitously going into the merits of the substantive suit in a preliminary objection when no evidence on the fact in issue had been led.”
I am fully guided by the wisdom of His Lordships in the opinions expressed above, which decision is binding on this court. In the instant case, although the appellant filed a counter affidavit to the application to dismiss the suit and also filed replies to the statements of defence, he maintained his assertion that the cause of action arose on 14/9/06 when he became aware of the 1st respondent’s appointment and that his suit filed on 15/9/06 was filed within time. He did not admit the date of the 1st respondent’s appointment or the fact that it was publicized. The effect of the Supreme Court decision in Woherem’s case (supra) is that once the date the cause of action arose cannot be ascertained from the plaintiff’s writ of summons and statement of claim and where there is no admission of the date pleaded by the defendant, the only option open to the court is to hear evidence on the point. I have considered the cases of National Inland Waterways Authority Vs Standard Trust Bank Plc (supra) and Umeh Vs lwu (supra) relied upon by learned Senior Counsel for the 1st – 7th respondents. I am of the view that the cases, which deal with abuse of court process, where there is a multiplicity of actions, are not applicable in the circumstances of this case.
In light of all that I have said above, I answer the first issue for determination in this appeal in the negative and resolve it in the appellant’s favour. Having resolved the first issue in the appellant’s favour, the second issue has become academic. It is a matter to be resolved by evidence at the trial of the suit. In conclusion therefore, the appeal succeeds and it is hereby allowed. The ruling of the Ondo State High Court, Ondo Judicial Division in suit no. HOD/96/2006 delivered on 7/4/08 is hereby set aside. The suit is hereby remitted back to the Ondo State High Court for retrial on the merits by another Judge of that court other than Adegbenro, J.
Costs of N50,000,00 are awarded in favour of the appellant against the 1st-6th respondents.
CHINWE E. IYIZOBA (JCA): I read before now the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN JCA. I agree entirely with the reasoning and conclusions arrived thereat. If the date the cause of action arose is pleaded in the statement of defence and not admitted by the plaintiff in a reply, then it is necessary to hear evidence before deciding whether or not the suit is statute barred. See Woherem v. Emereuwa (2004) 13 NWLR (Pt.890) 398. It is important to note here that the issue is not the date of appointment but the date the cause of action arose. The contention of the appellant is that the cause of action arose when he got to know of the appointment. The parties did not agree on the date the oause of action arose. There is need to hear evidence on the point. I also set aside the ruling of the Ondo State High Court, Ondo Judicial Division in Suit no. HOD/96/2006 delivered on 7/4/08, I abide by the consequential orders in the leading judgment including the order as to costs.
MOORE A.A. ADUMEIN, JCA: I read before now the draft of the judgment just delivered by my learned brother, KEKERE-EKUN, JCA. His Lordship as carefully examined the legal authorities on statutory limitation of action and has admirably and rightly resolved the cardinal issue in this appeal.
To save time and costs, and to enhance the divindling fortunes and image of the Judiciary and justice delivery system in Nigeria, it is no longer fashionable or advisable for parties to take issues in a suit piecemeal. It is in the overall best interest of litigants, their learned counsel and the court that all contentious issues involving highly conflicting evidence from the contending parties, as in this case be resolved with the main issues in the substantive suit. This will obviate the burden on the court to resolve one issue two times in one and the same suit, In the instant case, the contentious issue of when the cause of action arose ought to have been resolved after evidence had been taken from or led by both sides in the substantive case.
For these and the very comprehensive reasons in the leading judgment, I too allow this appeal. I abide by all the orders in the leading judgment.
Appearances
Oluwasesan Dada,
Akeem OlaniyanFor Appellant
AND
Chief Frank Akinrele, SAN,
Tayo Oyetibo, SAN,
Prof. C.O. Olawoye,
Kolawole Abiri,
Olaniran Obele,
Eyitayo Jegede, SAN,
Attorney-General, Ondo State wWith
W.R. Olamide, Director Civil Litigation;
A.O. Ogunsuyi, Assistant Legal Officer; and
Mrs. A.A. Adeyemi, Senior Legal Officer Ministry of Justice, Ondo StateFor Respondent
