HIS HIGHNESS NTOE EDET E. OMIN & ORS V. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS (2013)

HIS HIGHNESS NTOE EDET E. OMIN & ORS V. ATTORNEY-GENERAL, CROSS RIVER STATE & ORS

(2013)LCN/6376(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of July, 2013

CA/C/103/2011

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. HIS HIGHNESS NTOE EDET E. OMIN
2. CHIEF ITU OMIN ITU
3. CHIEF ITA OKON NSA
4. CHIEF IKA BASSEY OKENE
5. OMIN DIM OMIN (For and on behalf of Ikpai Omin and Bacoco Clans) Appellant(s)

AND

1. ATTORNEY-GENERAL, CROSS RIVER STATE
2. CHIEF MADAM BASSEY NKEBRE
3. AKABOM EDET ANTIGHA
4. BASSEY BASSEY OBO (For and on behalf of Efio Atai Clan) Respondent(s)

RATIO

PERIODS OF LIMITATION FOR INSTITUTING CERTAIN ACTIONS

The Supreme Court in Aremo II Vs Adekanye (2004) ALL FWLR (Pt.224) 2113 at 2132 – 2133 said:
“Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which on action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed: See the cases Ebogie v N.N.P.C. (1994) 5 N.W.L.R. (Pt.347) 649: Odubeko v. Fowler (1993) 7 N.W.L.R. (Pt.308) 637, Sanda v. Kukawe Local Government (1991) 2 N.W.L.R. (Pt.174) 379: Ekeogu v Aliri (1991) 3 N.W.L.R. (Pt.179) 258. PER OTISI, J.C.A.

THE RATIONALE FOR THE EXISTENCE OF STATUTES OF LIMITATION

The rationale or justification supporting the existence of statutes of limitation includes the following:-
(1) that long dominant claims have more of cruelty than justice in them Lloyd v. Butler (1950) 1 K.B. 76 at 81 – 82, (2) that a defendant might have lost the evidence to disprove a stale claim: Jones V. Bellgrove Properties Ltd. (1949) 2 K.B 700 at 704 and (3) that persons with good causes of action should pursue them with reasonable diligence. Board of Trade V. Cayzer Irvine & Co. (1927) A.C.610 of 628. The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one 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 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 the case of Egbe v. Adefarasin (1987) 1 N.W.L.R. (Pt.47) 1 at 20-21.”
Thus, when dealing with a limitation statute, it is always necessary to ascertain the exact date on which the cause of action arose. See: Eboigbe V. N.N.P.C. (1994) 5 N.W.L.R. (Part 347) 649 at 663.
The period of limitation begins to run from the date on which the cause of action accrued. PER OTISI, J.C.A.

MEANING OF THE TERM “CAUSE OF ACTION”

The Supreme Court per Karibi-Whyte, JSC in Bello VS Attorney General, Oyo State (1986) 5 NWLR (Pt. 45) 828 at 876 said on what constitutes a ’cause of action’ thus:
“I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the Plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.”
In Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) 1 at Pg. 20-21, Oputa, JSC, explained “cause of action” as follows:
“Now let us look of the meaning of cause of action. It is admittedly on expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation which gives a person a right to judicial relief.
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 order words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.”The statute of limitation does not take away the cause of action but it removes the right of action, the right of enforcement, the right to judicial relief and leaves the claimant with a bare and empty cause of action which he cannot enforce. See: Egbe VS Adefarasin (supra); Araka vs. Ejeagwu (2000) 12 SC (Part 1) 99.
An action commenced after expiration of the period, within which an action must be brought, as stipulated in a statute of limitation, is not maintainable. The court would have no jurisdiction to entertain a statute barred claim. Therefore legal proceedings cannot be properly or validly instituted after the expiration of the prescribed limitation period. See: Ekeogu vs. Aliri (1991) 3 NWLR (Pt.179) 258. PER OTISI, J.C.A.

FACTOR TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED

DEFINITION OF A REPLY

A Reply is the Plaintiff’s answer to the defence. Where the Plaintiff merely wishes to deny the allegations in the defence, there is no requirement or need to file a reply. This is because if no reply is served there is on implied joinder of issue on the defence. If however the Plaintiff wishes to raise specifically any matter in answer, such matters or facts must be specifically pleaded and a reply is required. See: Olubodun v. Lawal (2008) 9 MJSC 1: Woheren vs. Emereuwa (supra) of 1583; Ishola vs. S.G.B. (Nig.) Ltd. (supra) at 421.
The Appellants had pleaded in paragraph 20 of their Statement of Claim as follows:
“The Cross River State Government by Cross River State (Clans Creation) Edict No. 1 of 1996 created Efio Atai and Bacoco clans from Ikpai Omin Qua clan, which are listed as clan Nos 30 and 33 in the said Gazette under Calabar Local Government.” PER OTISI, J.C.A.

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Cross River State sitting of Calabar delivered on 27th January, 2011.
The Appellants, who are of Ikpai Omin and Bacoco Clans, commenced Suit No HC/430/98 as plaintiffs by way of Writ of Summons on the 28th of October 1998, against the Respondents. In their Statement of Claim filed on the 8th November, 1999, the Appellants pleaded that the creation of Efio Atai Clan from Ikpai Omin Qua Clan was contrary to Section 44 of the Traditional Rulers Edict 1978, in that the villages that make up the said Clan were not geographically contiguous; scattered and far-flung; and, overlap and hem-in villages in Ikpai Oman and Bacoco Clans. The Appellants also pleaded that the creation of Efio Atai Clan without their consent, as the ancestral owners of land on which the villages situate, was contrary to Qua Custom, and, is null and void. The Appellants then sought the following Orders:
(a) A declaration that Efio Atai clan made up of Ikot Ekpo Abasi, Ikot Abenyo Ekpo Eyo, Akani Mbang Essien Etim Offiong, Ikot Nkebre, Ikot Effanga Mkpa, Ikot Ekabo Ekpo Eyo, Ikot Obot Oboho, Ikot Effiom Eyamba, Ikot Enebong, Ikot Okon Effanga and Ikot Edfet Antigha villages listed as Clan No. 30 under Calabar Local Government in Cross River State (Clans Creation Edict 1996) is made up of villages that are not geographically contiguous, scattered and far-flung and overlap and hem-in villages in Ikpai Omin and Bacoco clans in some areas, contrary to the definition of Clan contained in Subsection (1) of Section 44 of the Traditional Rulers Edict 1978.
(b) A declaration that the creation of Efio Atai Clan by the Cross River State Government by Cross River State (Clans Creation) Edict 1996 without the consent of the Plaintiffs as ancestral owners of the land on which the villages situate is contrary to Qua Custom and is null and void and of no effect.
(c) A declaration that Ikot Edet Antigha is not a village as defined in Section 44 of the Traditional Rulers Edict 1978.
(d) An Order canceling and/or withdrawing all certificates of recognition issued to the Clan Head and various village Heads of villages in Efio Atai Clan.
(e) An Order of Injunction restraining the 1st Defendant, its agents, servants or representatives from further issuing any certificate of recognition in respect of the Clan Head or village Heads of the said Efio Atai Clan.
The 2nd to 4th Respondents filed their Statement of Defence on the 1st March, 2000; while the 1st Respondent filed his Statement of Defence on 29th March, 2006. The 1st Respondent in paragraph 11 of his Statement of Defence urged the Court to dismiss the Suit for non-disclosure of cause of action, lack of jurisdiction and for being statute barred. The 1st Respondent also filed a Notice of Preliminary Objection on the 29th of March 2006, praying the Court to strike out the Suit for want of jurisdiction on the ground that it was statute barred, having been instituted in contravention of Section 2(a) Public Officers (Protection) Law of Cross River State 1983.
In response to the issue of limitation, the Appellant filed a Reply to the 1st Respondent’s Statement of Defence, and, an Affidavit in opposition to Notice of Preliminary Objection. The trial court heard the Preliminary Objection; and, in a considered Ruling delivered on 27th January, 2011, upheld the objection and dismissed the case of the Plaintiffs in its entirety. The learned trial Judge relied on the Writ of Summons and the Statement of claim, without considering the Appellants’ Reply to the Statement of Defence of 1st Defendant and the Affidavit in opposition to the Notice of Preliminary Objection.
The Appellants, being dissatisfied with the Ruling of the learned trial Judge, filed this Appeal.
In the Notice of Appeal filed on 1/4/2011, the Appellants raised two Grounds of Appeal: and, sought Orders to set aside the Ruling of the lower court; and remit the Suit bock to the High Court of Cross River State for trial and determination before another Judge.
The Appellants’ Brief of Argument was filed by S.N. Chukwuma, Esq. of Counsel on 15/9/2011, and deemed properly filed on 23/1/2013. O.E. Asuquo, Esq. of Counsel for the 1st Respondent filed the 1st Respondent’s Brief on 30/1/2013. The 2nd – 4th Respondents’ Brief was filed by Robin A. Umiom, Esq. on I4/10/2011, but deemed on 23/1/2013. The Appellants’ Reply Brief was filed on 14/2/2013. These Briefs were adopted by respective Counsel on 6/5/2013.
In the Appellants’ Brief, two Issues were distilled for determination from the two Grounds of Appeal as follows:
1. Whether the trial court was right in not considering facts pleaded in the Reply to the Statement of Defence of 1st Defendant and the Affidavit in Opposition to Notice of Preliminary Objection before dismissing the Suit for being statute barred.
2. Whether the second arm of Section 2(a) of the Public Officers (Protection) Law is relevant in the construction of when time will begin to run in the Suit.
The 1st Respondent had filed a motion on notice seeking to have the Appellants’ Issue No 2 and Ground of Appeal No 2 struck out for being incompetent. In the 1st Respondent’s Brief, two Issues for determination have been raised:
1. Whether the learned trial judge relied on the appropriate court processes in the determination of whether or not this suit is statute barred.
2. Whether the learned trial judge was correct when he held that this action is statute barred, thereby dismissing it.
For the 2nd – 4th Respondents, a sole Issue was raised as follows:
Whether the trial court was right in dismissing the action for want of cause of action against the 2nd-4th Respondents the action being statute barred particularly where Appellants instituted their action in October 1998 for Government completed act of 1996.
The Issues raised by the parties are similar, and shall be considered together, as Issues 1 and 2: the sole issue raised for the 2nd – 4th Respondents coming under Issue 2.
On Issue No 1, the Appellants refer to the Ruling of the learned trial Judge in which he held at page 143 of the Record of Appeal as follows:
“In the instant case the only documents relevant for resolving the period of limitation set out for commencing an action against the 1st Defendant is the claimant’s writ of Summons and their Statement of Claim and this Court so holds.”
The Appellants contend that the trial Judge failed to consider the facts pleaded in the Reply to the 1st Respondent’s Statement of defence and Affidavit in opposition to the Notice of Preliminary Objection before holding that the Appellants’ claims were statute barred, relying on the case of Ishola vs. Societe Generale Bank (Nig.) Ltd (1997) 2 SCNJ 1 of 16. It is submitted that the trial court by failing to look at the Reply to the 1st Defendant’s Statement of Defence and the affidavit in opposition to the Preliminary not appreciate the defence of the Appellants that the creation of Clans was ongoing as the Cross River State Government was still reviewing complaints and had not published a final list of Clans created. It is submitted that the facts to take the case out of the limitation period were not pleaded in the Statement of Claim but in the Reply. This being because the issue of limitation was first raised by the 1st Respondent in his Statement of Defence. It is submitted that the suit is not statute barred as the Cross River State Government was still reviewing the creation of new clans even after the Suit No HC/430/98 was filed.
The 1st Respondent in opposition submitted that the period of limitation in any matter is determined by an examination of the writ of summons and statement of claim, which will give details of when the wrong was committed, giving rise to the cause of action; and, comparing that date with the date on which the writ of summons was filed. That if the suit is filed beyond the limitation period, then the action is statute barred. Learned Counsel relied on a long line of authorities, including: Moyosore vs. Gov. Kwara State (2012) 5 NWLR (Pt 1293) 242; Abiyeji vs. Lateju (2012) 3 NWLR (Pt.1288) 434 at 451: Ekeogu vs. Aliri (1991) 3 NWLR (Pt.179) 546.
It is submitted that the wrong purportedly committed by the Cross River State Government by paragraph 20 of the Statement of Claim, was the creation of Efio Atai Clan from Ikpai Omin Qua Clan in 1996. That this was the material date. It is submitted that the trial court was right to have ignored the Reply to the Statement of Defence and the Affidavit in Opposition to Notice of Preliminary Objection. It is submitted that all the documents attached to the said Reply and Affidavit in opposition were generated between 2003 to 2006, after the creation of Efio Atai Clan: and are irrelevant in consideration of when Efio Atai Clan was created. It is submitted that the case of Ishola vs. SGN (Nig.) Ltd (supra) relied upon by the Appellants does not avail them because none of the Respondents raised new issues or filed a counter-claim to necessitate a Reply from the Appellants. The Notice of Preliminary Objection was a notice in law without an affidavit in support. It is submitted that the Reply and affidavit in opposition were in this circumstance, overreaching to the Respondents.
On Issue No 2, Learned Counsel for the Appellant submitted that Section 1(a) of Public officers (Protection) Law Chapter P17,Laws of Cross River State 2004, which is in pari materia with Section 2(a) Public officers (Protection) Law of Cross River State Vol. V of 1983, was inapplicable in this matter. It is submitted that in determining whether this Suit is statute-barred as pleaded by the 1st Respondent in its Statement of Defence and raised in the Notice of Preliminary Objection, the facts pleaded in the Reply of the Plaintiffs and those deposed to in the Affidavit in opposition, must be scrutinized to see if it takes the case out of the scope of the statute. It is further submitted that the construction of when time will begin to run in this Suit raises the following questions:
a) Is the second arm of section 2(a) of Public Officers (Protection) Law relevant in the construction of when time began or will begin to run in this Suit?
b) Was the creation of Clans by the Cross River State Government in 1996 a continuing and an ongoing exercise or a completed exercise?
c) Would the limitation time in section 2(a) of the Public Officers (Protection) Law begin to run before the conclusion of the verification and/or authentication of Clans in Cross River State by various Committees set up by the Cross River State Government subsequent to the Cross River State (Clans Creation) Law No. 1 of 1996?
d) Will the limitation of time begin to run when the Cross River State Government had reverted to the statute quo ante of Clans and villages recognized in 1978 which appears in Schedule 1 of the Traditional Rulers Law, 1978?
It is contended that these questions which originate from the Reply to the Statement of Defence and from the depositions in the Affidavit in Opposition to Notice of Preliminary Objection were not addressed by the trial court.
It is submitted that time will begin to run three months after completion and publication of the final list of Clans by the Cross Rivers State movement: relying on Nigerian Ports Authority vs. Ajobi (2006) 7 SCNJ 168 at 173 – 174: Fadare vs. Attorney General of Oyo State (1982) 13 NSCC 62 of 80. It is submitted that the root of the Appellants’ injury or complaint is the creation of Efio Atai Clan by the Cross River State Government in 1996: but that the Government had subsequently set up Committees for the verification and/or authentication of these Clans. That the State Government by press releases reverted to the recognized Clans in 1978 as contained in Schedule 1 of the Traditional Rulers Law 1978, in contradistinction to the list of Clans in the Cross River State (Clans Creation) law No 1 of 1996, and, that the Cross River State Government is still carrying on acts in continuance of the creation of Clans, to the injury of the Appellants. It is submitted that completion of the exercise will mean producing a list of the Clans in Cross River State after the verification and/ or authentication by Committees set up. That time will start to run when the exercise is completed. The Court is urged to so hold; and allow the appeal, granting the order sought.
Learned Counsel for the 1st Respondent relied on the pleading in paragraph 20 of the Statement of Claim and submitted that by the said pleading, the action is statute barred; relying on Section 2(a) Public officers (Protection) Law of Cross River State Vol. V of 1983 which was the Law in force of the material time. He also relied, inter alia, on Ibrahim vs. JSC (1998) 14 NWLR (PT 584) 1, Nwaka vs. Head of Service, Ebonyi State (2008) ALL FWLR (PT 408) 1156: Egbe vs. Adefarasin (1987) 1 SC I: Egbe vs. Alhaji (1989) 1 NWLR (PT 128) 546.
It is further submitted that the creation of Efio Atai Clan in 1996 is not a continuing or an ongoing exercise. That the act complained of was the creation of the Efio Atai Clan from Ikpai Omin Qua Clan, which was completed in 1996. For interpretation of continuance of damage or injury, learned Counsel for 1st Respondent relied on Freeborn vs. Leeming (1926) 1 KB 160: Amamiwe vs. The Local School Board (1971) 2 NMLR 57 at 58-59: Okafor vs. AG, Anambra State (2001) FWLR (PT 58) 1127 at 1146; Obiefuna vs. Okoye (1961) ALL NLR 357. It is further submitted that the completion of the verification and/or authentication of the Clans by the production of a list of the Clans in Cross River State by the Committees is not an act or exercise in continuance of the creation of Efio Atai Clan.
It is further submitted that the submission of the Appellant that the Cross River State Government had set up Committees for the verification and/or authentication of these Clans and had by press releases averred to the recognized Clans in 1978 as contained in Schedule 2 of the Traditional Rulers Law 1978, in contradistinction to the list of Clans in the Cross River State (Clans Creation) Law No 1 of 1996, is not sustainable because a press release cannot repeal a Law. That it is only a statute that can repeal another statute: relying on Ibidapo vs. Lufthansa Airlines (1997) 4 NWLR (PT 498) 124 at 131.
It is submitted that the entire Section 1 of the Traditional Rulers Law of 1978, which referred to Schedule 1 containing the names of the Clans in Cross River State and Villages constituting the Clans, together with the said Schedule 1, were repealed by Section 2 of the Cross River State (Clans Creation) Law No 1 of 1996, while Section 1 of the Law named Clans and Villages comprising of each Clan.
It is also submitted that the trial Judge acted rightly, after holding that the action was statute barred, by proceeding to dismiss the entire suit, the 2nd – 4th Respondents not being public officers: and none of the reliefs sought by the Appellants was against them.
For the 2nd – 4th Respondents, it is submitted that the action as filed by the Appellants is statute barred: and, rightly dismissed by the trial court upon reliance on the Writ of Summons and Statement of Claim. That the Efio Atai Clan was created in 1996 by the completed act of Government, which completed act, is not on ongoing exercise: and, which cannot be repealed by a press release. It is submitted that the cause of action being statute barred, there is nothing to hold against the 2nd-4th Respondents.
The Appellants had filed a Reply Brief. They submit that the Reply to the Statement of defence was necessitated by the pleading of the 1st Respondent wherein the court was urged to dismiss the suit for non-disclosure of cause of action, lack of jurisdiction and for being statute barred. That the said Reply, which was filed upon the grant of on unopposed application for extension of time, was not overreaching. On the contention that Issue No 2 as formulated by the Appellants was incompetent and liable to be struck out, it is submitted that Issue No 2 was formulated from Ground 2 of the Grounds of Appeal and therefore competent. It is also submitted that since after the enactment of the Clans Creation Law No 1 of 1996, the process of creation of Clans is still on ongoing exercise. The damage or injury to the Appellants was therefore ongoing.
I shall now consider these Issues.
Issue No 1.
The Supreme Court in Aremo II Vs Adekanye (2004) ALL FWLR (Pt.224) 2113 at 2132 – 2133 said:
“Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which on action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation law for instituting such an action has elapsed: See the cases Ebogie v N.N.P.C. (1994) 5 N.W.L.R. (Pt.347) 649: Odubeko v. Fowler (1993) 7 N.W.L.R. (Pt.308) 637, Sanda v. Kukawe Local Government (1991) 2 N.W.L.R. (Pt.174) 379: Ekeogu v Aliri (1991) 3 N.W.L.R. (Pt.179) 258.

The statute of limitation does not take away the cause of action but it removes the right of action, the right of enforcement, the right to judicial relief and leaves the claimant with a bare and empty cause of action which he cannot enforce. See: Egbe VS Adefarasin (supra); Araka vs. Ejeagwu (2000) 12 SC (Part 1) 99.
An action commenced after expiration of the period, within which an action must be brought, as stipulated in a statute of limitation, is not maintainable. The court would have no jurisdiction to entertain a statute barred claim. Therefore legal proceedings cannot be properly or validly instituted after the expiration of the prescribed limitation period. See: Ekeogu vs. Aliri (1991) 3 NWLR (Pt.179) 258.

It has been well pronounced in a number of judicial authorities that in order to determine whether an action is statute barred, all that is required is for the court 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 an 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 the case of Egbe Vs Adefarasin (supra); Aremo II Vs Adekanye (supra);
In Woherem vs. Emereuwo (2004) 6-7 S.C. 161, (2004) ALL FWLR (PT 221) 1570 at 1581-1582, the Supreme Court per Iguh JSC said:
“The law is firmly settled that the period of limitation is determinable by looking of the writ of summons and the statement of claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiffs cause of action was committed and by comparing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the Limitation Law, the action is statute-barred. See Egbe V Adefarasin (1987) 1 N.W.L.R. (Part 47) 1. What needs 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 of 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 plaintiffs action is statute-barred and ought to be struck out. The position is different where issue is joined by the parties in their pleadings 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.”
The contention of the Appellants is that the trial court ought to have considered the pleadings in their Reply to the Statement of Defence as well as the depositions in the Affidavit in Opposition to Notice of Preliminary Objection, which contained response to the defence of limitation.
A Reply is the Plaintiff’s answer to the defence. Where the Plaintiff merely wishes to deny the allegations in the defence, there is no requirement or need to file a reply. This is because if no reply is served there is on implied joinder of issue on the defence. If however the Plaintiff wishes to raise specifically any matter in answer, such matters or facts must be specifically pleaded and a reply is required. See: Olubodun v. Lawal (2008) 9 MJSC 1: Woheren vs. Emereuwa (supra) of 1583; Ishola vs. S.G.B. (Nig.) Ltd. (supra) at 421.
The Appellants had pleaded in paragraph 20 of their Statement of Claim as follows:
“The Cross River State Government by Cross River State (Clans Creation) Edict No. 1 of 1996 created Efio Atai and Bacoco clans from Ikpai Omin Qua clan, which are listed as clan Nos 30 and 33 in the said Gazette under Calabar Local Government.”
This is the complaint of the Appellants. All the reliefs they seek are hinged on this complaint. In paragraph 6 of the Statement of Defence of the 1st Respondent, the averments of paragraph 20 of the Statement of Claim was admitted, but they pleaded the issue of the action being statute barred by virtue of the provisions of Section 2(a) of the Public Officers Protection Law of Cross River State. In paragraph 12 of their Statement of Defence, the 2nd-4th Respondents also admitted the averments in paragraph 20 of the Statement of Claim. The 1st Respondent further filed a Notice of Preliminary Objection seeking the striking out of the suit for want of jurisdiction on the ground that it is statute barred. No affidavit in support was filed. In other words, both sets of Respondents admitted the cause of action of the Appellants but for the 1st Respondent, the suit ought to be struck out because the cause of action can no longer be enforced by judicial process, being statute barred.
There was therefore no dispute as to the date the cause of action arose. No new facts had arisen in the statements of defence. In this circumstance, there was absolutely no requirement for the Appellants to file a Reply to give any further explanation.
Indeed even if the Respondents had denied the date the cause of action arose by affidavit or by their pleadings, the Appellants would still have no legal duty to file a counter-affidavit or a Reply to the Statement of Defence to contradict the date on which the Respondents in their Statement of Defence alleged that the cause of action arose. Issues on that fact would have been joined in the pleadings of the parties and the Respondents’ Statement of Defence would not, on the established rules of pleadings, call for a Reply from the Appellants. Rather, there would now be a triable issue on the question of which date the cause of action arose. The trial court would have to hear the case on the merit to ascertain the correct date.
In either dismissing the suit as being statute barred; or, in hearing the matter on the merit, where there is a dispute as to when the cause of action arose, what the trial court depends on is the writ of summons and the statement of claim without more.
In Woheren vs. Emereuwa (supra) of page 1582 the Supreme Court said:
“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 of 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 unjustifiable as it offends all the well known settled principles of law on the subject. The Court of Appeal, with respect, ought to have confined itself to the averments in the appellant’s writ of summons and 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 the some arose was not admitted by the appellant and the point at that stage was yet to be determined by credible evidence of the hearing of the suit.”
The learned trial Judge was therefore right in not considering any other process other than the writ of Summons and the statement of claim in determining if the action of the Appellants was statute barred. The trial court need not have considered either the Affidavit in opposition to the Notice of Preliminary Objection) or, the Reply to the Statement of Defence.
I therefore resolve Issue No. 1 in favour of the Respondents.
Issue No 2.
The 1st Respondent in its motion on notice filed on 30/1/2013 had prayed that this issue be struck out. However, I agree with the Appellants that this issue flows from Ground 2 of the Notice of Appeal, and is competent.
The 1st Respondent in the Notice of Preliminary Objection filed on the 29/3/2006, prayed the Court to strike out the Suit HC/430/98 for want of jurisdiction on the ground that it was statute barred, having been instituted in contravention of Section 2(a) Public Officers (Protection) Law of Cross River State 1983, which provides:
“1) Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Law, duty or authority, the following provisions shall have effect –
(a) Limitation of Time
The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of continuance of damage or injury, within three months next after the ceasing thereof…”
The Appellants contend that what ought to apply in this case is the exception to this provision to wit:
“…in case of continuance of damage or injury, within three months next after the ceasing thereof…”
It is contended that the creation of Clans was still an ongoing exercise which has not been concluded.
A continuing damage or injury is the continuance of the act which caused the damage. A continuing damage or injury is not merely a continuation or continuance of the injurious effects of a legal injury but the continuance of the legal injury itself. See: Obiefuna v. Alexander Okoye (1961) 1 ALL NLR 357: Adigun vs. Ayinde (1993) 8 NWLR (PT. 313) 516: Gulf Oil Co Ltd vs. Oluba (2002) 12 NWLR (PT 780) 92 of 112; Amachree vs. Shell Petroleum Development C. Nig. Ltd (2011) LPELR 4474 (CA).
In Olaosebikan vs. Williams (1996) 5 N.W.L.R. (Pt.449) 437 at 456, Salami, JCA (as he then was) quoting Dickson, J had this to say:-
“The issue is very well illustrated by the dictum of Dickson J, in Michael Obiefina Vs. Alexander Okoye (1961) All N.L.R. 357. At pages 360 and 362 Dickson J, said
Continuance of injury or damage means continuance of the legal injury, and not merely continuance of the injurious effects of a legal injury. The continuance of the injurious effects of an accident is not a continuance of the injury or damage within the meaning of the Public Authorities Protection Act 1893: 20 Halsbury (2nd Edition) page 771.With regard to the construction of those words, I am clearly of opinion that the matter is governed by the decision of the Court of Appeal as far back as 1903, in the case of Curey Vs. Metropolitan Borough of Bermondsey (67 J. P. 447), confirming the judgment of Channel J., in that same case, reported in the same volume at page 111. Lord Halsbury, L. C. in giving judgment in the Court of Appeal in that case, affirming the judgment of channel J, said:-
“It is manifest that ‘continuance of the injury or damage’ means the continuance of the act which caused the damage. It was not unreasonable to provide that, if there was a continuance of enact causing damage, the injured person should have a right to bring an action at any time within the months of the ceasing of the act complained of.”
I concur. I have nothing to add.”
With respect, I agree that this is a correct interpretation of the provisions of Section 1(a) Public Officers (Protection) Law of Cross River State 1983.
In the instant case, the pleading in paragraph 20 of the statement of Claim states clearly that the cause of action arose when the Cross River State Government passed the Cross River State (Clans Creation) Edict No. 1 of !996, thereby creating Efio Atai and Bacoco clans from Ikpai Omin Qua clan. This complaint or damage is by no means a continuing one. The injurious effects of the creation of Efio Atai and Bacoco clans from Ikpai Omin Qua clan to the Appellants maybe continuing but not the act itself , which from the pleading of the Appellants, was completed in 1996.
Furthermore, the 1st and 2nd – 4th Respondents have rightly submitted that a statute cannot be repealed or amended by a press release. The creation of Efio Atai and Bacoco clans from Ikpai Omin Qua clan was concluded and gazetted in 1996, which was when the cause of action arose.
In Fadare vs. Attorney General of Oyo State (1982) 4 SC (Reprint) 1 of 11, the Supreme Court per Nnamani JSC said:
“Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed.”
Citing the above, the Supreme Court per Kutigi JSC (as then was) in Nigeria Ports Authority vs. Ajobi (supra) page 174 said:
“In other words time will start to run when all the facts which constitute the plaintiff’s cause of action arose.”
From the Writ of Summons and Statement of Claim of the Appellants, the cause of action arose in 1996. The action instituted in 1998 was clearly statute barred, having regard to the provisions of Section 1(a) Public Officers (Protection) Law of Cross River State 1983. I therefore resolve Issue No 2 against the Appellants.
The Issues raised having been resolved against the appellants, this appeal fails and is hereby dismissed.
Parties are to bear their own costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft from the judgment just delivered by my learned brother, Onyekachi A. Otisi, JCA.
If a party is aggrieved for any reason and he/she intends to pursue a legal action, it is wise to seek redress promptly.
It is trite that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute”.

It is pertinent to state that in civil matters a cause of action will be valid for six years. However, statutes can limit the time to less than the six years prescribed for ordinary civil matters.
“Where a statute of limitation prescribed a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute-barred. Ogunko vs. Shell (2004) 6 NWLR Pt 868 page 17, Osun State Government vs. Dalami Nig Ltd (2007) All FWLR Pt 365 page 438.
In the present case, the cause of action accrued in 1996 but the Appellants instituted their suit in 1998. The Public Officers’ (Protection) Law of Cross River State 1983 prescribed a Limitation period of three months. If the Appellants intended to pursue their legal rights in this case, the suit should have been instituted before the expiration of three months. After the prescribed period of three months under this Act, the Appellants cannot institute the suit. Time begins to run for the purpose of the Limitation Law from the date the cause of action accrued British Airways Plc Vs. Akinyosoye (1995) l NWLR Pt 374 page 722 Shell Petroleum Development Company (Nig) Ltd Vs. Farah (1995) 3 NWLR Pt 382 page 148, Jallco Ltd Vs. Owoniboys Tech. Services Ltd (1995) 4 NWLR Pt 391 page 534.
Of course, after the Limitation period of three months, the Appellants still have a legal right but have nowhere to air it.
For this and the more comprehensive reasoning and conclusions contained in the lead judgment, I too hold that the suit is statute-barred.
I also abide by all the other orders contained in the lead judgment.

JOSEPH TINE TUR, J.C.A.: I read in advance the judgment delivered by my Lord ONYEKACHI A. OTISI, JCA and I concur that the appeal should stand dismissed. I need not reproduce the facts of this case except to place reliance on paragraphs 16 and 28 of the statement of claim filed on 8th November, 1999 to wit:
“16. The 4th Defendant and other protagonists of Effio Atai Clan on the 9th of January, 1992 without authority caused an announcement to be made over the Cross River State Radio that (1) Ikot Effanga, (2) Ikot Eneobong, (3) Ikot Nkebre, (4) Eninie Effiwatt, (5) Okani Mbang, (6) Ikot Obo, (7) Obot Okoho, (8) Abenyo, (9) Ikot Ekpo and (10) Nkabu/Ekabo villages of Ikpai Omin Qua Clan had merged to form Efio Atai Clan.
28. The creation of Efio Atai Clan without the consent of the plaintiffs and the Paramount Ruler of the Quas is contrary to Qua custom, as it was not done according to tradition. The Ekpe totem which is the symbol of authority of Ikpai Omin has been desecrated as none of the actions of the 2nd to 4th Defendants was sanctioned at the original Ekpe shed or hall as required by Qua custom.”
From paragraphs 16 and 28 of the statement of claim it can be seen that the appellant became aware of the unauthorized merger of the villages of Ikpai Omin Qua Clan and Efio Atai Clan which was contrary to Qua custom through the Cross River State Radio announcement of 9th January, 1992. The writ of summons commencing proceedings seeking declaratory and injunctive reliefs in the Court below against the respondents was instituted on the 28th day of October, 1998, namely, more than six years thereafter. Secondly, it can be seen from the facts pleaded in paragraphs 16 and 28 of the statement of claim that the creation and merger of Ikpai Omin Qua Clan and Efio Atai Clan was complete before the Radio announcement on 9th day of January, 1992. From the pleadings I am of the firm view that the creation and merger of the two Clans was a complete exercise before the Radio announcement of 9th January, 1992. The determinant date when it is argued that an action is statute barred is the date the action complained of occurred which gave the plaintiff the cause to institute the action. When the action was filed, is as set out in the writ of summons. See Egbe vs. Adefarasin (1987) 1 SCNJ 1 where Oputa, JSC held at page 17 as follows:
“…A cause of action is thus said to be statute barred if in respect of it proceedings cannot be brought because the period kind down by the Limitation Law or Act had elapsed. How does one determine the period of limitation? The answer is simple – by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed (sic). This can be done without taking oral evidence from the witnesses. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred. Chief Williams, SAN, was right in filing a motion to strike out the action limine. The trial Court was rather too lenient in allowing the action to proceed, and proceeding on what he called “a fact finding expedition” only ultimately to arrive at the conclusion that Section 10 of the Limitation Law of Lagos State Cap.70 of 1973 applied and that the action was statute barred. Ground 1 of the grounds of appeal confuses a cause of action and a right of action. A statute of limitation removes the right of action, the right of enforcement, the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce.”
By the provisions of Section 2(a) of the Public Officers (Protection) Law Cap P.17 Laws of Gross River State, 2004 the three months period for instituting this suit as shown on the writ of summons having elapsed, the only remedy is to dismiss the appeal and the suit in the lower Court. See Eboigbe vs. NNPC (1994) 5 NWLR (Pt.347) 649 at 659; Odubeko vs. Fowler (1993) 7 NWLR (Pt.308) 637 and Ekeogu vs. Abiri (1991) 3 NWLR (Pt.179) 258. Appeal and the suit below stand dismissed.

Appearances

S.N. Chukwuma, Esq.,For Appellant

AND

O.E. Asuquo, Esq., State Counsel 1, Ministry of Justice, Calabar, for 1st Respondent
Robin A. Umiom, Esq., for 2nd – 4th RespondentsFor Respondent