TOTAL E&P NIGERIA LIMITED v. ELDER MARK UMAH & ORS
(2019)LCN/12739(CA)
In The Court of Appeal of Nigeria
On Monday, the 25th day of February, 2019
CA/PH/408/2014
RATIO
COURT AND PROCEDURE: THE EFFECT OF STATUTE-BARRED
“The effect of a statute barred action is that it has become incompetent. The claimants who previously possessed the right of action has lost that right to bring to Court for adjudication because the Court no longer possesses the jurisdiction to entertain the action. See Aremo II V. Adekanye (2004) All FWLR (Pt 234) 2113; Iweka V. SCOA (2000) 7 NWLR (Pt 664) 325 and Transocean Support Services Nig Ltd V. Prah (unreported) Appeal No CA/PH/390/2014 delivered on 4th June 2018.” PER ABUBAKAR MUAZU LAMIDO, J.C.A.
JUSTICES
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
TOTAL E&P NIG. LTD Appellant(s)
AND
1. ELDER MARK UMAH
2. ELDER CHIEFSON ATAOSO
3. ELDER FYNEBOY OSIAGOR
4. SUNDAY CHUKWUMA
5. HON. MONDAY OSIAGOR
(For themselves and on behalf of Umu-Ojoba family, Elieta Community in the Ogba/Egbema/Ndoni Local Government Area of Rivers State) Respondent(s)
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of Rivers State, Omoku Judicial Division, holden at Port Harcourt delivered by S. Blambo, J. on 10th April 2014.
Before the trial Court, the claimants/Respondents as per their writ of summons claim the following reliefs against the defendant/ appellant:-
(a) A declaration by the Honourable Court that the deliberate non recognition of the claimants Umu Ojoba family, Elieta community in the Ogba/Egbema/Ndoni Local Government Area of Rivers State as one of the landlords of the Defendant is oppressive, repressive, unconstitutional, null, void and of no effect whatsoever.
(b) An order of the Honourable Court compelling the Defendant to accord full recognition to the claimants Umu Ojoba family, Elieta Community in the Ogba/Egbema/Ndoni Local Government Area of Rivers State as one of the landlords of the Defendants by virtue of the Defendant?s use of their Ezukwu land lying and situate at Amah community.
(c) An order of the Honourable Court directing the defendant to include the claimants Umu Ojoba family, Eliata community in the Ogba/Egbema/Ndoni Local Government Area into the Memorandum of Understanding (MOU) as being executed between the Defendant and Amah Community and to accord the claimants all the rights, benefits, privileges etc attendant on the MOU.
(d) General damages in the sum of One Hundred and Fifty Million Naira (N150m) only.
Upon being served with the originating process and statement of claim, the Defendant/Appellant filed its statement of defence and a notice of preliminary objection. The Defendant/Appellant challenged the jurisdiction of the trial Court to entertain the suit of the Claimants/Respondents on the ground that the action is statute barred. In its ruling, the trial Court held that the cause of action was continuous and not statute barred. The trial Court dismissed the objection as unmeritorious.
Dissatisfied with the ruling of the trial Court, the Defendant/ Appellant filed its notice of appeal against the said ruling on 22nd April 2014. The said notice of appeal contains two grounds of appeal couched thus without their particulars:-
GROUND 1:
The learned trial Judge erred in law when he held that the cause of action was continuous and therefore not caught up by the statute of limitation.
GROUND 2:
The lower Court erred in law by holding that the action was not caught up by the statute of limitation therefore by implication vesting it with the jurisdiction to entertain the entire matter despite the fact that the action is statute barred and the Court lacks the jurisdiction to entertain same.
The Appellant filed its brief of argument on 01/07/14 but deemed on 22/11/16. The Respondents filed their brief of argument on 01/09/15 but deemed on 25/04/17 and a reply brief was filed on 02/05/17. The parties adopted their respective briefs.
In its brief of argument settled by Tom Jackson Orage, Esq, the appellant formulated a single Issue for determination. The issue is:
Whether in view of the respondents’ case as set out in their statement of claim, the cause of action is continuous as to prevent the application of the Limitation Law, Rivers State.
The Respondents also formulated a lone Issue for determination in their brief of argument settled by Z.C. Nwaogu, Esq. The said issue is:
Whether from the facts and circumstances of this case, the learned trial Judge was right in holding that the respondents’ claim was not caught up by the Limitation Law of Rivers State.
The issues as formulated by parties to this appeal are somewhat identical. The Court will adopt the issue formulated by the appellant in the determination of this appeal. The issue adopted by the Court is:
Whether in view of the respondents’ case as set out in their statement of claim, the cause of action is continuous as to prevent the application of the Limitation Law of Rivers State.
In arguing the above Issue, learned counsel for the Appellant submitted that the cause of action is the refusal of the Appellant to recognize the Respondents as their landlords and same accrued from 13th August 2001. The Respondents are required by Section 16 of the Limitation Law of Rivers State to commence their action against the Appellant within five years from that date. Learned counsel submitted further that the holding by the trial Court that the cause of action is continuous is contrary to the Limitation Law of Rivers State since the doctrine of continuous tort of trespass and nuisance cannot supersede the Limitation Law. He referred to Nigerian Law of Limitation of Action by Eligwu E. Apeh PP143-146. Counsel further stated that reliance on the authority of Obueke V. Nnamchi (supra) which was decided based on common law principle was wrong and this is so because a Court cannot rely on common law principle to override a statute. He referred to Abakaliki Local Government Council V. Abakaliki Rice Mills (1990) 6 NWLR (Pt 155) 182 @ 190 and The Owners of M.A. Arabella V. Nigerian Agricultural Insurance Corporation (2008) 4-5 SC (Pt 11) 189.
Learned counsel also argued that the basis of common law principle of continuous tort is the assertion of rights and the existence of a duty and abridgement of it upon which a cause of action begins to run and for which as stated in Obueke V. Nnamchi (supra) and the case of SPDC Nig Ltd V. Amadi & Ors (2011) All FWLR (Pt 604) 80, are rooted in a contractual agreement between the parties or on the existence of a duty of care and in the case at hand, none of these factors are present. This is so because there is no indication of any prior contractual agreement between the Appellant and the Respondent or the existence of a duty of care owed by the appellant to the Respondents the breach of which could ignite the cause of action which subsequent breach could be said to be continuous. He referred to SDPC (Nig) Ltd V. Amadi (supra).
He also stated that a perusal of the Respondents claim and a Memorandum of Understanding attached to the said claim reveals the Respondents’ appeal and desire to be included in the Appellant’s community relations good will and not any perceived contractual or legally assertable right for which breach and subsequent breach could be said to be continuous. This is so because the language used in Sections 16 and 17 of the Limitation Law is clear and does not admit of any extraneous factors such as continuous nuisance. He referred to Gulf Oil Co (Nig) Ltd V. Oluba (2002) 12 NWLR (Pt 780) 92.
Finally, learned counsel stated that Section 31 of the Limitation Law provides for exceptions to the application of the law and any other exception introduced amount to a judicial amendment of the Limitation Law and ought to be disallowed. Counsel urged the Court to resolve this issue in favour of the appellant and against the respondents.
In his brief of argument, the respondents argued that in an application of this nature, the trial Court is bound to consider the writ of summons and the statement of claim so as to determine whether the claim is caught up by Limitation Law. He referred to Combined Trade Ltd V. All States Trust Bank Ltd (1998) 12 NWLR (Pt 576) 56 and Woherem V. Emerevwa (2004) All FWLR) Pt 221) 1570. The defendant is deemed to accept all the facts pleaded in the statement of claim. He referred to Boothia Maritime Inc V. Fareast Merchantile Co. Ltd (2001) 9 NWLR (Pt 719) 572 and Ege Shipping & Trading Ind. V. Tigris Intl. Corporation (1999) 14 NWLR (Pt 637) 70.
Learned counsel argued that, it is clear that from the writ of summons and the statement of claim, the substratum of the Respondents’ claim is the continuous renegotiation of the Appellant?s Memorandum of Understanding with Amah Community to the exclusion of the respondents who are aborigines of the said community and also the lex situs of the respondents which is Ezukwu farmland. He also stated that even the appellant admitted the position of the respondents in paragraph 12 (g) of the statement of defence. Counsel then submitted that since the cause of action was founded on the continuous renegotiation of the appellant’s MOU excluding the respondents, then the Limitation Law is rendered impotent.
He also stated that though the appellant’s contention is that the cause of action accrued from the 13th August 2001, and the respondents were required to commence legal proceedings against whatever wrong committed within 5 years by the provision of Section 16 of the Limitation Law of Rivers State, the learned trial Judge considered the import of the continuous renegotiation of the appellant’s MOU and came to an unassailable conclusion that the cause of action is continuing. This is so because the respondents’ cause of action is derived from renegotiation of the appellant’s MOU with Amah community. The said MOU was entered on 15/04/2004 while the respondents wrote to the appellant on 20/4/2012 and failure to honour the respondents’ demands is the cause of their grievance which led to the institution of the action on 28/02/2013 less than a year from the date of their demands; the suit is not statute barred. He referred to Egbe V. Adefarasin (1987) 1 NWLR (Pt 47) 1 @ 20.
Learned counsel for the respondents admitted that though the respondents started their demand for recognition in 2001, the demand abated when the appellant entered into an MOU with the Amah community without including the respondents in 2004 and 2008. Counsel then argued that even where the principle of continuing act is inapplicable to the earlier demands made by the respondents, the last demand of 2012 is complete in itself to create a cause of action. He referred to Attorney General Rivers State V. Attorney General Bayelsa State & Anor (2013) All FWLR (Pt 699) 1082, Yaradua V. Abubakar (2008) 36 NSCQR 815 and Ogboru V. Uduaghan (2011) 48 NSCQR 560. Counsel urged the Court to resolve this issue in favour of the respondents and against the appellant.
Having carefully gone through the arguments of learned counsel, the question is whether the respondents’ cause of action is continuous and if it is not, whether the claim is statute barred? These two issues are subsumed in the appellant’s only issue for determination adopted by the Court.
An action is said to be caught up by statute of limitation or becomes statute barred when the party suing brings his action beyond the period laid down by the Limitation Law. See Araka V Ejeagwu (2000) 12 SC (Pt 1) 99. Where an action is statute barred, a plaintiff or claimant who might have had a cause of action loses the right of enforcement of such action or claim in a Court of law as a result of the expiration of the prescribed period. See Eboigbe V. NNPC (1994) 5 NWLR (Pt 347) 649; UBA Ltd V. Abimbola & Co (1995) 9 NWLR (Pt 419) 371 and Aremo II V Adekanye & Ors (2004) 13 NWLR (Pt 891) 572.
In the determination of whether an action is statute barred or not, the Court will look at the processes filed by the claimant so as to discern the time of accrual of cause of action and the time of instituting of the action. In Eregbowa & Ors V. Obanor & Ors (2010) LPELR 8964 @ 37-38; Augie, JCA (as he then was) held that:
‘It is well settled that in determining whether a cause of action is statute barred or not, the crucial consideration is when the cause of action arose, and the period of limitation is determined by looking at the writ of summons and statement of claim alleging when the wrong was committed that gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.’ See also Adekoya V. FHA (2008) 11 NWLR (Pt 1099) 539 and Omomeji V. Kolawole (2008) 14 NWLR (Pt 1106) 180.
The law is well settled that a cause of action is the facts which establish or give rise to a right of action, that is the factual situation that gave rise to judicial relief. In Bello V. Attorney General Oyo State (1986) LPELR 764 @ 81; Karibi-Whyte, JSC explained what a cause of action is in this way:
“… 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 of claim.’ See Thomas V. Olufosoye (1986) LPELR 3237; Egbe V. Adefarasin (1987) LPELR 1032; Tukur V. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and UBA Plc V. Abdullahi (2003) 3 NWLR (Pt 807) 359.
It is thus imperative to examine and reproduce the Statement of claim, particularly from paragraphs 5 thereof. It states as follows:
5. The claimants aver that they are the owners in possession of the vast piece or parcel of land known as and called Uzukwu farmland lying and situate along Amah/Ede Road, Amah community in the Ogba/Egbema/Ndoni Local Government – a place also within the jurisdiction of this Honourable Court.
6. The claimants further aver that the defendant’s access road, oil and gas Pipeline and three burrow pits are located right inside the Ezukwu farmland. The claimant shall at the trial plead and rely on copies of the digital pictures showing the defendant’s access road, oil and gas pipeline and burrow pits on the claimants Ezukwu land.
7. The claimants stated that by virtue of the defendant’s access road, oil and gas Pipeline and three burrow pits traversing their Ezukwu farmland, they are undeniably one of the landlords of the defendant at Amah Community.
8. The claimants aver that they are the aborigines of Amah Community where their progenitor Ojobo founded the Ezukwu land by acts of deforestation and first cultivation.
9. The claimant aver that sometimes in the past, they voluntarily migrated from Amah to the present day Elieta community where they now live and still maintain ownership rights over the Ezukwu land.
10. The claimants further aver that despite the fact that they migrated to Elieta Community, they still maintain undisputed title over the said Ezukwu land and have been exercising acts of user and ownership in respect of the land such as farming and leasing of palm fruits.
11. The claimants aver that the defendant first entered the Ezukwu farmland in 1972 when it constructed its access road and paid damages on cash crops to the claimants’ family.
12. The claimants aver that between 1987/1988 when the defendant laid its oil pipeline at Ezukwu farmland, it paid compensation to members of claimants’ family for damages to their economic crops/trees. The claimants shall at the trial of this suit plead and rely on copies of the compensation receipts issued to some members of their family between 1987 and 1988. The defendant is put on notice to produce the original.
13. The claimants aver that prior to 2004 when the defendant entered into its first Memorandum of Understanding (MOU) with Amah Community, the claimants had written several correspondences to the defendant to recognize their family as landlords so as to be eligible to benefit from the MOU with Amah community. The defendant willfully failed and or neglected to implement the contents of the claimants demands. The claimant shall at the trial plead and rely on a copy of the letter written by their former solicitor S.U. Ononigbo and dated 13/08/2001. The defendant is given notice to produce the original.
14. The claimants further state that sequel to the defendant’s failure and or neglect to implement the contents of their former Solicitor’s letter, the claimant’s family on the 28/11/2005 mandated one EBERE AMODI who is a member of their family to write a reminder letter to the defendant through the office of the General Manager Sustainable Development. The claimants shall at the trial plead and rely on a copy of the reminder letter written by Ebere Omodi and dated 28/11/2005. The defendant is accordingly put on notice to produce the original.
15. The claimants state that the defendants also ignored the contents of the reminder letter and went ahead to negotiate and enter into Memorandum of Understanding with the Amah Community in 2004 and subsequently in 2008 to the exclusion of the claimants family.
16. The claimants as civil citizens have on the 20/04/2012 retained the services of Collins N. Obulor, Esq to write another letter to the Defendant demanding for the recognition of the claimants’ family as one of the landlords of the defendant in respect of its oil and gas activities at Amah Community. The defendant also ignored the contents of the letter. The claimant shall at the trial plead and rely on a copy of the letter dated 20/04/2012 and written by Collin N. Obulor, Esq. The defendant is put on notice to produce the original.
17. The claimants shall at the trial lead evidence to prove that not the persons or families having oil/gas on their lands are recognized as landlords of the defendant but also person or families having access roads, pipelines and burrow pits are given due recognition as landlords.
18. The claimants state that by Clause 10 (Interpretation Cause) of the last MOU entered between Amah Community and the defendant and dated 15/05/2008 the word ?Amah Community? refers to and means an individual, a group or community of individuals, a village or community or group of such villages or communities belonging to, residing in or originating from the owners of the land where oil well, oil and gas pipelines, flow lines, gas plant, camp sites and other facilities of the company are located in Amah Community irrespective of sex, age, trade, profession, kinship, organisation, class or location. The claimants shall at the trial plead and rely on the said MOU dated 14/05/2008. The defendant is put on notice to produce the original.
19. The Claimants aver that despite the above clear and unambiguous provision in the Memorandum of Understanding with Amah Community the defendant is still unyielding in the Claimants demands to be recognized as landlords.
20. The claimants aver that they are law abiding citizens who will not resort to unlawful means to actualize their demands hence this action.
21. The Claimants have as a result of the acts of the defendants suffered untold hardship, losses, inconveniences and damages.
From the averments as can be seen from the respondents’ statement of claim, it can be seen that the fulcrum of their case against the appellant is their non recognition as the appellant’s Landlords despite successive demands; these demands started in 2001, followed by a reminder in 2005. However, in 2004 the appellant entered into an MOU with the Amah Community and the same was renewed in 2008 excluding the respondents. On 20/04/2012, the respondents instructed their Solicitor to write to the appellant which letter was ignored by the appellant. According to the respondents, the appellant’s failure to respond to their letter dated 20/04/2012 spurred this action which was filed on 28th February 2013.
The learned trial Judge found as follows at P119 of the record:
A reading of the Statement of Claim shows that the alleged cause of action may have accrued or started before 2004. It was in 2001 that a formal demand was first made on the defendant to recognize the claimants as landlord family of its occupied land and treat it accordingly. This was made by the Solicitors letter from S.U. Ononigbo, claimants’ former counsel in August 2001. There was a further reminder in 2005 by a letter from claimants’ family to the defendant .. Clearly within 5 years of the alleged cause of action coming into being, the claimant did nothing by way of any claim or action before any competent Court of jurisdiction. There is at least no such averment.
The above being the findings of facts by the trial court, it proceeded to hold this:
‘While a situation of Statute bar may deny a claimant a right to a remedy once it is shown that the cause of action is a continuing one, the Statute of limitation do not apply to it or its computing of time until there is a cessation of the act or conduct constituting the cause of action. See the Supreme Court in the case of Obueke V. Nnamchi (2012) All FWLR (Pt 633) 1840. In the light of this finding, this Court is unable to hold that the present action is caught up by Limitation Law or statute barred’.
It seems the learned trial Judge appreciates the fact that ordinarily, the claim of the respondents was caught up by the limitation law but for the fact that the facts constituting the claim constitutes continuous acts which according to the trial Court, kept the claim alive. But the question to ask here is whether from the Statement of claim and the findings of fact of the trial Court, the claim of the respondents constitutes continuous act so as to escape the hammer of the limitation law.
In his submission learned counsel for the respondent stated that “from the writ of summons and statement of claim, the fulcrum of the respondents’ claim is the continuous renegotiating with Amah Community to their detriment”. However, the trial Court in its ruling held that the act is continuing since the respondents have written severally to the appellant with response.
Now, the Limitation Law of Rivers State prescribes a time limit within which to bring an action in a Court of law. In respect of actions relating to contract, tort or other actions, Section 16 of the Limitation Law provides that:
16. No action founded on contract, tort or any other action not specifically provided for in parts I and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.
Section 16 of the Limitation Law limits the period within which to bring an action founded on contract, tort or any other action not specifically provided for to 5 years. Where an action is brought after 5 years, the action will be considered as statute barred having being initiated outside the allowable period. However, the same law allowed for the postponement of the limitation period in cases of fraud, concealment or mistake. See Section 31 of the Limitation Law.
Apart from the postponement of the limitation period as can be seen in Section 31, the law is now settled that where there is a continuance of damage or injury and it can be safely said that a cause of action arises from time to time as often as damage or injury is caused, the cause of action will be considered a continuing cause or act, the limitation period will be freezed until the cessation of events leading to damage or injury. See Abiodun V. Attorney General Federation (2007) 15 NWLR (Pt 1057) 359 and SPDC (Nig) Ltd V. Amadi (2010) 13 NWLR (Pt 1210) 82.
The learned trial Judge relied on the decision of the Supreme Court in Obueke V. Nnamchi (supra) to hold that there is a continuing act. It is to be noted that the decision relied upon by the trial Court was based on trespass and injunction which is quite different from the case at hand. The doctrine of Stare decisis, which aims to ensure certainty in our legal system thrives where the facts of the two cases are similar or on all fours. It is inapplicable where the facts are irreconcilable. In Akeredolu V. Abrahams & Ors (2018) LPELR 44067 @ 34-35; Okoro, JSC held that:
‘It is trite that legal principles established in decided authorities are not to be applied across board and in all matters without regard to the facts and issues submitted for adjudication in a particular case. This Court made the point in Emeka V. Okadigbo (2012) 18 NWLR (Pt 1331) 55 where it was stated that a judgment should always be read in the light of the facts on which it was decided. It was also decided that the rules of stare decisis do not allow Courts to apply the ratio of a case across board and with little regard to the facts of the case before them.’
Secondly each case remains authority for what it decided. Therefore an earlier decision of this Court will only bind the Court and subordinate Courts in a subsequent case if the facts and the law which formed the earlier decisions are the same or similar to those in the subsequent case. Where the facts and/or the legislation which are to inform the decision in the subsequent case differ from those which informed the Court’s earlier decision, the earlier decision cannot serve as a precedent to the subsequent one. See Okafor V. Nnaife (1987) 4 NWLR (Pt 64) 129; Ugwuanyi V. Nicon Insurance Plc (2013) 11 NWLR (Pt 1366) 346 and Clement V. Iwuanyanwu (1989) 3 NWLR (Pt 107) 39.
The claim of the respondents centres on their non recognition by the appellant as its landlord. They are also seeking for an order of Court compelling the appellant to recognize them as one of their landlords. It is my considered opinion that the trial Court was in error to have relied on the decision of Obueke V Nnamchi (supra) which decision on its very facts is irreconcilable with the case at hand.
The concept of continuing act capable of freezing the limitation period to my mind is limited to cases where damages and/or injuries is the main claim of a party. Continuance of damage or injury has been defined by this Court, per Dongban-Mensen, JCA to mean “the continuance or repeat of the act which caused the injury”. It does not and cannot be said to mean concomitant effect of the damage or injury. In Olaosebikan V. Williams (1996) 5 NWLR (Pt 449) 437 @ 456, Salami, JCA quoting Dickson, J. had this to say:-
‘Continuance of injury or damage means continuance of the legal injury, and not merely continuance of injury or damage within the meaning of the Public Authorities Protection Act 1893’.
I am clearly of the opinion that the Matter is governed by the decision of the Court of Appeal as far back as 1903 in the case of Curey V.Metropolitan Borough of Bermondy (67 J.P. 447). Where the Court held that ‘it is manifest that continuance of injury or damage means the continuance of the act which caused the damage. It was not unreasonable to provide that, if there was the continuance of an act causing damage, the injured person should have a right to bring an action at anytime within the months of the ceasing of the act complained of.’
It should be noted that the trial Court?s finding of fact as can be seen from the records centred on the date the respondents first communicated their agitation to the appellant which was 2001 and a reminder in 2005. The trial Court further held that ordinarily the suit of the respondents ought to be barred but for the continuing act. By emphasis, the trial Court did not expressly state what he considered as continuing act, but if an inference can be drawn from the trial Court?s decision, the continuing act under reference meant the letters written to the appellant by the respondent in 2001, 2005 and 2012. There is no evidence of damage or injuries suffered by the respondents; at least neither the statement of claim nor the findings of facts are able to show that.
Now, on the several letters of agitation written to the appellant by the respondents, which is akin to negotiating their interests, the law is well settled that negotiating by parties cannot stop time from running. In Eboigbe V. NNPC (1994) LPELR 992 @13-14; Adio, JSC (of blessed memory) held that: As for the period during which the parties engaged in negotiation, the law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engaged in negotiations. The best cause for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiation fails.
See SPDC V. Ejebu & Anor (2010) LPELR 5025 and Ibeto Cement Co Ltd V. Attorney General Federation (2007) LPELR 8877. In the case at hand, there is no fact to show both parties to this appeal were negotiating. Rather, what the statement of claim reveals is that the appellant failed to reply to any of the respondents? letters. In all these circumstances, the process of negotiation cannot be used to suspend the limitation law. See Comfort V. Almo Gases (Nig) Ltd 2006) All FWLR (Pt 335); and Okpa & anor V. Okpa & anor (2013) LPELR 20396.
Having said all these, it is my view that the holding of the trial Court that there is a continuing act is wrong as the statement of claim before it disclosed neither damages nor injuries to the respondents as a result of their non recognition as the appellants’ landlords.
The learned trial Judge has in his ruling held the action to be statute barred but for the continuance of the act. The learned trial Judge found that the first demand letter was written to the appellant in 2001. It follows that the cause of action accrued to the respondent in 2001 and the respondent instituted an action against the appellant on 28/02/2013 a period of about 12 years. Section 16 of the Limitation Law on the other hand provides that actions on contract, tort or any other action not specified for (like the action at hand) shall be brought within 5 years from the date on which the cause of action accrued. The respondents? action before the trial Court having been commenced 12 years after the accrual of the cause of action has been caught up by the Limitation Law of Rivers State. It is clearly statute barred.
The effect of a statute barred action is that it has become incompetent. The claimants who previously possessed the right of action has lost that right to bring to Court for adjudication because the Court no longer possesses the jurisdiction to entertain the action. See Aremo II V. Adekanye (2004) All FWLR (Pt 234) 2113; Iweka V. SCOA (2000) 7 NWLR (Pt 664) 325 and Transocean Support Services Nig Ltd V. Prah (unreported) Appeal No CA/PH/390/2014 delivered on 4th June 2018.
The only Issue for determination in this appeal is hereby resolved in favour of the appellant and against the respondents.
On the whole, I find this appeal meritorious and it is hereby allowed. The Ruling of the High Court of Rivers State delivered on 10th April 2014 in Suit No. OHC/19/2013 be and is hereby set aside and the said suit is dismissed by this Court.
I make no order as to costs.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft the very scholarly prepared judgment delivered by my learned brother ABUBAKAR MUAZU LAMIDO, JCA.
I agree with his erudite reasoning and Conclusion that this appeal is meritorious and same is allowed by me. The Ruling of the High Court of Rivers State delivered on 10th April, 2014 in suit No. OHC/19/2013 is thus set aside by me also.
I make no order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading the lead decision of my Learned brother Hon Justice ABUBAKAR MU?AZU LAMIDO, JCA.
The appeal is meritorious and it is hereby allowed. I also abide by all consequential order in this appeal.
Appearances:
T.J. Orage, Esq with him, B.O. Onyesore, Esq.For Appellant(s)
O.I. Osekoya, Esq. holding the brief of Z.C. Nwaogu, Esq.For Respondent(s)
