CHIEF ETEIDUNG RAYMOND F. OBOT & ORS. V. SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED
(2013)LCN/6171(CA)
In The Court of Appeal of Nigeria
On Thursday, the 9th day of May, 2013
CA/C/70/2011
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. CHIEF/ETEIDUNG RAYMOND F. OBOT (Village Head — Ikot Enua Village)
2. CHIEF M.A. EBONG (Village Head – Ikot Etok Udo Village)
3. CHIEF SUNDAY INYANG (Community Representative/Spokesman) Ikot Etok Udo Village
4. CHIEF FRANCIS FRANK OBOT (Community Representative/Spokesman) Ikot Enua Village
5. CHIEF ANWAN UMOH – (Ekpuk Enen Enua) Ikot Enua Village
6. CHIEF FRANK OKOT – (Ekpuk Nung Okpo) Ikot Enua Village
7. CHIEF ETIM OBOT UDO – (Ekpuk Enen Enua) Ikot Enua Village
8. CHIEF EDET AKPAN EKOP – (Ekpuk Enen Enua) Ikot Enua Village
9. CHIEF EKPAN JOE UMOH – (Ekpuk Nung Okpo) Ikot Enua Village
10. CHIEF AKPAN JOHN UDO – (Ekpuk Enen Enua) Ikot Enua Village
11. CHIEF TOM UDO – (Ekpuk Nung Okpo) Ikot Enua Village
12. CHIEF MICHAEL UDO UDO – (Ekpuk Enen Enua) Ikot Enua Village
13. CHIEF EDET JOHNNIE NKANNANG – (Ekpuk Enen Enua Ikot Enua Village
14. CHIEF AKPAN AKPAN OKUKU – (Ekpuk Enen Enua) Ikot Enua Village
15. CHIEF SUNDAY SMITH UMOREN – (Ekpuk Nto Abat) Ikot Etok Udo Village
16. CHIEF WILLIAM UWA – (Ekpuk Nto Abat) Ikot Etok Udo Village
17. CHIEF PROMISE SAMPSON UKPONG – (Ekpuk Nto Abat) Ikot Etok Udo Village
18. CHIEF WILLIE UMANA – (Ekpuk Nto Abat) Ikot Etok Udo Village
19. CHIEF GABRIEL TOM USO – (Ekpuk Nto Abat) Ikot Etok Udo Village (For themselves and on behalf of the entire people of the two Villages, Communities, Ekpuks/Families as listed above) Appellant(s)
AND
SHELL PETROLEUM DEVELOPMENT COMPANY NIGERIA LIMITED Respondent(s)
RATIO
WHETHER OR NOT LIMITATION LAW WILL APPLY WHERE A DEFENDANT MAKES IT DIFFICULT TO CALCULATE THE PERIOD THE CASE OF ACTION ACCRUED
The Supreme Court has held that the Limitation Law will not apply where the defendant created, for instance, a continuing trespass in land by entering into negotiation or attempts to settle the dispute, thereby making it difficult to calculate the period the cause of action had accrued. See Obueke & Ors. vs. Nnamachi & Ors . (2012) 5-7 MJSC (Pt.2) 1 at 30; Adepoju vs. Oke (1999) 2 NWLR (Pt.594) 154 at 169; Taiwo vs. Taiwo (1958) 3 FSC 80 at 83; Oniah vs. Onyia (1999) 1 NWLR (Pt.99) 514 and Ibenewe vs. Lawal (1971) 1 All NLR 23 and Mess vs. Kenrow (Nig.) Ltd. (1992) 9 NWLR (Pt.264) 202 at 224. This will depend on the facts pleaded by the parties. PER TUR, J.C.A.
WHETHER OR NOT ALL ESSENTIAL FACTS MUST BE PLEADED
All essential and material facts must be pleaded. See Atolagbe vs. Shorun (1985) 1 NWLR (Pt.2) 360; Attorney-General of Anambra State vs. Onuselugu Enterprises Ltd. (1987) 4 NWLR (Pt.66) 547. The facts and circumstances of a case determines the authorities a Counsel or a party may cite in support of his argument. See Adegoke Motors Nigeria Ltd. vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 265. None of the authorities cited by learned Counsel to the respondent in argument, namely, Fadare vs. Attorney-General, Oyo State (1982) 4 SC; Eboigbe vs. NNPC (1994) 5 NWLR (Pt.347) 649; Oke vs. Oke (2006) 17 NWLR (Pt.1008) 224:. Abakaliki Local Government Council vs. Abakili Rice Mills (1990) 6 NWLR (Pt.155) 182; Total Nig. Ltd. vs. Ajayi (2004) 2 NWLR (Pt.860) 303 and Adeogun vs. Ekurin (2003) 2 NWLR (Pt.856) 52 have no application to the peculiar facts of this case. PER TUR, J.C.A.
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appellants instituted a suit against the respondents in the Federal High Court, Uyo, Akwa Ibom State on the 24th September, 2010 on the following facts. The appellants granted an Oil Mining Lease to the respondent sometime in 1955. The appellants represent their various communities over which the lease was granted. The respondent commenced drilling activities about that same year at their oil well called “Ikono 1”. The respondent continued to pay rent to the community until 1994 when the well was abandoned. The appellants pleaded in the statement of claim as follows:
“3ii. The defendant religiously, ardently, faithfully, and devotedly paid yearly land compensation to the plaintiffs up till the year 1994 for making use of the plaintiffs’ land for oil drilling purpose, as required by clauses 10 and 24 of the said Oil Mining Lease No.12 granted under the Mineral Oil Act to the defendant and attached thereto as “Proposed Exhibit “E1”.
3iii. The plaintiffs equally aver that the defendant having acquired the said parcel of land at the said Ikono 1 location and installed/developed oil well and actually explored/drilled oil from the said well and thereafter corked and abandoned the said well, the defendant never at any point in time informed the plaintiffs that the said oil well belong or belonged to, or was owned by any other oil exploration/drilling/prospecting company, but rather the defendant was adamantly paying land use compensation to the original landowners being the plaintiffs as shown in the documents annexed hereto as Proposed Exhibits “II”, “III” and “IV”.
3iv. Besides, as a confirmation by the defendant that it owned the said Ikono 1 oil well drilling site and for the purpose of, or to facilitate, ease of contact or communication with the members of the communities within the catchments areas of the said Ikono 1 oil well, the defendant accepted Chief/Mr. Sunday Inyang, who is one of the key plaintiffs in this suit, as a contact man for the said Ikono 1 Oil well location. Proposed Exhibit “V” annexed hereto, confirms this fact.
4. The plaintiffs aver further that after a short period of oil prospecting, oil exploration and oil drilling at the said Ikono 1 oil drilling site, the defendant corked the said oil well and abandoned its operation including the well, the land/area/location, as well as the host community/catchments areas, though the defendant continued to pay land compensation for land use to the members of the said catchments areas of the said Ikono 1 oil well site till 1994.
5. The plaintiffs further aver that the abandonment of the oil well and its operation by the defendant, as and neglect of the said land/area/location and communities within the catchments areas of the abandoned oil well has caused serious and unavoidably damaging or detrimental consequences to the general environment, and to the health, social and economic lives of the people of the host/catchments communities of the shell abandoned oil well site at Ikono 1 location comprising of Ikot Enua Village in Ikono Local Government Area and Ikot Etok Udo Village in Abak Local Government Area, arising as a direct consequence of the acts and/or omissions and/or negligence and/or recklessness of the defendant.
5i. The plaintiffs and the entire members of the communities comprising the host/catchments areas of the said Ikono 1 oil well have neither been informed nor have they been aware of any other oil company apart from the defendant that installed the said Ikono 1 oil well, carried out oil drilling and then corked and abandoned the said oil well thereby being directly responsible for, and bearing the direct consequences of the acts and/or actions and/or omissions and/or negligence and/or recklessness and/or failure to act reasonably in connection with the said abandoned oil well at Ikono 1 location which has glaringly caused serious environmental and health problems to the plaintiffs and other people of the host/catchments communities.
5ii. The plaintiffs aver that the defendant that corked and abandoned the said oil well at Ikono 1 location for over 50 years now and has since stayed away from the said Ikono 1 site/location cannot deny that the people of the said host/catchments communities have suffered serious environmental, economic, social and health problems as a direct consequence of the acts of the defendant.
5iii. The appellants further aver that any oil drilling company and/or Defendant that purportedly claims that the said corked and abandoned oil well at the said Ikono 1 site/location is not owned by the said company/Defendant, (which implies that the said company/defendant never at any point visited the said Ikono 1 site/location or knew about the facilities/installations there) should not be expected to be approbating and reprobating at the same time and/or saying how the various reports of the plaintiffs are false or incorrect.
5iv. The plaintiffs further aver that since the abandonment of the said corked oil well at the said Ikono 1
site/location, members of the host/catchments communities, including the plaintiffs, who have suffered irreparable damages or hardship from environmental-land, sea and air pollution, other environmental hazards and untold social, economic and health problems never knew of any other owner of the corked and abandoned oil well at the said Ikono 1 site/location to cry to, complain to or petition for compensation apart from the Defendant propose Exhibit “IV” is a 29 page 2001 documentary on the said corked and abandoned Ikono 1 oil well which was submitted by members of the plaintiffs’ communities to the defendant only and not to any other oil drilling or prospecting company, showing various letters/petitions for compensation along with copies of DHL courier slips confirming delivery of same to the defendant and including detailed maps – courtesy of SPDC, site/Block Description, environment problems and other vital/pertinent information. The defendants are hereby put on notice to produce the original copy/copies of same during the trial of this case.
“5v. The plaintiffs aver that the defendant is the true original owner of the said corked and abandoned oil well at the said Ikono 1 site location and therefore the plaintiffs duly hold the defendant responsible for all the environmental hazards, environmental pollution of land, water and air, as well as serious economic, social and health problems encountered by the plaintiffs and the entire people of the said host/catchments communities of Ikono 1 oil well, including all mentioned particulars of acts of negligence/neglect/recklessness/omission/failure to act reasonably, corrosion and rust experienced in the area; high pollution and other kinds of environmental contamination of air, water and soil; low crop yield/death of crops; changes in soil ures/structures/tension cracks; effects of gas leakage, economic hardships; high economic and financial cost as well as other known/unknown/unquantified adverse environmental impact occasioned by the said corked and abandoned oil well at Ikono 1 site/location.
5vii. Impacted sites plus the attendant problems and aftermath of incessant oil spillage and gas emission without any remediation action, causing numerous environmental hazards like the type that occurred recently in 2006 warranting the Akwa Ibom State Ministry of Environment and Mineral Resources to write to the defendant to come to the aid of the catchments community and implement remediation measures but of which the defendant ignored the distress call.
b. Serious economic hardship has been suffered by the indigenes/natives of the catchments areas following the stoppage of the normal/usual payment of monthly compensation to the people, concerning the land within the catchments areas since 1994. One of the documents showing payment of compensation by the defendant is hereby attached as proposed Exhibit “B”.
c. High economic and financial cost borne by people within the said catchments areas in terms of human resources to provide long term security over a continuous period of about 50 years to ensure that the abandoned and corked oil well is not destroyed as to result in an otherwise more devastating consequence most especially during the Nigerian civil war in 1966 to 1968.
d. Subtle threat to life and general welfare of people within the said catchments areas following the prevalence of ambient air and the detection of petroleum pollutants above FEMEnv permissible levels.
x x x
7. On the strength of the said report. The plaintiffs Attorney, Barrister Emmanuel J. Uko wrote a letter to the defendant dated 22nd day of July, 2006 and also attached another letter written by the plaintiffs on 22nd July, 2006 to the defendant demanding for compensation and immediate remediation action but the defendant has failed; refused and/or neglected to respond or take any action. The said letters are attached as Proposed Exhibits “D” and “E” respectively. The defendant is hereby put on notice to produce the original copies of the said letters during trial.
8. The plaintiff also in December, 2006 caused another demand letter to be served on the defendant, attached copies of the prior letters written on 27th day of July, 2006 but the defendant equally refused to comply with the demand. Notice is hereby served on the defendant to produce the said letter during trial, a copy of which is hereby attached as Proposed Exhibit “F”. A copy of the post office EMS speed post that delivered the said letter to the defendant is herewith attached as Proposed Exhibit “VII”.
9. The plaintiffs also aver that the Akwa Ibom State Ministry of Environment and Mineral Resources was made to inspect the site of the corked and abandoned oil well and to physically witness the devastating extent of oil spillage and gas emission which continue to cause damaging or detrimental environmental pollution and other consequences endangering the social, economic and health lives of the people with the said catchments areas. The said Ministry wrote to the defendant on 14th day of September, 2006 to take early remediation action too salvage the said community but the defendant has failed, refused and/or neglected to act or even to visit their corked and abandoned oil well and the said catchments areas to see the extent of oil spillage, gas emission, environmental pollution and the attendant danger posed to the community at large within the said catchments areas. A certified copy of the said letter No. MEMR/S/144/Vol.11/270 of 11th September, 2006 is hereby attached as Proposed Exhibit “G”. The defendant is hereby put on notice to produce the original copy at the trial as well as the copy of the reminder letter No. MEMR/S/144/Vol.11/318 dated 28th March, 2007 equally annexed as Exhibit “G2″.
i. The plaintiffs further aver that the defendant cannot effectively deny that is it the original owner that installed the said abandoned oil well and it facilities of Ikono 1 site/location in view of the facts and Exhibits adduced herein, and especially as the defendant never informed the plaintiffs that the said oil well at Ikono 1 site/location belonged to any other particular oil Drilling Company. As such, the defendant is both directly and indirectly liable for all the environmental hazards and other environmental problems encountered/suffered by the plaintiffs and the entire people of the said abandoned oil well at Ikono 1 site location.
ii. The plaintiffs aver further that the said letter No. MEMR/S/144/Vo1.11/270 written by the Akwa Ibom
State Ministry of Environment and Mineral Resources to the defendant expressly stated that experts from the said Ministry had gone on inspection to the site/location of the abandoned oil well at Ikono 1 and confirmed the serious extent of oil spillage, gas leakage and environmental degradation. The failure and/or refusal and/or negligence of the defendant to at least go to visit the said site/location and/or to initiate remedial action shows the extent of careless abandon, unjust treatment and non-chalant attitude of the defendant against the plaintiffs, not caring about the disastrous consequences or impact the plaintiffs were exposed to as a direct result of the corked and abandoned oil well at Ikono 1 site location.”
Paragraph 15 of the Statement of Claim sought the following reliefs against the respondent:
“15. Whereof the plaintiffs claim against the Defendant as follows:
(a1) A declaration that the defendant cannot deny the facts that the defendant in 1955 or thereabout acquired a parcel of land and installed/operated oil drilling well naming the location “Ikono 1 site within the catchments areas of Ikot Etok Udo village in Abak Local Government Area and Ikot Enua village in Ikono Local Government Area and drilled oil from the facility before corking and abandoning the said oil well and that the defendant was actively paying compensation for the land to members of the abandoned oil well communities up till the year 1994 and that the defendant actually confirmed one of the plaintiffs as the defendant’s contact man in the abandoned oil well community facts that thereby irrebutably confirm the defendant as the original owner of this abandoned oil well and facilities af Ikono 1 location.
(a2) A declaration that the same oil well and/or facilities operated by the defendant and used for oil drilling and/or oil exploration on or about 1955 at Ikono 1 location and thereafter corked and abandoned by the defendant which is lying and situate within the catchments area of the host communities of Ikot Enua Village in Ikono Local Government Area and Ikot Etok Udo Village in Abak Local Government Area is one and the same oil well and facilities that remain and is found in the said location today within the catchments areas of the said host communities and belong to the subject matter of the long term environmental problems encountered by the plaintiffs and members of the said catchments areas/host communities at Ikono 1 location.
(a3) N6,500,500,000.00 being special and general damages for adverse environmental impact, serious environmental pollution, unimaginable degradation, other environmental hazards and long term social, security, health, environmental, psychological, economic, agricultural and ecological problems suffered/encountered by the people of within the areas of the abandoned shell oil well communities and catchments area at Ikono 1 location comprising of Ikot Enua village in Ikono Local Government and Ikot Etok Udo Village in Abak Local Government Area all in Akwa Ibom State of Nigeria.
(b) An order of court directing the defendants to provide adequate mitigation measures, effective environmental management plan and implementation of oil community development projects in the catchments areas of the said abandoned oil well communities.
Alternative to claims (b) above:
(c) An order of Court directing the defendant to formally hand over the plaintiffs’ parcel of land that it has acquired and used for its oil drilling operation.”
Upon service the respondent filed a statement of defence denying liability followed by a preliminary objection as follows:
“That the plaintiffs/Respondents action before this Honourable Court is incompent and consequently this Honourable Court lacks the jurisdiction to entertain same.
TAKE FURTHER NOTICE that the grounds upon which the Defendant/Applicant relies are as follows:
“1(i) The writ of summons and statement of claim in this suit were filed on 5th January, 2010.
(ii) From the said writ of summons and the statement of claim, the alleged cause of action arose sometime in 1955.
(iii) By virtue of Section 16 of the Limitation Laws Cap.78 Laws of Akwa Ibom State, 2000, the cause of action is statute barred and consequently the court lacks the jurisdiction to entertain same.
2. The action is improperly constituted as the suit cannot be maintained in a representative capacity as the plaintiffs and the persons they purport to represent each have distinct interest and do not have a common or joint interest in the subject matter of the suit.”
The learned trial Federal Judge upheld the preliminary objection by holding that the action was statute barred as the cause of action accrued in 1994 when the respondent stopped paying rent to the appellants whereas this suit was instituted on 24th day of September, 2010 beyond the statutory period of five years prescribed by Section 16 of the Limitation Law of Akwa Ibom State. Being aggrieved with the ruling the appellant filed Notice of Appeal on 29th day of November, 2010 accompanied with eight grounds. The appellants’ joint brief of argument was filed on 1st day of April, 2011. The respondent’s brief was filed on 6th day of July, 2012. The appellants’ Reply brief was filed on 13th day of September, 2011. The appellants’ learned Counsel distilled eight issues for determination couched as follows:
“1. Whether the whole decision/ruling as delivered by Hon. Justice A.I. Chikere on 4th day of November,
2010 was not a miscarriage of justice.
2. Whether the learned trial Judge did not err in law and/or misrepresented the law when she ruled that the plaintiffs’ action was statute barred by virtue of Sections 1 and 16 of the Limitation Law, Cap.78, Vol.4 Laws of Akwa Ibom State, even when the said suit came under the exceptions to the statute of limitation, the cause of action was/is on-going till now and the suit is for payment of debt/compensation.
3. Whether the learned trial Judge did not err in law when she upheld the preliminary objection and ruled that she lacked jurisdiction to entertain the suit.
4. Whether the entire decision/ruling as delivered on 4th day of November, 2010 was not against the weight of evidence.
5. Whether the learned trial Judge did not err in law when she failed to note and rule that the said Sections 1 and 16 and/or the said Limitation Law Cap.78, Vol.4, Laws of Akwa Ibom State is an invalid law since a State Legislature does not have the power or competence to make any law concerning any other matter touching on Exclusive List meant for Federal Legislature, including procedure and jurisdiction.
6. Whether the learned trial Judge did not err in law when she failed to note and rule that by virtue of Section 40(i)(f) of the said Limitation Law of Akwa Ibom State Cap.78, Vol.4, the plaintiffs’ action was not affected by any period of Limitation.
7. Whether the learned trial Judge did not err in law when she failed to recognize and uphold the exceptions to the law on limitation of action.
8. Whether the learned trial Judge did not err in law when she failed to note the legal import and significance of the serious oil spillage and noxious air emission of 2006 to 2007 as reported to the defendant by the Akwa Ibom State Ministry of Environment in letters Nos. MEMR/S/144/Vo1.11/270 of 11th day of September, 2006 and MEMR/144/Vol.11/318 of 28th day of March, 2007, duly exhibited and as deposed to by the plaintiffs in affidavits, witness depositions, statement of claims – to confirm that the environmental pollution and hazards were continuous and the plaintiffs’ action not caught by any statute/period of limitation.”
The Respondent’s lone issue is as follows:
“Whether the trial court was justified in holding that the appellants’ action is statute barred irrespective of whether the alleged spillage is continuous.”
Because of the prolixity of the issues for determination set down by the appellants’ learned Counsel which appellate Courts deprecate. I prefer the lone issue formulated by the learned Counsel to the Respondent. The lone issue is more germane to the facts pleaded in the Statement of claim before the lower Court. It is the facts pleaded in the statement of claim for which relief is sought that will be scrutinized to determine when the cause of action arose and whether the Court has the jurisdiction to entertain the claim. See Adeyemi vs. Opeyori (1976) 1 FNLR 149 at 157; Ogbimi vs. Ololo (1993) 7 SCNJ (Pt.2) 447 and Nasiru Bello vs. Attorney-General of Oyo State & Ors. (1986) 5 NWLR (Pt.5) 828. What the learned Counsel did was to set out the history of the relationship between the appellants and the respondent from 1955 to 1994. See paragraphs 1-15i of the statement of claim. Paragraphs 5ii to 14 of the pleadings relates to events between 2006 and 2007. Paragraph 5(ii) to 14 of the statement of claim shows that the injury and damage are restricted to the oil spillage said to have occurred sometime in the year 2006 which the appellants are claiming reliefs in paragraph 15 of the statement of claim.
The whole argument by the learned Counsel on behalf of the appellants is that the damages as held by the learned trial Judge are continuous hence section 16 of the Limitation Law of Akwa Ibom State had no application to the facts of this case. Counsel cited decided authorities to support his argument. I shall consider those that are relevant in due course.
Learned counsel submitted that the Limitation Law was enacted by the Akwa Ibom State House of Assembly. But the Assembly had no powers to do so. Learned Counsel urged this Court to allow this appeal. The learned Counsel to the respondent replied that on the facts of this case the action was statute barred. That the cause of action arose in 1994 as rightly held by the learned trial Judge. Counsel cited authorities to buttress his argument. I shall consider in due course those that may be relevant to Counsel’s argument.
It is pleaded that the lease was acquired in 1955 but the oil well was abandoned in 1994. The cause of action arose from the year the respondent corked and abandoned the oil well in 1994 and subsequent damages occurred from when the respondent would not pay rent to the appellants’ community.
The Limitation Law Cap.78, Volume 4 of Akwa Ibom State, 1991 is titled “A law to regulate the time for actions to recover damages.” The Law came into effect on 31st December, 1991.
The legislative powers of a State of the Federation is set out under Section 4(6) and 7(a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999 as altered to wit:
4(6) The legislative powers of a State of the Federation shall be vested in the House of Assembly of the
State.
(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:-
(a) any matter not included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to this Constitution.
(b) any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(c) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.”
In Maxwell on the Interpretation of Statutes, 12th edition by P.St. J. Langan, page 4 the learned authors stated that:
“…It is now settled law that the title of the statute is an important part of the Act and may be referred to for the purpose of ascertaining its general scope, and of throwing light upon its construction.”
See Jones vs. Shervington (1908) 2 K.B. 539; Fenton vs. J. Thurley & Co. Ltd. (1903) A.C. 443 and Fisher vs. Raven (1964) A.C. 210. The learned Counsel to the appellants has not pointed out any provision under the Constitution of the Federal Republic of Nigeria, 1999 as altered that Limitation Laws to determine the time limit for actions to recover damages is within the Exclusive Legislative List so that only the National Assembly has powers to legislate upon. Section 42 of the Law (supra) defines the term “action” to include “any proceeding (other than a criminal proceeding) in a Court established by law.” The Federal High Court comes within the phrase “a court established by Law” and can apply the provisions of the Limitation Law of Akwa Ibom State contrary to the argument of the learned Counsel to the appellants. See Section(sic) of the Federal High Court Act read together with Section 249(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered.
The doctrine of “continuance of damages or injury which has not ceased” was also recognized by the Supreme Court in Attorney-General of Rivers State vs. Attorney-General of Bayelsa State & Anor (2012) 6-7 MJSC (Pt.3) 149 in which the plaintiff (Attorney-General of Rivers State) claimed in the Supreme Court from the defendant (Attorney-General of Bayelsa State and the Attorney-General of the Federation) inter alia all revenue that had accrued from Soku Oil well folds/Oil wells however arisen from the defendants on the derivative principle of revenue sharing from July, 2005. The defendant pleaded by way of objection the Public Officers Protection Act on the grounds that the action, having being instituted outside the 3 months prescribed by Section 2(a) of the Act (supra) was statute-barred. Having disclosed in extenso the situations when the Act supra would be held to apply or not, the Supreme Court drew attention to the circumstances when the Act would not apply, Galadima, JSC holding at page 181 paragraphs “A”- “G” and page 182 paragraphs “A” -“C” as follows:
“The Act is intended as much as within the limits of the law to protect a public officer from detraction and unnecessary litigation but never intended to deprive a party of legal capacity to ventilate his grievance on the face of stark injustice. That is why, where officers or heads of the Agencies of the Federation or State are protected, two most important exceptions are prescribed by the Act.
Firstly, in cases of continuance of damage or injury, the Act permits actions to be brought on the cessation thereof outside three months.
From the amended statement of claim and as equally deposed to in his counter-affidavit, the plaintiff averred that he continues to be deprived of the allocation he is entitled to every month and the same has not ceased. I am of the respected view that in such a situation of continuance of damage or injury which has not ceased, the defence is not available to the 1st defendant where such allocation of continuing damage or injury has been raised in such a situation, there is need for the trial Court to take evidence before determining the point.
In Aremo II vs. Adekanye (2004) All FWLR (Pt.224) 2113 at 2132, this Court stated the position of the law as to what constitutes “continuing damage or injury”. It is stated thus:
“Admittedly, legal principles are not always inflexible. Sometimes they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused: Battishill v. Reed (1856) 18 CB 696 at 714. For example, if the owner of mines works them and causes damage to the surface more than six years before action, and within six years of action a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resorting in injury gives a fresh cause of action.”
I hold the view that plaintiff’s action falls squarely within this exception as the damage and injury against it is a continuing one.”
From these decisions of the Supreme Court it becomes crystal clear that there may arise facts and circumstances when neither the Limitation Law (Act) or the Public Officers Protection Act (Law) may not be held to apply but this will be dependent on the nature and cause of action including the reliefs claimed by the plaintiff.
The appellants founded their action in negligence which is a tort. Section 6(3), 16 and 17(1), (2) and (3) of the Limitation Law (supra) reads as follows:
“6(3) Where any rent has subsequently been received in respect of the tenancy, the right of action shall be deemed to have accrued on the date of the last receipt of rent.
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.
17(1) This section applies, notwithstanding anything contained in any other enactment to the contrary, to actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under an enactment or independently of any contract or any such provision) where the damages claimed by the person for negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to the plaintiff or any other person.
(2) Except where the sub-section (3) of this section applies, the period of limitation applicable under section 16 in respect of actions to which this section applies shall be reckoned from:-
(a) The date on which the cause of action accrued; or
(b) The date of knowledge, (whichever is later if the person is injured).
(3) If the person injured dies before the expiration of the period mentioned in sub-section (2) of this section, the period applicable as respect the cause of action surviving for the benefit of his estate shall be five years from:-
(a) The date of death; or
(b) The date of the personal representative’s knowledge.”
The appellants founded their action on non-payment of rent. Their cause of action is deemed to have accrued on the date of the last receipt of such rent which is 1994. If the claim was founded from 1994 to the date of filing this suit on 24th September, 2010 the learned trial Judge would have been right to hold that the claim was statute-barred. If it is for general and special damages for negligence, the action ought not to be brought after the expiration of five years from the date on which the cause of action accrued, namely, 1994.
But there are statutory exceptions to the application of the Limitation Law. These are found in Section 31(1)(a)(b)(c) and (2) of the Act which reads as follows:
“(1) Subject to sub-section (4), where in the case of any action for which a period of limitation is prescribed by this Law, either:-
(a) The action is based upon the fraud of the death of the defendant; or
(b) Any fact relevant to plaintiff’s right of action has been deliberately concealed from him by the defendant; or
(c) The action is for relief from the consequences of a mistake,
the period of limitation shall not begin to run until the plaintiff has discovered the fraud concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
(2) References in sub-section (1) of this section to the defendant include reference to the defendant’s agent and to any person through whom the defendant claims as his agent.”
But the learned Counsel to the appellants referred to decisions of the Supreme Court which shows that where the damage or injury is continuous the Limitation Law would not apply. That may be true depending on the circumstances of each case. The Supreme Court has held that the Limitation Law will not apply where the defendant created, for instance, a continuing trespass in land by entering into negotiation or attempts to settle the dispute, thereby making it difficult to calculate the period the cause of action had accrued. See Obueke & Ors. vs. Nnamachi & Ors . (2012) 5-7 MJSC (Pt.2) 1 at 30; Adepoju vs. Oke (1999) 2 NWLR (Pt.594) 154 at 169; Taiwo vs. Taiwo (1958) 3 FSC 80 at 83; Oniah vs. Onyia (1999) 1 NWLR (Pt.99) 514 and Ibenewe vs. Lawal (1971) 1 All NLR 23 and Mess vs. Kenrow (Nig.) Ltd. (1992) 9 NWLR (Pt.264) 202 at 224. This will depend on the facts pleaded by the parties. The appellants, claims are not founded on trespass to their lands. They claim in paragraph 15 of the statement of claim general and special damages for adverse environmental impact, serious environmental pollution, etc. The case of Oba Aremo II vs. Adekanye (2004) 121 LRCN 4853 cited by learned Counsel to the appellants dealt with a Chieftaincy dispute which started between the year 1913-1918 till the Ondo State Government set up a Judicial Commission of Inquiry in 1979 whose report was however rejected by the Government in a White Paper in 1982. The White Paper was tendered as Exhibit “I” in a suit instituted on 11th August, 1988 at the Ondo State High Court of Justice. The suit was struck out as statute barred by the learned trial Judge. The ruling was upheld by the Court of Appeal. It was argued in the Supreme Court that the making of Exhibit “I” in 1982 constituted a fresh and distinct cause of action. The Supreme Court held at page 4873 to 4974 per Edozie, JSC as follows:
“Admittedly legal principles are not always inflexible. Sometimes they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damages is caused: Battishill vs. Reed (1856) 18 CB 696 at 714. For example, if surface more than six years before action, and within six years of action a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in inquiry gives a fresh cause of action: Darley Main Colliery co. vs. Mitchell (1886) 11 App case 127; West Leigh Colliery Co. Ltd. vs. Tunnidiffe Hanepson Ltd. (1908) AC 27: See Halsbury’s Law of England, 4th edition, Vol.28, paragraph 821. In the case in hand, it is difficult to see how the mere rejection of the recommendations of the Ajayi Judicial Commission of Inquiry in 1982 could result in inquiry giving rise to fresh cause of action. I agree with the submission of learned Counsel for the 2nd and 3rd Respondents that the foreign authorities cited by appellant’s Counsel including Darley Main Colliery vs. Mitchell (supra) are not applicable to the facts of the present case. As noted earlier on, the marking of Exhibit “I” in 1982 even if not statute barred is not actionable as it did not create any cause of action. I therefore see no merit in this arm of the preliminary objection.”
There is no pleading of the dates the respondent continued to work the oil well after 1994 and what damage had been caused to the appellants. But the appellants pleaded from paragraphs 5v to 9(i) and (ii) of the statement of claim that between the year 2006- 2007 oil spillages occurred causing damages and this was reported to the respondent but they did nothing. In that case fresh cause of action arose from the year 2006 before the institution of this suit on 24th day of September, 2010. This is less than five years. Each oil spillage that has caused environmental pollution or injury resulting into damages within the Limitation period of five years constitutes a fresh and actionable cause of action. The appellants’ learned Counsel further referred to Nze Bernard Chigbu vs. Tonimas Nigeria Ltd. & Ors. (2006) 4 SC (Pt.2) 186, a case founded on detinue. The law on detinue is set out by Ogundare, JSC at page 197 as follows:
“I think that the court below was right in its conclusion as to plaintiff’s claims (a), (b) and (e). The Court below however failed to see that claims (c) and (d) were reliefs founded in the tort of detinue. For as long as a person detains the chattels of another against the will of the owner, an action in detinue will lie against the person wrongfully detaining the chattels. It is an essential prerequisite that there be a demand by the owner followed by a refusal from the person detaining the chattels to constitute an action in detinue. At the time the defendants brought their application to dismiss or strike out plaintiff’s suit, a statement of claim had not been filed by the plaintiff. It was not therefore shown when a demand followed by a refusal was made. It is possible these were done within the 5 years limit allowed under the Limitation Edict of 1994. The result is that the defendants’ objections in respect of claims (c) and (d) were premature.”
In Gulf Oil Co. (Nig.) Ltd. vs. Oluba (2002) 12 NWLR (Pt.780) 92 the action was to recover certain sums of money by virtue of the Petroleum Decree, 1969. It was commonly agreed that the cause of action arose in 1973. The appellant had been carrying on oil exploration on the respondent’s land till the time the suit was filed on 18th day of April, 1986. It was argued before the trial Court and the Appeal Court that the suit was not statute barred because it was a claim founded on continuous permanent injury to the land. In rejecting the argument the Court of Appeal held at page 112-113 as follows:
“This is so because the tort complained of by the respondents in paragraph 3 (above) is that of a permanent damage for which the respondents sought compensation from the sum of N640,000.00 (Six hundred and forty thousand naira). In effect, the concept of “permanent damage” does not admit of continuity as it is a once and for all act. It would have been a different matter if it is a case of continuing nuisance or trespass where successive actions can be instituted from time to time in its continuance thereby ousting any one particular date for the cause of action to accrue. See Thompson vs. Gibson (1841) (151) E.R. Exch. 845; Hudson vs. Nicholson (1839) 151 E.R. Exch.185 and Adepoju vs. Oke (1999) 3 NWLR (Pt.594) 154 at 163. The language of Section 4(1) of the Limitation Law is clear and unambiguous and does not admit of any extraneous factor to know its scope in this class of damage. It talks about, inter alia “actions founded on tort” and not a continuing action founded on tort. In the instant case, there was no need for the learned trial Judge to look outside the writ of summons and the statement of claim to determine when the cause of action accrued.
It is common ground that the wrong or permanent damage complained of by the respondents started in 1973 and continued until 12th day of July, 1989 when the appellant filed its statement of defence. It is natural that the damage will remain the same as when it was caused because it is permanent. It is common sense to say what has a continuation must surely have a beginning. In the instant case, the beginning of the permanent damage was 1973 when undoubtedly the cause of action arose. It appears from the submissions of the learned Counsel for the respondents that because the tort committed by the appellant is a continuing one, it is bereft of the date of accrual. This cannot be so. It is settled law that in an action in tort, the limitation of the action runs from the date of its commission. It is immaterial to the date when the cause of action accrued that the effect of the complainant’s injury or wrong continues ad infinitum. Such continuation will only enhance the quantum of damages: See Sanda vs. Kukawa Local Government (1991) 2 NWLR (Pt.174) 379 at 391. It is also trite that where the law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period. In the instant case, the cause of accrued sometime in 1973 and the writ of summons was filed on 18th April, 1986. The time lag between those two dates is thirteen years. Section 4(1)(a) of the Limitation Law provides that in action founded on tort, the aggrieved party shall not bring an action after the expiration of six years. Since the respondents brought their action against the appellant thirteen years after the cause of action had accrued that action is statute-barred. Issue 1 is accordingly answered in the negative.”
Counsel next cited the authority of the Administrators/Executors of the Estate of General Sani Abacha (Deceased) vs. Samuel David Eke-Spiff & Ors. (2009) 171 LRCN 43 in the reply brief. In that case the respondent sought to recover plot 228 Diobis GRA, Phase II supported by a Certificate of Occupancy registered as No.78 at page 78 in Volume 25 of the Land Registry in Port Harcourt but which had been revoked in favour of the late General Sani Abacha. The respondent pleaded that the revocation was hidden from him and, besides, he had been down with stroke. The appellants pleaded the Rivers State Limitation Edict, 1988 by way of defence. The learned trial Judge found that the revocation was without notice to the respondent hence the Edict did not apply. The Court of Appeal, by a majority, dismissed the appeal; the minority allowed the appeal. In the Supreme Court, Aderemi, JSC, held at page 75-77 as follows:
“Referring to sub-section (4) quoted supra, I repeat, the revocation was not carried out in the overall interest of the public. What is more, no notice of revocation was sent to the 1st plaintiff/respondent; they (1st and 2nd defendants) have also breached the provisions of sub-section (6). Failure to serve on the 1st plaintiff/respondent the notice of revocation smacks of some fraud. Let me say it loud, it is not only unconscionable to take away a piece of land already allocated and now re-allocate same to someone else without serving a notice of revocation on the earlier allottee and not paying that person compensation, it is also very unlawful and unconstitutional to so do. The Court always has an undoubted jurisdiction to relief against every species of fraud. The fraud here is an unconscientious use of the power arising from the circumstance or condition of the parties. The 1st plaintiff, a former Permanent secretary of the Government of Rivers State had since retired, no longer at the corridor of power. The person to whom the plot was later re-allocated was a weighty man of authority. It was also submitted that the present action is statute-barred. Faced with the facts of this case as presented supra can the statute of Limitation apply where the person to be affected has been fraudulently denied the opportunity to react simultaneously? It will be most unconscionable to allow the provisions of State of Limitation to apply in a situation such as this where the 1st plaintiff – the allottee, was fraudulently denied the service of notice of revocation and more importantly where his application for building approval was never attended to. If is those who denied him all these, that now want to reap the fruit of their fraudulent misdeeds. Whatever pact that might be between the 1st and 2nd defendants and the non-existent 3rd defendant is loaded with malicious intent and no Court will even uphold any pact made from malicious intent. Any wrongful act tending to the damage of another must not receive support in the seat of justice. And no one shall be allowed to benefit from his own wrong doing; the maxim is “Ex Turpi Causa Non Ortur Actio.” See Onyiuke vs. Okeke (1976) 1 NMLR 285. It is true that Section 1 of the Limitation Edict, 1988 of Rivers State forbids the bringing of an action in Court for the recovery of land after the expiration of ten years from the date in which the right of action accrued to him. However Section 31(5)(a) and (b) of the same Edict provides for the postponement of limitation period in case of fraud, concealment or mistakes. It provides:
“Subject to Section (E4) where in the case of any action for which a period of Limitation is prescribed by the Edict either:
(a) The action is based upon the fraud of the defendant; or
(b) Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendants.”
The saying is that, no prescription runs against a person who was hindered in bringing a Court action.”
The authority of CNB vs. Amao (2011) All FWLR (Pt.558) 806 at 872 is also authority that the Public Officers Protection Law will not apply to the payment of a debt because the cause of action continues everyday the debt remains unpaid. In my humble view, the appellants have succeeded in showing from their pleadings that while they cannot claim relief from 1994 when the respondent abandoned the well and would no longer pay rent to them, for each damage that is caused within or during the limitation period from the year 2006 to the date this suit was instituted namely, 24th September, 2010, claim is not statute barred. Exhibit “G1” (page 89-91) particularly at page 90 reads as follows.
“On Saturday 26th August, 2006 women farming near the abandoned oil well ran to the house of one of the landlords Chief Sunday Inyang and made a report of heavy the abandoned well, Chief Sunday Inyang alerted other neighbours and moved to the site of the well only to notice that a black liquid was oozing out from the equipment covering the well. The black liquid which was later found out to be crude oil filled the compartment housing the equipment and well. Since then the black liquid has been leaking from the equipment along with gas emission which is sending offensive odour to households near the oil well.
We are particularly demanding the Honourable Commissioner, Akwa Ibom State Ministry of Environment to visit the site of the oil spillage to see things for himself which will provide enough evidence to use his good office and wealth of experience to compel the Shell Petroleum Development Company of Nigeria Limited, as a matter of right based on the provisions of the State, National and International Environmental and Human Rights Instruments as well as other aspect of law and also in the interest of natural justice, fair-play and equity, that SPDC Nigeria Ltd. to urgently visit the community to stop the spills and remediate the impacted sites and make other settlements arising from the oil spillages.
We believe that as a seasoned, well experienced and world renowned oil exploration and Production Company with professionals in different fields including environmental, SPDC is very conversant with the detrimental effect of abandoned and unprotected oil well on the lives of people of host/catchments communities. This cuts across all forms of environmental pollution due to oil spills and gas emission from the abandoned well and resulting in adverse environmental health, social and economic condition of the people of the affected communities.
We hope that Ministry of Environment will make spirited effort to confirm all these allegations and act accordingly to save the ugly situation from generating into community unrests and lost of lives.
For and on behalf of Landlords and the people of the affected communities.”
The learned trial Judge erred to have ruled at page 234-237 of the printed record as follows:
“Both parties agree that payment of rent to plaintiffs stopped in 1994.
In my humble view that is when plaintiffs aware of damage and the cause of action in this suit arose. I so hold. Cause of action has been defined in a plethora case of law as, “every fact which it would be necessary for plaintiff to prove, to support his right to the judgment of the Court or a factual situation the existence of which entitles one person to obtain from the Court a remedy against the other person”. Or the facts which constitute the essential ingredients of an enforceable right or claim.”
The facts which constituted the essential ingredients of an enforceable right by the plaintiff in present suit is among others the stoppage of payment of rents in 1994 not 1955 as claimed by plaintiff.
Section 16 of Limitation Law of Akwa Ibom State provides thus:
“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 5 years from date cause of action accrued.”
The Respondents’ Counsel alleged fraud and concealment of important information as to the state of the abandoned oil wells and cites Section 31 of the Limitation Law of Akwa Ibom State, which provides thus:
“Subject to the sub-section four wherein the case of any action for which a period of limitation is prescribed by this law, either:-
(a) The action is based upon the fraud of the defendant; or
(b) Any fact relevant to plaintiff’s right of action has been deliberately concealed from him by the defendant; or
(c) The action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud concealment or mistake or could with reasonable diligence have discovered it.”
He alleges that the law on limitation of action recognizes some exceptions and cites Aremo vs. Adekanye (2004) 121 LRCN page 4853 at 4859 where it was held thus:
“The law on limitation of action recognizes some exceptions. Thus where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused. For example, if the owners of the mines work them and cause damage to the surface more than six years before action and within six years of action a fresh subsidence causing damage occurs without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in injury gives a fresh cause of action.”
In paragraph 4 of the Amended Statement of Claim, plaintiffs aver thus:
“The plaintiffs aver further that after a short period of oil prospecting, oil exploration and oil drilling at the said Ikono 1 oil drilling site the defendant corked the said oil well and abandoned its operation including the well…”
The plaintiffs did not state duration of oil prospecting, oil drilling and oil exploration for the exception clause to avail them. Date, time, etc, are essential ingredients of the limitation clause.
Learned Counsel also referred Court to case of Osadebay v. AG Bendel State (1991) 1 NWLR page 548 where Bello, CJN (Rtd) of blessed memory held thus:
“A State Legislature can only legislate on items which are not reserved for the exclusive competence of the Federal Legislature…”
Learned Counsel did not refer Court to the Federal Legislation in respect of the subject matter. Mere assertion cannot subsist. The two legislations must be before Court for proper interpretation. Having failed to refer Court to the Federal Legislation on this issue, this leg of objection also fails.
From this I am of the view that the damages has been continuous since exploration, drilling, etc, and so we are left with the issue of cause of action accruing in 1994 when defendant stopped paying the plaintiffs’ rent and plaintiffs became aware of the damages caused.
In determining whether a cause of action is statute barred, the court looks at the writ of summons and statement of claim alleging when the wrong which gave the plaintiffs a cause of action was committed and compare that date with the date on which the writ of summons was filed. If the writ of summons is filed after the period allowed therefore by the Limitation Law, the action is statute barred.
In the instant case, the cause of action accrued in 1994 when defendants stopped paying rent to the plaintiffs and damages to soil noticed while present suit was filed on 24th day of September, 2010. The time which has lapsed after the accrual of cause of action is beyond the statutory period of five years as stipulated by section 16 of the Limitation Law of Akwa Ibom State.
In the circumstances, I hold that plaintiffs, action is statute barred.
The effect of statute barred action is that where the period laid down by a Limitation Law for bringing an action lapses, a plaintiff losses the right to enforce that cause of action.
Having held that suit is statute barred there is no need going into the 2nd issue as raised.
Finally, I hold that the Notice of Preliminary Objection succeeds, No order as to cost.”
All essential and material facts must be pleaded. See Atolagbe vs. Shorun (1985) 1 NWLR (Pt.2) 360; Attorney-General of Anambra State vs. Onuselugu Enterprises Ltd. (1987) 4 NWLR (Pt.66) 547. The facts and circumstances of a case determines the authorities a Counsel or a party may cite in support of his argument. See Adegoke Motors Nigeria Ltd. vs. Adesanya (1989) 3 NWLR (Pt.109) 250 at 265. None of the authorities cited by learned Counsel to the respondent in argument, namely, Fadare vs. Attorney-General, Oyo State (1982) 4 SC; Eboigbe vs. NNPC (1994) 5 NWLR (Pt.347) 649; Oke vs. Oke (2006) 17 NWLR (Pt.1008) 224:. Abakaliki Local Government Council vs. Abakili Rice Mills (1990) 6 NWLR (Pt.155) 182; Total Nig. Ltd. vs. Ajayi (2004) 2 NWLR (Pt.860) 303 and Adeogun vs. Ekurin (2003) 2 NWLR (Pt.856) 52 have no application to the peculiar facts of this case.
The claim from the year 2006 is not statute-barred; the damage from that date is continuous. The appeal is allowed. The suit is remitted to the Court below for hearing and determination by another learned Judge of the Federal High Court.
On the whole this appeal is allowed with N50,000.00 cost to the appellants.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA. I agree with his reasoning and conclusions. I have nothing more to add. This appeal is therefore allowed. I abide by the order as to costs.
ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Joseph Tine Tur JCA. I am in agreement with his reasoning and conclusion, and will only make few comments in support.
The statutes that prescribed periods for instituting certain actions and regulating the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of that prescribed period: the action is then said to be statute barred. 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: Eboige v. N.N.P.C. (1994) 5 NWLR (Pt.347) 649: Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637: Sanda v. Kukawe Local Government (1991) 2 NWLR (Pt.174) 379: Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) 258.
It is therefore always necessary, whenever there is a limitation set by statute, to ascertain the exact date on which the cause of action arose. An action commenced after expiration of the period, within which an action must be brought, as stipulated in statute of limitation, is not maintainable. Therefore legal proceedings cannot be properly or validly instituted after the expiration of the prescribed limitation period. A statute of limitation 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 (1987) 1 NWLR (Pt.47) 1: EKEOGU VS. ALIRI (1991) 3 NWLR (Pt. 179) 258.
Thus, where an action is statute-barred a claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the limitation Law for instituting such an action has elapsed. See: ODUBEKO VS FOWLER (1993) 7 NWLR (Pt. 308) 637: EBOIGBE VS NNPC (1994) 5 NWLR (Pt .347) 649.
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 claimant o 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 the case of EGBE VS. ADEFARASIN (supra) at pg. 20-21.
There are some exceptions to the limitation law set by various limitation statutes. These statutory limitations cover cases such as fraud, deliberate concealment by the defendant, or mistake. There are also other circumstances which amount to exceptions to the limitation law. These include circumstances where there is a continuing injury or fresh damage arising from the same injury. Each fresh damage arising from the same injury or a continuing injury, gives rise to a fresh cause of action. In AREMO II VS ADEKANYE (2004)ALL FWLR (PT 224) 2113 at 2132 – 2133 the Supreme Court per Edozie JSC said:
“Admittedly legal principles are not always inflexible. Sometime they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused: Batfishill v. Reed (1856) 18 CB 696 at 714. For example, if the owner of mine works them and causes damage to the surface more than six years before action, and within six years of action a fresh subsidence causing damage occurs, without any fresh working by the owner, an action in respect of the fresh damage is not barred as the fresh subsidence resulting in inquiry gives a fresh cause of action: Darley Main Colliery Co. v. Mitchell (1886) 11 App Cas 127: West Leigh Colliery Co. Ltd v Tunnidiffe Hanepson Ltd (1908) AC.27: See Halsbury’s Laws of England 4th Edition vol. 28, paragraph 821.”
I completely agree with my learned Brother in the lead Judgment that:
“Each oil spillage that has caused environmental pollution or injury resulting into damages within the Limitation period of five years constitutes a fresh and actionable cause of action.”
For these and for the more comprehensive reasons given in the lead Judgment, I also allow the appeal. I abide by the orders made in the lead Judgment, including the order as to costs.
Appearances
Dr. E.J. Uko with Felix Udom, Esq.For Appellant
AND
U.N. Ngwobia, Esq.For Respondent
