FLOGRET LIMITED & ANOR v. THE MV DONGXIN 8 & ORS
(2018)LCN/11116(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of March, 2018
RATIO
WHEN AN ACTION BECOMES STATUTE-BARRED
It is beyond dispute that when an action becomes statute barred, the plaintiff who might have had a cause of action loses the right to enforce same by judicial process because the time prescribed by statute for the institution of action has elapsed. per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)
The suit leading to this appeal was commenced by the Appellants vide a Writ of Summons dated and filed 25th July, 2008, seeking the following reliefs:
(i) N48,831,724.80 (Forty-Eight Million, Eight Hundred and Thirty One Thousand Seven Hundred and Twenty-Four Naira Eighty Kobo) only, being the cost of the damaged cargo/settlement paid to the 1st Plaintiff by the 2nd Plaintiff, under the Insurance Policy No.64200160207500.
(ii) General damages in the sum of N2,000,000.00 (Two Million Naira).
(iii) Cost of this action
(iv) Interest on the above sum at the rate of 30% per annum from the date of issuance of Writ of Summons, until Judgment and thereafter at the prevailing bank rate until entire judgment is liquidated.
As the Appellants narrated in their Brief of Argument, on 2nd February, 2009, Counsel to the Appellants, purportedly withdrew the 1st to 5th Respondents from the suit at the trial Court. The Appellants subsequently brought an application to join the parties by re-listing them as 1st to 5th Defendants and same was granted by AJAKAIYE, J. (Rtd) vide a Ruling delivered on 14th January, 2010. Thereafter, vide an Application dated 18th May, 2012, the Respondents sought inter alia an order of Court dismissing the Appellants’ claim against the 1st to 5th Respondents for being statute-barred. Ruling was then delivered on 13th July, 2012 in favour of the 1st to 5th Respondents and it is against this Ruling that the Appellants have appealed against through a Notice of Appeal dated 14th August, 2012.
In compliance with the Rules of the Court, the Appellants filed their Brief of Argument dated 7th July, 2015 and filed 8th July, 2015 but deemed 28th October, 2015, wherein two issues for determination were formulated thus:
1.Whether the learned trial Judge had not erred in law by holding that the ruling of Hon. Justice A. O. Ajakaiye, delivered on 14th January, 2010 did not decide on the issue of statute bar raised by the Respondents herein.
2. Whether the lower Court (coram AJoku J.) erred in law and misdirected itself when it held that the suit of Plaintiffs (Appellants herein) is statute barred against the 1st to 5th Defendants, when a competent suit was pending before it and without considering the entire circumstances of the suit.
On the other hand, the Respondents’ Brief of Argument is dated and filed 1st March, 2016 but deemed 26th January, 2016. Two issues were also formulated as follows:
1. “Whether the learned trial Judge was right in holding that the issue of statute bar had not been decided by the decision of Ajakaiye J., of 14th January 2010.
2. Whether the learned trial judge was right in deciding that the suit at the lower Court was statute barred against the 1st – 5th Respondents.”
The Respondents have however filed a Notice of Preliminary objection dated 1st March, 2016 on the grounds:
1. That Ground 2 of the Appellants’ Notice of Appeal alleges both misdirection and error in law.
2. That Ground 2 of the Appellant’s Notice of Appeal is incompetent and should be struck out.
Before I dwell on the arguments canvassed by the learned counsel on the objection raised by the Respondents, I must not fail to comment on the competency or otherwise of the preliminary objection. Now, it is indisputably obvious that the Respondents’ objection only relates to one of the grounds contained in the Notice of Appeal and is not a challenge to the competency of all the grounds. Needless to say that where a Respondent is challenging a specific ground or grounds of appeal, that can only be competently raised by a motion on notice, praying for the striking out of such ground(s) of appeal, as done in the instant case. See NNPC & ANOR v FAMFA OIL NIG. LTD [2012] 17 NWLR (PT 1328) 148; AKACHUKWU & ORS v OKOLI & ORS (2017) LPELR 42740 (CA). The purpose and effect of a successful preliminary objection is to terminate the proceedings before the Court, but an attack on a specific ground of appeal does not necessarily render the notice of appeal and terminate the proceedings. In ODUNUKWE v OFOMATA & ANOR [2010] 18 NWLR (PT 1225) 404 SC; (2010) LPELR 2250 (SC) at 12, paras A – F, the Apex Court, per RHODES-VIVOUR, JSC held that “a preliminary objection is filed only when the respondent is satisfied that there is some fundamental defect in the appellants process. The sole purpose being to terminate the appeal usually on grounds of incompetence” Thus in UWAZURIKE & ORS v A.G., FEDERATION [2007] LPELR 3448 (SC), the Supreme Court, per OGBUAGU, JSC held that “where a preliminary objection to an appeal succeeds, there would no need to go further to consider arguments in support of the issues for determination…” See also ADELEKAN v ECU-LINE NV [2006] 12 NWLR (PT 993) 33. In the instant case, the Respondents’ preliminary objection fails to comply with the provision of Order…. Rule … and its success will not terminate this appeal. The Respondent has not come by the right procedure and cannot be heard on the objection raise. The objection is in my considered view, incompetent and is hereby struck out.
Having declared the preliminary objection incompetent, the coast is cleared for the consideration and determination of the substantive appeal. I shall in this respects consider the arguments canvassed by the respective counsel in respect of the two similar issues formulated.
ISSUE ONE
Appellants’ counsel noted that the lower Court held that the Ruling of AJAKAIYE, J., did not decide on the issue of statute bar raised by the Respondents herein, arguing that a Court is bound to consider any issue raised by a party in a suit. Relying on extract of the Ruling of AJAKAIYE, J., counsel noted that the learned judge dealt with the issue of statute bar which was raised by the Respondents and argued by counsel. He submitted further that once an issue is decided upon by a Court, the Court becomes functus officio in respect of the particular issue and the only option open is for the aggrieved party to appeal against such a decision relying on OGUNWUSI v ELUSOJI (2003)37 WRN 34 at 38 to 39; OYEKOLA v AJIBADE [2004] 32 WRN 134:, OYEROGBA v. OLAOPA [1998] 13 NWLR (PT 583) 512; N.I.M.B v U.B.N. LTD (2004) WRN 121 at 129.
Responding on the doctrine of issue estoppel, Respondents’ counsel relied on BWACHA v IKENYA & ORS (2011) 3 NWLR (PT 1235) 610; the Ruling of AJAKAIYE, J. at pages 339 to 340 of the record of appeal to submit that the issue of statute bar against the 1st to 5th Respondents was not resolved or determined with certainty by AJAKAIYE, J. Learned counsel noted that the pronouncements of AJAKAIYE, J. can be summarized into two statement vis that the 1st to 5th Respondents can be joined to the suit, as the suit itself is not said to be statute barred; and after the joinder, the issue of statute bar of the 1st to 5th Respondents should be raised.
Counsel noted that there is a difference between statute bar of the 1st to 5th Respondents and statute bar of the suit itself; that the ruling of AJAKAIYE, J, made no pronouncement on the statute bar or otherwise of the 1st to 5th Respondents but merely stated that the “substantive suit is basically not statute barred” since the presence of the 6th Respondent can sustain the continuation of the substantive suit irrespective of the status of the 1st to 5th Respondents. He concluded that the issue of statute bar of the 1st to 5th Respondent was not resolved and determined with certainty by AKAKAIYE, J.
RESOLUTION
It is beyond dispute that a judge cannot sit on appeal over the decision of another judge of the Court or of another judge of concurrent or co-ordinate jurisdiction. Once an issue or dispute is determined by a Court, the only option open to a party, in the absence of express provision granting the Court to set aside or vary its own orders, is to appeal against such decision. See SKEN CONSULT v UKEY (1981) 1 SC 6; UTUK v THE OFFICIAL LIQUIDATOR, (UTUKS CONSTRUCTION AND MARKETING COMPANY LTD & ANOR) (2008) LPELR – 4323 (CA); IGWE & ORS v KALU & ORS [2002] 7 SC (PT.III) 236; DINGYADI & ANOR v INEC (No.1) [2010] 18 NWLR (PT.1223) 1.
Here, the contention of the Appellants is that the issue of the claim against the 1st to 5th Respondents being statute barred, has been considered by the lower Court in the earlier Ruling delivered by AJAKAIYE, J. on 14th, January, 2010 and same cannot be competently re-considered and re-determined by the same Court, coram AJOKU, J., in the subsequent Ruling of 12th July, 2012 as done in the instant case, thereby sitting on appeal on the Ruling of another judge of the same Court. The agitation of the Appellants thus falls within a narrow compass, which will be resolved by looking at the pronouncement of AJAKAIYE, J. on the issue of statute bar, wherein the learned judge held at pages 339 to 340 thus:
“I have gone through the affidavits exchanged by the parties as well as the written submissions of Counsel to the parties. The complaint of the Counsel for the parties sought to be joined is that by the time the parties are joined, the suit must have become statute-barred as far as they are concerned. It is my view that if they are necessary parties (which has not been denied), they need to be joined first and thereafter the issue of statute of limitation can be raised. Secondly, I seem to agree with the submission of Learned Plaintiffs Counsel, in the reply address on point of law, that since the substantive suit is basically not statute-barred, other necessary parties can be joined as Co-Defendants by the order of Court. This is because the rule allows for joinder of parties after filing of a suit. I agree with that line of submission.
I hold that the issue of defence of statute of limitation can only be canvassed after all the parties are properly before the Court. I also hold that since the suit as originally filed is not said to be statute-barred, subsequent joinder of other parties will not render it so….”
Having had the benefit of reading through the reasoning and conclusion above, I am left with no choice than to say that the Appellants’ argument that the issue of statute bar, as it relates to the present case, was considered and determined by AJAKAIYE, J. Beyond imagination, it is obvious that the learned judge did not consider with certainty the issue of statute of limitation raised by the 1st to 5th Respondents while opposing the application by the Appellants to join them as parties. Rather, the learned trial judge merely and rightly, in my considered opinion held that the issue of the claim against the 1st to 5th Respondents being statute barred can only be canvassed and considered by the Court after the 1st to 5th Respondents, who are necessary parties, are joined as parties to the suit.
At any rate, it would have been illogical for the issue of statute bar raised by the 1st to 5th Respondents to have been considered at that stage before they are made parties. From all indication, there is nothing on record from the Ruling of the Court suggesting that the issue of statute bar was considered and determined as reference was only made by the learned judge to the fact that since it is not the contention of the 1st to 5th Respondents that the substantive suit is statute barred, they can be joined as parties and thereafter raise the issue of statue bar, as done herein.
It is therefore contrary to sound reasoning to expect this Court to hold the issue of statute bar was decided upon by AJAKAIYE, J. when the decision clearly shows the learned judge stating that it is premature for same to be considered at that stage and directing that the issue can only be determined after the 1st to 5th Respondents are joined as parties to the suit. As a result, I agree with the Respondents’ learned counsel that though the issue of limitation of action against the 1st to 5th Respondents was canvassed by them, same was not resolved or determined by AJAKAIYE, J. in his Ruling. The Respondents are therefore not estopped from subsequently raising the issue after they were joined as parties before AJOKU, J. This issue is resolved in the Respondents’ favour.
ISSUE TWO
Submitting that every case is decided on its peculiar facts and circumstances, learned Appellants’ counsel noted that the suit was filed within time. Counsel argued that to determine when time begins to run for the purposes of the limitation law, it is the date of accrual of the cause of action giving rise to the Plaintiffs claim that is compared with the date of filing the Writ of Summons and Statement of Claim and considered by the Court citing FRANCIS OFILI v CIVIL SERVICE COMMISSION (2007) 42 WRN 37 (CA); CENTRAL BANK OF NIGERIA v JACOB OLADELE AMAO [2007] WRN 34.
Counsel contends that AJOKU, J. erred when he held that the suit is statute barred as against the 1st to 5th Respondents only; that a suit having six defendants cannot be statute barred against five of the Respondents and yet be competent against the 6th Respondent, submitting further that the suit was filed within time at the lower Court and remains competent throughout its pendency relying on KAYCEE NIGERIA LIMITED v PROMPT SHIPPING CORP. & ANOR [1986] 1 NWLR (PT 15) 180.
It is also the Appellants’ submission that a Court can suo motu order at any stage of a proceeding that a party who ought to have been joined or whose presence before the Court is necessary to enable the Court effectively and completely settle all the questions in a suit to be joined citing ODUOLA & ORS v COKER & ORS (1981) 5 SC (Reprint) 120 at 134 to 135, paras 26 to 30. That the 1st to 5th Respondents were originally parties to the suit but their names inadvertently struck out and the Appellants without delay brought an application to relist them and should not be taken as if they are sought to be joined for the first time.
In response, it is the submission of the Respondents that where there is a joinder of a party, the action is considered commenced against that party on the day of the order of joinder relying on OMEH v OKORO [1999] 8 NWLR (PT.615) 356 at 372, para D; BENSON IGE v BABAJIDE v. FARINDE [1994] 7 NWLR (PT 354) 42; ISA MALLAM v WAKILI MAIRIGA [1991) 5 NWLR (PT 189) 114 at 118; UKU v OKUMAGBA (1974) 3 SC 35; OJO v AWE (1962) WNLR 254. Conceding that the lower Court has the power to order the joinder of necessary parties, learned counsel submits that upon such joinder, the action against the party will be deemed to have commenced on the day of the order of joinder, which was made herein, after the one year limitation period.
Learned counsel noted that the decision in KAYCEE (supra) relied upon by the Appellant is misconceived, as the case had nothing to do with the individual Respondents but dealt instead with the different heads of claim in the suit and which limitation periods were applicable to each of them. That the Appellants are not challenging the propriety of the one year limitation period and its applicability to this case. It is the further submission of counsel that no power of “re-joining” a party exists in the rules of any Court before referring to EMESIM v NWACHUKWU [1999] 3 NWLR (PT.596) 590.
RESOLUTION
It is beyond dispute that when an action becomes statute barred, the plaintiff who might have had a cause of action loses the right to enforce same by judicial process because the time prescribed by statute for the institution of action has elapsed. See HASSAN v. ALIYU & ORS [2010] 17 NWLR (PT.1223) 547 SC; (2010) LPELR – 1357 (SC) where ADEKEYE, JSC held:
“… An action commenced after the expiration of the statutory period within which an action must be brought is not maintainable. In other words, when a statute of limitation prescribes a period within which an action must be initiated, legal proceedings cannot be properly and validly instituted after the expiration of the prescribed period. Any such action instituted must be struck out as not being properly instituted before the Court See also EBOIGBE v NNPC [1994] 6 SCNJ 71; NPA PLC v LOTUS PLASTICS LIMITED & ANOR [2005] 19 NWLR (PT.959) 158. Evidently, limitation law removes the right of action of a plaintiff to seek redress in respect of a cause of action. See ARAKA v. EJEAGWU [2000] 12 SC (PT 1) 99, the Apex Court, per IGUH, JSC held:
“It is a basic principle of law that a Limitation Law or Act removes the right of action, the right of enforcement and the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce if such cause of action is statute-barred. Accordingly, where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the time prescribed by such a statute…
Needless to say that the limitation period is determinable by ascertaining the alleged date of the wrong which gave rise to the Plaintiff’s cause of action and comparing it with the date on which the writ of Summons and Statement of Claim was filed. See WOHEREM v. EMEREUWA [2004] 13 NWLR (PT.890) 398; WILLIAMS v WILLIAMS [2008] 10 NWLR (PT.1095) 364. It is important to however note that the controversy in the instant appeal stem from the issue relating to whether the Appellants’ cause of action is statute barred against the 1st to 5th Respondents, who were joined as parties by the Court?
Now, from the arguments canvassed by the respective counsel, I noticed that the Appellants are not seriously contending or challenging the decision of the learned trial judge that the Hague Rules contained in the International Convention for the Unification of certain Rules relating to Bill of Laden of 1924, is applicable to the instant case. As the records shows, the Rules provides that an action as the one begun at the lower Court must be commenced within one year the cause of action arose. It is on this score that the learned trial judge held at pages 432 to 433 of the record of appeal thus:
“The point must be made that the dispute which gave rise to this action is an international carriage of goods by sea. It therefore means that the Hague Rules or a corresponding National Legislation that governs International carriage of goods by sea is the law ought to apply. It will be preposterous for anyone to contend that a statute or legislation on a local National Contract like the State limitation law in Nigeria will be made to apply to an International contract of carriage of goods by sea. It should also be noted that although in contract generally, parties are free to agree on the law that will govern their contract and in the instant case parties in their Bill of Lading have incorporated both the Hague Rules and the Hague Visby Rules into their agreement and there is nothing to show that parties contemplated a local limitation law for instance that of Kaduna, Lagos etc. to apply or to govern their contract.
From the above analysis, I find as a fact that the Parties in this suit intended and indeed agreed that either the Hague Rules, the Hague Visby Rules or the Merchant Shipping Act 2007 will apply to govern their transaction in the instant case. Hence, since there is no provision in the Merchant Shipping Act 2007 that deals with limitation of action, it means that the Hague Rules will apply, see Clause (a), (b), (c) Bill of Lading already reproduced. By the Hague Rules an action must be brought within a particular period.
The 1st to 5th defendants in the instant case were joined by an order of Court on the 14th day of January, 2010. It is trite that the time of limitation will start from the date the defendants were joined as parties to the suit. On close examination of the writ of summons and statement of claim of the Plaintiffs, the cause of action accrued on or about the 7th – 10th June 2007 when the Plaintiffs alleged that the vessel carrying their goods developed some mechanical problems leadings to the damages of the cargo on board the vessel – See the particulars of Negligence in the Plaintiffs Statement of Claim – dated the 24/7/2007. From the 7th/10th June 2007 to the 14/1/2010 when the defendants were joined as parties to the suit, it is clearly a period of more than the limitation period of 1 year. It follows that the Plaintiffs’ action is clearly statute barred”
I agree with the sound reasoning expressed and conclusion reached by the learned trial judge. As the Respondents’ counsel rightly noted, an action is taken or deemed to have been commenced by the Plaintiff against a Defendant (subsequently joined) on the date the person was joined as a party. In as much as the present suit is to be taken to have been commenced against the original defendant, the 6th Respondent, on the date the Writ of Summons and Statement of Claim naming it as defendant, was filed, it accords with sound reasoning to hold the view that where there is a joinder of a party, the action can only be said to have been commenced against that party on the day the order of joinder was made by the Court. See OMEH v OKORO & ORS (supra); IGE & ORS v. FARINDE & ORS (supra). In the instant case, it is undisputed that the present action against the 1st to 5th Respondents was commenced after the limitation period of one year had lapse. Thus, the only conclusion this Court is bound to reach is that, as against the 1st to 5th Respondents, the Appellants’ action is statute barred.
I must say that the argument by the Appellants’ counsel that it is impossible for the present action to be statute barred and incompetent against the 1st to 5th Respondents and at the time same time competent against the 6th Respondent is misconceived. It will be illogical to assume and conclude, as the Appellants’ counsel has urged that since the action was commenced within the period of limitation against the 6th Respondent, it suffices to say that the action against the 1st to 5th Respondents, who were subsequently joined as Defendant is not statute barred. This argument is obviously flawed having regard to the fact that the rationale for limitation law is inter alia to avoid situation whereby a Plaintiff will pursue long dormant claim against the Defendant who may have lost evidence to disprove such stale claim. It suffices therefore that if a party is not joined as a party to a suit within the time prescribed by statute, any claim by the Plaintiff will be regarded as stale, and it will be unconscionable to allow the Plaintiff to pursue same in Court against the defendant. See AREMO II v ADEKANYE & ORS [2004] 13 NWLR (PT 891) 572.
As a result, I have no hesitation in reaching the conclusion,as the trial Court as done, that the Appellants’ claim against the 1st to 5th Respondents herein is statute barred. This issue is therefore resolved in the Respondents’ favour.
In the end, I find the Appellants’ appeal to be unmeritorious and is hereby dismissed. The decision of the Federal High Court, coram AJOKU, J., contained in the Ruling delivered on 13th July,2012 is hereby affirmed. Costs of N100,000.00 is awarded in the Respondents’ favour.
MOHAMMED LAWAL GARBA, J.C.A.: I agree with the lead judgement of my learned brother Abimbola Osarugue Obaseki-Adejumo, JCA, that from the facts of the Appellant’s case, it is clearly statute barred against the 1st – 5th Respondents who were joined and made parties thereto, three (3) years after the accrual of the cause of action in 2007. For the purposes of the limitation period, the action was commenced against the 1st – 5th Respondents on the 14th of January, 2010 when they were joined as parties to the suit and it was already dead on arrival for being commenced after the expiration of the period limited for its initiation or commencement. Ibeto Cement Company Limited v. Attorney General of the Federation (2008) NWLR (1069) 470, U.A.C. Nigeria Limited v. Global Transporte S.A. (1996) 5 NWLR (448) 291. Bank of the North v. Saleh (1999) 9 NWLR (618) 331.
The appeal is dismissed by me too and the decision by the Lower Court affirmed for reasons set out in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., which I had the advantage of reading in draft.
Appearances
J. C. Anishere (Mrs) with him, E. Eteghara and Lemea WayinFor Appellant
AND
Femi AdenitireFor Respondent
