JULIUS NDUKA v. EDWIN OGBONNA (2010)

JULIUS NDUKA v. EDWIN OGBONNA

(2010)LCN/3695(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 13th day of April, 2010

CA/E/164/2008

RATIO

ACTION: MEANING OF A CAUSE OF ACTION

The phrase ’cause of action’ has been defined in a plethora of decisions of the apex and of this courts. To mention but just a few. See the case of Egbe v. Adefarasin (supra); Shell Petroleum Dev. Co. Ltd. v. Farah (1995) 3 NWLR (pt.382) 148; Ebaigbe v. N.N.P.C. (1994) 5 NWLR (pt. 347) 649; Ibrahim v. Osim (1988) 3 NWLR (pt. 82) 257.

In Ibrahim v. Osim (supra), the Supreme Court at page 267 referred to its earlier decision in Sawage &Ors vs. Uwechia (1972) 1 ALL NLR (pt.1) 251 at 257 or (1972) 3 SC 241 at 221 per Fatai Williams JSC (as he then was and of blessed memory) stated thus, while defining the words ’cause of action’:-

“A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforcement claim. To our mind, it is in effect, the facts or combination of facts, which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause or complaint and the consequent damage. As Lord Esher said in Cooke vs. Gill (1873) LR 8 CP 107 and Larter in Read vs. Brown (1888) 22 QB 128 (CA), it is every fact that it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. See Samde vs. Sokoto Native Authority (1968) 1 ALL NLR 377 where the definition in Read vs. Brown (supra) was referred to with approval (italics by Fatai Williams JSC, (as he then was.)

Similarly in Eboigbe vs. NNPC (supra) at page 659 B – C, the Supreme Court held that the cause of action generally accrues on the date on which the incident giving rise to the cause of action occurs and in Shell Petroleum Development Co. Ltd. vs. Farah (supra) at page 186 G – H, the apex court also held that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action. PER AMIRU SANUSI, J.C.A.

ACTION: WHEN WILL A CAUSE OF ACTION ACCRUE

It is settled law that a cause of action exists or accrues only when a right to make a challenge in respect of the subject matter against another arises. See UBA Plc. vs. Abdullahi (supra). PER AMIRU SANUSI, J.C.A.

LIMITATION LAW: WHEN DOES TIME BEGIN TO RUN FOR THE PURPOSE OF A STATUTE OF LIMITATION

In Eboigbe Vs. Nigeria National Petroleum Corporation (1994) 5 NWLR (Pt 347) 649 at 659 the Supreme Court states thus:-

“The next question is when does time begin to run for the purpose of a Statute of Limitation?

Time begins to run from the date on which the cause of action accrues. The cause of action generally accrues on the date on which the incident given rise to the cause of actions accrues. Proceedings must begin normally by the issue of a Writ of Summons within a period prescribed by the relevant statute.”

See also; Okafor V. Attorney Gen. Anambra State (2005) 14 NWLR (Pt.945) 210 at 222 – 223, (2005) 6 SCM 205. PER OLUKAYODE ARIWOOLA, J.C.A.

COURT: WHAT IS THE PROPER ORDER TO MAKE BY THE COURT WHERE AN ACTION IS STATUTE BARRED

Generally, the law is trite that where a defendant raises a defence that the plaintiff’s action is statute barred and the defence is sustained by the Court, the proper order the trial Court is expected to make is an order of dismissal of the action but not merely striking it out. See; Egbe V. Adefarasin (Supra); NPA Vs. Lotus Plastics Ltd. & Anor. (Supra). PER OLUKAYODE ARIWOOLA, J.C.A.

JUSTICES

AMIRU SANUSI Justice of The Court of Appeal of Nigeria

MOHAMMED LADAN-TSAMIYA Justice of The Court of Appeal of Nigeria

OLUKAYODE ARIWOOLA Justice of The Court of Appeal of Nigeria

Between

JULIUS NDUKA Appellant(s)

AND

EDWIN OGBONNA Respondent(s)

AMIRU SANUSI, J.C.A. (Delivering the Leading Judgment): At the High Court of Anambra State sitting at Ekwulobia (“the lower court” for short), the respondent herein as plaintiff thereat, instituted an action/suit against the defendant, the present appellant, claiming the following reliefs as per Paragraph 33 of his Statement of Claims:-
“33. Wherefore the Plaintiff claim (sic) against the defendant as follows:
A. The sum of N4, 800,000.00 being Special and general Damages for Defamation and malicious prosecution which is broken down as follows:-
(i) Special Damages for loss of profit N2, 920,000.00; Loss of Job N1, 920,000.00;
(ii) General Damages for malicious prosecution … N140, 000.00.
Briefly put, the facts of which gave rise to this appeal are as below:-
The defendant/appellant alleged that on 1st April 1999, the respondent as plaintiff had publicly accused him of having forged a document and also caused him to be arrested and detained by the police. The alleged accusations were uttered at Nbara Ngele Square to the hearing of many named and unnamed people. The police investigated the allegation and sent the matter to court but in the year 2005 after the review of the case by the Hon Attorney-General of Anambra State nolle prosequi was entered, hence the plaintiff/respondent was discharged. The plaintiff thereupon in the year 2007 brought an action (which led to this appeal) before the lower court against the defendant now appellant on defamation by slander for being accused of forgery and for causing him to be maliciously prosecuted by the police.
In the course of the proceedings before the lower court, the defendant (appellant herein) on 14/11/2007 filed a motion on notice praying the lower court to strike out the suit and dismiss the plaintiffs claim for being statute barred. The motion was argued by both parties’ counsel at the lower court on 23/1/2008 and the lower court after hearing the parties there and then delivered a bench ruling refusing the application for striking out of the suit and fixed date for the hearing of the substantive suit.
Aggrieved by the ruling of the lower court dated 23/1/2008, the defendant/appellant lodged this appeal in this court. To that effect, his Notice of Appeal dated 1/2/2008 was filed on 15/2/2009 which late filing was caused by the then impending strike action by the Judicial Staff Union of Nigeria in Anambra State which is judicially noticed and which was called off on 14/2/2008. The Notice of Appeal merely contained one Ground of Appeal.
In this court, briefs were filed and exchanged by the parties with the appellant filing his brief of argument on 17th of June 200S dated 13/6/2008.
Therein, only one issue was proposed by the appellant for the determination of this appeal, which is simply thus:-
“Whether the claim for defamation (slander) was statute barred.”
Upon being served with the appellant’s brief of argument, the learned counsel for the respondent also prepared a brief of argument on behalf of the respondent dated 31st July 2008 and filed same on 18th August 2008. In such brief the respondent’s counsel adopted the sale issue for determination as identified by the appellant in his brief of argument.
In the circumstance, I will proceed to treat the appeal based on the sole issue raised by the appellant in his brief of argument.
It is the submission of the learned counsel for the appellant that the respondent’s/plaintiff’s claim for slander in Suit No. AG/66/2007 before the lower court as being founded is statute barred in view of the provisions of Section 20(1) of the Action Law, Caps Revised Laws of Anambra State. He said the respondent failed to sue the appellant within six years from the date the cause of action arose. The learned counsel explained that the words which the respondents claimed to be slanderous were allegedly uttered on 17th of April 1999, which was the date the cause of action arose, while the Respondent merely instituted his action against the Appellant on the 25th of September 2007 vide his Suit No. AG/66/2007. Therefore, by the provisions of Section 20(1) of Action Law of 1999, such action should be brought within six years from the date the cause of action accrued. He added that the action/suit was brought after eight years and five months instead of within six years and the same was therefore caught up by the statute of limitation.
He cited and relied on the cases of Egbe v. Adejarasin (1987) All NLR 1 at 2. Rr 1 and 2, Elabanjo and Anor v. Dawodu (2006) 15 NWLR (pt.1001) 76 at 100 R40 also at 123/124 p Para F-B; Abiola v. Olawoye (2006) 13 NWLR (pt 996) 1 at 5 R 2 and 22 Paras. B-D.
It was finally argued by the appellant’s counsel that as the action or claim by the plaintiff/respondent is statute barred, the plaintiff lacks the competence or legal right to bring same which according to him, is incompetent and therefore this court lacks jurisdiction to entertain the same or grant any of the reliefs sought by the plaintiff and that the respondent can no longer maintain the claim for slander in any court. See Elabanjo’s case (supra) at page 97 R33. The learned appellant’s counsel also contended that person’s right of action cannot be suspended pending the occurrence of a certain event or events in future. See UBA Plc vs. Abdullahi (2003) 3 NWLR (pt.807) 364 R6, p.374 para. A – C.
Responding to the above submissions of learned appellant’s counsel, the learned respondent’s counsel submits that right of a party to bring a suit against another arises when the party is free without any impediment to bring a suit and in this instant case, the respondent’s right to bring an action arose only when the charge against him over the allegation of forgery is abated and not when the charge is still hanging on his neck. According to him, that is more so, because nobody knew whether he would be found guilty or not and if he was found guilty of forgery that extinguishes his right. He referred to the case of UBA Plc. v. Abdullahi (supra) or (2003) FWLR (pt 182) 1941 at 1942/1942 Rr 2 and 3 and 1949 paragraphs F-G. He said the right of the plaintiff to challenge the actions of defendant arises only when he was discharged of the charge of forgery against him. He submitted that the cases of Elabanjo and Anor vs. Dawodu (supra) and Egbe vs. Adefarasin (supra) cited and relied on by the appellant are not relevant or applicable to the case at hand as their facts differ very much and circumstances in the two cases also differ with those in this instant case too. The learned counsel further submits that the facts or sets of facts in this case could not affect the issue of statute barred as they can not act as a bar to the application of limitation of action. In another submission, the learned counsel further argued that the plaintiffs right could not be extinguished until all the material facts which will lead to the successful proof of his case are ripe and it is only upon its ripping that the right of action accrues in the suit.
He cited the case of Uddoh Trading Co. Ltd. v. Abere (2001) FWLR (pt.57) 900 at 916. Paragraph H where ’cause of action’ was defined as combination of facts and circumstances giving rise to the right to file claim in court for remedy. It also includes all those things which are necessary to give right of action and every fact which is material to be proved in order to entitle the plaintiff to succeed. He opined that the cause of action in this instant case, arose in 2005 when the respondent was discharged by the court as a result of the nolle prosequi. He urges me to dismiss the appeal of the appellant and uphold the decision of the lower court.
It needs to be stressed here that the issue to be determined is whether the claim for defamation (slander) before the trial or lower court was statute barred. Any question raised by a party as to whether or not an action is statute barred borders on the jurisdiction of the court before which it was raised. It simply challenged the court on its competence to adjudicate on the matter or suit. As a corollary, it relates to the jurisdiction of the court which is the life wire or threshold of every case. See Emiator v. Nigerian Army (1999) 12 NWLR (pt. 631) 362; Owners of the MV ‘Arabella’ v. Nigerian Agricultural Insurance Corporation (2008) II NWLR (Pt. 109) 182 at 210.
It is therefore a matter of law and NOT a matter of practice or procedure, since it is governed by the constitution or the relevant statute. See Corone Schiffar R. MBH & Co. v. Emespo J. Continental Ltd. (2002) 3 NWLR (pt.753) 205 at 290. Being an issue of jurisdiction therefore, a court of law confronted with such question on whether an action is statute barred or not, is duty bound to determine such issue first and if it finds out that it is statute barred, it should merely dismiss the suit, since no amount of resort to its merit could resuscitate it. See Egbe Adefarasin (No.2) (1987) 1 NWLR (pt.47) 1; Ajibowe v. Kolawole (1996) 10 NWLR (pt. 476) 22; Woherem v. Emereuwva (2004) 13 NWLR (pt.890) 398. I shall therefore now proceed to consider whether the action was statute barred or not since that is the sole pith of this appeal and on which both parties joined issues.
Our case law is replete with multiplicity of decided authorities on what the courts should look at in determining whether a party’s action is statute, barred or not. The superior courts are generally of the view and have ruled that period of limitation is determined in a case by looking at the Writ of Summons and of course the Statement of Claim (which supersedes the Writ of Summons) which alleges when the wrong suffered by the plaintiff was committed and place it side by side with the date on which the Writ was issued. If the Writ was issued beyond the time allowed by the applicable law, then the action is statute barred. It should however be added here with emphasis, that time can only begin to run when there is an existence of person who can sue and one who can be sued, and all material facts that must be proved to entitle the plaintiff to the reliefs sought exist too. See Adaji v. Amodu (1992) 8 NWLR (pt. 260) 472; UBN Ltd. v. Okai (1999) 8 NWLR (pt. 614) 244; Emiator v. Nigerian Army (supra); Sanni v. Okene LGA (2005) 14 NWLR (pt. 944) 60; A. Ebenogwu & Ors. v. O.O. Onyema Obim (2008) 3 NWLR (pt. 1074) 369.
The Writ of Summons or Statement of Claim in the first place must disclose cause of action since the computation of time in order to determine whether a suit/action is statute bared must begin from the date the cause of action which gave rise to the institution of the suit or matter arose. Before I embark on determining when the cause of action arose in the instant appeal, I think it will not be out of place if I consider the meaning of the words ’cause of action’ or what really constitutes ’cause of action’.
The phrase ’cause of action’ has been defined in a plethora of decisions of the apex and of this courts. To mention but just a few. See the case of Egbe v. Adefarasin (supra); Shell Petroleum Dev. Co. Ltd. v. Farah (1995) 3 NWLR (pt.382) 148; Ebaigbe v. N.N.P.C. (1994) 5 NWLR (pt. 347) 649; Ibrahim v. Osim (1988) 3 NWLR (pt. 82) 257.
In Ibrahim v. Osim (supra), the Supreme Court at page 267 referred to its earlier decision in Sawage &Ors vs. Uwechia (1972) 1 ALL NLR (pt.1) 251 at 257 or (1972) 3 SC 241 at 221 per Fatai Williams JSC (as he then was and of blessed memory) stated thus, while defining the words ’cause of action’:-
“A cause of action is defined in Stroud’s Judicial Dictionary as the entire set of circumstances giving rise to an enforcement claim. To our mind, it is in effect, the facts or combination of facts, which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause or complaint and the consequent damage. As Lord Esher said in Cooke vs. Gill (1873) LR 8 CP 107 and Larter in Read vs. Brown (1888) 22 QB 128 (CA), it is every fact that it would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of the Court. See Samde vs. Sokoto Native Authority (1968) 1 ALL NLR 377 where the definition in Read vs. Brown (supra) was referred to with approval (italics by Fatai Williams JSC, (as he then was.)
Similarly in Eboigbe vs. NNPC (supra) at page 659 B – C, the Supreme Court held that the cause of action generally accrues on the date on which the incident giving rise to the cause of action occurs and in Shell Petroleum Development Co. Ltd. vs. Farah (supra) at page 186 G – H, the apex court also held that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action.
To my mind, a cause of action means the cause of complaint or a right or obligation or a dispute which a court of law would use its adjudicatory or jurisdictional powers to determine and resolve. It also consists of or includes all material facts which a plaintiff is saddled with the responsibility of proving if traversed in order to obtain judgment in his favour.
Now, before embarking on the exercise of computation of time to determine whether or not the cause of action complained of in the instant case is statute barred, my Lords permit me to refer to the plaintiffs statement of claim in order to ascertain the substance of his complaint(s), since as I said above, the relevant document to consider in such exercise is basically the Writ of Summons or Statement of Claim filed by the plaintiff.
The relevant paragraphs complained of in the Statement of Claim are set out below:-
PARAGRAPHS:-
“4 . The defendant on 17th day of April 1999 at Mbara Ngele, (a village square) did publish to the people that the Plaintiff forged the constitution of Lomu Progressive Union, Umunze.
5. The defendant falsely and maliciously spoke and published of and concerning the plaintiff in a meeting comprising of men and women convened by the defendant and his cohorts at Mbara Ngele square Lomu village Umunze Orumba South Local Government Area in the presence of Ikechukwu Iwe, Sunday Offor, Hyacinth Eze, Okolie Okoroafor, Ezekiel Udoye, Isaac Ezekwesi Madukaejiaka and other by standers whose names are filled and unknown to plaintiff and who are at the meeting at Mabara Ngele square, the words following Edwin Ogbonna, Chairman home branch ayi foojiri constitution ayi, yana Reuben Okoro, Ejike Mba, Ikechukwu Iweh na Jona Eze.
Translated to English language means that plaintiff the Chairman of Lume branch forged our constitution with Reuben Okoro, Ejike Mba, Ikechukwu Iwe and John Eze.
6. The above words and their publication of by the Defendant concerning the plaintiff impute dishonesty and fraud on the plaintiff.
18. The defendant did not stop at making the aforesaid Publication at Mbara Ngele square but also went on and caused the detention of the plaintiff by instigating the police through a petition dated 15th November 1999 to the police and which led to the arrest of the Plaintiff at Abuja and his consequence detention in the Police cell at Awka. The petition master minded by the Defendant and upon which the plaintiff was detained shall be relied upon at trial.
19. The plaintiff avers that as a result of the report by the Defendant to the police, he the plaintiff alongside Reuben Okoro, Mba Ejike, Ikechukwu Iweh and Jonah Eze were arraigned in court (Magistrates) at Umunze, the charge was later amended to include the 6th accused, Francis Ume.
The copy of the charge sheet in which the Plaintiff was charged shall be relied upon at trial.
22 The plaintiff avers that the defendant while accusing the Plaintiff of having committed forgery relied on a suit No. AG/49/99. The said affidavit in suit No. AG/49/99, shall be forwarded upon trial.
26 Plaintiff avers that after the review of his case by the Director of Public Prosecution, it was found out that the case of the defendant was unsubstantiated and on that note Nolle Prosequi was centered in the case thereby abating the trial and discharging him and other co-accused persons.
The record of proceedings discharging me shall be founded on trial”
From the above depositions of the plaintiff as set out above, his complaint against the defendant/appellant can be said to be two folds. First, he complained of the alleged defamation by way of slander which allegedly took place on 17/4/1999. The second leg of the plaintiff’s complaint is the alleged instigation of the police to arrest, detain and prosecution of the plaintiff along with five other and their subsequent arraignment before a Magistrate’s Court and that they regained their liberty only after Nolle Prosequi was filed before the trial magistrate issued in the hand of the Hon. Attorney General, Anambra State which led to his discharge along with other co-accused on 27/7/2005 as shown by Annexure D at page 30 of the Record of Proceedings. There is no gain saying that the first complaint of slander as averred in paragraph 33 of the Statement of Claim, took place on 17/4/1999, while the suit which gave rise to this appeal was instituted on 25/9/2007. As regards the second complaint, I think it is pertinent to note that the plaintiff/respondent alleged that the defendant now appellant caused his arrest, detention and arraignment in court vide the petition he and the latter wrote to the police. Although no date of the arrest, and arraignment were given by the plaintiff/respondent, the important thing to note is that a charge of criminal offence continued to hang on his neck until the 25/9/2005 when he was discharged by the magistrate court. It is therefore as at 25/9/2005 that the plaintiff can be said to have gained his total liberty.
Section 20(1) of the Action Law Cap 3 Revised Laws of Anambra State provides as follows:-
(a) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued.
That is to say:-
(a) “actions founded on simple contract or torts …”
There is no doubt that action of defamation (slander) or malicious or false imprisonment is tortious act. By virtue of the above provisions therefore, action found on same must be brought within six years from the date the cause of action accrued. Any action brought outside the stipulated period of six years becomes statute barred and can therefore not be maintained in any court. It is a note worthy fact that the plaintiffs Claims at the lower court are two folds, namely for defamation and for malicious prosecution. As shown in paragraph 33 of his statement of claims, the two heads of claims have been itemized in the reliefs as I reproduced them in the fore paragraphs of this judgment.
It is not disputed that the words complained of were uttered on 17/4/1999. The action was only instituted in the lower court by the plaintiff/respondent on 25/9/2007. That is to say more than eight years from the date the cause of action accrued i.e. 17/4/1999. The action on slander is therefore to my mind, caught up by the provisions of section 20(1) of Action Law of Cap 3 of Revised Laws of Anambra State of 1991. The first action relating to defamation is in my humble view statute barred as rightly was held by the lower court.
But with regard to the second head of claim on malicious prosecution, I do not think it is statute barred. This is because it was averred by the plaintiff that the defendant instigated the police to arrest him and such alleged action caused him to be detained. He also alleged that he only regained his liberty in 2005 when he was discharged following the filing of nolle prosequi by the Hon. Attorney General of Anambra State. It would be inconceivable to expect the defendant/appellant to sue for malicious prosecution when he was in custody or before he was released or when he did not know his fate regarding the charge filed against him.
It is only when he was released that he would know if he could maintain an action of malicious prosecution. It is settled law that a cause of action exists or accrues only when a right to make a challenge in respect of the subject matter against another arises. See UBA Plc. vs. Abdullahi (supra). To my mind, the right of the plaintiff to challenge the actions of the defendant accrues only on the date he was discharged of the charge of forgery against him and the computation of time will commence from the date of his discharge, that is to say as from the 27th July 2005. That date in my view is the date the cause of action really accrued. Since the plaintiff instituted his action/suit on 25th September 2007, that leg of his claim for malicious prosecution can not be said to have been caught by section 20(1)(a) of Action Law and is therefore not statute barred, that aspect of the claim is therefore maintainable and the lower court is competent to entertain hear and determine that complaint. If it is trite law that the test for determining when a cause of action begins to run is when there exist in favour of the person who can sue, all facts that have happened which are required to prove that the plaintiff is entitled to judgment. We should also not lose sight to the fact that a cause of action should be looked at or viewed from peculiar circumstances of any given case. Therefore, date of accrual of cause of action, in my view, varies from one case to another and it is the facts of a particular case that usually gives rise to a right of action as would entitle a person or complainant seek judicial relief(s). There is therefore nothing sacrosanct about it. Consequently, the facts in the instant case are such that cause of action on the second leg of the plaintiff respondent’s claim accrued only with effect from the date of his release or discharge of the charge of forgery in 2005. Thus, filing his action in 2007 July is still within the allowable period of six years as stipulated by the Action Law of Anambra State of 1991.
Having said so, and as a corollary too, the issue is resolved against the appellant. The second leg of the action on malicious prosecution, as I said supra, can be maintained on that head of claim.
On the whole, the appeal succeeds in part and fails in part. The decision of the lower court is affirmed. For the avoidance of doubt, the claim on defamation (slander) is adjudged statute barred. With regard to the claim on malicious prosecution, such action is maintainable and is thus hereby remitted to the lower court for hearing and determination either by the learned trial Judge or any Judge of Anambra State judiciary. No order as to costs.

MOHAMMED L TSAMIYA, J.C.A.: The lead judgment prepared by my learned brother AMIRU SANUSI; JCA is resonant in my opinion on this appeal. The judgment has meticulously and assiduously examined all the facets of the single issue in the appeal and has come to a decision that accords with the law as it stands today.
I will not add any word in agreement. I abide by the consequential order in the lead judgment.

OLUKAYODE ARIWOOLA, J.C.A.: I had the privilege of reading in draft the judgment prepared and just read by my learned brother, Amiru Samusi, JCA. His Lordship has dealt with the sole issue beautifully and I am therefore in agreement with the reasoning and conclusions.
However, for the purpose of emphasis, I shall add a few words of my own.
The sole issue in the appeal is whether the claim for defamation (slander) was not statute barred. Generally, the law is that 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, proceeding shall not be commenced after the expiration of the time prescribed by the Statute. As a result, an action commenced after the prescribed period has expired is contrary to the provision of the law and does not give rise to a cause of action. See; Obiofuna V. Okoye (1961) 1 All NLR 357, Nigeria Ports Authority Plc V. Lotus Plastics Ltd. & Anor. (2005) 12 SCM 293 at 305.
What then is cause of action? It is a group of operative facts giving rise to one or more basis for suing. In other words, it is a factual situation that entitles one person to obtain a remedy in court from another person. See; Black’s Law Dictionary, 8th Edition, 235, Egbe V. Adefarasin (No.2) (1987) 1 NWLR (Pt 47) 1 at 20, Atolayan V. Ogunrinde (1990) 1 NWLR (Pt 127) 369 at 373 P.N. Udo Trading Co. Ltd. Vs. Abere (2001) 11 NWLR (Pt.723) 114 at 135, (2001) 8 SCM 100.
A cause of action will therefore be statute barred if in respect of it proceedings cannot be brought or commenced because the period prescribed by the Limitation Law has elapsed.
Limitation of action is determined by looking at the Writ of Summons or Statement of claim alleging when the wrong was committed which has given the plaintiff the cause of action and by comparing that date on which the writ of Summons was filed. See Egbe V. Adefarasin (Supra) Adekoya V. Federal Housing Authority (2008) 4 SCM 1 at 11.
In the instant case, the cause of action as clearly shown on the Statement of Claim is for special and general damages for Defamation and malicious prosecution. The defamatory statement was allegedly made sometime on 17th April, 1999.
This is certainly the date the cause of action arose. The Writ of Summons was then taken out commencing this action on 25th September, 2007 on Suit No.AG/66/2007.
It is to be noted, that the Limitation Law concerning this case is Section 20(1) of the Action Law, cap.3, Revised Laws of Anambra State. It reads thus:-
“(a) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:-
(a) actions founded on simple contract or torts…”
There is no doubt that the action on defamation or malicious prosecution is tortuous act which comes under the above Law. It follows therefore that action which is predicated on such act must be commenced within six years from the date the alleged cause of action arises.
In Eboigbe Vs. Nigeria National Petroleum Corporation (1994) 5 NWLR (Pt 347) 649 at 659 the Supreme Court states thus:-
“The next question is when does time begin to run for the purpose of a Statute of Limitation?
Time begins to run from the date on which the cause of action accrues. The cause of action generally accrues on the date on which the incident given rise to the cause of actions accrues. Proceedings must begin normally by the issue of a Writ of Summons within a period prescribed by the relevant statute.”
See also; Okafor V. Attorney Gen. Anambra State (2005) 14 NWLR (Pt.945) 210 at 222 – 223, (2005) 6 SCM 205.
In the instant case, the cause of action for defamation arose on the 17th April, 1999 when the alleged defamatory statement was uttered. The Writ of Summons was taken out on 25th September, 2007. That is more than eight years from the date cause of action accrued. It is clear from the above that the action or claim on the tort of defamation was caught by the State Limitation Law. As a result, that part of the action is statute barred.
Generally, the law is trite that where a defendant raises a defence that the plaintiff’s action is statute barred and the defence is sustained by the Court, the proper order the trial Court is expected to make is an order of dismissal of the action but not merely striking it out. See; Egbe V. Adefarasin (Supra); NPA Vs. Lotus Plastics Ltd. & Anor. (Supra).
However, as evident on the pleadings of the Plaintiff which was not disputed the cause of action in the second leg of the claim only accrued sometime on 27th July, 2005 when the alleged malicious prosecution came to an end with entering of nolle prosequi by the Hon. Attorney General of Anambra State. This leg is therefore not caught by the Statute of Limitation. In otherwords, that claim is not statute barred and the trial Court can proceed to hear and determine the claim vis-a-vis the defence.
For the above reasons and the fuller and more detailed reasons in the lead judgment of my learned brother, Sanusi, JCA I also hold that on the whole the action cannot be dismissed as it is not wholly statute barred. An arm of the claim is maintainable. I abide by the consequential orders contained in the lead judgment and make no order as to costs.