THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED v. DODOYE WEST
(2018)LCN/11344(CA)
In The Court of Appeal of Nigeria
On Monday, the 30th day of April, 2018
CA/PH/115/2015
RATIO
EFFECT OF A STATUTE-BARRED ACTION
I have to state that the effect of an action being statute barred means that that action is rendered incompetent and deprives the Court of the requisite jurisdiction to hear and determine same. per BITRUS GYARAZAMA SANGA, J.C.A
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LIMITED Appellant(s)
AND
DODOYE WEST Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment)
By an endorsed Writ of Summons and a Statement of Claim dated 28th August, 2013 the Respondent as Plaintiff claimed the following reliefs from the Appellant as Defendant: –
1: The sum of N1,104,000:00 (One Million, One Hundred and Four Thousand Naira) only being special damages for the damage of the Plaintiffs 3 bundles of fishing nets consequent upon the Defendants massive Crude Oil Spill of (sic) on or about 20th July, 2006 (also known as 28 NCTL CRUDE OIL SPILL) in Rivers State of Nigeria.
2: Post judgment interest of 10% per annum on the judgment sum from the date of judgment until full payment of the judgment sum by the Defendant. (pages 9-10 of the record of appeal).
The Defendant filed a 24 paragraphs statement of defence dated 3rd December, 2013. (pages 83 86 of the record of appeal). On 17th September, 2014 the Defendant filed a motion on notice seeking for the following reliefs: –
1: An Order that claims based on the Oil Pipelines Act are subject to statutory limitation by either Federal and/or State Law.
2: An Order dismissing or striking out the Plaintiffs suit in its entirety for being statute barred.
The grounds upon which these reliefs are sought are:-
1: By the Plaintiffs Statement of Claim, the Plaintiffs cause of action in this matter arose since the 20th of July 2006 when the alleged damage to the Plaintiffs fishing net was alleged to have occurred.
2: By Section 16 of the Limitation Law of Rivers State, Cap 80, 1999, no action founded on tort shall be brought after the expiration of five years from the date which the cause of action accrued.
3: Also by Section 3 of the Statute of Limitation 1623, no action founded on tort must be brought after the expiration of six years from the date of accrual of cause of action.
4: Section 32 of the Interpretation Act, CAP, 123 LFN, 2004, made the Statute of Limitation 1623, a statute of general application applicable in Nigeria.
5: The Plaintiffs Suit was filed on 28th August, 2013 outside the 5 years/6 years statutory limitation periods respectively provided by the two Limitation Statutes applicable to this case.
6: This Honourable Court therefore lacks the jurisdiction to entertain the Plaintiffs action.
7: The Plaintiffs suit is liable to be dismissed in limine.
8: The issue of competence and jurisdiction of Court is so fundamental that it can be raised at anytime and if not properly handled; it is capable of rendering a judgment a nullity regardless of how well the case was conducted.
9: The Honourable Court has inherent jurisdiction to entertain and determine and grant quit timet this application.
(See pages 95 to 96 of the record of appeal).
A 21 paragraphs affidavit and a written address accompanied the application. (pages 101 111 of the record of appeal). The Plaintiff filed what he termed Written address on points of law opposing the Defendants/Applicants Preliminary Objection on pages 112 113 of the record of appeal.
On 25th March, 2015 the learned trial Judge delivered his Ruling (on pages 161 166 of the record of appeal) wherein he held thus: –
In all, I hold that the preliminary objection is lacking in merit and it is hereby refused and is accordingly dismissed. I am of the humble view that this matter should be heard on its merit. Consequently, it is hereby ordered that the Defendant/Applicant files its defence.”
The Defendant was dissatisfied with this decision of the learned trial Judge. Its counsel filed a Notice of Appeal on 2nd April, 2015 containing five (5) grounds of appeal. (pages 154 157 of the Records). The record of appeal was compiled and transmitted to this Court on 15th April, 2015 by the Appellant through its counsel. The appellants brief of argument was settled by Chief I.O. Ahize. It was filed on 19th February, 2016 but deemed on 16th November, 2016.
On 30th January, 2018 when this appeal came up for hearing parties where absent. F.N. Udekweleze Esq. appeared for the Appellant. There was no appearance for the Respondent. The Court Registrar informed the Court that the Court Bailiff deposed to an affidavit of service that he attempted to effect service of the hearing notice on learned counsel to the respondent on 24th January, 2018 but he refused to accept service so the bailiff threw the hearing notice at him and left. The Court was satisfied with this mode of service on the respondent and allowed learned counsel to the appellant to make his submission. Enwekeleze Esq. of counsel to the appellant informed the Court that the respondent did not file any brief of argument and he is out of time to file one. Learned counsel adopted the appellants brief of argument and urged the Court to allow the appeal and set aside the decision of the lower Court in Suit No. FHC/PH/CS/294/2013 delivered on 25th March, 2015. Pursuant to Order 19 Rule 10(1) of the Rules of this Court 2016 we closed the Respondents right to be heard and adjourned the appeal for judgment.
In its brief of argument the Appellant formulated two issues for determination which I will consider together as follows:-
1: Whether the lower Court was right not to have considered and pronounced on the applicability of the Limitation Act 1623 (Ground 3, 4 and 5)
2: Whether the trial Judge was right when he held that the Rivers State Limitation Law does not apply to the Respondents right of action for being created by a Federal Act Oil Pipelines Act and as such failed to uphold the Appellants Preliminary Objection that the action is statute barred. (Grounds 1 and 2)
On issue 1, learned counsel urged the Court to answer in the negative. That Courts have a duty to decide on all issues properly placed before them which duty the lower Court failed to discharge. That in its application leading to this appeal the Appellant invited the learned trial Judge to make a determination on the applicability of the Limitation Act 1623 by virtue of Section 32 of the Interpretation Act Cap. 123 LFN, 2004 as the applicable English Statute of general application. That learned counsel to the appellant argued this point before the lower Court but the Respondent deliberately chose not to deal with or respond to that issue in his written address. The legal consequence being that he is deemed to have conceded to that point. That the applicability of the Limitation Act 1623 having been argued by the Appellant, and conceded by the Respondent the lower Court was duty bound to consider and pronounce on that issue which it failed to do.
That it is trite law that a Court must, in its decision consider and make pronouncement on all issues raised by the parties before it, failure to do so would result in giving a perverse decision which would occasion a miscarriage of justice. Learned counsel cited in support the following authorities: –
1: BRAWAL SHIPPING LTD V. F. I. ONWADIKE CO. LTD (2000) 11 NWLR {Pt. 678} 387 at 403 paragraphs D H.
2: A. G. FEDERATION V. A. I. C. LTD (2000) 10 NWLR {Pt. 675} 293 at 308 paragraphs A B.
Learned counsel submitted further that Section 3 of the Statute of Limitation 1623 provides for 6 years limitation period from the date of accrual of the cause of action. That the Respondent commenced this suit after 7 years and 39 days. That by the Statute of Limitation 1623 or the Limitation Law, Laws of Rivers State 1999, the Plaintiffs suit is statute barred. Learned counsel then quoted verbatim Section 32 of the Interpretation Act which brought into this country the Statute of Limitation 1623 being a Statute of General Application in force in England on 1st January, 1900. He submitted that since the Oil Pipelines Act has no provision on the issue of Limitation of Action, then the Statute of Limitation 1623 which is a statute of general application in force in England by 1900 and received into Nigeria by virtue of the said Section 32 of the Interpretation Act is applicable in the circumstances of this case since the said Interpretation Act is meant to fill in the gap in the Oil Pipelines Act in respect to limitation of actions. That the failure of the trial Court to consider and make pronouncement on the said Section 32 of the Statute of Limitation 1623 and Section 32 of the Interpretation Act, Cap. 123 LFN, 2004 in its Ruling is perverse as it occasioned a miscarriage of justice. Learned counsel urged the Court to set aside the said ruling and resolve this issue in favour of the Appellant.
Issue 2 is:
Whether the trial Judge was right, when he held that the Rivers State Limitation Law does not apply to the Respondents right of action for being created by a Federal Act – Oil Pipelines Act and as such failed to uphold the Appellants Preliminary Objection that the action is statute barred.
Learned counsel to the appellant answered that the learned trial Judge was wrong on the following grounds.
(a) All claims based on the Oil Pipelines Act are subject to statutory limitation by either Federal and/or State Law.
(b) The general policy of law is that a partys right of action does not exist in perpetuity.
Thus a claimant could lose his right to the enforcement of his right of action upon effluxion of time. That this public policy consideration is recognized both in law and in equity. He cited the Supreme Court authority of AREMO II V. ADEKANYE (2004) 13 NWLR {Pt. 891} 572 at 592 paragraphs F H. Learned counsel also cited this Courts decision in ASABORO V. PAN OCEAN OIL (NIG) LTD. (2006) 4 NWLR {Pt. 971} 595 at 617 618 paragraphs H B.
That the Oil Pipelines Act or the Petroleum Act made no provision at all regarding limitation of action and did not expressly exclude the application of existing limitation law to the right of action created therein. To that extent and in the absence of express provision in the Oil Pipelines Act excluding the application of existing limitation law, learned counsel urged the Court to hold that claims arising under the Oil Pipelines Act or Petroleum Act are not exempted from the Statute of Limitation either by virtue of the Federal Act or State Law. That since the Oil Pipelines Act did not make any provision on Limitation of Action nor expressly excluded the Limitation of Action, then the Rivers State Limitation Law should apply to actions resulting from Oil Pipelines Act within Rivers State as a Claimant cannot wait for an indefinite period of time after the accrual of his right to seek redress in the Court of Law. Learned counsel cited the following authorities: –
(1): ETIM V. I. G. P. (2001) 11 NWLR {Pt. 724} 266 at 283 284 paragraphs G A.
(2): ASOBORO V. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR {Pt. 971} 595 at 617 618 paragraphs H B.
(3): TULIP (NIG) LTD V. N.T.M. S.A.S. (2011) 4 NWLR {Pt. 1237} 254 at 284 paragraphs D G.
(4): EBOIGBE -V- N.N.P.C. (1994) 5 NWLR {Pt. 347} at 649 where the apex Court held thus: –
bearing the Provisions of Section 11(1) of the Nigeria National Petroleum Corporation Act 1977 (which is a Federal Act) and Section 4(1) (a) of the Limitation Law, Cap. 89 of the Laws of Bendel State of Nigeria, 1976 which prescribes six years limitation period in mind, the action instituted by the Appellant was prima face statute barred.
Learned counsel also cited this Courts unreported case of S.P.D.C. V. CHIEF GOODLUCK C. R. MEBURU (unreported) CA/OW/136/2012. Per Tsammani J.C.A. on page 20 lines 18 20.
Learned counsel urged the Court in view of the plethora of authorities cited above, to hold that the Rivers State Limitation Law is applicable and the Respondents suit is statute barred. He urged the Court to resolve this issue in favour of the Appellant.
As I stated earlier the respondent did not file any brief of argument, therefore this appeal shall be determined on the appellants brief alone.
I will consider issue 2 formulated from grounds 1 and 2 of the Notice of Appeal first. The issue is: –
Whether the trial Judge was right when he held that the Rivers State Limitation Law does not apply to the Respondents right of action for being created by a Federal Act Oil Pipelines Act and as such failed to uphold the Appellants Preliminary Objection that the action is statute barred.
In order to determine this issue, I have to state that the effect of an action being statute barred means that that action is rendered incompetent and deprives the Court of the requisite jurisdiction to hear and determine same. This is so where the cause of action falls under a Statute of Limitation. The Supreme Court aptly captured the essence of when an action is said to be statute barred when it held in ATTORNEY GENERAL OF ADAMAWA STATE & ORS V. ATTORNEY GENERAL OF THE FEDERATION (2014) LPELR 23221 (SC) per MUHAMMAD JSC on page 37 paragraph F thus: –
Thus, a cause of action is said to be statute barred if legal proceedings cannot be commenced in Court because the period laid down by the Limitation Law or Act had elapsed.”
Upon considering the claim of the respondent in suit No. FHC/PH/CS/294/2013 before the trial Court it is obvious that it is based on the Oil Pipelines Act which comes into effect on 4th October, 1956. That Act did not contain a time limit within which an action can be commenced from the date of accrual of the cause of action. Does that mean that a persons right of action under that act exist in perpetuity Or can a claimant under that Act lose his right to the enforcement of his right of action upon effluxion of time The Supreme Court answered that question in OBA J.A. AREMO II -V- S.F. ADEKANYE & ORS (2004) LPELR 544 (SC) per EDOZIE JSC on pages 17 18 paragraphs F B when it held that:
The rationale or justification supporting the existence of statutes of limitation includes the following: (1) that long dormant claims have more of cruelty than justice in them: R.B. Policies at Lloyds V. Butler (1950) 1 KB 76 at 18 82, (2) that a defendant might have lost the evidence to disprove a stale claim: Jones V. Bellgrove Properties Ltd. (1949) 2 KB 700 at 704 and, (3) that persons with good causes of action should pursue them with reasonable diligence. Board of Trade V. Cayzer Irvine & Co. (1927) A. C. 610 at 628.”
It is obvious that the three reasons adduced by the apex Court inAREMO II V. ADEKANYE (Supra) for the necessity of a Statute of Limitation are unassailable. Is the intendment of the framers of the Oil Pipeline Act that right of action created under the Act are exempted or excused from the broad policy of the law enunciated by the Supreme Court above The answer is obviously in the negative. On whether claims arising under the Petroleum Act and Regulations made there under are excluded from the limitation laws, this Court in Mrs. COMFORT OLUFUNMILAYO ASABORO & ANR V. PAN OCEAN OIL CORPORATION NIGERIA LTD & ANOR (2006) 4 NWLR {Pt. 971} 595 at 617 618 held thus: –
If it is intended to exclude claims arising from the Petroleum Act and the Regulations made there under from the limitation law, there would have been express provision to that effect either in the Act or in the Regulations made under the Act. In other words, it is not the intention of the Petroleum Act that a claimant could wait for an indefinite period of time after the accrual of his right to seek reliefs.”
There is no dispute that the Petroleum Act or the Oil Pipelines Act contain no provision on limitation of action but there is also no express exclusion of the application of the existing limitation law to the right of action created therein. Therefore in the absence of express provision in the Oil Pipelines Act excluding the application of existing limitation law, it follows that the claims arising under the said Oil Pipeline Act are not exempted from statutory limitation by virtue of either the Federal Act or State Law. Therefore the Limitation Law of Rivers State should apply to actions resulting from the Oil Pipeline Act within Rivers State since a Claimant cannot wait for an indefinite period of time after the accrual of his right to seek renders in the Court of Law.
Section 16 of the Limitation Law of Rivers State, Cap 80, of 1999 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 five years from the date on which the cause of action accrued.”
Upon considering the claims of the Claimant as quoted above, it is obvious that the action is founded on tort to wit; the damage to the Claimants 3 bundles of fishing nets consequent upon the Defendants massive crude Oil Spill on 20th July, 2006. The suit was instituted via an endorsed Writ of Summons dated 28th August, 2013. It is obvious that the cause of action accrued more than five (5) years to the date filing the instant suit. The suit is therefore statute barred pursuant to
Section 16 of the Limitation Law of Rivers State (Supra). In INSPECTOR SUNDAY ETIM & 4 ORS V. INSPECTOR GENERAL OF POLICE & 2 ORS (2001) 11 NWLR {Pt. 724} 266 at 283 paragraphs G A this Court per MAHMUD MOHAMMED JCA (as he then was) held thus:-
The Limitation Edict CAP 89 Laws of Kaduna State, 1991 was made to provide for limitation of action in Kaduna State. The law applies to any action filed in any Court operating within the territorial area of Kaduna State including the Federal High Court without any regard as to who the parties in the action are. In this case, the trial Court was quite right applying the law to the present case before it in deciding on the appellants claim.”
Another decision of this Court that arose out of the Petroleum Act Cap. 350 LFN 1990 wherein the Limitation Law Cap 8, Laws of Bendel State 1976 was applied to dismiss the Claims of the Plaintiff for being statute barred is MRS. COMFORT O. ASABORO & ANOR V. PAN OCEAN OIL CORPORATION NIG. LTD. (Supra) where the Court held per NGWUTA JCA (as he then was) as follows: –
For the appellant, it was argued that neither the Petroleum Act nor the Regulation made thereunder prescribed any period within which a claimant may commence an action against the holder of an Oil mining lease in the absence of such an express provision in the law, it will be erroneous for such to be presumed or imputed unto the appellants case.
With due respect to learned counsel, if it is intended to exclude claims arising from the Petroleum Act and the Regulation made there under, there would have been express provision to that effect either in the Act or in the Regulation made pursuant to same. It cannot be correct or the intention of the law that a claimant, as learned counsels argument would imply, could wait for an indefinite period of time after the accrual of his right to seek redress.”
I have noted that in his Ruling delivered on 25th March, 2015 the learned trial Judge relied on this Courts decision in BENSON V. MOBIL PRODUCING (NIG) UNLTD (2014) ALL FWLR {Pt. 722} 1821 – 1822 to dismiss the appellants Preliminary Objection. However the two previous decisions of this Court (quoted above) pronounced that a States Statute of Limitation is binding on all Courts within the territorial area of that State and the Supreme Courts holding on the rationale or justification supporting the existence of Statute of Limitation in AREMO II V. ADEKANYE (Supra) cannot be ignored. This Court towed the proper line by following the two earlier decisions in its recent judgment in SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD V. CHIEF ZEDIE WILLIAMS & 2 ORS. Appeal No. CA/PH/667/2014 delivered on 6th December, 2017 where GUMEL JCA pronounced thus: –
However, because of what I said earlier on the suitability and applicability of the 2 earlier decisions of this Court in SUNDAY ETIM V. I.G.P. (Supra) and COMFORT ASABORO V. PAN OCEAN OIL (Supra) I wish to emphasise that and proceed accordingly without much ado. But just before that may I, with all due respect remark that limitation of time provisions either in specific legislation or general limitation of time stipulations are a public policy imperative that may be said to have emanated from the equitable doctrines developed in England in the 19th Century to ameliorate the characteristic harshness of some common law principles. It started with the equitable maxim that equity aids the vigilant and not the indolent. The word equity here being used as a generic term to mean justice or fairness. It may also be added that the current 2004 volumes of the Laws of the Federation of Nigeria do not contain a Limitation Act, so if the decision in BENSON V. MOBIL (Supra) is to hold sway, there would then be no time limitation for any cause of action that arose out of the provisions of a Federal enactment or matters within the Exclusive Legislative List. The effect of the decision in BENSON V. MOBIL (Supra) will then appear to have done the impossible, i.e. overruling 2 previous decisions of the same Court.”
I am obliged to follow this decision by GUMEL JCA because I was a member of the panel that concurred with same in my contribution to the well considered judgment of my learned brother in the lead judgment. It is therefore my holding that the learned trial Judge was in error when he held that Section 16 of the Rivers State Limitation Law, Cap 80 of 1999 does not apply to this suit. Suit No. FHC/PH/CS/294/2013 filed on 28th August, 2013 is statute barred because the cause of action accrued on 20th July, 2006 which is more than the five (5) years prescribed in Section 16 of the Limitation Law of Rivers State.
On the effect of an action commenced after the expiration of the limitation period the Supreme Court held in AREMO II V. ADEKANYE (Supra) on page 17 paragraphs C F per EDOZIE JSC thus: –
Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute-barred a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation for instituting such an action has elapsed. See the cases of Eboigbe V. N.N.P.C. (1994) 5 NWLR {Pt. 347} 649; Odubeko V. Fowler (1993) 7 NWLR {Pt. 308} 637, Sanda V. Kukawa Local Government (1991) 2 NWLR {Pt. 174} 379; Ekeogu V. Aliri (1991) 3 NWLR {Pt. 179} 258.”
Therefore this issue is resolved in favour of the Appellant. My findings on issue 2 have settled the bone of contention between the parties in this appeal. Therefore considering issue 1 becomes unnecessary as it will be an academic exercise which this Court has no time to embark upon. It is the judgment of this Court that this appeal is meritorious and is hereby allowed. The Ruling of the trial Court delivered on 25th March, 2015 is set aside. Suit No. FHC/CS/294/2013 instituted by the Respondent on 28th August, 2013 is hereby struck out for being statute barred. There shall be no order as to cost.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the judgment of my learned brother, BITRUS GYARAZAMA SANGA JCA before it was delivered. I agree with the reasoning and conclusion of my learned brother. I allow the appeal and abide by the consequential order.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to read in draft the judgment by my learned brother Bitrus Gyaraza Sanga, JCA, just delivered.
I agree with the sound reasoning and conclusion of my respected learned brother. This appeal obviously has merit and should be allowed. The ruling of the trial Court delivered on 25th March, 2015, is thus set aside by me also.
I make no order as to cost.
Appearances
- N. Udnekweleze, Esq.For Appellant
AND
No appearanceFor Respondent
