THE SHELL PETROLEUM DEV. CO. OF NIG. LTD.
1. CHIEF MARK EJEBU
2. CHIEF ISAIAH PRIKAKI
(For themselves and as representing Inesei Community of Gbaratorou)
COURT OF APPEAL
(PORT HARCOURT DIVISION)
SULEIMAN GALADIMA, J .C.A. (Presided)
TIJJANI ABDULLAHI, J .C.A.
EJEMBI EKO, J .C.A. (Read the Leading Judgment)
THURSDAY, 8TH JULY, 2010
ACTION – Competence of suit or appeal- Objection thereto – Where raised – Effect of – Duty on court with respect thereto.
ACTION – Limitation of action – Actionfounded on contract or tort – Limitation period therefor – Section 16, Limitation Law No. 7 of Rivers State,1988 applicable in Bayelsa State.
ACTION – Limitation of action – Period of limitation- Acknowledgment of or promise to pay debt – Whether extends period statutorily prescribed.
ACTION – Limitation of action – Period of limitation – Negotiation by parties – Whether prevents period from running – Rationale therefor.
APPEAL – Finding of fact – Failure of party to appeal against – Effect of.
APPEAL – Fresh issue on appeal – Fresh issue of jurisdiction – Whether can be raised on appeal.
CONTRACT – Acknowledgment or promise to pay a liability that is statute barred – Effect of – Whether creates a fresh contractual relationship.
CONTRACT – Agreement- Where reached during neotiation in respect of liability statute-barred -hether defendant can resile therefrom.
COURT – Competence ofcourt – Where court lacks competence – Effect.
COURT – Competence ofcourt – Where suit or appeal not initiated by due process of court and upon fulfillment of conditions precedent to exercise of jurisdiction – Effect.
ESTOPPEL – Agreement – Where reached during negotiation in respect of liability statute-barred – Whether defendant can resile therefrom.
LIMITATIC!N LAW – Limitation of action – Action founded on contract or tort – Limitation period therefor – Section 16, Limitation Law No.7 of Rivers State, 1988 applicable in Bayelsa State.
LIMITATION LAW – Limitation of action – Negotiation by parties – Whether prevents period from running – Rationale therefor.
LIMITATION LAW – Limitation of action – Period of limitation – Acknowledgment of or promise to pay debt – Whether extends period statutorily prescribed.
LIMITATION LAW – Statute of limitation – Effect of. LIMITATION OF ACTION – Action founded on contract or tort – Limitation period therfor – Section 16, Limitation Law No.7 of Rivers State, 1988 applicable in Bayelsa State.
LIMITATION OF ACTION – Period of limitation – Acknowledgment of or promise to pay debt – Whether extends period statutorily prescribed.
LIMITATION OF ACTION – Period of limitation – Negotiation by parties – Whether prevents period from running – Rationale therefor.
LIMITATION OF ACTION – Statute. of limitation – Effect of.
PRACTICEAND PROCEDURE -Appeal- Finding offact – Failure of party to appeal against – Effect of.
PRACTICE AND PROCEDURE – Appeal – Fresh issue on appeal – Fresh issue of jurisdiction – Whether can be raised on appeal.
PRACTICE AND PROCEDURE – Appearance – Entry of appearances to writ issued for service outside jurisdiction – Length of time required therefor.
PRACTICE AND PROCEDURE – Competence of court – Where court lacks competence – Effect.
PRACTICE AND PROCEDURE – Competence of court – Where suit or appeal not initiated by due process of court and upon fulfilment of conditions precedent to exercise of jurisdiction – Effect.
PRACTICE AND PROCEDURE – Competence of suit or appeal – Objection thereto – Where raised – Effect of – Duty on court with respect thereto.
1. Whether the trial court was right in holding that the respondents’ action was not statute barred by reason of the contents of exhi bit” A”.
2. Whether the suit was initiated by a valid writ of summons.
At the High Court of Bayelsa State, the respondents instituted an action against the appellant wherein they claimed the sum of N100 million (One hundred million Naira) being and representing general and special damages for the blockade of Akanafa Lake by the appellant’s access road. The writ of summons was issued on 27th July 1998. It was to be served on the appellant in Port Harcourt, River State, and it stated that the appellant should enter an appearance within eight days.
In the statement of claim, the respondents averred that sometime in 1991, the appellant constructed its Gbaram Deep Field access road across Akanafa Lake and thereby sand-filled and completely blocked the lake; and that this effectively prevented movement through the lake which caused permanent flooding on one side and total deprivation on the other side.
The appellant in its defence did not deny constructing the access road in 1991, but denied any negligence in the construction of the access road. It further pleaded limitation as a bar to the cause of action that allegedly arose in 1991.
At the close of pleadings, the defence of limitation was set down for hearing at the instance of the appellant. In their counter- affidavit, the respondents exhibited a letter dated 25th May 1998, exhibit “A”, in which the appellant allegedly accepted liability and offered the sum of N 100,000 as compensation for the claim.
In its ruling delivered on 19th January 2000, the trial court found that the cause of action occurred in 1991; and that by section l6 of the Limitation Law of Rivers State, 1988, the limitation period for the action which was founded on tort of negligence is five years.
The trial court however held that the plea of limitation did not avail the appellant having found that exhibit “A” contained an admission of liability after the period of limitation.
Aggrieved, the appellant appealed to the Court of Appeal.
In determining the appeal, the Court of Appeal considered the provision of section 99 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990, which states thus:
“99. The period specified in a writ of summons for service under this part as the period within which a defendant is required to answer before the court to the writ of summons shall be not less than thirty days after service of the writ has been effected, or if a longer period is prescribed by the rules of the court, within which the writ of summons is issued, not less than that longer period.”
Held (Unanimously allowing the appeal):
On Effect of objection to competence of suit or appeal and duty on court with respect thereto –
Where an objection is raised in respect of the competence of a suit or an appeal, the jurisdiction of the court entertaining the suit or appeal becomes an issue and the court has a fundamental, if not imperative duty to resolve the issue before delving into the merits of the case. (BA.S.F. Nig. Ltd. v. Faith Enterprises Ltd. (2010) 4 NWLR (Pt. 1183) 104 referred to.] (P. 338, paras. E-F)
On Effect where court lacks competence –
Where a court lacks competence to try a person or subject matter before it, whatever decision it arrives at on such a person or subject matter is a nullity. (Nigerian Army v. Aminun-Kano (2010) 5 NWLR (pt. 1188) 429 referred to.] (P. 338, paras. F-G)
On Effect where suit or appeal is not initiated by due process of court and upon fulfilment of conditions precedent to exercise of jurisdiction –
Where a suit or appeal is not initiated by due process of court and upon fulfilment of any conditions precedent to the exercise of jurisdiction, the competence of the court to adjudicate in the suit or appeal will be adversely affected. A court is competent when a case comes before it initiated by due process of law and upon fulfillment of any conditions precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided.
The defect is extrinsic to the adjudication. [Madukolu v. Nkemdilim (1962) 2 SCNLR 341 referred to.] (Pp. 338, paras. G-H; 340, paras. G-H)
Per EKO, J.C.A. at pages 340-341, paras. H-A:
“The writ of summons on which the entire proceedings and the processes were founded was a nullity by dint of section 99 of the Sheriffs and Civil Process Act. Since the proceedings cannot rest on nothing, the proceedings founded on the void writ of summons are consequently a nullity as a result. As Lord Denning had stated in V.A.C. v. Macfoy (1962) A.C.1S2, one cannot place something upon nothing and expect it to stay: it will fall.”
On Whether fresh issue of jurisdiction can be raised on appeal- Fresh point or issue on jurisdiction can be raised for the first time in the appeal court. (Skenconsult (Nig.) Ltd. v. Ukey (1981) 12 NSCC 1 referred to.] (P. 339, paras. A-B)
On Length of time required for entry of appearance to writ issued for service outside jurisdiction – Where a writ of summons originates in one State for service in another State, it is mandatory that there should be a period of at least 30 days between the date of service and the date that the defendant is required to appear in court. In the instant case, the writ of summons issued from the High Court of Bayelsa State, Yenegoa was for service in Port Harcourt, Rivers State. The writ was ultra vires section 99 of the Sheriffs and Civil Process Act.
[Skenconsult (Nig.) Ltd. v. Vkey (1981) 12 NSCC 1 referred to.] (P. 339, paras. A-B)
On Period of limitation for action founded on contract or tort- By the provision of section 16 of the Limitation Law No.7 of Rivers State, 1988 applicable in Bayelsa State, no action founded on contract or tort shall be brought after the expiration of five years from the date on which the cause of action accrued.
To be continued.
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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