Whether Action Is Statute-Barred, How Determined?

0
7153

Mr. Peter Anukwu

(Trading under the name and style of Prechosons & Co.
Enterprises)

V.

1.Eliseus Eze

2.Wilfred Anekwe

3.Benson Ezeobi

Court of Appeal

(Owerri Division)

Facts:

Before the High Court of Abia State, the appellant on 3rd
June 1997 claimed inter alias against the respondents jointly and severally,
declaration of ownership of a tractor, surrender of the vehicle and damage.

Upon being served with the claim, the respondents field
their statement of defence wherein they averred that the action was a ruse,
unmaintainable, spurious, frivolous, statute barred and an abuse of judicial
process to the irritation and annoyance of the respondents. Later, 1st and 2nd
respondents on 7th September 2000 filed an application praying the court to
dismiss the action in its entirety on grounds of statute bar, abuse of judicial
process and want of jurisdiction.

After a review of counsel’s submission on the application,
the trial court ruled that the action taken out in 1997, fifteen years after
the cause of action arose in 1982, was statute barred. It dismissed the suit
accordingly.

Dissatisfied, the appellant appealed to the Court of Appeal.
In determining the appeal, the Court of Appeal considered the provision of
section 7(4) of the Limitation Act, 1966 which provides:

“7(4)    subject to the
provisions of Section 8 of the Act, an action founded on tort shall not be
brought after the expiration of six years from the date on which the cause of
action accrued.”

Held (Unanimously dismissing the appeal):

1.On What constitutes cause of action –

A lis or cause of action is constituted by a bundle of facts
which the law will recognize as giving the plaintiff a right of action. It is a
situation or state of facts which would entitle a party to sustain action and
give him right to seek judicial remedy or redress. It consists of every fact
that would be necessary for the plaintiff to prove, if traversed, in order to
support his right to the judgment of the court. In other words, a cause of
action means a bundle or aggregate of facts which the law will recognize as
giving the plaintiff substantive right to make the claim for the relief or
remedy sought. Such facts or combination of fact, which give rise to a right to
sue, may consist of two elements, viz:

(a) the wrongful act of the defendant which gives the
plaintiff his cause of action; and

(b) the consequential damage

(Akibu v. Odunan (2000) 123 NWLR (Pt. 685) 446; Fadare v.
A.-G., Oyo State (1982) 4S.C. 1; A.-G., Fed. V. Abubakar (200&) 10 NWLR
(Pt. 1041) 1; Kusada v. Sokoto N.A. (1968 SCNLR 522; Akilu v. Fawehinmi (No. 2)
(1989) 2 NWLR (Pt. 102) 122; Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45)
828 referred to.) (Pp. 68, paas. F-G; 74-75, paras. F-A).

2.On Document court considers to determine whether action is
statute barred –

In order to determine whether or not an action is statute
barred the document to be considered are the writ of summons and statement of
claim only. The court will necessarily, restrict itself to the plaintiff’s
statement of claim without having any recourse to the defendant’s statement of
defence or to the evidence. Once the time pleaded in the writ of summons is
beyond the period allowed by the limitation law, the action is statute barred.
In the instant case the totality of the relevant pleading of the appellant
suggested unequivocally that the appellant’s cause of action in respect of
conversion and/or wrongful detention of the Mercedes Benz accrued in 1982 and
the appellant’s action, which was brought 15 years after in 1997 was statute
barred. (Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890) 398; Ibekwe v. I.S.E.M.B.
(2009) 5 NWLR (Pt. 1134) 234; Shell B.P. Petroleum Dev. Co. v. Onosanya (1976)
6 SC 89 referred to.) (P. 68-69, paras. H-C) Per ABBA AJI, J.C.A. at page 75,
paras. C-E:

“In the instant case, the relevant paragraphs of the
appellant’s pleading suggest that the appellant’s cause of action in respect of
conversion and or wrongful detention of his Mercedes Benz Tractor accrued in
1982 and the finding of the Learned trial Judge that the appellant’s cause of
action which was in the tort of detention and conversion brought 15 years after
from 1982 is statute barred. I have made a critical examination of the
appellant’s pleading more especially of paragraphs 15, 16, 18 and 27 which goes
to support that the appellant’s cause of action in respect of conversion and or
wrongful detention of the Mercedes Benz occurred in 1982.”

3.On Limitation period for action in tort –

By virtue of section 7 (4) of the Limitation Act 1966, an
action founded on tort shall not be bought after the expiration of six years
from the date on which the cause of action accrued. The provision of the
limitation law is stringent. Indeed, a limitation law is strict liability law. (Eboigbe
v. NNPC (1994) 5 NWLR (Pt. 347) 649; Sanda v. Kukawa Local Govt (1991) 2 NWLR
(Pt. 174) 379; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224 referred to.) (P. 70,
paras. F-H).

4. On Whether the Limitation Act of 1966 admits of exception
as to period of imprisonment of plaintiff –

The provision of Section 7(4) of the Limitation Act 1966
permits of no such exception as imprisonment of the plaintiff, or any orders
which would have been provided for at common law or under the statute of
Limitation 1623 which created some exceptions in relation to imprisonment. (P.
71, para. A).

5.On determination of whether an action is statute-barred –

In determining whether an action is statute-barred or not,
the most crucial consideration is when the cause of action arose, and because
of the strictness of the limitation law, what is involved in between the
accrual date of the cause of action and the filing of the write of summons is
an arithmetic or mathematical exercise. In the instant case the trial court was
right in computing the accrual date or limitation period, to hold that the
cause of action accrued in 1982 and was barred 6 years therefrom. (Adekoya v.
FHA (2008) 11 NWLR (Pt. 1099) 539 referred to.) (P. 71, paras. B, H)

6. On Whether determination of whether an action is
statute-barred can be done in limine –

The determination of whether an action is statute barred
could be done in limine without calling oral evidence. (Adekoya v. FHA (2008)
11 NWLR (Pt. 1099) 539; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 referred to.)
(P. 72, para. B).

7. On Purpose and effect of limitation period and proper
order for court to make where an action is statute barred –

The main purpose of the limitation period is to protect a
defendant from injustice of having to face a stale claim. Thus, where an action
is statute barred a plaintiff who might otherwise have had a cause of action
loses the right to enforce the cause of action by judicial process, because the
period of time laid down by the limitation law for instituting such action has
lapsed. In the instant case, the trial court was right to have dismissed the
appellant’s claims having found that it was statute-barred, (Ibeto Cement Co.
Ltd. V. A.-G., Fed. (2008) 1 NWLR (Pt. 1969) 470; Amede v. UBA (2008) 8 NWLR
(Pt. 1090) 623 referred to.) (P.73, paras. B-E)

Per OWOADE, J.C.A. at page 73, paras. A-F:

“The question arises, how does an order of striking out help
a plaintiff whose action is statute barred. The answer is that a statute-barred
action cannot be amenable in any manner to give it life as an action because
the time granted by law to commence it s gone and cannot be rewind. From this
perspective, I think even if a trial Judge struck out a claim that is
statute-barred such striking out is as good if not synonymous to an order of dismissal.
In Ibeto Cement Co. Ltd, v. Att. – Gen. Federation (2008) 1 NWLR (Pt. 1069) 470
at 497, Peter Odili, JCA (as he then was) held that where an action is
statute-barred, a plaintiff who might otherwise have had a cause of action by
judicial process because the period of time laid down by the limitation law for
instituting such action has lapsed.

Also, in Amede v. UBA (200* 8 NWLR (Pt. 1090) 623 at 655
ABBA AJI, JCA, said “the main purpose of the limitation period is to protect a
defendant from injustice of having to face a stale claim.”

In other words, where an action is statute-barred, a
plaintiff who would have had a cause of action automatically loses the right to
enforce the cause of action by judicial process because the time laid down by
the relevant limitation law for instituting the action has lapsed. Ibekwe v.
I.S.E.M.B. (supra). Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401 at 429. The
justification therefore for an order of dismissal rather than that of striking
out a suit when an action is statute-barred is that the plaintiff’s wrong and
consequential damage that is the cause of action is no longer enforceable by
judicial process. Thus, the judicial process which becomes deprived of
jurisdiction may as well close its eyes permanently to such a cause of action.”

Nigerian Cases Referred to in the Judgment:

A-G., Fed. V. Abubakar (2007) 10 NWLR (Pt. 1041) 1.

Abubakar v. B. O. & A.P. Ltd (2007) 18 NWLR (Pt. 1066)
319

Adebajo v. Ogun State Sports Council (2005) WRN 172

Adekoya v. F.H.A. (2008) 11 NWLR (Pt. 1099) 539

Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446

Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122

Amede v. U.B.a., (2008) 8 NWLR (P.t. 1090) 623

Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828,

Ebenogwu v. Onyemaobim (2008) 3 NWLR (Pt. 1074) 396

Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt. 347) 649

Egbe v. Adefarasin (No. 2) (1987) 1 NWLR (Pt. 47) 1

Ethiopian Airlines v. Afribank Plc (2006) 17 NWLR (Pt. 1008)
245

Fadare v. A.-G., Oyo State (1982) 4 SC 1

Ibekwe v. I.S.E.M.B. (2009) 5 NWLR (Pt. 1134) 234

To be continued