Whether A Fresh Issue Of Jurisdiction Can Be Raised On Appeal

THE SHELL PETROLEUM DEV. CO. OF  NIG. LTD.

V.

1.  CHIEF MARK EJEBU

2. CHIEF ISAIAH PRIKAKI

(For themselves and as representing  Inesei Community of Gbaratorou)

COURT OF  APPEAL

(PORT HARCOURT DIVISION)

CA/PH/239M/2002

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.

Issues:

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.

Facts:

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.