➥ CASE SUMMARY OF:
The Shell Petroleum Dev. Co. of Nig. Ltd v. Chief Mark Ejebu & Anor (2010) – CA
by “PipAr” Branham-Paul C. Chima, SAL.
➥ COURT:
Court of Appeal – CA/PH/239M/2002
➥ JUDGEMENT DELIVERED ON:
8th July 2010
➥ AREA(S) OF LAW
Days to enter appearance on writ of summons;
Negotiation and statute of limitations.
➥ PRINCIPLES OF LAW
⦿ JURISDICTION IS A THRESHOLD ISSUE
I intend to consider first the Issue of jurisdiction canvassed under Issue 3. It is a threshold issue. It is now universally accepted that when an objection is raised in respect of the competence of a suit or an appeal, the jurisdiction of the court that entertained the suit becomes an issue and that the court has a fundamental, if not imperative, duty to resolve the issue before delving into the merits of the case. See B.A.S.F. NIG. LTD v. FAITH ENTERPRISES LTD (2010) 41.1 NSCQR 381 at page 411 per Adekeye JSC. It is an established principle of Nigerian law that 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) 41.1 NSCQR 76. If the suit or appeal was not initiated by due process of court and upon fulfillment 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: MADUKOLU v. NKEMDILIM (1962) 2 SCNLR 342. — E. Eko, JCA.
⦿ NEGOTIATION DOES NOT STOP THE PERIOD OF LIMITATION FROM RUNNING
The learned trial Judge rightly conceded at page 31 of the Record, in her Ruling, that it is settled law that generally negotiation by the parties does not prevent or stop the period of limitation stipulated by a statute: from running. The law on this, as stated by the Supreme Court in JOHN EBOIGBE v. NNPC (1994) 5 NWLR [pt.346] 649 at 660 per Adio JSC, is that when in respect of a cause of action, the period of limitation begins to run, it is not broken, and it does not cease to run, merely because the parties engaged in negotiation. The rationales for this is that the parties can not by conduct or consent add to, or subtract from, the contents of a statute. Cases of waiver of a private right under a statute are different issues altogether. — E. Eko, JCA.
⦿ ACCEPTANCE OF LIABILITY WILL STOP PERIOD OF LIMITATION FROM RUNNING
It is also settled law that generally negotiation by the party does not prevent or stop the period of limitation stipulated by a statute from running. This however is subject to qualification that where there has been admission of liability during negotiation and all that remains is fulfillment of the agreement it can not be just and equitable that the action would be barred after the statutory period of limitation giving rise to the action if the defendant were to resile from the agreement during negotiation. See NWADIARO v. SHELL PET. DEV. COY (1990) 5 NWLR (Pt.150) page 322 at 338 – 339; SHELL PET. DEV. COY. V. FARAH (1995) 3 NWLR (Pt.382) page 148 at 156 ratio 4. — E. Eko, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Dejo Lamikanra, Esq.
⦿ FOR THE RESPONDENT
➥ CASE FACT/HISTORY
The claim of the Respondents as per their joint statement of claim is for the sum of N100m (one Hundred Million Naira) being and representing general and special damages for the blockade of AKANAFA LAKE by the Defendant’s Deep Access Road, within the jurisdiction of the honourable court. The writ of summons was taken out on 27th day of July, 1998.
The statement of claim avers, inter alia, that some time in 1991 the Defendant, now the Appellant, constructed its Gbaram Deep Field Access Road across Akanafa Lake and thereby sand-filled and completely blocked the Akanafa Lake and effectively prevented movement through the lake to the extent that while one side of the lake is flooded the other side is dried, thus causing permanent flood on one side of the swamps, lakes and ponds and total deprivation on the other side.
Paragraphs 11 and 12 of the Statement of Defence aver – 11. The Defendant states that the cause of action (being claims for damages arising from the tort of negligence in the construction of the Gbaran Deed Access road) did not arise within the Limitation period as provided for by the relevant statute before the commencement of this action and is barred. 12. The defendant states that the Plaintiffs’ cause of action accrued in 1991, while the writ was issued on 27 .07 98.
Kate Abiri, J heard the parties on this issue of limitation and in the reserved Ruling delivered on 19th January, 2000 she held that the plea of limitation did not avail the Defendant. The application was dismissed in its entirety.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
♎ I. Whether this suit was initiated by a valid writ of summons?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE WRIT OF SUMMONS IS VOID AB INITIO FOR NOT GIVING A PERIOD OF ATLEAST 30 DAYS FOR DEFENDANT TO MAKE APPEARANCE
“The Appellant’s contention under this issue is that the writ of summons, at page 1 of the Record, whereby the Appellant, as the Defendant, was “commanded” within eight days after service of this writ on you, inclusive of the day of such service, you do cause an appearance to be entered for you in an action of at the suit of CHIEF MARK EJEBU and ANOR – and which writ was for service in Port Harcourt, Rivers State was a writ to be served in another state outside the jurisdiction of Bayelsa state High court, and that the writ of summons was illegal and a nullity in view of the provisions of section 99 of the Sheriffs and Civil Process Act, Cap 407 1990 LFN … The writ of summons in this suit, issued on 27th July 1998 from Bayelsa State High Court sitting at Yenegoa for service in Port Harcourt, Rivers State is undoubtedly ultra vires section 99 of the Sheriffs and Civil Process Act. This was the situation in SKENCONSULT (NIG) LTD v. UKEY SEKONDI (supra). The writ, it was held there, was a nullity ab initio. In the words of Udoma JSC at page 9 of the report – “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.” As the Supreme Court stated in MADUKOLU v. NKEMDILIM (supra), a court is competent inter alia when the case comes before it initiated by due process of law and upon fulfillment of any condition 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. I allow the appeal on this issue … 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 can not rest on nothing, the proceedings founded on the void writ of summons the consequently a nullity as a result. As Lord Denning had stated in U.A.C. v. MACFOY (1962) A.C. 152, one can not place something upon nothing and expect it to stay: it will fall.”
LEGISLATION: section 99 of the Sheriffs and Civil Process Act, Cap 407 1990 LFN.
.
.
♎ II. Whether the trial High Court was justified in holding that the respondents’ action was not statute barred by reason of the Defendant/Appellant’s, letter, Exhibit ‘A’?
RULING: IN APPELLANT’S FAVOUR.
A. THAT THE SUIT IS STATUTE BARRED
“It is therefore, now, a common ground, acceptable to the parties, in this appeal that the cause of action arose in 1991 when the Appellant constructed the access road and that time, for purposes of limitation, began to run from 1991. Section 16 of the Rivers State Limitation Law No 7, 1988, applicable in Bayelsa State, is unambiguous in providing that 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. Therefore, if as found by the learned trial Judge, the cause of action occurred in 1991 and time began to run against the plaintiffs/Respondents; in or from 1991; it follows that the five years limitation period will run out in 1996. Prima facie, the cause of action vested in the plaintiffs/Respondents in 1991 before or by 1997, not to talk about 27th July summons was taken out.”
“What I am saying, in summary, is that the suit of the plaintiffs the present respondents, became statute barred by 1996 and that by dint of section 16 of the Limitation Law, 1988 it was not maintenable as at 27th July 1998 when the writ of summons in the suit was taken out. I hold this view inspite of Exhibit ‘A’, which is not a categorically binding agreement. Exhibit ‘A’ does not possess any potency to extend the limitation period of 5 years statutorily prescribed for the tort alleged. Even if Exhibit ‘A’ constituted an agreement or an admission it created or established a new contractual regime or relationship independent of the cause of action that arose, or accrued to the Plaintiffs, in 1991.”
LEGISLATION: section 16 of the Rivers State Limitation Law No 7, 1988.
.
.
.
✓ DECISION:
“The appeal has substance. It is hereby allowed. The suit no YHC/54/98 at the High Court of Bayelsa State sitting at Yenegoa shall be, and is hereby dismissed.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
