Chevron Nigeria Limited V. Bishop Cornelius Jaripe Omomowo & Ors (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA J.C.A 

This is an appeal against the ruling of the Ondo State High Court sitting at Okitipupa delivered by Obaremo. J on the 27th January 1998 on a motion filed by the Appellant, then Defendant asking the court to dismiss the Respondents’ claim on the ground that the claim was statute barred. Dissatisfied by the Court’s ruling that the claim was not statute barred, the Appellant has appealed to this court by a Notice of Appeal dated the 6th February 1998 and filed on the 9th February 1998. The facts leading up to this appeal are that the Respondents as Plaintiffs filed a twenty eight paragraph statement of claim which are contained on pages 4-8 of the Record of Appeal. In response the Appellant as Defendant filed a fifteen paragraph statement of defence dated 10th March 1995 and which is contained on pages 18-20 of the Record of Appeal. In paragraph 13 of the said Statement of defence, the Appellant as defendant had pleaded that she would contend by way of preliminary point that the Plaintiffs (now Respondents) claim is statute barred and that it should as such be dismissed by the lower court. Paragraph 13 of the statement of defence states as

follows, “The Defendant will at the trial, take up as a preliminary point of law and contend that the plaintiffs’ claim is statute barred and should be dismissed.” By a motion on Notice dated the 6th May 1994 and filed on the 10th May 1994 and brought pursuant to sections 97 and 99 of the Sheriffs and Civil Process Law, Laws of the Federation of Nigeria and under the Court’s inherent jurisdiction, the Appellant as applicant prayed the lower court for an order inter alia “striking out and/or dismissing the Plaintiffs’ claim in this suit in that the action as disclosed both in the writ of summons and the statement of claim is statute barred by virtue of the Limitation Law of Ondo State and/or of the Federation of Nigeria. Paragraph 8 of the affidavit in support of the motion states that, “I attach herewith a certified true copies (sic) of the writ of summons and statement of claim in this suit as exhibit (sic) “B” and “C” respectively, while paragraph 10 of the same affidavit in support reads as follows, “That I am informed by Chief I.O. Jemide and I verily believe him that the Plaintiffs’ claim as disclosed in exhibit (sic) “B” and “C” is statute barred. The said motion and supporting affidavit can be found at pages 9-12 of the Record of Appeal. By another motion on Notice dated the 26th September 1995 and filed on the 18th October 1995 and brought pursuant to order 24 Rules 2 and 3 of the Ondo State High Court (Civil Procedure) Rules 1987, the Appellant as applicant prayed the High Court “for an order setting down for hearing and disposal thereof the trial of the above suit the point of law raised by the applicant in paragraphs 13 and 14 of the statement of defence annexed hereto as exhibit “A”. Paragraphs 4 and 5 of the affidavit in support of this motion read as follows –

Paragraph 4 – That I attach herewith exhibits A, B, and C respectively, the statement of claim, the writ of summons and the statement of defence in this suit.

Paragraph 5 – That I have been informed by Chief I.O. Jemide, Solicitor, that it is necessary to bring the motion to enable this honourable court dispose of the issues whether or not the claim in this suit is statute barred.”

The said motion and its supporting affidavit are contained on pages 21-23 of the Record of Appeal.

The point of law was eventually set down for hearing and was heard on the 24th September 1997 and ruling delivered on the 27th January 1998.

The trial court held that the Plaintiff/Respondents’ claim was not statute barred. Appeal against this ruling came up for hearing on the 26th September 2007. Counsel for the Appellant Chief I.O. Jemide adopted and relied on the Appellant’s Brief of argument dated 14th October 2002 and deemed filed on the 18th November 2003 as well as the Appellant’s Reply Brief dated 26’h September 2005 and filed on the 6th October 2005 and urged this court to allow the appeal, set aside the ruling of the High Court and dismiss the Respondents’ suit on the ground that it is statute barred. Prince Olu Mafo Counsel for the Respondents equally adopted and relied on the Respondents’ Brief of argument dated the 15th September 2005 and deemed filed on the 20’h September 2005. Prince Mafo submitted that the Appellant’s Reply Brief of argument did not address the critical issue of waiver. He went further to say that this case originated from Ondo State and consists of two distinct causes of action. If one of the causes of action is said to be statute barred, what of the other cause of action? he asked. He went on to say that the Appellants waived their statutory right which according to him is the basis of this appeal and urged this court to dismiss the appeal.

Reference had already earlier been made to the Notice of Appeal filed by the Appellants dated 6th February 1998, contained on pages 39-40 of the Record of Appeal: It is reproduced hereunder in its totality.

CIVIL FORM 3

IN THE COURT OF APPEAL OF NIGERIA

NOTICE OF APPEAL

ORDER 3 RULE 2

SUIT NO.: HOK/37/94

APPEAL NO:

BETWEEN:

CHEVERON NIGERIA LIMITED DEFENDANT/APPELLANT

AND

1. BISHOP CORNELIUS JARIPE OMOMOWO (HEAD OF THE OMOMOWO FAMILY AND DESCENDANTS OF ADELI ORIYOMI AWOYE)
2. EBUN OMOMOWO
3. ELISHA OMOMOWO
4. ABIYE EHINMORE
5. JOHN OMOMOWO
6. BENSON OMOMOWO

(For themselves and on behalf of the Twenty-five Units of Omomowo family in Awoye)

1. TAKE NOTICE that the Defendant/Appellant being dissatisfied the decision of the Okitipupa High Court contained in the Ruling of Honourable Justice S.O. OBAREMO dated the 27th of January, 1998, doth hereby appeal to the Court of Appeal of Nigeria upon grounds set out in paragraph 3 and will at the hearing of the appeal seek the reliefs set out in paragraph 4.

AND the appellant further states that the names and addresses of the persons directly affected by the appeal are those set out in paragraph 5.

2. PART OF DECISION OF THE LOWER COURT COMPLAINED OF: The whole decision.
3. GROUNDS OF APPEAL

(1) The learned trial judge of Okitipupa High Court, in Ondo State erred in law in holding that the Plaintiffs action or claim is not caught by the provisions of section 4(1)( d) and for (c) of the Limitation Law of Ondo States, and therefore, not statute barred.

PARTICULARS OF ERROR

i. The plaintiff writ of summons was filed on the 28th of February, 1994.

ii. In the statement of claim filed on the 28th of February, 1994, the cause of action is based on the injury or damage suffered by the plaintiffs as a result of the wrong, allegedly, committed by the defendant in 1978/1979.

iii. The writ of summons was filed more than 6 years after 1978/1979 when the alleged injury by the defendant was first inflicted on the plaintiffs.

(2) The learned trial judge erred in law when he held that the letter dated the 7th of December, 1993, as pleaded by the plaintiffs in paragraphs 23 and 24 of the statement of claim, operated to make the period of Limitation commence running from the date of the letter, rather than from 1978/1979 when the plaintiffs first suffered damage as a result of defendant’s act.

PARTICULARS OF ERROR

i. The statement of claim avers that the act of the defendant caused damage to the plaintiffs in 1978/1979.

ii. The defendant’s letter dated 7th December, 1993, reaffirmed its rejection of the plaintiffs claim, but it did not admit the claim

iii. Although the writ of summons was filed on the 28th of February, 1994, more than 6 years after the damage complained of the learned trial judge held that the limitation period commenced running from the date of the said letter, rather than from 1978/1979.

NOTE: – Further grounds may be filed on the receipt of the records of appeal.

4. RELIEF SOUGHT FROM THE COURT OF APPEAL OF NIGERIA That the ruling of the Okitipupa High Court be set aside and the plaintiffs claim be dismissed as statute barred.
5. PERSONS DIRECTLY AFFECTED BY THE APPEAL:

NAME ADDRESS:

1. Bishop Cornelius Jaripe Omomowo c/o, Their Solicitors,

and five others Prince Olu Mafo & Co.,

76, Iretolu Street,

Okitipupa, Ondo Street.

2. Chevron Nigeria Limited. c/o Their Solicitors,

Isaac Jemide & Co.

18, Efejuku Street,

Warri.

Dated at Warri this 6th day of February, 1998.

(SGD)

CHIEF I.O. JEMIDE,

For: Isaac Jemide & Co.,

Solicitors for the Defendant/

Appellant.

18, Efejuku Street, Warri.

As can be seen the Notice of Appeal consists of two grounds of appeal with attendant particulars of error. The Appellant on page 2 of her Brief of argument has distilled the following sale issue for determination by the Court of Appeal- “Was the trial Judge right in holding that the Plaintiffs action instituted on the 28th of April 1994 and as articulated in the statement of claim was not statute barred by the provisions of section 4(1)(a) and for (d) of the Limitation Law of Ondo State?

The Respondents for their part have formulated the following three issues for the determination of this appeal –

(1) Whether this interlocutory appeal is competent.

(2) Whether in view of the steps taken by the Appellant after becoming aware of the alleged defect in the Writ of summons and statement of claim the Appellant can still maintain its objection on the competence of this suit.

(3) Whether the learned trial judge was right in rejecting the Appellant’s objection.

It is pertinent at this juncture to examine all the issues formulated by the parties to ascertain which are proper issues for determination by this court in the light of the grounds of appeal in the Notice of appeal filed. To this end it must be constantly borne in mind and even restated here that issues that do not arise from the grounds of appeal are incompetent and liable to be struck out. There is a plethora of cases on this subject matter.

See for example KLM ROYAL DUTCH AIRLINES v. NOGA HOTELS (NIG) LTD. (2003) FWLR PART 184, page 317 at 329; A.G. AKWA IBOM STATE v. ESSIEN (2004) All FWLR (PART 233) page 1730 at 1737.

The two grounds of appeal without more are reproduced hereunder for emphasis –

GROUND 1 – The learned trial Judge of Okitipupa High Court in Ondo State erred in law in holding that the plaintiffs’ action or claim is not caught by the provisions of section 4(1)(d) and/or (e) of the Limitation Law of Ondo State and therefore not statute barred.

GROUND 2 – The learned trial Judge erred in law when he held that the letter dated the 7th of December 1993 as pleaded by the plaintiffs in paragraphs 23 and 24 of the statement of claim operated to make the period of limitation commence running from the date of the letter rather than 1978/1979 when the Plaintiffs first suffered damages as a result of the defendant’s act.

It will be seen even from a cursory glace at the grounds and the Issues supposedly distilled therefrom that issues 1 and 2 formulated by the Respondents do not arise from the grounds of appeal. Allusions were made to this fact in the Appellant’s Reply Brief especially and more forcefully with respect to issue I formulated by the Respondents. With respect to that issue (issue I formulated by Respondents) Respondent had stated thus “It is our respectful submission that this appeal is incompetent in that being an interlocutory appeal Notice of appeal must be filed within 15 days.” Submit that where leave is required as in this case in our humble submission leave must be sought and obtained and the Notice of appeal filed within 15 days statutorily provided in the Rules of this court. See OJE v. BABALOLA (1987) 4 NWLR PART 64, page 208 at pages 213, 214-215. See also: TUNJI BOWAJE v. MOSES ADEDIWURA (1976) SC. 143; AMUDIPE v. ARITODI (1978) 9-10 SC 27; LAMAI v. ORBIH (1980) 5-7 SC. 28″. While this may represent the true position of the law, if it is intended to be a preliminary objection to the appeal it cannot be formulated into an issue for determination. See UZOEWULU v. EZEAKA (2001) FWLR PART 46 page 932. This fact, coupled with the Issue of competence of the appeal as formulated in the Respondents Brief of argument not having arisen from the grounds of appeal makes the Respondents’ issue 1 incompetent and liable to be struck out and is accordingly so struck out. Issue 2 as formulated by the Respondents raises questions as to whether the Appellant can still maintain its objection to the competence of the suit after becoming aware of an alleged defect in the writ of summons and statement of claim. This issue does not arise from the grounds of appeal and is also liable to be struck out and is accordingly struck out. We are thus left with issue 3 as formulated by the Respondents which incidentally is the same as the sole issue formulated by the Appellant for the determination of this court. It is as to whether the trial Judge was right in rejecting the Appellant’s objection that the suit is statute barred. The Appellant framed that sole issue for determination by this court into a question which runs thus “Was the trial Judge right in holding that the plaintiffs’ action instituted on the 28th April 1994 and as articulated in the Statement of claim was not statute barred by the provisions of the section 4(1)(a) and/or (d) of the Limitation Law of Ondo State? This, to my mind is the only issue that arises for determination in this appeal and it encompasses grounds I and 2 of the Notice of Appeal.

What is the purport of section 4(1)(a) and/or (d) of the Limitation Law of Ondo State 1978? simply provides that any action founded on a simple contract or tort or action to record any amount under any enactment shall not be brought after the expiration of six years from the date on which the cause of action accrued. Appellant has submitted at page 3 of her Brief of argument that it is clear from the statement of claim particularly paragraphs 4,5,10,12,13,14,17 and 28 that the injuries and/or damages suffered by the plaintiffs (now Respondents) occurred as a result of the dredging allegedly carried out by the defendant (now Appellant) in 1978 and 1979 and on the face of the statement of claim the cause of action accrued in 1978 and 1979. The Respondents as Plaintiffs filed their Writ of Summons in this matter on the 29th February 1994, some sixteen or seventeen years after the cause of action accrued and therefore the Plaintiffs/Respondents action having been brought outside the six year period stipulated under section 4(1)(a) and/or (d) of the Limitation Law of Ondo State, was statute barred and the learned trial Judge ought to have so held. The Appellant went further to submit that the trial Judge was wrong to have held the view that because two dredging were alleged to have occurred, one in 1978/79 and another in 1993 time did not begin to run until 1993 as it was based on a wrong premise that continuity of the cause of action stops the limitation period from running. It was the Appellant’s further contention that the fact that the parties were negotiating did not affect the accrual of the cause of action.

Respondents for their part have submitted that it is clear from the statement of claim that there are two dredging operations (1978-1979 and 1993) and two distinct causes of action in this suit a fact which it is said the Appellant has failed to appreciate hence the blanket prayer that the entire suit be struck out. Joinder of two or more causes of action, the Respondents contend is permissible under Order 4 Rule 1 (1) of the Ondo State High Court (Civil Procedure) Law 1998. Assuming without conceding that the complaints arising from the original dredging is statute barred the suit was filed within four months after the dredging to location UK” and the Appellant remains liable for this claim which it has failed to defend. When did the cause of action accrue and become complete? the Respondents asked. They further submitted in their brief of argument that the time and date i.e. 7th December 1993, when the Appellant finally rejected the Respondents’ demand or claim is relevant in computing when time began to run. Reliance was placed on ADIMORA v. AJUFO & ORS (1988) 6 SCNJ 18 at pages 19, 22 and 23.

Respondents have submitted in their Brief of Argument that as plaintiffs they were handicapped from commencing action as shown in paragraphs 12, 13, 14, 15, 16, 17, 18, 19 and 20 of the statement of claim because damages could not be quantified, dispute was raging on the ownership of the land dredged and attendant litigation and all these in the light of ADIMORA v. AJUFO (Supra) have to be taken into account in determining the date the cause of action became complete and/or accrued and not when the damage or violation of Plaintiffs/Respondents right was committed.

What is a cause of action? In its simplest terms a cause of action simply means a right to institute action or a right to sue or a right to seek judicial relief for example for an infringement and it accrues to the person who seeks to take action the time action complained of occurs. There is a plethora of case law on the subject matter. See for example OMOTAYO v. NRC (1992) 7 NWLR PART 254 page 471 at 483. A cause of action and the time of the accrual of a cause of action are determinable by having a look at the writ of summons and more particularly the statement of claim. It is not in contention that this appeal is premised on the provisions of section 4(1)(a) and (d) of the Limitation Law of Ondo State” and being one founded in tort, action must be brought, commenced or filed within six years of the accrual of the action complained of. Appellant has submitted that the cause of action in this suit is spelt out in the statement of claim and more particularly at pages 4, 5, 10, 12, 13, 14, 17 and 28. The statement of claim is dated the 28th February 1994 and can be found at pages 4-8 of the Record of Appeal. The paragraphs of the statement of claim highlighted by the Appellant in her Brief of argument are reproduced for their content, purport, and interpretation.

4. The Defendant company was originally known as GULF OIL, COMPANY (NIGERIA) LIMITED, and it was Gulf Oil Company (Nigeria) Limited that dredged the canal which destroyed permanently the fishing grounds of the Plaintiffs in 1978.
5. The Plaintiffs aver that the dredging of their ancient fishing grounds – a major source of income, brought the Plaintiffs fishing activities/operations to an abrupt end in 1979.
6. The Plaintiffs aver that without the canal dredged in 1978 by the Defendant, they had no means of carrying out oil explorations in the Awoye area of Ilaje Ese-Odo Local Government.
7. The Plaintiffs contend that if the Defendant seeks to enrich itself in the on-going oil exploration if the area dredged, it is unjust to deny the Plaintiffs family substantial compensation for the irreversible loss of their ancient fishing grounds and permanent loss of earnings – arising from the said dredging of the finding grounds.
8. The Plaintiffs aver that as a direct result of the canal dredged from Opuekeba to the Plaintiffs’ ancient settlement in Awoye, the sea incursion accelerated, and under 5 years endangered the Plaintiffs’ family to move inland twice since the canal was dredged in 1978.
9. The Plaintiffs say that the Defendant gave some financial assistance to the Plaintiffs to move inland, when the sea incursion open up to the end of the Defendant’s canal at the bank of the Atlantic Ocean, thereby endangering lives and property in the Plaintiffs second settlement after the 1976 dredging of their fishing grounds.
10. The Defendant have refused and are still refusing to pay statutory compensation to the Plaintiffs for the irredeemable injury occasioned by the dredging in 1978 of their ancient fishing grounds.
11. AND THE PLAINTIFFS claim the following reliefs against the Defendant, viz:

(1) A DECLARATION that the Plaintiffs, as owners of the land/fishing ground dredged in 1978, at the outskirts of Awaye town in ILaje Ese-Odo Local Government Area of Ondo State, the Plaintiffs are entitled to compensation in the manner stipulated by Oil/Petroleum Acts, the Land Acquisition Act and the 1979 Constitution of the Federal Republic of Nigeria.

(2) A DECLARATION that the Defendant is bound by law to pay to the Plaintiffs prompt and adequate compensation for permanent loss of their Fishing Grounds and for permanent loss of earnings from the fishing grounds dredged by the Defendant in 1978.

(3) A DECLARATION that the Defendant is, under statutory obligation to pay to the Plaintiffs compensation under specific heads of claim stipulated in Oil/Petroleum Acts, and that the Defendant has wrongfully refused to pay the said compensation.

(4) N85,000,000.00 (eighty-five Million Naira) being special and general damages and or statutory compensation – against the Defendant for the irredeemable damage/injury inflicted on the Plaintiffs.

(5) INJUNCTION restraining the Defendant, their agents, servants, privies, or otherwise howsoever from carrying out further oil explorations/activities in the area dredged, including the new locations ‘L’ and ‘K’ at the back of the 1st and 2nd Plaintiff houses in Awoye II.

DATED the 28th day of February, 1994.

(Signed)

PRINCE OLU MAFO & CO.

COUNSEL TO THE PLAINTIFFS,

“EREJUWA PLAINTIFFS,

76, IRETOLU STREET,

OKITIPUPA.

FOR SERVICE ON:

CHEVRON NIGERIA LIMITED

KILOMETER 19 EPE EXPRESSWAY

ETTI OSA LOCAL GOVERNMENT AREA,

LEKKI PENNISULAR,

LAGOS STATE.

From the paragraphs of the statement of claim highlighted above, there is little or no doubt that the injuries and/or damages suffered by the Plaintiffs/Respondents occurred as a result of the dredging said to have been carried out by the Appellant as defendant in 1978 and 1979. It is for this reason that the Appellant has contended that the cause of action accrued in 1978 and 1979, and that by the provisions of section 4(1)(a) and (d) of the limitation law of Ondo State, the Plaintiffs’ Respondents action having been filed on the 28th February 1994 was filed more than six years after the accrual of the cause of action and is therefore statute barred. Heavy weather appears to have been made by the Respondents of the fact that apart from the cause of action in 1978 and 1979, there is another cause of action with the Appellant’s dredging of location “K” in 1993, and that the joinder of two or more causes of action is permissible under order 4 Rule 1(1) of the Ondo State High Court (Civil Procedure) Rules 1988. Order 4 Rule 1(1) states as follows, “subjection to Rule 3, a Plaintiff may in one action claim relief against the same defendant in respect of two or more causes of action.”

There would appear to be no ambiguity in this provision. The purport of Order 4 Rule 1 (1) is that a Plaintiff is at liberty to claim relief in one action against the same defendant not only with respect to one but two or even more causes of action. But does the 1993 dredging of location “K” by the Appellant constitute a separate cause of action? Appellant has dismissed this contention and has submitted that the mere averment in paragraph 20 of the statement of claim which is referable to the Appellant’s dredging of location “K” in 1993 does not ground a fresh or second cause of action but is simply a continuation of the cause of action which commenced in 1978. To this it tied the question of what part negotiation between parties has to play in the running of time and the accrual of the cause of action. To this end it has become necessary to quote copiously from the trial Judge’s finding at page 37 of the Record of Appeal. His Lordship had stated as follows, “When did the Plaintiffs come out openly to state its (sic) final decision.

The event would seem to be the last straw the accrual of the cause of action.

By a letter dated 10/12/93 it was then the Plaintiff stated their final decision.

It was then the cause of action because complete and the action was filed on 28/2/94 within 3 months of the receipt of the letter. The S.C. decisions in ADIMORA v. AJUFO (1988) supra and SAVANNAH BANK OF NIGERIA LTD (1987) 1 NWLR (PART 49) provide adequate answer to the limitation of action objection. In my view two dredging are involved in the suit, that of 1978 and late 1993. The suit was commenced on 28/2/94.

It was the prevarications of the Defendant which dragged the payment of compensation question. It seems to me with respect that this is a continuity cause of action which became complete on 17/12/93 upon which the defendant finally wrote to deny liability, upon which the Plaintiff came to court within 2 months – December 1993.”

It has become very necessary to state rather categorically that the mere fact that the parties entered into serious negotiations with a view to settling the matter amicably out of court has no relevance to the accrual of the cause of action and when time begins to run. That the Appellant stated her final decision in December 1993 and that was when the cause of action became complete, does not represent the correct position of the law. Time begins to run immediately the act complained of takes place. There is a plethora of cases on this subject matter, but see for example OMOJAYO v. NRC (192) 7 NWLR PART 254, 471 at 483.

Cases are legion where parties with causes of action of this nature, have, quite oblivious of limitation of action provision in our laws, unwittingly allowed negotiations to go on without filing actions in court within the time frame allowed by law. There is no doubt from paragraphs 4, 5, 10, 12, 13, 14, 17 and 28 of the statement of claim already reproduced in this judgment that the injuries and/or damages suffered by the Respondents occurred as a result of the dredging allegedly carried out by the Appellant in 1978 and 1979. Respondents have dwelt very much on the case of ADIMORA v. AJUFO (Supra). That case had to do with a contract for sale of land which was conditional upon the defendants being victorious in a pending suit, and of course the Supreme Court quite rightly held that the cause of action could not have accrued until the defendants succeeded in winning the case. It is therefore clear and rather unfortunate that the Respondents have cited Adimora’s case (supra) out of context. Adimora’s case (supra) certainly did not decide that the accrual of a cause of action does not commence from the time when the wrongful injury complained of takes place, neither does it sanction prevarication by the party who complains about a wrong from filing a lawsuit within the time frame stipulated by law and has to wait and know the outcome of whatever negotiations are in progress before doing so. These observations are of course with respect to the 1978-1979 dredging by the Appellants commonly referred to as the first cause of action. Did the Appellant’s dredging of location “K” in 1993 constitute a separate cause of action? Paragraph 20 of the statement of claim reads as follows, “The Plaintiffs say that late last year the Defendant dredged another part of the Plaintiffs’ land/fishing grounds, and caused considerable damage to Plaintiffs’ property thereby: it is known and called location “K” which said location is situate less than a quarter of a kilometer from the 2″‘ Plaintiffs house.” (Underlining mine for emphasis).

Before proceeding further it is necessary to state that the phrase “late last year” can only refer to late 1993 since the statement of claim is dated 28th February 1994. Paragraph 21 throws more light on the 1993 alleged dredging by the Appellants in location “K” -” The drilling activities of the Defendant at location “K” constitutes grave hazard to the lives and proprietary interests of the Plaintiffs and the situation is unbearable during night time: normal sleep is no longer possible in the area and this affects the Plaintiffs and members of their household adversely.” The expression, “another part of the Plaintiffs’ land/fishing grounds” in relation to the 1993 dredging occurring in paragraph 20 of the statement of claim can only refer to another and separate event from that which occurred in 1978/1979 and which later act (the 1993 dredging) brought its own tale of woes on the Respondents as enunciated in paragraph 21 of the statement of claim. It will therefore not be correct to say as the Appellant has done that the 1993 act is a continuation of the 1978/1979 act. Most certainly and I so hold, the 1993 alleged dredging of location “K” by the Appellant is a separate cause of action distinct and distinguishable from the 1978/1979 event.

As has been noted earlier the clear and unambigous provisions of Order 4 Rule 1(1) of the Ondo State High Court (Civil Procedure) Rules 1988 allow two or more causes of action to be brought in one action. The second cause of action – the dredging of local “K” accrued in 1993. The statement of claim is dated 28th February 1994. Action with respect to the dredging of location “K” was therefore commenced within a year but most certainly within the six year time frame stipulated by the limitation law. I now want to turn my attention to paragraph 5.3 at pages 11-12 of the Appellant’s Reply Brief where it was stated as follows, “From the particulars of damage listed in paragraph 21 and heads of claim in paragraph 28 (1)-(5) of the statement of claim, there is nothing to show that some or any of the heads of claim are tied, exclusively or restrictively or even at all to the dredging which occurred in 1993. On the contrary all the claims have been lumped together as for compensation and or general damages or for injunction in general and the year 1993 does not appear in any of the items of particulars of special damage in paragraph 21 or heads of claim in paragraph 28 of the statement of claim. It is obvious on the face of the statement of claim that the damages or injury alleged sustained by the Plaintiffs from 1978 to 1993 are not separable from those sustained or suffered in 1993 and beyond. The submission of the Plaintiffs/Respondents counsel that two distinct causes of action have been joined in the suit is therefore most untenable.”

Paragraphs 21 and 28 of the statement of claim had earlier been reproduced. As will be seen paragraphs 28 (1) and 28(2) of the statement of claim refer and are tied specifically to the 1978 dredging. The other reliefs sought in paragraph 28 i.e. 28(3), 28(4) and 28(5) cannot be said to be tied specifically to the 1978/79 alleged act of dredging by the Appellant. Like Siamese twins the reliefs sought in the 1978/79 and the 1993 alleged acts of dredging by the Appellant are inextricably tied or linked together in the suit and a thorough surgical operation will have to be carried out by evidence to separate them. As has been seen the two causes of action viz 1978/79 and 1993 can and have been properly brought together in this one action in the court below by the unambiguous provisions of Order 4 Rule 1(1) of the Ondo State high Court (Civil Procedure) Rules 1988 and will have to be tried together.

I therefore hold that the action is not statute barred. I therefore dismiss the interlocutory appeal and affirm the ruling of S.O. Obaremo. J of the High Court of Justice Okitipupa – Ondo State delivered on the 27th January 1998 in Suit No. HOK/37/94. I also order that this Suit be remitted back to S.O. Obaremo. J of the Okitipupa High Court, Ondo State or any other Judge of the Ondo State High Court as the Chief Judge of Ondo State shall direct for continuation of hearing and determination.

There shall be N30,000.00 costs in favour of the Respondents against the Appellant.

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Other Citations: (2007)LCN/2558(CA)