Romen Ogboru & Ors V. Shell Petroleum Development Company of Nigeria Limited & Ors (2005)
LawGlobal-Hub Lead Judgment Report
ABBA AJI, J.C.A.
The appellants in this appeal instituted this action against the respondents before High Court Delta State in the Warri Judicial Division claiming the following reliefs jointly and/or severally against the respondents:-
“(1) A declaration that the plaintiffs are the children of late Solomon A. Ogboru who are entitled to service benefits and the scholarship scheme approved by the first defendant for the benefit of the children of the deceased.
(2) Order on the first defendant to pay the service benefits to the third defendant for the service benefits of the children of Solomon A. Ogboru.
(3) Order on the first defendant to replace the names John S. Ogboru, Miss Gasis Ogboru and Miss Areke Ogboru falsely placed in the first defendant’s master list of the children of late Solomon A. Ogboru with the names of the plaintiffs who are the only children of the deceased; Solomon A. Ogboru.
(4) Order on the second defendant to give account of the management of the personal property of the late Solomon A. Ogboru comprising (a) Two Cars (b) One Austin Bedford lorry bearing registration number WF … (c) Two buildings in Warri; and Effurun (d) Money at the African Continental Bank Plc, Ughelli, First Bank of Nigeria Plc (Standard Bank of Nigeria Ltd.) and Union Bank of Nigeria Plc (Barclays Bank of Nigeria Ltd.) with accruable interest of 80%.
(5) N50,000,000.00 (fifty million naira) against the first defendant being general damages in that on the 13th of February, 1981 the deceased S. A. Ogboru was burnt to death in the company premises in Warri in the course of his official duties without any rescue of the deceased from the first accident by the first defendant thereby depriving the plaintiffs their dependancies on their deceased father S. A. Ogboru.
(6) 400% interest on the moneys payable to the plaintiffs as claimed above being the rate of inflation on the said moneys.”
Pleadings were filed and exchanged. Thereafter, the respondents filed a motion under Order 24 of the High Court (Civil Procedure) Rules, 1988 of the Bendel State of Nigeria as applicable to Delta State seeking the Order of the lower court to dismiss the action of the appellants on the ground that the action is statute-barred. The lower court in a reserved ruling delivered on the 28th day of October, 1996 dismissed the suit of the appellants. This is what the learned trial Judge held in dismissing the appellants’ claim:
“In paragraph 5 of the statement of claim, the plaintiffs/respondents averred that Solomon Ogboru, their father was burnt to death while executing his duties in the course of his employment with the 1st defendant on the 13th day of February, 1981. The cause of action therefore arose on the 13th February, 1981 and time begins to run from that date for the purposes of statutory limitation of actions, This action was not filed until 11th day of July, 1995 – a period of 14 years after the cause of action arose, I am therefore of the clear view that the cause of action is statute barred, I am unable to accede to the submission of learned counsel for the plaintiffs that time does not run against the plaintiffs because the 1st and 2nd defendants are implied trustees of late Solomon A. Ogboru and a case of fraud and breach of trust was established against them, Exhibits DM1 and DM2 show clearly that late Solomon Ogboru listed in his record of service with the 1st defendants, Ogboru, Oasis Ogboru, and Anekes, Ogboru as his children and as such the submission of learned counsel for the plaintiffs/respondents that the 2nd defendant/applicant changed or replaced their names as children of late Solomon Ogboru is untenable. Suffice it therefore to say that the plaintiffs/respondents have not established a case of fraud and breach of trust against the 2nd defendant/applicant. The submissions of learned counsel for the plaintiffs/respondents that as the 2nd defendant/applicant filed an unconditional appearance he has waived his right to raise the statute of limitation is misconceived because exhibit DDM7 attached to the reply to the counter-affidavit puts it beyond argument that a conditional appearance was filed by the defendants/applicants and not an unconditional appearance.
The plaintiffs/respondents in this case are left with nothing to enforce because the action is statute-barred and the proper order to make in the circumstances is the one dismissing the plaintiffs’ case in its entirety, Accordingly, the plaintiffs’ claims are hereby dismissed with costs assessed at N200,00 to the 1st and 2nd defendants/applicants,”
The appellants being dissatisfied with the said ruling appealed to this court upon five grounds of appeal. The grounds of appeal without their particulars reads:
“(1) The ruling is against the weight of evidence.
(2) The learned trial Judge erred in law when he held that the action is statute-barred.
(3) The learned trial Judge misdirected himself on the facts of the case when he held that the action of the plaintiffs/respondents was statute-barred and thereupon dismissed same without considering the full evidential value of the exhibits attached to the affidavit, further and better affidavit and counter-affidavit thus occasioning miscarriage of justice.
(4) The learned trial Judge erred in law when it failed to hold that the 2nd defendant/applicant had by his memorandum of appearance filed on the 26/7/95 personally has submitted to jurisdiction and he cannot in the circumstances raise an objection to the jurisdiction of the lower court to entertain the suit.
(5) The learned trial Judge erred in law when he failed to determine whether the 5th relief claimed by the plaintiffs/applicants can be severable in considering the justiceability of the claims of the appellants.”
The appellants were granted leave by the court on the 8th of April, 1997 to depart from the rules of this court abridged time to file the appellants’ brief and to accelerate the hearing of this appeal.
In compliance with the rules of this court, briefs of argument were filed and exchanged. In the appellant’s brief, four issues were formulated for the determination of the appeal. The issues are:
“(1) Whether the causes of action as stated in the reliefs sought in the writ of summons/statement of claim filed by the appellants are in the circumstances of the case justiceable?
(2) Whether the learned trial Judge was right in the circumstances of the case to hold that the cause of action arose on the 13th of February, 1981 and as such statute barred?
(3) Whether the second respondent, has by memoranda filed, submitted himself to jurisdiction and thereby waived any protection/immunity from the action or legal redress by the appellants against him?
(4) Whether the fifth relief in the writ of summons/statement of claim is jusliceable and if it is not
justiceable whether it can be severed from the reliefs sought under the rules of the lower court?
(5) Whether the learned trial Judge was right to have lumped the respondents together and considered their liabilities to the suit together and not severally?”
The respondents on the other hand identified three issues in the determination of the appeal, viz:
“(1) Whether from the affidavit facts placed before the learned trial Judge, the plaintiffs’ claim was statute barred or stale and if so whether the learned trial Judge was right in dismissing plaintiffs’ claim in its entirety?
(2) Whether the 2nd respondent by entering unconditional appearance waived or forfeited his legal right to contend that plaintiffs entire suit was statute barred or stale?
(3) Whether the reliefs of the plaintiffs’ could be severed/separated from each other despite the fact that they are all dependent on the death of the plaintiffs’ father in a tragic fire incident on 13/2/81 which indeed is the cause of the action?”
On the hearing of the appeal, learned counsel for the appellants adopted the appellants’ brief and urged us to allow the appeal.
Counsel for the respondents also adopted the respondents’ brief and asked us to dismiss the appeal.
Taking into consideration the circumstances of this appeal including the grounds of appeal filed, the issues as formulated by the respondent are apt and direct and I shall therefore determine this appeal on the issues as formulated by them. The first issue is whether from the affidavit evidence placed before the trial court, the plaintiffs’ claim was statute barred or stale and if so whether the learned trial Judge was right in dismissing plaintiffs’ claim in its entirety. In the appellants’ brief, it was stated that the learned trial Judge was in error by referring to paragraph 5 of the statement of claim as the sole act of the respondents that gives the appellants their cause of action. It was submitted that the better course to determine the causes of action in the action is to examine the pleadings as a whole and the facts giving rise to the factual situations and the remedies or damages claimed in the action. That it is the combination of these two factors that defines cause or causes of action citing Savage v. Uwaechia (1972) 1 All NLR (Pt.1) 251; and Union Bank of Nigeria Ltd. v. Odusote Bookstores Lid. (1996)42 LRCN 1639 at 1666: (1995) 9 NWLR (Pt.421) 558. For the expression “Cause of Action” learned counsel referred to the definition in Straud’s Law Dictionary Vol 1, page 424. It was thus stated that the cause of action of the appellants in the lower court are defined in paragraphs 5, 6, 7, 9, 12, 14, 15, 17 and 19 of the statement of claim and the six reliefs claimed in the writ of summons and that the picking of only paragraph 5 of the statement of claim without examining the other paragraphs has occasioned a miscarriage of justice. Also referred are the cases of Egbe v. Adefarasin (1987) 1 NWLR (pt. 47) 1 and Savage v. Uwechie (supra). Learned counsel examined reliefs (a), (b) and (c) as contained in the appellants’ writ of summons and paragraphs 5, 8 and 13, 14, 15 and 17 of the statement of claim and submitted that a proper examination of these reliefs and the paragraphs of the statement of claim would show that the 1st, 2nd, 3rd and 4th reliefs are not within the purview of section 3 of the torts law. On relief 5, it was submitted that the claim was not based on negligence as such and where a claim was not based on tort it does not therefore come under section 3 of the Torts Law and so also was the 6th relief.
Learned counsel also examined paragraphs 5, 8, 13, 14, 15 and 17 of the statement of claim and submitted that analysis of these paragraphs would show that the appellants’ cause of action did not arise on the 13th of February, 1981 and therefore not statute-barred.
It was argued that the findings of the learned trial Judge in his ruling that the appellants failed to establish a case of fraud and breach of trust against the 1st and 2nd respondents since it was their father that stated the names of John S. Ogboru, Gasis Ogboru and Aneke Ogboru as those of his children, was premature and prejudicial to the case of the appellants as these are issues for determination by the parties when they go for trial and same has affected his decision and occasioned a miscarriage of justice, citing in support the cases of Onyemeh v. Egbuchulam & Others (1996) 37 LRCN 563 at 517; (1996) 5 NWLR (Pt. 448) 255; Mortune v. Gambo (1979) 3 at 43 & 54 (sic) and Ojukwu & Anor. v. Governor of Lagos State & Others (1986) 3 NWLR (Pt. 26) 39. It was stated that the lower court failed to consider the application of the Law of Trust to the facts of the case citing: Adekeye v. Chief Akin-Olugbade (1987) 6 SC; (1987) 3 NWLR (Pt.60) 214. That the respondents as trustees to the estate of their late father Solomon A. Ogboru and the appellants as beneficiaries of the said estate, their action as formulated and pleaded cannot be affected by the limitation law or the torts law. That the Limitation Law clearly excludes fraud from its application. Learned counsel urged the court to resolve this issues in favour of the appellants.
For the respondents it was submitted that the term, cause of action has been defined in a plethora of authorities citing Shell Petroleum Development Company Ltd. v. F. B. Farah (1995) 3 NWLR (Pt. 382) 148; Chief Festus S. Yusuf v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt. 359) 676; Chief Harold Sodipo v. Lemminkainen Oy (1992) 8 NWLR (Pt. 258) 229 and submitted that the learned trial Judge was right when he defined cause of action as accurable to the plaintiffs when the act of the defendants gives them a cause of action. It was stated that to determine whether the action is statute barred, it is important to determine when the cause of action arose and that this can only be discovered from the materials placed before the court which include the motion, the counter affidavit; the reply to the counter-affidavit, the statement of claim, and the writ of summons and that from the materials placed before the court, it was clear that the cause of action arose when the plaintiffs’ father met his tragic death on 13/2/81 in a fire incident, upon which centers all the appellants’ claim and that there was no rebuttal or denial of this. It was stated that the averments contained in paragraphs 5, 10 and 11 clearly shows that the appellants’ claims emanated from their father’s death. That the court was called upon to determine whether the action is statute barred from the affidavits and the documents annexed thereto, the statement of claim and the writ of summons citing Anigboro v. Sea Trucks (Nig.) Ltd. (1995) 6 NWLR (Pt.399) 35; and British Airways Plc v. Akinyosoye (1995) 1 NWLR (Pt. 374) 722. It was stated that the cause of action arose on 13/2/81 when the appellants’ father met his death and that time began to run from that day citing Shell Petroleum Development Company Ltd. v. Farah (supra) and John Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649. It was submitted that the death was an accident and falls under the Fatal Accident Act or the Torts Law Section 3, Laws of Bendel State, Vol. 6 and that by virtue of section 3, the appellants have 3 years within which the cause of action arose to institute the action. That alternatively, by virtue of the provision of the Statute of General Limitation, section 4(1)(d) of the Laws of Bendel State 1976 Vol. 4., the appellants have up to 6 years of the cause of action arising to institute the action. That this action was instituted 14 years after the cause of action arose. That the appellants lost all rights to any action arising therefrom citing John Eboigbe v. NNPC (supra); Edosomwan v. A.C.B. (1995) 7 NWLR (Pt. 408) 472; Lamina v. Ikeja Local Government Council (1993) 8 NWLR (Pt. 314) 758 and PN. Uddoh Trading Co. Ltd. v. Abere (1996) 8 NWLR (Pt. 467) 479. The court was urged to resolve these issues in favour of the respondent.
In my view, the main issue for determination here is whether or not the action of the respondents is statute barred, having regard to the facts and the law to be considered and the circumstances of this case.
The first point I wish to consider is how does one determine the period of limitation in any particular case. Let me here refer to the case of Egbe v. Adefarasin (No.2) (1987) 1 NWLR (Pt. 47) 1 at 20 where Oputa, JSC. said:-
“The answer is simple, by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the Limitation Law, then the action is statute barred.”
What then is the meaning of a cause of action? The Supreme Court in Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 at 169 that:-
“Cause of action has been held to mean every fact which is material to be proved to entitle the plaintiff to succeed, or all those things necessary to give a right to relief in law or equity. See Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828.”
The period of limitation is therefore that period of time after the accrual of a cause of action during which legal proceedings can be brought by a competent party because the period laid down by the limitation law has not lapsed.
The next question is when does the cause of action accrue to a party and when does the period of limitation begin to run? In the case of Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 at 17, the Supreme Court considering when a cause of action is said to accrue held:-
“What is meant by a cause of action? In its best definition it consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. Cooke v. Gill (1873) L.R. 8 CP 107; Read v. Brown (1888) 22 QBD 128 when these facts have occurred and provided there are in existence a competent plaintiff and a competent defendant a cause of action is said to accrue to the plaintiff because he can then prosecute an action effectively. Thus, the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.”
From the above, it appears very clear that the period of limitation in respect of any particular action will begin to run from the date the cause of action accrues. See Egbe v. Adefarasin (supra); British Airways Plc v. Akinyosoye (1995) 1 NWLR (Pt. 374) 722.
Having laid down the legal principles above, I now come back to the case on appeal. From the record of appeal, it is not in dispute that the writ of summons in this action was filed in the trial court on the 11th day of July, 1995. The statement of claim was also filed along with the writ of summons on the same 11th day of July, 1995.
It is not in dispute that Solomon A. Ogboru was an employee of the 1st respondent’s company before his untimely death on the 13/2/81 in a tragic fire incident. He was survived by wife and children including the appellants. The present appellants as children of the deceased instituted this action to claim certain service benefits which accrued to them on the death of their father from the 1st respondent including payment of scholarship scheme and general damages.
They also needed some replacements to be made to the deceased master list of his children with the 1st respondent with the appellants as the only children of the deceased. These facts are as contained in the appellant’s statement of claim particularly paragraphs 1,2,3,5,7,8,10,11,12,13 and 15. These paragraphs are hereby reproduced.
“1. The plaintiffs are the children and dependants of late Solomon A. Ogboru deceased inter-state who died in course of his employment with the first defendant on the 13th of February, 1981 at the age of 39 years. They are (sic).
- The first defendant is a company registered under the Laws of Nigeria and was the employer of the deceased S.A. Ogboru.
- The second defendant is one of the next-of-kin of the late S. A. Ogboru and junior brother of the deceased.
- Solomon Ogboru was a senior staff of the first defendant who died interstate in course of his employment and duties as a fireman. He was burnt to death while executing his duties at Warri within the jurisdiction of this Honourable court on the 13/2/82. He was aged 39 years when he died. At the time of his death, he was survived by his wife Mrs. Christiana Ogboru (now Mrs. C. Eyewumi) Romen Ogboru, Ceasar Ogboru and Miss Florence Ogboru. They were the only children of Solomon A. Ogboru of Abraka who were then 14 years, 12 years and 10 years respectively, Christiana Eyewumi (Mrs.) was also 39 years old then. They were all dependent on the deceased and stayed with him at Bendel Housing Estate Ogborikoko in Okpe Local Government Area Delta Estate, it is now Delta Housing Estate Ogborikoko. Plaintiffs shall contend at the trial that the names of John S. Ogboru, Gasis Ogboru and Aneke S. Ogboru are not the names of the children of S. A. Ogboru and the names at the master list of the first defendant at its Head Office Lagos should be replaced with those of the plaintiffs and all the benefits accruable to the plaintiffs should be paid to them. Plaintiffs shall rely on first defendant internal memo from H.R.P.L. to H.R.M.W. P.A.G.W. dated 9/5/94 and contend that changes were made secretly by first and second defendant to defraud the plaintiffs, the actual children and the secret was let out when the plaintiffs obtained the photocopy of the memo from the Head Office of the first defendant.
- Upon the said death of Solomon A. Ogboru the first defendant wrote to the second defendant in its letter No. PERL/1/1519 of 27/2/81 spelling out the entitlement of the plaintiffs and their mother thus (a) exhibit 1 gratia payment of N1325.25 payable to the wife which was paid to the second defendant for the benefit of the mother of the plaintiffs. First defendant has not heretofore informed the said wife of the deceased nor paid the money over to the said Christiana Eyewumi.
- By letter No. PAGW. 60 24 of 31/5/84 the first defendant awarded two Post Primary Institution Scholarships to Messrs Romen S. Ogboru and Ceasar Ogboru; but by the said intemal memo refused to award the University Scholarship to Ceasar S. Ogboru who gained admission to study at the Delta State University Abraka. Plaintiff shall rely on the Joint and Admissions Matriculation Board University letter No. JAMB/ADMS/92/805/168 of 11/12/92. The second plaintiff has thus suffered loss; and hardships at the University.
- Solomon A. Ogboru was a fireman in the service of the first defendant and was burnt to death by fire while on duty at Warri. The first defendant failed to provide a rescue to the said deceased while fire set on him and the deceased died in a most tragic manner in the presence of the staff of the first defendant. Plaintiffs shall contend at the trial that the first defendant owed the deceased a duty of care – to prevent the death and it failed/neglected to discharge the said duty and the said Solomon A. Ogboru lost his life under pains and sufferings.
- The plaintiffs and their mother were fully dependant on the deceased for their respective livelihood. Solomon A. Ogboru was on salary of N441 a month; he was fully in charge of the education of the children and their feeding, clothing and health care. The deceased was taking the plaintiffs for medical check-up weekly and treated them whenever they fell ill. He was fully responsible for the clothings of the deceased. Since the death of their father, their lives was full of hardship and the first and second defendants worsened their conditions by their sinister activities.
- On their becoming of full age, the plaintiffs had actively inquired and demanded for the benefits and compensation due to their father from the defendants but non could discharged their duty to the plaintiff under the service agreement and the scholarship scheme.
- The second defendant was one of the declared next of kin together with the first plaintiff with the first defendant. Plaintiffs shall rely on the Additional Basic Staff Particulars dated 11/1/80 filed and signed by the deceased. Plaintiffs obtained a photocopy of same from the first defendant.
- The first and second defendants secretly changed the said Additional Basic Staff Particulars and replaced Romen S. Ogboru with Matthew Ogboru (who was the brother of the deceased). By these frauds/action of the first and second defendants the names of the plaintiffs were secretly wiped out from the records of the first defendant, plaintiff shall contend at the trial that these activities of the first and second defendants are fraudulent and that this Honourable court should rectify the records and the plaintiffs be recognised by the defendants as only beneficiaries of late Solomon Ogboru and all the benefits (moneys) due the plaintiffs should be paid by the first defendant accordingly.
- The letter No. PERL/1/1519 of 27/2/81 and the Additional Basic Staff Particulars were secretly kept away from the plaintiffs until the plaintiffs becoming of age and contacted the office of the first defendant where he made photocopies of the letter/memo. It was in the process of inquiry from the third defendant that the latter wrote letter No. D.T.E. 309/4 of 12th May, 1995. Denying knowledge of the payment plaintiffs wrote through their counsel to ask the first defendant to account for the money accruable from the service benefits but the first defendant did not reply to the letters. Plaintiffs shall rely on the letters.”
From the facts as stated above, there is only one determinant factor from which the cause of action accrued and that is 13/2/81, the date Solomon A. Ogboru met his tragic death. Learned appellant’s counsel made heavy weather of the fact that the suits of the appellants is not just one cause of action which accrued on the 13/2/81, that that date was only the land mark that generated the distinct factual situations at different points in time that gave rise to the six distinct causes of action. That the other paragraphs in the statement of claim only state the circumstances of the relationship of the respondents as trustees to the estate of the deceased and particularly the position of the 2nd respondent as the next of kin to the deceased. That fraud was hatched by the 1st and 2nd respondents on the estate of late Solomon A. Ogboru by the mismanagement of his estate. Let me at this point note that I am not prepared to go into the issue of fraud or whatever. Whether there was any pronouncement on it by the trial court, that was in fact done prematurely. See Onyeme v. Egbochulam & Others (supra); Mortune v. Gambo; and Ojukwu & Anor. v. Governor of Lagos State (supra). Learned counsel for the appellant has made a lot of effort to distinguish which of the appellants’ claim falls under trust if any and those that do not. It is sad to observe that in law, it is not always safe to imply trust in any transaction, it has to be declared by word of mouth or in writing. The law never implies trust and the court never presumes a trust but in absolute necessity. It is a trite principle of our law that it is not for the court to make case for the parties. See V.S.S. Ltd. v. Government of Anambra State (2001) 8 NWLR (Pt. 715) 454. I would only wish to add that the issue of fraud if any is a separate cause of action.
For the respondents, it was submitted that a careful study of the averments contained in the plaintiffs’ statement of claim particularly paragraph 5, 10 and 11 read together clearly shows that the plaintiffs’ claims emanated from their father’s death and therefore one founded on tort and subject to Limitation Laws, Laws of Bendel State of Nigeria applicable to Delta State. As soon as the death ensued, the appellants cause of action arose and time begins to run against them for the purposes of limitation.
It is settled, in order to determine the period of limitation, one has to look at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with that on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. Anigiboro v. Sea Trucks (Nig.) Ltd. (supra); Shell Pet. Dev. Co. v. Farah Ltd. (supra); and Omotayo v. Nigerian Railway Corporation (1992) 7 NWLR (Pt. 254) 471.
Section 4(1)(a) of the Limitation Law Cap. 89, Laws of Bendel State of Nigeria 1976 (applicable to Delta State) provides:-
“4(1) The following action shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:-
(a) Actions founded on simple contract or on tort.”
The legislature has prescribed certain periods of limitation for instituting certain actions. This is based on public policy that there should be an end to litigation and that stale demands should be suppressed for it would be unfair to a person to allow claims to be made upon him after a long period during which he may have lost the evidence formerly available to him necessary to rebut the claim. The period of limitation therefore begins to run from the date on which the cause of action accrued and the period is not broken by any subsequent accruing disability. Date is very material when an occasion arise for finding out when a cause of action arise. In the instant case, it was the death of Solomon A. Ogboru, the appellants’ father on the 13/2/81 that gave rise to the cause of action. It is the fact on which all the appellants’ claims are based. For a cause of action to become statute barred the time begins to run from the day the cause of action arose and the cause of action arose on the 13/2/81 when appellants’ father met his death. By section 4(1)(a) of the Limitation Law (supra) the appellants have up to 6 years of the cause of action arising to institute the action. In the instant appeal the appellants instituted the action on the 11th day of July, 1995, 14 years after the cause of action arose. It is clearly in excess of the time allowed, the appellant therefore lost all rights to action arising therefrom.
Where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. 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 period of time laid down by the limitation law for instituting such action has elapsed. Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt. 347) 649; Odubako v. Fowler (1993) 7 NWLR (Pt. 308) 637; Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379. A statute of limitation removes the right of action, the right of enforcement and the right to a judicial relief. In this case, the appellants’ case having been caught by the Limitation Law, the appellants are left with nothing to enforce. This issue is therefore resolved against the appellants.
The 2nd issue for determination is whether the 2nd respondent by entering unconditional appearance waived or forfeited his legal right to contend that the appellants’ entire suit was statute barred.
The contention of the appellants was that the 2nd respondent having entered an unconditional appearance in the suit, he cannot come later through his counsel to enter a conditional appearance in the same suit without withdrawing the initial unconditional appearance entered by him personally and having entered an unconditional appearance he cannot now turn back to challenge the suit that it is statute barred after having submitted himself to the jurisdiction of the court. For the respondents, it was submitted that the 2nd respondent cannot by filing an unconditional memorandum of appearance submit himself to the jurisdiction of the court where the case before the court is not properly constituted or the court lacks the jurisdiction to entertain. That a defendant who enters an unconditional appearance can question the jurisdiction of a court to try a matter, and the defence that an action is statute banned goes to the jurisdiction of the court. That by paragraph 22 of his statement of defence, the 2nd respondent averred that the action is statute barred. It was also submitted that parties cannot by consent submit themselves to the jurisdiction of the court or cloth the court with jurisdiction where it lacks one. Citing Madukolu v. Nkemdilim (1962) 2 SCNLR 341.
The contention of the appellants in this issue was that, the 2nd respondent cannot, having entered an unconditional appearance in the suit, later turn around through his counsel to file a conditional memorandum of appearance without withdrawing the initial one filed by him and that this conduct by 2nd respondent amounts to an abuse of court process. That Order 13 rule 5 of the Rules of the High Court does not limit the time within which to file memorandum of appearance as it can be filed any time before judgment and that the 2nd respondent cannot also be heard to raise any issue of law having submitted himself to the jurisdiction of the court by entering an unconditional appearance.
There is a serious misconception of the position of the rules of court by the appellants’ counsel as regards the provisions of Order 13 rule 5 of the Rules of the High Court. There is always a time limit for entering or filing of a memorandum of appearance by a defendant. A defendant is to enter appearance to defend the action within the time limited in the writ of summons. Order 13 rule 1(1) of the High Court (Civil Procedure) Rules of the defunct Bendel State 1988 applicable to Delta State provides:
Rule 1(1):-
“A defendant shall within the time limited in the writ or other originating process enter an appearance in the manner hereinafter prescribed.”
The writ of summons served on the 2nd respondent limited the time to enter appearance to 30 days in accordance with the provisions of section 99 of the Sheriffs and Civil Process Act, LFN, 1990. Order 13 rule 5 of the Rules of the High Court (supra) can only be invoked where 2nd respondent failed to enter appearance within the time limited on the writ.
It is not also the position of the law or the rules of court that the filing of two memorandum of appearance before the court by a party is tantamount to an abuse of the court process. It is not the same thing as the filing or institution of two similar processes in the court claiming the same reliefs, while the first one is validly subsisting.
What is important is the fact that where a suit is being challenged on point of law which affects the jurisdiction of the court to entertain a suit before it, the party will not be estopped from raising that point of law on the ground that he has entered an unconditional appearance in the case. The 2nd respondent can not by entering an unconditional appearance submit himself to the jurisdiction of the court where the case before the court is not properly constituted. A defendant who entered an unconditional appearance can question the jurisdiction of a court to try a matter. It is well settled that where there is an objection to jurisdiction of a court by a party who consents to the exercise of the jurisdiction is not thereby estopped from afterwards raising the objection since the jurisdiction of a court cannot be enlarged by estoppel. Jadesimi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Pt. 16) 264; Osibamowo v. Osibamowo (1991) 2 NWLR (Pt. 177) 85. The parties cannot by consent cloth a court with jurisdiction where the court lacks one. Jurisdiction is very fundamental in the realm of administration of justice. Any form of pronouncement by a court or tribunal without jurisdiction is an exercise in futility no matter how brilliantly conducted. In the instant case, the objection as to the competence of the court was based on the Limitation Law and if sustained will affect the jurisdiction of the court. Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Sken Consult (Nig.) Ltd. v. Ukey (1981) 1 SC 6.This issue is also resolved against the appellant.
The third issue relates to severability of the appellants’ claim.
That the reference only to relief 5 by the learned trial Judge without considering the claim as a whole to hold that the entire action is statute barred has occasioned a miscarriage of justice and urged the court to allow the appeal on this ground.
For the respondents, it was contended that a careful study of the writ of summons and the statement of claim shows that the cause of action is the appellants father’s death on the 13/2/81 and all the other reliefs are dependent and ancillary to it. That all the reliefs claimed or sought swim or sink together with relief 5 of the writ of summons which tally with paragraph 5 of the statement of claim and upon which stands all other reliefs. The court was urged to resolve the issue in favour of the respondents.
It is trite law that a statement of claim supercedes the writ of summons except if it is incorporated into the statement of claim expressly. In the instant appeal, the writ of summons was incorporated into the statement of claim by virtue of paragraph 19 thereof. The rules of court no doubt allow joinder of causes of action.
In many cases, the rules allow a plaintiff to sue for different causes of action in a suit. See Order 4 rules 1(1) of the rules of the High Court, 1988.
Learned counsel has made heavy weather on the case of Cross Rivers State Newspapers Corporation v. Oni & Others (1995) 26 LRCN 82; (1995) 1 NWLR (Pt. 371) 270 that joinder of causes of action is permissible under the law. In this case, the main contention deals with joinder of parties rather than causes of action. It was a case of libel against the Management Staff of the African Newspapers Publication of Nigeria Ltd. It was held that whereby several persons are jointly injured by a libel or slander, they may all be joined as co-plaintiffs in one action. In the case, the inference to the offending publications was to “management staff”. It was the case of the respondents that they were entitled in the absence of other disqualifying factors to be properly, joined as co-plaintiffs in the suit. A careful and critical perusal of the appellants, claim before the trial court revealed that all the claims relates to the benefit of their deceased father who was the employee of the 1st respondent.
Claims 1, 2 and 3 relates to the 1st respondent who was the deceased employer as at the time of his death. Therefore the cause of action accrued after the death of the appellants’ father while working for the 1st respondent. The appellants as defendants of the deceased person have now brought this action claiming for service benefits.
The accrual time of the cause of action was therefore the date the appellants’ father died, being 13/2/81. It has already been found that this action is statute barred having been instituted 14 years after the death of Solomon A. Ogboru, on the 11th day of July, 1995.
Both dates are as contained in the writ of summons and the statement of claim. The claims are not therefore severable, they all swim or sink with the 5th relief. The issue of severance of causes of action cannot be applied in the circumstances of this case. This issue is also resolved against the appellants.
For the reasons stated above, this appeal lacks merit and it is hereby dismissed. The costs of the suit is assessed and fixed at N3,000.00 only in favour of the respondents.
Other Citations: (2005)LCN/1699(CA)
