DETERMINING LIMITATION PERIOD: SUPREME COURT SAYS COURTS MUST LOOK BEYOND THE WRIT OF SUMMONS AND STATEMENT OF CLAIM

Statoil (Nig.) Ltd v. Inducon (Nig.) Ltd & Anor [2021] 7 NWLR (Pt. 1774) 1 at 58-59, per M. D. Muhammad, JSC

My lords, in the instant case, since it is the Appellant who pleaded that Respondents’ action is statute-barred, it is its burden to prove by credible evidence when the Respondents’ cause of action accrued. It is not enough for the plaintiff to merely plead a particular date except if the defendant admits the date in a reply to the statement of defence, otherwise, there would be absolutely nothing on which basis to compute when the plaintiff’s cause of action arose. Thus, where the defendant, the Appellant herein, pleads statutory limitation of action and same is not admitted in the plaintiff’s reply, the court, of necessity, will resolve the objection on the basis of proffered evidence. 

His Lordship relied on the cases of Savanna Bank v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor (1987) LPELR-302 (SC); [1987] 1 NWLR (Pt. 49) 212 and Woherem v. Emereuwa [2004]13 NWLR (Pt. 890) 398.

M. D. Muhammad, JSC in the above statement was actually quoting Oputa, JSC (of blessed memory) in Savanna Bank of Nig. Ltd v. Pan Atlantic Shipping & Transport Agencies Ltd. & Anor (supra) without expressly indicating so. His Lordship also did not appear to have quoted Oputa, JSC quite correctly. In that case, this was what Oputa, JSC said:

If a statute allows a certain period of time for bringing litigation or for commencing proceedings, it is known as a Statute of Limitation. That statute then expresses the policy of the State prescribing the period of time within which an action or proceeding in law or in equity must be brought. A plaintiff may have a cause of action but he loses the right to enforce that cause of action by judicial process because the period of time laid down by the limitation law for bringing such actions had elapsed. A limitation law does not operate in vacuo. No. Secondly it is the defendant who ought to plead and prove that the action is statute-barred. This will surely lead to a consideration of the facts or combination of facts which gave the Plaintiff right to sue. This may be a wrongful act or a wrongful act with a consequential damage to the Plaintiff. Time will start to run when the cause of action arose. It is therefore absolutely necessary when dealing with limitation statutes to determine the precise date upon which the cause of action arose. Without this basic fact it will be impossible to compute the time. Thirdly since the defendant is the party relying on the “defence of limitation” the onus is on him to establish when the cause of action accrued to the Plaintiff. It is not enough to plead a particular date for if that date is not admitted by any reply of the Plaintiff to the Defendant’s Statement of Defence, then there is nothing on which the necessary computation can be made. Fourthly it is not permissible and it would be wrong for a Court to compute time from a date pleaded in the Statement of Defence, not admitted in the Reply and not proved by credible evidence.

In what appears to be a misquote or modification of quote, M. D. Muhammad, JSC said: “It is not enough for the plaintiff to merely plead a particular date except if the defendant admits the date in a reply to the statement of defence…” Meanwhile, what Oputa, JSC stated was that in contending that the suit was statute-barred, it is not enough for the defendant (not the plaintiff) to plead a particular date not admitted by the plaintiff (not the defendant) in his reply.

The principle as it is commonly known

The statement of the law by M. D. Muhammad, JSC in Statoil v. Inducon appears to run contrary to the principle as understood by many and as stated in other famous cases such as Egbe v. Adefarasin [1987] 1 NWLR (Pt.47) 1, where the Supreme Court held: 

How does one determine the period of limitation? The answer is simply 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.

Also, in the case of Ajoku v. Ohiri & Ors (2018) LPELR-46251(CA) the Court of Appeal held:

The fact, whether or not a Suit is statute barred is never considered on the facts pleaded by the Defendant in his statement of defence or in his motion or address of Counsel for that purpose, except those facts are expressly admitted by the Plaintiff, to indicate the time the cause of action accrued.

The Court of Appeal relied on the cases of Egbe v. Adefarasin (supra), Ibrahim v. Lawal & Ors (2015) LPELR – 24736 (SC); Aremo II v. Adekanye & Ors (2004) LPELR – 544 (SC) among others. 

Apply Statoil v. Inducon with caution

We need to apply serious caution in applying the position as stated in Statoil (Nig.) Ltd v. Inducon (Nig.) Ltd & Anor (supra). This is especially where a defendant moves to terminate an action in limine (i.e. prematurely without hearing) by filing a preliminary objection challenging the jurisdiction of the court on the ground that the action is statute-barred. The courts are enjoined to stick to the principle which states that only the writ of summons and the statement of claim are the relevant court processes to consider. The trial court should consider when the cause of action arose, when the case was filed and thereafter look at the limitation period stipulated by the relevant statute. This will enable the court calculate whether or not the action was commenced within the period allowed by statute.  Either of the parties is at liberty to appeal any ruling delivered by the trial court in that regard. Most times, the trial court may, after considering only the plaintiff’s statement of claim, hold that evidence needs to be led in order to determine whether or not the suit was statute-barred. This was precisely what happened in Ajoku v. Ohiri (supra). The defendant unsuccessfully appealed against the ruling of the trial Court. In Savanna Bank v. Pan Atlantic Shipping, the trial Court determined issue of limitation after pleadings were exchanged and evidence led. 

The idea here is that the trial courts are discouraged from delving too much into the merits of the case at a preliminary stage. Courts are eager to hear the merits of a case through trial and would ordinarily not permit a defendant to get the suit terminated prematurely except on stronger grounds. Even at that, the trial courts are encouraged to determine certain jurisdictional questions while delivering judgment so as to give the appellate court the opportunity to look at everything on appeal. This approach became necessary in view of the delay tactics explored by the use and abuse of interlocutory appeals.

Where the objection based on limitation is again raised on appeal (even if it is for the first time), the appellate court may look beyond the plaintiff’s writ of summons and statement of claim and consider the defendant’s statement of defence, plaintiff’s reply and even evidence led in the case, to enable it determine the issue ultimately. Here, the principle stated in Statoil becomes more relevant and useful. The idea being that a clever plaintiff may easily be uncovered at this stage. It is not beyond contemplation that a plaintiff who realises that his action is time-barred may smartly misstate facts in order to box the case within limitation period and avoid the consequences of the matter being struck out or dismissed for being statute-barred.

In Statoil v. Inducon, at the trial Court, the parties joined issues as to whether or not the Respondents’ claim is statute-barred. The Respondents claimed the cause of action arose in 2009. The Appellant claimed it arose in 1992. 

The Supreme Court found from the record of appeal that the trial Court did not resolve the issue. In the Appellant’s appeal to the Court of Appeal at the end of the case, the Court of Appeal held that it is the statement of claim that determines whether an action is statute-barred or not. The Court of Appeal further held that where there is an allegation of fraud as pleaded by the Respondents, the period of limitation commences from when the Respondents discovered the fraud. The Court of Appeal therefore agreed with the Respondents that the cause of action arose in 2009 and was not statute-barred having being filed in 2010 within the six years as provided under Section 8(1)(a) of the Lagos State Limitation Law.

At the Supreme Court, the apex Court was called upon to determine whether or not the matter was indeed statute-barred. M. D. Muhammad, JSC painstakingly considered all the pleadings and evidence led in the matter and rightly came to the conclusion that the cause of action arose in 1992. Consequently, his Lordship held that the matter was caught up with limitation period.

Conclusion

In conclusion, it would amount to a misapplication of the principle in Statoil v. Inducon if a trial court purports to rely on the case in determining, at a preliminary stage, an issue bordering on statute of limitation by going ahead to look at the statement of defence at that stage. Only the plaintiff’s writ of summons and statement of claim should be considered. Where applicable, the Court should determine the issue after evidence has been led. It is only at this time, the pleadings of all parties together with the evidence led should be considered. 



Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has worked with a number of startup tech companies. He tweets @siazubuike.

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