LIMITATION LAW – LIMITATION PERIOD – Limitation period on action founded on contract; effect of bringing an action outside the limitation period


“The question which arises from the sole issue for determination is whether or not the plaintiff/appellant’s action is statute barred? When it is said that an action is statute barred, it simply means that the action/claim is barred from being heard and determined by any Court by a provision of a statute. It is usually as to time. The bar gives a time limit during which certain actions can be brought to Court. Failure to bring the action within the time stipulated by the statute renders the action invalid and the Court without jurisdiction to hear the action/claim. It is desirable but not mandatory that Limitation Law is pleaded. If it is not pleaded, it still can be raised at any stage in the proceedings and in any Court for the first time, since it is an issue of jurisdiction. The adverse party must be put on notice so that he is not taken by surprise. Once an action is found to be caught by the Limitation Law, the hearing of the suit abates. It can never be revived: When such a suit is struck out the Court it amounts to infantile reasoning to hold that applying the Law as it is technical justice. On the contrary it amounts to substantial justice. Counsel is expected to know the law and guide the Court to ensure compliance with clear provisions of the statute concerned. The rational for statute of Limitation is simple. A claimant who has slept on his rights is not to he assisted or allowed to bring his action when he likes. A claimant should file his action with diligence and within the time provided by statute. Limitation periods protect a defendant from the injustice of having to face a stale claim. For example, if a claim is brought a long time after the events in question, there is a strong likelihood that evidence which was available earlier may have been lost, and the memories of witnesses may have faded. A party would not be allowed to take advantage of the Limitation law where there is clear evidence of disability, mistake, fraud and in certain cases involving personal injury, death. Limitation laws are in all jurisdictions. For example, the Limitation Law, Cap L67 of Lagos State provides that the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued- (a) actions launched on simple contract; (b) actions founded on quasi contract; (c) actions to enforce a recognisance. No person can bring an action to recover land after the expiration of twelve years from when his cause of action accrued. These are a few examples. To find out whether the claimants claim is caught by the Limitation law, first identify the claimants claim, or cause of action and this is done by examining in detail the Writ of Summons and Statement of Claim. It would then be easy to find out when the wrong which gave the claimant his cause of action was committed. Compare that date with the date the Writ of Summons was filed. If the Writ of Summons was filed outside the period provided for the claimant’s claim the claim is no longer actionable. It is statute barred. The entire exercise spelt out above can be done without taking evidence. Applying the above to the facts of this case, the appellant as plaintiff sued the respondent defendant for: (a) The sum of N4,400,000.00 (Four Million, Four Hundred Thousand Naira) only being the refundable deposit the plaintiff has with the defendant. (b) The sum of N1,936,919.54 (One Million, Nine Hundred and Thirty Six Thousand, Nine Hundred and Nineteen Naira Fifty Four Kobo) only being 1999 end of year and progress bonuses. (c) 10% interest per annum therefrom 1999 till final payment of the entire sum. (d) The sum of N112,500.00 per week as special damages from 1 January, 2000 to 26 January, 2001 i.e. for 55 weeks. (e) The cost of this action. After examining the writ of summons and statement of claim this is what the Court of Appeal said: “From the facts averred to in the Writ of Summons and Statement of Claim of the respondents, it is clearly evident that the relationship between the appellant and the respondent is that of a contract for sale of Motor tyres. And the conflict between the parties arose from the said contractual relationship. That is, it was as a result of the alleged failure of the respondent to pay to the appellant for some consignments or supplies of Motor tyres that led to the refusal of the appellant to further deliver the goods to the respondents. Apart from the sums paid by the respondent to the appellant as deposits, no mention is made either in the Writ or Statement of Claim, of and title document of the respondent’s landed property being used as security in the transaction between the parties did not arise from the issue of charge on any property of the respondent…” After detailed review of the Statement of Claim, it is clear that the appellant entered into a contract with the respondent to sell its tyres. This was a Dealership/Distributorship contract. A term in the contract was that the appellant was to pay to the respondent a refundable deposit and was entitled to bonuses as the years rolled by. The appellant demanded for his refundable deposit and bonuses, but the respondent refused to pay/return the sums claimed by the appellant. This is clearly a breach of contract if the facts are correct. The appellant’s action is founded in simple contract. The Court of Appeal was correct in its findings. In order to pay the refundable deposit the appellant approached UBA PLC for a loan. He was successful. He had to deposit his title documents with UBA PLC as collateral for the loan (i.e. the sums paid to the respondent by UBA PLC). Learned counsel for the respondent’s argument is that the plaintiff’s claim is covered by Section 14 and not Section 18 of the Plateau State Limitation Law (Edict No.16 of 1988). It reads: “14 (1). No action shall be brought to recover – (a) any principal sum of money secured by a mortgage or other charge on property; or (b) proceeds of the sale of land; after the expiration of the sale of land; after the expiration of ten years from the date on which right to receive the money accrued. (2) No foreclosure action in respect of mortgage property shall be brought after the expiration of ten years from the date on which the right to foreclose accrued provided that if, the mortgage was in possession of the mortgaged property after that date, the right to foreclose on the property which was in his possession shall he treated as having accrued for the purposes of this subsection until the date on which his possession discontinued. (3) The right to receive any principal sum of money secured a mortgage or other charge and the right to foreclose on the property subject to the mortgage or charge shall not be deemed to accrue so long as that property comprises any future interest or any life insurance policy which has not matured or been determined. (4) Subject to Subsections (5) and (6) of this Section, no action to recover (a) money payable in respect of proceeds of the sale of land; or (b) arrears of interest payable in respect of any sum of money secured by a mortgage or other charge; or (c) damages in respect of such arrears shall be brought after the expiration of ten years from the date on which such money becomes payable or interest becomes due. (5) Where (a) a prior mortgage or other encumbrance has been in possession of the property charged and (b) an action is brought within one year of the discontinuance of that possession by a subsequent encumbrance; the subsequent encumbrance may recover by that action all the arrears of interest which fell due during the period of possession by the prior encumbrance or damages in respect to those arrears notwithstanding that the period exceeds ten years. (6) Where- (a) The property subject to the mortgage or charge comprises any future interest or life insurance policy, AND (b) It is the term of the mortgage or charge that arrears of interest shall be treated as part of the principal sum of money secured by the mortgage or charge; the interest hall not be treated as becoming due before the right to recover the principal sum of money has accrued or is treated as having accrued. We have examined the appellants submissions and the cases he relies on which we do not find relevant. It must be observed that nowhere in the appellant’s pleadings was mortgage or charge even remotely averred to and the facts averred to do not support such an action. The issue in controversy between the parties does not arise from mortgage or charge. The appellant’s pleading reveals that he sued the respondent for refundable deposits and bonuses. This is a clear case of breach of contract. How the appellant got the money to pay for the refundable deposit is a private transaction between the appellant and UBA PLC. The respondent is not a party to that transaction and UBA PLC is not a party to this transaction. The appellant’s claim has nothing to do with sums of money secured by a mortgage or charge on property and proceeds of sale of land. Section 14 of the Plateau State Limitation Law (Edict No. 16 of 1988) is not applicable, rather Section 18 (supra) is relevant and applicable. When should claims in contract be filed in Court in Plateau State? Section 18 of the Plateau State Limitation Law (Edict No. 16 of 1988) states that: “No action founded on contract, tort or any other action not specifically provided for in parts (i) and (ii) of this edict shall be brought after the expiration of five years from the date on which the cause of action accrued…” In Plateau State an action founded in contract which the appellant’s claim happens to be must be brought within five years from when the appellant had a cause of action. A cause of action means the factual situation which entitles one person to obtain a remedy from another person in Court. Any act on the part of the defendant which gives the claimant a cause of complaint is a cause of action. Put in another way a cause of action is the fact or combination of fact which give rise to a right to sue and it consists of two elements- (a) the wrongful act of the defendant which gives the plaintiff his cause of complaint, and (b) the consequent damage. So, when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligations exist side by side, a cause of action is said to have accrued. See Thomas V. Olufosoye (1986) 1 NWLR (pt. 18) p. 669; Adimora V. Ajufo (1988) 3 NWLR (Pt. 80) p.1; Afolayan V. Ogunrinde (1990) 1 NWLR (Pt. 127); Uwazuruonye V. Gov of Imo State & 2 Ors (2012) 11 SC p.133. A cause of action is thus a fact, once proved would entitle a claimant to remedy against the defendant. The claimant must show in his pleadings the wrongful act of the defendant to establish cause of action. These averments must be detailed, especially as to dates and the date on which his cause of action accrued. The defendant is expected to join issues with the claimant. It is desirable that the defendant pleads the Limitation Law relied on, but if he does not plead it, he is at liberty to raise it at any stage of the proceedings and even on appeal for the first time. This is because the Court has no jurisdiction to hear any action taken after the specified period. The claimant averred to detailed facts to show how he got a cause of action. He also averred to further facts that his cause of action accrued in 1999. In response, the defendant averred as follows: “13(d) The defendant also pleads Limitation with respect to the claim for bonus and states the particulars that the claim relates to bonus for the year 1999, much more than 5 years prior to the commencement of the suit.” The parties are ad idem on when the cause of action accrued. The claimant’s action accrued in 1999. Time begins to run from the date the cause of action accrues. In determining the period of Limitation, all that the Court has to do is to examine the pleadings to see when the cause of action arose and compare that date with when the Writ of Summons was filed. If the time on the Writ of Summons is beyond the period provided by the Limitation Law, then the action is statute barred. See Mulima & Anor V. Usman & 3 Ors (2014) 1-2 SC (Pt. 111) p.126; Okenwa V. Military Gov Imo State (1996) 6 NWLR (Pt 455) p.394; Egbe V. Adefarasin (No. 2) (1987) 1 NWLR (Pt.47) p.1; F.R.I.N. V. Gold (2007) 11 NWLR (Pt.1044) p.1. The cause of action accrued in 1999 while the Writ of Summons was filed on 30 April, 2007. That is to say, the appellant as claimant filed his action after eight years instead of within five years, counting from 1999. Counsel and Litigants must be reminded that it is the well laid down position of the law that once the claimant’s legal right is established he must have a remedy. Such a right is not a perpetual right. He must act timeously. The law and indeed equity would not allow him to go to sleep and bring his action at any time, or when he feels obliged to do so. His right of action is limited statute and in this case the Plateau State Limitation Edict No. 16 of 1988. The appellant’s action is statute barred by virtue of Section 18 of that Law.” Per RHODES-VIVOUR, J.S.C.  in ADAMU ABUBAKAR v. MICHELIN MOTOR SERVICES LTD (LCER-2020-39146-SC) at p. 6 – p. 17.

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