LIMITATION PERIOD: WHETHER NEGOTIATION BY PARTIES CAN STOP TIME FROM RUNNING

CASE TITLE: OKO & ORS v. A.G., EBONYI STATE (2021) LPELR-54988(SC)

JUDGMENT DATE: 4TH JUNE, 2021

PRACTICE AREA: CIVIL PROCEDURE

LEAD JUDGMENT: IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on Limitation of Action.

FACTS

This appeal is against the judgment of the Court of Appeal, Enugu Judicial Division, delivered on July 15, 2015 in appeal No. CA/E/203/2013.

The Appellants had the singular privilege of serving as the pioneer democratically elected councillors in the Ebonyi State Local Government system from 1999 to 2002. In the course of their tenure as councillors, the Appellants were duly paid their entitlement/allowances due thereto. They however claimed to be entitled to be paid severance allowances allegedly approved by the Revenue Mobilisation and Fiscal Commission in 2001. The said public documents were duly certified in 2008. In 2002 the Law No. 5 of 2002 was passed by the Ebonyi State House of Assembly which effectively barred and blocked the payment to, and the enjoyment by, the Appellants of severance allowances. The Appellants took no steps either to challenge the Law No. 5 or to enforce their right to the severance allowance. In 2010, another policy statement was issued reiterating Councils’ entitlement to payment of severance allowances.

The Appellants therefore instituted the instant action at the Ebonyi State trial High Court on December 6, 2010 vide a writ of summons. The Appellants sought against the Respondent the total allowances calculated as follows: N5,232,974.70k for Legislative Leader, N5,224,50.00k for Deputy Legislative Leader and N 4,902 489.40 for each of the remaining Councillors.

The Respondent vehemently objected to the competence of the Appellant’s suit. By the Notice of preliminary objection, the Respondent claimed that the combined operation of the Limitation Law (Cap. 1 02) and Ebonyi State (Applicable laws) law (Cap. 40), laws of Ebonyi State of Nigeria, 2009 divested the Court of jurisdiction to hear and determine the action as presently constituted, same having been filed well over five years after the accrual of the cause of the action. On November 9, 2012 at the close of counsel’s address, the trial High Court delivered the ruling in regard to the Respondent’s objection to the conclusive effect that the suit was statute barred and the suit was struck out for want of jurisdiction.

The Appellants were dissatisfied with the ruling of the trial High Court. They appealed to the Court of Appeal, thereby urging the Court to allow the appeal and set aside the ruling of the trial Court. The Court of Appeal dismissed the appeal and affirmed the decision of the trial Court.

Being dissatisfied with the decision of the Court of Appeal, the Appellants further appealed to the Supreme Court.

ISSUES FOR DETERMINATION

The Supreme Court determined the appeal based on a sole issue thus:

Whether or not the Court of Appeal, Enugu Judicial Division was right when it held that “the cause of action clearly accrued as at the time the appellants left office at the expiration of their tenure of office as councillors in 2002” thereby resulting in dismissing the Appellants appeal on the ground that their suit was statute barred.

DECISION/HELD

The appeal was unanimously dismissed.

RATIOS:

• ACTION – CAUSE(S) OF ACTION: How the Court determines the date a cause of action arose
• LEGISLATION – ENACTMENT OF LAW(S): Position of the law as relates to the law enacted by a State House of Assembly which is inconsistent with any Law validly enacted by the National Assembly
• LIMITATION LAW – LIMITATION PERIOD: Whether proceedings can be instituted after the limitation period; exception to the law of limitation of action
• LIMITATION LAW – LIMITATION PERIOD: Whether negotiation by parties can stop time from running; whether letters written by one party to another can amount to negotiation for the purposes of shifting time of accrual of cause of action