IS A JUDGE FACED WITH EVIDENCE OF ACCRUAL OF CAUSE OF ACTION IN A PRELIMINARY OBJECTION ON A FIRMA TERRA? | C.K. ANYANWU (Lawyer of Promise)

"...it is not permissible, indeed it would be wrong for a defendant relying on the defence of limitation of action to compute time of accrual of cause of action from the date pleaded in his statement of defence as the date the cause of action arose, unless such date is admitted by the plaintiff in his reply to the statement of defence."

KEVES GLOBAL LEASING LTD. vs. BASSEY(2020)LCN/14270(CA) 

ISSUE: LIMITATION OF ACTION - whether a Judge is on a firma terra when faced with evidence of accrual of cause of action in a preliminary objection at variance with that averred in the statement of claim to assume jurisdiction and hear the matter on the merits (Issue is mine)

PRINCIPLE:

"Now turning back to the two issues canvassed by the appellant, same questioned the ruling of the lower Court which dismissed the appellant’s preliminary objection and assumed jurisdiction to try the suit on its merits. The appellant has argued that the respondent’s action did not disclose a cause of action and that same was caught up by the limitation law.

A cause of action has been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It thus includes all those things which are necessary to give a right to action and every material fact which is material to be proved to entitle plaintiff to succeed. 

See P. N. UDOH TRADING COMPANY LTD. V. ABERE (2001) 11 NWLR (Pt. 723) 114.

When determining issue of cause of action, it is totally irrelevant to consider the merit of the claim. What is important at that stage is to critically examine the pleadings to see if they disclose any reasonable cause of action or raise some questions fit enough to be decided by a Judge.

In the instant case, the appellant challenges the respondent’s cause of action on the bases of the motion on notice wherein he averred that the action is statute barred by exhibiting a Certificate of Occupancy showing that in 1987 the respondent’s predecessor in title was issued with the said certificate over the land in dispute whereas the action was instituted at the lower Court after the expiration of 10 years allowed by the limitation law of Cross River State. The respondent has strenuously argued that in determining when a cause of action arose, a Court must not look beyond the claimant’s writ of summons and statement of claim which later view was accepted by the lower Court.

​I have stated that the respondent’s cause of action was challenged on the bases of the fact that the action was filed outside the 10 years period allowed by the relevant limitation law. The period of limitation is determined by looking at the writ of summons and the statement of claim only; to ascertain the alleged date the wrong in question which gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred. In other words, the determining factor is the averments in the plaintiff’s writ of summons and the statement of claim. However, where at the end of settlement or after the plaintiff has filed his statement of claim, the defendant raises preliminary objection in limine to contend that the plaintiff’s action is statute barred and ought to be struck out. The position become different where an issue is joined by the parties in their pleadings as to the date the cause of action arose. In that case, such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the Court. 

See SAVANNAH BANK OF NIGERIA LTD. V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD. (1987)1 NWLR (Pt. 49) 212.

In NASIR V. CSC KANO STATE (supra), the apex Court has restated the legal position that an objection to the jurisdiction of a Court can be raised at the beginning or the end of the proceedings, even just before judgment stage. And that statute of limitation is a matter of jurisdiction which can be raised at any stage of litigation, even in the Supreme Court.

I have stated right from the onset that parties in this case had exchanged pleadings at the lower Court and in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the statement of claim and paragraphs 3, 4, 5, 6, and 7 of the statement of defence/counter claim the issue pertaining to the date of accrual of the cause of action was joined by the parties. The fact that the respondent did not admit the date fixed by the appellant as when the cause of action arose, the lower Court was right in insisting on the averments in the respondents writ of summons and statement of claim because at that point the issue was yet to be determined by credible evidence at the hearing of the suit. 

In WOHEREM V. EMEREUWA (2004) 13 NWLR (Pt. 890) 398 at 416, the Supreme Court has held that it is not permissible, indeed it would be wrong for a defendant relying on the defence of limitation of action to compute time of accrual of cause of action from the date pleaded in his statement of defence as the date the cause of action arose, unless such date is admitted by the plaintiff in his reply to the statement of defence. In the lead judgment at page 418, paras. E-H, Iguh, JSC, said: "In my view, what emerged at the close of pleadings was a triable issue on question of the date the cause of action in respect of title to the property in dispute and the trespass complained of by the appellant arose. Without doubt, the date averred in the statement of claim as to when the cause of action accrued was at variance, with the respondent’s statement of defence and the affidavit in support of the application to dismiss the suit. It seems to me that, the trial Court ought in the circumstances, to have tried the cause on the merits rather than to embark on a voyage of discovery with a view to ascertaining which date is correct in the absence of viva voce evidence on the point."

I totally endorse the above view and also agree with the position taken by the learned trial Judge in assuming jurisdiction to hear the matter on its merits." Per SHUAIBU, JCA.