Limitation Statutes Only Take Away The Right Of Action From A Party Without Destroying The Right By O.G. Ogbom,, Esq – TheNigerialawyer

What Is the Statute of Limitations?

A statute of limitations is a law which sets the maximum time in
which parties involved have to initiate legal proceedings from the
date of an alleged offense, whether civil or criminal. However, the
length of time the statute allows for a victim to bring legal
action against the suspected wrong-doer can vary from one
jurisdiction to another. These laws are based on the
principle interest republicae ut finis litium, that
is to say, it is in the public interest that there is an end to
litigation. See
Atolagbe v. Awuni (I997) 9 NWLR (Pt.522)
66.

Such laws are of two kinds.  There are those, such as
the Limitation Laws of some states in Nigeria, where on the
expiration of the time, the remedy is barred but not the
right. For example, in the case of a simple contract, debt which
has remained unpaid and unacknowledged for six years, according to
section 8(1) of Lagos State Limitation law, Cap. 118, the
creditor’s right to bring an action to recover it is gone but the
debt exists for other purposes.  See also section 16 of
Limitation law of Rivers state, Cap. 80. The creditor can exercise
a right of lien to recover it, but cannot set-off or counterclaim,
because this is in the nature of a cross-action. Section 3.

The second category consists of laws, which, on the
expiration of the time prescribed, the right itself is
barred. Examples of this are sections 15 and 22 of the
Limitation Law of Lagos State and sections 1 and 2 of
Limitation law of Rivers state, which extinguish the title of the
person who has been out of possession of chattel or land for the
period of limitation prescribed in the Law.  It is immaterial
that he may be ignorant that another is in possession. 
See Rains v.
Buxton (1880) 14 Ch D  537.  

in  Raleigh Industries Ltd .
v Nwaiwu. (1994) 9 NWI.R (Pt.341) 760 at
771, a decision of the Court of Appeal, Kaduna
Division, Opene.
“Limitation statutes only take away the right of action from a
party without destroying the right since it can be enforced in
other ways, for example by exercise of a right of lien”. 
In Ojokolobo v. Alamu ,(1987)
3 NWI.R (Pt.61) 377 at 394, the Court accepted that
limitation law are matters of practice and procedure only by
quoting with approval the observation of Vaughan
Williams  L.J in The Ydun (1899)
P.236 where dealing with a Statute of Limitation, he
observed.

“I also agree that the Act is retrospective, for though, no
doubt, the general rule of construction is
that “nova constitutio futuris formam imponere  debet non praeteritis, is
pointed out in Moon v. Durden (1884)2 EX at
43, that rule of construction yields to a sufficiently
expressed intention of the legislature that the enactment shall
have a retrospective operation, and there is abundant
authority  that the presumption against a retrospective
construction has no application to enactment which affect only
procedure and practice of the Court.” See Garari v. Johnson
(1986) 5 NWLR (Pt.39)66 at 71”.

Limitation law is certainly procedural, setting out clearly time
frame within which an action must be brought. Unlike substantive
law, it is retroactive in nature and such statutes on this
all-important subject must be read as a whole. As such whether
specifically stated or not in such a statute, it must be read
retroactively. A person should not sleep on his rights. The purport
of laws on limitation of actions is to obviate the inconvenience
and embarrassment to defendants whose witnesses, be they members of
staff or people having dealings with them may no longer be
available; and documents for defence must have been out of
circulation, in some cases already destroyed and cannot be found in
archives or will otherwise take inordinate length of time to
locate.

Exceptions to the Application of Limitation
Laws.

The law is settled that there are exceptions to the application
of the Limitation Laws. In Obot & Ors vs. Shell Petroleum
Development Company Nig. Ltd (2013) LPELR-20704 (CA) Pg. 51-52,
Para. D – D, the Court held that:

There are some exceptions to the limitation law set by various
limitation statutes. These statutory limitations cover cases such
as fraud, deliberate concealment by the defendant, or mistake.
There are also other circumstances which amount to exceptions to
the limitation law. These include circumstances where there is a
continuing injury or fresh damage arising from the same injury.
Each fresh damage arising from the same injury or continuing
injury, gives rise to a fresh cause of action. In Aremo II vs
Adekanye (2004) ALL FWLR (PT 224) 2113 at 2132 – 2133 the Supreme
Court per Edozie JSC said: … where there has been a continuance of
the damage, a fresh cause of action arises from time to time, as
often as damage is caused…  For example if the owner of
mine works them and causes damage to the surface more than six
years before action, and within six years of action, a fresh
subsidence causing damage occurs, without any fresh working by the
owner, an action in respect of the fresh damage is not barred as
the fresh subsidence resulting in injury gives a fresh cause of
action…See: also A. G. of Rivers State vs. A. G. of Bayelsa
State (2012) LPELR-9336 (SC) per Galadima, JSC; NNPC vs. Zaria
& Anor (2014) LPELR-22362 (CA) Pg. 56, Para. E – G.

Again, In Sifax Nigeria Limited & Ors v. Migfo Nigeria
Limited & Anor (2015) LPELR-24655 (CA), P., the Supreme court
held that; where a statute of limitation prescribes a time
frame within which a claimant must file an action in respect of his
grievances, time will stop running against the Claimant from the
moment an action is commenced. The Court further stated that even
where the action is instituted in a court that lacks jurisdiction
and is struck out for that reason, the time expended in the wrong
court will be discounted for purposes of computation of time under
the relevant statute of limitation.

Ogbom Goodluck O, Esq. LLB (Hons), LLM., is a
Port Harcourt based legal Practitioner. [email protected]^[1]

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