Effects of Statute of limitation on an Action

Effects of Statute of limitation on an Action

INTRODUCTION

The above suit is between the host communities of Shell Petroleum Development Company of Nigeria and the issue of compensation for environmental degradation and ecological damage suffered by the communities as a result of the activities of the company in carrying out its exploration and exploitation activities.

In this suit, a representative action was brought by a group of persons on behalf of the host communities claiming damages for oil spillages that occurred from the defendants facilities located within the claimants environment, and which has caused the claimant some level of hardship, as their means of livelihood had been adversely affected.

The claimant, by way of a writ of summons was praying the court for an award of damages in their favour as compensation for loses suffered. The defendant in their defence raised several issues, including but not limited to the following;

Defence Argument:

1.        That the proceedings were statute barred- S16, Rivers State Limitation Edict 1988 (5 years limitation Period)

2.        Proceedings were time barred- S12(1) NNPC Act. – (twelve months next after the act.)

3.        Proceedings were competent (pre- action protocol) – for statutory establishment. One month written notice of intention to commence action against the body should be served, state clearly and explicitly, the cause of action, particulars of claim and reliefs claimed.

4.        Doctoring of estoppels – res “judicata”. – Same parties, same issues and subject matter, final judgment, competent court.

5.        Public Officers protection Act - S2 (a) – action must be commenced within three months next after the act, neglect or default complained of.

Consequently, the parties filed their respective submissions alleging the following:

Plaintiff Argument

1.        a.)       The plaintiff argues that the suit is not ‘res judicata’ as the extensive damage to the ecology of the plaintiff/respondents community continues to accrue daily on a continuing basis, as no remedial activities have been made to decontaminate the pollutants or recharge the de-polluted marine life.

b.)       That the continued failure of the defendants to remediate the effects of the oil spills in the plaintiffs/respondents’ community in each successive year, in itself, gives rise to a fresh cause of action each year.

2.        The Plaintiffs/Respondents had filed a ‘PRE-ACTION NOTICE’ by a letter dated 25/10/2005, gave the statutory Notice in writing to the 2^nd defendant as required, and thereby complying with the requirement of pre-action notice for statutory bodies.

3.        The plaintiff denies that the suit is “res judicata”, and argues that the plaintiffs are not members of the group, Ijaw Aboringines of Bayelsa state.

4          The plaintiff denies every other averment made by the defendant.

Effects of the statute of limitation to an action that is statute barred

The term “statute of limitations” means that there is a specific time frame in Nigeria in which an individual is permitted to initiate legal action against another person or entity. It is important to file suit within the designated time period because once the statute of limitations expires, it is nearly impossible to initiate legal action, no matter how much merit your lawsuit may have. Once the statute of limitations expires, so does your legal right to sue. If the statute of limitations expires and you have not yet filed a lawsuit, you will lose your right to money damages and other relief. The reason that each state has a statute of limitations governing certain heads of claim like the one complained of in the instant case is to encourage injured parties to evaluate their claims and take action or file a lawsuit within a certain period of time. The sooner a lawsuit is initiated after the perceived wrongdoing, the more likely it is that memories and documents pertinent to that lawsuit remain intact and are not destroyed by the passage of time.

The statute of limitations in Nigeria’s Niger Delta region including Bayelsa state by virtue of section 16 of Rivers State limitation law 1988 for injuries resulting from oil exploration and exploitation is five years. The easiest way to think of the statute of limitations is like a big clock counting down the years and days in which you have to file a lawsuit. Generally, the five-year statute of limitations “clock” begins to count down from the exact date the injury occurred. For example, the statute of limitations would begin to run on the day spill occurred or it was reported. Unfortunately, the day of a patient’s death may also mark the beginning of the countdown of the statute of limitations clock. In most cases, it is fairly easy to determine the exact date of injury, and the injured party has five years from that date to file a lawsuit, if that is the course of action he/she chooses.

In other situations, however, the date of injury may not always be so obvious. For those difficult instances where a an injured party discovers the injury against him after the usual five-year time period has passed, that person may still be able to file a negligence lawsuit thanks to a legal rule called the “discovery rule.” The discovery rule says that in certain instances, the statute of limitations clock does not begin to run until the patient actually “discovers” that wrongdoing has occurred. The discovery rule most often takes effect in cases where there is a delayed diagnosis of some type of recurring ecological damage. Most individuals who believe they have been harmed by the negligence of a negligent tort feasor do not possess the necessary legal knowledge needed to know when they should file a lawsuit. That is the job of a qualified attorney. The most important thing you as a concerned victim can do is contact an attorney or attorney referral service at the first moment you think you have been harmed a substance introduced to your surrounding by someone else. Time is certainly of the essence when it comes to protecting your legal right to sue another person or entity, and it is important to be aware of this five-year deadline.

CONTEMPT OF COURT

CONTEMPT OF COURT

DEFINITION:

Contempt of Court is an imputation of crime arising out of a civil matter. The onus is on the applicant to prove that there is a contempt of court and that the respondent is the one who actually committed the said contempt deliberately and with guilty mind. Orija v. Akogun (2009) 10 NWLR pt 1150

‘any act which is calculated to embarrass, hinder or obstruct the court in administration of justice or which is calculated to lessen its authority or dignity and to adversely affect the confidence of the public in the courts ability to dispense justice’.  Blacks Law Dictionary, 6^th Ed.

‘any conduct which tends to bring into disrespect, scorn or disrepute the authority and administration of the law or which tends to interfere with and/or prejudice litigants and/or their, witnesses in the course of litigation’.

- per Idigbe JSC in Atake v. A. G. FED. anor (1972) 11 SC 175

‘action or inaction amounting to an interference with or obstruction or having a tendency to interfere with or obstruct the administration or justice’. Awobokun v. Adeyemi.(1968) NMLR 289.

There are 2 types of contempt:

1.     Criminal and

2.     Civil Contempt

Criminal Contempt

These are words or acts which obstruct or tend to obstruct or interfere with the administration of justice. It is an offence upon the court.

Examples –

·        To call a judge a liar.

·        To allege that he is partial.

          Vidysagara v. The Queen 1963 ac 589.

·        Comments that scandalize the court (oral and written).

·        Insulting language, disrespectful attitude, acts of violence.

·        Private communication with a judge to influence his judgment (whether or not accompanied with a bribe). See Awobokun v. Adeyemi (supra)

Civil Contempt

This means contempt in procedure, consisting of disobedience to the judgments, orders or other process of court. It involves a private injury – in other words, it violates the rights of a person who benefits under a judgment or order, when such judgment or order is flouted.

Contempt In Facie Curie

This means contempt committed in the face of the court, in other words contempt committed in the immediate view of the court room or so near the presence of the court, which obstructs or interferes with due administration of justice or is calculated to do so.

Contempt Ex Facie Currie

This means contempt committed outside the face of the court. It consists of words (spoken or published) or acts outside the court which are intended or likely to interfere with or obstruct the fair administration of justice. See Dr. Olu Onagoruwa Fca/E/117/79/No 5/2/80

E.g.   Refusal to obey a lawful order of court such as an injunction.

Civil contempt falls under the category of contempt ex facie curiae.

See generally –

Obiekwe aniweta v. The state fsa/e/47/78 delivered on 16.8.78

Awobokun v. Adeyemi (1968) NMLR 289 at 294.

Afe babalola v. Federal electoral commission & anor. suit no: ak/ma/77 of 21.2.78 

Rule 1 (a) RPC enjoins lawyers to maintain respectful attitude towards the court, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance. Judges not being wholly free to defend themselves are peculiarly entitled to receive the support of the Bar against unjust criticism and clamor.

Rule 3(a) also enjoins lawyers to always display a dignified and respectful attitude towards the judge presiding, not for the sake of his person, but for maintenance of respect for and confidence in the judicial office.

A breach of the duty to respect the judge may amount to contempt. However it is not every act of discourtesy that amounts to contempt. See Izuora v. R    13 WACA p. 313. It may not be possible to particularize the act that constitutes contempt. See Agbachom v. The State (1970) 1 All NLR p. 69. A fair and civil criticism made against a judge may not amount to contempt ( even if it is strongly worded). See Okoduwa v. State (1988) 3 SCNJ 110

The following acts would amount to contempt –

1)    Impeding service of court process.

2)    Neglect of duties by Sheriffs and other officers of court.

3)    Disobedience to a sub poena.

4)    Refusal of witness to answer questions.

5)    Insulting or Outrageous or Scandalous language to court.

6)    Publication in a newspaper or article containing scurrilous personal abuse of a judge, with reference to his conduct as a judge in a judicial proceeding which has terminated.

7)    Publication in the newspaper misrepresenting court proceeding.

8)              See S. 133(4) of the Criminal Code.

9)    A letter accusing a Judge of bias is contemptuous.

See Deduwa v. The State (1975) 1 ALL NLR (pt. 1) 1

Proof of Contempt

Contempt of court is a quasi-criminal offence and the standard of proof is beyond reasonable doubt. See, Agbachom v. The State (1970) 1 ALL NLR 71. See also Awobokun v. Adeyemi (supra)

Even a civil contempt such as refusal to obey a court injunction must be proved beyond reasonable doubt. See American Int. Security and Telecommunications systems(Nig) ltd v. Eugene Peterson & Anor. Suit no: FRC/L/1077 of 27.10.78

CONTEMPT PROCEEDING

For contempt in facie curiae, the High Court can deal summarily with the contemnor. The Judicial officer before whom the contempt is committed can put the contemnor in the dock (not the witness box) and ask him to show cause why he should not be punished. However, the court must exercise caution.  See Awobokun v. Adeyemi. The contemnor must be given fair hearing in accordance with the rules of natural justice. Putting the contemnor in the dock is so as not to infringe his constitutional rights that no person accused of a crime shall be compelled to give evidence. S.36 (11) CFRN 1999. The cases to be tried summarily should be such that the facts are so notorious as to be virtually incontestable.

When a contempt is not committed in the face of the court, a judge who has been personally attacked should not as far as possible hear the case. See Awobokun v. Adeyemi (supra). A court may also adopt the procedure of apprehension/arrest, charge, prosecution etc. instead of the summary trial (where the act amounts to contempt ex facie). See Boyo v. A. G. Mid-West (1971) 1 ALL NLR 342, Oku v. The State (1970) 1 ALL NLR p. 60, Maharaj v. A. G. for Trinidad and Tobago (1977) 1 ALL NLR 411

Note however that, the inherent power of the High Court to punish for contempt summarily is for the preservation of the honor of the court, not for the personal aggrandizement of the Judge. See Obiekwe Aniweta v. The State (supra), Deduwa v. Okorodudu (1975) 2 SC p. 37. However, the power must be exercised with caution. See Awobokun v. Adeyemi (supra) 

Under S. 133 C. C. and S. 155 P. C., any person who commits contempt as defined under the respective codes can be charged in a magistrate court and tried under the CPC and CPA respectively. It is enough to say that whether civil or criminal contempt, both are criminal offences that carry penal sanctions and the standard of proof required for both, is proof beyond reasonable doubt before conviction.

Committal Proceedings

By virtue of the provisions of Order 42 Rule 9(1) of the High Court of Lagos State (Civil Procedure) Rules 2012,

“(1.) The procedure in applications for attachment for contempt of Court in cases to which this Rule applies shall be the same as for applications for an order for judicial review under Order 40 so far as applicable

(2.) The Notice of Motion shall be personally served unless the Judge dispenses with such service.”

Order 40 Rule 3(1) &(2)

“(1.) No application for judicial review shall be made unless leave of the court has been obtained in accordance with this rule.

(2.) An application for leave shall be made ex-parte to the Judge and shall be supported by:

a.       a statement setting out the name and description of the Applicant, the reliefs sought and the grounds on which they are sought;

b.       an affidavit verifying the facts relied on; and

c.       a written address in support of application for leave.

For ease of reference Order 42 rule 9(2) and Order 40 Rule 3(1) &(2) High Court of Lagos stateprovides:

“(1) An application for an order of committal shall be made to the court by motion on notice supported by an affidavit, and shall state the grounds of the application.

(2) The notice of motion, affidavit and grounds shall be served personally on the person sought to be committed; but may dispense with personal service where the justice of the case so demands”. Sub-rule 2 provides for the waiver of personal

service. It dispenses with personal service without providing for the grounds upon which the court must be satisfied before it dispenses with personal service. A lot of problems are envisaged in the interpretation of this portion of the rule.

There will be nothing preventing an applicant for committal proceeding without the least effort at personal service from misinforming the court as to his inability to serve the person to be committed personally.

Even if it is true that the person to be committed cannot be served because he cannot be found, how then will the order of committal if made, be enforced? The maxim of law id lex non cogit ad impossibilia. The Supreme Court had adopted

the maxim in the case of Abubakar v. Smith &ors. where it held that it would not make an order that did not stand the chance of being enforced. In other words, the court would not allow itself to make an unenforceable order. Another important thing to note about the sub-rule is that a case may arise wherein the person to be committed is genuinely unaware of the proceedings. To allow the court to dispense with personal service in such a situation will be wroughting havoc on natural justice. The Court of Appeal has set down in admirable manner the above postulation in the famous case of Rt. Hon. (Dr.) Nnamdi Azikiwe v. FEDECO & Anor. In Re: Dr. Olu Onagoruwa when that court said:

“As the appellant had no notice of the Order, he cannot be expected to comply with it even if he wanted to. There is no doubt that the news media carried the news of the courts proceedings of that day and the appellant being a legal adviser of one of the leading newspapers in the country must have read of it. But it is unreasonable to expect him to act on reports in newspaper, or treat the said reports as a Court Order. Although, he may do so if he wished, it did not amount to disobedience of the Court order if he rescues, or neglects to do anything without being served with a properly drawn up order of the court. The omission to serve on the Appellant the court’s order is in my opinion the first flaw in the proceeding”.

The above opinion of the Court of Appeal underscores the importance of personal service in committal proceedings.

ISSUANCE OF FORM 48 AND 49

By Section 94 of the Sheriffs and Civil Process Act, the Chief Justice was given the power to make rules for the smooth administration of the Act. Acting under this section of the act, the Chief Justice made the Judgments (Enforcement) Rules (hereinafter called the Rules).

Of importance is Order 13 rules (1) and (2) which is quoted in-extenso hereunder:

“(1) When an order enforceable by committal under section 72 of the ordinance (Act) has been made, in the absence of the judgement debtor and is for he delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditors, issue a copy of the order endorsed with a notice in form 48, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons

(2) If the judgement debtor fails to obey the order, the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order and the notice shall be served on the judgment debtor in like manner as a judgment summons”.

It is clear from the above provisions that it is mandatory for the registrar in serving the order, to endorse form 48 thereon. Moreover, in the event of the failure of the

judgement debtor to obey the order with the endorsed form 48 in sub-rule 1, the registrar is expected under sub-rule 2 to attach form 49 to the application of the judgement creditor asking that the judgement debtor be committed for contempt of court upon the application of the judgement creditor.

GIVE THEM ANOTHER CHANCE

TB Joshua Ministries

GIVE THEM ANOTHER CHANCE
Do you know that your relationship with God depends far more than you think upon your adjustment to other people? Many people say that they want to go it all alone because they have been hurt too many times in the past. We fail to realize that before a relationship comes to stay, it must have gone through thick and thin. Ask any successful, happy married couple and they will tell you how many difficult situations, trials and temptations they passed through in order to come to a new level in life. Many have rejected their prospective helpers because of their inability to see beyond the situation at hand. If you reject someone on account of their weakness, you also reject their strength because someone who is a thorn in your flesh today may be your helper tomorrow. If God had given up on you when you disobeyed Him, when you ignored Him, when you rejected Him, you would not be here today. Give your brother and sister another chance because God has given you another chance. Don’t reject anyone on account of today because tomorrow is mystery (Ecclesiastes 4:11-12).

NGLS Update: Member States agree on the format of the high-level political forum on sustainable development

NGLS Update: Member States agree on the format of the high-level political forum on sustainable development

In this issue Member States agree on the format of the high-level political forum on sustainable development ECOSOC opens its 2013 substantive session in Geneva MDGs "most successful global anti-poverty push in history," says Secretary-General on occasion of 2013 report GA passes resolution on Intergovernmental Committee of Experts on Sustainable Development Financing WHO report: Violence against women as a "global health problem of epidemic proportions" Panel Discussion Held at UNHQ on International Migration and Development Youth organizations strengthen engagement in developing the post-2015 agenda Upcoming Events 12 July Deadline for Contributions to UN-NGLS Consultation on 4 Post-2015 Reports The deadline for submitting written contributions to the consultation facilitated by UN-NGLS in partnership with the Post-2015 Development Planning Team/Executive Office of the Secretary-General in English, French, and Spanish closes on 12 July. The deadline for submitting written contributions in Arabic closed on 1 July. More information is available here. For Spanish, click here. For French, click here. 18 July, New York and webcast The World We Want: People\'s Voices Series On 18 July, Mandela Day, the World We Want platform will host the inaugural session of its new People\'s Voices series. Representatives of non-governmental and community organizations, in addition to UN agencies and Member States, are invited to attend. Hosted by the civil society and UN steering committee of the World We Want, the event will showcase and respond to people\'s voices calling for an end to poverty and presenting ideas for global development. It will include a brief overview of how the World We Want can be used as a mechanism for bringing the voices of the most marginalized and impoverished people to the United Nations and the world stage. Additionally, three new consultation spaces on the World We Want will be launched: for children, f! or youth, and for faith-based organizations. The event will be held from 10-11:30AM EDT at the Church Center for the United Nations, 2nd Floor, at 44th Street and 1st Avenue. To attend in person please RSVP to info@worldwewant2015.org. The event will be livestreamed on www.worldwewant2015.org. 8-26 July, Geneva Committee on the Elimination of Discrimination against Women, 55th session From 8-26 July at the Palais des Nations in Geneva, the Committee on the Elimination of Discrimination against Women (CEDAW) will hold its 55th session. Member States reports under consideration are: Afghanistan, Bosnia and Herzegovina, Cape Verde, Cuba, Democratic Republic of the Congo, Dominican Republic, Serbia and the United Kingdom. More information, including on NGO participation and submissions of reports, is available here. 8-12 July, Geneva Human Rights Council, Expert Mechanism on the Rights of Indigenous Peoples, sixth session From 8-12 July at the Palais des Nations in Geneva, the sixth session of the Expert Mechanism on the Rights of Indigenous Peoples will be held. The session will address the upcoming World Conference on Indigenous Peoples 2014, the UN Declaration on the Rights of Indigenous Peoples, and a draft study on access to justice in the promotion and protection of the rights of indigenous peoples. It will consider proposals to be made to the Human Rights Council. Representatives of indigenous organizations present will have the opportunity to hold side events and to meet with the Special Rapporteur on the rights of indigenous peoples. More information is available here. Contact Us UN-NGLS Office in Geneva Palais des Nations 1211 Geneva 10 Switzerland Tel: +41 22 917 2076 Fax: +41 22 917 0432 Email: ngls@unctad.org   UN-NGLS Office in New York DC1-1106 United Nations New York, NY 10017 United States Tel: +1 212 963 3125 Fax: +1 212 963 8712 Email: ngls@un.org   UN-NGLS on Twitter @unngls   Member States agree on the format of the high-level political forum on sustainable development On 26 June, after five months of negotiations, Member States agreed on the resolution text that defines the format, functions and organizational aspects of the high-level political forum on sustainable development (HLPF or the forum). The resolution will now be formally adopted by the UN General Assembly. The HLPF will be the intergovernmental institution in the UN mandated to "provide political leadership, guidance and recommendations for sustainable development, follow-up and review progress in the implementation of sustainable development commitments, [and] enhance the integration of the three dimensions of sustainable development in a holistic and cross-sectoral manner at all levels." Its establishment was decided by Member States during the UN Conference on Sustainable Development (Rio+20) held in Rio de Janeiro in 2012. More information is available online. ECOSOC opens its 2013 substantive session in Geneva On 1 July, the Economic and Social Council (ECOSOC) opened its 2013 substantive session, which will run through 26 July at the Palais des Nations in Geneva. The High-level Segment, held from 1 to 4 July, heard a number of opening addresses, including by the ECOSOC President, the UN Secretary-General, the President of the General Assembly, and the President of the Swiss Confederation. These remarks were followed by keynote addresses on the theme of the Annual Ministerial Review on "Science, technology and innovation, and the potential of culture, for promoting sustainable development a! nd achieving the Millennium Development Goals." The opening session also saw the launch of the Global Innovation Index and heard policy messages from AMR Preparatory Meetings. More information is available online. MDGs "most successful global anti-poverty push in history," says Secretary-General on occasion of 2013 report On 1 July 2013, the opening day of the ECOSOC high-level segment, the UN Secretary-General presented the 2013 edition of the Millennium Development Goals (MDGs) Report. The report is published by an Inter-agency and Expert Group on MDG Indicators led by the UN Department of Economic and Social Affairs (DESA). It outlines which global goals have been met or are on track to be met by their target deadline of 2015, and identifies areas where further progress will be required up to and beyond 2015. More information is available online. GA passes resolution on Intergovernmental Committee of Experts on Sustainable Development Financing Recalling its endorsement of the outcome document of the United Nations Conference on Sustainable Development (Rio+20) titled The Future We Want, the General Assembly (GA) decided on 18 June 2013 to establish an Intergovernmental Committee of Experts on Sustainable Development Financing (document A/67/L.70), effective 21 June 2013. The Assembly welcomed 30 experts nominated by the five UN regional groups to serve on the committee. 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Global and regional estimates of violence against women: Prevalence and health effects of intimate partner violence and non-partner sexual violence, published by the World Health Organization in partnership with the London School of Hygiene & Tropical Medicine and the South African Medical Research Council (SAMRC), represents the first systematic study of global data on the prevalence of violence against women - both by partners and non-partners. More information is available online. Panel Discussion Held at UNHQ on International Migration and Development In preparation for the High-level Dialogue (HLD) on International Migration and Development, to be held on 3 and 4 October 2013, the President of the General Assembly organized a panel discussion with a focus on the overall theme of the High-level Dialogue. Held on 25 June, the panel discussion focused on: considering progress in the global migration debate since the 2006 High-level Dialogue on Migration and Development; identifying concrete recommendations for the 2013 event; and providing fresh perspectives on the future of migration and its relation to development. Participa! nts called for protecting the human rights of migrants and addressing negative stereotypes. More information is available online. Youth organizations strengthen engagement in developing the post-2015 agenda More than 45 representatives of approximately fifteen youth organizations worldwide and of UN agencies held the second Multi-Stakeholder Meeting on Incremental Steps in Youth Engagement in Developing the Post-2015 Agenda, in New York on 21 June. The group strategized on a wide range of issues regarding youth, including empowerment, particularly among children with disabilities, gender equality, and partnership. Four working groups formulated recommendations on the following topics: Youth in the Open Working Group on Sustainable Development Goals and involvement in the Special Event on MDGs and Post-2015; World Conference on Youth; Children Engagement in post! -2015; and Youth and online engagement - MY World and the World We Want. More information is available online. United Nations Non-Governmental Liaison Service

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