Citation: (2021) 14 NWLR PT. 1795 AT 63.
PARTIES IN FULL:
1. HON. FRANCIS ALUU OKO
2. HON. JOSEPH O. CHKWU
3. HON. AMA O. UCHE
[for themselves and on behalf of all councilors of Ebonyi State who served for the period of 1999-2002 and whose certificates of return are hereto annexed]
HON. ATTORNEY- GENERAL OF EB
Summary of facts:
The appellants were elected councillors in the Local Government Councils of Ebonyi State from 1999 to 2002. On 6th December 2010, the appellants commenced an action by writ of summons and statement of claim against the respondent, and sought payment of allowances which they asserted the Ebonyi State Government owed them in respect of their tenure as councillors.
The appellants asserted they were entitled to allowances approved by the Revenue Mobilisation and Fiscal Commission (RMAC) as stated in two documents made in 2001 (Exhibits C and D). They averred that at the end of their tenure in 2002, they started
demanding payment of their unpaid allowances by writing letters to the Governor of Ebonyi State, the Secretary of Ebonyi State Government, and the Speaker of Ebonyi State House of Assembly to no avail. They further averred that after their demands failed to yield any result, they wrote to the RMAFC, which prompted the RMAFC to write a letter (Exhibit H) to the Governor of Ebonyi State in 2010, and that exhibit H reiterated their entitlement to the allowances.
The respondent objected to the competence of the appellants’ suit by a preliminary objection and urged the trial court to strike out the suit for want of jurisdiction. The respondent’s main argument in support of the preliminary objection was that the
combined operation of the Limitation Law (Cap. 102) and Ebonyi State (Applicable Laws) Law (Cap. 40), Laws of Ebonyi State of Nigeria, 2009 had divested the trial court of jurisdiction to hear and determine the appellants’ action because it was filed after five years from the accrual of the appellants’ cause of action in 2002.
In their counter affidavit to the objection, the appellants admitted that the Ebonyi State House of Assembly passed a law in 2002 (Law No. 5 of 2002), to bar the payment of the claimed allowances to them. But they insisted that the Federal Government instructed and ordered Ebonyi State Government to pay them the allowances in spite of the Law on the ground that the Law could only cover political appointees of Ebonyi State, and not elected councilors. The appellants, however, took no steps then either to challenge the Law or to enforce their right to the allowances.
After hearing arguments of parties, the trial court found and held that the appellants’ cause of action accrued in 2002 immediately after the end of their tenure, and that their suit was statute-barred because of action.
Dissatisfied with the trial court’s ruling, the appellants appealed to the Court of Appeal, which affirmed the trial court’s finding and dismissed the appeal. And they appealed to the Supreme Court on two grounds of appeal, but formulated three issues for determination.
The appellants argued that what happened to them in 2002 was the accrual of rights per se. They argued that their cause of action accrued in 2008 when the Ebonyi State Government refused to accede to their demands. They argued that the declaration by the RMAFC in exhibits C and D did not cause an accrual of right of action or cause of action, and that if it did, they were not aware of the existence of the right. And that the limitation period did not begin to run against them until from 4th July 2008 when exhibits C and D were made known to them by certified true copies of the documents.
They further argued that it was when exhibit H was written that they had the assurance to file their claim in court.
Conversely, the respondent argued that the appellants’ cause of action was statute-barred because it accrued in 2002 when Ebonyi State Government rejected exhibits C and D by the enactment of Law No. 5 of 2002. The respondent further argued that contrary to the appellants’ argument, the appellants’ made demands by letters (exhibits E, F, and G) on 23rd May 2008, 27th May 2008, and 22nd April 2008 prior to 4th July 2008 the date the appellants claimed they became aware of exhibits C and D.
The respondent also argued that exhibits C and D made in 2001 but certified in 2008, and exhibit H made in 2010, did not whittle down the effect of Law No. 5 of 2002, which was enacted to exempt the appellants from severance allowances and other benefits as contained in the Law.
Held: Unanimously dismissing the appeal.
The following issues were raised and determined by the Supreme Court:
On whether communication by letters between parties stops period of limitation from running-
Letters written by one party to another without more does not amount to negotiation, the operation of which is capable of shifting the period of the accrual of a cause of action.
On duty on aggrieved party to file suit within time provided by law while negotiating settlement of grievance or dispute-
Parties are encouraged to engage in negotiations for the purpose of reaching an amicable settlement of their dispute. But such negotiation does not stop the period of limitation prescribed by the statute from running. A party whose right of action has
accrued has a responsibility to institute an action against the other party so as to protect his interest in the event that negotiations fail.
In this case, both parties are ad idem that the Limitation Law, Cap. 102, and Ebonyi State (Applicable Laws) Cap. 40.
Laws of Ebonyi State 2009 allow for institution of action against the respondent within five years after the accrual of the cause of action. The appellants’ contention that exchange of correspondences and negotiations between them and the respondent until the certification of exhibits C and D on 4th July 2008 protected their right of action does not avail them because such intervening negotiation does not stop the limitation period with respect to a cause of action once it begins to run.
On application of maxims of equity that equity follows the law and that delay defeats equity-
Equity follows the law. Delay defeats equity as equity assists only the vigilant. Equity would not assist a litigant resuscitate and resurrect a wasted right of action. In this case, the appellants did not challenge Law No. 5 of 2002 when it was enacted by Ebonyi State. They also did not act within the 5 years prescribed by the Limitation Law for enforcement of their right for judicial redress to ensure that they were paid their respective allowances.
On time within which to commence action on contract, tort, and other actions not specifically stated under Limitation Law of Ebonyi State-
Section 18 of the Limitation Law, Cap. 102, Laws of Ebonyi State, 2009 states that no action founded on contract, tort or any other action not specifically provided for in parts II and III of the Law shall be brought after the expiration of five years from the date on which the cause action accrued. In this case, the appellants knew when they became councillors that they were entitled to allowances payable monthly, annually, and at the end of their service tenure.
Contrary to the appellants’ argument, their letters of demand for their unpaid allowances (exhibits E, F, and G written on 23rd May 2008, 27h May 2008, and 22nd
April 2008 respectively) shows they were aware of the contents of exhibits C and D, which were made in 2001. And even if the appellants were not aware of the existence of exhibits C and D until they were certified and brought to their knowledge in 2008,
they were aware of Law No. 5 of 2002 by the Ebonyi State Government by which it blocked the payment of the claimed allowances to the appellants. In the circumstances, the appellants’ cause of action accrued in 2002. Consequently, the appellants’ suit filed in 2010 was statute-barred.
On when cause of action accrues-
When a right accrues, it is the duty of the beneficiary of that right to make moves to claim his right. When the move is made without success or without a favourable response from the other party, there is nothing more to infer than that the refusal to respond is tantamount to a denial. At that point, the cause of action accrues and is enforceable through the instrumentality of the judicial process.
In this case, the appellants have a right to their allowances that became due for payment monthly and yearly during their tenure, and at the end of their tenure. Their cause of action on non-payment of their allowances accrued in 2002 when they left office after all the duties enabling them to earn the allowances had been performed, but the respondent refused to pay them their allowances and passed the Law rejecting the contents of the letters (exhibits C and D) from RMAFC. The appellants, however, did not file their suit for the denied allowances until 6th December 2010.
On effect of limitation law –
The effect of limitation law on an action is that it takes away the plaintiff’s right to institute the action, but leaves him with his cause of action intact albeit devoid of the right to judicial relief.
On operation and effect of limitation law-
Where the law provides for commencement of an action within a prescribed period, in regard to a cause of action accruing to the plaintiff, proceeding shall not or ought not to be brought after the time so prescribed by the statute has lapsed. In this case, the appellants’ action was statute-barred because it was commenced outside the statutory time limit.
On whether policy statement by Federal Government prevails over law enacted by House of Assembly of each State –
Nigeria operates a federal system of government with smaller geographical definitions or component units called States. Under the Nigerian Constitution, the federal legislature otherwise called the National Assembly has legislative competence on all matters in the exclusive legislative list while the legislature at the State levels (House of Assembly of each State) can also make laws concurrently with the National Assembly on matters in the concurrent legislative list. And by section 4(5) of the Constitution, if any law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that other law shall to the extent of its inconsistency be void.
In this case, the Federal Government’s policy statement in exhibits C, D, and H are not laws so they do not have the legal effect to superceeding Law No. 5 of 2002 enacted by the Ebonyi State House of Assembly to exempt the appellants from being paid allowances and other benefits as contained in the Law.
On proper step for person whose right is affected by law enacted-
By virtue of Order 1 rule 2 of the High Court of Imo State (Civil Procedure) Rules, 1988 then applicable to Ebonyi State, and by Order 3 rule 2 of the High Court of Ebonyi State (Civil Procedure) Rules, 2008, a person who is aware of the enactment of a law that relates to his rights should apply by an originating summons to the High Court to seek interpretation of the law or to challenge the validity of the law.
In this case, from the appellants counter affidavit to the respondent’s preliminary objection, they were aware of the enactment of Law No. 5 by the Ebonyi State House of Assembly. In the circumstances, they should have applied to the court for an interpretation of the law in respect of their right to allowances payable to them for their service tenure. Instead of doing that, they relied on their belief that the Federal Executive policy override the Law validly enacted by the Ebonyi State House of Assembly.
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.