LEGAL IMPLICATION OF COVID-19 ON STATUTE OF LIMITATIONS
The outbreak of the Coronavirus, its effects and the need to practice social distancing in order to curb the virus are no longer new concepts. The economic and social effects the virus has caused globally is disheartening.
According to a news article on Punchng.com, published on 24th March, 2020, The Chief Justice of Nigeria and Chairman of the National Judicial Council, Tanko Muhammad directed all heads of courts to suspend sittings from Tuesday for the initial two weeks. The directive reads,
Further to my earlier Circular Ref. No. NJC /CIR/HOC/II/ 629 dated 20th March, 2020, on the above subject matter. In view of the reality of the COVID – 19 in the country and in order to take further preventive steps, all Heads of Courts are, from tomorrow, March 24, 2020 directed to suspend court sittings for an initial period of two weeks at the first instance, except in matters that are urgent, essential or time bound according to our extant laws.
He gave the directive as part of efforts to curb the spread of the deadly coronavirus in the court. Deducing from the intent of the directive of the Chief Justice, it is apropos to state that he took into consideration matters that may be caught up with statute of limitations because of its time essence and permitted the Courts to entertain such matters despite the total lockdown of the Courts. This directive is in line with the Latin Maxim “Generalibus specialia derogant” which means special things derogate from general things.
At the Federal and state levels, there have been calls among lawyers on the need to suspend statutes of limitations during the COVID-19 outbreak. This call is fundamental in order to preserve our judicial system, else, we will be faced with case congestions in courts as a result of objections to the statute of limitations. However, the National Assembly and state Houses of Assembly have not yielded to such call.
The thrust of this article is to ascertain the effect or legal implications the Covid-19 will have on individuals and corporate bodies in enforcing their legal rights when the lockdown is over in consideration to the statute of limitations.
Statute of limitations governs the amount of a time a person has to file a lawsuit. The Court in the case of NNPC v. EMELIKE (2018) LPELR-CA/PH/93/2014 held: “The Black Law Dictionary (6th edition) defines the term, Statute of Limitations on page 927 as follows: “…A statute prescribing limitations to the right of action on certain described causes of action or criminal prosecutions; that is, declaring that no suit shall be maintained on such causes of action, nor any criminal charge be made, unless brought within a specified period of time after the right accrued…” Per SANGA, J.C.A. (Pp. 31-32, Paras. E-A)
The Court in a recent case of EHINMOSAN v. NNPC & ANOR (2019) LPELR-CA/B/401/2010 stated out the nature of statute of limitations to be as one which provides that no Court shall entertain proceedings for the enforcement of certain rights if such proceedings were set on foot after the lapse of a definite period of time reckoned as a rule from the date of violation of the right. Thus the limitation of actions is the principle of law that requires the plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a Court of law within the time limited by law, otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing such action by law. It is therefore an established principle of law that where a statute of limitation prescribes a period within which an action should be instituted against any perceived wrong, legal proceedings cannot properly or validly be instituted after the expiration of the prescribed period. Hence an action instituted after the expiration of the period prescribed by the relevant statute is said to be statute barred.
Generally, it is the belief of the law that where there is a wrong there is a remedy and when it comes to dispensing of the remedy, the Law cannot be helpless. This notwithstanding, the law expects that everyone who has a right to claim must be alive to his responsibilities in claiming such right as and when due. The law does not encourage anyone to sleep on his right, possibly snore, and saunter into dreamland and slumber; then come out when everyone in the community has moved on to begin the agitation for his stale right. That is why the law brings up statutory and equitable defences to aid the vigilant against the indolent. It is also meant to safeguard the society which is covered by the well crafted public policy that there should be an end to litigation.
The Court in the case of MERCANTILE BANK (NIG) LTD. VS FETECO (1998) 3 NWLR (PT. 540) 143, 156 where Tobi JCA (as he then was) stated out the aim of statute of limitation when it held:
A statute of limitations is designed to stop or avoid situations where a Plaintiff can commence an action anytime he feels like doing so even when human memory would have normally faded and therefore failed. Putting it in another language by the statute of limitation, a Plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a Defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering Plaintiff.
The principle of statute of limitation of actions is premised on the notion that no one should remain under threat of being sued indefinitely and that the right to enforce a claim through the judicial processes of a court of law should not be forever. The rationale for the existence of such statutes is premised on the following factors:
a. That long dormant claims have more cruelty than justice in them.
b. That the person against who they might be made may have lost the requisite evidence to disprove the claim due to passage of time
c. That a person with good cause of action should pursue them with reasonable diligence. Aremo II v. Adekanye (2004) 7 SC (Pt.II) 28;
A Statute of Limitations has the effect of barring a claim after a specified period. Its primary purpose is in equity and it is designed to promote justice by preventing surprises through initiation of claims that have been allowed to go stale. The law requires that a person who has a claim must prosecute such a claim diligently so that parties are not bogged down by claims which have reasonably been considered as forgotten. Limitation Laws are therefore promulgated to prevent or preclude the revival claims of which are considered as having been forgotten or gone stale. AG Adamawa State & Ors v. AG Federation (2014) LPELR – 23221 (SC);
The effect of a statute of limitation is that it removes the right of action, the right of enforcement, the right to judicial relief, and leaves the Plaintiffs with a bare and empty cause of action which he cannot enforce. JEMIBEWON V. KOSOKO & ORS (2010) LPELR CA/A/126M/2006
It is pertinent to state that a statute of limitation begins to run from the moment the cause of action arose and not when it was discovered and that being the case, it is immaterial that a party was absent from jurisdiction or that there was no Court within jurisdiction to entertain the claim or that the plaintiff was illiterate. FABUNMI v. UI & ANOR (2016) LPELR-CA/I/94/2014. The statute of limitation does not confer any right on the defendant. Its only imposes a time limit on the plaintiff.
Thus, the Apex Court has recognized that certain exceptions to statute of limitation as provided for under the Law. These exceptions are: (a) Instances of continuance of damage or injury; (b) situation where the public officer acted outside the bound of his office or outside his statutory or constitutional duty; (c) cases of recovery of land; (d) breaches of contract; (e) claims for work and labour done; and (f) good faith. See AG RIVERS STATE v AG BAYELSA STATE & ANOR (2013) 3 NWLR (PT 1340) 123; FGN v. ZEBRA ENERGY LTD (2002) 18 NWLR (PT 798) 162
Can the defence of statute bar suffice a defendant after the lockdown? In answering the above question, the answer will be in two folds: 1. Chief Justice Directive period (2) President Directive period.
- Chief Justice directive period: If a defendant should raise the defence of statute bar on any matter that was caught up by statute of limitation while the Chief Justice directive subsist, in my opinion, I believe such defence will suffice because the Chief Justice ordered the courts to entertain matters of urgency and time bound because of its time essence. The Chief Justice directive did not in any way prevent a party from bringing an action or deny the party the opportunity of suing timeously because his directive was to the effect that special things derogate from general things, in this instance, matters that are urgent and time bound should be attended to even while the two weeks directive runs.
- President/Governors directive period: The President in exercise of his constitutional powers to declare a state of emergency according to Section 305 (3) of the 1999 Constitution did same by directing the total lockdown of certain states in order to curb the Covid-19. Also, some state Governors directed for a total lockdown in their states in order to curb the Covid-19 pandemic.
Any defendant to any suit who raises the defence of statute bar after this lockdown on any matter that is caught up with statute of limitation while the President/Governors directive was in force, such defence will not suffice him. However, in my opinion, the Claimant must show that he was willing and capable of performing his own obligation of filing his processes but was prevented from doing so by circumstances beyond his contemplation and control.
The court in the case of Nigerian Army v Yakubu (2013) LPELR-SC.107/2010 held “This court has held in Abacha v. Spiff (2009) 5 SCNJ 119 at 140 that where a party is prevented from bringing an action or denied the opportunity to sue timeously, limitation law will not apply. The position in the case at hand points to the same direction.” PER FABIYI, J.S.C. (P. 14, Paras. B-D).
The Abacha v Spiff case which the Supreme Court had referenced in the Nigerian Army’s case dealt with a situation where the relevant limitation law had an exemption on postponement of limitation period in case of “fraud, concealment or mistake.” As it turned out, the court was able to make a factual finding that there had been fraud in that case which prevented the claimant from having notice of a possible cause of action.
It is pertinent to point out that the Court in the above case never defined what they meant by “prevented” or “denied”. With regards to the case, when the Court used those keywords, did they contemplate physical factors like Covid-19 within the intent of the word “prevented or denied”.
The Black’s Law Dictionary (6th edition) defines the word Prevent on page 1352 as follows: To hinder, frustrate, prohibit, impede, or preclude; to obstruct; to intercept.
Deducing further from the above-mentioned cases, it is barefaced that the measures taken by the government since the outbreak, in my view, has prevented intending claimants from commencing actions. The law is settled as represented in the Latin Maxim “Lex non logit ad impossibilia” which means the law does not compel the doing of impossibilities.
To boot, any matter that is caught up by statute of limitation while the President/Governors directive is in force, the limitation law will not apply as stated in the case of Nigerian Army v Yakubu because the measures taken by the government prevented the claimants from instituting their action. The government measures within this period are not just causing only hindrance and prohibition but also untold impediment and obstruction to the commencement of action of a claimant. This said president/Governors directive is in line with the powers vested upon them by the Constitution and the Quarantine Act as against the normal Governor’s directive that even when disobeyed does not amount to an offence as held in Faith Okafor v Lagos State Government (2016) LPELR-4066 CA.
The Covid-19 pandemic is having a substantial impact on courts all around Nigeria. The legal implications of Covid-19 on statute of limitation can either be positive or negative. It will be positive in that:
- It will give room for more exposition on the statute of limitation and the need why it should not be used to cause hardship on the Claimant/prosecution.
- It will make our legislators see the need to amend some of our laws like the Limitation Laws.
- It will lead to the development of our Justice System to accommodate online Court sitting, filing and hearing in order to avoid the bizarre occurrence that this present Covid-19 has caused to our judicial system.
The Covid-19 will have a strong negative effect on judicial system and cause various delays in litigation ranging from objections as to statute of limitation to appeals on same.
In conclusion, in the words of Damilola O. Awotula, “the limitations laws have the effect of shutting the claimant out of court where he failed to set the law in motion to salvage his triable injury while the doors of the court is flung wide open.” Contrariwise, a claimant cannot be deemed hesitant or reticent in enforcing his right since the gatekeepers of the courtroom are themselves shut out of the judicial process due to the ravaging pandemic and are compelled to shut down the temple of justice.
I beg to say that the dangling clock affixed to the Limitations Law is in themselves currently limited. The judges themselves cannot check the time since they are out of the judicial temple. The clock only ticks when the doors of the court are open”.
It will be inequitable to dismiss a Claimant’s suit on the ground that he was caught up by statute of limitation during this lockdown directive and any judgment in favour of the defendant dismissing a case on ground of statute of limitation while the President directive subsisted, is equivalent to making hell a storage room for ice cream.
Chidera Nwokeke is a graduate of Law from Ebonyi State University, a student of Nigerian Law School, Lagos Campus. He is academically motivated and has passion for research in several areas of law. He is a member of Amnesty International. He has a keen interest in Public Interest Litigation and development, Dispute Resolution, Human Right. He can be reached at Nwokekechidera@gmail.com or 08120945787.