CORAM

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uchechukwu onyemenam -Justice of the Court of Appeal

balkisu bello aliyu -Justice of the Court of Appeal

hadiza rabiu shagari- Justice of the Court of Appeal

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PARTIES

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MR. DAVID EFFIONG

(SUING FOR HIMSELF AND REPRESENTING THE 200 FISHERMEN AND WOMEN GROUP OF OKPO-ITA COMMUNITY IN IBENO LOCAL GOVERNMENT AREA OF AKWA IBOM STATE OF NIGERIA)

APPELLANTS 

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MOBIL PRODUCING NIGERIA UNLIMITED

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, LIMITATION OF ACTIONS, ENVIRONMENTAL LAW, TORTS, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant (representing 200 fishermen and women from Okpo-Ita Community) filed a suit against the Respondent, claiming damages from a crude oil spill that occurred on June 29, 2014, at the Qua Iboe Oil Field terminal. The Appellant alleged continuing damage due to the Respondent’s failure to clean up the spill. The Respondent filed a preliminary objection, arguing that the suit was statute-barred under Section 16 of the Limitation Law of Akwa Ibom State. The trial court upheld the objection and dismissed the suit. The Appellant appealed against this ruling.

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HELD

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1. The Appellant had adequately pleaded facts relating to continuity of damage in their

statement of claim and writ of summons.

2. Continuity of damage is an exception to the application of statute of limitation and must be proved by evidence as it is an issue of fact.

3. The trial court erred in dismissing the suit without allowing evidence to be led on the issue of continuing damage.

4. The statute of limitation does not apply to declaratory reliefs, as held in AG Rivers v AG Federation.

 

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ISSUES

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1. Whether the trial Court was right to uphold the preliminary objection on the basis that continuity of damages and/or injury coupled with equitable reliefs copiously pleaded and claimed are not an exception to statute bar in tortious liability of negligence?

2. Whether the trial Court was right to award cost of N50,000.00 against the Appellant?

 

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RATIONES DECIDENDI

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EXCEPTIONS TO LIMITATION LAW – CONTINUING DAMAGE AS EXCEPTION TO LIMITATION PERIOD:

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“The law on limitation of actions recognizes some exceptions, one of which is that where there has been a continuance of damage, a fresh action arises from time to time, as often as the damage persists…”
– Per Balkisu Bello Aliyu, J.C.A.

 

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PLEADINGS – NECESSITY OF PLEADING CONTINUING DAMAGE:

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“Indeed, in the determination of that issue, id est, continuing damage would require that the continuing damage be specifically pleaded by the Plaintiff/Respondent, and the matter proceed to trial for the Plaintiff/Respondent to lead evidence to show that a fresh cause of action arose from time to time, as often as damage was caused” – Per Balkisu Bello Aliyu, J.C.A.

 

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PRELIMINARY OBJECTIONS – SCOPE OF COURT’S POWER IN DETERMINING PRELIMINARY OBJECTIONS:

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“This means that the learned trial Judge understood the correct principle of law to the effect that continuity of damage and/or injury is an exception to the application of the statute of limitation to a suit, and if pleaded, must be proved by evidence, being an issue of facts” – Per Balkisu Bello Aliyu, J.C.A.

 

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DECLARATORY RELIEFS – APPLICABILITY OF LIMITATION LAW TO DECLARATORY RELIEFS:

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“Moreover, by the decision in the case of A.G. RIVERS VS. A.G. FEDERATION (supra), the Apex Court held that the statute of limitation does not apply to declaratory reliefs.” – Per Balkisu Bello Aliyu, J.C.A.

 

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EVALUATION OF EVIDENCE – NECESSITY OF HEARING EVIDENCE ON FACTUAL ISSUES:

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“Therefore, I answer issue one in the negative in favor of the Appellant against the Respondent. This means issue two fails, and it is discountenanced, being dependent on the success or failure of issue one.” – Per Balkisu Bello Aliyu, J.C.A.

 

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DETERMINATION OF ISSUES OF FACT – IMPROPRIETY OF DETERMINING FACTUAL ISSUES ON PRELIMINARY OBJECTION:

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“The trial court made a finding of fact at page 272 of the record regarding continuity of damage or injury without hearing evidence on the pleadings, thus deciding the merits of the case without hearing evidence.” – Per Balkisu Bello Aliyu, J.C.A.

 

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ENVIRONMENTAL DAMAGE – PLEADING CONTINUOUS ENVIRONMENTAL DAMAGE:

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“Even from the reliefs sought by the appellants, they pleaded continuous damage and/or injury. I have also perused the facts pleaded in paragraphs 9-43 of the appellant’s statement of claim supporting the above reliefs, which contain facts alluding to the continuity of damages from the alleged oil spill.” – Per Balkisu Bello Aliyu, J.C.A.

 

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PROOF OF CONTINUING DAMAGE – REQUIREMENT OF EVIDENCE TO ESTABLISH CONTINUING DAMAGE:

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“Continuity of damage and/or injury is an exception to the application of the statute of limitation to a suit, and if pleaded, must be proved by evidence, being an issue of fact.” – Per Balkisu Bello Aliyu, J.C.A.

 

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FOREIGN JUDGMENTS – PERSUASIVE AUTHORITY OF FOREIGN DECISIONS:

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“Foreign judgments, including decisions of English courts, are only persuasive authority as they are not binding on the Nigerian courts.” – Per Balkisu Bello Aliyu, J.C.A.

 

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ACCRUAL OF CAUSE OF ACTION – DETERMINATION OF WHEN CAUSE OF ACTION ARISES:

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“The Respondent’s consistent position at the lower court and in this appeal has been that, based on the authorities cited, it is evident that a party alleging the continuation of legal damage or wrong must plead facts in its statement of claim showing that the alleged legal wrong continued.” – Per Balkisu Bello Aliyu, J.C.A.

 

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NATURE OF RELIEFS – DISTINCTION BETWEEN DECLARATORY AND EXECUTORY RELIEFS:

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“For the reliefs to be declaratory, they must invite the court to declare the legal rights of the parties and nothing more. However, the reliefs the Appellants sought are ‘ancillary declaratory reliefs,’ which ordinarily planks executory reliefs in an executory action.” – Per Balkisu Bello Aliyu, J.C.A.

 

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AWARD OF COSTS – PRINCIPLES GOVERNING AWARD OF COSTS:

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“Costs follow the event, and the trial court was imbued with the discretion to award costs based on the circumstances of each case.” – Per Balkisu Bello Aliyu, J.C.A.

 

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PLEADINGS – BINDING NATURE OF PLEADINGS:

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“It is trite law that parties are bound by their pleadings”– Per Balkisu Bello Aliyu, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO
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