TIME LIMITATION BY STATUTORY PROVISIONS AND THE COVID-19 CHALLENGE
By OYENIRAN OMOBOLAJI O. Esq.
The COVID-19 pandemic brought with it attendant implications on all sectors of the society. The legal profession, as well as the Judicial Justice System is no exception. One of the primary challenges posed by the emergence and subsistence of the pandemic to the justice system is that all legal proceedings that are not urgent or deemed to be emergent are suspended till further notice. The Federal and State governments have issued various lockdown directives.
The implication of these orders is that a Clamant is prevented from instituting action in court, where such action is deemed not urgent; and pending actions that are not urgent are suspended. The COVID-19 pandemic, the resultant court closures, and consequent executive lockdown orders bring to fore the questions of whether Statute of Limitation would apply to these causes of action that are suspended for lack of urgency? And how would the statutory limitations on filings, appeal, enforcement be adequately addressed in the light of the pandemic?
STATUTORY LIMITATIONS
In a bid to ensure that justice is not just done, but also seen as done, the law provides some statutory limitations on the institution of actions; and upon their commencement, time frames within which the suits are filed, heard, appealed, and judgment enforced. These statutory provisions are coded in the various Statutes of Limitation of each State, Rules of Courts, Judgment (Enforcement Rules), Sheriffs and Civil Process Act, the Court of Appeal Act, and the Supreme Court Act.
Statute of limitation governs the amount of a time a person has to file a lawsuit. A Statute of Limitation 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, and it has been judicially held that no Court shall entertain proceedings for the enforcement of certain rights if such proceedings were not set on foot after the lapse of a definite period of time reckoned as a rule from the date of violation of the right[1]. Hence an action instituted after the expiration of the period prescribed by the relevant statute is said to be statute barred.
For instance, the prescribed period within which a Claimant can institute simple contracts is 6 years[2], and 12 years for contract under seal[3]. 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[4] and the statute begins to run from the moment the cause of action arose.
Even though certain exceptions to statute of limitation are provided by the Supreme court[5], the situation of a pandemic, like Covid-19 is not envisaged. These exceptions include instances of continuance of damage or injury; situation where the public officer acted outside the bound of his office or outside his statutory or constitutional duty; cases of recovery of land; breaches of contract; claims for work and labour done; and good faith.
Apart from the Limitation Act and the various Limitation Laws of each State, there are several statutory provisions governing the time frame for filing court processes, exercising right of appeal, and enforcement of judgment obtained.
For instance; under Order 6 Rule 6 of the High Court of the Federal Capital Territory (Civil Procedure) Rules, 2018;
“The lifespan of every originating process shall be 6 months”
The Court may order renewals provided that no originating process shall be in force for longer than a total of 9 months.[6]
Conversely, a defendant served with an originating process shall, within 7 days serve a sealed copy of the Memorandum of Appearance on the Claimant.[7] Where he fails to do so, the Claimant can proceed upon proof of service of the originating process on him.[8]
With regards to filing of final addresses, Order 32 Rule 14[9] provides;
“When the party beginning has concluded his evidence… Where the other party declines to call evidence, the party beginning, shall, within 21 days after close of evidence file a written address. Upon being served with the written address, the other party shall within 21 days file a final written address.”
Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended clearly stipulates the time frame within which court decisions are made. It states, inter alia;
“Every Court established under the Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final address…”
Court of Appeal Act, CAP C 37 LFN,2004, its S25(2) specifies the periods for giving of notice of appeal or notice of application for leave to appeal thus;
“(a) in an appeal in a civil cause or matter, fourteen days where the appeal is an interlocutory decision, and three months where the appeal is against a final decision:
(b) in an appeal in a criminal cause or matter, ninety days from the days of the decision appealed against.”
Failure to institute the appeal within the stipulated time renders the appeal invalid.
Section 8 (1) of the Sheriffs and Civil Process Act makes provision for enforcement of judgment otherwise as against the person, within 6 years, and if it’s against the person, within 2 years of obtaining the judgment.
COVID-19
Having given a background of the nature and legal implication of Statutory Limitations, the next issue is, “whether at the expiration or containment of COVID-19, the lockdown period will be calculated as constituting part of the time frames set by the Statutes of Limitation, or will it be calculated as holidays? Solutions proffered from various quarters include enactment of Act/Law by the National and States legislative houses giving powers to the President/Governors to suspend the Limitation Act/Laws; raising the defense of equitable tolling of the President’s Directive on lockdown as excuse for not instituting his action.
In as much as this might work, it nevertheless will take several court proceedings to successfully raise that plea, enforce it, and even appeal it- especially in the light of no judicial precedent on the matter. The legal implication of this is that there will be backlogs of cases instituted for the interpretation of the lockdown directive with regards to the peculiar case of each litigant, appeals on such matters, before the substantive case is eventually heard at the trial courts. This, in effect, would cause an astronomical increase in the already over-swollen congestion of actions before the Nigerian courts, especially the appellate courts.
PROVISIONS OF EXTANT LAWS IN NIGERIA.
It is a common saying in the legal profession that where there is a right/law, there is always a remedy. Regardless of the fact that there are no express provisions in our legislations on tolling of statutes of limitations, the provisions under the Rules of Court on computation of time and holiday are the closest remedy proffered. Order 49 Rule 1 & 2 provides:
“1. Where by any law or any order made by the Court, a time is appointed or limited for the doing of any act, the period shall be reckoned;
(a) As excluding the day in which the order was made or on which the event occurred;
(b) Where the last day of the period is a holiday, the time shall continue until the end of the next day following which is not a public holiday;
(c) Where the act is required to be done within a period which does not exceed 6 days, holiday shall be left out in the computation of time.
2. In this order “holiday” means a day which is a Sunday or a public holiday.”
This means that holidays are excluded when calculating the time frames within
which to do an act under the Rules.[10] The question is, can the Stay-at-Home
Directives of the Federal and State governments qualify as public holiday? In
Onyekwuluje v. Benue State Government [2015] 16 NWLR (pt 1484), the Court held that;
“By virtue of section 1 of the Public Holiday Act, Laws of the Federation of Nigeria, only the days listed in the Schedule to the Act are listed as Public Holiday.”
The 9 days listed under the Schedule are,
- New Year’s Day;
- Good Friday;
- Easter Monday;
- Workers’ Day;
- National Day;
- Christmas Day;
- Such day as the Minister may declare to be a public Holiday in celebration of the Muslim festival of Id el Fitr;
- Such day as the Minister may declare to be a public Holiday in celebration of the Muslim festival of Id el Kabir;
- Such day as the Minister may declare to be a public Holiday in celebration of the birthday of the Prophet Mohammed ( Id el Maulud).[11]
A cursory look at the days listed above doesn’t specify or even infer a period of
pandemic that the country is experiencing at the moment.
LESSONS FROM OTHER CLIMES
The Judicial of western nations appear prepared, and have implemented proactive measures in addressing this challenge posed by the COVID-19 pandemic. The Governors of several States in the United State of American for instance have either made directives tolling their Limitations laws for a specified period[12] or more flexible tolling depending on when the State’s governor lifts the state of emergency. Some States empower the Chief Judge to make such directives, while some left the authority to toll the statutes of limitations or to alter the court calendar to the discretion of the lower courts. For instance, in Massachusetts, all statutes of limitations are tolled from March 17, 2020 until May 3, 2020. In Kansas, the state legislature passed a bill that gave the chief justice of the Kansas Supreme Court the authority to extend or suspend any deadlines or time limitations established by statute, and the Chief Justice has timeously ordered “all statutes of limitations and statutory time standards or deadlines applying to the conduct or processing of judicial proceedings … suspended until further order.”[13]
CONCLUSION
Executive Directives on stay-at-home as a result of Covid-19 are not provided for under the various statutory and judicial authorities cited above as constituting a Public Holiday, neither can it be said that the draftsmen of the Public Holiday Act contemplated including such, otherwise an omnibus clause empowering the ‘Minister to declare any other day as a Public Holiday in the event such arises’ would have been included, but such was not. The provision is clear and unambiguous, and the Supreme Court in Mohammed Abacha Vs Federal Republic of Nigeria LER [2014] SC. 40/2006 held that;
“In the interpretation of Statutes, the cardinal rule is that where the provision of a Statute is clear and unambiguous, the duty of the Court is to simply interpret the clear provision by giving the plain wordings their ordinary interpretation without more.”
These same heads of the governmental arm charged with the primary responsibility of interpreting the Nigerian Statutes are well abreast of the fact that there are no extant laws on tolling of statutes of limitation, and have issued Practice Directions to include specific provisions excluding the lockdown period in the calculation of time under the various rules of courts. For instance, Paragraph 5 of the High Court of the Federal Capital Territory, Abuja Practice Direction, 2020 issued on the 11th of May, 2020, provides;
“The period beginning from Monday, 23rd March, 2020 to Monday 4th May, 2020 (six weeks), being the period for the sit-at-home/lockdown declared by the Federal Government of Nigeria by reason of the COVID-19 pandemic shall be excluded for the purposes of COMPUTATION OF TIME for doing any act under the Rules of Court.”[14]
It is my humble opinion that citing the combined provisions of Order 49 Rule 1& 2 of the High Court of the Federal Capital Territory, 2018, and the Schedule to the Public Holiday Act in order to deduct the lockdown period from being calculated as part of the time frame within which to institute, file, appeal, or otherwise execute judgment, would amount to a misdirection of facts and law.
[1] EHINMOSAN v. NNPC & ANOR (2019) LPELR-CA/B/401/2010
[2] Sections 8(1)(a) of the Limitation Law of Lagos State.
[3] Sections 12(1)(a) of the Limitation Law of Lagos State.
[4] JEMIBEWON V. KOSOKO & ORS (2010) LPELR CA/A/126M/2006
[5] AG RIVERS STATE v AG BAYELSA STATE & ANOR (2013) 3 NWLR (PT 1340) 123
[6] Order 6 Rule 7
[7] Order 9 Rule 1(3)
[8] Order 10 Rule 2
[9] supra
[10] Similar provision under Order 48 Rule 1& 2 and Order XLVIII Rule 1 & 2 of High Court of Lagos State (Civil Procedure) Rules, 2019, and Federal High Court Civil Procedure Rules 2019 respectively.
[11] Schedule to the Public Holiday Act, CAP 378, LFN, 2004.
[12] hard end dates subject to future revision
[13] Jason Levine, Hilla Shimshoni, Kaelyn Yumul Wietelman, Alston & Bird April 16, 2020“Covid19ImpactsOnStatutesofLimitations”www.jdsupra.com/legalnews/covid-19-impacts-on-statutes-of-83756/https://iclg.com/briefing/11675-covid-19 coronavirus-russia-s-supreme-court-provides-clarification-on-the-impact-of-covid-19-related-measures-on-contract-performance-and-dispute-resolution
[14] Paragraph 5 of the High Court of Anambra State Practice Direction, 2020 issued on the 2th of May, 2020 contain the same provision.
