AGWALOGU & ORS v. TURA INTERNATIONAL LIMITED NIGERIA & ORS (2017)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of March, 2017

CA/OW/217/2010

Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria


Between

1. ELDER MONDAY AGWALOGU
2. UZODINMA OSU
3. MR. CHRISTOPHER ONYEKACHI AGWALOGU
(For themselves and on behalf of men, women, Grand-children of Agwalogu and Ayaba-Ubi Families of Umuele-Kinderd of Ayaba Autonomous Community in Osisioma LGA of Abia State) Appellant(s)

AND

1. TURA INTERNATIONAL LTD.(NIGERIA)
2. BEAUTY BASE LTD
3. J. UDEAGBALA HOLDINGS LTD
4. TURA INTERNATIONAL LTD (LONDON)
5. LORNAMEAD LTD Respondent(s)

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MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Abia State sitting at Osisioma (hereinafter referred to as the lower Court), delivered on the 6th day of July, 2009 by Hon. Justice I. N. Akomas, J. in Suit No: HOS/72/2008.The suit from which this appeal emanated, was commenced by the plaintiffs/appellants vide a writ of summons filed on the 27th day of June, 2008, wherein the plaintiffs/appellants sought for the following reliefs:
1. Plaintiffs claim from the defendants in punitive General Damages the sum of N10 Billion Naira for General inconveniences, acid rain, pollution of the land and rivers, loss of water rights or hardship to the population who has been deprived of the right to self sustenance, education and good life.
2. SPECIAL DAMAGES THE SUM OF N340,100,000.00 as follows:
a. The sum of N332,587,257.50 being compensation or direct economic losses and remedial measures as a result of the diversion of the acid and chemical waste into the land and water of the plaintiffs by the defendants.
b. The sum of N10 million representing the fees charged by the firms of Environmental Experts for their analysis and study.
c. The sum of N4 million representing the fees charged by the firms of valuers and surveyors as their professional fees.
3. Plaintiff claim 25% of the said sum till the date of judgment and thereafter 10% on the judgment sum till payment.
4. AN ORDER directing the defendants to de-pollute the land and River of the plaintiffs to its pre-impact status.
5. AN ORDER directing the defendants to stop the diversion of their waste, poisonous and toxic water to the river of the plaintiffs.
6. AN ORDER directing the defendant to provide alternative drinking water for the plaintiffs pending the completion of the de-pollution exercise.
7. A DECLARATION that the 4th and 5th defendants was in negligence for not carried out the necessary enquiries, examinations, visits, inspections and evaluations of the site of the 1st to 3rd defendants before granting them franchise to produce medicated germicidal soaps like Tura, Swan England and other medicated Germicidal soaps in Nigeria and Africa.
(See pages 11-12 of the record of appeal.)
Pleadings were duly filed and exchanged between the parties. However, the defendants/respondents brought a motion on notice dated the 27th day of January, 2009 and filed on the 2nd day of February, 2009 wherein they sought for the following reliefs:
a. An order setting down for hearing and disposal before trial the points of law raised by the Defendants/Applicants in the Statement of Defence, same being threshold issues.
b. An order dismissing the suit for reasons of lack of locus standi in the Plaintiffs; non-disclosure of reasonable cause of action, and/or for reason of the action being statute barred – Section 18 of Limitation Law Cap. 24, Laws of Abia State of Nigeria, 1991-2000 Vol. II.

(See page 44 of the record of appeal.)
The said motion on notice was supported by a 12 paragraph affidavit deposed by one Grace Ikwuka. In response, the plaintiffs/appellants filed their counter affidavit of nine paragraphs, deposed to by one Atolagbe Bode – Johnson Esq. After the giving of due consideration to the processes filed and placed before him, the affidavits of the parties, the parties written addresses and oral

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arguments canvassed by the learned counsel for the parties respectively in support thereof, the learned trial judge granted the reliefs sought by the defendants/respondents and dismissed the plaintiffs/appellants suit in the following words:
In view of the conclusion I have just reached, I hold that the instant suit having not been brought within 5 years prescribed by Section 18 of the Limitation Law Cap. 24 Laws of Abia State 1998-2000, the action is statute barred and ought to be dismissed. It is accordingly dismissed. 
(See page 66 of the record of appeal.)
The plaintiffs/appellants were dissatisfied with the above ruling and lodged an appeal against the same, vide their notice of appeal dated and filed on the 17th day of September, 2009. Initially, the plaintiffs/appellants grievances against the said decision were on four grounds of appeal. Howbeit and or subsequently thereafter, the plaintiffs/appellants with prior leave of this Court sought and obtained, filed an amended notice of appeal on the 20th day of March, 2015. The five grounds of appeal contained therein and as amended are reproduced below, without their particulars:
GROUND ONE
The learned trial judge erred in law when he held that S. 18 of the Law of Limitation of Abia State, CAP. 24 Law of Abia State 1998-2000 is a substantive law which must be preferred to case law, while in the real sense, Limitation Law of Abia State 1998  2000 is a rule of practice and procedure.
GROUND TWO
The learned trial Judge erred in law when he dismissed the Appellants case on the ground that it was statute barred when the injury and damages are continuous.
GROUND THREE
The learned trial judge erred in law and misconceived the position of the law when he was differentiating between this matter and the Supreme Court decision in the case of AREMO II VS ADEKANYE & 2 ORS (2004) 42 WRN 1.
GROUND FOUR:
The learned trial Judge erred in law when he held that exceptions to the statute of limitation especially that of continuous injury and damages can only be applied where the statute of limitation law provides for it.
GROUND FIVE:
The learned trial Judge erred in law when he held that Limitation Law of Abia State did not make provision for an exceptions as to continuous damages and injury when in actual facts a comprehensive reading of the law provides for such an exception and even for aggrieved party exception.
Henceforth in this judgment, the plaintiffs/appellants would be referred to as the appellants; while the defendants/respondents would be referred to as the respondents.

In prosecution of this appeal and with due compliance with the rules of this Court, the appellants brief of argument was filed on the 20th day of April, 2016 by Yemi George Ojo Esq. On the other hand, the respondents who were duly served with appellants brief of argument, failed to file any brief with regard to this appeal. Thus, the appeal would be determined solely on the brief of argument filed by the appellants.
In line with the grounds of appeal as amended, the learned counsel for the appellants formulated four (4) issues for the
determination of this appeal. The issues are as follows:

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1. Whether the trial Court was not in error to have held that Limitation Law of Abia State 1998-2000 was a substantive law and should be preferred to legal principles? GROUND 1.
2. Whether the trial Court was not in error to have held that the Supreme Court case of AREMO II v. ADEKANYE & 2 ORS. (2004) 42 WRN 1 contemplated that before the rules in the appeal could applied that there must have been a previous litigation in one of the injury or damages complained of  GROUND 3.
3. Whether the trial Court was not in error to have held that Limitation Law CAP. 24 of Abia State 1998-2000 did not recognize continuing damage in the circumstances of the pleadings of the Appellants before the Court and provision of S. 26(4) of the same Limitation Law? GROUNDS 4 and 5.
4. Whether the trial Court was not in error to have granted the application of the Respondents and dismissed the appellants case on the ground of statue barred when the injury and damages are continuing one? GROUND 2.

I have carefully examined the records before this Court especially the respondents motion on notice, the ruling of the lower Court, the amended grounds of appeal and the issues formulated therefrom. I am of the firm viewpoint that Issue No. 4 as formulated by the appellants is apt, germane and has comprehensively covered the main points in this appeal. Thus, the same would be adopted for resolution in the determination of this appeal.
ARGUMENT ON ISSUE.
The learned counsel for the appellants contended and strongly too, that the Limitation Law of Abia State Cap. 24 1998 – 2000 upon which the respondents motion was predicated is a procedural law and the lower Court acted erroneously when it placed reliance thereon in dismissing the appellants suit. He further argued that the said Limitation Law being a procedural law should not have been used to defeat legal principles which recognizes exceptions to the limitation law. He relied on the cases of Garari v. Johnson (1980) 5 NWLR (Pt. 39) 66 @ 71; Ifezue v. Mbadugba (1984) 5 S. C. 79 @ 82; and Abiodun v. Attorney General of Federation (2008) 17 WRN, 56; (2007) is NWLR (Pt.1057) 359 among others.
Also, the learned counsel for the appellants, argued that the appellants averred in their statement of claim which was not denied that the damage done to them by the respondents are continuous which give rise to fresh cause of action on each occasion. Thus, he submitted that the lower Court, ought not to have upheld the application of the respondents rather the Court ought to have come to the conclusion that the suit of the Appellants fell under the exceptions recognized by the case of AREMO II V. ADEKANYE (supra). The learned counsel further contended that where the injury complained of by the plaintiffs are continuous, time does not begin to run until the cessation of the event leading to the cause of action. He referred us to the case of Abiodun v. Attorney-General of Federation, (supra).

Additionally, the learned counsel for the appellants contended that the learned trial judge failed to consider the entire provisions of the Limitation Law and interpreted Section 18 of the law in isolation, thereby arriving at a wrong decision. The learned counsel maintained that the learned trial judge failed to consider Section 26 (4) of the said Limitation Law before arriving at its decision. It was thus submitted that the decision of the lower Court is perverse. He referred us to the cases of A. N. P. P. v. P. D. P. (2007) ALL FWLR (Pt. 357) 885 @ 892 – 895 and

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Gbadamasi v. Dairo (2007) ALL FWLR (Pt. 357) 812 @ 829.

The learned counsel for the appellants therefore urged this Court on the basis of the arguments canvassed above and authorities cited in support thereof to resolve the issue in favour of the appellants and allow this appeal.
I have earlier observed that the respondents did not bother to file any brief of argument in respect of this appeal. They are also unrepresented by learned counsel, at the hearing of this appeal notwithstanding, the fact that all requisite processes with respect to this appeal have been confirmed by this Court to have been served on them. Nevertheless, the appellants are still saddled with the responsibility of establishing their complaints and this Court enjoined to determine this appeal on its merit. See Cameroon Airlines v. Otutuizu (2011) 4 NWLR (Pt. 1238) 512; (2011) LPELR-827; JohnHolt Ventures V. Oputa (1996) 9 NWLR (Pt. 470) 101; and Unity Bank Plc. V. Bouari(2008) 7 NWLR (Pt. 1086) 372.

Let me start by correcting the misconception of the learned counsel for the appellants, that the Limitation Law of Abia State, Cap. 24, 1998-2000 is a procedural law or adjectival law which cannot defeat a legal principle to which he regarded as substantive law. With due respect to the learned counsel, this contention is highly misconceived and has no basis whatsoever in law. If a law made by House of Assembly of a State does not qualify as a substantive law, I wonder which other law can be appropriately described or adequately regarded as such. Let me make an exposition in a bid to clarify the differences between a substantive law and a procedural law. A substantive law is a law or a statute enacted to control a particular area of human affairs. It can be in form of regulating the interest of a person on a subject matter to which the law applies. Some examples of substantive laws in legislations are: the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Public Officers Protection Act; Court of Appeal Act, 2004; Company and Allied Matters Act, 1990; etc. A procedural law on the other hand is basically a law, or subsidiary legislation which regulates the proceedings whereby a right is being enforced or a grievance is being ventilated. Examples of procedural legislations are rules of various Courts of/in Nigeria. These two concepts have also been differentiated by the Supreme Court, per Ayoola, JSC in the case ofMobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency 7 Ors. (2002) 18 NWLR (Pt. 798) 1 (2002) LPELR -1887, when His Lordship enunciated as follows:
… the distinction between substance and procedure is blurred, it is generally accepted that matter (including facts) which define the right and obligations of the parties in controversy are matters of substance defined by substantive law, whereas matters which are mere vehicles which assist the Court or Tribunal in going into matters in controversy or litigated before it are matters of procedure regulated by procedural law. Facts which constitute the cause of action are matters of substance and should be pleaded, whereas facts which relate to how a party is to invoke the jurisdiction of the Court for a remedy pursuant to his cause of action is a matter of procedure outside the realms of pleadings. The distinction was stated thus in Halsbury’s Law of England, Vol.8 (1) 4th Edition, para. 1066: generally speaking, it may be said that substantive rules give or define the right which it is sought to enforce and procedural rules govern the mode or machinery by which the right is enforced.
In addition, Black’s Law Dictionary, 9th Edition also defines: Substantive Law as, The part of the law that creates, defines, and regulates the rights, duties, and powers of parties. See page 1567 Procedural Law as, The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific right or duties themselves. See page 1323. Usually, procedural laws are made pursuant to a

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substantive laws from which they derive their validity. Thus, whenever the provision of a procedural law is in conflict with a substantive law or legislation, the substantive law would prevail.
Thus, the Limitation Law of Abia State, Cap. 24 Laws of Abia State, 1999 – 2000 is not a procedural law but a substantive law which supercedes both the procedural laws of the Court and legal principles on the subject matter to which it regulates. See the case of Cross River University of Technology (CRUTECH) v. Mr. Lawrence O. Obeten (2011) LPELR-4007, wherein I had this much to say:
A challenge or complaint regarding whether an action is statute barred or not, is an issue of law which borders squarely on competence of the action and jurisdiction of a Court. See Owners of the MV Arabella v. N. A. I. C (2008) 11 NWLR (Pt. 1097) 182.
The issue of limitation of durational period for the institution of an action is statutory and not merely procedural. It is thus a matter of substantive law rather that one of technical justice. This is more so, because law must be ascertainable, decisive and predictable. Laws are meant to be obeyed and or complied with. Thus, when a law provides a mode for the doing of an act, it does not admit anything which is different or contrary from the stipulated mode. There are no two ways about it. It is either a plaintiff has a valid and sustainable cause of action or not. Late is late without necessarily being too late and a miss is as good as a mile.

Also, regarding the contention of the learned counsel for the appellants that the lower Court failed to consider the Limitation Law as a whole, particularly Section 26 (4) of the Law before arriving at its decision as to the applicability of the provision of Section 18 of the law to this case. For purpose of clarity and proper understanding, I would also reproduce the provisions of the sections:
Section 18 of the Limitation Law Cap. 24 Law of Abia State, 1999-2000
No action founded on contract, tort or any other action not specifically provided for in Parts 2 and 3 of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.
Section 26 (4) of Limitation Law (supra).
This section shall not apply to any action to recover a penalty or forfeiture, or sum by way of penalty or forfeiture, by virtue of any enactment except where the action is brought by an aggrieved party.
I have had recourse to construe the provisions of these two sections and I find nothing in the said Section 26 (4) of the law limiting or serving as an exception to the application of Section 18 of the law. The contention of the learned counsel for the appellants that the appellants case can be accommodated, since they can be regarded as an aggrieved person as envisaged in the last line of Section 26 (4) of the above law is highly misconceived. The said Section 26 (4) was made specifically applicable to the cases bordering on penalty and forfeiture, which does not in any way relate to the appellants case. Thus, they cannot by any rulers of construction or exception be regarded as an aggrieved person in the context of the said Section 26 (4) of the Limitation Law reproduced above.
In addition, the learned counsel for the appellants opined, that the suit of the appellants was not caught by the limitation law, because the wrongs which the appellants sought to redress are continuous and fresh causes of action arose on each occasion that the respondents discharges poisonous and toxic substance on their land and water. He argued that the wrong is continuing even after the filing of this suit and that the respondents would not stop until the Court restrain them. He relied heavily on the case of Aremo II v. Adekanye & Ors. (2004) 42 WRN, 1, (2004) 13 NWLR (Pt. 891) 572.

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Admittedly, the Section 18 of the Limitation Law of Abia State, Cap. 24, 1999  2000 without a doubt is a limitation law as contended by the learned counsel to the appellants. However, every case is subject to peculiar its facts and circumstances. Whereas, some other similar provisions may admit of some exceptions as rightly observed in the case of Aremo II v. Adekanye (supra), that does not automatically implies that all limitation laws admit of the same exceptions, whether or not the law that provides for the limitation makes provision for such exceptions. See the case of Chief Christopher Arua v. Fidelis I. K. Ugwu, Appeal No. CA/E/82/2011, which touches on the applicability of two different Limitation Laws; wherein I opined and held as follows:
It is not in dispute in this case that the substantive suit (wherein this appeal emanated from) was filed out of time and was therefore caught by the limitation law as provided by the clear provision of Section 37 (1) of the Action Law and would without much effort being wasted be deemed to have been statute barred. However, the respondent’s defence to this was that the said Section 37 (1) of the Action Law was equivalent to Section 2 (a) of the Public Officers Protection Act, and thus, the exception applicable to the said Section 2 (a) of the Public Officers Protection Act was applicable also to this case. I do not subscribe to this position; I have earlier in this judgment stated that the provision of Section 37 (1) of the Action Law and Section 2 (a) of the Public Officers Protection Act, even though similar but they have different effects and applications. Thus, the respondent’s bid to escape the effect of being caught by the provision of the Section 37 (1) of the Action Law by averring that the Enugu State Governor’s act of confirming the 1st respondent as the substantive traditional ruler of the Oyoko Autonomous Community as being ultra vires the Governor and unconstitutional, cannot avail him as such exception is not applicable to Section 37 (1) of the Action Law.”

In the instant case, the provision of Section 18 of the Limitation Law is clear and unambiguous. It clearly bars an action in tort, contract and any other form of action not specifically exempted by other provisions of the law, after the expiration of five years from the date the cause of action accrued. There is no shred of doubt or contrary contention that the appellants case was founded on tort. Thus, Section 18 of the Law clearly applies to this case. Also, I have dutifully construed the said Section 18 and I am of the firm viewpoint, that it makes no provision for an exception. Thus, I am bound not to input any extraneous meaning to the said provision. In the spirit of separation of powers, every Arms of Government is enjoined to adhere to its assigned duties as specified in the Constitution of Federal Republic of Nigeria, 1999 (as amended). The main duty of the judiciary to which this Court represent, is mainly for the interpretation of the law as enacted by the legislature(s). Thus, where the words of a statute is plain, clear and unambiguous, the Courts have no more power or duty than to interpret the said law by giving it its literal or ordinary meaning. Any other interpretation or imputation is tantamount to judicial legislation, which the Supreme Court has in numerous cases seriously and strongly warned against. See Egbe v. Yusuf (1992) LPELR-1035; (1992) NWLR (Pt. 245) 1; Osadebay v. The Attorney-General of Bendel State (1991) 1 NWLR (Pt. 169) 525 and Okotie-Eboh v. Manager & Ors. (2004) 18 NWLR (Pt. 905) 242. 
In the instant case, it is not in doubt that the cause of action accrued from 1999 – 2000 as clearly stated in Paragraphs 9 and 10 of the appellants statement of claim. Also, this suit was quite undeniably filed on the 22nd day of July, 2009 as can be gleaned from the appellants writ of summons. Thus, the period within which the cause of action accrued and when this suit was filed is a clear period of 8 – 9 years which is clearly beyond the five (5) years durational time limit permitted

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by the Limitation Law of Abia State to bring such an action. Therefore, I am in total agreement with the decision of the learned trial judge that the appellants action is statute barred, and it was rightly and properly dismissed. Thus, this issue is resolved against the appellants.
Having resolved the issue formulated for the determination of this appeal in the manner stated above, this appeal is hereby found to be utterly lacking in merit and it is accordingly dismissed by me. The ruling of the lower Court delivered on the 6th day of July, 2009 in respect of Suit No. HOS/72/2008 is hereby affirmed by me. I make no order with regard to costs.
ITA GEORGE MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother, M. A. Oredola JCA, that this appeal lacks merit.
I too dismiss it and abide by the consequential orders in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA (J.C.A.).
I agree with the reasoning and conclusion therein. The learned trial judge rightly held that the action was statute-barred. I also affirm the ruling of the learned trial judge delivered on 6/7/2009. I also make no order as to costs.

Appearances

Opeyemi George, Esq. with him, O. O Akinyemi, Esq. and O. O. Osadola, Esq. For Appellant

AND

Respondents absent but served. For Respondent

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