Chevron Nigeria Limited V. Bishop Cornelius Jaripe Omomowo & Ors (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA J.C.A 

This is an appeal against the ruling of the Ondo State High Court sitting at Okitipupa delivered by Obaremo. J on the 27th January 1998 on a motion filed by the Appellant, then Defendant asking the court to dismiss the Respondents’ claim on the ground that the claim was statute barred. Dissatisfied by the Court’s ruling that the claim was not statute barred, the Appellant has appealed to this court by a Notice of Appeal dated the 6th February 1998 and filed on the 9th February 1998. The facts leading up to this appeal are that the Respondents as Plaintiffs filed a twenty eight paragraph statement of claim which are contained on pages 4-8 of the Record of Appeal. In response the Appellant as Defendant filed a fifteen paragraph statement of defence dated 10th March 1995 and which is contained on pages 18-20 of the Record of Appeal. In paragraph 13 of the said Statement of defence, the Appellant as defendant had pleaded that she would contend by way of preliminary point that the Plaintiffs (now Respondents) claim is statute barred and that it should as such be dismissed by the lower court. Paragraph 13 of the statement of defence states as

follows, “The Defendant will at the trial, take up as a preliminary point of law and contend that the plaintiffs’ claim is statute barred and should be dismissed.” By a motion on Notice dated the 6th May 1994 and filed on the 10th May 1994 and brought pursuant to sections 97 and 99 of the Sheriffs and Civil Process Law, Laws of the Federation of Nigeria and under the Court’s inherent jurisdiction, the Appellant as applicant prayed the lower court for an order inter alia “striking out and/or dismissing the Plaintiffs’ claim in this suit in that the action as disclosed both in the writ of summons and the statement of claim is statute barred by virtue of the Limitation Law of Ondo State and/or of the Federation of Nigeria. Paragraph 8 of the affidavit in support of the motion states that, “I attach herewith a certified true copies (sic) of the writ of summons and statement of claim in this suit as exhibit (sic) “B” and “C” respectively, while paragraph 10 of the same affidavit in support reads as follows, “That I am informed by Chief I.O. Jemide and I verily believe him that the Plaintiffs’ claim as disclosed in exhibit (sic) “B” and “C” is statute barred. The said motion and supporting affidavit can be found at pages 9-12 of the Record of Appeal. By another motion on Notice dated the 26th September 1995 and filed on the 18th October 1995 and brought pursuant to order 24 Rules 2 and 3 of the Ondo State High Court (Civil Procedure) Rules 1987, the Appellant as applicant prayed the High Court “for an order setting down for hearing and disposal thereof the trial of the above suit the point of law raised by the applicant in paragraphs 13 and 14 of the statement of defence annexed hereto as exhibit “A”. Paragraphs 4 and 5 of the affidavit in support of this motion read as follows –

Paragraph 4 – That I attach herewith exhibits A, B, and C respectively, the statement of claim, the writ of summons and the statement of defence in this suit.

Paragraph 5 – That I have been informed by Chief I.O. Jemide, Solicitor, that it is necessary to bring the motion to enable this honourable court dispose of the issues whether or not the claim in this suit is statute barred.”

The said motion and its supporting affidavit are contained on pages 21-23 of the Record of Appeal.

The point of law was eventually set down for hearing and was heard on the 24th September 1997 and ruling delivered on the 27th January 1998.

The trial court held that the Plaintiff/Respondents’ claim was not statute barred. Appeal against this ruling came up for hearing on the 26th September 2007. Counsel for the Appellant Chief I.O. Jemide adopted and relied on the Appellant’s Brief of argument dated 14th October 2002 and deemed filed on the 18th November 2003 as well as the Appellant’s Reply Brief dated 26’h September 2005 and filed on the 6th October 2005 and urged this court to allow the appeal, set aside the ruling of the High Court and dismiss the Respondents’ suit on the ground that it is statute barred. Prince Olu Mafo Counsel for the Respondents equally adopted and relied on the Respondents’ Brief of argument dated the 15th September 2005 and deemed filed on the 20’h September 2005. Prince Mafo submitted that the Appellant’s Reply Brief of argument did not address the critical issue of waiver. He went further to say that this case originated from Ondo State and consists of two distinct causes of action. If one of the causes of action is said to be statute barred, what of the other cause of action? he asked. He went on to say that the Appellants waived their statutory right which according to him is the basis of this appeal and urged this court to dismiss the appeal.

Reference had already earlier been made to the Notice of Appeal filed by the Appellants dated 6th February 1998, contained on pages 39-40 of the Record of Appeal: It is reproduced hereunder in its totality.

CIVIL FORM 3

IN THE COURT OF APPEAL OF NIGERIA

NOTICE OF APPEAL

ORDER 3 RULE 2

SUIT NO.: HOK/37/94