The outbreak of the Coronavirus (Covid 19) has led to a government ordered lockdown in almost all countries in the world. By this, most governments have ordered their citizens and other residents in the state to sit-at-home while the government take frantic measures to contain the spread of the virus.
In Nigeria, the Federal Government on 29th March, 2020 announced a 14 days lockdown in Lagos State, FCT Abuja and Ogun State (the affected states). The 14 days lockdown was extended by an additional 4 days on 13th April, 2020. The effect of this Order is that all the residents of the affected states are expected to stay at home for the period of the lockdown. Pursuant to the stay at home Order of the Federal Government of Nigeria, most Organizations and Institutions announced a closure of their respective Organizations/Institutions for the period of the lockdown. An example of this is the Judiciary in Nigeria
Pursuant to the order of the Federal Government of Nigeria, the Chief Justice of Nigeria announced a suspension of court sittings until further notice. Similarly, the Chief Judges of Lagos State and Ogun State announced a closure of the courts throughout the period of the government lockdown, save for urgent matters.
The effect of this is that people will not be able to approach the court for their regular civil cases during the time the court is shut, more so that movement within the affected states are restricted save for essential services.
A question that arises from this is what will be the effect of the closure of the court on matters that are time bound? As a matter of fact, most civil cases have a time limit in which they can be instituted in court; this time limit is referred to as the limitation period. In the case of Egbe v. Adefarasin (No. 2) 1987 1 NWLR (Pt. 47) the court defined limitation period as follows: “It is the law that limitation period is the deadline within which to file an action.”
This write up will consider the effect of the lockdown of the court on the limitation period for civil actions.
What is a Statute of Limitation?
A statute of limitation is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. The court in the case of Nwanosike & Anor v. Udenze & Anor (2016) LPELR – 40505 (CA) explained the concept of statute of limitation as follows:
“The whole purpose of a statute of limitation is that a prospective litigant must institute an action over a right that accrues to him in any matter within the time stipulated to claim his entitlement from the adversary who is making effort to take away his right or property. Where a Claimant instituted his action after or outside the time prescribed by statute of limitation or Limitation Law upon becoming aware of the wrongdoing being committed against the Claimant or his property, his right of action or enforcement or vindication of his right becomes terminated or extinguished.”
Simply put, the implication of a statute of limitation is that a party will be barred from instituting his action if same is filed outside the time limit permissible for instituting such action.
An example of a statute of limitation is the Limitation Law of Lagos State. Section 8 of the Limitation Law of Lagos State list the various actions that cannot be brought after the expiration of 6 years. Various states also have their Limitation Laws while there is a Limitation Act to regulate actions under the jurisdiction of Federal Courts.
Another example of a Statute of Limitation is the Public Officers Protection Act which prohibits the institution of a court action against a public officer after a period of three (3) months of the act or omission complained of. Some states in Nigeria also have their respective Public Officers Protection Laws.
Effect of the lockdown of the court on the Statute of Limitation
The lockdown of the court has hindered free access to the court. By this, people who are running out of time to file their actions are unable to approach the court to file their respective actions and as such have the possibility of their action being caught up by the Limitation law.
Statutes of limitation are given very strict interpretation by the court. In the case of Elukpo v. Ibrahim & Anor (2013) LPELR – 200235 (CA) the court held that:
“Where a law provides for bringing an action within a stipulated time, any action brought thereafter will be statute barred. The action will be regarded as stale. No matter how viable the rights of the claimant, he will have no remedy in court as the claimant is regarded as having slept over his right.”
Similarly, the court in the case of A.G of Adamawa State & Ors v. A.G. of the Federation (2014) LPELR – 23221 (SC) pronounced on the effect of statute of limitation as follows:
“A statute of limitation removes the right of action, the right of enforcement and the right to judicial relief in a plaintiff and leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause of action is statute-barred, that is, if such a cause of action is instituted outside the statutory period allowed by such law. Another way of stating the above proposition is that any action that is commenced after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law.”
Flowing from the holding of the court in the above cited cases and in many other pronouncement of the court in decided cases, it appears that, in the absence of any legislation authorizing the Court to suspend the counting of the limitation period, a party might be unable to use the lockdown period as a basis to avoid the effect on non-institution of his action before the expiration of the limitation period.
Approach taken in other Jurisdictions
Many jurisdictions have enacted laws or given Executive Orders to suspend the counting of the limitation period while the courts are on lock down. One of such jurisdictions is Ontario where the government made an order suspending limitation periods and procedural deadlines in Ontario proceedings. The suspension which was made on March 20, 2020 is to operate retroactively from March 16, 2020 and same is to last for the duration of Ontario’s Covid – 19 state of emergency.
The Order for suspension of limitation periods was made pursuant to the Emergency Management and Civil Protection Act where Subsection 7.1(2) of the said Act empowers the Lieutenant Governor in Council, under certain conditions, to temporarily suspend the operation of a provision of a statute, regulation, rule, by-law or order of the Government of Ontario.
Another jurisdiction that has suspended the counting of the limitation period is New York. On March 20, 2020, the New York Governor, Andrew M. Cuomo, issued an Executive Order suspending the limitation period for an initial period of 30 days, that is up until April 19, 2020.
In India, the Supreme Court on March 23, 2020 in exercise of its powers under Article 142 read with Article 141 of the Constitution of India passed an Order on the issue of limitation period which reads thus:
“To obviate such difficulties and to ensure that the lawyers/ litigants do not have to come physically to file such proceedings in respective Courts/ Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March, 2020 till further orders to be passed by this Court in present proceedings.”
Other jurisdictions that have enacted laws to suspend the reading of the limitation period pending the lockdown of the courts include Quebec where the limitation period was suspended from March 15, 2020 till the end of the declaration of emergency; Alberta where the limitation period was suspended from March 17, 2020 till June 1, 2020; Iowa where the limitation period was suspended for a period of 48 days, that is, from March 17, 2020 to May 4, 2020, Oklahoma where the limitation period was suspended for thirty days starting from March 16, 2020.
States that deliberately refused to suspend limitation period
Some states have however refused to suspend the limitation period not minding the fact that neighboring states in the same country have suspended the reading of limitation period for civil actions. Some of such states that refused to suspend the limitation period are Manitoba, Saskatchewan, Prince Edward Island, Newfoundland & Labrador etc.
The reasons given for the failure to suspend the limitation period in these states during the Covid 19 emergency period are that the registries of some of this court are still open for filing processes during the emergency period and processes for filing could be sent via courier to the court or that there is provision for online filing of court processes in some states like in Newfoundland & Labrador.
Inapplicability of the decision of the court in Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd. (2018) 9 NWLR (Pt.1623) 138 to the Covid 19 scenario
One will argue that the suspension of the limitation period is not a novel action in our jurisprudence, after all, the court held in the case of Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd. (supra) held that limitation period can be suspended or frozen. Below is a quick review of the facts of the case of Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd. (2018) 9 NWLR (Pt.1623) 138.
1n 2005, Migfo Nigeria Limited and Denca Nigeria Limited (the Plaintiffs) filed an action against Sifax Nigeria Limited (the Defendant) at the Federal High Court to challenge Migfo and Denca’s action of incorporating an SPV for the execution of a contract that was allegedly jointly awarded to all the parties. The Federal High Court granted the reliefs sought by Plaintiffs; and being dissatisfied with this, the Defendant filed an appeal to the Court of Appeal. The Court of Appeal set aside the decision of the Federal High Court hence the Plaintiff’s appeal to the Supreme. The Supreme Court decided the matter in 2012 and held that the Federal High Court did not have the jurisdiction to entertain the matter. Consequently, the appeal was dismissed.
In view of the dismissal of the appeal by the Supreme Court, the Plaintiffs refiled the matter at the State High Court on 18th July, 2012. The Defendant however challenged the matter on the contention that the matter was statute barred having been refiled after more than 6 years since the cause of action arose in 2006. The High Court and the Court of Appeal both dismissed the Defendants objection and held that the matter is not statute barred. On a further appeal to the Supreme Court, the Supreme Court affirmed the decisions of the two lower courts and held that the counting of the limitation period froze when the party instituted the action in 2006, and the time only began to count again after the Supreme Court dismissed the appeal in 2012.
We have given an analysis of the facts in Silfax’s case in other to show the inapplicability of the decision Silfax’s case to the issue of the possible freezing of the limitation period due to the present lockdown of the court.
In Silfax’s case, the matter was filed, albeit in a wrong court and the court held that the statute of limitation froze while the matter was pending in court. In our present circumstance, prospective litigants are not able to file their respective actions in court while the limitation period for filing continues to count. Consequently, we posit that the decision in the case of Sifax (Nig.) Ltd v. Migfo (Nig.) Ltd. (2018) 9 NWLR (Pt.1623) 138 cannot be an authority for the court to suspend the limitation period during the lockdown of the court as a result of the Covid – 19 pandemic.
Way forward
In view of the directive of the Federal Government of Nigeria’s dated 29th March, 2020 ordering a 14 days lockdown in Lagos State, FCT Abuja and Ogun State and the directive of 13th April, 2020 extending the lockdown for another 14 day plus the CJN’s directive of 23rd March, 2020 and 6th April, 2020 suspending court sittings until further notice, it is suggested that the President of Nigeria and the State Governors of the affected states should issue an Executive Order pursuant to section 315(2) of the constitution of Nigeria 1999 (as amended) suspending the counting of the limitation period for instituting an action in court as a result of the lockdown in the affected states due to Covid – 19 pandemic.
Alternatively, the National Assembly and the Houses of Assembly in the affected states in Nigeria can pass a law suspending the counting of the limitation period during the lockdown period.
It is suggested that either of the above measures should be urgently taken and be made to apply retroactively from the date the lockdown was ordered in order to prevent a situation where people will be denied their right to approach the court to ventilate their grievance. This is necessary because the lockdown Order of the Federal Government has occasioned a restriction of movement and has resulted in a situation whereby prospective litigants are unable to approach the court to file their regular civil actions. In addition to this is the fact that most court officials in the affected states are ordered to stay at home during this period.
It should be noted that a system that takes away the right of the people to access the court is an unjust system; furthermore, such unjust access to the court amounts to a contravention of section 17 (2) (e) of the Constitution of Nigeria (1999) which urges that easy accessibility to the court shall be guaranteed and always maintained.