INTRODUCTION
The recently discovered Corona Virus causes the highly
infectious corona virus disease ("COVID-19"). By March
11, 2020, the World Health Organization characterized the virus as
a pandemic. It is estimated that one infected individual may infect
2.5 individuals within a 5-day period, which may increase to about
406 individuals within 30 days, in the event that those who are
infected infect others.1 As a result, several countries have found
it necessary to issue sit-athome orders to curtail the spread of
the virus.
One of the impacts of the COVID-19 pandemic is the suspension of
several activities including judicial proceedings in some Nigerian
states thereby hindering prospective claimants from instituting
fresh actions in court. Given limitation statutes which prescribe a
specified time limit within which an action may be instituted, we
explore whether freezing the running of the usual statutory
timelines during the pandemic period is a reasonable response to
the claimant's inability to file within the stipulated
timeframe and the practical steps which may be explored towards
achieving the "freezing" solution.
POLICY RESPONSES TO COVID-19
On March 30, 2020, the President of the Federal Republic of
Nigeria issued the COVID-19 Regulations 2020 (the "COVID-19
Regulations"), which directed the cessation of movements in
three (3) States (i.e. Lagos, Ogun and the Federal Capital
Territory, Abuja) for an initial period of fourteen (14) days with
effect from 11:00 pm on Monday, March 30, 2020. By April 13, 2020,
the directive on restriction of movement was extended for a further
two (2) weeks to last till April 27, 2020. In other words, citizens
are directed to stay in their homes, all businesses and offices
fully closed and inter-state travels postponed. However,
establishments rendering essential services such as hospitals, food
companies, private security companies; and court matters that are
urgent as may be directed by the Chief Justice of Nigeria, are
exempted from the restriction.2
Prior to the issuance of the COVID-19 Regulations, the Chief
Justice of Nigeria had enjoined all Heads of Courts to suspend
court sittings from March 24, 2020 for an initial period of two (2)
weeks in the first instance, save for matters which are urgent,
essential or time bound according to Nigerian extant laws.3 While
the National Industrial Court, Lagos Judicial Division, immediately
completely shut down all activities,4 the High Court of Lagos
continued to run skeletal services at its registries during
specified periods. However, following the COVID-19 Regulations, the
Chief Judge of Lagos State also ordered a complete shutdown of
judicial activities in the State until further notice, save that
administrative magistrates in the seven (7) Magisterial districts
may sit only on Mondays, Wednesdays and Fridays, between the hours
of 10.00 am and 1.00., pm, to attend to only remand and bail
applications on offences such as terrorism, armed robbery, homicide
and other non-bailable offences.5
Judiciaries across the world have also developed different coping
measures6 ranging from delivery of judgments with the aid of video
links7 and other technological methods such as Skype and emails,8
remote hearings aided by video teleconferencing, to the extent
possible9 or restricted solely to criminal matters in some cases,10
e-filings,11 restriction of court services to essential
litigation12 among many others.
Arbitral institutions are also not left out. For instance, on
April 8, 2020, the Chartered Institute of Arbitrators (CIArb)
launched its new Guidance note on Remote Dispute Resolution
Proceedings which provides information on the possible use of
technology, software and equipment to aid virtual proceedings and
hearings during the subsistence of the COVID 19 pandemic and
beyond.
By April 16, 2020, thirteen (13) major arbitral institutions13
issued a joint statement encouraging arbitral tribunals and parties
to mitigate the effects of any impediments to hearing to the
largest extent possible while ensuring the fairness and efficiency
of arbitral proceedings. As such, stakeholders are invited to
utilize to the extent possible, institutional rules and any case
management techniques that may permit arbitrations to substantially
progress without undue delay despite current impediments.
STATUTE OF LIMITATION
Limitation laws by their nature are statutes which prescribe a
specified timeline within which an action may be filed. Where a
statute of limitation prescribes a period within which an action
must be commenced, legal proceedings cannot be properly or validly
instituted after the expiration of the prescribed period. In other
words, a claimant who might otherwise have had a cause of action
loses the right to ventilate it by judicial process once the period
of the time laid down by the limitation laws for instituting such
an action has elapsed.14 The rationale or justification supporting
the existence of statutes of limitation include the
following:
a. long dormant claims have more of cruelty than justice in
them;
b. a defendant might have lost the evidence to disprove a stale claim;
c. persons with good causes of action should pursue them with reasonable diligence15 and;
d. to obviate the inconvenience and embarrassment to defendants
who may have been led to change their status due to the inordinate
delay in filing the action.16
Limitation laws or statutes are generally founded on the public
policy premise that an unlimited and perpetual threat of litigation
or legal action, leads to disorder, confusion, uncertainty and
creates an anxiety, agitation and insecurity. To underscore this
point, in the case of Wema Bank Plc v. Alhaji Adisatu Owosho17 the
Court of Appeal held that:
"legal rights are not perpetual and should not last for eternity for the public good and freedom from perpetual threat and harassment of legal actions"
Therefore, the objective of limitation statutes is to limit, the
use or employment of the judicial processes of a Court of law,
which is also a Court of justice and equity, in pursuit of rights
or claims which, by effluxion of time, have become dormant and even
stale.
The period of limitation begins to run from the date on which the
cause of action accrued. Simply put, a cause of action consists of
a fact or a combination of facts, which if proved by a party, would
entitle it to a judicial remedy against another party.18 To
determine whether an action is statute barred, all that is required
is an examination of the Writ of Summons and the Statement of Claim
alleging when the wrong was committed and comparing that date with
the date on which the Writ of Summons was filed. If the date on the
Writ is beyond the period allowed by the limitation law, then the
action is statute-barred.19
Several exceptions or extensions of the statutory time limits (as
the case may be) have been developed to the application of the
doctrine. These exceptions or extensions are either clearly set out
in the relevant limitation law or developed from case law. Some of
the grounds include disability,20 fraud,21 mistake,22 claims
bordering on specific performance or equitable reliefs, continuance
of damages,23 continuance of damage or injury where the limitation
principle sought to be applied falls under the Public Officer
Protection Act or Law as the case may be24.
The case of Sifax Nigeria Limited & Ors. v. Migfo Nigeria
Limited & Anor25 enunciated that in computing the time limit
for the purpose of determining whether an action is statute barred
or not, time spent litigating an action in the wrong court will be
excluded. This rule was first propounded by Lawal-Akapo J. of the
High Court of Lagos state, and was affirmed by the Court of Appeal
and Supreme Court following Sifax's appeals. The Court of
Appeal succinctly laid down the rule as follows:
"Where an aggrieved person commences an action within the
period prescribed by the statute and such an action is subsequently
struck out for one reason or the other without being heard on the
merit or subjected to an outright dismissal, such action is still
open to be recommenced at the instance of the Claimant and the
limitation period shall not count during the pendency of the
earlier suit. In other words, computation of time during the
pendency of an action shall remain frozen"
Re-echoing this sentiment, the Supreme Court26 held that when it struck out the first suit because it had been commenced in the wrong court, the Respondents' action remained "pending", and they had the right to re-institute the suit in the proper court as they did.
A CASE FOR A FREEZING PERIOD
Considering public policy considerations behind the different
exceptions, suspension or rules, it is worth reflecting on whether
similar policy considerations ought to weigh on the court's
minds in determining the application of the limitation statutes,
vis-à-vis a claimant who is prevented from filing His claim
as a result of the Covid-19 Regulations and consequential closure
of the court's registries in those states. As it stands, the
court's registries are likely to be shut until the Heads of
Courts respond to calls27 to leverage on technology to keep the
courts' doors open, albeit in a limited manner. While the CJN
directed that courts should continue to entertain matters which are
urgent, essential or time-bound according to Nigerian extant laws,
there has not been a lot of traction in this regard. Rather,
criminal actions which ought to be given expeditious hearing are
caught up in the closure fiasco with the carte blanche closure of
court registries and suspension of court proceedings in the
affected states.
For instance, a major policy consideration in the Sifax case is
that there is no satisfaction to be gained in barring a party who
has been otherwise diligent in ventilating its claims simply
because it had the misfortune of commencing its case in the wrong
court. In the case of concealment or fraud, the policy
consideration behind this is that nobody (the defendant) should be
allowed to benefit from his own wrongdoing, "ex turpi causa
non oritur action"28. Whereas in the case of recurring injury,
it is only logical that the statute of limitation would not apply
where the cause of action could not be said with specificity to
have arisen or even where it has arisen, a separate act by the
defendant had given way to a fresh cause of action.29
Indeed, in recognition of the difficulties which may be faced by
litigants in accessing the courts in the normal course, the justice
departments in some jurisdictions have issued specific orders
suspending limitation timelines till a future date or during the
subsistence of the COVID-19 pandemic. For instance, the Ontario
Ministry of Justice made an order on March 19, 2020 (the
"Ontario Order") suspending all limitation periods in
Ontario retroactive to March 16, 2020. The Ontario Order was made
pursuant to section 7.1 of the Emergency Management and Civil
Protection Act, ["EMCPA"] R.S.O. 1990, c. E.9. The said
section authorizes the Lieutenant Governor-in-Council "to make
appropriate orders when, in the opinion of the Lieutenant Governor-
in-Council, victims of an emergency or other persons affected by an
emergency need greater services, benefits or compensation than the
law of Ontario provides or may be prejudiced by the operation of
the law of Ontario.30
The Ontario Order temporarily suspends the operation of any
provision of a statute, regulation, rule, by-law or order of the
Government of Ontario establishing any: (i) Limitation period or
(ii) Period of time within which any step must be taken in any
proceeding in Ontario, including any intended proceeding, subject
to the discretion of the court, tribunal or other decision-maker
responsible for the proceeding.31 While the Ontario Order does not
provide any discretion with respect to the limitation period
suspension, it subjects the suspension of procedural deadlines to
the discretion of the court, tribunal or other
decision-maker.32
Several states in the United States are also toeing a similar
direction. For instance, on March 20, 2020, New York Governor,
Andrew M. Cuomo, issued an executive order (the "New York
Order") tolling statutes of limitations until April 19, 2020,
extended till May 7, 2020 by another executive order issued on
April 7, 2020.33 The New York Order extends "any specific time
limit for the commencement, filing, or service of any legal action,
notice, motion, or other process or proceeding, as prescribed by
the procedural laws of the state." Similarly, a March 17, 2020
order issued by the Iowa Supreme Court tolled "any statute of
limitations, statute of repose, or similar deadline for commencing
an action in district court" until May 4, 2020, and the
Supreme Court of Oklahoma has issued an emergency order that,
"subject only to constitutional limitations, all deadlines and
procedures whether prescribed by statute, rule or order in any
civil, juvenile or criminal case, shall be suspended for 30 days
from the date of this order." The Oklahoma order also
explicitly tolls the statute of limitations in any civil case for
thirty (30) days starting from March 16, 2020.34 In view of the
subsistence of the pandemic, it is not unreasonable to expect that
these specified dates may be extended.
Though not directly on statute of limitations but related, the UK
Judiciary also issued New Practice directions 51ZA which allows the
parties to mutually agree an extension up to fifty-six (56) days
without formally notifying the court (rather than the current
twenty-eight (28) days), so long as that does not put a hearing
date at risk. Any extension of more than fifty-six (56) days needs
to be agreed by the court. The court is required to take into
account the impact of the pandemic in considering such
applications.35
In India, the Supreme Court has suspended limitation periods.
Specifically, the Court invoked its plenary powers under Article
142 of the Indian Constitution to extend limitation period of
appeals from high courts or tribunals on account of coronavirus
(COVID-19) pandemic with effect from March 15, 2020 till further
order(s) on the issue is passed by the Supreme Court.36
The foregoing does suggest some level of liberty on the part of the
government to facilitate the passing of the relevant bill by the
affected states legislature, to the extent that such laws are not
currently in place. This may enable the relevant authority to make
the relevant regulations just as in the Ontario scenario. For
instance, the EMCPA pursuant to which the Ontario Order was made
was first introduced as the "Emergency Management Act" in
2002, following the "Y2K" scare and the events of
September 11, 2001.37 In 2006, the Act was amended to become the
Emergency Management and Civil Protection Act based on the Ontario
government's experience with the SARS outbreak that occurred in
2003. This is however, the first time that the statute has been
used to suspend limitation periods in Ontario.38
THE NIGERIAN EXPERIENCE
In practical terms, to the extent that such laws are in fact
currently not in existence in Nigeria and given that the pandemic
has affected the sittings of both the national and state
legislature, the legislature may very well make those laws after
the pandemic with a proviso that such laws shall have a
retrospective effect. While laws with retrospective effects are
generally discouraged,39 greater injustice will be done to a
claimant who is unable to ventilate his grievance in court for
reasons beyond his control. Indeed, a counter-argument may be made
that
a claimant who waits till the very last months of the limitation
period before commencing an action is himself indolent and should
be left alone to face the consequences of his indolence. To the
extent that the law generally provides a timeline which becomes
shortened without the claimant's "indolence" (at
least in this case), some protection ought to be offered to the
claimant. In addition, some claimants have a very short window
within which to commence their actions. For example, those who are
aggrieved by an action done by a public official in an official
capacity generally have three months within which to ventilate
their claims in court. One of the ways to wrong this brewing
prejudice, is to promulgate laws which permit the suspension of the
limitation period during the pandemic period. Furthermore, such
legislations should also be permitted to have retrospective effect
to at least take effect from the period when the lockdown
effectively began.
Another way to go around this issue, though it may be bedeviled
with uncertainty, is for the court to adopt a purposive
interpretation40 of the relevant limitation laws when faced with
this issue. The purposive rule of interpretation enables a court to
consider not only the letter of the legislation but the spirit.
Lord Denning succinctly captures this in Nothman v. Barnet
Council41 when Master of Rolls held as follows:
"Faced with glaring injustice, the judges are, it is said,
impotent, incapable and sterile. Not so with us in this court. The
literal method is now completely out of date. It has been replaced
by the approach which Lord Diplock described as the "purposive
approach" .... In all cases now in the interpretation of
statutes we adopt such a construction as will "promote the
general legislative purpose" underlying the provision. It is
no longer necessary for the judges to wring their hands and say:
"there is nothing we can do about it". Whenever the
strict interpretation of a statute gives rise to an absurd and
unjust situation, the judges can and should use their good sense to
remedy it – by reading words in, if necessary - so as to do
what Parliament would have done, had they had the situation in
mind".
A primary aim of limitation laws is to ensure that claims are filed
within a specified time frame. Therefore, to the extent that the
"specified time frame" may be affected, however minutely,
a fair approach is to consider that the purpose of the statute has
not been met in a situation where the effects of an unforeseen
pandemic unilaterally reduces that time frame. Thus, to stick with
the purpose of the statute, the courts employing the purposive rule
of interpretation should "subtract" the lockdown period
in determining whether an action is statute barred or not, post
COVID-19.
In adopting this approach, the courts may find comfort in the
appellate courts approach in Sifax which is a product of judicial
activism or "filling in the gaps"42. This is because
Section 8(1)(a) of the Limitation Law of Lagos State which provides
that claims based on simple contracts cannot be commenced after six
(6) years and other relevant sections, does not recognize or
stipulate the time spent prosecuting an action in a wrong venue as
one of the factors capable of freezing the limitation period of a
claim.
The foregoing therefore underscores the point that where sticking
to the letter of a statute of limitation will not accord with the
overriding objective of the statute or lead to absurdity or produce
a wholly unreasonable result, it is suggested that such statute of
limitation must be interpreted in such a manner as to discover the
intention of the legislature.
It is of moment to state that the legislature when promulgating the
statute of limitation must have intended or presumed that there
would not be any situation or circumstance which will prevent
access to court within any specific period when a claim or an
action should be initiated. However, whereas in the present
COVID-19 pandemic situation which has prevented access to courts to
a large extent (contrary to the intention of the legislature), the
court must be willing and ready to do what is fair and just in the
circumstance of a case. To drive home the point being made, in Luke
v IRC43, Lord Reid stated as follows:
"To apply the words literally is to defeat the obvious intention of the legislature and to produce a wholly unreasonable result. To achieve the obvious intention and to produce a reasonable result we must do some violence to the words..."
CONCLUSION
Certainly, the COVID-19 situation will test the courts' seemingly stable attitude to statutes of limitation in Nigeria and it is hoped that the judiciary will yet again seize the opportunity to set another precedent on a freezing period in computing the time limit for the purpose of determining whether an action is statute barred or not, as seen in the Sifax's case. Alternatively, the legislature may set the judiciary on the right path by promulgating the relevant laws which allows for freezing of statutory limitation timelines during the pandemic period.
Article orignally published on 22 April 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.