ADVERTORIAL IMPACT OF COVID 19 ON THE COMPUTATION OF TIME UNDER NIGERIAN LAW

The outbreak of COVID-19 in Wuhan, China sometime in December 2019, the eventual declaration of the virus as a pandemic in March 2020 by the World Health Organisation, and the discovery of the first case in Lagos State led to unprecedented lockdown measures initially in 3 states and subsequently the majority of the states of the federation. The government introduced several measures to curtail the spread of the virus, ranging from restrictions on large gatherings, closure of government offices and other businesses, imposition of curfew, closure of airports/borders, ban on sea and road travels, to ban on intra-state movement, amongst others.

Just like every other sectors, the virus did not spare the judicial sector of its damning effect. Many State and Federal High Courts followed Federal Government or State lockdown as the case may be and shut down. This pandemic is threatening the agelong principle that the courts must always remain open for the smooth administration of justice even under a state of war or emergency. These extraordinary measures by the Judiciary has raised new challenges concerning access to and effective administration of justice and case management. Time is of the essence in the administration of justice, and the enforcement of legal rights must be triggered within a given period after the right accrues. The time to commence a suit, respond to processes, deliver judgments and appeal are prescribed by the Constitution, Statutes and Rules of Court. Failure to adhere to the time and activate the jurisdiction of the Court timeously as provided for under the relevant laws may be fatal. While some breaches could be remedied by extension of time, some cannot be salvaged and thus totally extinguishing the cause of action of the aggrieved party. This article has a narrow compass and would review how our Nigerian Judiciary is currently dealing with the challenges posed by the pandemic in terms of computation of time under the limitation laws on the one hand, and computation of time under the Rules of Court and propriety of penalties award on the other hand.

Judiciary’s Response to COVID-19

Since the confirmation of the first case of the virus in Nigeria, several directives have been issued by the Chief Justice of Nigeria, President of the Court of Appeal and Chief Judges of the State High Courts on the management of the risk posed by the pandemic to the justice system. The first circular issued by the Chief Justice of Nigeria on the COVID 19 pandemic was dated the March 20, 2020 wherein His Lordship advised all courts to adhere strictly to the social distancing guidelines and ensure that sitting arrangements in courts conform with the recommendation by the Nigeria Centre for Disease Control. In a subsequent circular issued on March 23, 2020, the Chief Justice of Nigeria suspended sitting in all Courts in the Country for an initial two weeks which was eventually extended and made indefinite vide a subsequent circular dated April 6, 2020. The measures by the C.J.N. were in addition to the curfew imposed by the government and the directive that all government workers who incidentally man the Court registries should work from home.

Limitation Laws and Access to Justice

The limitation law is one of the procedural laws that regulate the time within which a legal right recognised under the law can be exercised. These are contained in various laws and mainly in the Limitation Act and the Limitation Laws of the respective states. These laws regulate the time for filing the different causes of action ranging from breach of contract which is six (6) years, to claim of ownership of land which is 12 years and time for bringing an action against certain persons or institutions amongst several others (See generally, Limitation Law of Lagos State and Public Officers Protection Act). The time prescribed under the limitation laws are sacrosanct, and courts have over the years given these provisions narrow and strict interpretation. See Ajibona V Kolawole (1996) LPELR-299 SC. Failure to file an action within the prescribed period automatically abates the cause of action and the right of the aggrieved party to seek a remedy in Court. See Araka V Ejeagwu (2000) LPELR-533 SC. Also, no application for extension of time can be filed to revive an action that has become statute-barred where the statute did not expressly provide for such concession.

While it is conceded that the statute of limitation is sacrosanct and matters that have become statute-barred have died a natural death and cannot be resurrected, the breach that may be occasioned on account of the COVID 19 pandemic is undoubtedly sui generis (of its own kind) and may be a game-changer in the way the provisions of limitation laws are construed.

The jurisprudential basis for limitation laws is ensuring an end to dispute between the parties. It also punishes an indolent aggrieved party who chose to sleep on his right when same is breached. The closure of the Court and its registry to litigants due to the pandemic and absence of alternative means of access to justice through e-filing and remote hearing may not fall within the scope of the above jurisprudential reasoning. It could be easily argued that the inability to file an action during a pandemic is not as a result of laches on the part of the litigants, but rather, as a result of the policies of government on social distancing which makes access to Court impossible. It seems therefore unfair for a litigant to be punished by the same Court whose registry is closed, thereby denying such litigant access to justice.

The recent uncertainty created by the administrative holding response of the Chief Judge of the Federal High Court, subjecting approval for a remote hearing of cases to superior directives of the Chief Justice of Nigeria underscores this point, as there is no clarity when such directive may come. There is also no clarity as to when the Federal Government would effectively lift the lockdown. Given the potential oninued spread of the pandemic, it appears there is no real control over the life span of these extraordinary containment measures.

There is a strong argument in support of the position that application of limitation laws on matters that are time-bound should be suspended as a result of the lockdown imposed by the government. This contention is premised on the maxims (Inability excuses the non-observance of the law) and (the law does not compel a person to do that which he cannot possibly perform) See Okon Bassey Ebe V Commissioner of Police (2008) LPELR984SC. Also, it is generally acknowledged law that the burden and sin of the inability of the registry of Court to discharge its duties to the litigants cannot be visited on the litigants as held by the apex Court in Kangnaan V Kangnaan (2019) LPELR 46502 CA.

If the above is the case, the pertinent question is, how can this proposition be achieved within the context of our laws? It is opined that the suspension of the implication of the limitation laws can be realised through legislative or judicial interventions. Some jurisdictions have enabling statutes which empower a named person or office (in most cases the executive head) to suspend the application of limitation law in a state of emergency. Regulations and Orders are usually made in this regard. In Ontario Canada, a state of emergency was declared on March 17, 2020. The Courts were closed on the March 15, 2020 except for urgent matters in a fashion similar to Nigeria. In dealing with the challenge of time running against litigants based on limitation laws, Ontario passed Reg 73/20 under section 7.1(2) of the Emergency Management and Civil Protection Act. The Regulation suspended the limitation periods under any provision of a statute, regulation, rule, by-law, or order of the Government of Ontario for the duration of the emergency. See www. dentons.com/en/insights/alerts/2020 . A similar approach was adopted in British Columbia with the issuance of Ministerial Order no. M086 titled Limitation Periods (COVID-19) Order. The order suspends certain limitations periods in the province of British Columbia and will remain in effect until the state of emergency declared on March 18, 2020, expires or is cancelled. See https://www.jdsupra.com/legalnews

Careful consideration of the approach taken by the jurisdictions outlined in the above paragraph shows that the suspension of limitation laws was done by issuance of Orders and Regulations by the Executive arm under emergency laws. In Nigeria, the Quarantine Act gives the President and Governors the power to make Regulations to deal with the issues relating to the pandemic. Further to the provisions of the Act, the President and some State Governors have issued several Covid 19 Regulations. The Regulations made by the Executives so far are of a limited scope dealing mainly with health and safety issues like imposition of curfew and restrictions of movement amongst others. The Executive arm have failed to exercise their powers under the Quarantine Act to make Regulations on legal measures to deal with the consequence of the pandemic on the limitation laws. Since we do not have laws with similar provisions with 7.1(2) of the Emergency Management and Civil Protection Act of Onatario which specifically allow regulations to be made by the Executive suspending the limitation law during a state of emergency, it thus appears that for us to achieve legislative intervention to put limitation laws in abeyance during the pandemic in Nigeria, there will be the need for a law to be passed by the National and State Houses of Assemblies. This may, however, be difficult as many of the State Houses of Assemblies have suspended their sitting indefinitely since the outbreak of the pandemic while the uncertainty on this key legal issue rage on.

Where the legislature fails to enact a law suspending the limitation laws, we argue that the Judiciary as the last hope of the common man and temple of justice could remedy the perceived injustice on litigants whose rights could be infringed by the strict application of the law.

The Court in achieving the above may will to exercise its constitutional powers to ensure the laws are interpreted only to give effect to the intention of the makers. The law should not take away the right of the litigant in a gangster-like fashion neither is it meant to visit the helpless situation of the Court on the litigant. The Court cannot leave litigants whose matters have become statute-barred as a result of the pandemic without a remedy. See Bello V A G Oyo State (1986) LPELR0 764 Sc.

The reasoning of the Supreme Court in the case of Administrator and Executor of Estate of Abacha Vs Eke-Spiff & Ors (2009) LPELR-3152 on the rationale for the introduction of limitation law can be adopted by the Court to widen the scope of interpretation vis-a-viz the issue of the COVID 19. The Supreme Court per Aderemi J.S.C. held thus

“However, Section 31(5) (a) and (b) of the same Edict provides for the postponement of limitation period in case of fraud concealment or mistakes. It provides: ‘Subject to Section (E4) where in the case of any action for which a period of limitation is prescribed by the Edict either: (a) The action is based upon the fraud of the defendant; or (b) Any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendants.’The saying is that, ‘No prescription runs against a person who was hindered in bringing a court action’. Per ADEREMI, J.S.C. (Pp. 44-45, paras. E-A)

In interpreting the implication of COVID 19 on limitation law, the Courts could build on the decision of the Supreme Court quoted above and the landmark judgment in Sifax Nigeria Ltd & 4 Ors v. Migfo Nigeria Ltd [2018] 9 NWLR (Pt 1623) 138 SC where# the Supreme Court departed from its age-long position of giving the principle of limitation law a narrow interpretation. Before the decision in Sifax Nigeria Ltd & 4 Ors v. Migfo Nigeria Ltd, the approach of Court to limitation laws is that pendency of an action in court would not stop time from running against the cause of action. Consequenlty, a party who commenced a suit before a court that lacks the competence to adjudicate on the subject matter will under the old regime lose the right of action if the matter becomes statute barred by the time the Court declares that it lacks the competence to hear the suit and therefore struck out the matter. The landmark decision by the Supreme Court in Sifax has now relaxed the strict application of limitation law and the new position is that the filing of a suit in court stops the application of limitation law to the cause of action during the pedency of the suit.

These decisions of the Supreme Court have given a path for parties to explore and invite the Court to further expand the reasoning in the decisions in preserving the right of the litigants affected by the restrictions occasioned by COVID 19. The prescription of the law as to time though mandatory, the Court in its quest to do justice ought generally to be imbued with the dictates of reason to accommodate a party that appears to have unwittingly run foul of the dictates of the procedural law. See Broad Bank Nig Ltd v Alhaji S Olayiwola & Sons Ltd (2005) 3 NWLR (pt 912) 434.

Section 15 of the Interpretation Act which deals with computation of time does not contemplate the precarious situation presented by this pandemic and thus did not provide a guide on how to address it.

Computation of Time, Access to Justice and Waiver of Penalties for Late Filings

On the computation of time under the Rules of Court, unlike the rigid and strict application of limitation law where time cannot be extended by the Court, the Court is liberal in construing the provisions of the rules of Court prescribing a timeframe for the filing of processes.

Courts generally have the power to waive non-compliance and grant parties the indulgence to regularise their positions and seek for an extension of time to do any act which they failed to do within the timeframe prescribed. Litigants seeking the exercise of the discretion of the Court must, pay the requisite default fees as provided by the Rules (See Order 48 of the High Court of Lagos State Civil Procedure Rules 2019 and the Federal High Court Rules 2019).

The flexibility in the application of the Rules of Court is premised on the trite position that Rules of Court assist the Court in administering justice and non-compliance with the rules may not be fatal to the case of a party and could be remedied. See Order 7 of the High Court of Lagos State Civil procedure Rules 2019, which is replicated in the Rules of other Courts.

Although Judges are given the discretion to waive non-compliance with the Rules, a party seeking extension of time must pay default fees as a penalty for the breach. The Chief Judge determines the amount to be paid as penalty fees as provided in the Rules of Court or practice direction issued to that effect. The amount to be paid as default fee is as contained in Order 48 of both the Federal High Court and the High Court of Lagos State Civil Procedure Rules 2019 which provides for a default fee of N1000 per day. Order 48 Rule 4 of the High Court of Lagos State Civil Procedure Rules provides thus:

The Judge may, as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceeding: Provided that any party who defaults in performing an act within the time sauthorised by the Judge or under these Rules, shall pay to the Court a fee of N1000.00 (One Thousand Naira) for each day of such default at the time of compliance.

Further to the above-quoted provision of the Rules, it may be contended at face value that the payment of default fees is mandatory and Judges do not possess discretionary powers to waive cost in consideration of the peculiar facts that occasioned the delay which may be circumstances beyond the control of the party.

The pertinent question is whether parties will still be required to pay default fees covering the period of lockdown for failure to file processes within time? It is our respectful position that parties cannot pay default fees during the lockdown period of the pandemic as it is the Court that closed its doors to the litigants and could not turn around to punish litigants and counsel for failure to file processes during the pandemic.

As earlier mentioned, the statutes have given the Heads of Courts the power to make Rules to regulate the sitting of the Court in order to ensure seamless administration of justice. Pursuant to these powers, the Heads of various courts have been issuing practice directions on remote Court sitting amongst several others to deal with the peculiarity of the situation created by the pandemic. It is our considered proposition that a practice direction dealing with the suspension of payment of default fees during the pandemic should also be issued by the various Heads of Courts to avoid a situation where the sins of the Court would be visited on the litigants.

If the Chief Judge of the respective State High Courts and other heads of Courts fail to issue practice direction waiving payment of default fees during the pandemic, parties may apply to the Judge handling their matters praying for the waiver of default fees that accrued during the lockdown imposed by the government as a result of the pandemic. This approach had been successfully tested before in cases before the High Courts (An application for waiver of default fees was granted by the Federal High Court in Suit FHC/L/CS/588/14 -A.I.C. V FAAN , but the High Court of Lagos State, however, refused a similar application in LD/3223LMW/2016 -Novojo Farms and Fisheries Company Limited Vs G.U. Okeke and Sons Limited.) This position is also in line with the fundamental duty of the courts to do justice. It is also in line with the revered legal axiom (where there is a wrong there is a remedy) see University of Calabar Teaching Hospital & Anor V Bassey (2008) LPELR-8553 CA). The Supreme Court has established the need for substantial justice even in the absence of the support of a statutory provision in a plethora of cases. See Bello V AG Oyo (Supra).

Conclusion

There is need for an urgent action to be taken by the enactment of laws, regulations and practice directions to deal with the uncertainties and seemingly unjust scenarios created by the pandemic as regards the application of limitation law and payment of default fees by the litigants. It is becoming clear that the disruptive effect of this pandemic requires the different arms of government to be proactive, thinking outside the box and sometimes with no box, seeing that the Nation and the world appear to be dealing in uncharted territories and the future remains for now uncertain.