Abubakar V. Michelin Motor Tyre Services Ltd (2020)

LAWGLOBAL HUB Lead Judgment Report

OLABODE RHODES-VIVOUR, J.S.C.

The Respondent is a company engaged in the manufacture of tyres, while the appellant is a businessman. In 1989, the appellant entered into a dealership contract with the respondent. That is to say the appellant became a motor tyre dealer/distributor.

According to the terms of the contract the appellant was to pay and he paid a refundable deposit which was retained by the respondent. In the course of the contract a dispute arose as to whether the appellant was indebted to the respondent and whether the respondent was right to withhold the refundable deposit and bonuses to offset part of the indebtedness. In 1999 the appellant demanded for the refundable deposit and bonuses. The respondent was unyielding and communicated his refusal to the appellant in its letter dated 26 July 1999.

Aggrieved by the attitude of the respondent, the appellant as claimant filed suit No: PLD/J/153/2007 before a Plateau State High Court. His claim against the respondent/defendant was for:

​(a) The sum of N4,400,000.00 (Four million, four hundred thousand Naira) only being the refundable deposit the plaintiff has with the defendant.

(b) The sum of N1,936,919.54 (One million, Nine hundred and thirty six thousand, nine hundred and nineteen naira fifty four kobo) only being 1999 end of year and progress bonuses.

(c) 10% interest per annum therefrom 1999 till final payment of the entire sum.

(d) The sum of N112,500.00 per week as special damages from 1 January 2000 to 26 January 2001 i.e. for 15 weeks.

(e) The cost of this action.

A similar dealership contract was executed by the respondent with Alhaji Abubakar Baba Umar. He also sued the respondent on identical facts. That was suit No: PLD/J/152/2007. His appeal would be addressed in SC.141/2014.

Dakyen CJ Plateau State sitting in Jos presided. His lordship ordered both suits consolidated, and in a considered judgment delivered on 1 June 2011, His lordship found in favour of the claimant’s as follows:

“The plaintiff in suit No: PLD/J/152/07 is awarded the reliefs in his paragraph 15 (a) (b) and (c).

With regards to claim in paragraph 15 (d) and (e) I decline to award same, having regard to the fact that the plaintiffs in this suit had kept the business in abeyance alter the death of Alhaji Kawuje.

The plaintiff in suit No: PLD/J/153/07.

The plaintiff succeeds and is entitled to reliefs in his paragraph 15(a), (b) and (c) of his statement of claim.

For the same reasons in respect of suit No: PLD/J/152/07, I also decline to award reliefs (d) and (e) of the plaintiffs paragraph 15 of the statement of claim.”

Dissatisfied with the judgment of the trial Court, the respondent filed an appeal. The appeal was heard by the Court of Appeal, Jos Judicial Division. On 27 June, 2013 judgment was delivered. The Court found that both suits were statute barred and declined to address other issues. The Courts reasoning was that it would amount to a futile academic exercise. The concluding paragraph of the judgment reads as follows:

“In consequence of the absence of competence and jurisdiction of the trial Court to adjudicate upon both actions, I hold that the judgments of the trial Court being appealed herein cannot be saved.

This appeal is meritorious and hereby allowed. In essence, the judgment of the trial Court delivered on 7 June, 2011 in suit No: PLD/J/152/2007 is hereby declared a nullity and set aside… “

This appeal is against that judgment. The consolidated suits were heard in the High Court as PLD/J/152/2007 and in the Court of Appeal as CA/J/179/2011. The suits are being heard individually in the Supreme Court.

Briefs were filed and exchanged by counsel. Learned counsel for the appellant Mr Kehinde Aina relied on amended appellant’s brief, while Learned counsel for the respondent, Mr. E.O. Okoro relied on respondent’s brief.

Mr. Kehinde Aina learned counsel for the appellant presented a sole issue for consideration. It reads:

Whether or not, in view of Section 14 of the Plateau State Limitation Edict No 16, 1988 the Appellant’s action is not statute barred and the lower Court has jurisdiction to hear and determine the appellant’s action.

Learned counsel for the respondent, Mr. E.O. Okoro in his own sole issue for consideration also asks the same question:

Whether the Court below was right when it held that the appellant’s action is statute barred by virtue of Section 18 of the Plateau State Limitation Law (Edict No. 16, 1988).

The issue formulated by the respondent shall be considered in resolving this appeal. It reads:

Whether the Court below was right when it held that the appellant’s action is statute barred by virtue of Section 18 of the Plateau State Limitation Law (Edict No 16, 1988).

Learned counsel for the appellant Mr. K. Aina observed that to decide whether this suit is statute barred, Section 14 and not Section 18 of the Plateau State Limitation Law (Edict No. 16 of 1988) should be considered. He further observed that by the provisions of Section 14 supra, the appellant had ten years to file his claim from when his cause of action arose against the respondent. He submitted that the Court of Appeal was wrong to rely on Section 18 supra and declare the appellants action statute barred. Reliance was placed on:

UBA PLC V. Abdullahi (2003) 2 NWLR (Pt. 807) p.359

J.K.K. Ltd V. Gov of Lagos State (2014) 5 NWLR (Pt. 1399) p.151.

Lawon Sanda V. Kukawa LG & Anor (1991) 2 NWLR (Pt. 174) p.379.

Adekoya V. FHA (2008) 1 NWLR (Pt. 1099) p.539.

He urged the Court to allow the appeal, set aside the decision of the Court of Appeal and restore the judgment of the trial Court by entering judgment in favour of the appellant in terms of the appellant’s claim since the action was filed within ten years as provided by Section 18 (supra).

Learned counsel for the respondent observed that the appellant’s claim was purely founded on breach of contract by the respondent who refused to return the refundable deposit and to pay the bonus under the Dealership/Distributor contract with the respondent.

He submitted that the applicable provision of the Plateau State Limitation Law (Edict No 16 of 1988) is Sect ion 18 and not Section 14.

He urged the Court to resolve the sole issue against the appellant and dismiss the appeal for lacking in merit.

The question which arises from the sole issue for determination is whether or not the plaintiff/appellant’s action is statute barred?

​When it is said that an action is statute barred, it simply means that the action/claim is barred from being heard and determined by any Court by a provision of a statute. It is usually as to time. The bar gives a time limit during which certain actions can be brought to Court. Failure to bring the action within the time stipulated by the statute renders the action invalid and the Court without jurisdiction to hear the action/claim.

It is desirable but not mandatory that Limitation Law is pleaded. If it is not pleaded, it still can be raised at any stage in the proceedings and in any Court for the first time, since it is an issue of jurisdiction. The adverse party must be put on notice so that he is not taken by surprise. Once an action is found to be caught by the Limitation Law, the hearing of the suit abates. It can never be revived: When such a suit is struck out the Court it amounts to infantile reasoning to hold that applying the Law as it is technical justice. On the contrary it amounts to substantial justice. Counsel is expected to know the law and guide the Court to ensure compliance with clear provisions of the statute concerned.

The rational for statute of Limitation is simple. A claimant who has slept on his rights is not to be assisted or allowed to bring action when he likes. A claimant should file his action with diligence and the time provided statute. Limitation periods protect a defendant from the injustice of having to face a stale claim. For example, if a claim is brought a lone time after the events in question, there is a strong likelihood that evidence which was available earlier may have been lost, and the memories of witnesses may have faded. A party would not be allowed to take advantage of the Limitation law where there is clear evidence of disability, mistake, fraud and in certain cases involving personal injury, death.

Limitation laws are in all jurisdictions. For example the Limitation law, Cap L67 of Lagos State provides that the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued-

(a) actions launched on simple contract;

(b) actions founded on quasi contract;

(c) actions to enforce a recognisance.

No person can bring an action to recover land after the expiration of twelve years from when his cause of action accrued. These are a few examples.

​To find out whether the claimants claim is caught by the Limitation law, first identify the claimants claim, or cause of action and this is done by examining in detail the Writ of Summons and Statement of Claim. It would then be easy to find out when the wrong which gave the claimant his cause of action was committed. Compare that date with the date the Writ of Summons was filed. If the Writ of Summons was filed outside the period provided for the claimant’s claim the claim is no longer actionable. It is statute barred. The entire exercise spelt out above can be done without taking evidence.

Applying the above to the facts of this case, the appellant as plaintiff sued the respondent defendant for:

(a) The sum of N4,400,000.00 (Four million, four hundred thousand Naira) only being the refundable deposit the plaintiff has with the defendant.

(b) The sum of N1,936,919.54 (One million, Nine hundred and thirty six thousand, nine hundred and nineteen naira fifty four kobo) only being 1999 end of year and progress bonuses.

(c) 10% interest per annum therefrom 1999 till final payment of the entire sum.

(d) The sum of N112,500.00 per week as special damages from 1 January 2000 to 26 January 2001 i.e. for 55 weeks.

(e) The cost of this action.

After examining the writ of summons and statement of claim this is what the Court of Appeal said:

“From the facts averred to in the Writ of Summons and Statement of Claim of the respondents, it is clearly evident that the relationship between the appellant and the respondent is that of a contract for sale of Motor tyres.

And the conflict between the parties arose from the said contractual relationship. That is, it was as a result of the alleged failure of the respondent to pay to the appellant for some consignments or supplies of Motor tyres that led to the refusal of the appellant to further deliver the goods to the respondents. Apart from the sums paid by the respondent to the appellant as deposits, no mention is made either in the Writ or Statement of Claim, of and title document of the respondent’s landed property being used as security in the transaction between the parties did not arise from the issue of charge on any property of the respondent…”

​After detailed review of the Statement of Claim, it is clear that the appellant entered into a contract with the respondent to sell its tyres. This was a Dealership/Distributorship contract. A term in the contract was that the appellant was to pay to the respondent a refundable deposit and was entitled to bonuses as the years rolled by. The appellant demanded for his refundable deposit and bonuses, but the respondent refused to pay/return the sums claimed by the appellant. This is clearly a breach of contract if the facts are correct. The appellant’s action is founded in simple contract.

The Court of Appeal was correct in its findings. In order to pay the refundable deposit the appellant approached UBA PLC for a loan. He was successful. He had to deposit his title documents with UBA PLC as collateral for the loan (i.e. the sums paid to the respondent by UBA PLC).

Learned counsel for the respondent’s argument is that the plaintiff’s claim is covered by Section 14 and not Section 18 of the Plateau State Limitation Law (Edict No.16 of 1988). It reads:

“14 (1). No action shall be brought to recover-

(a) any principal sum of money secured by a mortgage or other charge on property; or

(b) proceeds of the sale of land after the expiration of the sale of land; after the expiration of ten years from the date on which right to receive the money accrued.

(2) No foreclosure action in respect of mortgage property shall be brought after the expiration of ten years from the date on which the right to foreclose accrued: provided that if, the mortgagee was in possession of the mortgaged property after that date, the right to foreclose on the property which was in his possession shall be treated as having accrued for the purposes of this subsection until the date on which his possession discontinued.

(3) The right to receive any principal sum of money secured by a mortgage or other charge and the right to foreclose on the property subject to the mortgage or charge shall not be deemed to accrue so long as that property comprises any future interest or any life insurance policy which has not matured or been determined.

(4) Subject to subsections (5) and (6) of this section, no action to recover (a) money payable in respect of proceeds of the sale of land; or (b) arrears of interest payable in respect of any sum of money secured by a mortgage or other charge; or (c) damages in respect of such arrears shall be brought after the expiration of ten years from the date on which such money becomes payable or interest becomes due.

(5) Where (a) a prior mortgage or other encumbrance has been in possession of the property charged and (b) an action is brought within one year of the discontinuance of that possession by a subsequent encumbrance; the subsequent encumbrance may recover by that action all the arrears of interest which fell due during the period of possession by the prior encumbrance or damages in respect to those arrears notwithstanding that the period exceeds ten years.

(6) Where-

(a) The property subject to the mortgage or charge comprises any future interest or life insurance policy,

AND

(b) It is the term of the mortgage or charge that arrears of interest shall be treated as part of the principal sum of money secured by the mortgage or charge; the interest shall not be treated as becoming due before the right to recover the principal sum of money has accrued or is treated as having accrued.

We have examined the appellant’s submissions and the cases he relies on which we do not find relevant. It must be observed that nowhere in the appellant’s pleadings was mortgage or charge even remotely averred to and the facts averred to do not support such an action. The issue in controversy between the parties does not arise from mortgage or charge. The appellant’s pleading reveals that he sued the respondent for refundable deposits and bonuses. This is a clear case of breach of contract.

How the appellant got the money to pay for the refundable deposit is a private transaction between the appellant and UBA PLC. The respondent is not a party to that transaction and UBA PLC is not a party to this transaction. The appellant’s claim has nothing to do with sums of money secured by a mortgage or charge on property and proceeds of sale of land.

Section 14 of the Plateau State Limitation Law (Edict No. 10 of 1988) is not applicable, rather Section 18 (supra) is relevant and applicable.

When should claims in contract be filed in Court in Plateau State?

Section 18 of the Plateau State Limitation Law (Edict No. 16 of 1988) states that:

“No action founded on contract, tort or any other action not specifically provided for in parts (i) and (ii) of this edict shall be brought after the expiration of five years from the date on which the cause of action accrued…”

In Plateau State an action founded in contract which the appellant’s claim happens to be must be brought within five years from when the appellant had a cause of action.

A cause of action means the factual situation which entitles one person to obtain a remedy from another person in Court. Any act on the part of the defendant which gives the claimant a cause of complaint is a cause of action.

Put in another way a cause of action is the fact or combination of fact which give rise to a right to sue and it consists of two elements-

(a) the wrongful act of the defendant which gives the plaintiff his cause of complaint, and

(b) the consequent damage.

So, when facts establishing a civil right or obligation and facts establishing infraction of a trespass on those rights and obligations exist side by side, a cause of action is said to have accrued.

See Thomas V. Olufosoye (1986) 1 NWLR (pt. 18) p.669

Adimora V. Ajufo (1988) 3 NWLR (Pt. 80) p.1

Afolayan V. Ogunrinde (1990) 1 NWLR (Pt. 127)

Uwazuruonye V. Gov of Imo State & 2 Ors (2012) II SC p.133.

A cause of action is thus a fact, once proved would entitle a claimant to remedy against the defendant.

​The claimant must show in his pleadings the wrongful act of the defendant to establish cause of action.

These averments must be detailed, especially as to dates and the date on which his cause of action accrued. The defendant is expected to join issues with the claimant. It is desirable that the defendant pleads the Limitation Law relied on, but if he does not plead it, he is at liberty to raise it at any stage of the proceedings and even on appeal for the first time. This is because the Court has no jurisdiction to hear any action taken after the specified period.

The claimant averred to detailed facts to show how he got a cause of action. He also averred to further facts that his cause of action accrued in 1999.

In response the defendant averred as follows:

“13(d) The defendant also pleads Limitation with respect to the claim for bonus and states the particulars that the claim relates to bonus for the year 1999, much more than 5 years prior to the commencement of the suit.”

The parties are ad idem on when the cause of action accrued. The claimant’s action accrued in 1999.

Time begins to run from the date the cause of action accrues.

In determining the period of Limitation, all that the Court has to do is to examine the pleadings to see when the cause of action arose and compare that date with when the Writ of Summons was filed. If the time on the Writ of Summons is beyond the period provided the Limitation Law, then the action is statute barred. See Mulima & Anor V. Usman & 3 Ors (2014) 1-2 SC (Pt. 111) p.126. Okenwa V. Military Gov Imo State (1996) 6 NWLR (Pt 455) p.394

Egbe V. Adefarasin (No. 2) (1987) 1 NWLR (Pt.47) p.1

F.R.I.N. V. Gold (2007) 11 NWLR (Pt.1044) p.1

The cause of action accrued in 1999 while the Writ of Summons was filed on 30 April 2007.

That is to say the appellant as claimant filed his action after eight years instead of within five years, counting from 1999.

​Counsel and Litigants must be reminded that it is the well laid down position of the law that once the claimant’s legal right is established he must have a remedy. Such a right is not a perpetual right. He must act timeously. The law and indeed equity would not allow him to go to sleep and bring his action at any time, or when he feels obliged to do so. His right of action is limited statute and in this case the Plateau State Limitation Edict No. 16 of 1988. The appellant’s action is statute barred by virtue of Section 18 of that Law.

In the light of all that I have saying there is no merit in this appeal.

The Judgment of the Court of Appeal is affirmed.

No order on costs.

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SC.142/2014