Ethiopian Airlines V. Afribank Nig. PLC & Anor. (2006)

LawGlobal-Hub Lead Judgment Report

AGBO J.C.A.

The appellant as plaintiff claimed of the respondents of the Lagos Division of the High Court of Lagos State as follows:-

i. The sum of N447,000(Four Hundred forty-seven thousand naira) and N5.00 (Five Naira) commission on the draft being the sum of money due to the plaintiff from the 1st and 2nd defendants viz:

a. Refund of the money for draft negligently issued by the 1st defendant to the 2nd defendant together with the commission debited against the plaintiff’s account.

ii. The sum of N1,000,000.00 (One Million Naira) being special damages suffered by the plaintiff due to the negligence of the 1st defendant in issuing the bank draft contrary to the plaintiff’s instructions, to the order of the 2nd defendant and for facilitating the conversion of the money stated in the said bank draft by the 2nd defendant.

iii. The sum of N1,000,000 (One Million Naira) being general damages suffered by the plaintiff due to the negligence of the 1st defendant and for negligently and improperly facilitating the conversion of the sum of N447,000 (Four Hundred Forty-Seven Thousand Naira) by the 2nd defendant, which sum the 1st and 2nd defendant have refused to pay to the plaintiff inspite of repeated demands.

iv. Interest on the above sum of money as stated in (i), (ii) and (iii) above at the rate of 21% per annum from 2nd April, 1990 till judgment and at the rate 6% per annum till final liquidation of the debt.

Pleadings were filed and exchanged. Thereafter the 1st respondent on 18-9-97 filed a motion seeking to have the suit dismissed on the ground that the suit was statute barred. Affidavit were exchanged, argument taken and in a considered ruling Hon. Justice L. G. A. Marsh dismissed the suit, having found it to be statute barred.

Being dissatisfied with the judgment of the lower court, the appellant has filed this appeal challenging the ruling of the court below on the following grounds:-

Grounds of Appeal

A. Error in Law

“The learned trial Judge erred in law when he held that “The cause of action arose when the 1st defendant allegedly issued the draft to the order of the 2nd defendant contrary to plaintiffs instruction. The plaintiff was supposed to have taken action to recover the N447,000.00 from the 1st defendant. He did nothing all these years hence he’s caught by the limitation law. He should have sued within the six years.

Particulars of errors

i. When the learned trial Judge erroneously held that cause of action arose when the 1st defendant issued the draft to the order of the 2nd defendant.

ii. When at the time the 1st defendant issued the draft to the order of the 2nd defendant in 1990 contrary to the plaintiff’s instructions the plaintiff was not aware of the error until sometimes in 1994.

iii. When the learned trial Judge failed to avail himself of the Supreme Court authority applicable to the matter (i.e. the case of Jallo Ltd. & Anor. v. Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt. 391) 534 at 538 ratio 6) despite the reliance placed on the case by the Appellant

B. Error in Law

“The learned trial Judge erred in law when he held that “From the exchange of correspondence between the parties, exhibit TCEI-TC6 considered along with the action of the 1st defendant during the period there is nothing in my view that could stop the 1st defendant from relying on or raising the issue of limitation period.”

i. When it is abundantly clear that exhibit TCEI-TCE3 have nothing to do with computation of time limitation or the action of the plaintiff in respect of its claim.

ii. When it is abundantly clear from exhibits TCE4 and TCE5 that the plaintiff did not become aware of the error committed by the 1st defendant until the writing of exhibit TCE5 by the 1st defendant.

iii. When it is abundantly clear from the circumstance of the case that the plaintiff filed its action within 6 years of its becoming aware of the errors of the 1st and 2nd defendants”

The appellant distilled one issue for determination from the above grounds of appeal to wit:

“Whether or not the learned trial Judge was right in holding that the cause of action arose when the 1st respondent issued the draft to the order of the 2nd respondent contrary to the instruction of the appellant”

On the other hand, the 1st respondent distilled two issues for determination to wit:

1. Whether the learned trial Judge was right in holding that the appellant’s cause of action arose on the 2nd of April 1990 when the 1st respondent allegedly issued the bank draft to the order of the 2nd respondent instead of to the appellant.
2. Whether the appellant’s alleged ignorance of the issuance of the draft to the order of the 2nd respondent as alleged is material to the computation of the statutory period of limitation, when fraudulent concealment is neither alleged not proved.

The 2nd respondent adopted the issues as distilled by the 1st respondent.

I have looked at the issues distilled by the appellant and the respondents. The issues as distilled by the appellant is exactly the same as that distilled by the respondents in their issue no 1 excepting that there is better clarity of language in issue No. 1 as distilled by the respondents. The respondent’s issue No.2 can be comfortable subsumed in issue No. 1. This appeal shall therefore be treated as a one issue appeal.

The fact of this case are rather short and simple. They are fully reflected in paragraphs 3 to 17 of the statement of claim which are reproduced hereunder.

3. The plaintiff maintained account No. 36270236c with the 1st defendant and also maintained account No. 7770571037 with the 2nd defendant.
4. On or about 2/4/90 the plaintiff instructed the 1st defendant to issue a draft in the sum of N447,000.00 to the order of the plaintiff and to be paid into the plaintiffs account with the 2nd defendant
5. The plaintiff avers that though the 1st defendant issued a bank draft No. 009126 dated 2/4/90, the draft was issued to the order of Continental Merchant Bank Plc contrary to the plaintiffs instruction.
6. The plaintiff aver that the said draft was delivered to the 2nd defendant on 4/4/90 and the same was duly acknowledged by the 2nd defendant by endorsing its stamp on the said draft. The plaintiff will rely on a copy of the said draft at the trial of this action.
7. The plaintiff avers that in the process of reconciling the plaintiff’s account at its Head Office in Addis Ababa, Ethiopia the said sum of N447,000.00 was discovered not to have been credited to the plaintiff’s account.
8. The plaintiff wrote a letter dated 1/9/94 to the 1st defendant requesting for a clarification on the debit sum of N447,000.00. The plaintiff shall rely on the said letter at the trial of this action.
9. In reply to the plaintiff’s letter referred to in paragraph 8 above the 1st defendant by its letter dated 1/11/94 purportedly debited the plaintiff’s account for the draft issued to the 2nd defendant. The plaintiff will rely on the said letter at the trial of this action.
10. The plaintiff consequently wrote a letter dated 20/4/95 to the 2nd defendant requesting for a clarification of the said sum of N477,000.00 and a detailed statement of account. The plaintiff will rely on the said letter at the trial of this action.
11. The plaintiff avers that the 2nd defendant in its letter dated 11/5/95 to the 1st defendant, demanded for a copy of the draft and evidence of acknowledgment of its receipt by the 2nd defendant. The plaintiff will rely on the said letter at the trial of this action.
12. By another letter dated 16/8/95 to the 2nd defendant the plaintiff attached a copy of the said draft with evidence of 2nd defendant’s acknowledgment of receipt of same. The 2nd defendant is hereby given notice to produce the said letter at the trial of this action.
13. Thereafter the plaintiff instructed its solicitors Messrs Yomi Oshikoya & Co. to take necessary steps to recover the said sum.
14. The plaintiffs solicitors wrote two separate letters of demands to the 1st and 2nd defendants which letters are dated 3/10/95 and 6/10/95 respectively. The 1st and 2nd defendants are hereby given notice to produce the said letters at the trial of this action.
15. In response to the plaintiffs solicitors letter dated 6/10/95 the 1st defendant vide its letter dated 17/10/95 informed the plaintiff solicitors that necessary investigation is being carried out on the matter. The plaintiff will rely on the letter at the trial of this action.
16. The plaintiff avers that the failure to credit the plaintiffs account is due to the negligence of the 1st defendant in issuing the draft to the order of the 2nd defendant instead of issuing the draft to the order of the plaintiff. The plaintiff shall rely on the doctrine of res ipsa loquitor at the trial of this action.
17. The plaintiff avers that the 2nd defendant has since converted the said sum of N447,000.00 to its use and failed or refused to credit plaintiff’s account with the said sum despite repeated demands.”

In arguing the appeal, the appellant’s counsel in his written brief posited that it is common ground that the relationship between the appellant and respondents being that of banker and customer, the transaction in dispute was founded on simple contract. He then proceeded to cite Section 8 (1) (a) of the Limitation Law of Lagos State Cap. 118 Laws of Lagos State of Nigeria 1994 which provides as follows:

1. “The following actions shall not be brought after the expiration of six years from the dale on which the cause of action accrued:-

a. “actions founded on simple contract”.

He then proceeded to write the dictum of Oputa J.S.C. in Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47)1 where the retired Justice of the Supreme Court and erudite scholar set out how to determine periods of limitation where statutes provides for limitation. He asserted that if the principles in Egbe v. Adefarasin were applied simpliciter in the present case, the appellant would be time barred. But he urged that, in the circumstances of this case the court should rather apply the principle enunciated in Jallco Ltd. v. Owoniboys Tech. Services Ltd. (1995) 4 NWLR (Pt. 391) 534 and hold that time did not begin to run until the time the appellant became aware that the 1st respondent did not issue the bank draft to the order of the appellant as instructed.

In answer to the appellant’s argument, the respondents have replied that the dictum in Egbe v. Adefarasin supra remains solid and unassailable. To further buttress that position they cited the dictum by Wali J.S.C. in Sanda v. Kakawa Local Government (1991) 2 NWLR (Pt. 174) 379 at 388. Where the learned jurist said that

“in actions for breach of contract, the cause of action accrues for the plaintiff benefit from the time the breach of contract is committed and not when the damage is suffered. The period of limitation will begin to run from the date the cause of action accrues”. See also Iheanacho v. Ejiogu (1995) 4 NWLR (Pt. 389) 324. They added for clincher the lead judgment of Ogwuegbu J.S.C. in Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22 where the Supreme Court held that knowledge by a plaintiff was not a condition precedent for the application of the limitation provisions of the Limitation Law of Lagos State. That decision was followed by the Supreme Court in Akibu v. Azeez (2003) 5 NWLR (Pt. 814) 643.

What then is the true position? When can it be said in the circumstances of this case that the plaintiffs cause of action had accrued and time started running for the purposes of S.8 (1) (a) of the Limitation Law of Lagos State?

The locus classicus on the accrual of cause of action and therefore the commencement of the running of time for the purpose of the limitation provision in any statute is the decision of the Supreme Court in Egbe v. Adefarasin Supra the relevant portion of which is reproduced hereunder:

“A cause of action is thus said to be statute-barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed. How does one determine the period of limitation? The answer is simple – by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the Limitation Law, the actions in statute-barred”.

Some other authorities seem to suggest that time does not begin to run unless and until the plaintiff is aware of the damage caused him by the conduct of the defendant. In Jallco Ltd. v. Owoniboys Tech. Services Ltd (1995) 4 NWLR (Pt. 391) 534 at 547 Hon. Justice Uthman Mohammed JSC in his lead judgment asked this question “When does time begin to run?” and answered the question thus-

“This court in the case of Fadare & Ors. v. Attorney-General of Oyo State (1982) NSCC 52 at 60 referred to the case of Board of Trade v. Cayner Irvine and Co. Ltd. (1927) AC 610 where it was held ‘Time therefore begins to run when there is in existence a person who can sue and emotion who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed.’ It is crystal clear from the facts of this case that the respondent had not become aware of the wrong entries in his accounts until in 1980/81. That being the case, the right of action accrued when the respondents’ demand to have his account credited was denied and refused, and this happened in 1980/81. The claim of the respondent is not therefore statute barred.”

It must however be noted that in the Jallco Ltd case cited above, fraudulent concealment was pleaded and proved. In NPA Plc v. Lotus Plastics Ltd (2005) 12 SC (PT. I) 19 at 27 Mahmud Mohammed JSC in dealing with when the cause of action arose, had this to say:

“In the instant case, it is not at all in dispute from the paragraphs of the 1st respondent’s statement of claim earlier quoted in this judgment, that the 1st respondent had a cause of action being the claim for the cost of its bus delivered to the warehouse of the appellant for custody for which appropriate fees had been paid. As to the question when the cause of action arose, both the trial court and the court below relied on paragraphs 10, 11 and 12 of the statement of claim which revealed that the 1st respondent was notified of the damage to the bus by a letter dated 20-5-93. The extent of the vandalization of the bus was confirmed to the 1st respondent by a Cargo Survey Company appointed by its insurers, which examined the bus at the premises of the appellant on 20-5-93. Thus the facts or combination of facts which gave rise to the right to sue, accrued to the 1st respondent on 26-5-93 when it became fully aware of the extent of the damage to the bus in terms of cost through the expert cargo surveyor.”

The above finding was however an Obiter dictum as the only issue for determination in that appeal was “Whether the relationship between the appellant and respondent comes within the statutory duties of the appellant as laid out by the Provisions of S.3(1) (a) of the Nigerian Ports Authority Decree No, 74 of 1993 having regard to the averments in the first respondents’ Statement of Claim.”

In Sanda v. Kakawa Local Government (1991) 2 NWLR (Pt.174) 379 at 388 Wali, JSC held thus-

“The appellant was dismissed from the service by the 1st respondent from 12th December 1983 the date exhibit “A” was written as it stated that the termination was with immediate effect. The time would therefore start running against the appellant the day after exhibit “A” was written and received by the appellant.” (Italics mine)

On the other hand, in Ajibona v. Kolawole supra, the Supreme Court was called upon to interpret Ss 16, 17, 19 and 21 of the Limitation Law, Laws or Lagos State. In his lead judgment at pages 35 and 36, Ogwuegbu, J.S.C. had this to say about the accrual of the cause of action in relation to the knowledge of the plaintiff of the act of the defendant constituting the cause of action-

“On the reading of the provisions of Limitation Law of Lagos State as a whole, they do not merely deny the right of action, they completely extinguish an existing right at the expiration of 12 years from the accrual of the right of action… On a cumulative reading of the entire provisions of the Limitation Law and in particular Ss 16, 17, 19 and 21 thereof, knowledge on the part of the plaintiff is not a condition precedent. The knowledge of the plaintiff is immaterial. The words of the Limitation Law of Lagos State are clear and unambiguous and must therefore be accorded their ordinary meaning. Apart from fraudulent concealment of right of action which itself furnishes, a cause of action, knowledge cannot be said to be relevant.”

This Judgment was followed wholesale by the Supreme Court in Akibu v. Azeez (2003) 5 NWLR (pt.814) 643. In fact in Akibu’s case the Supreme Court went further to state that a plaintiff who by reason of his absence from the place where the trespass occurred is unaware of the trespass cannot use such lack of knowledge as a defence to commence an action outside the limitation period.

It is clear from the several Supreme Court decisions reviewed above that the issue of knowledge as it relates to the act constituting cause of action and the running of time as it relates to limitation statutory provisions is yet to be fully settled. I however feel bound to follow the decisions in Akibu v. Azeez supra and Ajibona v. Kolawole supra not only because the two cases interpreted the provisions of the Lagos Limitation Law of Lagos State which is also the subject of interpretation in this appeal but Akibu v. Azeez is the latest decision of the apex court dealing directly with the issue in contention in this appeal. Further more and more importantly, a critical study of the statement of claim of the appellant will show that no where in its pleadings did the appellant disclose the day, month or year when it got to know that the respondent did not remit money to its account as instructed. The only thing it pleaded was that it was while reconciling its accounts at its headquarters that it was discovered the money was not remitted. The 1st respondent was clearly in the right in asserting that the cause of action had been avoided by the effluxion of time.

This appeal is dismissed with N5,000.00 costs to each of the respondents.

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Other Citations: (2006)LCN/2160(CA)