Unity Bank PLC V. Chief S.U. Nwadike & Anor (2008)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an appeal against the judgment of the Benin High Court delivered by Hon. Justice A.A. AGUN on 19th February, 2002. The court granted all the reliefs sought by the Plaintiffs.
Being dissatisfied, the Respondents at the trial court have now appealed to this court. The facts which led to this appeal are as follows:
In 1975, the 1st Respondent, a Businessman and the Managing Director of the 2nd Respondent’s Company opened an Account No. 5456 with the Appellant.
Subsequently, at the request of Mr. W .J. Anukpe, who was at that material time, the Managing Director of the Appellant, a Partnership for the importation of cement was formed and made up of the 1st Respondent, Mr. W.J. Anukpe and one Dr. G. Orewa as partners. Each partner was to contribute N20, 000.00 (Twenty Thousand Naira) as capital for the Partnership. Mr. W.J. Anukpe and Dr. G. Orewa did not contribute their share while the 1st Respondent provided the bulk of the partnership fund. An Account No. 5570 was opened with the Appellant Bank for the Partnership with the 1st Respondent and one Mr. Eghara, a nominee of Mr. W.J. Anukpe and Dr. Orewa were co-signatories to the partnership account. Following the failure of Mr. Anukpe and Dr. Orewa to pay their share to the Partnership Account, the 1st Respondent removed their nominee, Mr. Eghara as a Director of the Partnership and from being a signatory to the partnership Account No. 5570. The 1st Respondents then withdrew the sum of N35, 000 from it. The Appellant Bank infiltrated into 2nd Respondent’s Bank Account No. 5456 by debiting it and crediting the Partnership Account No. 5570 with the sum of N40, 000.00 whereby the 2nd Respondent’s overdraft facilities on Account No. 5456 was overdrawn by a debit balance of N77, 115.04 as shown in Exhibit “A” dated 16/1/79 by which the Appellant informed the 1st Respondent of the transaction.
Exhibit “A” is at page 160 of the Record.
The Respondents’ case is that when the matter became contentious the then Governor of Bendel State set up the Odaro committee to look into the matter to settle the dispute. The committee persuaded the Respondents to forego the sum of N125, 000.00 on condition that the Appellant would give the Respondents additional credit facility. The Respondents supplied additional collateral but the Appellant refused to extend t he facility. All efforts by the parties to resolve the dispute proved abortive, hence the Respondents filed an action at the Edo State High Court sitting at Benin for the following reliefs by paragraph 33 of the Amended Joint Statement of Claim filed on 12/1/2001.
(33) Whereof the plaintiffs’ claims against the defendants are as follows:-
(a) The sum of N362, 284, 46 being the sum unlawfully removed from the 2nd plaintiff account 5456 by the defendant.
(b) The sum of $1,151,000 US Dollars of (sic) its Naira equivalent as the value of the 100,000 cartons of carnation milk the defendant confiscated from the plaintiffs and sold out.
(c) The sum of $804,000 US Dollars of (sic) its Naira equivalent being the value of the 12,000 matric tone of cement the defendant confiscated from the plaintiffs and sold out.
(d) The sum of N3, 750,000.00 seized or trapped in the 2nd plaintiff’s account No. 5456 by the defendant.
(e) The sum of N150, 000,000.00 being special damages arising from the defendant’s unlawful interference with the plaintiffs account and frustration of the plaintiffs business.
(f) An order directing the defendant to release to the plaintiffs the following title deeds covering the 1st plaintiff’s properties:-
(i) A storey building and a bungalow on the same premises situate at Agbor and registered as 50/50/447 at the Land Registry, Benin City.
(ii) An Hospital known as St. Theresa’s Medical Center situate at Ute-Erumu in Ika North Local Government Area and registered as 44/44/276 at Land Registry, Benin City.
(iii) A developed property situate at Oregbeni Housing Estate with two bungalow registered as 1/1/457 at Land Registry, Benin City.
(iv) The sum of N10, 000, 000.00 for unlawful detention of title documents of the 1st plaintiff since 31/7/80.
(g) The sum of $65,900.00 or its Naira equivalent being the value of the tyres the defendant seized its shipping documents and sold out; after confirming the arrival of same at the Lagos Wharf.
(h) The sum of N5, 000,000.00 as general damages.
(i) 10% interest on the total judgment debt from the date of judgment till liquidation.
Issues were joined and the case went to trial. Both parties called a witness each and tendered Exhibits. At the end of the trial, the learned trial judge delivered a considered judgment and granted the entire Respondents’ reliefs.
The Appellant filed in all seven grounds of appeal. The Respondents filed a notice of cross appeal with initially one ground of appeal challenging the failure of the learned trial judge to make any pronouncement on post judgment interest. The Appellant amended their notice of cross appeal and filed four additional grounds. The appeal and cross appeal were argued together.
Appellant’s counsel distilled three issues for determination also adopted by Respondents’ counsel. They are set out below.
(1) Whether in the light of the Appellant’s pleadings, the evidence on the printed record and submissions of counsel, the learned trial judge was right in failing to consider at all, and to draw the proper and necessary inferences that the Respondents’ action was statute barred and the court lacked jurisdiction to hear it;
(2) Whether the learned trial judge was right in awarding N10 million damages for detinue in addition to an order for the return of the 1st Respondent’s title deeds detained? And
(3) Whether in the circumstances of this case the learned trial judge was right in finding the Appellant Bank liable and granting all the reliefs claimed against it?
The first issue for determination is whether the Respondents’ action was statute barred and the trial court having failed to consider that defence, thus lacked jurisdiction to hear it. Appellant’s counsel Mr. K.S. Okeaya-Inneh Esq SAN argued on this issue that paragraph 23B of the Amended statement of Defence as contained on Pg. 73-77 of the Record states that the Defendant/Appellant “contends that the causes of action and claims in this suit are statute-barred and not actionable”
Learned senior counsel argued that the cause of action in this case arose on 16/1/79 when the Appellant wrote Exhibit A to the 1st Respondent informing the 1st Respondent of the action taken in respect of their account. This was the basis of the cause of action in this suit and thus the cause of action arose on 16/1/79. He submitted that cause of action is defined as the act on the part of the Defendant which gives the Plaintiff his cause of complaint. He cited Egbe v. Adefarasin (1987) 1 NWLR Pt. 47 Pg. 1 at Pg. 20, Alhaji Wadakusada v. Sokoto NA (1968) 1 All NLR 377 at 381
He argued that when an action is said to be statute barred; the party loses the right to enforce the cause of action, as it is in this case, by judicial process, in that the time laid down by the limitation law for bringing such an action has elapsed. He cited Eboigbe v. NNPC (1994) 184 LRCN 54 at 64; Odubeko v. Fowler (1993) 7 NWLR Pt. 308 Pg. 637.
He submitted that by S. 4(1) (a) and S. 4(2) of the Limitation Law Cap 89 Laws of Bendel State applicable to Edo State, an action for an account shall not be brought in respect of any matter which a rose more than five years before the commencement of the action. He argued that even though there were correspondence exchanged between the parties, such correspondence will not stop the time from running as time for negotiation in law will not be excluded from the period which should be taken into consideration for the determination 0 f t he question whether a claim has become statute barred.
He argued further that the learned trial judge found that Exhibit A was the means the Appellant used to interfere with the operation of the 2nd Respondent’s business.
He submitted that from the writ of summons at pages 1 and 2 of the record, the Respondents filed this action on 15/12/95 that is 16 years after Exhibit “A” dated 16/1/79 was written and that was when the -cause of action accrued. He argued that the Appellants have searched in vain and found that nowhere in the four comers of the printed record was the issue as to whether or not the Respondents’ action was statute-barred in this case was considered or adequately considered and determined by the learned trial judge in coming to his decision in this matter despite the pleadings, evidence and submission of Appellant’s counsel on the issue. He argued that the Respondents’ Counsel also addressed the Court on the issue of statute of limitation at page 126, last line through to page 127 lines 1 and 2 of the record. Having embarked on the trial, the learned trial judge was wrong in his failure to consider at all, or adequately consider and draw proper inferences and conclusions on proved facts as to whether or not the action was statute-barred, especially as the issue was properly raised and canvassed before him.
Counsel further submitted that the failure of the trial judge to consider the issue of jurisdiction has occasioned a serious miscarriage of justice in this case. He argued that the learned trial judge was bound to resolve the issue of jurisdiction and that on the failure of the trial judge to do so; the Appellate court must resolve the issue. He cited Akese v. Akpabio (1935) 2 WACA 264 Barclays Bank v. CBN (1976) 2 FNR 129; Oloba v. Alereja (1988) 3 NWLR Pt. 94 Pg. 508 at 520, Att Gen Lagos v. Dosunmu (1989) 3 NWLR Pt. 111 Pg. 552 at Pg. 566
Counsel argued that this court on its own motion or as raised by counsel can decide this pertinent issue of jurisdiction. He cited Inua v. NTA (1961) 1 All NLR Pt. 4 Pg. 576 at 577; Otegbade v. Adekoya (1962) 2 All NLR Pt. 1 Pg. 52 at 53.
Appellant’s counsel also made a passing but not serious contention that the claim of the Respondents centers on banking operation covered by the Companies and Allied Matters Act. He cited Leventis Technical v. Petrojessica (1992) 5 NWLR Pt. 224 Pg. 675
Learned Respondents’ counsel Mr. S.A. Asemota SAN who filed the brief on the first issue of whether the Respondents’ case was statute barred and the implication of the learned trial judge’s failure to pronounce on that issue, submitted that the mere failure of the trial court to evaluate an aspect of evidence adduced before it does not make the entire judgment of the court a nullity or result in an Appellate court allowing the appeal. He argued that this court can evaluate evidence and make a finding on whether or not the Respondents’ action was statute barred. He cited Bassil v. Fajegbe (2001) 11 NWLR Pt. 725 Pg. 592, at Pg. 598-599. He submitted that the Respondent action was not statute barred. He argued that the position of the law that in considering whether an action is statute-barred negotiations between parties will not stop the time from running, is subject to the qualification that where there has been admission of liability during negotiations and all that remains is fulfillment of the agreement, it cannot be just and equitable that the action would be barred after the statutory period of limitation giving rise to the action of the Plaintiff were he to resile from his agreement during the negotiations. He cited the following cases
(a) NWADIARO VS. SHELL PET. DEV. CO. LTD. (1990) 5 NWLR PT. 150 Pg. 322
(b) NIGERIA CUSTOMS SERVICES VS. BAZUAYE (2001) 7 NWLR (PT 712) PAGE 357 AT 363 A-C
(c) EBOIGBE VS. NNPC (1994) 5 NWLR Part 347 Pg. 649 at (Pg. 665 Para G-H)
He argued that paragraphs 16, 16a & 17, & 18 of the joint Amended statement of claim copiously pleaded and the 1st Respondent in evidence on oath proved facts showing that this action had been negotiated and settled by the parties but that the Appellant reneged from the agreement by failing to fulfill its own obligations arising from the settlement. He argued that the Appellant instead of abiding by the terms of settlement of the Odaro committee started playing tricks on the Respondents. While the Appellant was pretending to keep faith, time started to run against the Respondents. All attempts by the Respondents to make the negotiated agreement work were frustrated by the Appellant. He submitted that the Respondents were tricked into believing that the Appellant would abide by the decision of its top management arrived at jointly for the Respondents to forego some money and for the Appellant to extend credit subject to collateral. He submitted that it would not be in the interest of justice to allow the Appellant to go scott free with ruining the Respondents’ business. He cited Kolawole JCA in Nwadiaro v. Shell Petroleum Dev Co Nig Ltd supra.
Counsel argued that it was when the Governor advised the 1st Respondent by Exhibit S dated 23-7-90 that the Respondents should go to court that the Respondents filed this action. Counsel also argued that it is on printed records, on page 30 Lines 15-30 that it was on or about the 28th day of January, 1991 when the Respondents received the Appellant’s letter dated the 28th day of January, 1991 placing the Respondent’s Account No. 5456 in debit to the tune of N362, 284.46k that kick started the problem or dispute between the Respondents and the Appellant which lead to the revelations that all previous transactions on the said account were incorrect. Hence the institution of this suit on the 15th day of December, 1995. He argued that between the 28th day of January, 1991 and the 15th day of December, 1995 when the Plaintiff instituted this action, the period is less than six years as to be caught up with the Statute of Limitation as prescribed by Law. He submitted that time only started accruing after the 28th day of January, 1991.
Learned senior counsel for the Respondents argued that issue one submitted for determination was not distilled from the original grounds of appeal filed on 15/3/02 but from the additional grounds of appeal filed on 19/11/2003, which grounds of appeal are incompetent for the following reasons. In the first instance, the trial court had on 19/6/2000 dismissed the Appellant’s challenge of the court’s jurisdiction for reason of the action being statute barred. The Appellant has not appealed against the ruling which was a final decision. He cited the following cases:
(1) WESTERN STEEL WORKS LTD. V. IRON AND STEEL WORKERS UNION (1986) 2 NWLR 617.
(2) AGBAJE V. ATTORNEY GENERAL OF THE FEDERATION (1986) 2 NWLR 528.
(3) AKINYEMI V. U.B.A. (1986) 4 NWLR 273.
(4) OWONIBOYS TECHNICAL SERVICES LTD. V. UNION BANK OF NIGERIA (2003) 9 MJSC, 38 at PP. 47 – 48, para E – P
(5) MOHAMMED V. OLAWUMI (1990) 2 NWLR 458 at 475.
Counsel argued that Appellant’s counsel did not seek leave of this court for an order of extension of time within which to appeal out of time against the ruling of the trial court dated 19/6/2000, but applied straight for extension of time to file additional grounds of appeal based on that ruling when no extension of time had been sought or granted for the Appellant to appeal against the ruling whereas they were to appeal within 3 months of the ruling, they n ever appealed which is contrary to S . 242 of the 1999 Constitution and the Court of Appeal Act, 2004.
He further submitted that the two grounds of appeal are incompetent and should be struck out since there is no valid appeal from which the grounds emanate. He also argued that the grounds are grounds of mixed law and fact for which leave of this court is required to appeal. He cited THOR LTD. V. FIRST CITY MERCHANT BANK (2003) 4 M JSC 179 at 188; AGOKA V. AMADI (1998) 11 NWLR PT. 572 pg. 16, OBA FELIX ABIDOYE V. OBA JACOB ALA WODE (2001) MJSC
- He urged this court not to countenance the attempt of the Appellant to reopen a decision not appealed against after 2 years and 9 months without an order of this court extending the time to appeal and without seeking leave to do so since their grounds are stated to be of mixed facts and law. He cited WESTERN STEEL WORKS LTD V. IRON STEEL WORKERS UNION (1986) 3 NWLR 617. AGBAJE V. A.G.F. (1986) 2 NWLR at 528; AKINYEMI V. UBA LTD, (1986) 4, NWLR 273 and MOHAMMED V. OLAWUMI (1990) 2 NWLR 458 at 475. Section 25(2) (a) of the Court of Appeal Act. AUTO EXPORT V. J.A.A ADEBAYO & 2 ORS. (2003) 2 MJSC 44 at 52-53 paras. G – A and pages 53 – 54, paras G – A.
He submitted that since the leave to file additional grounds of appeal granted to the Appellant is not linked to any valid notice of appeal, and you cannot build something on nothing, the issues based on an invalid ground of appeal are incompetent and a nullity. He cited MCFOY V. U.A.C (1962) AC 152 at 160. He urged this court to strike out Exhibit NNBL in the absence of any validly amended notice of appeal as they were mere proposals.
The Appellant’s counsel in the Reply brief argued that the Appellant is quarreling with the trial court’s failure to consider the point of law – statute bar raised by it and not the issue of evaluation of evidence. H e argued that an issue of law can be taken at any time. He cited INUA V. NTA supra and COMMISSIONER OF LANDS V. ARAH (1964) 14 WACA Pg. 510 at 511.
Let me first of all deal decisively with the kite flown by the Appellants counsel that this case is governed by the Companies and Allied Matters Act. The courts have settled the issue that a banker customer relationship is purely a contractual one governed by the common law of contract which the State High Courts have jurisdiction. See NDIC V. OKEM ENTERPRISES LTD (2004) 10 NWLR PT. 880; Pg. 107; ASSOCIATED DISCOUNT HOUSE LTD V. A. T. LTD. (2006) 10 NWLR PT. 989 PG. 635.
The State High Court had the jurisdiction to adjudicate on this case. The Respondents brought an application granted on 17/4/07 for an order allowing the ruling of the learned trial judge delivered on 30/6/2000 to form part of the records of proceedings in this appeal.
The Appellant asked the learned trial judge to dismiss the suit on grounds of law to wit:
“(a) That the numerous claims in this action are founded on alleged transactions and default between the parties in years 1976 to 1984.
(b) That the numerous transactions, events or claims constitute different causes of actions and claims which arose at different periods, please (sic), on different occasions and the suit is incompetent in law.
(c) That the alleged transactions default, claims and/or caused of action arose in the years 1976 to 1984 are statute barred and not actionable.”
The learned trial judge considered the issue of joinder of several causes of action and cited authorities relating to joinder of parties and concluded that the application was unmeritorious -and dismissed same. The learned trial judge made no allusion in the ruling whatsoever to the issue of the action being statute barred.
The argument of learned Respondent’s counsel is that the Appellant did not seek leave to appeal out of time against the ruling and that since the additional grounds of appeal emanated from the ruling, they are incompetent by virtue of S. 242 of the 1999 Constitution.
It is my view that the Appellant appealed against the final judgment of the learned trial judge and raised the issue of statute bar again since there was no finding or decision on that question by the learned trial judge in both the interlocutory ruling and the final judgment. It is trite that grounds raising issues of mixed law and facts in an appeal against an interlocutory decision are not competent without prior leave of court first sought and obtained. See CHIEF NWOSU V. OFFOR (1997) 1 SCNJ 19.
Ordinarily, if the Appellant had appealed now against the ruling which he should have done within 14 days of its delivery, it was essential to come by way of the trinity prayers since it was an appeal requiring leave where time within which to lodge appeal had expired. See THE NIGERIAN AIR FORCE V. WING COMMANDER TLA SHEKETE (2002) 128 SCNJ 35
That is not the situation here. The Appellant appealed against the final judgment of the lower court and whether the grounds are of mixed law and facts, no leave to appeal need be sought. See S. 241 (a) of the 1999 Constitution. This is different from S. 233 (2) (a) of the 1999 Constitution which relates to appeals to the Supreme Court in which case be it final or interlocutory, where the decision appealed against is of mixed law and fact, leave of the Supreme Court must first be sought and obtained to make the grounds of appeal competent. See OJO ADEBAYO V. MRS. F. IGHODALO (1996) 5 SCNJ 23.
If as learned Respondents’ counsel insists, the additional grounds are a challenge to the interlocutory decision of the lower court, the Supreme Court held in OWONIBOYS TECHNICAL SERVICES LTD V. UNION BANK LTD (2003) 15 NWLR PT. 844 PG. 545 at 592 – 593 that some interlocutory decisions may not be challenged as at when due but may become matters to be included in the appeal against the final judgment particularly when the issue is an integral part of the structure of the case presented by the party at the court of first instance. Ejuwunmi JSC who wrote the lead judgment had a slightly different view. Mohammed JSC, Kalgo JSC did not proffer an opinion. However Katsina-Alu JSC and Uwaifo JSC had an opinion on the issue which is what I have reflected above. In the case at hand the issue of statute bar had been an integral part of the Appellant’s case at the lower court. All the cases cited by learned Respondents’ counsel are not quite helpful in the circumstances of this case and do not avail the Respondents.
Furthermore, it is pertinent to note that while the original appeal is governed by the provisions of the Court of Appeal Act, the filing of additional grounds of appeal is governed by the Court of Appeal Rules. Thus the principles of law as to when to file each and the effect of non-compliance differ. While non compliance with the Act is fatal, non-compliance with the rules is a mere irregularity. See TSOKWA OIL MARKETING CO. NIG V. BANK OF THE NORTH (2002)5 SCNJ 176.
On this point, it is my view that the additional grounds of appeal are competent being raised against a final decision of the lower court. Both counsels are agreed on the fact that by the general powers conferred on this court by S.15 of the Court of Appeal Act 2004 we are entitled to revisit the facts of this case and make appropriate findings of fact. The first issue raised by the Appellant calls for the exercise of our powers and we shall do same.
ISSUE 1.
In this case, the Appellant’s argument is that the cause of action arose on 16/1/79, the date of Exhibit A which letter informed the Respondents that t he Appellant had infiltrated his company account and put same in debit. If that contention is accepted, the action of the Respondents was statutes barred are the failure of the learned trial judge to consider it led to a miscarriage of justice. On the other hand, the Respondents claimed that by Exhibit C and D dated 5/3/80 and 10/3/80 respectively, terms of settlement had been negotiated and settled by the parties. However, after the negotiation in March, 1980, and the letter written to the Respondent Exhibit C – titled “your application for a new overdraft 1imit – Account 5456” and Exhibit D titled “Approval of new overdraft limit of N125, 000 – Account No. 5456” the Appellant continued to deceive the Respondent that it would fulfill its part of the negotiation but failed to do so over the following years. The Respondents’ case is that it was on or about the 28th day of January, 1991 that the Respondents wrote the Appellant a letter Exhibit F asking for a statement of account 5456 from January 1975 to 1988. That the Appellant replied with Exhibit G and in Exhibit H – H36 and showed that the 2nd Respondent’s account was in debit to the tune of N362, 284.46k bringing to the Respondents’ knowledge for the first time that the transactions in the account were incorrect, thus the cause of action arose with Exhibit G – the Appellant’s letter and Exhibit H – H36.
The learned trial Judge did not directly address this issue of when the cause of action arose, but concentrated on determining whether or not after the negotiation settled by Exhibit C & Exhibit D, the Appellant reneged on its obligations as negotiated and refused to grant the overdraft facilities it offered. The finding of the lower court seems to be that the cause of action arose In 1980 with the offer of overdraft facilities by the Appellant to the Respondent in Exhibit D when the court found on page 139 of the record as follows:-
“In view of what has been said, I have no hesitation in coming to the conclusion that the transaction as between the plaintiff and the defendant as regards the overdraft facilities still remained in the realm of offer of the loan by the defendant as per Exhibit “D” and that there was acceptance of that offer by the 2nd plaintiff when the 1st plaintiff deposited his title document with the defendant, the defendant did not grant the loan to the plaintiff there was therefore no consideration flowing from the defendant hence it is my firm and considered view that there was no contract between the parties for the deposit of the title documents because the defendant has not performed its own part of the bargain and I so hold. In my view of this finding, there is no doubt whatsoever that the continued detention of the plaintiff’s title documents constitutes a wrong and the action of the defendant is illegal in the circumstance of this case, more so when there was a demand by the 1st plaintiff for his time documents and refusal by the defendant.”
This finding clearly indicates that the cause of action arose after the Appellant reneged on its own part of the contract to grant overdraft facilities in 1980.
That finding has not been challenged through a cross appeal by the Respondents. I quite agree with that finding of the learned trial Judge. It is obvious that the whole controversy between the parties was triggered off on 16/1/79 by the actions of the Appellant communicated b)’ Exhibit A. Negotiation does not stop the period of limitation from running See MKPEDEM v. UDO (2000) 9 NWLR Pt. 673 Pg. 631. Let us even assume that by Exhibit C and D the negotiated terms of settlement means that time began to run in March 1980 the dates on Exhibit C & D. Then, the offer and acceptance to give credit facilities took place in March 1980. It was the failure to credit the account with overdraft facilities – as the Respondents claimed that allowed the account to fall into that amount of debit contained in Exhibit H – H36. In this case we are entitled not only to consider the statement of claim but since evidence has been led, to consider the evidence in order to determine when the cause of action arose and to make our own findings of fact. The evidence shows that there was continuous interaction between the Respondents and the Appellant between 1980 and 1991 when he received the statement of account Exhibit H – H36 and between 1991 and 1995 when he instituted this action.
An appeal is by way of rehearing and the first issue for determination calls on us to apply the law to the uncontroverted facts before the lower court and decide the issue accordingly more so where in this case the learned trial judge made no specific findings of fact as to whether the action was statute barred or not.
All the various acts of willful attempts by the Appellant to ruin the Respondents business as claimed by the Respondents had taken place by 1986.
I will itemize them seriatim:
(1) Exhibit B to B2 was the Respondent’s cheques dishonored by the Appellant dated 17/8/99, 28/2/80 and 29/2/80.
(2) Exhibit L – LI the import license to import cement was dated 21st December 1979.
(3) Exhibit NI – N4, the letter forwarding form M to the Appellant and Forms M were dated January 23rd 1980.
(4) Exhibit 0 – 03 – the confirmation of import license was dated July 1986.
(5) Exhibit P – the letter in respect of freight payment for tyres was dated 16th September 1986.
(6) Exhibit J – is the letter from National Bank in respect of the Respondents’ attempt to transfer its assets and liabilities from the Appellant Bank to National Bank. It was dated 1st April 1981.
(7) Exhibit V – is a letter of demand from the Appellant to the Respondents in respect of outstanding indebtedness to the tune of N263, 606.33 dated 23rd May 1986.
In my view any of the above incidents one of which was when the Appellant purportedly frustrated the Respondents by confiscating their imported cement and milk and otherwise making them to suffer financial loss was a complete set of facts that would give rise to a cause of action. All the incidents recited by the 1st Respondent as constituting the basis of his claim were not incidents that happened within 6 years of bringing the action. In relation to Exhibit N to N4 dated 23/1/80, the Appellant had confiscated the Respondents’ goods since 1980. The goods imported with Form M were also confiscated in 1980. According the evidence of the 1st Respondent the tyres imported by him through Exhibit 01 to 03 with Bill of lading Exhibit P dated 23/4/86 worth Sixty Five Thousand, Nine Hundred US dollars was confiscated and sold by the Appellant within three weeks. Meanwhile incredibly the Respondent did nothing from 1986 to 1995 when he filed the action.
On page 148 of the record the trial judge made this finding:
“For reasons highlighted, in the judgment, I accept the plaintiff’s case based on the overwhelming documentary evidence that is that the carnation milk, Portland cement and tyres were imported by the 2nd plaintiff. The defendant handled the importation, received the goods on arrival at the Ports, sold the goods without any benefit to the 2nd plaintiff, I entertain no doubt whatsoever that the testimony that the testimony of the 1st plaintiff is more in consonance with the truth of this transaction.”
The learned trial Judge found that the Appellant handled importation of goods for the Respondent. As I said earlier, we are here at this point while considering the issue of jurisdiction not concerned with the merit of the case but concerned with whether even if the claim were very meritorious it could still be maintained before the courts. As I said earlier none of the incidents claimed by the Respondents happened after 1986, and he did not take legal action until 1995.
The Appellant had raised the issue that this action was statute barred in paragraph 25B of their Amended Statement of Defence. However, the learned trial judge did not at all address this germain issue which affects the jurisdiction of the court in his judgment.
Time starts to run in limitation of actions when all the facts which constitute the plaintiffs cause of action have happened. See N.P.A. V. ABU AIRADION AJOBI (2006)7 SCNJ 168. The Respondents deposited title deeds as collateral since 1980 for overdraft facilities. According to him on page 61 of the record
“after making available these properties to the defendant and depositing it with the defendants. They did not give me any overdraft. They not return the title documents neither did they vetre (sic) my account that was frozen. They did not give me the overdraft as of N400, 000 as promised, and they refused to vestre (sic) my title documents. Thereafter I became apprehensive and wrote the defendants on 28/1/91 requesting for 2nd plaintiff statement of account No. 5456 from January 1975 to 1988.”
I find it incredible that a businessman would not know the state of his business account from 1980 to 1991. It was either there was a valid contract and a business deal or not, there cannot be appearance of it. If the Respondents deposited title deeds since 1980, he was remis in not taking action to demand them back within six years if he did not gain anything there from.
The learned trial judge found that the Appellant did not only renege on the contract to grant overdraft but proceeded over time to do certain things to frustrate the Respondent’s business.
The jurisprudence of the doctrine of statute bar as encapsulated in the various limitation laws is that no matter how creditable or good a claim is, when it is not brought timeously, it abates and no relief can validly be sought to enforce a stale claim. As this court held in NWADIARO V. SHELL PETROLEUM supra, persons with reasonable cause of action should pursue them with reasonable diligence. See also OBA AREMO II V. S.F. ADEKANYE (2004) 7 SCNJ 218.
It is my humble view that between 1980 and 1986, all the facts which constitute the Respondents’ cause of action had happened. See N.P.A. V. ABU AIRADION AJOBI (2006) 7 SCNJ 168, ELABANJO V. DAWODU (2006) 6 SCNJ 204. We are here obliged to look at the date pleaded by the Respondents and the evidence led by the 1st Respondent during the trial which fixes the period of all the incidents leading to the cause of action between 1980 – 1986. The Respondent based the totality of his claim on the fact that he was unaware that his account was in debit between 1980 – 1991 when he was given Exhibit H – H36 that is in my view an incredible argument which only the credulous will swallow.
I have no hesitation in making the finding that the cause of action arose in March 1980 when parties negotiated their disagreement which was sparked off by Exhibit A, whereas this action was filed on 15/12/95 a period of more than fifteen years.
It is apt to note that the facts of this case can be clearly distinguished from the specie of cases like UNION BANK V. ODUSOTE BOOKSTORE LTD (1994) 3 SCNJ 1 and recently UBA LTD V. BTL INDUSTRIES (2006) 12 SCNJ 17.
In those two cases, the Supreme Court saw clearly that in a case of International commercial transactions involving multiple institutions and in which a third party was involved, that is, the Central Bank of Nigeria with whom the customer had no privity of contract, the Banker deliberately withheld the funds of the customer with the excuse that it was held by the Central Bank and thereby caused huge financial losses to the business of the customer. The Supreme Court held especially in the case of UBA V. BTL INDUSTRIES that in an action for negligence and breach of contract the cause of action accrues when the claimant becomes aware of the commission of the wrongful acts required to constitute the cause of action.
In UBA V. BTL INDUSTRIES, the Bank – Appellant had deceitfully concealed from the Respondent the fact that Central Bank had returned money meant to be transferred on behalf of the Respondent to the Appellant for several years. The Respondent – customer did not stumble on the fact that its funds were being wrongfully held by the banker for several years. The Supreme Court held that the cause of action arose at the time the BTL was aware that UBA rather than Central Bank deceitfully held its funds.
If the Respondents’ case had been that Exhibit H – H36 the statement of account was a rude awakening since there were no previous problems with the business relationship or previous controversy as to the state of account etc. then the cause of action would accrue when Exhibit H – H36 was given to the Respondents. However, the case made throughout has been that the cause of action arose with Exhibit A and subsequent unpleasant events covering 1980 – 1986 followed.
If the case of the Respondents’ case had been one of concealed fraud against the Appellant, it would be a different thing. Length of time is not a bar in the absence of lashes on the part of a person defrauded. Lashes cannot start to operate until the person defrauded is aware of the fraud against him. See MICHEAL AROWOLO V. CHIEF TITUS IFABIYI (2002) 2 SCNJ 96.
I agree with learned Appellant’s counsel that the failure of the learned trial judge to resolve the issue of jurisdiction had led to a miscarriage of justice. I agree with learned Appellant’s counsel that by the provisions of S. 4 (1) (a) and 4 (2) of the Limitation Law Cap 89 Laws of the Bendel State 1976 now applicable to Edo State, the action should have been filed within six years when the cause of action arose and is thus statute barred, incompetent and the lower court had no jurisdiction to hear it.
The effect of finding that an action is statute barred is to make an order of dismissal. See NPA V. LOTUS PLASTIC LTD. (2005) 12 SCNJ 165. In the circumstances the first issue is resolved against the Respondents and the action is liable to be dismissed.
“Being the penultimate court, we are obliged to consider the other issues for determination in case we are found by the highest court to be wrong on the issue of jurisdiction. I must observe first of all, however, that based on the evidence of the 1st Respondent the claim in respect of detinue is also statute barred. The claim of the Respondents is that the Respondents’ title deeds were submitted tot he Appellant consequent on Exhibit C & D in 1980 and the Appellant had refused despite repeated demands to return them. One specific occasion was when the 2nd
Respondent attempted to transfer its liabilities to National Bank of Nigeria in 1981 and the Appellant frustrated the attempt – see Exhibit J.
In an action for detinue, limitation period begins to run after demand and refusal have been accomplished. See NZE BERNARD CHIGBU V. TONIMAS NIG. LTD & ANOR. (2006) 4 SCNJ 262.
The second issue for determination is whether the learned trial judge was right in awarding N10 million damages for detinue in addition to an order for the return of the 1st Respondent’s title deeds detained. Learned Appellant’s counsel submitted that a claim in detinue is a claim for the return of the specific goods and not for damages for detaining same. He conceded that where damages are sustained and proved, for the failure to deliver the goods or chattels, then the court will award damages. He argued that there is no evidence that the title deeds detained were worth N10 million or that the loan facilities was worth N10 million. He argued that the title deeds were deposited as collateral for overdraft facilities which were yet to be repaid. He cited ODUMOSU. V. AFRICAN CONTINENTAL BANK (1976) 2 FNR 229 at 220.
Learned Respondent’s counsel submitted vehemently that the tort of detinue is defined as a wrongful detention of a plaintiff’s chattel by the defendant which is evidenced by the refusal of the defendant or his agent to deliver the chattel up on demand. He cited ALICIA HOSIERY LTD V. BROWN SHIPLEY (1970) 1 QB 195. LABODE V. OTUBU (2001) 7 NWLR PT. 712 PG. 256 AT 276. He submitted that in LABODE V. OTUBU, it was held that in detinue cases, the trial court had three choices in the type of order to make. He submitted that the learned trial judge in this case was right in making an order for the release of the title deeds and the award of damages for the long detention since 1980. He argued that the Respondent was entitled to the N10 million damages because of the adverse effects the detention of the Respondent title deeds had on the business of the defendant.
On the award of damages for detinue the learned trial judge held on page 156 of the record as follows:-
“On the issue of damages for detinue it is plain to me that the available evidence supports the finding that when defendant refused to grant overdraft facilities to the 2nd plaintiff approached National Bank for grant of overdraft facilities to enable 2nd defendant continue in business – that 2nd defendant refused to realize the document upon demand by 1st plaintiff (Exhibit J, JI and K) I am satisfied that this is a factor to be taken into account in assessing damages for detinue, upon a consideration of the facts proved in evidence I make an award of N10 million Naira for detention of 1st plaintiff’s title documents since 31/7/80.”
It seems to me that in this case, the Respondent’s claim showed that he sought remedy for the tort of detinue and breach of contract. In this case, the same set of facts gave rise to the Respondents’ entitlement to both remedies. See MARTCHEM INDUSTRIES NIG. LTD. V. M.F. KENT WEST AFRICA LTD (2005) 5 SCNJ 235.
The case of the Respondents had been that the Appellant was in breach of their negotiated agreement to give him additional facilities for which he submitted his title deeds. Respondents’ case is that the facilities were not given nor the title deed returned after repeated demands.
If we accept the Respondents’ claim as true and uphold the finding of the trial judge, the Respondents are entitled to both the return of the detained chattels or award of money for its value and damages for breach of contract. See MARTCHEM INDUSTRIES V. KENT cited supra. It may be observed that the Appellant has not quarreled with the quantum of the damages but the duplication in the order for return of the goods and award of damages. We shall say nothing about that.
As I have found earlier in this judgment, it is my firm belief based upon the pleadings, the evidence adduced and the findings of the learned trial judge that this action is statute barred by the Limitation Law of Bendel State now applicable in Edo State and the trial judge had no jurisdiction to hear it. The 2nd issue is resolved against the Respondents for the Appellant.
The Respondents filed a notice of cross appeal, the original sole ground of which was the failure of the learned trial Judge to make an award of post judgment interest. The Cross Appellant later filed four additional grounds of appeal against the judgment of the trial court.
Subsequently, the Respondents filed an amended Cross Appellants’ brief wherein five issues were raised for determination. Issue one is whether the learned trial judge was right in his failure to make any findings or pronouncement on the issue or question of interest as claimed by the Respondents in paragraph 33(i) of the Cross/Appellants’ amended statement of claim.
Issue two is whether the Cross Respondent filed a valid statement of defence in the court below. Issue three is whether the amended statement of defence which was filed out of time without payment of requisite fees was valid. Issue four is whether in the absence of a valid ground of appeal, the Appellant can rightly raise issues of limitation or statute bar. Issue five is whether parties can by consent enlarge or abridge time to file any document.
Cross appellant’s counsel argued that the Cross Appellants demanded for the relief of 10% post judgment interest, since the Cross Respondent did not in pleadings or evidence deny or challenge this relief, the lower court was bound to give it. He cited ASHAFA V. ALRAINE (2000) 1 MJSC 23, FORTUNE INTERNATIONAL BANK PLC V. PEGASU TRADING (2004) 4 MJSC 173, 188. ALHAJI USMAN BUA V. BASHIR DAUDA (2003) 9 MJSC P. 173 AT 192 PARAGRAPHS D – E,
F.C.D.A. V. ALHAJI MUSA NAIBE (1990) 3 NWLR (PT 130) 270 AT 281; PROVOST LAGOS STATE COLLEGE OF EDUCATION & ORS V. DR. KOLAWOLE EDUN & ORS (2004) 4 MJSC P. 94 AT 108 PARAGRAPH G AND ALHAJI ABULKADRI DAN MAINAGGE V. ALHAJI ABDUKADIR ISHAKU GWAMMA (2004) 12 MJSC 34 AT 45 PARAGRAPH A – C; INTERNATIONAL BANK OF WEST AFRICA LTD V. IMANO (NIG) LTD & 1 OR. (2001) 2 MJSC 1 AT 22 PARAGRAPH A – D; F.C.D.A. V. NAIBI (1990) 3 NWLR (PART 130) 270 AT 281; U.B.N. LTD OGBOH (1995) 2 NWLR (PART 380) 647; INSURANCE BROKERS OF NIGERIA V. A.T.M CO. LTD (1996) 8 NWLR (PART 466) 316 AT 327; ANDREW NWEKE OKONKWO V. COOPERATIVE AND COMMERCE BANK (NIG) PLC & 2 ORS (2003) 6 MJSC 122 AT 168; OLALE V. EKWELENDU (1989) 4 NWLR (PART 115) AT 321; HIMMA MERCHANTS LTD V. ALHAJI INUWA ALIYU (1994) 6 SCNJ 87 AT 94 LINES 35 – 40; JACOB A. JOLAYEMI & ORS V. ALHAJI ALAOYE & 1 OR. (2004) 9 MJSC 93 AT 106 PARAGRAPH F-G; OVERSEAS CONSTRUCTION LTD V. CREEK ENTERPRISES LTD (1988) 3 NWLR (PT 13) 407 AT 411; AFRICAN CONTINENTAL SEAWAYS LTD V. NIGERIA DREDGING ROADS AND GENERAL WORKS (1977) 3 SC 235 AT 250.
The learned Cross/Appellant’s counsel submitted that in view of the fact that there is no challenge to this relief, this court should exercise its powers under S. 16 now S. 15 of the Court of Appeal Act 2004 by making an order of post judgment interest at 10% from the date of judgment until the entire judgment debt is liquidated.
Learned Cross/Respondent argued in reply that the cross appellant did not lead evidence to back up paragraph 33 (i) of the Amended Statement of Claim and that pleadings not backed by evidence go to no issue. He cited OLARENWAJU V. AFRIBANK PLC (2001) 13 NWLR PT. 731 Pg. 691. He submitted that the Cross/Respondent having denied the plaintiffs’ averment in paragraph 2 5A of the A mended Statement of Defence, the onus is on the Cross Appellant to adduce evidence for the court to evaluate. He cited KYARI V. ALHAJI (2001) 11 NWLR PT. 724 Pg 17; LAWAL V. PGP NIG (2001) 17 NWLR PT. 724 Pg 393.
He submitted that the cause of action guides the award of post judgment interest and that since the cause of action is founded on contract based on banker customer relationship and not a liquidated demand, then the cross appellant is not entitled to post judgment interest. He argued that this is unliquidated demand for which the court is obliged to assess the damage or loss before making an order. He cited MAJA V. SAMOURIS (2002) 7 NWLR (PT. 765) Pg 78; COOPERATIVE BANK V. ESSIEN (2001) 4 NWLR PT. 704 Pg 483.
Both counsel have argued this issue as if it was a matter of contractual or pre judgment interest. Any claim for contractual interest must be based on the terms of the contract, equity or the commercial customs relating to that type of contract, that is where the need to adduce evidence in proof of such a claim a rises. In JALLCO V. OWONIBOYS (1995) 4 NWLR Pt. 391 Pg. 534, the Supreme Court held that state laws provides for payment of interest on judgment debt. The issue here is post judgment interest which is usually provided for by the High Court Civil Procedure Rules of each State. In BERLIET NIG LTD V. KACHALLA (1995) 12 SCNJ 147 the Supreme Court held that it could not have been the intention of the learned trial judge to allow the judgment debtor to escape from his just liability by refusing to pay judgment debt indefinitely. In TEXACO OVERSEAS NIG PETROLEUM CO. UNLIMITED V. PEDMAR NIG LTD (2002) 7 SCNJ 358, the court held that in a claim for post judgment interest, rate of award must not be more than rate provided for in the Rules of Court. A judgment debt in which there is no order for interest is called a present debt and power is conferred on the courts subject to the Rules of court to order post judgment interest by virtue of the provisions of the rules of court. See SABBAGH BROS V. BANK OF WEST AFRICA (1966) 1 ALL NLR 240. In essence, post judgment interest where deserved is a right. However, in this case, as held in the main judgment, the Cross Appellant is not entitled to judgment, let alone post judgment interest. This issue is resolved in favour of the Cross Respondent.
Issue 2 is whether the Cross Respondent ever filed a valid statement of defence. Cross Appellants’ counsel argued that the Cross Respondent did not first seek extension of time to file the statement of defence out of time. Cross Respondent’s counsel in reply argued that the trial court granted the cross respondent leave to file its defence out of time by motion of 4/11/97 in compliance with Order 22 Rule 3 (1) of the High Court Rules. Counsel also argued that the Cross /Respondent is in court having complied with the provisions of Order 26 Rules 6 of the High Court Rules.
On my perusal of the record I found that page 17 of the record contains the Cross/Respondent’s motion for extention of time to file statement of defence. Therefore the statement of defence of the Cross/Respondent’s was properly filed before t he lower court and the ground that it is not a valid process is hereby dismissed as being misconceived. That issue is resolved in favour of the Cross Respondent.
Cross Appellants’ counsel in issue 3 raised the question of the validity of the amended statement of defence due to the non payment of appropriate filing fees. The amended statement of defence was filed on 1/3/2001 dated 13/12/1997. Cross Respondent’s counsel replied that as a matter of fact and as shown on page 77 of the record, all appropriate fees were paid for the motion and the amended statement of defence. In view of the fact that cross appellant’s counsel did not state which process was unpaid for – i.e. the motion to amend or the amended statement of defence and how much was the shortfall, I have to arrive at the conclusion that that issue is also of no moment. I must say here that even if there is evidence that appropriate filing fees were not paid, I would not at this stage jettison the hearing of this appeal on the merit for such a cause but make an order that the party in default should go back to the lower court and pay the appropriate fees. These are issues better raised before the trial court in good time. That issue is also resolved in favour of the Cross Respondent.
Issues 4 & 5 both turn on whether the Cross Respondent can validly raise the issue of statute bar when there is no valid notice of appeal or valid ground of appeal and secondly whether the two additional grounds of appeal filed outside time allowed to appeal is not contrary to S.25 (2) of the Court of Appeal Act. I think that issue having been exhaustively dealt with in the main appeal there is no need to rehash same in this Cross Appeal. See. BHOJSONS PLC V. GEOFFREY K. DANIEL-KALIO (2006) 2 SCNJ 156.
In sum, there is no merit in any of the issues raised in the cross appeal and it is hereby dismissed.
It is my firm and humble belief that this action being statute barred, the learned trial judge had no jurisdiction to entertain same. The judgment of the learned trial judge is hereby set aside. The appeal is meritorious and it is hereby allowed.
I shall make no order as to costs.
Other Citations: (2008)LCN/2823(CA)
