Whether Action Is Statute Barred How Determined III

669

The learned Counsel for the appellants nominated three (3) issues for determination: They are:

“1. Whether having regard to the averments in Plainiff’s pleading (in the 2nd amended statement of claim the reply to the 3rd defendant’s statement of defence) and the defendants admission that plainff’s action is founded in tort and contract, the learned trial Judge was right to hold that plantiff’s cause of action is founded in tort of seizure conversion and detinue along and to lump together the two causes of action in contract and tort in computing the date of accrual of plaintiff’s causes of action.

2. Whether having found (as he did) that plaintiff’s action was (equally) founded on tort of detinue and conversion, the learned trial Judge was right to hold that the cause of action accrued in 1982 and was barred 6 years thereafter, without regard to the admitted disability of plaintiff by reason of his imprisonment at Kaduna, the fraud perpetrated on plaintiff by 1st and 2nd defendants while in prison and the principles/rule of definte demand and definite refusal governing computation of date of accrual of cause of action in detinue/conversion.

3. whether the learned trial Judge was right in not hearing the suit on the merits and receiving in evidence the contract agreement of 20/11/1978 or and in dismissing the action instead of striking it out.

The 1st to 3rd respondents on the other hand formulated two issues:

“1. Whether the trial court was right when it distilled only the tort of detinue and conversion from the statement of claim as the only cause of action that arose for determination and decided same on the plaintiff’s pleadings only.

2. Whether under the circumstances of the case and in line with the applicable law the trial court was right in dismissing the suit”.

On issue 1, learned counsel for the appellant submitted that in coming to his judgement that appellant’s action is founded in tort of detinue and conversion, the learned trial judge simply isolated and relied on few paragraphs of appellant’s pleadings, neglected to take into consideration all other relevant paragraphs of appellant’s case (thereby) completely misunderstood the (purport of the) averments in appellant’s case.

Council submitted that to fully appreciate appellant’s pleading and nature of his claim, the learned trial Judge apart from the reliance on paragraph 16 of the statement of claim, ought to have referred to and relied on paragraphs 11,12,13,14,17, 18,24,25,26 and 27 of the amended statement of claim and paragraphs 7, 7a,8,11 and 15 of the plaintiff’s reply to 3rd defendant’s amended C statement of defence as well as the reliefs in paragraphs 27(1), (2), (3), (4) and (5) which are wholly reliefs in contract and also remotedly in tort of detinue and conversion.

D. He submitted further, that the averments in these paragraphs of appellant’s pleadings also qualify extensively the averment in paragraph 16 of the appellant’s amended statement of claim as to the nature and basis of appellant’s causes of action as well as the accrual date of the causes of action.

E They also show that the causes of action are not governed by the simple cases of contract and tort regulated by the general limitation period of 6 years but rather fall within the exception of contract and tort governed by longer periods of limitation.

F. Council referred to the cases of Ifeajuna v. Ifeajuna (2000) 9 NWLR (Pt. 671) 107 at 117 and the Supreme Court decision in Abubakar v. Bebeji Oil & Allied Producers Ltd. (2007) All FWLR (Pt. 362) 1855 at 1888; (2007) 18 NWLR (Pt. 1066) 319 to show that it is not every averment in a paragraph of a statement of claim that is the basis of the relief (s) and that one must read the statement of claim as a whole to understand a cause of action and not some averments in isolation.

Council submitted that in the instant case, ti was after the refusal to return the vehicles in 1993 that appellant saw the vehicle in NNPC Depot Osisioma and took necessary steps to recover same H culminating in this action in 1997.

On another leg of issue 1, appellant’s counsel submitted that whereas in this case, the appellant has several causes of action which he combined in one action, the proper approach for the court to adopt in determining the accrual date of the causes of action is not to combine or lump together all the cases of action into one but to apply the principle of severance of the pleading/claims to determine when each cause of action arose. After referring to the case of Azaki Padawa v. Agmada Jatau (2003) 5 NWLR (Pt. 813) 247 at 265. learned counsel for the appellant submitted that the different actions in contract and tort in the instant case did not accrue or become enforceable until appellant’s discharge from prison in 1993 and his demand from the respondents to return the vehicles.

Counsel to the 1st to 3rd respondents on the other hand submitted that a combined reading of the appellant’s amended statement of that a combined reading of the appellant’s claim against the respondents is one founded in tort, irrespective of the fact that the transaction that brought the appellant and the 1st and 2nd respondents together is one based on contract. The state of the appellant’s pleadings said respondents, established the fact that the genesis of the relationship with the respondents started with the grant of the loan facilities of 20/11/78 but the genesis of the appellant’s claim against the respondents started with the alleged unlawful seizure, detention and converson of the Mercedes benz Tractor in 1982 by the 1st and 2nd respondents.

Furthermore, said respondents’ counsel, the issue or contract – whether simple of by deed was not properly pleaded by the appellant. It is not the business of the court to conjecture whether the contract in issue was one of specialty or a simple one, competence when the same arose in an objection to the competience of a suit and the court is bound to look at the pleadings of the appellant to resolve the issue one way or the other.

After referring to the case of Ogbu v Ani (1994) 7 NWLR (Pt. 355) 128 at 148, learned senior council for the respondents submitted that it can be gathered from the pleadings of the appellant especially paragraphs 10 and 16 of the amended statement of claim that the ccause of action arose in 1982. and, that in order to ascertain whether a suit was caught up by the limitation period, one is bound to look at the time the cause of action arose the date the suit was filed.

Counsel referred to the cases of Fred Egbe v. Hon. Justice J.A. Adefarasin (No.2) (1987) 1 NWLR (Pt.47) 1 at 20; Ebenogwu v. Onyemaobim (2008) 3 NWLR (Pt.1074) 396 at 442; Amede v. U.B.A. (2008) 8 NWLR (Pt. 1090) P.623.

Respondents’ counsel submitted that the appellant knew since 1982 that the said vehicle will be put into use that will be inconsistent with his rights. Moreover, the law is settled that for a plaintiff to defeat a plea of limitation, he must bring his case within any exceptions statutorily provided by the Local Limitation Law.

On this, counsel referred to the cases of Ethiopian Airlines v. Afribank (Nig.) Plc (2006) 17 NWLR (Pt. 1008) 245 at 259 -260; P.A.S. & T.A. Ltd. V Babatunde (2008) 8 NWLR (Pt.1089) 267 at 293; Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt.550) 406 at 418 – 419.

Respondents counsel submitted that the above authorities also established that no course of negotiation or subsequent event can validly prevent the cause of action from running once it has arisen.

That, the attempt in paragraph 12 of the appellant’s pleading to show that the cause of action arose in 1993 or thereabout “when the plaintiff’s problem in court was over” did not explain why the appellant’s action was not brought within the statutory period.

Council submitted that no matter how one looks at it whether from the point of view of the statue of fraud 1923 (as claimed by the appellant) or the Limitation Law of Imo State of 1994 (as claimed by the respondents), the cause of action was already stale and the appellant’s claims dead at the time it was filed in 1997.

Council submitted that the appellant’s statement of claim, particularly paragraph 12, did not disclose how “the court problem” has hindered him from 1982 when the 1st respondent allegedly converted the Mercedes Benz Tractor to 1993 when the problem was over from taking out a writ against the respondents and for the court to decide whether that hindrance was sufficient to defeat a plea of limitation.

Learned senior counsel for the respondents submitted that even if the trial court had looked at the 3rd defendant’s statement of defence where the issue of incarceration of the plaintiff/appellant came up for the first time and the plaintiff’s reply to the 3rd defendant’s statement of defence, it could still not be said that the appellant’s explanation was sufficient in law to defeat a plea of limitation.

He submitted that the appellant in his reply did not make out any case sufficient to defeat the plea of limitation as raised in the 1st $ 2nd respondent’s application to dismiss the suit and that the trial court was right when it held that the action was statute barred having arisen in 1982 but brought after a period of fifteen years in 1997.

In deciding issue No. 1, that is the question whether the learned trial Judge was right in coming to the conclusion that the appellant’s claims was founded in tort in calculating the period of limitation of action, it is good to examine the various paragraphs in the statement of claim that were nominated in the appellant’s brief for consideration.

They are paragraphs 11,12,13,14,15,16,17,1824,26 and 27 of the 2nd amended statement of claim. Paragraphs 27 (1), (2), (3), (4) and (5) of the reliefs to the statement of claim.

2nd Amended Statement of Claim

“11. Later on, the 1st defendant informed the plaintiff that the (1st defendant) hired the vehicles out to enable him realise the amount of N15,779.00 given to the plaintiff as loan.