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Limitation Of Action In Tort

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MR. PETER ANUKWU (Trading under the name and style of  PRECHOSONS & CO. ENTERPRISES)

v.

ELISEUS EZE 

WILFRED ANEKWE

 BENSON EZEOBI

COURT OF APPEAL  (OWERRI DIVISION)

CA/PH/115/2003

Issues:

Whether, having regard to the averments in the appellant’s pleading and the respondents’ admission  that appellant’s action was founded in tort and contract, the trial court was right to hold that the appellant’s cause of action was founded in tort of seizure, conversion and detinue alone and to lump together the two causes of action in contract, and tort in computing the date of  accrual of the appellant’s cause of action.

Whether, having found (as it did) that the appellant’s action was (equally) founded on tort of detinue and  conversion, the trial court 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  the appellant by reason of his imprisonment at Kaduna,  the fraud perpetrated on the appellant by the 151 and 2nd respondents while in prison, and the principles/  rule of definite demand and definite refusal governing computation of date of accrual of cause of action in  detinue/conversion.

Whether the trial court was right in not hearing the suit on the merits and receiving in evidence the contract  agreement of 20/1111978 or and in dismissing the action instead of striking it out.

Facts:

Before the High Court of Abia State, the appellant on 3rd June 1997 claimed inter alia against the respondents jointly and severally, declaration of ownership of a tractor, surrender of the vehicle and damage.

Upon being served with the claim, the respondents filed their statement of defence wherein they avered that the action was a ruse, unmaintainable, spurious, frivolous, statute barred and an abuse of judicial process to the irritation and annoyance of the respondents.

Later, 151 and 2nd respondents on 7th September 2000 filed an application praying the court to dismiss the action in its entirety on grounds of statute bar, abuse of judicial process and want of  jurisdiction.

After a review of counsel’s submission on the application, the trial court ruled that the action taken out in 1997, fifteen years after the cause of action arose in 1982, was statute barred. It dismissed the suit accordingly.

Dissatisfied, the appellant appealed to the Court of Appeal. In determining the appeal, the Court of Appeal considered the provision of section 7(4) of the Limitation Act, 1966 which provides:  “7(4) Subject to the provisions of Section 8 of the Act, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”

Held (Unanimously dismissing the appeal):

On What constitutes cause of action

A lis or cause of action is constituted by a bundle  of facts which the law will recognize as giving the plaintiff a right of action. It is a situation or state of facts which would entitle a party to sustain action and give him right to seek judicial remedy or redress. It consists of every fact that would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. In other words, a cause of action means a bundle or aggregate of facts which the law will recognize as giving the plaintiff substantive right to make the claim for the relief or remedy sought.

Such facts or combination of fact, which give rise to a right to sue may consist of two elements, viz:

The wrongful act of the defendant which gives the plaintiff his cause of action; and the consequential damage. [Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446;

Fadare v.A.-G., Oyo State (1982) 4 S.C.1; A.-G.~ Fed. v. Abubakar (2007) 10 NWLR (Pt.1041) 1; Kusada v. Sokoto NA. (1968) SCNLR 522; Akilu v. Fawehinmi  (No.2) (1989) 2 NWLR (Pt. 102) 122; Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828 referred to.]

(Pp, 68, paras. F-G: 74-75. oaras. F-A)

2.         On Document court considers to determine whether action is statute barred 

In order to determine whether or not an action is statute barred the document to be considered are the writ of summons and statement of claim only.  The court will necessarily, restrict itself to the plaintiff’s statement of claim without having any recourse to the defendant’s statement of defence or to the evidence. Once the time pleaded in the writ of summons is beyond the period allowed by the limitation law, the action is statute barred. In the instant case the totality of the relevant pleading

of the appellant suggested unequivocally that the appellant’s cause of action in respect of conversion and/or wrongful detention of the Mercedez Benz accrued in 1982 and the appellant’s action, which was brought 15 years after in 1997 was statute barred. [Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890) 398; Ibekwe v. I.SE.MB. (2009) 5 NWLR (Pt. 1134) 234; Shell B.P. Petroleum Dev. Co. v. Onosanya (1976) 6 SC 89 referred to.] (P. 68-69, paras. H-C) Per ABBA AJI, J .C.A. at page 75, paras. C-E:

“In the instant case, the relevant paragraphs of the appellant’s pleading suggest that the appellant’s cause of action in respect of conversion and or wrongful detention of his Mercedez Benz Tractor accrued in 1982 and the finding of the Learned trial Judge that the appellant’s cause of action which was in the tort of detention and conversion brought 15 years after from 1982 is statute barred. I have made a critical examination of the appellant’s pleading more especially of paragraphs 15,  16, 18 and 27 which goes to support that the appellant’s cause of action in respect of  conversion and or wrongful detention of the Mercedez Benz occurred in 1982.”

On Limitation period for action in tort

By virtue of Section 7(4) of the Limitation Act 1966, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. The provision of the limitation law is stringent. Indeed, a limitation law is strict liability law. [Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649; Sanda v. Kukawa Local Govt (1991) 2 NWLR (Pt. 174) 379; Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224 referred to.] (P. 70, paras. F-H).

On Whether the Limitation Act of 1966 admits of exception as to period of imprisonment of plaintiff

The provision of Section 7(4) of the Limitation Act 1966 permits of no such exception as imprisonment of the plaintiff, or any orders which would have been provided for at common law or under the statute of Limitation 1623 which created some exceptions in relation to imprisonment. (P. 71, para. A).

On Determination of whether an action is statute- barred

In determining whether an action is statute-barred or not, the most crucial consideration is when the cause of action arose, and because of the strictness  of the limitation law, what is involved in between the accrual date of the cause of action and the filing of the writ of summons is an arithmetic or mathematical exercise. In the instant case the trial court was right in computing the accrual date or  limitation period, to hold that the cause of action accrued in 1982 and was barred 6 years therefrom. [Adekoya v. FHA (2008) 11 NWLR (Pt. 1099) 539 referred to.] (P. 71, paras. B, H).

On Whether determination of whether an action is statute-barred can be done in limine 

The determination of whether an action is statute barred could be done in limine without calling oral evidence. [Adekoya v. FHA (2008) 11 NWLR (Pt. 1099) 539; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 referred to.] (P. 72, para. B.

On Purpose and effect of limitation period and proper order for court to make where an action is statute  barred

The main purpose of the limitation period is to protect a defendant from injustice of having to face a stale claim. Thus, where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce the cause of action by judicial process, because the period of time laid down by the limitation law for instituting such action has lapsed. In the instant case, the trial court was right to have dismissed the appellant’s  claims having found that it was statute-barred.

[Ibeto Cement Co. Ltd. v. A.-G., Fed. (2008) 1 NWLR (Pt. 1069) 470; Amede v. UBA (2008) 8 NWLR (Pt. 1090) 623 referred to.] (P. 73, paras. B-E.  Per OWOADE, J.C.A. at page 73, paras. A-F: “The question arises, how does an order of   striking out help a plaintiff whose action is statute barred. The answer is that a statute-  barred action cannot be amenable in any manner to give it life as an action because the  time granted by law to commence it is gone and cannot be rewind. From this perspective. I  think even if a trial Judge struck out a claim that is statute-barred such striking out is as good if  not synonymous to an order of dismissal. In Ibeto Cement Co. Ltd. v. Att. Gen. Federation  (2008) 1 NWLR (Pt. 1069) 470 at 497, Peter- Odili, JCA (as he then was) held that where an  action is statute-barred, a plaintiff who might otherwise have had a cause of action loses the  right to enforce the cause of action by judicial process because the period of time laid down  by the limitation law for instituting such action has lapsed.

Also, in Amede v. UBA (2008) 8 NWLR. (Pt. 1090) 623 at 655 ABBA AJI, JCA, said  “the main purpose of the limitation period is to protect a defendant from injustice of having  to face a stale claim.”

In other words, where an action is statute- barred, a plaintiff who would have had a cause of action automatically loses the right to enforce the cause of action by judicial process  because the time laid down by the relevant limitation law for instituting the action has  lapsed. Ibekwe v. I.SE.MB. (supra). Obeta “. Okpe (1996) 9 NWLR (Pt.473) 401 at 429. The  justification therefore for an order of dismissal rather than that of striking out a suit when an  action is statute-barred is that the plaintiff’s wrong and consequential damage that is the  cause of action is no longer enforceable by judicial process. Thus, the judicial process  which becomes deprived of jurisdiction may as well close its eyes permanently to such a cause  of action.”  Nigerian Cases Referred to in the Judgment:

A.-G., Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) I. Abubakar v. B. 0.& AP. Ltd. (2007) 18 NWLR (Pt. 1066) 319 Adebajo v. Ogun State Sports Council (2005) WRN 172 Adekoya v. FH.A. (2008) II NWLR (Pt. 1099) 539 Akibu v. Oduntan (2000) 13 NWLR (Pt. 685) 446 Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 Amede v. VBA. (2008) 8 NWLR (Pt. 1090) 623 Bello v. A .-G., Oyo State (1986) 5 NWLR (Pt. 45) 828. Ebenogwu v. Onyemaobim (2008) 3 NWLR (Pt. 1074) 396

Eboigbe v. NNP.C. (1994) 5 NWLR (Pt. 347) 649 Egbe v. Adefarasin (No.2) (1987) I NWLR (Pt. 47) I Ethiopian Airlines v. Afribank Ptc (2006) 17 NWLR (Pt. 10(8) 245 F adare v. A .-G., Oyo State (1982) 4 SC I Ibekwe v. I.SE.MB. (2009) 5 NWLR (Pt. 1134) 234.

Ibeto Cement Co. Ltd. v.A.-G., Fed. (2008) 1 NWLR (Pt. 1069) 470 Ifeajuna v. Ofeajuna (2000) 9 NWLR (Pt. 671) 107 Kusada v. Sakata N A. (1968) SCNLR 522 L.U.T.H. & M.B. v. Adewole (1998) 5 NWLR. (Pt. 550) 406           Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401 Ogbu v. Ani (1994) 7 NWLR (Pt. 355) 128

Oke v. Oke (2006) 17 NWLR (Pt. 1008) 224 P A.S. & T A. Ltd. v. Babatunde (2008) 8 NWLR (Pt. 1089) 267 Padawa v. Agmada Jatau (2003) 5 NWLR (Pt. 813) 247 Sanda v. Kukawa Local Govt. (1991) 2 NWLR (Pt. 174) 379 Shell B.P. Petroleum Dev. Co. v. Orasanya (1976) 6 SC 89 Woherem v. Emereuwa (2004) 13 NWLR (Pt. 890) 398.

 Nigerian Statute Referred to in the Judgment:

Limitation Act, 1966. S. 7(4) 

Appeal:

This was an appeal against the decision of the High Court dismissing the appellant’s suit for being statute-barred. The Court of Appeal, in a unanimous decision, dismissed the appeal.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Owerri

Names of Justices that sat on the appeal: Uwani Musa Abba Aji, 1.C.A. (Presided); Mojeed Adekunle Owoade, 1 .C.A. (Read the Leading Judgment); Haruna Mohammed Tsammani,l.C.A.

Appeal No.: CA/PH1l15/2003 Date of Judgment: Friday, 16th March, 2010 Names of Counsel: c.c. Elele, Esq, (with him, E.1. Obi, Esq.) – for the Appellant 1.0. Omotiba, Esq. – for the Respondents

High Court:

Name of the High Court: High Court of Abia State, Aba        Name of the Judge: Orji, 1. Date of Ruling: Monday, 27th November, 2000.

Counsel:

C.C. Elele, Esq, (with him, E.J. Obi, Esq.) – for the Appellant J.O. Omotiba, Esq. – for the Respondents

OWOADE, J .C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice Obisike Orji of the High Court of Abia State sitting inAba delivered on 271h November,

2000 wherein he upheld the application of the 151 to 3rd respondents challenging the competence of the suit on the ground that same is statute-barred.

The appellant as plaintiff before the lower court initially issued a writ of summons and filed statement of claim against the respondents as defendants on 3rd day of June, 1997.

Pleadings were filed and exchanged by the parties. The relevant pleadings of the parties at the time this appeal was filed are as follows:

(a)        Amended statement of claim filed on 6/3/2000;

(b)        Further amended statement of defence of the 151 and 2nd 

defendants filed on 21/7/2000;

© Amended statement of defence of the 3rd defendant

filed 31/7/98; and

(c)        Reply to 3rd defendant’s statement of defence filed in

1999.

By paragraph 27 of the amended statement of claim, the appellant as plaintiff claimed against the defendants jointly and severally as follows:

             “1.           A Declaration that the plaintiff is still the bona fide owner of the Mercedes Benz Tractor Registered No. 1M 5754AB (now Anambra XA 160 AJL) Engine No. 181400 and Chassis No. 398214.

 

2.         A Declaration that the purported loan transaction of  28/11/78 between plaintiff and one Uche Akpuru on one hand and 151 and 2nd defendants on the other hand is illegal, null, void and unenforceable.

3.         A Declaration that all purported transaction particularly  the purported seizure, detention and conversion of Plaintiff’s said vehicle by the 1st and 2nd defendants based on the said loan of 20/11/78 is unconstitutional.

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