MR. PETER ANUKWU (Trading under the name and style of PRECHOSONS & CO. ENTERPRISES)
COURT OF APPEAL (OWERRI DIVISION)
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.
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)
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
Name of the High Court: High Court of Abia State, Aba Name of the Judge: Orji, 1. Date of Ruling: Monday, 27th November, 2000.
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
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.
Travel Agent Charged With N1.3m Visa Fraud
A 40-year-old travel agent, Eze Sunday, was on Monday arraigned at a Yaba Chief Magistrates’ Court in Lagos for allegedly obtaining N1.3 million from a client on the pretext of procuring a Turkey visa for her.
Sunday is facing a three-count charge bordering on conspiracy, stealing and obtaining by false pretences.
The defendant, who resides in Yaba, however, pleaded not guilty to the charge.
The Prosecutor, Mr J.I. Eboseremen, told the court that the defendant committed the offences sometime in January on Association Avenue in Igando, Lagos.
He said that the defendant stole the N1.3 million from the complainant, Miss Charity Obeta, which she gave him through a United Bank of Africa electronic transfer, for her travel logistics.
According to him, the defendant promised to procure a Turkey visa, get a return flight ticket and hotel reservation for Obeta, but failed.
Eboseremen alleged that the defendant absconded with the money and refused to take the complainant’s calls.
“My lord, the complainant’s intended travel date was drawing close but she could not contact the defendant.
“His colleagues at workplace told her that the defendant travelled and did not intend to return to the office.
Obeta reported the case to the police, and the defendant was tracked and arrested,” the prosecutor said.
He said that the alleged offences contravened Sections 411, 314 and 287 of the Criminal Law of Lagos State, 2015 (Revised).
The Chief Magistrate, Mrs Oluwatoyin Oghere, released the defendant on bail in the sum of N2 million with two sureties each in like sum.
Oghere said that one of the sureties must be a blood relation of the defendant and reside within the court’s jurisdiction.
She ordered that the sureties must be gainfully employed and show evidence of three years’ tax payment to Lagos State Government.
Oghere adjourned the case until September 11 for trial.
Remove Nwosu’s Name As Guber Candidate, Court Orders INEC
The Federal High Court, Abuja, last Monday, ordered the Independent National Electoral Commission (INEC) to remove the name of Uche Nwosu as a governorship candidate in the last election held in Imo State.
Justice Inyang Ekwo voided Nwosu’s candidacy on the grounds of double nomination by two political parties, the All Progressives Congress (APC) and the Action Alliance (AA), in violation of section 37 of the Electoral Act.
The ruling came as Nwosu, a son-in-law to the immediate-past Governor of the state, Rochas Okorocha, is currently pursuing an election petition at the state’s Governorship Election Petition Tribunal as the candidate of AA, challenging the victory of the Peoples Democratic Party (PDP) and its candidate, Emeka Ihedioha, in the March 11 poll.
In his judgment on Monday, Justice Ekwo upheld the case of the plaintiffs, the Action People’s Party (APP) and its Deputy National Chairman, Mr Uche Nnadi, to the effect that Nwosu’s governorship candidature was null and void on the grounds of multiplicity of nominations as a governorship candidate of both the APC and AA.
According to him, the nomination of Nwosu by AA as a governorship candidate is invalid, null and void, having been made at the pendency of similar nomination of the 2nd defendant (Nwosu) by the All Progressives Congress for the same position.
The judge noted that Nwosu affirmed to be the APC’s governorship candidate in his statement on oath sworn before the High Court of the Federal Capital Territory.
The judge similarly declared that Nwosu “has not been validly nominated by the 3rd defendant (AA) as its governorship candidate for the state governorship election having been made at the pendency of the order of Justice Valentine Ashi of the Abuja High Court recognising the 2nd defendant as the candidate of the All Progressives Congress for the Imo 2019 governorship election.”
He noted that Nwosu participated in the APC’s primaries held on October 6, 2018 and was subsequently nominated as the party’s governorship candidate.
While laying claim to the APC’s governorship ticket, amidst stiff opposition from members of the party, he was said to have on October 9, 2018, obtained an order of Justice Valentine Ashi (now deceased) of the High Court of the Federal Capital Territory, Abuja, recognising him as the valid candidate of the party.
In the midst of this, Nwosu was also offered the ticket of the AA.
In his judgment, Justice Ekwo said, “There is no controversy that, on October 6, 2018, the 2nd defendant (Nwosu) had himself nominated as the governorship candidate of the APC.
Enugu Police Nab Suspected Armed Robbers, Recover Pistol
The Enugu State Police Command has nabbed two suspected armed robbers terrorising Abakpa Community in the outskirts of Enugu metropolis.
The police also recovered one locally made Beretta pistol from the suspects.
The Command’s Public Relations Officer, SP Ebere Amaraizu, said this in a statement made available to newsmen yesterday in Enugu.
Amaraizu said that the suspects were arrested on August 16 by Anti-Cult Unit of the command after a raid on a black spot in the community.
He said: “Following an attack on Abakpa Police Division operatives by hoodlums, the Anti-Cultism Unit of Command went on raid at Umuchigbo axis of Abakpa Community.
“The operatives arrested one Chekwube Igwe and one Teddy Otti both of Vikings confraternity, who have been terrorising Abakpa Community and its environs.
“The police operatives also recovered a local pistol from them.’’
The police spokesman said that the suspects had been helping police operatives in their investigation on their nefarious activities.
“They will be charged to court as soon as investigation is over,’’ he said.
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