Limitation Of Action In Tort

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.” 

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, J.C.A. (Presided); Mojeed Adekunle Owoade, J .C.A. (Read the Leading Judgment); Haruna Mohammed Tsammani,J.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 J.O. Omotiba, Esq. – for the Respondents

High Court:

Name of the High Court: High Court of Abia State, Aba       Name of the Judge: Orji, J. 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 27th   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.

4. A Declaration that the purported transaction between the 1st  and 2nd defendants on the one hand and the 3rd defendant on the other hand allegedly transferring ownership and possession of the said vehicle to the 3rd  defendant based on the said loan or any other cause whatsoever (without a prior consent of the plaintiff or an order of court) is illegal, unconstitutional, null, void and of no effect whatsoever.

5. Account of all proceeds realized by the defendants from their use of the vehicle for commercial purposes from 1992 to date and payment over to the plaintiff of the sum due on taking/rendering of such account.

6. NI0,000,000.00 being general and special damages for detention and conversion of the said Mercedes Benz truck.

7. An order of court compelling the defendants to surrender / release forthwith the said vehicle to the plaintiff.

OR IN THE ALTERNATIVE TO RELIEF 7 ABOVE. E

8. The sum of N 11 m (Eleven Million Naira) being the market value of the vehicle as at today.

9. An order of court compelling the 1 st and 2nd defendants to return to the plaintiff the Datsun 120Y Panel Van Registered No. LA 5383 WC Engine No. 025449E and

Chassis No. 080776.

OR IN THE ALTERNATIVE

N500,000.00 being general and special damages for the unlawful seizure, detention and conversion of the said car.”

As part of their reactions to the claims of the appellant, the 1st and 2nd respondents in paragraph 20 of the further amended statement of defence averred that:

“It shall at the hearing be contended on behalf of the defendants that this action is a ruse, unmaintainable, spurious, frivolous statute-barred and an abuse of  judicial process to the irritation and annoyance of the defendants and the honourable court shall appropriately be urged to dismiss the entire suit in limine to forestall further dissipation of energy and resource by the court  and the defendants.”

The 3rd respondent similarly averred in paragraph 16 of his amended statement of defence that the plaintiff’s action is now statute barred.

On 7/9/2000, the 1st and 2nd defendants/respondents brought a motion on notice praying the court to dismiss the suit in its entirety on grounds of statute bar, abuse of judicial process and want of jurisdiction.

The said motion was supported by a 10 paragraph affidavit indicating inter alia that “the cause of action resulting in this suit as disclosed in the 2nd amended statement of claim filed 7/3/2000 and the plaintiff’s reply to 3rd defendant’s amended statement of claim indicate that the cause of action in this matter arose in 1982;

There is no evidence on record that the appellant filed a counter-affidavit in opposition to the motion for dismissal by the lst “ and 2nd respondents, but there is evidence that counsel to the various parties made submissions on the motion. The ruling on the said motion on notice which now forms the subject matter of this appeal was delivered by Obisike Orji, J. on 2711112000.

After a review of the counsel submissions and references to paragraphs 8,9, 10 and 16 of the appellant’s 2nd amended statement of claim, the trial Judge concluded at page 106 of the record as  follows:

“Counsel for the plaintiff has urged me to hold that it is the 1978 agreement which determines the cause of action, and that it is an agreement under seal. I do not agree. It is this alleged unlawful seizure, detention  and conversion of the vehicle, going by the nature of the claims in this matter that gave rise to this suit. That being the case, this suit taken out in 1997, fifteen years after the allegedly (sic) seizure etc in 1982, is statute barred. The objection is well taken. This suit is accordingly dismissed …. “

Dissatisfied with the above ruling, the appellant filed a notice of appeal (containing five grounds of appeal) in this court on 7/2/2001. Appellant’s brief of argument dated 21/11/2008 and filed on 11/12/2008 was deemed filed on 2/11/2010. 1st “ to 3rd respondent’s brief of argument dated 22/3/2011 was deemed filed on 18/11/2011.