ALHAJI S. ANISERE ENT. NIGERIA v. WEMA BANK (2013)

ALHAJI S. ANISERE ENT. NIGERIA v. WEMA BANK

(2013)LCN/6528(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of November, 2013

CA/I/114/09

RATIO

WHETHER A COURT’S DECISION MUST BE BASED ON FACT

The decision or finding of the Court must be based on hard fact not on assumption, suspicion, speculation nor conjecture. (See Obiakor vs. The State (2002) 6 SCNJ 193 @ 206, AGIP (NIG) LTD. vs. AGIP Petroleum Int’l (2005) 5 NWLR (Pt 1187) 348 @ 413.) Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

CONDITIONS FOR AN ACTION ON DETINUE TO BE FILED

Before an action on detinue can be filed, two acts must be present, one from the Plaintiff and the other from the defendant. The Plaintiff must make a formal demand for the return of the goods or chattel. The defendant must refuse to return the goods or chattel See Chigbue vs. Tonimas Ltd (2006) 4 SCNJ 262 @ 279 – 280. Per MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.

JUSTICES

M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIOMA NWAOMA UWA Justice of The Court of Appeal of Nigeria

O. DANIEL KALIO Justice of The Court of Appeal of Nigeria

Between

ALHAJI S. ANISERE ENT. NIGERIA Appellant(s)

AND

WEMA BANK Respondent(s)

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On the 18th day of December, 2006 Honourable Justice J. O. Ige dismissed the case of the Appellant as Plaintiff in favour of the Respondent as Defendant. The parties shall hereafter be referred to simply as Appellant and Respondent respectively.
The Appellant as Plaintiff before the High Court of Justice of Oyo State sought the following reliefs in his Statement of Claim:-
1. A declaration that the failure/refusal of the defendant to release the title deeds which the Plaintiff deposited with the defendant in 1985 when it was granted credit facilities by the defendant despite the fact that the Plaintiff is no longer indebted to the defendant having paid the credit facilities since April, 1994 is illegal, null wrongful and a breach of contractual agreement between the Plaintiff and the Defendant.
2. The sum of N1,000,000.00 (One Million Naira Only) being the damages from wrongful detention off the title deeds of the Plaintiff in respect of the property situate, lying and being at E7/661 Onibudo Street Agugu Area, Ibadan despite the fact that the Plaintiff is no longer indebted to the defendant having paid back the facility since April, 1994 and despite repeated demands the Defendant has refused/neglected to return the said document to the Plaintiff.
3. An order of this Honourable Court directing the Defendant to release the title deeds in respect of the property situate, lying and being at E7/661 Onibudo Street, Agugu Area, Ibadan.
4. ALTERNATIVELY the Plaintiff claims the sum of N2,000,000.00 (Two Million Naira Only) being damages for the loss of the title Deeds in respect of the property situate, lying and being at E7/661 Onibudo Street, Agugu Area, Ibadan the Defendant having failed to return same to the Plaintiff despite repeated demands. (pg 1B of the records for this appeal, transmitted on 09/04/09).
Pleadings were filed and exchanged by the Parties. The Respondent however raised a preliminary point of law that Appellant’s case is caught up by the Limitation Law of Oyo State and urged the Court to dismiss the case in limine. The Respondent then filed a motion on notice under Order 24 Rules 2 and 3 of the High Court (Civil Procedure) Rule, 1988 for an order setting down for hearing the preliminary issues or point of law raised in paragraphs 7 and 8 of the Statement of Defence.
The trial Court heard arguments and delivered a considered ruling on 19th December, 2006 dismissing the suit of the Appellant as being statute barred.

The Appellant filed a notice of appeal containing 5 grounds against the said decision. A sole issue was raised for determination. The issue is tied to grounds 1, 3 and 4, while grounds 5 and 6 were abandoned. Counsel for the Appellant Kolawole Famakinwa Esq., prepared the Appellant’s brief of argument dated 2nd June, 2009 and filed 3rd June, 2009 but deemed filed on the 18th June, 2009. The Respondent Counsel Ayokunle Elemo Esq., also prepared the Respondent’s brief of argument dated 16th July, 2009 and filed 17th July, 2009 and he relied on the issue distilled by the Appellant.

The sole issue is as follows:-

Considering the statement of claim, the relevant law, fact and circumstances of this case, when was demand made by the Appellant and was the suit statute barred?
The learned Counsel for the Appellant submits that in determining when time starts to run for the purpose of limitation law in Nigeria, the statement of claim, the law, facts and circumstances of the case must be considered. On the authority of Amusan v. Ogundeji (2001) 6 NWLR (Pt.710) 647 @ 659, the learned Counsel states that the statement of claim and all other factors must be considered upon admissible evidence before the limitation law can be applied.
The learned counsel submits further that detinue is a wrongful detention of another person’s property and the action accrues following the Plaintiffs demand. The case of Chigbue vs. Tonimas Ltd (2006) 9 NWLR Pt 984, 189 @ 210 is cited to buttress this point.
The Appellant maintains that in the instant case, no formal demand was made until October, 2003 and that the Respondent refused to surrender the Appellant’s title documents. It is the contention of the learned Counsel, that even when there is right/cause of action, it does not arise, until it has crystallized. That in the instant case, same crystallized in 1994 when the Appellant met the demand of the Respondent, the verbal demand made thereafter for: his documents does not amount to formal demand in law because the cause has not arisen, even though it had crystallized, as verbal demand cannot be the basis for an action in detinue in law.
Submits that by Section 4(1) of 1978, limitation law to the actions founded on simple contract or on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued, that in the instant case, formal demand should be a priority and same should be backed up by a letter of demand/notice, which is more reliable than abstracts/presumptions. It follows that demand in the instant case was made on 29th October, 2003, when a formal letter creating a cause of action was written. The learned Counsel cited the Supreme Court case of Civil Design Construction Nig. Ltd vs. Scoa Nig. Ltd (2007) 6 NWLR (Pt. 1030) @ 366 to the effect that documentary evidence is more reliable than oral evidence. Appellant further submits that a demand letter is a prerequisite for filing a law suit, therefore the letter dated 29/10/2003 passed that test. (See also Alhaji Muktari vs. LBN PLC. (2006) 2 NWLR (Pt 964) 2888 @ 297 – 298.) That it was wrong for the trial Court to rule that “it is right to assume that when the Plaintiff approaches the finance company for loan to finance the contract for the supply of cement, he had demanded informally in 1994 for the return of his title deeds and specifically or formally on 29/10/2003”. There was no proof or evidence of demand concrete enough to justify such finding by the court. That the finding is against the spirit of justice as stated in Chigbue vs. Tonimas Ltd (supra), Zenon Petroleum Cases and W. A. Oil Fields Service Ltd vs. UAC (2000) 13 NWLR (Pt. 683).
The learned Counsel for the Respondent dwells on the payment by the Appellant, of the sum of N1,000.00 by Wema Bank crossed chegue No. 029064 of the 29th September, 1994 and submits that those facts constitute admission against interest and that by these facts, the Appellants admits that the cause of action arose in 1994 when he paid the sum made condition precedent for the release of his title documents.
As to when a cause of action accrues in a claim in detinue, the Respondent maintains that two factors must be present and these are: demand for the chattel by the owner and the refusal by the person wrongfully detaining the chattel. He cites the case of Amusan vs. Obideyi (2001) 6 NWLR (Pt 710) 647 @ 657, Chigbue vs. Tonimas Ltd (2006) 9 NWLR (Pt. 984) 189 @ 210. Submits that the Appellant having paid the requested N1,000.00 and followed by several verbal demands, it can be safely said that there is a demand by the Appellant in the instant case, the learned trial Judge was therefore right. Counsel maintains that the cause of action arose based in 1994 whether the demand was oral or otherwise, coupled with the payment of N1,000.00 made for the return of title documents.
The Respondent submits that there is no distinction between formal and informal demand as envisaged by the Appellant as the law was silent on this and equally that the Appellant failed to provide any judicial authorities to support the distinction.
Submits further that cause of action arose in 1994 but the action was brought in 2004, against the law applicable i.e the Limitation Edict of 1989 which prescribed (6) years expiration for the institution of action of this nature from the date the cause of action arose. That in the instant case the cause of action arose in 1994, therefore the 1989 edicts applies. That time starts to run for the purpose of limitation of action when all facts which constitutes plaintiff’s cause of action had happened. He cites Unity Bank Plc vs. Nwadike (2009) 4 NWLR (Pt.1131) 352 @ 378.

In the instant case of detinue, limitation time begins to run after demand and refusal have been accomplished. Unity Bank Plc vs. Nwadike (supra). Respondent’s Counsel maintains that the Appellant’s suit is statute barred having been brought after 10 years, in 2004, of the accrual of the cause of action.

Relying on the case of NPA Plc vs. Lotus Plastics Ltd (supra) to the effect that an action brought after prescribed period of the statute is contrary to provisions of law and doesn’t give rise to a cause of action.

The Respondent also maintains that the right of action of the Appellant is forever lost, as he can no longer enforce its right to bring any action in detinue and urges the Court to affirm the decision of the trial court, and add that the proper order of dismissal made by the lower Court was right, the instant appeal be dismissed.
An action in detinue seeks a return, restitution or the release of a chattel wrongfully detained by a person to whom such chattel had been put into possession.

In the case of NACENN (Nig.) Ltd v. B.A.P. Ltd (2011) 11 NWLR (Pt.1257) page 193 @ 206 – 207 my lord Muntaka-Coomassie JSC defined detinue as:-
“a continuing cause of action which accrues at the date of the wrongful refusal to deliver up the goods and this continues until delivery up of the goods or judgment in the action for detinue. The action is in the nature of an action in rem in which the plaintiff may sue:
(a) For the value of the chattel as assessed and also damages for its detention, or
(b) For the return of the chattel or recovery of its value as assessed and also damages for its detention, or
(c) For the return of the chattel and damages for its detention.
In other words, a successful plaintiff in a case of detinue is entitled to an order of specific restitution of the chattel; or, in default, its value, and also damages for its detention up to the date of judgment. The defendant cannot deprive the plaintiff of his right to damages for detention of the chattel simply because he was earning anything from its use”. (See also Chigbu v. Tonimas Nig. Ltd (2006) 9 NWLR (Pt. 984) 189).

In all cases, it is often the statement of claim that determines the legal nature and state of the suit of the Plaintiff as an aggrieved party. In this appeal, Paragraphs 11, 12(d) and (e) 13, 14, 15, 16 and 18 of the Statement of Claim are very instructive and are reproduced as follows:-
“11. The Plaintiff states that by a letter dated 28th day of April, 1994 the Defendant admitted that the Plaintiff is no longer indebted to it, and that (1) original building plan No. 37/8717 (2) original survey plan No. 4955 of 17/10/7011 plan AB/226(3) original agreement of sale of land by Ojetola and Bakare family dated 2/1/63 are with the Defendant and that it can only be released to the Plaintiff upon the payment of the sum of One Thousand Naira (1,000.00). Representing legal fee for the release of documents. The letter is pleaded.
“12(d) The Plaintiff states that he decided to pay the said One Thousand Naira only (1,000.00) which was demanded for in a letter dated 28th April, 1994 for the release of the deeds because it was then in urgent need of the said documents to be able to obtain other loan so as to be able to execute other projects even though he knew that the amount being demanded is completely unwarranted.
“12(e) The Plaintiff states that it paid the said One Thousand Naira Only through WEMA BANK PLC across cheque No. 029064 on the 29th September, 1994. The Plaintiff has made several verbal demands through its Chief executive officer with no positive response from the Defendant.
“13. The Plaintiff states that on the 9th August, 1994, it got a contract for the supply of Five Hundred tonnes of cement by Salaak Construction group of Engineers.
“14. The Plaintiff states that due to its financial incapability to finance the contract it applied to Modern Finance and Investment Company whose registered office is at Ife Road Interchange Ibadan-Lagos Express Way, Orita Challenge, Ibadan for financial assistance to the tune of N800,000.00 (Eight Hundred Thousand Naira Only) for the purpose of executing the contract. The application for loan is pleaded.
“15. The Plaintiff further states that the application for loan mentioned in paragraph 15 above was approved on the condition that it should deposit its title deeds in respect of the property at E7/661 Onibudo Street, Agugu Area, Ibadan so as to create Equitable Mortgage on same. The letter of approval in respect of the application for loan is pleaded.
“16. The Plaintiff avers that due to the refusal of the defendant to release all the said title deeds in its possession it could not execute the contract.
“18. The Plaintiff states that it has made several demands to the Defendant demanding for the release of the title deeds. The Plaintiff shall rely on demand letters of 29th of October, 2003 and 10th of November, 2003.” (page 4 of the records for this appeal.
As. seen from the above highlighted paragraphs of the Statement of Claim, it appears uncontroverted that an oral demand was made for the return of the chattel. The date of this oral demand is not however stated. The date of payment of one thousand naira only (N1,000.00) which was the condition precedent for the release of the Appellant’s title documents/deeds cannot be said to be the date of demand by the Appellant for the release. The Respondent only made the payment as the condition precedent for the release which the Appellant complied with but the Respondent failed to perform its own side of the obligation. The appellant waited.

The decision of the Court that “it is right to assume that when the Plaintiff approached the Finance Company for a loan to finance the contract for supply of cement, he had demand informally in 1994 for the return of his title deed”, (page 31 of the records of this appeal) is made without the requisite facts to support same.

At the time the Appellant sued in 2004, the Respondent had not made good of their undertaking to release the title documents after the Appellant had paid N1, 000.00 as condition precedent to the release of title documents. By paragraph 18 of the Statement of Claim, the Appellant wrote formal letters of demand for the release of the title deeds which the Respondent had refused, declined and neglected to release. The letters are those of the 29th October, 2003 and 10th November, 2003. These averments cannot be controverted in the special proceedings initiated by the Respondent to end the suit of the Appellant in limine. In view of the clear and unambiguous averments in the said statement of claim, could it be correctly held that the cause of action started to run in 1994 as held by the trial Court? I find the dictum of Tabai JSC in the case of Henry vs. Yakubu (2009) 5 SCNJ 201 @ 210, as instructive on this point. I crave indulgence to extensively quote my lord Tabai JSC as follows:-
“It is settled principle of law that when a Defendant files an application (such as the one that has given rise to this appeal) to strike out or dismiss an action on the ground that it disclosed no reasonable cause of action, he is, for the purpose of the application, taken to have admitted the facts alleged in the Statement of Claim. And in the determination of the application, the Court is bound to restrict itself of the Statement of Claim and to proceed on the assumption that the facts therein have been admitted although the facts in the Statement of Claim are admitted, the Plaintiff has not, on the face of such facts, made out a case to warrant a trial or that he has, in law, a complete answer to the Plaintiffs case. See F.C.D.A v. Naibi (1990) 3 NWLR (Pt. 138) 270 @ 281; Imana v. Robinson (1979) 3 – 4 SC 1 @ 9 – 10; U.D.C v. Ladipo (1971) 1 ALL N.L.R 102; Fadare v. A.G. Oyo State (1982) 4 SC 1; Tandon v. CFAO of Accra 10 WACA 186; Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118 @ 140 & 153; Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549 @ 556. The consequence is that the Defendant/Applicant/Appellant is deemed to have admitted the facts of its two letters of 16th October and 29th October 1986 in paragraph 12 of the Statement of Claim. And having regard to its unequivocal undertaking in the two letters to return the equipments to the Plaintiff/Respondent in due course he cannot, in any conceivable sense, be taken to have manifested an intention to detain or withhold them in defiance of Plaintiff/Respondent. It is my firm view therefore that it is only when the detention or withholding of the equipments continued for a reasonable time after October 1986 that a cause of action accrued to the Respondent” (Emphasis mine)

The Appellant made a formal demand when it wrote a letter of demand dated 29th October, 2003 and the trial Court was right when it held that the Appellant demanded specifically or formally on 29/10/03. Why the learned trial Judge made a vault de tour and rather held that the cause of action arose in 1994 is in comprehensible.
In determining the application, the Court is bound to restrict itself to the Statement of Claim and to proceed on the assumption that the facts therein have been admitted. (See Henry vs. Yakuba (Supra) @ 216).
The consequence is that the Respondent is deemed to have admitted the facts of the two letters of 29th October, 2003 and 10th November, 2003 in paragraph 18 of the Statement of Claim

The allusion by the Respondent to the Appellant’s alleged admission against self interest is not supported by the facts as made out in the statement of claim. Even if there were such oral demands, they go to no issue having been over shadowed by the formal demand documented in the letters of the 29th October & 10 November, 2003.
Assuming that the Appellant made oral demands for the release of his property which by the facts the Respondent should have returned to the Appellant at the liquidation of the facility, those oral demands would not mark the commencement of a cause of action. Not even the extraneous condition imposed by the Respondent for the release nor the fulfilment of the said condition constitute the time of accrual of action. It is the failure of the Respondent to release the document even after the condition precedent had been met which signalled the onset of dissent among the parties. Exasperated, the Appellant saw the need to have a learned Counsel make a formal demand for his title documents. It was that letter of demand which marked the “new era of demand with a consequence for failure to so release”. In other words, the aggregate of facts which culminated into actionable grievance for the Appellant was the refusal, neglect and failure of the Respondent to release the documents after the letter of demand of 29th October, 2008, that led the Appellant to court in 2003. Economic, financial or business ventures and relationships are not usually created for the purposes of litigation at the slightest offence or omission. It is when mutual respect and good will fails that resort is made to the court for a resolution. Up until the Respondent ignored the formal letter of demand made by the Appellant, the Appellant had no cause of action. No doubt, he had some history of a healthy and uncontroversial financial association with the Respondent. The tides turned when the Respondent failed to respond to the Appellant. That failure occurred after the formal letter of demand written and sent to the Respondent in 2003. 2003 is therefore the date of the accrual of cause of action. This much the learned trial Judge acknowledged, to turn around and hold to the contrary is clearly a perverse decision which this court is obligated to set aside.

I accordingly, find merit in this appeal which is hereby allowed. The decision of the learned trial Judge is hereby set aside. The case of the Appellant is hereby remitted to the Hon. Chief Judge of Oyo State High Court for re-assignment to another Judge for an accelerated hearing and determination of the Appellant’s suit.
A cost of N30,000.00 is hereby awarded to the Appellant and against the Respondent.
It is hereby so ordered.

CHIDI NWAOMA UWA, J.C.A.: I read before now the draft of the judgment of my learned brother M.B. DONGBAN-MENSEM, JCA allowing the appeal and I agree with same. I abide by the consequential orders made therein.

OBIETONBARA DANIEL- KALIO, J.C.A.: I have had the privilege of reading in draft before now, the judgment just delivered by my Lord Monica Bolna’an Dongban-Mensem J.C.A. and I entirely agree with the reasoning and conclusion reached.
I abide by the order of my Lord that the case be remitted to the Hon. Chief Judge of Oyo State for re-assignment to another judge of the High Court of Oyo State.

Appearances

Kolawole Famakinwa Esq.For Appellant

AND

Kolawole Esan with Sunday Akinpelu Esq.For Respondent