OCTOPUS TRUST NIGERIA LIMITED & ORS v. ASSET MANAGEMENT CORPORATION OF NIGERIA
(2019)LCN/12993(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of March, 2019
CA/L/1508/2018
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
Between
1. OCTOPUS TRUST NIGERIA LIMITED
2. ANTHONIA TOLULOPE AKINGBOLA
3. DR. ERASTUS BANKOLE AKINGBOLA Appellant(s)
AND
ASSET MANAGEMENT CORPORATION OF NIGERIA Respondent(s)
RATIO
DEFINITION OF A “CORPORATION”
In DIKKO AND SONS LIMITED V CORPORATE AFFAIRS COMMISSION (2014) LPELR – 23730 (CA) Corporation was defined:
?A ?Corporation? is defined in Blacks law dictionary 9th edition page 391 as; ?An entity (usual a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights distinct from shareholders who own it and having rights to issue stock and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has personality a legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its constitution gives it.? PER OBASEKI-ADEJUMO, J.C.A.
COMPLIANCE WITH THE PROVISIONS OF A STATUTE
Where a statute provides that before a statutory power is exercised certain conditions must be satisfied and a particular method of exercising a statutory power only that method should be adopted. See AROWOLO V ADESINA (2011) 2 NWLR (PT 123) 315; APAPA V INEC (2012) 11 NWLR (PT 130); CAC V RTCC (2000) 11 NWLR (PT 115); AGODA V EMANUOTOR (1999) 8 NWLR (PT 615) 407; AUCHI POLY V OKUOGHEA (2005) 10 NWLR (PT 931) 297 at 291.
In DINGYADI & ANOR V INEC & ORS 2010 LPLER – 40142 (SC) The Apex Court held thus:
“…it must be appreciated that where the exercise of a right is circumscribed or limited by a rule of practice, and except where it is satisfactorily shown that compliance with such a rule has been waived, then that rule must be complied with. Court Rules are meant to be obeyed. See: Ezegbu v. FATB Ltd (1992) 1 NWLR (Pt.216) 197; Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643; CCB (Nig.) Plc v. AG Anambra State (1992) 8 NWLR (Pt.261) 528. Where there is non-compliance, such non-compliance may result into any step taken to be a nullity.”
See also CAC V REGISTERED TRUSTEE OF CELESTIAL CHURCH OF GOD (2009) LPELR – 11899 (CA); UNITED GEOPHYSICAL NIGERIA LTD & ORS V MOSHESHE (2014) LPELR – 24464 (CA).
In UGBORJI V STATE 2017 LPELR – 3427 (SC) it was held further that:
“Non-compliance with mandatory provisions of a statute has the consequence of rendering the proceedings or the act done pursuant thereto a nullity. It is a fundamental defect that is not a mere irregularity, but an illegality. See SANMABO v. THE STATE (1967) NMLR 314 AT 317; SALAMI OLONJE v. I.G.P (1955-56) WRNLR 1; AMOKEODO v. I.G.P (1999) 6 NWLR (pt.607) 467; THE STATE v. GWONTO (1983) NSCC 104. In the GWONTO case this Court found on the facts that the mandatory provisions as to interpretation were substantially complied with.” PER OBASEKI-ADEJUMO, J.C.A.
WHETHER OR NOT WHERE FRAUD IS RAISED IN A MATTER CAUGHT BY LIMITATION LAW, IT CONSTITUTES AN EXCEPTION
It is trite that where fraud is raised in a matter caught by limitation law, it constitutes an exception. See NWANKWO & ANOR V NWANKWO (2017) LPELR – 42832 (CA):
“The Appellants claim that there cannot be limitation because the injury to them by the Respondent is a continuing one. Indeed, there are some exceptions to the limitation law set by various limitation statutes. These statutory limitations cover cases such as fraud, deliberate concealment by the defendant, or mistake or in a circumstance where there is a continuing injury or fresh damage arising from the same injury. Each fresh damage arising from the same injury or a continuing injury gives rise to a fresh cause of action. The term “continuing injury or damage” is an injury that is still in the process of being committed. See Black’s Law Dictionary Pg. 801, 8th Edition. In Aremo II v Adekanye (2004) ALL FWLR (Pt. 224) 2113 at 2132 – 2133, the Supreme Court per Edozie JSC said: “Admittedly legal principles are not always inflexible. Sometime they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused.” A continuing damage or injury is not merely continuance of the injurious effects of a legal injury but the continuance of the legal injury itself. It is the continuance of the act which caused the damage. The law is that, generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action. In other words “Continuation of injury” means the continuation of the act which caused the injury. See Abiodun v. Att. Gen. Fed (2007) 15 NWLR (Pt. 1057) Pg. 359. Also, where the continuance of damage is such that gives rise to a fresh cause of action every time it occurs, limitation law will not apply to bar action on the fresh cause of action. See SPDC Nig. Ltd v. Amadi (2010) 13 NWLR Pt. 1210 Pg. 82, Olaosebikan v. Williams (1996) 5 NWLR (Pt. 449) Pg. 437. In the circumstances of this case, the claim of continuing injury cannot fly because there is no evidence that showed that the Appellants were unaware of the injury or unaware that they had a cause of action against the Respondent.” PER OBASEKI-ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal flowing from the decision of the Federal High Court; Lagos delivered on 21/11/2018. The Appellants dissatisfied with the decision of the lower Court, filed a Notice of Appeal on 3/12/18.
A summary of the facts was that the Respondent filed an action under the AMCON Act and Practice Direction 2013 on 25/6/18 to recover the loan which was part of the eligible bank assets acquired by the Respondent from Access bank plc. The Appellants contended in defence that the right to recover the alleged indebtedness had become extinguished and unenforceable in that same had become statute barred. The Appellants filed a preliminary objection along this line at pages 262 – 313 of the record.
The lower Court dismissed the preliminary objection hence this appeal.
The Appellants brief was filed on 24/12/18 together with a reply brief filed on 27/2/19 both were settled by Chief F. O. Fagbohungbe, SAN and Abayomi Adeniran, Esq, of F.O. Fagbohungbe & Co, wherein a single issue for determination was distilled thus:
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?Whether the Court below was right when the learned trial Judge held that the Respondent?s suit was not statue barred and consequently, dismissed the Appellants? preliminary objection
The Respondent filed its brief on 16/1/19 and distilled four issues thus:
1. Whether the Limitation Law of Lagos State 2015 is applicable to the Respondent being a State authority by which the executive power of the Federal Republic of Nigeria is exercised with regards to the recovery of debts.
2. Whether the Court below was not right when it held that the allegations of fraud made out by the Respondent against the Appellants does not constitute exceptions to a cause of action becoming statute barred.
3. Whether the lower Court was not right when it held that the case being an action for recovery of debt which demand letter was issued on 21st May, 2018, the time of the Respondent was not still running when the suit was filed
4. Whether the refusal of the Appellants to respond to the content of the demand letter of 21//2108 which by its nature requires a response is not an acknowledgment of indebtedness.
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APPELLANTS? SUBMISSIONS
Appellants counsel submitted that the Respondent?s cause of action arose on 31/12/2010 when the Respondent purchased the Appellants alleged indebtedness from Access bank plc and that same has become statute barred.
He submitted that the depositions in the Respondent?s counter affidavit were a desperate attempt to becloud the actual time the cause of action arose. He also submitted that the lower Court ought to have resorted to the provision of Section 35(5) of the AMCON (Amendment) Act, 2015 which provides that time shall begin to run from the date of the purchase of the eligible bank asset.
Counsel referred to the cases of JFS INVESTMENT LTD V BRAWAL LINE LTD (2010) 18 NWLR (PT 1225) 495; HAJIYA IYYA ALHASSAN DUZU & ANOR V ALHAJI JIBRIL YUNUSA & ORS (2010) LPELR – 8989 (CA) to submit that limitation period is to protect a defendant from the injustice of having to face a stale claim.
Appellants counsel submitted that the action has become statute barred having regards to Section 8 of the Limitation Law of Lagos State, 2015 that a period of more than 6years has elapsed from 31/12/2010 when the Respondent acquired the alleged
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indebtedness, to 25/6/2018, when the suit was instituted.
Counsel submitted that the Respondent?s letter of demand of 21/5/2018 was grossly irrelevant, that the cause of action cannot be deemed to have accrued from the date of the said letter and that the letter formed part of the wrong decision reached by the lower Court. He added that in determining whether the action is statute barred, recourse can only be made to the provisions of the Limitation Law of Lagos State and not any other common law principle.
Appellants counsel further submitted that even if the lower Court was to consider the letter of demand, that it is the initial letter dated 25/2/2011 that should have been considered.
Appellants counsel submitted that the issue of fraud is speculative and trumped up by the Respondent. That the facts pleaded by the Respondent cannot be situated within the meaning of fraud Section 58 of the Limitation Law of Lagos State cannot validly apply tand that o postpone the limitation period.
Counsel urged this Court to hold that the Respondent did not make out any prima facie case of fraud against the Appellants and that there was no
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material fact before the Court to warrant the dismissal of the Appellants preliminary objection.
He further submitted that even if there was fraud, the said fraud would have been discovered by either Access bank plc, the Respondent?s predecessor in title, or the Respondent as far back as 31/12/2010, with reasonable diligence before the Respondent?s right of action became statute barred.
RESPONDENT?S SUBMISSIONS
Respondent counsel submitted that the Limitation Law of Lagos State is inapplicable to the Respondent being a state authority by which the executive powers of the Federal Republic of Nigeria is exercised with regards to recovery of debt. He relied on Section 4 and 69 of the Limitation Law of Lagos State; MABAMIJE v OTTO (2016) 13 NWLR (PT 1529) 171 at 180, para A.
On whether the allegation of fraud constitutes exception to a cause of action becoming statue barred, Respondent submitted in the alternative to issue 1 that the fraud was discovered after the case was assigned on 31/10/17 and that it prevented the cause of action from running.
He submitted that the lower Court was right when he held that by the
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averment of fraud, the time for the Respondent was still running when the suit was filed on the 25/6/2018. He relied on Section 58 of the Limitation Law of Lagos State; STATOIL NIG LTD v INDUCON NIG LTD (2014) 9 NWLR (PT 1411); DUZU v YUNUSA (2010) 10 NWLR (PT 1200) 86; UBA v ETIABA (2010) 10 NWLR (PT 1202) 343 at 369.
On issue three, counsel submitted that the lower Court was right in holding that the case being an action for recovery of debt which demand letter was only issued on 21st May, 2018, the time of the Respondent was still running when the suit was filed. He submitted that the cause of action accrued upon the demand. He relied on WEMA BANK V OWOSHO (2018) LPELR – 43857 at 236.
On issue four, the Respondent submitted that the refusal of the Appellants to respond to the contents of the demand letter of 21/5/2018 which by its nature requires a response is an acknowledgment of the indebtedness and that the cause of action is deemed to have accrued from the date the Appellants received the letter but refused to respond to same. He relied on Section 38 of the Limitation Law of Lagos State;BAGOBIRI V UNITY BANK PLC (2016) LPELR – 41161 (CA);
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GWANI V EBULE (1990) 5 NWLR (PT 149) 201; TRADE BANK PLC V CHAMI (2003) 13 NWLR (PT 836) 168; amongst other cases.
Respondent counsel also submitted that the Appellants counsel is helping the Appellants to deliberately frustrate the recovery of the loan and that such conduct has been condemned by the Court in the case of KENFRANK (NIG) LTD V UBA (2002) 8 NWLR (PT 789) 46 at 74.
APPELLANTS? REPLY
Appellants counsel submitted that the Respondent?s submission in paragraph 1.2 of its brief is misleading and that the Appellants did not give a personal guarantee to Access bank plc in respect of credit facilities, and faulted the allegation that the Appellants carted away commercial papers relating to the investment. He urged this Court to discountenance all prefatory facts in the Respondent?s brief of argument.
The Appellants objected to the four issues for determination and asked that it be struck out, on the ground that only two grounds of appeal are contained in the notice of appeal thereby formulating more issues than the grounds of appeal. He relied on PADAWA V YATAU (2003) 5NWLR (PT 813) 247; SOGBESAN V OGUNBIYI (2006)
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4 NWLR (PT 969) 19.
In addition, he argued that the Respondent?s issues (a) & (d) do not flow from the Appellants grounds of appeal and that it is liable to be struck out. He cited FEDERAL MINISTRY OF HEALTH V COMET SHIPPING AGENCIES (2009) ALL FWLR (PT 183) 1260; DREXEL ENERGY V TIB (2009) ALL FWLR (PT 456) 1983.
He posit that the issue of Limitation Law of Lagos not applicable to the Respondent being a state authority was not a ground of appeal. Furthermore he argued that issues (b) & (c) were formulated from the same ground of appeal that is ground 1 and should be struck out. He cited NACB LTD V OZOEMELAM (2016) LPELR – 260 151 (SC).
Further to this foregoing, Appellants? counsel also submitted that the Respondent?s submissions under its issue (b) are at variance with the said issue as formulated by the Respondent itself. He submitted that an argument should be based on an issue formulated from the ground of appeal. He referred to the case of ONIFADE V OLAYIWOLA (1990) 7 NWLR (161) 130.
In reply to the Respondent?s brief he submitted that Section 4 of the Limitation Law of Lagos State is not by itself
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absolute/sacrosanct for all intents and purpose, and that the Respondent had not pointed to any other limitation law. He referred to Section 5 of the AMCON Act, 2015 which amended Section 35 of the AMCON Act, 2010 and that it stipulates that time begins to run and the cause of action deemed to arise from the date of the purchase of the eligible bank assets.
He posit that the Respondent was making another case different from the Respondent?s case at the lower Court. He referred to EZE V N.A.M.A. & ORS (2016) LPELR – 41453 (CA); OSUJI V EKEOCHA (2009) 16 NWLR (PT 1166) 81; ADEGOKE MOTORS LTD V ADESANYA & ANOR (1989) LPELR – 94 (SC).
Appellants counsel submitted that Section 38 and 58 of the Limitation Law of Lagos State cannot also avail the Respondent. He submitted that there is nothing on record to show that the fraud alluded to by the Respondent was discovered by the Respondent itself. That the allegation of fraud is at best a creation of the Respondent?s counsel and a mere attempt to pervert the course of justice. He referred to Rule 15(3) (f) (g) & (h) of the Rules of Professional Conduct for Legal Practitioners, 2007;
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Section 135(1) of the Evidence Act, 2011.
Appellants counsel contended that the Wema bank case was quoted out of con and that cases cited did not apply to the principle of law and that Section 38 of the Limitation Law of Lagos State was grossly misconceived and misapplied. He also submitted that the Respondent sought to make a new case under its issue 4 and that the line of argument amounts to raising a fresh issue on appeal.
Appellants counsel disagreed that he encouraged his client to frustrate the recovery of debt and relied on Rule 14(1) of Rules of Professional Conduct for Legal Practitioners, 2007 and asked that the appeal be allowed and the ruling set aside.
RESOLUTION
The Appellants raised some preliminary issues by way of objections in its reply brief on the issues for determination distilled by the Respondent that they are incompetent. I have examined the only two grounds of appeal contained in the Notice of Appeal.
I have seen issues (a) & (d) and observe that issue (a) is hinged on ground 1 particulars x & xii of the Notice of Appeal, which deals with the combined effect of Section 35(5) of the AMCON ACT and
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Section 8 of Limitation Law of Lagos State, while issue (d) flows from ground 2 where the Appellants stated that there was no evidence of acknowledgment of the demand letter. I therefore do not agree with the Appellants? objection. However issues (b) & (c)) are from ground 1 therefore the rule of multiplicity of issues is against them. In OKORO V STATE (2006) LPELR ? 7594 (CA) the Court held that:
?In the same vein, proliferations of issues from a ground of appeal is not acceptable and multiplicity of issues more than the ground of appeal are discountenanced, see UNILORIN V OLUWADARE (2003) 3NWLR (PT. 808) 557; JACOB K VUAGHOGHO & ORS V NIPOST LTD & ANOR (2003) 8 NWLR (pt 822) 308 AT 332.”
Therefore issues (b) & (c) are incompetent and accordingly struck out.
Having disposed of the preliminary objection I shall proceed to consider the main appeal and the Appellants? issues shall form the issues for resolutions.
The burning question in this appeal is whether the claim is statue barred by virtue of Section 35(5) of the AMCON (Amendment) Act, 2015 or Section 8 Limitation Law of Lagos State, 2015.
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For purpose of clarity I shall reproduce the provision of the AMCON Act:
35(5). For the purpose of the provisions of the limitation law of a state or the Limitation Act of Federal Capital Territory, with respect to any debt owed to the Corporation by reason of its acquisition of an eligible bank asset, time shall begin to run, and the cause of action deemed to arise, from the date of the purchase of the eligible bank asset.
Section 8 Limitation Law of Lagos State
1) The following actions will not be brought after the expiration of six years (6 years) from the date on which the cause of action accrued ?
2) A) actions founded on simple contract
e) Actions to recover any sum recoverable by virtue of any enactment other than;
iii) an amount recoverable against concurrent wrong doer under any civil liability enactment for the time being in force relating to concurrent wrong ?doers.
?The date of purchase of the eligible assets will play a major role in this resolution. The Respondent frontloaded the Assignment of the loan to its Application to recover the debt under the AMCON practice direction. It is at page
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43 of the records of proceedings it states in opening:
?We hereby give you notice that by a loan purchase & limited Service agreement effective the 31st day of December 2010, (loan purchase Agreement) between (the bank) and the ASSET MANAGEMENT CORPORATION OF NIGERIA (The corporation) the bank has assigned to the Corporation absolutely all its rights, title, interest, benefits, receivables and proceeds arising from and in connection with the…
The Respondent averred in paragraphs 17 & 18 of the statement of claim that the Universal Chambers was issued a letter of engagement on 30th October, 2017 and they thereafter issued a demand notice to the Appellants on 21/5/2018 for repayment of N4,777,743,894.79 but the Appellants failed and refused to comply. Ordinarily the time for an action for recovery of debt owed would be statue barred after 6years (going by the Limitation Law of Lagos State) but from when does the time start to run is it from the date of the cause of action or the date of demand to repay or is the date in a specific statue governing the matter?
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I have read the case of WEMA BANK V OWOSHO (supra) wherein this Court stated that the time of the demand letter made for the recovery of the debt is the date the cause of action accrued. In Section 35(5) of the AMCON (Amendment) Act it recognises the application of the state limitation laws and the FTC limitation laws only to the extent that the time of limitation shall run from the date of purchase of eligible assets, therefore it consciously made a time line for the limitation. Thus, the time shall begin to run and the cause of action shall be deemed to arise from the date of the purchase of the eligible asset.
Section 25 (1) of AMCON Act states:
?The corporation may, subject to the provision of this act within 3months of the designation of any asset as eligible bank asset in pursuance of Section 24, specifying a class of bank assets as an eligible financial institution desirous of disposing of such eligible bank asset at a value and price to be determined in accordance …”
Therefore in this case the assets have been purchased and notification to the debtor communicated. It is in recognition of these steps that Section 35(5) of AMCON Act set the time limit to the
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date of purchase bearing in mind that each state has its limits. But the Respondent has submitted quite strongly that based on a community reading of Sections 4 (a) & (b) and Section 69 of the Limitation Law of Lagos renders inapplicable the law where a state authority and any other Act has fixed a period of limitation and through state authority is a party. Again state authority has been defined in Section 69 to mean Republic where it provided that Republic means Federal Republic of Nigeria.
For emphasis I shall reproduce:
This law will not apply to-
a. An action for which a period of limitation is fixed by any other enactment; or
b. an action to which a state authority is a party which if that state authority where a private individual and for which if that state authority where a private individual a period of limitation would be fixed by any other enactment.
Section 69
?State authority includes any authority by which the executive power of the Republic or the Lagos State is duly exercised in a particular case.
Section 69 also defines:
?Republic where it provides as follows; Republic means the Federal Republic of Nigeria.”
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The Respondent is AMCON established by the Federal government as an agent for aggressive recovery of bank bad debts but is it a republic referred to in Section 4 & 69 of the Limitation Law of Lagos State, 2015?
The 1999 Constitution (as amended) throws more light to this matter:
?1. (1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.
(3) If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
2. (1) Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.
(2) Nigeria shall be a Federation consisting of States and a Federal Capital
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Territory.
In DIKKO AND SONS LIMITED V CORPORATE AFFAIRS COMMISSION (2014) LPELR – 23730 (CA) Corporation was defined:
?A ?Corporation? is defined in Blacks law dictionary 9th edition page 391 as; ?An entity (usual a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights distinct from shareholders who own it and having rights to issue stock and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has personality a legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its constitution gives it.?
Therefore, AMCON is an individual, an entity and cannot be equated with a Republic. From the wordings of Section 4(b) of the Limitation Law, AMCON is not a State authority as defined and the Limitation law therefore applies to AMCON matters wherein the guidelines have been set as time lines in Section 35(5) of the AMCON Act. It is the procedure set out in
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an Act that must be followed. See UGBOJI V STATE (2017) LPELR ? 3427 (SC).
Therefore the Limitation Law of Lagos to this extent applies but time would start running from the date of purchase of eligible assets which is from 31st December, 2010.
I have read the decision of WEMA BANK V OWOSHO (supra), I find that the case of Wema bank is distinguishable from the case at hand. In that it is a simple debt recovery case owed the bank, while the present case is brought under the AMCON Act, it has statutory backing and has made procedures for when its cause of action becomes extinguished.
Where a statute provides that before a statutory power is exercised certain conditions must be satisfied and a particular method of exercising a statutory power only that method should be adopted. See AROWOLO V ADESINA (2011) 2 NWLR (PT 123) 315; APAPA V INEC (2012) 11 NWLR (PT 130); CAC V RTCC (2000) 11 NWLR (PT 115); AGODA V EMANUOTOR (1999) 8 NWLR (PT 615) 407; AUCHI POLY V OKUOGHEA (2005) 10 NWLR (PT 931) 297 at 291.
In DINGYADI & ANOR V INEC & ORS 2010 LPLER – 40142 (SC) The Apex Court held thus:
“…it must be appreciated that where the
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exercise of a right is circumscribed or limited by a rule of practice, and except where it is satisfactorily shown that compliance with such a rule has been waived, then that rule must be complied with. Court Rules are meant to be obeyed. See: Ezegbu v. FATB Ltd (1992) 1 NWLR (Pt.216) 197; Iroegbu v. Okwordu (1990) 6 NWLR (Pt.159) 643; CCB (Nig.) Plc v. AG Anambra State (1992) 8 NWLR (Pt.261) 528. Where there is non-compliance, such non-compliance may result into any step taken to be a nullity.”
See also CAC V REGISTERED TRUSTEE OF CELESTIAL CHURCH OF GOD (2009) LPELR – 11899 (CA); UNITED GEOPHYSICAL NIGERIA LTD & ORS V MOSHESHE (2014) LPELR – 24464 (CA).
In UGBORJI V STATE 2017 LPELR – 3427 (SC) it was held further that:
“Non-compliance with mandatory provisions of a statute has the consequence of rendering the proceedings or the act done pursuant thereto a nullity. It is a fundamental defect that is not a mere irregularity, but an illegality. See SANMABO v. THE STATE (1967) NMLR 314 AT 317; SALAMI OLONJE v. I.G.P (1955-56) WRNLR 1; AMOKEODO v. I.G.P (1999) 6 NWLR (pt.607) 467; THE STATE v. GWONTO (1983) NSCC 104. In the GWONTO case this
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Court found on the facts that the mandatory provisions as to interpretation were substantially complied with.”
Also having established the date of purchase of the eligible asset, the date of time running and cause of action in this AMCON action is 21st December, 2010, which ordinarily is about 8years and not the date of the letter of demand as held by the lower Court and contrary to submissions of Respondent counsel.
However the Respondent has contended that the averment of fraud constitutes an exception to this rule. In paragraph 14(i) ? (vi) of the Respondent?s averment are particulars of fraud:
14. ?The claimant avers that part of the security for the loan was investment of N1.2 Billion in Commercial papers belonging to the 1st defendant but the 2nd and 3rd defendants used their positions as the alter egos of the 1st defendant and fraudulently carted away the Commercial papers thereby frustrating the bank from having access to securities…applied towards the repayment of the debt.”
It is trite that where fraud is raised in a matter caught by limitation law, it constitutes an exception. See NWANKWO &
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ANOR V NWANKWO (2017) LPELR – 42832 (CA):
“The Appellants claim that there cannot be limitation because the injury to them by the Respondent is a continuing one. Indeed, there are some exceptions to the limitation law set by various limitation statutes. These statutory limitations cover cases such as fraud, deliberate concealment by the defendant, or mistake or in a circumstance where there is a continuing injury or fresh damage arising from the same injury. Each fresh damage arising from the same injury or a continuing injury gives rise to a fresh cause of action. The term “continuing injury or damage” is an injury that is still in the process of being committed. See Black’s Law Dictionary Pg. 801, 8th Edition. In Aremo II v Adekanye (2004) ALL FWLR (Pt. 224) 2113 at 2132 – 2133, the Supreme Court per Edozie JSC said: “Admittedly legal principles are not always inflexible. Sometime they admit of certain exceptions. The law of limitation of action recognizes some exceptions. Thus, where there has been a continuance of the damage, a fresh cause of action arises from time to time, as often as damage is caused.” A continuing damage or injury is not merely
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continuance of the injurious effects of a legal injury but the continuance of the legal injury itself. It is the continuance of the act which caused the damage. The law is that, generally, where the injury complained of is a continuing one, time does not begin to run for the purpose of application of a limitation law until the cessation of the event leading to the cause of action. In other words “Continuation of injury” means the continuation of the act which caused the injury. See Abiodun v. Att. Gen. Fed (2007) 15 NWLR (Pt. 1057) Pg. 359. Also, where the continuance of damage is such that gives rise to a fresh cause of action every time it occurs, limitation law will not apply to bar action on the fresh cause of action. See SPDC Nig. Ltd v. Amadi (2010) 13 NWLR Pt. 1210 Pg. 82, Olaosebikan v. Williams (1996) 5 NWLR (Pt. 449) Pg. 437. In the circumstances of this case, the claim of continuing injury cannot fly because there is no evidence that showed that the Appellants were unaware of the injury or unaware that they had a cause of action against the Respondent.”
AIZE V AIZE & ORS (2014) LPELR – 23778 (CA):
“Of course, even where the defence of
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statute of limitation is applicable, there is always exception to that defence, where there is a plea of fraud or re-activation/admission of the act or omission complained of by the party seeking to take advantage of the plea of statute of limitation. In the case of NAGPPE vs. Pharmacists Council of Nigeria & Ors. (2013) LPELR – 21834 (C.A), this Court held, relying on the case of Eboigbe vs. NNPC (1994) NWLR (Pt.347) 649; (1994) LPELR – 992 (SC): “…Where there has been an admission of liability during negotiation and all that remains is fulfilment of the agreement it cannot be just and equitable that the cause of action be bared… The Limitation period shall not begin to run where there is a case of fraud… until the Plaintiff has discovered the fraud, or could with reasonable diligence, have discovered it. Arowolo vs. Ifabiyi (1995) 8 NWLR (Pt 414) 376… Thus, since the Respondents were only poised to give life and effect to their guidelines (Annexure C) which they issued on 15/11/1995 by implementing or enforcing it after 31st March, 2001, Appellants were certainly not bared from bringing the suit when they did on 13/3/2001.” See also Okoro vs.
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Osim (2012) 39 WRN 151 at 185.”
See also EHANIRE V ERHUNMWUSE (2001) LPELR – 8556 (CA):
“In order to limit some of the harsh effect of S.6 (2), S.25 of the Limitation Law of Bendel State (supra) provides for situations when the period of limitation could be extended. The Section provides thus:- “Where, in the case of any action, for which a period of limitation is prescribed by this Law, either – a) The action is based upon the fraud of the Defendant or his agent or of any person through whom the claims or his agent; or b) The right of action is concealed by the fraud of any such person as aforesaid; or c) The action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it.”Under the Limitation Law of Lagos State in 58(1) it provides for postponement of limitation period in case of fraud:?b) the right of action is concealed by the fraud of any person; the period of limitation will not begin to run until the plaintiff has discovered the fraud or could with
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reasonable diligence have discovered it.”
This was the reason given by the Respondent that the fraud was only discovered during the briefing.
In the light of the above precedents, the law has provided exceptions to the harshness of the rule and the circumstance of this case qualifies as an exception. On this, the lower Court was right in its finding which is unimpeachable.
The Appellants has vehemently protested that the plea of fraud is a ruse. At this stage it is impossible to agree and this would be thrashed out at trial. Fraud when raised carries an element of criminality and it requires proof beyond reasonable doubt and not by human logic or argument no matter how laudable.
In the meantime I resolve the sole issue partly in favour of the Respondent.
I have refrained from resolving whether the demand notice amounts to consent/acknowledgement, simply because it was struck out as one of the incompetent Respondent?s issue. Furthermore it is an issue touching on the substantive matter and this Court has no intention of overreaching the lower Court when the substantive matter will be taken. It can only be thrashed out
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in trial and final address stage.
On the whole, the appeal fails and it is accordingly dismissed, the suit is remitted to the Chief Judge of the Federal High Court for accelerated hearing. Costs of N200,000 is awarded to the Respondent.
MOHAMMED LAWAL GARBA, J.C.A.: I agree.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.
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Appearances:
Chief F. O. Fagbonhungbe, SAN with him, A. A. Adeniran and Babatunde OsinbajoFor Appellant(s)
Ochai OtokpaFor Respondent(s)
Appearances
Chief F. O. Fagbonhungbe, SAN with him, A. A. Adeniran and Babatunde OsinbajoFor Appellant
AND
Ochai OtokpaFor Respondent
