AKODE v. OMOLADE (2020)

AKODE v. OMOLADE

(2020)LCN/14372(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Monday, June 08, 2020

CA/EK/78/2018

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Between

OLUWAFEMI AKODE APPELANT(S)

And

CHIEF RICHARD OMOLADE RESPONDENT(S)

RATIO

THE ESSENCE OF A STATUTE OF LIMITATION

When the action was filed is as set out in the Writ of Summons how does one determine the period of Limitation? The answer is simple – by looking at the Writ of Summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing the date with the date on which the writ of summons was filed (sic) this can be done without taking oral evidence from the witnesses. If the time on the writ is beyond the period allowed by the Limitation law, then the action is statute barred. A statute of Limitation removes the right of action, the right of enforcement, the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce. See Egbe v. Adefarasin (1987) 1 SCNJ 1. PER ELECHI, J.C.A.

WHETHER OR NOT A CLAIM THAT IS SUPPOSED TO BE STATUTE BARRED IS ENFORCEABLE

The law is clear that it is not the case that a claim that is supposed to be statute barred is not enforceable where it is admitted in subsequent correspondences like the one in the present case.
In NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD (Formerly) NATIONAL PROVIDENT FUND MANAGEMENT BOARD VS. KLIFCO NIGERIA LIMITED (2010) 13 NWLR Pt 1211 at 307, p. 316 R 14. The Supreme Court held thus;
“An acknowledgement of the debt can revive a right to recover the debt by action must be unconditional and unequivocal. Furthermore, it is not required that the precise amount, i.e Figures of the debt must be stated. In the instant case, Exhibit J satisfied the requirement of acknowledgment of Debt owned by the Respondent.
Consequently, it revives the debt which otherwise was extinct by operation of law. In the circumstance, the Appellant claim was not statute Barred.” PER ELECHI, J.C.A.

WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

It is trite that an Appellate Court will not interfere with an award of damages except it is shown that the award was based on erroneous estimates of the damages the plaintiff is entitled to. However, where there is evidence to sustain the award by the trial Court, the award will not be disturbed. It is not for the Appellate Court in the circumstance, to substitute its discretion for that of the trial Court. Its primary duty is merely to examine the record to see if the trial Court properly or improperly estimated and awarded damages. See Odikanwa v. Iheanacho (2010) ALL FWLR (Pt. 549) 1181, International Messengers Nig Ltd v. Pegofor Ind Ltd (2005) ALL FWLR (PT. 270) 2018, Soleh Boneh Overseas Nig Ltd v. Ayodele(1989) 1 NWLR Pt. 549, Zik Press Ltd v. Ikok (1951) 13 WACA 188. PER ELECHI, J.C.A.

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal from the judgment of Ekiti State High Court Sitting at Ado Ekiti Judicial Division delivered by HON. JUSTICE C.I. AKINTAYO on 22nd day of January, 2018 in favour of the Respondent for a claim of N1,000,000 (One Million Naira) and damages of N3,000,000 (Three Million Naira) in favour of the Respondent.

The Appellant, dissatisfied with judgment, Filed a Notice of Appeal on 19th April, 2018 containing five ground of Appeal against judgment.

Respondent (as claimant before the lower Court) instituted the suit against the Appellant (as defendant) vide his writ of Summons filed at the Registry of the lower Court on 11th April, 2017, wherein Respondent claimed as per his claims which are couched out in the Writ of Summons and reproduced in paragraph 23 (c) and (d) of the statement of claim as follows:
“(c) AN ORDER of this Honourable Court, directing the defendant to pay to the claimant the sum of N6, 500,000.00 (Six Million, Five Hundred Thousand Naira Only) to the Claimant. N1,000,000 (Deposit for 911 Mercedes Tipper) N5, 000,000 as General Damages)

N500, 000 as (Cost of Litigation)
(d) 20% interest on the judgement debt from the day of the judgment till Liquidation.”

Hearing commenced on the 19th October, 2017. At the close of hearing the learned trial judge delivered its judgment in the suit on the 22nd January, 2018 in favour of the Respondent.

Dissatisfied with the decision of the lower Court, the Appellant filed his notice of Appeal at the Registry of the lower Court on the 19th April, 2018.

The Appellant stated the facts of this case as follows that the Respondent is a retired Civil Servant of Ilawe Ekiti, Ekiti State and Ibadan, Oyo State.

Respondent wanted to purchase a 911 Mercedes Tipper.

Appellant was introduced to the Respondent as a motor dealer by one Mr. Samson Ajayi (Aka Baba Pupa) on 22nd August, 2005. The said Mr. Samson Ajayi went to Ibadan, Oyo State on 22nd August, 2005 where the Appellant and Mr. Samson Ajayi met with the Respondent and the contract for the purchase and delivery of the said 911 Mercedes Tipper was consummated and executed at Ibadan, Oyo State between the parties.

Appellant agreed with the Respondent in the presence of

Mr. Samson Ajayi to a total consideration of One Million, Seven Hundred Thousand Naira (N1,700,000.00) only for the purchase and delivery of the said Tipper and the Respondent made a part payment of One Million Naira (N1,000,000.00) only to the respondent on the said 22nd August 2005 at Ibadan, Oyo State and which payment, the Appellant acknowledged on his letter headed document.

At the time of the contract, Appellant’s office and home Address were situate at Number 14, Sufianu Street, Olodi – Apapa, Ajegunle, Lagos State and 4/6, Saviour Street, Surulere Quarters, Isashi Odan, Lagos State respectively.

Also, the said contract was executed at Ibadan, Oyo State. Appellant was resident in Lagos State and carried on his business in Lagos State.

To argue the Appeal, the Appellant distilled 4 issues for determination viz:
(a) Whether the learned trial judge had the territorial jurisdiction to decide the suit? Ground one of the Notice of Appeal.
(b) Whether the suit is not statute barred? Ground Two of the Notice of Appeal.
(c) Whether the contract between the Appellant and the Respondent for the purchase and delivery of

prohibited vehicle from Cotonou, Benin Republic into Nigeria was not an illegal contract which is unenforceable? Ground Three of the Notice of Appeal.
(d) Whether the damages awarded by the learned trial judge to the Respondent was not excessive? Ground Four (4) of the Notice of Appeal.

ISSUE ONE
“Whether the learned trial judge had the territorial jurisdiction to decide the suit.”

It is argued that jurisdiction is the life wire of any proceeding in Court and everything done in its absence is simply a nullity. SeeEstate of LATE Chief H.I.S. Idris v. Ecodril Nigeria Ltd & 3 Ors (2016) 12 NWLR (Pt 1527) 355, 377-378, A/G, Lagos State v. Eko Hotels Limited (2018) 7 NWLR (Pt. 1619) 518 at 552-553, Madukolu v. Nkemdilim (1962) 2 SCNLR 341, Sken Consult (Nig) Ltd v. Ukey (1981) 1 SC 6 at 62, Inakoju v. Adeleke (2007) 4 NWLR (PT. 1025) 423 at 588.

It is equally trite law that where the Court lacks jurisdiction to entertain a cause or matter, the entire process, no matter how well conducted, is an exercise in futility. The proceedings would amount to a nullity abinitio and liable to be set aside.

In determining whether or

no the Court has jurisdiction to entertain a cause or matter, it is the originating processes filed by the plaintiff that would be considered. See A-G FEDERATION V. GUARDIAN NEWSPAPERS LTD (1982) 7 SC 124, ADEYEMI V. OPEYORI (1976) 6-10 SC 31, AMAECHI V. INEC (NO 2) (2007) 18 NWLR (Pt. 1065) 98. See also LADOJA V. AJIMOBI (2016) 10 NWLR (PT. 1519) 88 AT 132, THEOBROS AUTO-LINK NIG. LTD V. BAKELY INTERNATIONAL AUTO-ENGINEERING CO (2013) 2 NWLR (PT. 1338) 337.

By the submission of Appellants Learned counsel-Sunday J. Ochayi Esq., Exhibit A shows that the Appellant’s office Address was Number 14, Sufianu Street, Olodi APapa, Ajegunle, Lagos State while Appellant’s Home Address was Number 4/6, Saviour Street, Surulere Quarters, Iseshi Odan, Lagos State.

Therefore it is indisputable and obviously uncontroverted that the contract, the subject matter of the action was contracted at Ibadan, Oyo State, Appellant was resident in Lagos State where he carried on his business and the contract was to be executed at Cotonou, Benin Republic.

Accordingly, it is submitted that the Ekiti State High Court has no jurisdiction and or territorial jurisdiction

to hear and decide the suit, especially as the 2nd Respondent testified under cross-examination thus:
“The defendant was living in Lagos when the N1 Million Naira was given to him as we use to call him.”

Equally trite also is that a party cannot on his/her own act, confer jurisdiction on the Court. The Court can not also confer jurisdiction on itself nor can it waive it either. Parties on their own can not confer jurisdiction on the Court. This is so because a Court’s jurisdictions are vested by the statute and the constitution. See Mainstreet Bank Capital Ltd v. Nig RE (2018) 14 NWLR (Pt. 1640) 423 at 454-455, Oke v. Oke (2006) 17 NWLR (PT. 1008) 224 AT 239.

Mr. Ochayi then referred to Order 2 Rule 3 of the Ekiti State High Court (Civil Procedure) Rules 2011 as the enabling statute in the instant case.

In view of the above, it is submitted that it is the State High Court Ibadan, Oyo State or the High Court of Justice, Lagos State that has the jurisdiction to hear and determine the suit and not the High Court of Justice, Ekiti State. The Court is therefore urged to resolve this issue in favour of the Appellant.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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ISSUE TWO
“Whether the suit is not statute barred. Ground 2 of the Notice of Appeal.”

According to learned Counsel, it is trite that in order to determine when a cause of action accrued, the process to be considered are the writ of summons and the statement of claim.
Refer to the cases of:-
(a) Okafor v. B.D.U. JOS BRANCH (2017) 2 NWLR (PT. 1559) P. 385 AT 417-418 PARAS H-A per Kekere-Ekun, JSC Ogundipe v. NDIC (2009) 1 NWLR (pt. 1123) 473 1 Asaboro v. Pan Oceanic Oil Corporation Nig Ltd (2017) 7 NWLR (Pt. 1563) 42 at 67-68

It is contended that from the originating Court processes filed by the Respondent in this appeal, the contract between the Appellant and the Respondent was a simple contract which was contracted on 22nd August, 2005 with the part payment of the consideration of One Million Naira (N1, 000,000.00) only by the Respondent to the appellant for the purchase and delivery of the 911 Mercedes Tipper. Exhibit “A”.

Further the suit was instituted on 11th April, 2017 (precisely Eleven years, seven months and eleven days) after the contract of purchase of the Tipper between the Appellant and the Respondent

was contracted.

The law is trite that actions founded on simple contract shall not be brought after the expiration of six year from the date on which the cause of action accrued. See Sifax Nig Ltd v. Migfo Nig Ltd (2018) 9 NWLR (PT. 1623) 138 AT 190.

By Section 8 (1) (a) of the Limitation Law of Lagos State which is in tandem with the Limitation Law of Ekiti State, the Respondent action is statute barred and it should be dismissed.

The Court is urged to resolve this issue in favour of the Appellant.

ISSUE THREE
“Whether the contract between the Appellant and Respondent for the purchase and delivery of prohibited vehicle from Cotonou Benin Republic into Nigeria was not an illegal contract which is unenforceable.” Ground 3 of the Notice of Appeal.

On the legality or otherwise on the Contract, Mr. Ochayi referred the Court to Halsbury’s Law of England 3rd Edition Volume 8 page 125 paragraph 125 paragraph 218.

Further the law is trite that party cannot be permitted to benefit from his own wrong or default. See the cases of:
(a) VINZ INT (NIG) LTD V. MOROHUNDIYA (2009) 11 NWLR (PT1153) P. 562 at 579 Para C-D,<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(b) FIRST BANK OF NIGERIA PLC V. MAY MEDICAL CLINICS (1996) 6 NWLR (PT 471) P.195
(c) ADEDEJI V. NATIONAL BANK OF NIGERIA LIMITED (1989) 1 NWLR (PT 96) P. 212 and
(d) SOLANKE V. ABED (1962) 1 SCNLR P. 371.

It is therefore submitted that the entire contract of purchase and delivery of prohibited vehicle to Nigeria from Benin Republic which the Federal Government of Nigeria by Public Policy has prohibited is an illegal contract and the Court is urged to resolve issue three (3) in favour of the Appellant.

ISSUE FOUR
Whether the damages awarded by the learned trial judge to the Respondent was not excessive?

Learned Appellant’s counsel submitted that the award of One Million Naira as damages was extremely on the high side.

Also that apart from the fact that the monetary awards were excessive, there was no specific claims in the Writ of Summons and statement of Claim which particularly itemized the claims as separate claims. The lower Court ought not to have granted the Respondents claims as it is not a Father Christmas.

He submitted that an Appellate Court can not interfere or upset with the award of

damages by a trial Court if some ingredients are present. See MTN NIG. COMM LTD V. C.F.S. LTD (2016) 1 NWLR (PT. 1493) 399 AT 359, NZERIBE V. DAVE ENG. CO LTD (1994) 8 NWLR (PT. 361) 1241 KOPEK CONSTLTD V. EKISOLA (2010) 3 NWLR (PT. 1203) 598 1, AG LEVENTIS NIG LTD PLC V. AKPU (2007) NWLR (PT. 1065) 416.

The Court is urged to resolve this issue in favour of the Appellant allow the appeal, set aside the decision of the lower Court and grant the reliefs sought by the Appellant.

On their own part, the Respondent respectively adopted the four issues formulated by the Appellant but with a little modification to issue 3 which goes thus:
(a) Whether the learned trial judge had the territorial Jurisdiction to decide the suit?
(b) Whether the suit is not statute barred?
(c) Whether the contract between the Appellant and the Respondent is Illegal?
(d) Whether the damages awarded by the learned trial judge was not excessive.

ARGUMENT ON ISSUE 1
Whether the learned trial judge had the territorial Jurisdiction

to decide the suit?

It is submitted that the life wire of any proceeding in Court is the Jurisdiction of the Court to entertain the matter otherwise, such proceeding will be an effort in nullity.

Lack of Jurisdiction will nullify a proceeding. Jurisdiction is the pillar upon which any case stands.

By virtue of ORDER 2 RULE 3 OF THE HIGH COURT OF EKITI STATE CIVIL PROCEDURE RULES, 2011.

Breach of any contract shall be commenced and determined in the Judicial Division in which such contract ought to have been performed or in which the Defendant Resides or carries on business.

It is submitted that the rules of Court applicable at the time this suit was filed is that of Ekiti State High Court Civil Procedure rules.

And having regards to the facts that the Appellant and the Respondent are resident in Ekiti State within the Jurisdiction of the High Court of Ekiti State and the said Court has the jurisdiction to determine the Respondent’s suit. See First Bank of Nigeria PLC V. Abraham (2008) 18 NWLR (PT. 1118) 198.

It is contended that the Appellant is resident in Ekiti as per Exhibit C at page 29 of the records of

Appeal. Exhibit C was a response of the Appellant to Exhibit B, his address was conspicuously written to show that he is resident in Ekiti State. Also the Appellant at various stages of the hearing of this suit gave his address as G.R.A. Onigari, Ado Ekiti.

Therefore, it is submitted that a debtor or someone who otherwise incurred some liabilities or his obligation thereunder simply because he has changed his resident from the Judicial Division, State or Country at the time of such debtor obligation.
The Court is urged to resolve this issue in favour of the Respondent.

ISSUE 2
“Whether the suit is not statute barred?

It is contended that the issue of statute barred can be ascertained through the originating process, statement of claim together with the evidence. The evidence before the Court show that the Appellant is indebted to the Respondent as per Exhibit C which was made by the Appellant through his counsel on the 8th February, 2017.

Learned Respondent’s counsel contends that it is not within the purview of the law to say that an indebtedness accepted on the 8th February, 2017 and same is statute barred in the same

year. The law he contended is clear that it is supposed to be statute barred is not enforceable where it is admitted in subsequent case that a claim that is supposed to be statute barred is not enforceable where it is admitted in subsequent correspondences as in the instant case.

The Court is urged to hold that the action of the Respondent is not statute barred and to resolve this issue in favour of the Respondent.

ISSUE 3
Whether the contract between the Appellant and Respondent is Illegal?

It is submitted that a contract is illegal if the consideration or the promise involves doing something Illegal or contrary to Public Policy or if the intention of the Parties in making the contract is thereby to promote something which is Illegal or contrary to public policy. See ALHAJI TAOFIK ALAO VS. A.C.B. (1998) 3 NWLR (Pt 542) 339 R. 2 at 355 P. E-F SC.

It is further submitted that if a transaction or contract or performance is expressly or impliedly prohibited by statute, it is illegal and unenforceable. Thus, where a contract made by parties is expressly forbidden by statute, its illegality is undoubted and no Court ought to enforce it or

allow itself to be used for illegality of alleged obligation arising thereunder. ALHAJI TAOFIK ALAO VS. A.C.B. Supra ratio 3 at page 370 paras B-C.

There is nothing in the record to show that buying a Car or Vehicle from Cotonuo is Illegal or contrary to public Policy. It is further submitted that buying a vehicle from Cotonuo is legal and it becomes Illegal where a dealer fails to pay the necessary custom duties. There is no statute that prohibits buying cars from Cotonuo as the time of this transaction between the parties.

The Appellant admitted that he knows that he ought to pay custom duties on all the vehicles purchased into this country but he failed to do so. See page 60 of the record of appeal where the Appellant said the following under cross examination:
“I am a car dealer. I have been in the business for about 20 years so I know the rules of the business. I know that I ought and should pay Custom duties on all the vehicle I purchased into this country. I know where to buy my products to maximized profit.”

From the forgoing, it is submitted that the contract between the appellant and the Respondent is legal but the

necessary conditions were not complied with by the Appellant and the Appellant cannot benefit from his own wrong and this Court must not allow him to benefit from his own wrong.

It is also submitted that from the record before this Court there was no evidence that the Appellant herein purchased any vehicle let alone paying duties on it.
Therefore, the Court is urged resolve the issue 3 in favour of the Respondent.

ARGUMENT ON ISSUE 4
Whether the Damages awarded by the learned trial judge was not excessive?

It is submitted that an Appellate Court will not interfere with an award of damages except it is shown that the award was based on erroneous estimates of the damages the Plaintiff was entitled to.

But where there is credible evidence to sustain the award by the trial Court, the award will not be disturbed. It is not for the Appellate Court, in the circumstance, to substitute its discretion or mind for that of the trial Court. Its plain duty is merely to examine the record to see if the trial Court properly or improperly estimated and awarded the damages.
See ODIKANWA VS. IHEANACHO (2010) ALL FWLR (PT. 549) P. 1181,<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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INTERNATIONAL MESSENGERS (NIG) LTD VS. PEGOFOR IND. LTD (2005) ALL FWLR (PT. 270) 2018,(2005) ALL NLR 234, SOLEH BONEH OVERSEAS (NIG) LTD VS. AYODELE (1989) 1 NWLR (PT 549), ZIK’S PRESS LTD VS. IKOKU (1951) 13 WACA 188 referred to p. 1191, paras E-G.

Therefore, it is submitted that the Appellant herein has failed to show the Court how the damages awarded against him is too high. Worthy of note also is that the Appellant herein was still in possession of N1, 000,000.00 (One Million Naira) of the Respondent from 2005 till date. Nonetheless, the Appellant failed to deliver the 911 Mercedes Tipper and also failed to return/refund the Respondent’s money for more than 13 years now. See Onwu v. Nka (1996) 7 NWLR (Pt 458) 1 AT 19, Kalu vs. Mbuko (1988) 3 NWLR (Pt 80) 86.

In view of the above, it is submitted that the damages awarded against the Appellant is not excessive when compared to the purchasing power as at the present economic situation of the country.

The Court is therefore urged to resolve this issue 4 in favour of the Respondent and to refuse the appeal and dismiss this appeal in its entirely and affirm the decision of the

trial Court of 22nd January, 2018 wherein judgment was given in favour of the Respondent.

The Appellant filed a reply brief dated 30th September and filed same date. I read the said reply brief. It is nothing more than re-arguing the issues already covered in his Appellant’s brief of argument as they are no new issues canvassed at the reply brief. As a result, this Court shall not be persuaded to consider the reply brief in the course of determining this appeal on its merit. The Reply brief is hereby discountenanced.

RESOLUTION OF ISSUES
Since the Respondent on his own wisdom adopted the Appellants issues as formulated, I will do same in the consideration of this appeal.

According, Appellant’s issues for determination are hereby adopted for the consideration of this appeal.

ISSUE ONE
“Whether the learned trial judge had the territorial jurisdiction to decide the suit?

In law, it is the claim of the claimant that determines the jurisdiction of the Court. See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517, Orthopaedic Hospital Management Board v. Garba (2002) 14 NWLR (Pt 788) 538 at 563.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In concluding whether the trial Court, the Ekiti State High Court of Justice had jurisdiction to have adjudicated on the matter, it is the Respondents claim as couched out in the writ of summons and reproduced in paragraph 23 (c) & (d) of the statement of claim as follows:
(c) An order of this Honourable Court, directing the defendant to pay to the claimant the sum of N6, 500,000.00 (Six Million, Five Hundred Thousand Naira only) to the claimants, N1,000,000 (Deposit for 911 Mercedes Tipper) N5,000 as (cost of Litigation)
(d) 20% interest on the judgement debt from the day of judgment till liquidation.

From the records, it is not in doubt that the Appellant is resident in Ekiti as could be seen in Exhibit C at page 29 of the record of appeal. Part of Exhibit C at page 29 of the records reads thus.
“Re-Demand Notice
“We act as solicitor to Mr. Olufemi A. Akode of near spotless Hotel, G.R.A. Ado Ekiti, Ekiti State, hereinafter referred to as “Our client” and on whose behalf we reply to your letter dated 31st January 2017…’’

The said Exhibit C was a response of the appellant to

Exhibit B where his address was shown to be that he his resident in Ekiti State.

Also, in a counter –affidavit at page 35 of the records, the appellant deposed that….. a Nigerian Citizen of Onigari G.R.A., Near spotless Hotel Ado- Ekiti, Ekiti State.
At page 45 of the records, the Appellant also gave his address as Onigari G.R.A. near spotless Hotel, Ado Ekiti, Ekiti State.

In addition, at page 60 of the records while giving evidence on oath having been sworn on the Holy Bible and stated in Yoruba- “I am Femi Akode of Onigari Sportless, Ado Ekiti.

With the above details of the residential address of the Appellant. One can not but disbelieve the contention of the Appellant office address was Number 14 Sufianu Street Olodi Apapa, Ajegunle, Lagos State while he purports that his home address was Number 4/6 saviour Street, Surulere Quarters, Isesshi Odan, Lagos State.

By virtue of Order 2 Rule 3 of the High Court (Civil Procedure) Rules 2011 states thus:
“Breach of any contract shall be commenced and determined in the judicial Division in which such contract ought to have been determined or in which the defendant

resides or carries on business.”

In the instant case, I am convinced beyond doubt from available sworn evidence on record that the Respondent residence at the material time was in Ado Ekiti, Ekiti State it follows that the rules of Court applicable at the time the suit was filed is that of the Ekiti State High Court (Civil Procedure) Rules 2011. Consequently, the High Court of Ekiti State has the jurisdiction to determine the Respondents case.
This issue is resolved in favour of the Respondent.

ISSUE TWO
“Whether the suit is not statute barred.”

The Central question begging for resolution is whether the action filed before the lower Court was indeed caught up by the statute of limitation stipulated by the Limitation Law of Ekiti State which law stipulate that no action shall be brought after six years of its occurrence.

The determinant date when it is argued that an action is statute barred is the date the action complained of occurred which gave the plaintiff the cause to institute the action. When the action was filed is as set out in the Writ of Summons how does one determine the period of Limitation?

The answer is simple – by looking at the Writ of Summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing the date with the date on which the writ of summons was filed (sic) this can be done without taking oral evidence from the witnesses. If the time on the writ is beyond the period allowed by the Limitation law, then the action is statute barred. A statute of Limitation removes the right of action, the right of enforcement, the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce. See Egbe v. Adefarasin (1987) 1 SCNJ 1.

As per Exhibit C, it is not in doubt that the Appellant is indebted to the Respondent to the tune of One Million Naira received and acknowledged by the Appellant for the purchase and supply of a 911 Mercedes Tipper sometime in 2005 through not perfected even until the institution of this suit. The Appellant is in default of the simple contract and can not benefit from his inability to supply the vehicle to the Respondent.
The law is clear that it is not the case that a claim that is supposed to be

statute barred is not enforceable where it is admitted in subsequent correspondences like the one in the present case.
In NIGERIA SOCIAL INSURANCE TRUST FUND MANAGEMENT BOARD (Formerly) NATIONAL PROVIDENT FUND MANAGEMENT BOARD VS. KLIFCO NIGERIA LIMITED (2010) 13 NWLR Pt 1211 at 307, p. 316 R 14. The Supreme Court held thus;
“An acknowledgement of the debt can revive a right to recover the debt by action must be unconditional and unequivocal. Furthermore, it is not required that the precise amount, i.e Figures of the debt must be stated. In the instant case, Exhibit J satisfied the requirement of acknowledgment of Debt owned by the Respondent.
Consequently, it revives the debt which otherwise was extinct by operation of law.
In the circumstance, the Appellant claim was not statute Barred.”
This suit is not statute barred and I hereby resolve this issue in favour of the Respondent.

ISSUE THREE
“Whether the Contract between the Appellant and the Respondent for the purchase and delivery of prohibited vehicle from Cotonou Benin Republic into Nigeria was not an illegal contract which is unenforceable.

Ground 3 of the notice of Appeal.

I do not see any form of illegality in the transaction entered by the Appellant and the Respondent in the instant case. As rightly contended by the Respondent, there is nothing on record to show that buying a car or vehicle (Mercedes 911 Tipper) from Cotonou is illegal or contrary to public Policy. There is no statute that prohibits buying of vehicles from Cotonou as at the time of this transaction between the parties. The illegality may arise if the Appellant failed and /or neglected to pay some statutory fees along the line before and after purchasing the vehicles. However, there is no evidence of purchase of any vehicles met to talk of paying the duties on them.
This issue is resolved in favour of the Respondent.

ISSUE FOUR
Whether the damages awarded by the learned trial judge was not excessive?

for the Appellate Court in the circumstance, to substitute its discretion for that of the trial Court. Its primary duty is merely to examine the record to see if the trial Court properly or improperly estimated and awarded damages. See Odikanwa v. Iheanacho (2010) ALL FWLR (Pt. 549) 1181, International Messengers Nig Ltd v. Pegofor Ind Ltd (2005) ALL FWLR (PT. 270) 2018, Soleh Boneh Overseas Nig Ltd v. Ayodele(1989) 1 NWLR Pt. 549, Zik Press Ltd v. Ikok (1951) 13 WACA 188.
The Appellant had submitted in the brief of argument that the learned trial judge award of One Million was on the high side and that it was not stated clearly in the claims as well as the Three Million Naira general damages and the 20% interest on the judgement debt until it is finally liquidated. Also argued is that there was no specific claims in the writ of summons and statement of claims which particularly itemized the claims as separate claims. The Appellant who is attacking the excessive award of damages must go further to show how excessive the award is. It is not enough to blow it as a trumpet that the award is excessive only. The Appellant failed in this respect.

In ODIKANWA VS. IHEANACHO Supra Ratio 1181, the Court held thus:
“An appellant attacking the excessiveness must go further to show how excessive the sum awarded is. The burden is on the appellant to show that the award was either too high or that it was on wrong principle or that it was not borne by credible evidence. In the instant case, the appellant failed to establish that the damages awarded were improper or excessive, therefore, the Court of appeal rightly affirmed the award.”
Inspite of the above, it ought to be appreciated that the Courts have their own wisdom and discretion to exercise in deserving cases. That is why it is said in the case of ONWU V. NKA (1996) 7 NWLR (PT. 458) 1 AT 19 and KALU V. MBUKO (1988) 3 NWLR (PT. 80) 86 where the Court stated that:
“In award of damages, the Courts are endowed with an unfettered discretion to keep up with the time and economic trend in the country and most especially with the prevailing fluctuating and rather obvious decline of purchasing power of the Nigeria currency that is naira.”
This issue is resolved in favour of the Respondent.

All the issues canvassed in this

appeal are hereby resolved in favour of the Respondent. This appeal is not meritorious and it fails and hereby dismissed.
The Judgement of the lower Court is affirmed.
Appeal Dismissed.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

FATIMA OMORO AKINBAMI, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother PAUL OBI ELECHI, JCA. I agree with his reasoning and conclusions.

I am also of the view that all the issues canvassed in this appeal should be resolved in favour of the Respondent.
This appeal is unmeritorious. Consequently I also dismiss it.

Appearances:

S.J. Ochayi Esq., Korede Onipede, With him A.A. Ayobiolaja Esq. For Appellant(s)

O.J.Oyedele Esq., Olatunde Olayemi For Respondent(s)