DAID (NIG) LTD & ORS v. NIPOST & ANOR
(2022)LCN/16313(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, February 25, 2022
CA/L/546/2012
Before Our Lordships:
ObietonbaraOwupele Daniel-Kalio Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
AdebukunolaAdeotiIbironkeBanjoko Justice of the Court of Appeal
Between
1. DAID NIGERIA LIMITED 2. DR. OLU ADELEYE 3. MITUDELA SOUVENIR APPELANT(S)
And
1. NIGERIAN POSTAL SERVICE 2. MRS. E.I. EDUGHELE RESPONDENT(S)
RATIO:
THE EXPIRATION OF A PERIOD OF LIMITATION
As rightly analysed by my learned brother in the lead judgment, the trial Judge took these three (3) steps in consideration of the Preliminary Objection raised by the Respondents at the lower Court. As the Law stands now, a Court has no discretion in the matter i.e. to extend limitation periods, because whether a period of limitation of action expires or not is settled to be of law as contained in relevant statutes, not a matter of practice and procedure. See JFS INVESTMENT LTD VS BRAWAL LINE LTD & ORS (2010) LPELR-1610(SC); OWNERS OF THE MV “ARABELLA” VS NAIC (2008) LPELR-2848(SC). OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.
A LIMATATION STATUTE DOES NOT APPLY TO CRIMINAL OFFENCES
It was further submitted that it is trite that a limitation statute does not apply to criminal offences. On a limitation statute not affecting an officer who has stepped outside the bounds of duty, learned Counsel cited in support, the case of IBRAHIM V. JUDICIAL SERVICE COMMISSION (supra) which considered the provisions of Section 2(a) of the Public Officers Protection Act. It was submitted that Section 59 of the NIPOST Act should not have been invoked by the lower Court if that Court hadtaken due cognizance of the allegation of the fraud committed by the 2nd Respondent. It was further argued that the allegation of fraud is the substratum of the Appellants’ claims against the Respondents. OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.
THE SUFFICIENCY OF A DEFENCE
A defence can only be sufficient, if it is not a sham defence. See MCLARDY V. SLATEUM (1890) 24 QBD 504 cited in SANUSI BROS (NIG) LTD V. COTIA COMMERCIO EXPORTACIO E IMPORTACIO S. A. (2000) LPELR-3006(SC)17. Merely brandishing the word ‘fraud’, does not amount to anything. There is nothing magical about the word. In ONUOHA & ORS V. STATE (1989) LPELR-2704 (SC) the Supreme Court in considering the words ‘I believe’ held that there is no magic in the use of those words where the surrounding circumstances are such as clearly negative such. It will be right to say in the same vein and in this instance, that there is no magic in the word ‘fraud’ as there is nothing in the situation or circumstances stated in the Appellants’ Statement of Claim that is indicative of fraud.
Where there is a sham defence, the Court will not be persuaded, but will see it for what it is; a sham.
All said, there is no allegation of crime which will make the matter no longer statute barred. The appealhas no merit. It is dismissed. The Ruling of the lower Tribunal is affirmed. OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.
OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): The appeal here is against the Ruling of the Federal High Court (the lower Court) delivered on the 1st of December, 2011, in respect of a Preliminary Objection. The Respondents in this appeal who were the Defendants at the lower Court, had by their Notice of Preliminary Objection, prayed that Court to dismiss the suit for being statute barred, having regard to the provisions of Section 59 of the Nigerian Postal Service Act, CAP N127, Laws of the Federation, 2004. In its said Ruling the lower Court agreed that the action was statute barred. It reasoned thus:
“In this case, the cause of action accrued between the 16th -28th of June, 2008. This suit was filed on the 18th of June, 2010. This is clearly outside the 12 months limit, next after the accrual of the cause of action.
Consequently, in my humble view, this suit is statute barred by virtue of the salient provisions of Section 59 of the NIPOST Act, supra. With respect to that therefore, this Court cannot entertain proceedings for the realisation of the claims of the plaintiffs.
It is also immaterial that theplaintiffs have alluded to the conduct of the 2nd defendant as being fraudulent. This on its own, does not automatically convert the basis of the claim to a crime. See NWANKWERE V. ADEWUNMI 1967 NMLR page 45. If this were so, then it will not be possible for the statute of limitation in the NIPOST Act supra, to be applicable in this case.”
The lower Court having so found and decided as shown above, upheld the Preliminary Objection, and struck out the suit.
Dissatisfied, the Appellants challenged the Ruling on two grounds in their Notice of Appeal. The grounds are:
GROUND ONE
The learned trial judge erred in law when she held that the action is statute barred by virtue of the salient provisions of Section 59 of the NIPOST Act.
GROUND TWO
The learned trial Judge erred in law when she agreed that Section 59 of the NIPOST Act will not apply if the basis of the claim is a crime but still went ahead to hold that the suit was statute-barred by virtue of Section 59 of the NIPOST Act.
In the Appellants’ Brief of Argument filed on 26/11/18, two issues were formulated from the above two grounds of appeal. The issues are:
1. Whether the statutory limitation in Section 59 of the NIPOST Act, CAP 127 will apply in this case, in view of the allegation of crime against the 2nd Respondent.
2. Whether the allegation of fraud against the 2nd Respondent is immaterial to the Appellant’s claims against the Respondents.
The Respondents adopted the above two issues formulated by the Appellants in their Respondents’ Brief of Argument filed on 25/8/2014 and deemed filed on 26/11/18.
The two issues will be considered together since they are closely related.
Submitting on the issues, Johnson Fabilola, Esq. for the Appellants, argued that the Appellants’ suit is not statute barred since Section 59 of the NIPOST Act will not apply in the circumstances of the case. It was submitted that the law is that the Court will look at the Writ of Summons and the Statement of Claim in considering whether an action is statute barred. The case of EGBE V. ADEFARASIN (2002) 14 WRN 57; ADEOSUN V. JIBESIN (2001) 14 WRN 6 was cited in support.
It was argued that the lower Court ought to have considered the allegation of fraud, a criminal offence, made against the 2nd Respondent, before concluding that the action is statute barred. It was contended that the limitation statute will only cover an official while that official is engaged in the lawful discharge of duty and that such protection will be lost where the official steps outside the bounds of duty. The case of IBRAHIM V. JUDICIAL SERVICE COMMISSION (1998) 14 NWLR (Pt. 584) 1, was cited in support. An allegation of fraudulently diverting or converting the Appellants’ parcel, it was contended, was made particularly against the 2nd Respondent in paragraphs 18-24 of the Statement of Claim. Those allegations of fraud or commission of crime, it was submitted, are not caught by Section 59 of the NIPOST Act. It was further submitted that it is trite that a limitation statute does not apply to criminal offences. On a limitation statute not affecting an officer who has stepped outside the bounds of duty, learned Counsel cited in support, the case of IBRAHIM V. JUDICIAL SERVICE COMMISSION (supra) which considered the provisions of Section 2(a) of the Public Officers Protection Act. It was submitted that Section 59 of the NIPOST Act should not have been invoked by the lower Court if that Court had taken due cognizance of the allegation of the fraud committed by the 2nd Respondent. It was further argued that the allegation of fraud is the substratum of the Appellants’ claims against the Respondents.
Learned Counsel submitted that the lower Court acknowledged that an allegation of fraud is capable of converting the basis of the claim to one of the commission of crime and that the lower Court ought therefore, to have considered that allegation and consequently, should not have held that the action was caught by the limitation in the NIPOST Act. We were urged to resolve the two issues in the Appellants favour.
In arguing in response, the Respondents’ learned Counsel, Sule M. Danian, Esq. contended that the Appellants’ filed an earlier suit which was dismissed on 22/3/10 for being statute barred. After the dismissal of that suit, the Appellants’ filed another suit which was also dismissed for being statute barred. It is the decision in that second suit that is the subject of this appeal. That second suit, it was submitted, is statute barred, having been filed more that twelve months after the cause of action arose. The Respondents’ learned Counsel submitted that the allegation of fraud made by the Appellants is a mere afterthought.
Learned Counsel submitted that the provisions of Section 59 of the NIPOST Act is clear and unambiguous and should be given its ordinary grammatical meaning. The case of ATTORNEY GEN. ONDO STATE V. ATT. GEN. EKITI STATE (2001) 17 NWLR (743) 706 was cited in support.
Learned Counsel contended that in the earlier suit in respect of which a Ruling was delivered on 22/3/10, the 2nd Respondent was not made a party and no allegation of fraud was made therein. The fact that the 2nd Respondent was included in the matter now on appeal does not convert that suit to a criminal case, it was argued. The learned Counsel submitted that the Appellants are merely trying to get through the back door that which they could not get through the front door. It was submitted that the use of the word ‘fraudulently’ does not ipso facto convert the basis of the action to a crime. The case of AROWOLO V. IFABIYI (2002) 2 SC (1) 71 at 88-89 and that of GODWIN NWANKWERE V. JOSEPH ADEWUNMI (1967) NMLR 45 were cited in support.
The Appellants’ learned Counsel filed a Reply Briefon 23/9/2014 which was deemed filed on 23/9/2014 and which Reply Brief did not respond to any new issue raised by the Respondents but merely reiterated the arguments already made by the Appellants in the Appellants’ Brief of Argument. I will therefore discountenance the arguments in the Reply Brief.
Now, the pith of the argument of the Appellants’ is that the 2nd Respondent committed a fraud and therefore Section 59 of the NIPOST Act does not apply; reason being that a limitation statute does not apply to an allegation of crime. This argument requires a close look at the allegation made against the 2nd Respondent. In paragraph 13 of their Statement of Claim as can be seen at page 4 of the Record of Appeal, the allegation against the 2nd Respondent is simply that the 2nd Respondent informed the 1st and 2nd Appellants that a carton was received at the 1st Respondent’s Shomolu office but that it could not be located. Surely, that the 2nd Respondent said that a carton/parcel could not be located, cannot mean that fraud was committed by the 2nd Respondent, unless words have lost their meaning. ‘Fraud’ is defined by the Black’s Law Dictionary, 11th Edition as “a knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment”.
From the Appellants’ own pleading, there was neither a misrepresentation or a concealment of the facts regarding the receipt of a carton/parcel. The 2nd Respondent merely stated that the carton/parcel could not be located. Having been provided with that information by the 2nd Respondent, it was for the Appellants, since they were aggrieved, to take out their action within the statutory window of 12 months within which to institute an action in Court. Section 59 of the NIPOST Act provides:
“59(1) Notwithstanding anything contained in any enactment whatsoever, no action shall lie or be instituted in any Court against the Postal Service, for any act done in pursuance of or execution of any enactment or law of any public duty or authority, or in respect of any alleged neglect or default in the execution of such enactment or law, duty or authority, unless it is commenced within twelve months after the act or default complained of, or in the case of a continuous damage or injury, within twelve months next after the ceasing thereof.”
The allegation of a fraud by the Appellants in defence to the Preliminary Objection of the Respondents at the lower Court, did not provide a bona fide defence. A defence can only be sufficient, if it is not a sham defence. See MCLARDY V. SLATEUM (1890) 24 QBD 504 cited in SANUSI BROS (NIG) LTD V. COTIA COMMERCIO EXPORTACIO E IMPORTACIO S. A. (2000) LPELR-3006(SC)17. Merely brandishing the word ‘fraud’, does not amount to anything. There is nothing magical about the word. In ONUOHA & ORS V. STATE (1989) LPELR-2704 (SC) the Supreme Court in considering the words ‘I believe’ held that there is no magic in the use of those words where the surrounding circumstances are such as clearly negative such. It will be right to say in the same vein and in this instance, that there is no magic in the word ‘fraud’ as there is nothing in the situation or circumstances stated in the Appellants’ Statement of Claim that is indicative of fraud.
Where there is a sham defence, the Court will not be persuaded, but will see it for what it is; a sham.
All said, there is no allegation of crime which will make the matter no longer statute barred. The appeal has no merit. It is dismissed. The Ruling of the lower Tribunal is affirmed.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, Obietonbara O. Daniel-Kalio, JCA, has availed me a draft copy of the judgment just delivered. I am in agreement with his reasoning and conclusion that the Appellant’s action at the lower Court was statute barred and therefore the appeal has no merit. I too dismiss the appeal and affirm the Ruling of the lower Court.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had read through the draft copy of the judgment just delivered by my learned brother, OBIETONBARA O. DANIEL-KALIO, JCA, and found that he resolved all the issues involved in this Appeal properly.
It needs to be stressed that the question or issue of whether or not an action is statute-barred is one touching on or goes to jurisdiction of a Court. See EMIATOR VS THE NIGERIAN ARMY & 4 ORS. (1999) 12 NWLR (PT.631) 362 AT 372. When the issue for determination is whether a claim is time barred, the trial judge resolves the issue by taking three (3) steps. Firstly, by examining the applicable limitation period provided in the enabling statute to see the period stipulated therein for the claim before him. Secondly, the judge determines when the cause of action arose by examining carefully the writ of summons and statement of claim. Thirdly, when the judge is satisfied as to when the claimant had a cause of action, he compares that date with the date the writ of summons was filed. If the time from when the cause of action arose to when the writ of summons was filed is beyond the period allowed in the enabling statute, then the action is statute barred.
As rightly analysed by my learned brother in the lead judgment, the trial Judge took these three (3) steps in consideration of the Preliminary Objection raised by the Respondents at the lower Court. As the Law stands now, a Court has no discretion in the matter i.e. to extend limitation periods, because whether a period of limitation of action expires or not is settled to be of law as contained in relevant statutes, not a matter of practice and procedure. See JFS INVESTMENT LTD VS BRAWAL LINE LTD & ORS (2010) LPELR-1610(SC); OWNERS OF THE MV “ARABELLA” VS NAIC (2008) LPELR-2848(SC).
Based on the foregoing, I also dismiss this Appeal for lacking in merit. The Ruling of the lower Court is affirmed.
Appearances:
J. Fabilola For Appellant(s)
…For Respondent(s)
