ENGR. CHARLES UGWU v. REAGAN REMEDIES NIG. LIMITED
(2018)LCN/12128(CA)
In The Court of Appeal of Nigeria
On Friday, the 9th day of November, 2018
CA/OW/120/2017
RATIO
STATUTE: LIMITATION OF STATUTE
“The law relating to statute of limitation, as stated by Section 18 of the Limitation Law of Imo State, 1994, may appear harsh and unconscionable, but it remains the law, unfortunately, until such a time that factual realities and/or dictates of equity – considerations may force its review. That law bars a creditor from recovering a debt, by Court action, after the expiration 5 years, from the time the repayment was due. Section 23 of the said law defines debt to include any liquidated pecuniary claim, and further provides that: “Statute barred debt means a debt in respect of which the period fixed by the Edict for bringing an action to recover it has expired.” ITA GEORGE MBABA, J.C.A.:
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
ENGR. CHARLES UGWU – Appellant(s)
AND
REAGAN REMEDIES NIG. LTD – Respondent(s)
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment):
The background facts of this case are that on the 14th March, 2007, the Appellant approached the Respondent for a friendly loan of N6 Million which the Respondent obliged. As a result, the Respondent raised a Union Bank Draft covering the said sum in favour of the Appellant on the 14th March, 2007 which the Appellant presented and cashed. The Appellant made a firm promise to repay the said friendly loan of N6 Million within six months from the date thereof but which the Appellant had failed, refused and neglected to repay till date. In order to recoup the said sum, a blunder was initially committed by the Chairman/Managing Director of the Respondent, Dr. Christian N. Igwe who, never being a party to the said contract between the Appellant the Respondent herein, instituted an action in his personal name against the Appellant on the 16th July, 2009 in suit No. HOW/331/2009. Thereafter, a preliminary objection was raised by the Appellant on the ground that the said Dr. Christian N. Igwe lacked the locus standi to have commenced the action when he was not privy to the contract between the Appellant and the Respondent.
Rather than take advantage of the Rules of the lower Court which provides that ‘where an action has been commenced in the name of the wrong person as claimant or where it is doubtful whether it has been commenced in the name of the right claimant, a Judge may order the substitution or addition of any other person as claimant on such terms as may be just?, that is, a provision that permitted leave for amendment of the name of a plaintiff in a Court process by either substitution or addition of a new party, the said Dr. Christian N. Igwe challenged the preliminary objection which was later sustained. The locus standi of the said Dr. Christian N. Igwe was successfully challenged and his said suit No. HOW/331/2009 was struck out on 14/3/2013 for being incompetent on ground of lack of locus standi.
It is evident in the record of this appeal that there was no application filed by any person for re-listing of the said struck out suit No. HOW/331/2009 nor for amendment of the said suit to either substitute or add the name of the present Respondent thereto.
It is instructive to note that the original suit was neither re-listed nor amended to substitute the original name. After the striking out of the suit, no further action was taken for recovery of the said sum until the 21st July, 2015 when an ‘Amended Writ of Summons’ and an ‘Amended Statement of Claim’ were filed by the Respondent herein in which it sought three reliefs thus:
(1) “An Order of Court mandating the Defendant to pay the Claimant the sum of Six Million Naira (N6,000,000.00) only being a loan advanced to the Defendant on 14th day of March, 2007.
(2) An Order of Court that 50% annual interest on the sum from the 1st day of January, 2008 until judgment is delivered be paid to the Claimant by the Defendant.
(3) An Order of Court that 30% interest on the judgment sum from the date of judgment until the total debt is liquidated (sic) be paid to the Claimant by the Defendant.?
The leave of the lower Court to file the Amended Writ of Summons was not obtained by the Respondent until the 16th March, 2016 when it was granted leave to amend its Writ of Summons and Statement of Claim and other processes. Thereafter, the Appellant filed his Statement of Defence on the 17th February, 2016 and averred that the Claimant?s suit is caught up by the Limitation Laws of Imo State. The Claimant has no locus-standi and Dr. Christian N. Igwe is the disclosed principal whilst the Claimant is the agent. He then prayed the lower Court to dismiss the claim as same is frivolous, vexatious and an attempt of gold-digging exercise with substantial cost.
Sequel to the preliminary issue raised in the Statement of Defence, the Defendant filed a Notice of Preliminary Objection on the 17th February, 2016 and sought therein an order dismissing the Claimant’s suit in its entirety for being caught up by the Limitation Law and an order that the Claimant being the agent of a disclosed principal cannot institute this suit. It was anchored on nine grounds and supported by averments contained in a thirteen paragraph affidavit deposed to by one Barbara Izundu, a Legal Practitioner in the Law Firm of Emeka Ozoani & Co. The Plaintiff challenged the preliminary objection which the lower Court heard and ruled upon on the 12th January, 2017 and held that the action is not statute barred and that it was too early in the proceeding to conclude that the 1st Claimant being an agent of a disclosed principal cannot institute the action.
It is imperative to note at this juncture that suit No. HOW/262/2015 that culminated in this appeal was commenced by only one plaintiff, that is, the Respondent in this appeal. The suit in which Dr. Christian N. Igwe was a sole plaintiff was struck out on the 16th July, 2013. Even the Ruling of the lower Court from which this appeal emanated bore the name of the Respondent herein as the name of the only plaintiff on record. However, following the Ruling, the Appellant filed a Notice of Appeal on the 20th January, 2017 which it based on two grounds of appeal. The record was transmitted to this Court on 31/3/17 outside the time prescribed by the Rules of this Court. Further on 19/5/2017, an Additional Record of Appeal was compiled and transmitted to this Court. The Appellant’s Brief of Argument and the Respondent’s Brief were filed on 19/5/17 and 7/12/17 respectively. However on 19/5/2017 the Appellant filed a Motion on Notice for regularization of his Additional Record of Appeal. The Motion was granted by this Court on 29/11/2017. As a result, the processes were deemed as having been duly compiled and transmitted, and filed and served on that date respectively.
A lone issue was distilled by the Appellant for determination in this appeal thus:
Whether having due regard to Section 18 of the Limitation Law of Imo State, 1994 the suit as constituted at the trial High Court is not statute barred.?
The same was adopted by the Respondent as the issue for consideration herein.
In proffering arguments in this respect, learned Counsel for the Appellant, Emeka Ozoani Esq., further posed the question, whether the Respondent’s cause of action arose on 15/9/2007 or on 15/3/2013 or 2/6/2015 when Suit No. HOW/262/2018 was filed. He then persuaded this Court to examine the Writ of Summons and Statement of Claim to ascertain when the alleged wrong was committed by the Respondent and when the cause of action accrued.
He referenced the decisions in the cases of Amusan vs. Obideyi (2005) 14 NWLR Part 945 Page 322; Asaboso vs. Pan Ocean Oil (Nig.) Ltd. (2006) 4 NWLR Part 971 page 595; Ebenogwu vs. Onyemaobim (2008) 3 NWLR Part 1074 page 396; Adekoya vs. F.H.A (2008) 11 NWLR Part 1099 page 539 and In Ethiopian Airlines vs. AfriBank Nig. Plc.& Anor. (2006) LPELR ? 5613 (CA) to buttress his assertion that it is only the Writ of Summons and Statement of Claim that the Court has to scrutinize to arrive at the conclusion whether an action is statute barred or not. He referred to paragraphs 3 and 4 of the Respondent?s Amended Statement of Claim wherein it was stated that on 12/3/2007 the Appellant approached the Respondent for a loan of N6 Million which the Respondent indulged. As a result, the Respondent raised a Union Bank Draft in favour of the Appellant on the 14th March, 2007 which the Appellant presented and cashed. At paragraph 6 of the Respondent?s pleading, it was averred that the Appellant made a firm promise to repay the said friendly loan of N6 Million within six months but the Appellant has failed, refused and neglected to repay till date.
Learned Counsel contended that the six months period of repayment expired on the 14th September, 2007 and the five-year period of limitation terminated on the 14th September, 2012, therefore, the cause of action became extinguished on the 15th September, 2012.
Learned Counsel reproduced the provisions of Sections 18 and 23 of the Limitation Law of Imo State,1994 and contended that the Respondent’s cause of action accrued from 15/9/2007 and expired on 16/9/2012 and that the suit having been instituted on 2/6/2015, more than five years after the accrual of the cause of action, is statute barred. He drew the attention of this Court to page 129 lines 17-27 of the record of appeal where the lower Court opined that since the initial suit filed in 2009 was initiated within the period of 5 years, though struck out, was validated by the subsequent suit filed by the Respondent, and, argued that the lower Court was in grave error therein because the parties in suit No. HOW/331/2009 were Christian N. Igwe and Engr. Charles Ugwu whereas the parties herein are Reagan Remedies Nig. Ltd. and Engr. Charles Ugwu.
The Claimant in the 2009 case is totally different from the Claimant in the suit leading to this appeal. He then submitted that the lower Court reached a perverse conclusion and urged this Court to set aside the decision and hold that the action is statute barred.
In response, the learned Counsel for the Respondent, C. A. N. Osondu Esq., arguably stated that Sections 18 and 24(a) of the Limitation Laws of Imo State do not apply to the present suit, therefore, the suit is not statute barred. He referred to Exhibit P1 and stressed that the action was commenced on the 16th July, 2009 and it was won at the pre-trial stage for failure of the Appellant to file Answer to the ?Pre-Trial Information Sheet ?in respect of which the Appellant filed a Motion on Notice for setting aside. The same was granted by the lower Court. He emphasised that following the application of the Appellant questioning the locus standi of Dr. Christian N. Igwe, the suit was struck out on 14/3/2013, therefore, the suit was commenced within the time frame stipulated by law.
He submitted that the argument of Counsel for the Appellant at paragraph 4.00 of the Appellant?s Brief of Argument is spurious in that the cause of action accrued on the 14th day of September, 2007 and continued to run to the 14th day of September, 2012 which is five years but the journey of the suit started on 16/7/2009 which is within the time permitted by law. He placed reliance on the decisions in the cases of Esuwoye vs. Bosere (2016) EJSC Vol. 50 page 36 paragraph A-B; Edjerode vs. Ikine (2001) 12 SC Part 11 page 125 at 198; Black’s Law Dictionary with Pronunciations, 6th Edition page 221; etcetera. And Agi vs. Eno (2010) Part 1188 Page 626 page 641 paragraphs B-C, per Ngwuta, J.C.A., (as he then was) on the definition of the term ‘Cause of Action’ and what it consists of, when can it be said the plaintiff’s cause of action has accrued and the time started running for the purposes of the Limitation Law. He reaffirmed that the Court cannot go outside the Writ of Summons and Statement of Claim to determine the accrual of cause of action.
Learned Counsel strongly contended that the fact of the suit of the Plaintiff being struck out on the 14th March, 2013 and the same re-filed on the 2nd June, 2015 notwithstanding, because the striking out did not terminate the life of the Writ of Summons since a party whose case is struck out can revive the suit either by repeating the same Court process or by an amended form. He submitted that the life of a suit was not terminated by the mere fact it was struck out because the plaintiff can resurrect the same by filing an amended Writ of Summons which takes effect from the date of the original Writ and thus prevent the action from being statute barred. The fact that the Writ ceases to be in force does not mean that it was rendered void by expiration of time. It remains valid for the purposes of renewal.
Therefore, the contention of Counsel for the Appellant that the present suit having been instituted on the 2nd June, 2015 more than 5 years after accrual of the cause of action is a misconception of the law. He contended that the cause of action accrued and continued to run from 14/9/2007 and the action was instituted on 16/7/2009. He submitted that the argument of the Appellant’s Counsel is pivoted on technicalities which the Courts had moved away from and rather focused on the cause of substantial justice.
He cited the cases of Odua Investment Co. Ltd. vs. Talabi (1997) 10 NWLR Part 523 page 1 at 52, paragraphs E-F; Ojah vs. Ogboni (1996) 6 NWLR Part 454 page 272 at 292, paragraphs D-E, per Iguh, J.S.C., and Wakwah vs. Ossai (2002) 2 NWLR Part 752 page 548 at 562, per Akpiroroh, J.C.A., and submitted that it is the duty of the Court to hear the case on the merits before arriving at a decision in order to do substantial justice between the parties. He further submitted that the lower Court was right in its holding that a suit struck out can still be re-listed with the leave of the Court since the initial suit was initiated within the period of five years, the fact it was struck out and a new suit filed does not make it statute barred. Therefore, the argument of Counsel is baseless as it received no judicial blessing and cannot stand in law. He then urged this Court to dismiss this appeal and order for the trial of the suit on the merit.
The narrow issue determinable in this appeal is, ‘whether by striking out the initial or original action commenced by Dr. Christian N. Igwe in suit No. HOW/331/2009 on the 14th March, 2013, a different suit with an entirely new suit No. HOW/262/2015 filed on the 2nd June, 2015 had become statute barred’. It was alleged that the friendly loan given by the Respondent to the Appellant on the 14th March, 2007 was to be repaid by the Appellant within six months from the date of the loan i.e. 14/3/07. The six months, by computation of time, expired on the 13th September, 2007.
By the stipulations in Section 18 of the Limitation Laws of Imo State, 1994, no action founded on contract, tort or any other action not specifically mentioned in Parts II and III of the Law shall be commenced after the expiration of five years from the date on which the cause of action accrued. It is evident in the record and as portrayed in the respective arguments of the parties, that when the Appellant failed to honour his promise within the said period of six months, an action was commenced against him by the Chairman, Board of Directors of the Reagan Remedies Nig. Ltd., in his personal name i.e. Dr. Christian N. Igwe. His locus standi was questioned by the Appellant which was upheld and it resulted in the suit being struck out for lack of locus standi to commence the action.
It is fundamental that a person who institutes an action in Court must be competent to do so, therefore, when a plaintiff has been found not to have the locus standi or the standing to sue, it follows that the trial Court has no jurisdiction to entertain the claim. So, where a plaintiff is held to lack the locus standi to maintain his action, the finding goes to the jurisdiction of the Court and denies the Court the jurisdiction to determine the action. It is trite that a Court must have both jurisdiction and competence to be properly seized of a cause or matter. Jurisdiction is the power conferred on a Court by statute or the Constitution.
A Court is competent when:- (1) It is properly constituted with respect to the number and qualification of members. (2) The subject matter of the action is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. (3) The action is initiated by due process of law and (4) Any condition precedent to the exercise of its jurisdiction has been fulfilled. Also, the law is that for an action to be properly constituted so as to vest jurisdiction in a Court to adjudicate on it, there must be a competent plaintiff and a competent defendant. See Ataguba & Co. v Gum Nig. Ltd. (2005) ALL FWLR (265) 1219, (05) 2 SCNJ, 139. The salient questions are, can a suit struck out for want of a competent plaintiff or lack of locus standi be re-listed? Who can apply for the re-listing of the struck out case’ Is it the incompetent plaintiff, a fact that had robbed the Court of the jurisdiction to have exercised its adjudicatory power in the first place!
The fact remains that an action which had been declared incompetent by a Court by reason of the fact that the jurisdictional power of a Court to entertain the same is lacking, cannot be revived, resurrected nor resuscitated. It is void ab initio, and a nullity, but an entirely new action can be filed. The argument of the Respondent is that since the initial suit commenced by the incompetent plaintiff was within the five year period prescribed by the Limitation Law of Imo State, 1994, the second action later instituted by the proper plaintiff in 2015 was not affected by said the Limitation Law of Imo State on the ground that a suit struck out can still be re-listed with the leave of the Court since the initial suit was initiated within the period of five years, the fact that it was struck out and a new suit filed does not make it statute barred.
It is instructive to note that one can only apply for re-listing of a suit where there is a competent plaintiff and a competent defendant i.e. competent parties are before the Court. In discussing the effect of an order striking out an application, the Supreme Court, per Adekeye, J.S.C., in Panalpina World Transport (Nig.) Ltd. vs. J.B. Olandeen International & Ors. (2010) LPELR-2902(SC) expressed that ‘When an order of Court is made in respect of an application not heard on the merits, it amounts to striking out simpliciter. Even where an order of dismissal is made following a hearing which is not based on the merits, such order is still considered in law for a mere striking out. When a matter is struck out in such circumstance, there is a liberty to re-list.
The simple explanation is that while the matter is discontinued as from that date, it is still alive and kept in the Court’s general cause list and can be brought back to the hearing cause list when an application to re-list has been granted. In such case, the plaintiff still has another opportunity to re-open the action after rectifying the deficiency that resulted in the striking out of the action. This is applicable even where the Court has not included in the order of striking out that the plaintiff has an option to re-list. The matter struck out has not left the cause list, as it is still a pending case or pending cause. The same procedure applies even when a matter has been decided many years ago. Alor vs. Ngene (2007) All FWLR Part. 362 page 1836; Waterline Nigeria Limited vs. Fawe Services Limited FWLR Pt.163 pg.88.
Also, as was observed by this Court in the case of Habib Bank Nig. Plc. vs. Lodigiani (Nig.) Ltd. (2010) LPELR-4428 (CA), an order striking out a matter, gives an opportunity to the party who instituted the action to apply to the Court for an order relisting the same, or to file a fresh action. Striking out a suit means removal of the suit from the cause list of a Court. Therefore, save in matters struck out for want of jurisdiction, any cause or suit struck out may, by the leave of Court be relisted.
As I earlier mentioned, except in cases struck out for lack of jurisdiction, an order striking out suit is not a final decision which can deprive the trial Court of jurisdiction to reconsider the matter. It follows that a suit struck out for lack of jurisdiction cannot be re-listed in whatever guise.
As had been variously held by this Court and the apex Court, once a matter is struck out by a trial Court, it means that the matter has not been heard or determined on the merits. Therefore, if a party whose matter is struck out has sufficient reasons why the matter must be heard on the merits, he can apply to the Court which struck out the suit based on good reasons explaining why the matter should be heard on the merits. If the Court is satisfied with the party’s explanation, the Court can re-list the matter and hear it on the merits. A striking out order keeps the claim alive. See also Oronti vs Onigbanjo (2004) 17 NWLR Part 903, page 601, where it was held that an order striking out a matter clearly preserves to the parties, the right to re-litigate the matter, because, there has been no proper determination on the merits.”
However, it seems clear that the present appeal is caught up by the exception mentioned in Habib Bank Nig. Plc. vs Lodigiani (Nig.) Ltd. (2010) LPELR-4428 (CA), i.e. where a matter was struck out for want of jurisdiction, it cannot be re-listed. This is because an incompetent plaintiff cannot resuscitate his struck out incompetent matter, as there is no parameter nor the basis for an application of that sort to be made. It is only when a suit can be re-listed that it can be properly argued that the life span continues and that the suit is still alive and kept in the Court’s general cause list, and, can be brought back to the hearing cause list when an application to re-list has been granted. It follows that in cases struck out for lack of jurisdiction, an order striking out the suit is a final decision which had deprived the trial Court of jurisdiction to reconsider the matter. In a matter such as that, it means that the matter struck out for want of jurisdiction terminated or became extinguished on the date the striking out order was made because a non-existent plaintiff cannot apply for it to be re-listed or re-instituted the action. The incompetent action terminated with the striking out order.
It is glaring that the proper plaintiff in the instant appeal did not commence the action until the 21st July, 2015 by way of Amended Writ of Summons and Amended Statement of Claim. It is equally surprising how the Respondent came by the amended process. How could the Respondent have filed an amended process where it was not originally in the previous suit No. HOW/331/2009 commenced by an incompetent plaintiff which was struck out for lack of jurisdiction. It is imperative to observe that it was only the previous Writ of Summons in the previous suit No. HOW/331/2009 that could have been amended. It is also a valid principle of law that one cannot file a fresh Writ of Summons with the prefix ‘Amended’.
The Rules of the lower Court is distinct that the Court may at any stage of the proceedings, either of its own motion or on the application of either party, order any proceeding to be amended, whether the defect or error be that of the party applying to amend or not; and all such amendments as may be necessary or proper for the purpose of eliminating all statements which may tend to prejudice, embarrass, or delay the trial of the suit, and for the purpose of determining in the existing suit the real questions or question in controversy between the parties. Every such order shall be made upon such terms as to costs or otherwise as shall seem just. It is trite that “an amendment is nothing but the correction of an error committed in any process, pleading or proceeding at law or in equity and which is done either as of course or by the consent of parties or upon notice to the Court in which the proceeding is pending.”
As I earlier observed, by Order 13 Rule 2 of the Imo State High Court (Civil Procedure) Rules 2008 where an action has been commenced in the name of the wrong person as claimant or where it is doubtful whether it has been commenced in the name of the right claimant, a Judge may order the substitution or addition of any other person as claimant on such terms as may be just. In the instant appeal, neither the substitution nor addition of the name of the Respondent was ordered by the lower Court during the pendency of suit No. HOW/331/2009, because none was sought for by the Respondents Counsel.
By the record transmitted to this Court, there was no evidence of any application for substitution made in the original suit. The original suit was struck out on the ground of lack of locus standi which deprived the Court of the jurisdiction to adjudicate over the matter. By the aforementioned Order, that would have been corrected by way of an amendment but Counsel for the original plaintiff failed to make the application for amendment during the pendency of the original suit. It is settled that where there is an error as to the name of a party to a suit, an amendment properly sought will be allowed by the Court. In Maersk Line & Anor. vs. Addide Investments Limited & Anor. (2002) LPELR 181 1(SC), the Supreme Court on whether a misnomer can be corrected by amendment, via Ogundare, J.S.C., observsed thus:
“In Olu of Warri vs. Chief Sam Warri Esi & Anor. 3 FSC 94 at 96; (1958) SCNLR384 where in circumstances not too dissimilar to the present case, the trial Judge had struck out the case on the defendants’ objection to the plaintiff being not a juristic person, the Federal Supreme Court (as this Court was then known), on appeal to it, held, per Ademola FCJ (as he then was): “When the objection was raised about a misnomer, he had the opportunity of asking the Court for leave to amend, especially when the Judge ruled there was a misnomer. The cases Establishment Baudelot vs. R.S. Graham and Co. Ltd. (1953) 1 All E.R. 149 and Alexander Mountain and Co. vs. Rumere Ltd. (1948) 2 All E.R. 483 cited by Counsel are authorities to show that in a case of misnomer, if application is made to amend the writ by substituting the proper names, it should be granted.” What was stressed upon in that case is that no application had been made for an amendment (as it was a case of misnomer) and if it were made, it would have been granted.”
In the instant matter, an Amended Writ of Summons was filed by the Respondent with its name thereon on the 21st July, 2015 and with a different suit number i.e. HOW/262/2015. The leave of the lower Court to file the Amended Writ of Summons was not obtained by the Respondent until the 16th March, 2016. The Respondent was granted leave to amend its Writ of Summons and Statement of Claim and other processes. The question is, ‘Which original Writ of Summons was the Respondent granted the leave of the lower Court on 16/3/2016 to amend’ The answer is straightforward, ‘there was certainly none’ because the original writ was struck out on 14/3/2013 for lack of competence.
It was never re-listed nor was there any application to amend the same. The Respondent in its bloated imagination filed what it presupposed an Amended Writ of Summons without the original Writ of Summons in suit No. HOW/331/2009 being re-listed and without any application for its amendment being filed and presented. The Respondent filed a new suit with a different suit number and captioned it an ‘Amended Writ of Summons’ with the wrong assumption that leave to amend can be made in vacuo i.e. without any pending Writ of Summons that can be amended. It was the original Writ of Summons that was supposed to have been amended for the time to have continued to run, alas that was not the case.
It is pertinent to highlight that the blunder that occurred in the previous suit struck out on 14/3/2013 was not one that could have been cured by the baseless and imaginary amendment effected on 16/3/2016.
The parties in the two suits are different, the first suit was terminated by the order striking it out for having been commenced without locus standi. The next question is, ‘whether anyone can rightly argue that because a debt was involved, it could not have been statute barred or because the Appellant is indebted to the Respondent, the indebtedness ought not to have been caught up by Statute of Limitation’.
Certainly not, because under the Limitation Law of Imo State, the limitation period to recover a debt that arose from a contract is five years from the date on which the cause of action accrued. Section 23 of the Law defines debt to include any liquidated pecuniary claim. It further provides that ‘Statute barred debt means a debt in respect of which the period fixed by the Edict for bringing an action to recover it has expired.’
The Law unequivocally took care of a situation where a debt was not claimed by the creditor within the period specified by the law and where there is a lapse on the part of the creditor to claim for his sum within the prescribed period, the debt would automatically become statute barred irrespective of whether the debtor benefitted under the contract of loan or not.
It would certainly not amount to allowing a party benefitting from his own wrong or permitting a party who has benefitted from a contract to evade his obligations under the contract by relying on an illegality. The Limitation Law provided a five-year period within which the Appellant ought to have claimed the debt sum since the Respondent refused to honour the terms of the friendly loan, but it failed to do so and rather chose to allow a non-party to the contract to sue for the refund. If the initial action had been commenced in the name of or on behalf of Appellant, the Limitation Law would not have been spurred into action or come into play. By the Statute of Limitation, a creditor has a limited number of years to sue to recover the debt, after that period, the unpaid debt is considered time-barred. What happens afterwards would depend on the conscience of the debtor. He may decide to pay nothing on the time barred debt, or make a partial payment or pay off the debt if he is a man of repute.
However, it needs be pointed out that a statute barred debt can be revived via an absolute and unconditional acknowledgement of debt made to the creditor or his agent because by so doing, the debtor establishes a fresh contractual relationship so that a cause of action then starts to run from the date of the fresh contractual relationship. Where a debt becomes statute barred, fresh right of action accrues upon acknowledgement of debt by the debtor. See Thadani & Anor. vs. National Bank of Nigeria Ltd & Anor. (1972) 1 SC (Reprint) 75.
It is imperative at this juncture to restate one of the principles of the Statute of Limitation, that is to say, that those who go to sleep on their claims should not be assisted by the Courts in recovering their property, and, that there shall be an end to stale demands. On this premise, I rely on the Supreme Court decision in Independent National Electoral Commission vs. Ogbadibo Local Government & Ors (2015) LPELR-SC.309/2014, per Galadima, J.S.C., wherein he expressed thus:
“The issue is now trite as it has been demonstrated in a number of decisions and dicta of this Court and other jurisdictions. I find them quite illuminating and worthy of ponder. In ATUNRASE vs. SUNMOLA (1985) 1 NWLR (Pt.1) 105 at 120, this Court giving reasons why persons with good causes of action should pursue them with reasonable diligence, this Court stated thus; “In all actions, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his rights, or has led the opposite party responsible for or guilty of such infringement to believe that he has lived (sic) or abandoned his right.” It was Abbott C.J in BATTLEY vs. FAULKNER 106ER, 668 at 670 who had this to say: “The statute of limitation was intended for the relief and quiet of the defendants and to prevent persons from being harassed at a distant period of time after the committing of the injury complained of.”
In the case of BOARD OF TRADE vs. LAYSER IRVINE & CO. LTD (1927) A.C. 610 at 628, Lord Atkinson said: “The whole purpose of the Limitation Act is to apply to person who have good causes of action which they could if so disposed, enforced and to deprive them of power of enforcing them after they have lain by for a number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use.”
This Court, in the case of AJAYI vs. ADEBIYI (supra) on the essence of statute of limitation stated as follows:- “The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period, offends the provisions of the law and not give rise to a cause of action. The yardsticks to determine whether an action is statute-barred are: (a) The date when the cause of action accrued. (b) The date of commencement of the suit as indicated in the writ of summons. (c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
Time begins to run for the purposes of the limitation law from the date the cause of action accrues.” Also, see the Apex Court decision in Sulgrave Holdings Inc. vs. FGN (2012) 17 NWLR (Part 1329) 309 and MERCANTILE BANK (NIGERIA) LTD. vs. FCTECO LTD (1998) 3 NWLR (Pt. 540) 143 at 156. It was Aniagolu JSC (of blessed memory) who in LASISI vs. A.G. Oyo State (1982) 4 SC at 56 who, when referring to the limitation provision in the Public Lands Acquisition Law, put the issue more succinctly thus: “The two Law Lords could not, by their pronouncements quoted in the minority judgment, be understood in all fairness to them to be advocating that the Courts should ride rough shod of statutory periods of limitations by reason only of otherwise arguable facts having been placed on joinder of issues. What is there to try when the statute has provided that the period allowed for bringing an action in which those facts which have been in issue has expired? Absolutely nothing.” It is clear from the above judicial views on the basis of limitation law, once a defence of limitation of time is stated and grounded in the averments in support of the summons, (as in this case at hand) and it is established, this bars the plaintiff’s remedy and extinguishes the right of his action; then the Court will wash off its hands and decline to entertain the action. This in effect means that there is absolutely no basis for prying into the conduct of the Appellant howsoever which gave rise to the action, even as being suggested here by the learned counsel for the Respondents. See AMADI vs. NNPC (2000) 6 SC (Pt. 1) 66; INAKOJU vs. ADELEKE (2007) 4 NWLR (PT. 1025) 423.” (Underlined for emphasis)
It is stark, in the light of the foregoing, that the second suit that generated this appeal which was instituted by the present Respondent on 21/7/2015 via a muddled up leave granted on 16/3/2016, outside the five year time frame as stipulated in Section 18 of the Limitation Law of Imo State, 1994 is statute barred. It is therefore, my candid view that the suit instituted in 2015 was caught up by the Limitation Law of Imo State, 1994. There is nothing more for the Court to try when the time had elapsed. The Respondent was apparently carried away by the action instituted by Dr. Christian N. Igwe in his personal name. They ought to have been appropriately and adequately advised by their Counsel before the initiation of the first bungled suit. Accordingly, this appeal is allowed and the Ruling delivered by the lower Court on the 12th January, 2017 is hereby set aside. Consequently, the Preliminary Objection raised by the Appellant therein is sustained and the suit commenced by the Respondent on 21/7/2015 as per the imaginary leave granted to the Respondent on 16/3/2016, to amend a non-existent Writ of Summons, is hereby dismissed for being statute barred. I make no order as to costs.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment of my Lord, T.N. Orji-Abadua, JCA, in advance, and I agree with her reasoning and conclusion, that Appellant should take the benefit of the limitation law, which creates an escape door for Appellant to avoid his responsibility, by reason of the indolence or failure of the Respondent to take out the action within the time provided by law to recover the debt claimed.
The law relating to statute of limitation, as stated by Section 18 of the Limitation Law of Imo State, 1994, may appear harsh and unconscionable, but it remains the law, unfortunately, until such a time that factual realities and/or dictates of equity – considerations may force its review. That law bars a creditor from recovering a debt, by Court action, after the expiration 5 years, from the time the repayment was due. Section 23 of the said law defines debt to include any liquidated pecuniary claim, and further provides that:
“Statute barred debt means a debt in respect of which the period fixed by the Edict for bringing an action to recover it has expired.”
In the case of Atunrase Vs Sunmola (1985) NWLR (Pt. JOS at 120, referred to in the lead judgment, the Supreme Court advanced reasons to justify when a person’s good cause of action can be defeated by his indolence, thus:
“In all actions, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may, therefore, deny relief to a party who by his conduct has acquiesced or assented to the infraction of his rights, or has led the opposite party responsible for or guilty of such infringement, to believe that the has lived (sic) or abandoned his right.”
It is acknowledged that there could be injustice in the application of the Limitation Law, but the Court cannot help the indolent or slothful. In the recent case of Obika vs Obika(2018) LPELR – 43965 (CA), my Lord, Oredola JCA said:
“It is pertinent to emphasize herein the effect of an action which is Statute barred. When an action is held to be Statute barred, the Plaintiffs right of action is held to have abated and no relief can validly be sought or given in order to enforce the stated claim, notwithstanding the injustice that may have been done to the Plaintiff and/or how credible the Plaintiffs claim may appear. See Nwadiaro Vs SPDC Ltd (1990) 5 NWLR (Pt.150) 322; Unity Bank Plc vs Nwadike (2008) LPELR – 5067.”
Of course, once the Statute of limitation applies, it means the cause of action, which a person has, is defeated by operation of law, as the statute bars his access to Court to ventilate his grievance and claim his right. See Eboigbe Vs NNPC (1994) NWLR (Pt. 34) 649; D.G. Bureau of Lands Kwara State & Anor vs Alabi & Anor (2018) LPELR – 44487.
In the case of Asaboro Vs pan Ocean Oil Corp. Nig. Ltd (2017) 7 NWLR (Pt. 1563) 42 at 73, my Lord, Nweze JSC, said:
“a right of action eventuate from the existence of a cause of action. Ikine Vs Edijerode (2001) 12 KLR (Pt. 131) 3711. In the con of this distinction, what emerges is that, whereas the Plaintiff’s cause of action remains intact, although in a vacuous or bare form, a statute of limitation denudes him (the Plaintiff) of his action, that is, his right of enforcement, the right to judicial relief. Egbe vs Adefarasin (2) (1987) NWLR (Pt. 47) 1. To be able therefore to enjoy the dividends Which recourse to the judicial process affords, such a Plaintiff must commence his action within the period stipulated by statute…. Thus, legal proceeding cannot be validly instituted after the expiration of the prescribed period. Sanda Vs Kukawa Local Govt. (1991) 2 NWLR (Pt. 74) 379.”
The facts surrounding this particular case are rather pathetic, as the forces of the statute of limitation appear to have been unleashed on the Respondent by the blunders or ineptitude of its Counsel. The first Suit filed to recover the debt from Appellant was done, promptly, (Suit NO. HOW/331/2009), on 16/7/2009; the debt of was incurred on 14/3/07, repayable in 6 months. But it (the Suit) was brought by a stranger (Dr. Christian N lgwe, Chairman/Managing Director of the Respondent. Of course, that Suit was Struck out on 14/3/2013 on the application of Appellant, who successfully argued that the Plaintiff therein (Dr. Christian lgwe) had no locus standi to bring the action. Rather than applying to amend the process in HOW/331/2009, when the preliminary objection was raised, to join the Respondent herein, or to withdraw that Suit, at the point of the challenge, to file this Suit to include the Respondent herein, the said Chairman/Managing Director of the Respondent or Counsel rather embarked on contesting the preliminary objection to conclusion, to Respondent’s detriment, and to bringing the fresh action (HOW/262/2015), belatedly, on 21/7/2015, which met this road bloc of statutory bar, erected by a clever opponent (Appellant)! Meanwhile, Appellant would not categorically deny the debt and would not admit it, to breathe new life into it!
It is rather sad, that if there was ever a debt, as claimed by Respondent, in the circumstances of this case, Appellant has eloped with N6M (with possible interests) and thus, escaped responsibility, taking advantage of the law, and would be profiting from his own wrong doing, which the law also strongly deprecates. See the case of First Bank Plc vs Standard Polyplastic Industries Ltd (2018) LPELR – 44081 (CA); Ukah & ors vs Onyia & ors (2016) LPELR ? 40025 (CA); Okechukwu vs Onuorah (2000) LPELR – 2431 SC; PDP vs Ezeonwuka & Anor. (2017) LPELR – 42563 (SC).
In Teriba vs Adeyemo (2070) LPELR – 3143 SC; (2010) 13 NWLR 242, it was held that by applicable equitable principles “a person cannot benefit from his own wrong”; that “it is adjudicatory functions and the Court has a duty to prevent injustice in any circumstance, and avoid rendering a decision which enables a party to escape from his obligation under Contract by his own wrongful act.”
Unfortunately, the above law cannot be invoked as we have to give effect to the rules of the Imo State Statute of Limitation Law, in the circumstances of this case.
I too allow the appeal and abide by the consequential orders in the lead judgment.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have been privileged to read this judgment just delivered with which I agree by my learned brother T. N. ORJI-ABADUA, JCA. I adopt the reasoning and conclusion therein contained as mine.
Appearances:
Nneoma Iwu (Mrs) with her, George Manufor, Esq.For Appellant(s)
C.A.N Osondu, Esq. with him, J.E. Ibeanusi Esq., P.O. Amadi (Miss), O.I. Ugbogu (Mrs.), C.E. Onyeobia (Miss), F. C. Otuonye, C. M. Mere (Miss) and A. C. Nwalozie (Miss).For Respondent(s)
