MAZLOUM & ANOR v. GERMAN
(2022)LCN/17078(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, June 01, 2022
CA/AS/489/2013
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. MR. KHODER MAZLOUM 2. UNITOP INT.LTD. APPELANT(S)
And
MR. PAUL GERMAN RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A LAW PRESCRIBES A TIME LIMIT WITHIN WHICH TO INSTITUTE AN ACTION TO SEEK REDRESS FOR A PARTICULAR GRIEVANCE
The law is settled that where a law prescribes a time limit within which to institute an action to seek redress for a particular grievance, the action must be instituted within the prescribed time. An action instituted after the expiration of the prescribed period is statute barred. For the purpose of limitation of action, time begins to run the moment the cause of action accrues. That is when there is in existence a person who can sue and another who can be sued and all facts which are material and have to be proved to entitle the claimant to succeed have happened. See I.N.E.C. V. ENASITO (2018) 2 NWLR (PT. 1602) 63. ASABORO V. PAN OCEAN OIL CORP. NIG. LTD (SUPRA). OKAFOR V. B.D.U., JOS BRANCH (2017) 5 NWLR (PT. 1559) 385.
In order to determine whether an action is statute barred, the Court examines the originating process, the statement of claim and the evidence led if the case had gone into trial. In the instant case, the statement of claim together with the evidence on record. See ASABORO V. PAN OCEAN OIL CORP. NIG. LTD (2017) 7 NWLR (PT.1563) 42.
The respondent’s action is based on contract. Section 18 of the Limitation Law of Delta State provides that:
“No action founded on contract, tort or any other action not specifically provided for in Parts 11 and 111 of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.” PER BOLAJI-YUSUFF, JC.A.
WHETHER OR NOT EVERY WRIT OF SUMMONS MUST BE ACCOMPANIED BY A WRITTEN STATEMENT ON OATH OF THE WITNESSES
Order 3 Rule 2 (2) (c) of the High Court (Civil Procedure) Rules, 2009 of Delta State provides that every writ of summons shall be accompanied by written statement on oath of the witness or witnesses. It is a mandatory requirement and a condition precedent to a witness testifying orally before the Court. See in OKOBIEMEN v. UBN (JALINGO BRANCH, TARABA STATE (2017) LPELR-43633(CA) AT 13-16(B-E). A statement on oath must be sworn to before it can be adopted as evidence before the Court. An unsworn statement is not a statement on oath required to be filed along with the writ. See MODIBBO V. HAMMANJODA (2014) LPELR-24184(CA) AT 27-29 (A-B). OSASUYI V. MUDASHIRU (2013) LPELR-20358(CA) AT 19-20 (F-E). PER BOLAJI-YUSUFF, JC.A.
THE POSITION OF LAW ON FACTOR THAT MUST BE PRESENT FOR A BINDING CONTRACT TO EXIST
The law is that for a valid and binding contract to exist there must be an agreement, an intention to create legal relations, an offer and an unqualified acceptance of the offer and consideration. See BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010) LPELR-717(SC) AT 16-17 (D-A). An agreement can be oral or inferred from the conduct of the parties thereto. Once there is mutuality of purpose and intention, an oral agreement or contract is enforceable. See TAURA V. CHUKWU (2018) LPELR-45990(CA) AT 16-17(F). NSITF V. ACCESS BANK PLC (2015) LPELR-25790(CA) AT 11 (A-C). ODUTOLA & ANOR V. PAPERSACK NIG. LTD (2006) LPELR-2259(SC) AT 25 (A-C), (2006) 18 NWLR (PT.1012)470. PER BOLAJI-YUSUFF, JC.A.
MISITURA OMODERE BOLAJI-YUSUFF J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Delta State delivered in suit no. W/63/2010 on 17/5/2013. The respondent as the claimant at the lower Court commenced the action by a writ of summons and statement of claim wherein he claimed the following reliefs against the appellants:
(a) The sum of N5,304,400.00 (five million three hundred and four thousand four hundred naira) representing the total sum accruable to the respondent as his entitlement from the profits which accrued from July to January, 2010 till date.
(b) Interest pursuant to Order 35 Rule 7 High Court of Delta State (Civil Procedure) Rules, 2009 on the judgment debt and costs at the rate of 15% per annum from the date of judgment until actual liquidation of the judgment debt.
The appellants counter-claimed against the appellant as follows:
(a) The sum of N1,887,296.00 (one million eight hundred and eighty- seven thousand two hundred and ninety-six naira)
The case of the respondent as the claimant at the lower Court was that sometime in the year 2002, his uncle, Chief A.M. Bubor (JP) secured a contract with Chevron Nigeria Ltd to supply a barge for the services of the company which contract is a running contract. His uncle thereafter engaged him as an agent to secure the said barge which he did. He secured the barge from MR. KHODER MAZIOUM, the 1st appellant which he supplied to Chevron Nig. Ltd. The agreed contract sum to be paid by Chevron was $600.00 per day. His uncle and the 1st appellant agreed among themselves that the contract sum which was $600 should be shared in the ratio of $450 to the 1st defendant, $130 to Chief Bubor and $20 to the respondent per day. The appellants withheld the respondent’s entitlement of $20 per day on the vague excuse that the Bank which sponsored the purchase of the Barge was still recovering the loan. The appellants were paying Chief Bubor promptly without any hitch or disruption. After several demands by the respondent, the appellants paid a total sum of N1,887,296.00 (One Million, Eight Hundred and Eighty-Seven Thousand, Two Hundred and Ninety-Six Naira). The appellants have persistently and doggedly refused to pay the balance.
The appellants’ case was that the respondent is Chief Bubor’s nephew and agent and he can only receive remuneration from Chief Bubor. They averred that they dealt directly with Chief Bubor and not the respondent a fact which has long been made known to the respondent by the Economic and Financial Crimes Commission to who the respondent reported this matter. According to the appellants, there was no time the parties and Chief Bubor agreed that proceeds from the contract should be shared amongst them, the only person whom the appellants agreed to pay was Chief Bubor. They alleged that the respondent misled them into thinking that it was a directive from Chief Bubor and Chevron that the respondent be paid. When Chief Bubor discovered that $20 of his money had been deducted by the appellants, he reported the appellants to Chevron Marine Logistic Supervisor who instructed appellants to immediately pay the backlog of the said $20 in the presence of the respondent. That instruction was complied with despite the fact that the money had wrongly been paid to the respondent who did not return same. They denied being indebted to the respondent. They contended that the respondent’s action is statute barred.
The respondent testified in support of his case and called no other witness. 1st appellant and one other witness testified for the appellants. In its considered judgment delivered by C. E. Ajilefu, J, the lower Court held that the action is not statute-barred. Judgment was entered in favour of the respondent in the sum of N5,304,400.00 (five million three hundred and four thousand four hundred naira). The appellants’ counter-claim was dismissed. The appellants filed a notice of appeal against the judgment on 20/5/13. An amended notice of appeal filed on 12/4/19 was deemed as properly filed and served on 9/10/19. The four grounds of appeal in the amended notice of appeal without their particulars are as follows:
GROUND 1
The learned trial Judge erred in law when she held that the action is not statute-barred since the contract is a running contract.
GROUND 2
The judgment is against the weight of evidence
GROUND 3
The learned trial Judge erred in law and on facts in failing to hold and observe that there was no privity of contract and no enforceable contract between the respondent and the appellants
GROUND 4
The learned trial Judge erred in law and on facts in failing to hold and observe that there was no valid witness statement on oath in support of respondent’s claim before the Court below.”
The appellants filed a brief of argument on 2/4/14 which was withdrawn and struck out. Another appellants’ brief of argument filed on 10/10/19 was deemed as properly filed and served on 22/6/20. The respondent’s brief of argument was filed on 20/10/14 in response to the appellant’s brief which was struck out. The respondent did not file a fresh brief in response to the appellant’s brief filed on 10/10/19. However, the respondent’s brief was also deemed as properly filed and served on 22/6/20, the same day the appellants’ brief was deemed as properly filed and served. The appellants’ counsel adopted the appellants’ brief as his argument in this appeal. When the appeal was called, the respondent’s counsel was absent inspite of service of notice of hearing on him. Pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2021, the appeal was deemed as having been argued by the respondent based on the respondent’s brief of argument.
The appellants formulated the following issues for determination:
1. Whether the learned trial Judge was right in holding that the respondent’s action was not statute barred.
2. Whether there was a valid statement on oath in support of the claim before the Court.
3. Whether there was a valid and enforceable contract between the respondent and the appellants.
The respondent adopted the issues formulated by the appellants.
On issue 1 which is whether the learned trial Judge was right in holding that the respondent’s action was not statute-barred, the appellants’ counsel argued that from the averments in paragraphs 14-16 of the statement of claim, the cause of action accrued in July, 2004 when the 1st appellant allegedly refused to pay the respondent his daily entitlement and when the calculation of the respondent’s entitlement started while this action was commenced on 1st March, 2010 which is outside of the five years prescribed by Section 18 of the Limitation Law of Delta State, Cap L11, Volume 3, Laws of Delta State. He submitted that in contract, the cause of action accrues not when the damages are suffered but when the breach occurs. He referred to LAGOS UNIVERSITY TEACHING HOSPITAL AND MANAGEMENT BOARD V. ADEWOLE (1998) 5 NWLR (PT.550) 406 418 (F-H).
In response, the respondent’s counsel argued that the cause of action accrued after the appellants paid additional sum of N1,000,000.00 (one million naira) to the respondent on 15th March, 2005 and refused to make further payments. Therefore, this action filed on 1st March, 2005 is not caught by the provision of Section 18 of the Limitation Law of Delta State. On how to determine the cause of action and when it accrues, counsel referred to JULIUS BERGER NIG. PLC V. OMOGUI (2001) FWLR (PT.64) 305 AT 307(RATIO 3). ADIMORA V. AJUFO (1988) 3 NWLR (Pt. 80) 1.
RESOLUTION
The law is settled that where a law prescribes a time limit within which to institute an action to seek redress for a particular grievance, the action must be instituted within the prescribed time. An action instituted after the expiration of the prescribed period is statute barred. For the purpose of limitation of action, time begins to run the moment the cause of action accrues. That is when there is in existence a person who can sue and another who can be sued and all facts which are material and have to be proved to entitle the claimant to succeed have happened. See I.N.E.C. V. ENASITO (2018) 2 NWLR (PT. 1602) 63. ASABORO V. PAN OCEAN OIL CORP. NIG. LTD (SUPRA). OKAFOR V. B.D.U., JOS BRANCH (2017) 5 NWLR (PT. 1559) 385.
In order to determine whether an action is statute barred, the Court examines the originating process, the statement of claim and the evidence led if the case had gone into trial. In the instant case, the statement of claim together with the evidence on record. See ASABORO V. PAN OCEAN OIL CORP. NIG. LTD (2017) 7 NWLR (PT.1563) 42.
The respondent’s action is based on contract. Section 18 of the Limitation Law of Delta State provides that:
“No action founded on contract, tort or any other action not specifically provided for in Parts 11 and 111 of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.”
Section 30 (5), (6), (7) and 31 of the law provides that:
(5) Subject to Subsection (6) of the Section, where any right of action has accrued to recover
(a) any debt or other liquidated pecuniary claim; or
(b) any claim to the estate of a deceased person or to any share or interest in any such estate,
And the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it, the right shall be treated as having accrued on and not before the date of the acknowledgment or payment.
(6) A payment of a part of the rent or interest due at any time shall not extend the period for claiming the remainder then due, but any payment of interest shall be treated as a payment in respect of the principal debt.
(7) Subject to subsection (6) of this Section, a current period of limitation may be repeatedly extended under this Section by further acknowledgements or payments but a right of action, once barred by this Law, shall not be revived by any subsequent acknowledgment or payment.
31. (1) To be effective for the purposes of Section 30 of this Law, an acknowledgement must be in writing and signed by the person making it.
(2) For the purposes of Section 30, any acknowledgement or payment: –
(a) May be made by the agent of the person by whom it is required to be made under that Section; and
(b) Shall be made to the person, or to an agent of the person, whose interest or claim is being acknowledged or, as the case may be, in respect of whose claim the payment is being made.
I have perused the entire evidence on record. There is no evidence that the respondent paid a sum of N1,000,000.00 (one million naira) on 15th March, 2015. That submission is an attempt by the respondent’s counsel to smuggle in a piece of evidence which is not on record in the guise of writing a brief. It is wrong, unethical and unlawful for counsel in the guise of advocacy to lead evidence from the bar or concoct facts in the final address or brief of argument. See OGHENEOVU V. F.R.N (2019) 13 NWLR (PT. 1689) 335A T270 (B-D). However, since the agreement was for payment of commission on monthly basis and the contract was still running as at the time the action was commenced, the lower Court was right to hold that the action is a continuous action and is not statute barred. The continuance of injury or damage which is a legal injury constitutes an exception to the general rule on limitation of action. See I.N.E.C. V. ENASITO (SUPRA). Issue 1 is resolved against the appellants.
On issue 2 which is whether there was a valid statement on oath in support of the claim before the Court, the appellants’ counsel submitted that there is nothing to show that the respondent’s statement was sworn to before any commissioner for oaths as there is no way the commissioner for oaths could have signed the oath on 25th February, 2010 when the action was filed on 1st March, 2010. He further submitted that the statement attached to the statement of claim is not admissible by virtue of Section 109 of the Evidence Act. He posited that Order 3 Rule 2 (2) of the High Court (Civil Procedure) Rules of Delta State which requires statement on oath to be filed along with the statement of claim was not complied with.
The respondent’s counsel on his part submitted that the complaint about the respondent’s statement on oath which accompanied the statement of claim is a fresh issue raised for the first time on appeal. He urged the Court to disregard the issue because the appellants failed to seek and obtain the leave of this Court to raise the issue. He referred to ADEGBUYI V. MUSTAPHA (2010) ALL FWLR (PT.523) AT 1753 AT 1759 (RATIO 6). LAWRENCE V. A.G. FEDERARTION (2008) ALL FWLR (PT.426) 1901 AT 1904 (RATIO 2.). He stated that the date on the statement is a typographical error as the date of filing and when the statement was sworn to is clearly shown on the Court’s stamp. He posited that the respondent cannot be punished for the inadvertence of the commissioner for oaths to sign his portion of the statement. According to counsel, the affidavit filed in support of the ex parte motion for summary judgment which was filed along with the writ of summons, statement of claim and the respondent’s statement on oath was signed by the commissioner for oath and that confirms the inadvertence of the commissioner to sign the statement on oath.
RESOLUTION
The appellants by a motion on notice filed on 8/6/20 sought the leave of this Court to raise and argue fresh issue not raised and argued at the lower Court. That application was granted on 22/6/20. Therefore, the complaint of the respondent that no leave was sought and obtained by the appellants to raise the issue of failure to depose to the respondent’s statement on oath before a commissioner for oath has been overtaken by events.
Order 3 Rule 2 (2) (c) of the High Court (Civil Procedure) Rules, 2009 of Delta State provides that every writ of summons shall be accompanied by written statement on oath of the witness or witnesses. It is a mandatory requirement and a condition precedent to a witness testifying orally before the Court. See in OKOBIEMEN v. UBN (JALINGO BRANCH, TARABA STATE (2017) LPELR-43633(CA) AT 13-16(B-E). A statement on oath must be sworn to before it can be adopted as evidence before the Court. An unsworn statement is not a statement on oath required to be filed along with the writ. See MODIBBO V. HAMMANJODA (2014) LPELR-24184(CA) AT 27-29 (A-B). OSASUYI V. MUDASHIRU (2013) LPELR-20358(CA) AT 19-20 (F-E). The writ of summons in the instant case was accompanied by the respondent’s statement on oath. However, the statement was not signed by the commissioner for oaths. It is on record that the respondent adopted the statement on oath as his evidence before the Court. Before adopting the statement, he stated that he deposed to the statement at the Registry of the Court. That evidence was not challenged under cross-examination. The record of appeal shows that all the processes listed under Order 3 Rule 2 (2) (c) of the High Court (Civil Procedure) Rules were filed along with the writ of summons together with the ex parte motion for summary judgment on 1st March, 2010. The date of 25th February, 2010 typed on the affidavit in support of the ex parte motion was changed by hand to 1st March, 2010 and the commissioner for oaths signed the affidavit. The same thing was done on the second page of the writ of summons. All the processes including the statement of claim were filed on the same day. On the face of the respondent’s statement on oath there is evidence of payment for oath. The respondent signed the deponent column. Taking into consideration the entire facts disclosed by the processes filed on 1st March and the fact that the commissioner for oaths signed the affidavit filed together with the statement on oath by the respondent at the same time, it is not difficult to come to the conclusion that the respondent deposed to the statement on oath but the commissioner inadvertently failed to sign it. On the facts and circumstances disclosed on record, it cannot be said that the statement adopted by the respondent as his evidence before the Court was not deposed to at all. The situation would have been different if there was no payment for oath and the commissioner did not sign the other affidavit filed together with the statement on oath. The Court has always refused to visit the sin of the registrar on the litigant. See FAMFA OIL LTD. V. ATT. GEN. OF THE FEDERATION (2003) 18 NWLR (PT. 852) 453 AT 471. ORJI V. STATE (2019) 13 NWLR (PT.1688) 93. GBENGA V. APC (2020) 14 NWLR (PT.1744) 93. In this case, the respondent cannot be made to suffer for the obvious inadvertence of the commissioner for oaths. Issue 2 is resolved against the appellant.
Issue 3 is whether there was a valid and enforceable contract between the respondent and the appellants. On this issue, the appellant’s counsel submitted that from paragraphs 3-6 of the statement of claim, the respondent’s evidence under cross-examination and the evidence of 1st appellant and Chief Bubor (DW2), it is clear that the respondent had no agreement or contract with the appellants, he was an errand boy to his uncle, (DW2) or at the best an agent to DW2. He further submitted that for an agreement or contract to be binding and enforceable, there must be offer, acceptance and consideration but apart from saying that he represented DW2 (Chief Bubor), the respondent did not plead and give evidence of the consideration furnished by him to the appellants in respect of the alleged oral agreement. There is therefore no valid and enforceable agreement. He argued that the absence of pleading and evidence of consideration or obligation on the part of the respondent renders any purported agreement between him and the appellants unenforceable. He referred to BILANTE INT’L LTD. VS. N.D.I.C. (2011) 15 NWLR (PT. 1270) 407 AT 423, PARAS C-D. He contends that the learned trial Judge was wrong in giving judgment in favour of the respondent when there is no evidence of consideration, a basic and necessary element for the existence of a valid contract that is legally binding on the parties flowing from the respondent to the appellants.
The respondent’s counsel in his response submitted that there was a binding and enforceable oral agreement between the respondent and the appellants which was the basis upon which the appellants willingly and voluntarily made part payments of the respondent’s accrued entitlement and which said agreement was breached when the appellants refused and/or neglected to further pay the respondent his accrued entitlement. He further submitted that an agreement can be oral or inferred from the conduct of the parties and notwithstanding the fact that the agreement in the instant case is oral, it is enforceable. He referred to DAMINA V. AKPAN (2011) ALL FWLR (PT580) 1298 AT 1300 RATIO 3. He posited that the test of the existence of a mutual assent between parties to an agreement is objective and must be outwardly manifested. In the instant case, the appellants outwardly manifested the mutual, binding and enforceable agreement between them and the respondent when the appellants willingly and voluntarily made the part payment of the respondent’s accrued entitlements based on the oral agreement. He referred to A.G RIVERS STATE Vs. A.G AKWA IBOM STATE (2011) ALL FWLR (PT 579) 1023 AT 1033 RATIOS 2 & 3.
RESOLUTION
The law is that for a valid and binding contract to exist there must be an agreement, an intention to create legal relations, an offer and an unqualified acceptance of the offer and consideration. See BALIOL (NIG) LTD V. NAVCON (NIG) LTD (2010) LPELR-717(SC) AT 16-17 (D-A). An agreement can be oral or inferred from the conduct of the parties thereto. Once there is mutuality of purpose and intention, an oral agreement or contract is enforceable. See TAURA V. CHUKWU (2018) LPELR-45990(CA) AT 16-17(F). NSITF V. ACCESS BANK PLC (2015) LPELR-25790(CA) AT 11 (A-C). ODUTOLA & ANOR V. PAPERSACK NIG. LTD (2006) LPELR-2259(SC) AT 25 (A-C), (2006) 18 NWLR (PT.1012)470. In the instant case, the respondent gave evidence of the oral agreement between him and the appellants as a result of which the appellants paid the agreed monthly amount for some time before the payment stopped. The 1st appellant (DW1) admitted under cross-examination that it was based on the oral agreement between the respondent and the appellants that the agreed amount was paid to the respondent. He said they continued to pay the respondent until Chevron got to know about it and told him to stop. According to him, the payments to the respondent were made in error. He said he was paying Chief Bubor $130 and $20 to the respondent. However, Chief Bubor who testified as DW2 confirmed the fact that the contract was for $550 per day. The 1st appellant’s share was $400 and his own was $150 per day. From the onset of the contract, the 1st appellant paid him $150 per day and did not owe him any arrears. That evidence knocked the bottom out of the case of the appellants that the respondent came to him after the contract was awarded and told him that $130 should be paid to Chief Bubor and $20 dollars should be paid to him. DW1 said he was ordered to pay the full amount to DW2. He also said he told the respondent that DW2 had been asking for the backlog and he has been paying. However, DW2 under cross-examination and contrary to his statement on oath was emphatic that he was being paid his $150 per day from the beginning of the contract and Chevron supervisor did not order the appellants to pay him any arrears of money. The allegation of threat and harassment by the respondent was concocted by DW1 to avoid honouring an agreement voluntarily entered into by the parties. If the respondent was not a broker or an agent, for what purpose was he introduced to DW1. Obviously, DW1 is not a witness of truth. No Court should accord any credibility to a witness who brazenly lied on oath. The lower Court was right to prefer the evidence of the respondent and rightly held that there was an oral contract between the respondent and 1st appellant. Issue 3 is resolved against the appellants.
For the above reasons, I hold that this appeal has no merit. I hereby dismiss it. The judgment of the High Court of Delta State delivered in suit no. W/63/2010 on 17/5/2013 by C. E. Ajilefu, J is hereby affirmed. There shall be 200,000.00 (two hundred thousand naira) costs in favour of the respondent and against the appellants.
JOSEPH EYO EKANEM J.C.A.: I read in advance, the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered. I agree with his lordship that the appeal has no merit.
It is clear that there was an oral and binding agreement for the appellants to pay the respondent the sum of $20.00 per day. Dw1 admitted in cross-examination that it was based on the oral agreement that the amount was paid to the respondent. The appellants by this course of conduct showed or admitted clearly that there was indeed such an agreement and confirmed the evidence of the respondent about the oral agreement. They cannot now seek to resile from their admission. See Sections 20 and 169 of the Evidence Act, 2011.
The contention by appellants that the payments to the respondent were made in error is unfounded as an erroneous admission is not known to the law. Again, a party would not be allowed to renege from his admission. See Zenith Plastics Ltd v. Samotech Ltd (2007) 16 NWLR (Pt. 1060) 315 and Crown Flour Mills Ltd v. Olokun (2008) 4 NWLR (Pt. 1077) 254.
I therefore agree with my learned brother that this appeal has no merit. I dismiss the same and I abide by the consequential orders in the judgment of my learned brother.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.: I have read in advance, the judgment of my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA.
I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I too hold that the appeal lacks merits and is accordingly dismissed.
I abide by all consequential order (s) in the lead judgment.
Appearances:
J. A. David For Appellant(s)
…For Respondent(s)
