MR. EMELEDOR ETIEMONE v. CHIEF CLIFFORD E. APINA
(2019)LCN/13878(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of March, 2019
CA/PH/277/2017
RATIO
LIMITATION LAW: WHETHER A PARTY CAN RELY ON LIMITATION LAW TO AVOID LIABILITY
Now arising from the first issue for determination, the question is whether the Respondent can rely on the limitation law to escape liability? First, it is to be understood that an action is said to be caught up by statute of limitation or becomes statute barred when the party suing brings his action beyond the period laid down by the limitation law. See Araka V. Ejeagwu (2000) 12 SC (Pt 1) 99. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
STATUTE BAR: THE EFFECT OF AN ACTION BEING STATUTE BARRED
Where an action is statute barred, a plaintiff or claimant who might have had a cause of action loses the right of enforcement of such cause of action or claim in a Court of law as a result of the expiration of the prescribed period. See Eboigbe V. NNPC (1994) 5 NWLR (Pt. 347) 649; UBA Ltd V. Abimbola & Co (1995) 9 NWLR (Pt 419) 371 and Aremo II V. Adekanye & Ors (2004) 13 NWLR (Pt 891) 572. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
STATUTE BAR: HOW THE COURT WILL DETERMINE WHETHER OR NOT AN ACTION IS STATUTE BARRED
In the determination of whether an action is statute barred or not; the Court will look at the processes filed by the claimant so as to discern the time of accrual of cause of action and the time of instituting the action. In Eregbowa & Anor V. Obanor & Ors (2010) LPELR 8964 @ 37 ? 36; Augie, JCA (as he then was) held that:
It is well settled that in determining whether a cause of action is statute barred or not, the crucial consideration is when the cause of action arose, and the period of limitation is determined by looking at the writ of summons and statement of claim alleging when the wrong was committed that gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.?
See also Adekoya V. FHA (2008) 11 NWLR (Pt 1099) 539 and Omomeji V. Kolawole (2008) 14 NWLR (Pt 1106) 180. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
CAUSE OF ACTION: DEFINITION
The law is well settled that a cause of action is the facts which establish or give rise to a right of action; that is the factual situation that gave rise to a judicial relief. In Bello V. AG Oyo State (1986) LPELR 764 @ 81, Karibi-Whyte, JSC explained what a cause of action is in the following way;
“a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the plaintiff relies to support his claim must be recognized by the law as given rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredients of an enforceable right of claim.?
See Thomas V. Olufosoye (1986) LPELR 3237; Egbe V. Adefarasin (1987) LPELR 1032; Tukur V. Government of Gongola State (1989) 4 NWLR (Pt 117) 517 and UBA Plc V Abdullahi (2003) 3 NWLR (Pt 807) 359. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
APPEAL: THE BASIS OF AN APPEAL IS ON THE DECISION OF THE TRIAL OR LOWER COURT
The law is trite that an appeal can only lie against what was decided by the lower Court. An appeal against a judgment on a matter not decided in the judgment appealed against is incompetent and not valid for consideration by the appellate Court. See FCMB V. Benbok Ltd (2014) LPELR 23505 and Onyia V. Mbiko & Anor (2014) LPELR 23028. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
CONTRACT: THE RELATIONSHIP BETWEEN PARTIES IN A CONTRACT
It is a bilateral affair which requires ad idem of parties. See Odutola V. Papersack (Nig) Ltd (2006) 18 NWLR (Pt 1012) 470 and Orient Bank (Nig) Plc V. Bilante International Ltd (1997) 8 NWLR (Pt 515) 37. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
MONEY LENDERS LAW: WHEN IT APPLIES
The Money Lenders Law is applicable to the case or agreement between the parties to this appeal. See Okonta & Anor V. Egbuna (2013) LPELR 21253 and Chartered Braims Ltd & Anor V Intercity Bank Plc (2009) LPELR 97. The Appellant cannot deny being a money lender and he cannot also deny that the crux of this agreement with the Respondent stem from money lending. The provisions of the Money Lenders Law apply and the Respondent is entitled to raise for his benefit any provision of the law.
Having found that the Respondent is entitled to raise the provision of the Money Lenders law with respect to the limitation of action, the first issue for determination fails as it is resolved against the Appellant and in favour of the Respondent. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
LIMITATION PERIOD: THE DOCUMENTS THE COURTS ARE TO LOOK INTO TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED
In an action founded on limitation period, the Courts are enjoined to resolve same by looking at the writ of summons and statement of claim. See Bank of the North V. Gana (2004) LPELR 12568 and Zanen Verstoep & Co. (Nig) Ltd V. Four Star Ind. Ltd. (2016) LPELR 41258. The Court should also look at the time the cause of action accrued and the time of instituting the action. See Nwosu V. PHCN & Ors (2011) LPELR 4655 and Alabi & Ors V. Kwara State Polytechnic & anor (2012) LPELR 2213. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
ADMISSION: DEFINITION
What is an admission? In Ogunnaike V. Ojayemi (1987) 3 SC 213 @ 247 Kawu, JSC defined admission as ?a statement, oral or written (expressed or implied) which is made by a party to civil proceedings and which statement is adverse to his case. It is admissible as evidence against the maker as the truth of the fact asserted in the statement.? See Seismograph Services Nig. Ltd V. Eyuafe (1976) 9 & 10 SC 135 and Adusei & anor V. Adebayo (2012) LPELR 7844. PER ABUBAKAR MUAZU LAMIDO, J.C.A.
Before Their Lordships
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
MR. EMELEDOR ETIEMONE Appellant(s)
AND
CHIEF CLIFFORD E. APINA Respondent(s)
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Bayelsa State holden at Yenagoa delivered by Cocodia, J. on 10th February 2017 in Suit No YHC/217/2013. By its statement of claim filed on 14/4/2013, the claimant claimed against the defendant the following reliefs:
1. The sum of Five Million, Ninety Thousand Naira (N5,090,000.00) only being and representing the capital and accrued interest of loan the defendant obtained from the claimant from 4th June 2009 to 30th June 2013.
2. The sum of Five Million (N5,000,000.00) representing general damages for breach of contract.
3. The cost of litigating this matter to be assessed by this Honourable Court.
The writ of summons was accompanied by witnesses? statement of oath, list of witnesses and documents to be relied on at the trial. On being served, the defendant by leave of the Court filed his statement of defence and witness statement on oath.
The plaintiff opened its case and called two witnesses, while the defendant testified as the only defence witness. After adoption of written address filed by parties, the trial Court reserved Judgment. In its Judgment, the trial Court held that the action of the plaintiff was statute barred and dismissed the whole claim.
Dissatisfied with the decision, the Claimant/Appellant filed his notice and ground of appeal on 13/04/2017. The grounds of appeal without their particulars are reproduced hereunder thus:-
GROUND ONE
The trial Court erred in law and thereby occasioned a miscarriage of justice when it held:
?The alleged payment by the defendant of the sum of Three Hundred Thousand Naira N300,000,00 at the prompting of the police or on about 23rd July 2013 as part payment of the sum owed was not evidenced in writing.
GROUND TWO
The trial Court erred in law and thereby occasioned a miscarriage of justice when it dismissed the Appellant?s claims in the face of admission by the Respondent of his indebtedness to the Appellant.
GROUND THREE
The judgment of the trial Court is against the weight of evidence.
In the Appellant?s brief of argument settled by F.T. Okorotie, Esq filed on 22/06/17, the following Issues were formulated for determination;
1. Whether a party who freely borrowed money and utilized same to his benefit can rely on the law of limitation to escape liability. (Distilled from Grounds Two and Three).
2. Whether the trial Court was right to have dismissed the claim of the Appellant on grounds of Limitation of action when there is admission of liability by the Respondent?
The Respondent adopts the two issues as formulated by the Appellant. The Respondent further formulated another issue for determination which according to him arose from the notice of Intention to contend that judgment should be affirmed on grounds other than those relied on by the Court below. Before reproducing the said issue as formulated by the Respondent, it is pertinent to reproduce the grounds on which the Respondent intends to rely as can be seen from the said Notice. The grounds are:
1. On the 4th day of June 2009 when the Appellant entered into a money lending contract with the Respondent, Appellant had no valid and subsisting money lenders licence and certificate.
2. It is illegal to claim interests and other accruing benefits from a money lending transaction when contrary to the applicable money lenders law, the lender (ie the Appellant) have no valid and subsisting money lenders licence as at the time of transaction in money lending.
Upon the above grounds, the Respondent formulated the following issue for determination;
Whether a party without a valid and subsisting money lenders licence and certificate can transact in money lending legitimately and claim interests and benefits therefrom.
The issues for determination formulated by the appellant which were adopted by the Respondent will also be adopted by the Court for consideration and determination of the appeal.
Before a consideration of the issues for determination, it is pertinent to consider the notice of intention to contend that judgment should be affirmed on Grounds other than those relied on by the Court below. This is so because the Appellant has strenuously argued in his reply brief that the said notice is incompetent and liable to be struck out.
Learned counsel for the Appellant submitted in his reply brief that the Respondent?s Notice is incompetent in that it was filed out of time and no leave of Court was sought by the Respondent and that clearly offends Order 9 Rule 4(b) of the Court of Appeal Rules 2016. Secondly, learned counsel argued that the Respondent is not allowed to introduce a fresh claim or case on appeal through the Respondent?s Notice. He referred to Trade Bank Plc V. Yisi (Nig) Ltd (2006) 1 NWLR (Pt 960) 101 @ 131 and FRN V. Obegolu (2006) 18 NWLR (Pt 1010) 188 @ 207.
The Respondent did not respond to the arguments of learned counsel for the Appellant. This notwithstanding, the law relating to filing of Respondent?s Notice will be examined so as to determine the validity or otherwise of arguments of learned counsel for the Appellant.
Whoever desires to contend on appeal that the decision of the Court below should be affirmed on grounds other than those relied upon by the Court is required to give a notice to that effect specifying the grounds of his contention. See Oduma V. Arunsi (2010) LPELR 9133 and UBN Plc V. Jeric (Nig) Ltd (198
