NZE EDWIN ABAZIE V.REGINALD NWACHUKWU & ANOR.
(2012)LCN/5334(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of April, 2012
CA/PH/556/2007
RATIO
TORT: FACTORS TO BE ESTABLISHED TO SUCCEED IN DETINUE
In order for a plaintiff to succeed in detinue, he must adduce credible, admissible and sufficient evidence to establish the following factors.
(a) That he is the owner of the chattel or property in question;
(b) That he has immediate right to possession of the chattel.
(c) That the defendant is or was in actual possession of the chattel.
(d) The plaintiff has made a proper demand on the defendant to deliver up the chattel to the plaintiff and
(e) That the defendant has unjustifiably refused to deriver up possession of the chattel to the plaintiff. PER MOJEED ADEKUNLE OWOADE, J.C.A.
TORT: EFFECT OF FAILURE OF A PLAINTIFF TO ESTABLISH HIS CLAIM TO OWNERSHIP OF CHATTEL
Where a plaintiff fails to establish his claim to ownership of the chattel detained wrongfully where the title to the goods in question was in dispute, in addition to establishing that there was a demand coupled with wrongful refusal by the defendant, the action must fail. See, Sommer vs. F.H.A. (1992) 1 NWLR (Pt. 219) 548, Sodimu vs. Nigerian Ports Authority (1975) 1 SC 153, Owena Bank Ltd. Vs. Olatunii (2002) 12 NWLR (Pt. 781) 259, Guinness (Nig.) Plc. Vs. Nwoke (2000) 15 NWRL (Pt. 658) 135, W.A.O.S. vs. U.A.C. (2000) 13 NWLR (Pt. 683) 68, U.B.N. vs. Obezuah (1992) 2 NWLR (Pt. 485) 28; Shuwa vs. Chad Basin Development Authority (1991) 7 NWLR (Pt. 205) 550 Engr.Yusuf Amuda Umoru vs. Ijumu Local Government Council & 1 Or. (2010) 7 NWLR (Pt. 1192) 1 at pp. 15 – 16. PER MOJEED ADEKUNLE OWOADE, J.C.A.
TORT: WHAT CONSISTS DETINUE
The tort of detinue consists in wrongful withholding of the plaintiff’s goods. It does not matter whether the person or the wrong doer, that is, detainee of the goods, obtained possession of the detained goods lawfully or illegally or by seizure. What is relevant is the wrongful retention of the chattel after demand. It is therefore material that, to sustain an action in detinue, there must be demand by the plaintiff and on receipt of this notice the persistence in keeping the chattel by the defendant would give rise to an action in detinue.
See, Beaman vs. A.R.T.S. Ltd. (1948) 2 All E.R. page 99, Umaru vs. Ijumu L.G.C. (supra) at page 14. PER MOJEED ADEKUNLE OWOADE, J.C.A.
TORT: WHETHER REFUSAL TO RELEASE A DETAINED CHATTEL CAN BE INFERRED FROM THE CONDUCT
It is settled law, therefore, that refusal to release a detained chattel can be inferred from the conduct of the defendant as the refusal need not be specific or definite. Once there is an express demand, refusal is an issue of fact which need not also be in so many words. The defendant’s conduct may be clear evidence of his refusal such as unexcused delay or postponement or such other unwarranted conduct or reaction which can be explained in no other ground than refusal to perform or release the document or chattel.
See, Kosile vs. Folarin (1989) 3 NWLR (Pt. 107) page 1 at 17 (SC). Unipetrol Nig. Plc. Vs. Buraimoh (2004) 15 NWLR (Pt. 897) page 641 at 662. PER MOJEED ADEKUNLE OWOADE, J.C.A.
PROCEDURE: DUTY OF COURT NOT TO DELVE INTO THE SUBSTANTIVE SUIT IN AN INTERLOCUTORY STAGE
It is trite that a trial Judge must resist the temptation of delving into the substantive suit in the course of considering interlocutory applications. In the instant case, the learned trial Judge was wrong to have delved into the merits of the substantive suit at an interlocutory stage.
In the case of All States Trust Bank Ltd. Vs. Chyke Int’l Ltd. (2003) FWLR (Pt. 141) 1903 at page 190, it was held that a court cannot upon an interim or interlocutory application make a pronouncement amounting to a prejudgment of the issue to be heard at the trial. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES:
UWANI M. ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED A. OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
NZE EDWIN ABAZIE (For himself & representing the members of Umunumuo Town Union, Aba Branch) – Appellant(s)
AND
1. REGINALD NWACHUKWU
2. EDWIN NZEADI (For themselves & representing members of Umunumuo Amairi Progressive Union, Aba – Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision/ruling of O. ZIK IKEOROHA. J. delivered on 24th day of October, 2007. The Respondent as plaintiff before the lower court issued a Writ of Summons dated 12/5/2005 and claimed against the Defendant/Appellant as follows:
“1. The sum of Ten Million Naira as General Damage for wrongful detention of land documents of members of the said union since 1997 despite repeated demands.
2. Order of the court compelling the Defendant to surrender the said documents to the plaintiffs as representatives of members of Umunumuo Amairi Progressive Union, Aba duly elected as Chairman and Secretary respectively of the said Union.
3. ………………….”
Pursuant to order of court on 15th day of June, 2006, the Respondent filed an Amended statement of claim dated 22/6/2006 in which the reliefs contained in the Writ of Summons were repeated in paragraph 14 of the said Amended Statement of Claim.
The Appellant entered appearance to the claim and from the record filed an Amended Statement of Defence on 13th July, 2006.
In paragraph 18 of the said Amended Statement of Defence, the Appellant averred that he shall contend at the hearing that:
(a) That the plaintiffs are not entitled to the relieves (sic) reliefs sought in this suit at all or any relief at all.
(b) That the suit of the plaintiffs is spurious and a calculated gold-digging expedition.
(c) Urge the court to dismiss the same with punitive cost for being incompetent, improperly constituted, statute barred and a gross abuse of process of this Honourable court.
Consequent upon and/or as a follow up to the above, the Appellant filed a Notice of Preliminary objection to the Respondent suit on the ground:
“(i) The purported Writ of Summons initiating Suit No. A/199/2005 is incompetent, improperly constituted and a gross abuse of the process of court.
(ii) The claims/reliefs as contained in the purported Writ of Summons as well as the Amended Statement of Claim in this Suit are statute barred and thereby robbing this Honourable Court of its jurisdiction to entertain the same.
FURTHER TAKE NOTICE that the Defendant/Applicant shall at the hearing of this objection rely on the purported Writ of Summons, the Amended Statement of Claim and Amended Statement of Defence in this Suit.”
Before the lower court, the parties filed written Addresses to this application and in a considered ruling delivered on 24th October, 2007 the learned trial judge overruled and dismissed the Appellant’s preliminary objection. Dissatisfied, the Appellant filed a Notice of Appeal containing three(3) Grounds of Appeal before this court on 6/11/2007.
Appellant’s brief of argument dated 5/4/2010 was filed on 27/7/2010. Respondent’s brief of argument dated 22/12/2010 and filed on the same date was deemed filed on 19/4/2011. Appellant’s Reply brief dated 14/1/2011 was filed on 18/4/2011.
Learned counsel for the Appellant nominated three(3) issues for determination. They are:-
“(i) Whether in view of the circumstances of the claim in the suit the learned trial Judge was right when he held that Suit No: A/199/2005 is statute barred.
(ii) Whether the learned trial Judge was right in holding that the suit was properly endorsed and competent.
(iii) Whether the learned trial Judge was right in delving into the merits of the substantive suit at the interlocutory stage?”
The Respondents adopted the issues formulated by the Appellant.
I have carefully gone through the record of appeal and the briefs of argument filed by the parties in this case. In the circumstances of the case, I am of the opinion that Appellant’s issue No. 2 which attacks the competence of the Writ of Summons should come even before the Issue No. 1 which claimed that the Respondent’s suit is statute barred.
Accordingly, Appellant’s Issue No. 2 shall be treated as 1. Issue No. 1 as 2 while Issue No. 3 remains as originally numbered.
On Issue No. 1, learned counsel for the Appellant submitted that the purported Writ of Summons is incompetent as it does not contain the mandatory requirements and materials spelt out by Order 5 of the ABIA STATE HIGH COURT (CIVIL PROCEDURE) RULES 2001 and as such was not issued in compliance with the Rules.
The purported Writ of Summons, said counsel, does not contain the mandatory endorsements as to the counsel who issued the Writ as well as the endorsement as to who served the Writ of Summons.
On this, said Appellant’s counsel, the Respondents urged the trial court to take judicial notice of the Affidavit of service in the courts file and the court so did.
Appellant’s counsel then referred us to the case of Schroder vs. Major (1989) 2 NWLR (Pt.101) pp. 17 and 20, where the Supreme Court held per Oputa JSC, that an affidavit of service in proof of service of a Writ of Summons is incompetent and ineffective and therefore no proof of service because a Writ of Summons will not be considered regular unless the endorsements which is part of the Writ itself is completed.
The Court, said counsel, further held in the Schroder vs. Major case (supra) that such affidavit notwithstanding, a failure to comply with rule 16 as to the said endorsement is fatal.
Counsel submitted that the purported Writ of Summons in the instant case is even worse than the one in Schroder vs. Major (supra) in that the said Writ in Suit No. A/199/2005 does not contain the said endorsements on the last page of every Writ of Summons, let alone same being completed or filed.
Counsel submitted that this non-compliance further renders the suit incompetent and void as Suit No. A/199/2005 cannot be said to have been initiated by due process of law which is one of the factors that cloaks a court with the jurisdiction to entertain the matter.
Appellant’s counsel referred to the case of 7UP BOTTLING COMPANY LTD. & ORS. VS. ABIOLA & SONS. NIG. LTD. (1995) 3 SCNJ 37 at page 55 and submitted that it is trite that the Rules of Court are not made for fun or to be treated with levity but must be strictly adhered to and complied with.
In response to issue No. 1, learned counsel for the Respondents submitted that the position of the courts now is a drive towards substantial justice and not towards form or technicalities.
Counsel referred us to the cases of Saleh vs. Monguno (2006) 15 NWLR (Pt.001) page 26 at pages 59 – 60, Agbakoba vs. INEC (2009) 24 WRN 1 at pages 59 – 60, and Ogundimu vs. Kasumu (2007) 2 J.N.S.C. Pt. 32 page 400 at 415.
Counsel submitted that the Writ of Summons complained of was duly endorsed by the Registrar of the court below and by counsel who settled the suit.
That, the Writ also contains addresses for service of all the parties concerned, indeed, said counsel, it contains all that are required under Order 5 of the Abia State High Court (Civil Procedure) Rules 2001. It is not a Writ for service outside jurisdiction and it is in substantial compliance with the provision of Order 5 aforementioned.
Respondents counsel referred to the cases of Ali vs. Osakwe (2009) 38 WRN 115 at page 161, Duke vs. Akpabuvo L.G. (2006) 13 WRN 1. And submitted that Rules of court are handmaid to justice and not an end in themselves.
Counsel argued that the case of Schroder vs. Major (supra) relied on by the Appellant was decided in an era where the courts were technical in their approach to justice. The Courts, he said, have moved away from technical justice to substantial justice. He further referred to cases of Otu vs. ACB Int. Bank Plc. (2008) 16 WRN 1 at page 30 and Agbakoba vs. INEC (2009) 24 WRN 1 at page 35 – 36.
He urged us to hold that the Writ of Summons in this suit is competent.
In deciding Issue No. 1, the question is not just the movement of the courts from the era of technicalities to the era of doing substantial justice as suggested by the learned counsel for the Respondents, but that the complaints of the Appellant on the Writ of Summons are mere irregularities and not a fundamental defect of the Writ of Summons.
Now, when a party complains of irregularities as opposed to fundamental defects in a Writ, such complaints must be raised before taking any further steps in the proceedings. In the instant case, the Appellants after being served with the Writ of Summons, not only entered appearance but also filed processes including statement of Defence and Amended statement of Defence.
In those circumstances the Appellant is deemed to have waived the non-compliance by the Respondents with the Rules of Court. A party to a proceeding may waive irregularities and/or non compliance with the Rules of court but cannot waive fundamental defects in processes such as service of the Writ of Summons itself. In the instant case, the learned trial Judge was right when he held at page 47 of the record that:
“On the issue of who served the writ of summons, the Honourable Court is of the candid view that, by the defence filing their memorandum of appearance; and also their statement of defence and subsequently their amended statement of defence, the issue of who served them the writ of summons has been overtaken. It therefore seems to me; and the Honourable Court tends to agree with the learned counsel for the Plaintiffs/Respondents that that issue goes to the form and not the substance of the suit. Moreover, the learned counsel to the Defendant/Applicant did not show how the issue of the said endorsement adversely affected the Defendant………………..”.
Issue No. 1 is resolved against the Appellant.
On Issue No. 2 Appellant’s counsel submitted that the learned trial Judge erred in holding that suit No. A/199/2005 is not statute barred when it is clear that paragraphs 7, 8 and Relief No. 1 contained in the statement of claim eloquently state that the cause of action in the suit is founded in detinue (i.e wrongful detention of document) which is an action in tort.
Counsel further submitted that the Respondent’s cause of action accrued in 1997 when according to them members of the union started demanding from the Appellant (who also according to them stopped attending union meetings) to surrender the said documents in his possession.
After reproducing paragraphs 7 and 8 of the Respondent’s Amended Statement of Claim, Appellant’s counsel said that by the clear provision of Section 18 of the Limitation Laws of Abia State (cap. 42) 1990, any action founded in tort must be instituted within 5 years of the accrual of the cause of action.
He furthered that by the said paragraphs 7, 8 and Relief No. 1 above stated, the Respondents eloquently admit that the cause of action accrued since 1997 whereas the action was instituted in 2005 a period of 8 years thereafter.
Counsel submitted that it is trite that time begins to run from when all the facts giving rise to the plaintiffs cause of action accrued irrespective of any negotiation for peaceful settlement. He referred to the case of Unit Bank vs. Nwadike (2009) 4 NWLR (Pt. 1131) 352 at page 376 and added that it is even more apposite in the present case where it is clearly one of demand and refusal without any indication of negotiation.
Counsel submitted that the case of Chigbu vs. Tonimas (2006) 26 NSCQR page 22 relied on by the learned trial Judge with regards to formal demand followed by a refusal to return the goods and chattel does not apply to the instant case in view of the fact that in the former, there was clearly no indication as to the exact time of the said demand by the plaintiff therein.
Also, said counsel, the two cases are distinguishable, the Respondents alleged letters to the Appellant in paragraph 7 of the Statement of Claim dated 16/2/98 and 30/3/98 are all indications of a definite demand for the said documents which are allegedly wrongfully detained by him.
In like manner, said counsel, the purported letter of 30/3/98 and that written on 12/4/2005 on the same subject matter are also clear indications and acknowledgement by the Respondents of the Appellant’s serious refusal to return the said title document.
He submitted, that the Respondents subsequent claim of becoming aware of the Appellant’s refusal in 2005 (8 years after demand) is only a lame excuse aimed at concealing their lack of diligence to seek redress in a purported breach of their right. The suit brought in 2005 being 8 years after the cause of action accrued as admitted by the respondents, is statute barred and thus liable to be dismissed or struck out.
Appellant’s counsel relied on the cases of Yakubu vs. Nitel Ltd. (2006) 9 NWLR (Pt.985) 367 and 397 – 398 and Unity Bank Plc. Vs. Nwadike (supra) and submitted that the statutes of limitation constitute an exception to the general rule that “Where there is a right, there is remedy” as a litigant must be alert and timeously seek redress rather than delay in instituting such action. When it is not brought tiemously, such an action abates and no relief can validly be sought to enforce a stale claim.
Learned counsel for the Respondents on the other hand submitted in respect of Issue No. 2 that in cases of detinue, it is not when the wrongful detention commenced that matters in the determination of the limitation period but when there is definite demand and definite refusal.
Counsel submitted that the Respondents never disclosed in any paragraph of their statement of claim that there was a definite refusal by the Appellant to surrender the documents in question which would have fixed the right of action in 1997.
Counsel for the Respondents placed reliance on the decision of the Supreme Court in the case of Chigbu vs. Tonimas (2006) 31 WRN 179 at pages 202 – 203 and submitted that, there are clear averments in paragraph 7 and 8 of the statement of claim that written demands were made to the appellant in 2005, through the Respondent’s solicitor’s letter wrongly dated 12/5/2005. That, paragraph 8 of the statement of claim recorded the refusal of the Appellant to surrender the documents as follows:
“8. Apart from the above demand letters, the plaintiffs through their solicitor’s letter (wrongly dated 12/5/2005 instead of 12/4/2005 in the name of Nze Eddy Abazie) demanded the return of their Union’s Documents in Defendant’s wrongful detention since 1997 to no avail.”
Respondents counsel submitted that it is obvious that on the strength of the above letter there was a demand for the release of the documents in 2005 followed by a definite refusal. He submitted that the right of action in this suit arose in the year 2005 when the suit was instituted against the Appellant Counsel submitted that the important thing is not that the wrongful detention began in 1997 but that there was a definite demand through Respondents solicitor’s letter of 2005 and that there was a definite refusal to surrender the documents. The refusal said counsel, took place in 2005 after the Appellant received the Respondent’s solicitor’s demand Notice and refusal to release the documents in question.
Counsel said it is clearly shown in paragraph 9 of the statement of claim that in reaction to Respondents solicitor’s letter, the Appellant in conjunction with one Nze A. Obasi Agim circulated a letter he signed as “Chairman” of Umunumo’s Town Union, Aba Branch.
Counsel said that paragraph 10 of the statement of claim is also instructive. That, therein, the Appellant, instead of surrendering the documents to the Respondents falsely claimed that “some group of people” were attempting to sell the Union’s Hall.
Respondents counsel regard this, as a definite rejection of their solicitor’s letter demanding the surrender of the documents, And, that it was this definite rejection or refusal to surrender the documents that prompted this suit on 12/5/2005.
He urged us to hold that the suit is statute barred.
In deciding Issue No. 2, it must be pointed out that the salient and relevant ingredients of the tort of detinue for the purposes of determining the accrual date of a cause of action is a formal demand followed by a wrongful refusal.
The attempt by the learned counsel to the Respondents to equate definite refusal with a formal refusal does not represent the law. In other words, where there is a formal demand to surrender a detained chattel the refusal by the defendant could be by conduct and may therefore be inferred from the facts and circumstances of each case,
In order for a plaintiff to succeed in detinue, he must adduce credible, admissible and sufficient evidence to establish the following factors.
(a) That he is the owner of the chattel or property in question;
(b) That he has immediate right to possession of the chattel.
(c) That the defendant is or was in actual possession of the chattel.
(d) The plaintiff has made a proper demand on the defendant to deliver up the chattel to the plaintiff and
(e) That the defendant has unjustifiably refused to deriver up possession of the chattel to the plaintiff.
Where a plaintiff fails to establish his claim to ownership of the chattel detained wrongfully where the title to the goods in question was in dispute, in addition to establishing that there was a demand coupled with wrongful refusal by the defendant, the action must fail. See, Sommer vs. F.H.A. (1992) 1 NWLR (Pt. 219) 548, Sodimu vs. Nigerian Ports Authority (1975) 1 SC 153, Owena Bank Ltd. Vs. Olatunii (2002) 12 NWLR (Pt. 781) 259, Guinness (Nig.) Plc. Vs. Nwoke (2000) 15 NWRL (Pt. 658) 135, W.A.O.S. vs. U.A.C. (2000) 13 NWLR (Pt. 683) 68, U.B.N. vs. Obezuah (1992) 2 NWLR (Pt. 485) 28; Shuwa vs. Chad Basin Development Authority (1991) 7 NWLR (Pt. 205) 550 Engr.Yusuf Amuda Umoru vs. Ijumu Local Government Council & 1 Or. (2010) 7 NWLR (Pt. 1192) 1 at pp. 15 – 16.
The tort of detinue consists in wrongful withholding of the plaintiff’s goods. It does not matter whether the person or the wrong doer, that is, detainee of the goods, obtained possession of the detained goods lawfully or illegally or by seizure. What is relevant is the wrongful retention of the chattel after demand. It is therefore material that, to sustain an action in detinue, there must be demand by the plaintiff and on receipt of this notice the persistence in keeping the chattel by the defendant would give rise to an action in detinue.
See, Beaman vs. A.R.T.S. Ltd. (1948) 2 All E.R. page 99, Umaru vs. Ijumu L.G.C. (supra) at page 14.
It is settled law, therefore, that refusal to release a detained chattel can be inferred from the conduct of the defendant as the refusal need not be specific or definite. Once there is an express demand, refusal is an issue of fact which need not also be in so many words. The defendant’s conduct may be clear evidence of his refusal such as unexcused delay or postponement or such other unwarranted conduct or reaction which can be explained in no other ground than refusal to perform or release the document or chattel.
See, Kosile vs. Folarin (1989) 3 NWLR (Pt. 107) page 1 at 17 (SC). Unipetrol Nig. Plc. Vs. Buraimoh (2004) 15 NWLR (Pt. 897) page 641 at 662.
Let us now examine the relevant paragraphs of the Respondents Statement of Claim in this case.
“7. Since 1997, members of the Union have been demanding from the Defendant, surrender of land document in respect of the unions Hall at No. 22 Emeka Street, Umule which the Defendant who resided at No. 15 Chukwunyere Street, Aba, within the jurisdiction of this Honourable Court, wrongfully kept in his custody. The plaintiff’s will rely on photocopies of letters dated 16/2/98 and 30/3/98 addressed to the Defendant.
The Defendant is hereby given Notice to produce the original copies of the said letters failing which the plaintiff’s will rely on photocopies.
8. Apart from the above demand letters, the plaintiff’s through their solicitor’s letter (wrongly dated 12/5/2005 instead of 12/4/2005 in the name of Nze Eddy Abazie) demanded the return of their Union’s land documents in Defendant’s wrongful detention since 1997 to no avail.
The said solicitor’s letter is hereby pleaded.
9. In reaction to plaintiff’s solicitor’s letter aforementioned, the Defendant in conjunction with one Nze A. Obasi Agim circulated (photocopy of) a letter dated 13/4/2005 to which photocopy of the solicitor’s letter afore-mentioned was attached and which he signed as “Chairman” purporting to summon an “emergency General Meeting of Umunumuo Town Union, Aba Branch. The said letter is hereby pleaded and the Defendant is hereby given Notice to produce the original copies of the said letters failing which the plaintiff’s will rely on photocopies.
10. The Defendant in the letter afore pleaded falsely claimed that ‘some group of people’ was attempting to sell the Union’s Hall instead of facing the real issue in the said solicitor’s Demand Notice.”
From the pleadings of the Respondents in this case, even if one does not agree with the learned counsel for the Appellant that the cause of action in detinue arose in 1997 partly for the reason that the demand for the return of the document in question was not formal, the same cannot be said of the formal demands made by the Respondents on 16/2/98 and 30/3/98 to which there were no responses from the Appellant. It is therefore right to surmise that the Respondents ought to have instituted this suit in or about the year 2003 – being a period of 5 years from 1998 when the cause of action accrued, as stipulated by the Abia State Limitation Law.
For purposes of determination of whether an action is statute barred, time can only begin to run when there is in existence a person who can sue and one who can be sued, and all material facts that must be proved to entitle the plaintiff to the reliefs sought exist.
See Adaji vs. Amodu (1992) 8 NWLR (Pt. 260) 472, U.B.N. Ltd. vs. Oki (1999) 8 NWLR (Pt. 614) 244, Emiator vs. Nigerian Army (1999) 12 NWLR (Pt.631) 362, Sani vs. Okene L.G.A. (2005) 14 NWLR (Pt. 944) 60, Ebonogwu vs. Onyemaobim (2008) 3 NWLR (Pt.1074) 369, Julius Nduka vs. Edwin Ogbonna, (2011) 1 NWLR (Pt. 1227) 153 at 168.
In the instant case, I do agree with the learned counsel to the Appellant that the case of Chigbu vs. Tonimas (2006) 4 SCNJ 262 relied on by the learned trial Judge as well as the learned counsel for the Respondents is indeed distinguishable from the facts and circumstances of the present case.
The decision of the Supreme Court in Chigbu vs. Tonimas (supra) was made because pleadings had not been filed before the objection that the action was statute barred to be able to know when exactly the demand to release the chattel in question in that case was made.
Thus, the case held at Page 275 that:
“At the time the defendants brought their application to dismiss or strike out plaintiff’s suit, a statement of claim had not been filed by the Plaintiff. It was not therefore shown when a demand followed by a refusal was made. It is possible these were done within the 5 years limit allowed under the limitation edict of 1994, the result is, that the Defendants’ objections in respect of claims (c) and (d) were Premature.”
In the instant case, the demand letters dated 16/2/98 and 30/3/98 referred to in paragraph 7 of the respondents Amended Statement of Claim, fixed the date of formal demand of the detained document at 16/2/98 and/or 30/3/98. Either way the failure of the Respondents to bring an action 5 years thereafter in 2003 renders the present action in detinue to be statute barred.
The letter of 12/4/2005 referred to in paragraph 8 of the Respondents claim is not only an afterthought but indeed a futile attempt to wake up a stale claim which was dead on or about the year 2003.
The fallacy in the argument of the learned counsel for the Respondents in relation to a formal refusal which he termed a definite refusal is that there is nothing in the Respondents statement of claim to suggest that even the so called circulated letter of refusal of 13/4/2005 was addressed to the Appellant. The implication of this, is that it may well high be impossible to maintain an action in detinue if a plaintiff waits indefinitely for a formal letter of refusal to surrender from the defendant which may never be forthcoming.
In the instant case, I think the learned trial Judge was wrong to have failed to see that even when the oral demands by the Respondents since 1997 does not fix the date of demand in the case, the letters on 16/2/98 and 30/3/98 definitely fixed the date of formal demand for the release of the document as 1998. From the year 1998, the refusal by conduct, and/or neglect of the Appellant continued and ripened into an action 5 yeas after in 2003.
The suit, for the tort of detinue brought in year 2005 is in the minimum two (2) years beyond the limitation period and therefore statute barred. By the clear provisions of Section 18 of the Limitation Laws of Abia State (Cap.42) 1990, any action founded in tort must be instituted 5 years of the accrual of the cause of action. The said Section 18 provides thus:
“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.”
I do not have to add that Limitation Laws are strict liability laws.
In the instant case, the learned trial Judge misapplied the Supreme decision in Chigbu vs. Tonimas (supra) in coming to the conclusion that the Respondents cause of action accrued in 2005.
Issue No.2 is resolved against the Respondents.
Issue No. 3 is based on Appellants Ground 3 in the Notice of Appeal. The learned trial Judge in his Ruling held that the Appellant was in continued perpetual possession of a property belonging to a group of members of a Union and thereby delving into the merits of the substantive suit at the interlocutory stage. On this score, learned counsel for the Appellant submitted that the Appellant’s case is that the documents do not belong to the Respondents who are break-away group of the Appellant’s authentic Town Union. That the Plaintiff in a case of detinue has the burden to proof that the detained chattel belongs to them, and this the Plaintiffs/Respondents were yet to do. That it was thus premature for the learned trial Judge to pre-judge the issue as she did at Page 46 of the record that:
“But if that were not enough’ it is the further view of the Honourable court that the issue of one man being in continued and perpetual possession of a title document to a property belonging to a group of members of a Union, is of so grave a nature that it cannot be properly resolved by sweeping the issue under the carpet i.e. in the form of pleading the limitation law.”
Appellant’s counsel submitted that it is the duty of the Courts to do justice according to law and not according to sentiments. And, that the only duty of a trial court when faced with a preliminary objection is to determine whether or not the said objection has merit in law and not to examine or sympathize with the pathetic nature or otherwise of the substantive suit.
On Issue No. 3, learned counsel for the Respondents conceded that it is good law supported by numerous authorities that the merit of a case cannot be decided on interlocutory applications but that is not the case in the present case. Moreover, said counsel, if this Honourable Court come to the conclusion that the merit of the case has been decided on an interlocutory application, the court would have to make an order directing that another Judge hears and determine the matter in the interest of justice.
By way of correction, the complaint of the Appellant in Issue No. 3 is not that the learned trial Judge decided the substantive suit on an interlocutory application but that the learned trial Judge delved into the merits of the substantive suit at the interlocutory stage. It is trite that a trial Judge must resist the temptation of delving into the substantive suit in the course of considering interlocutory applications. In the instant case, the learned trial Judge was wrong to have delved into the merits of the substantive suit at an interlocutory stage.
In the case of All States Trust Bank Ltd. Vs. Chyke Int’l Ltd. (2003) FWLR (Pt. 141) 1903 at page 190, it was held that a court cannot upon an interim or interlocutory application make a pronouncement amounting to a prejudgment of the issue to be heard at the trial.
In the instant case, it was wrong for the learned trial Judge to say that the Appellant was “in continued and perpetual possession of a title document to a group of members of a Union ……………” thereby pronouncing and delving into the substantive issue before the court.
Issue No. 3 is resolved against the Respondent.
In this appeal Issue No. 1 was resolved against the Appellant, issue No. 2 and 3 were resolved against the Respondents.
The appeal succeeds in part. Having held that the Respondents claim before the lower court is statute barred in issue No. 2, suit No. A/199/2005 is accordingly dismissed.
The parties to this appeal shall bear their respective Costs.
UWANI MUSA ABBA AJI, J.C.A.: I read in advance the lead judgment of my brother Hon. Justice M. A. Owoade, JCA just delivered.
I agree entirely with the reasoning and conclusion of my learned brother that the Respondent’s claim before the Lower Court is statute barred, the cause of action having accrued more than 8 years before the institution of the suit.
Consequently, the appeal succeeds as it has merit. It is also allowed by me. I endorse the consequential order as to costs.
HARUNA M. TSAMMANI, J.C.A.: My learned brother M. A. Owoadeo JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.
The facts of this case have been adequately summed up by my learned brother. I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother thereon. I have nothing to add. In that respect, I too hold that the appeal succeeds in part. The Respondent’s claim before the Lower Court being statute barred cannot be sustained. It is accordingly dismissed.
I agree with the order on costs.
Appearances
K.C. Nwufo, Esq, For Appellant
AND
B.N. Onuoha, Esq, For Respondent
