POATSON GRAPHIC ARTS TRADE LIMITED & ANOR v. NIGERIA DEPOSIT INSURANCE CORPORATION
(2019)LCN/12849(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of June, 2017
CA/L/46/2015
RATIO
ACTION: LIMITATION FOR INSTITUTING AN ACTION
“The rationale behind limitation laws and its enforcement was eloquently stated by Edozie, JSC in AREMO II vs. ADEKANYE (2004) 13 NWLR (PART 891) 572 at 592-593 as follows: “Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute-barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation for instituting such an action has elapsed. See the cases of Eboigbe vs. N.N.P.C. (1994) 5 NWLR (Part 347) 649; Odubeko vs. Fowler (1993) 7 NWLR (Part 308) 637; Sanda vs. Kukawa Local Government (1991) 2 NWLR (Part 174) 379; Ekeogu vs. Aliri (1991) 3 NWLR (Part 179) 258. The rationale or justification supporting the existence of statute of limitation includes the following:
1. That long dormant claims have more of cruelty than justice in them,
2. That a defendant might have lost the evidence to disprove a stale claim and
(3) That persons with good causes of action should pursue them with reasonable diligence
The period of limitation begins to run from the date on which the cause of action accrued…” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
APPEAL: GROUND OF APPEAL
“The law is that a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party: IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 503 at 578 and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT AND PROCEDURE: THE DECISION OF A TRIAL
“…the law has been settled beyond peradventure that where a trial Court reached a right decision, the reason given for arriving at the decision is immaterial, since the appellate Court is only concerned with whether the correct decision was arrived at and not whether the reasons are correct. See NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220 and DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161. So of interest in this issue is whether the lower Court was right when it held that the Appellants counterclaims were statute barred and not whether the reason it gave for so holding are correct.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT AND PROCEDURE: EFFECT OF JUSTICE
“The justice administered in a Court is not abstract justice conceived by the judex. It is justice according to law. The law is trite that sympathy and sentiments have no place in the administration of justice. A Court of law does not base its decision on sympathy or sentiments. The situation in which the Appellants find themselves in is unfortunate, but sentiments command no place in judicial deliberations: KALU vs. FRN (2016) LPELR (40108) 1 (SC) and HUEBNER vs. AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT LTD (2017) LPELR (42078) 1 at 58 (SC). There is nothing discriminatory in the application of Section 44 of the NDIC Act, the said provision which provides that the limitation law will not applyNto an action to recover debt owed to a failed or failing bank cannot be extended to the Appellants in respect of the causes of action in their counterclaims.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICE
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHIJustice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria
Between
1. POATSON GRAPHIC ARTS TRADE LIMITED
2. POATSON NIGERIA LIMITEDAppellant(s)
AND
NIGERIA DEPOSIT INSURANCE CORPORATIONRespondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
It is apposite to start this judgment with a lucent redaction of how we got here. There was a customer/banker relationship between the 1st Appellant and the defunct Trade Bank PLC. In the course of the relationship certain facilities were afforded to the 1st Appellant for which a legal mortgage was created. The 1st Appellant, contending that Trade Bank PLC did not handle the facility properly, instituted proceedings before the High Court of Lagos State in SUIT NO. ID/942/1998: POATSON GRAPHIC ARTS TRADE LIMITED vs. TRADE BANK PLC seeking in the main, a declaration that Trade Bank PLC was not entitled to enforce the right of sale under the Deed of Legal Mortgage.
While the said action was pending, the Respondent on record, Nigeria Deposit Insurance Corporation (NDIC) was appointed as liquidator for Trade Bank PLC and it was accordingly substituted for Trade Bank. This was in 2009. The Respondent, thereafter with leave of Court, amended the existing Statement of Defence and Counterclaim to include a counterclaim against the Appellants. This was on 30th January 2012. The 2nd Appellant became a party to the action on account of the Respondents counterclaim against it. The Appellants duly filed Defence to the Counterclaim of the Respondent as well as Counterclaim to the Counterclaim of the Respondent. So the parties before the lower Court were the Claimants/Defendants to Counterclaim/Counterclaimants to Counterclaim and Defendant/Counterclaimant/Defendant to Counterclaim to Counterclaim. It may appear confusing, but it is not material to what transpired next and in so far as this appeal is concerned.
The Respondent then brought an application for the Counterclaims of the Appellants to be dismissed for being statute-barred; on the grounds that the cause of action in respect of the 1st Appellant accrued in 1998 and the cause of action in respect of the 2nd Appellant accrued in 1997. The lower Court in its Ruling which was delivered on 30th September 2014 granted the application and dismissed the said Counterclaims for being statute barred. The Ruling of the lower Court is at pages 370-373 of the Records. The Appellants being dissatisfied appealed against the said Ruling. Their Notice of Appeal is at pages 374-379 of the Records. So here we are.
Upon the compilation and transmission of the Records of Appeal, the parties filed and exchanged briefs of argument. The Respondent filed an application challenging the competence of the appeal or in the alternative for grounds 6 and 7 of the grounds of appeal to be struck out for being incompetent. The Appellants filed a counter affidavit in opposition to the application. Argument in respect of the said application was incorporated in the Respondents Brief and the Appellants responded to the same in the Appellants Reply Brief. At the hearing of the appeal, the learned senior counsel for the parties urged the Court to uphold their respective submissions in the resolution of the issues raised in the appeal. On account of its threshold nature, I will in the consideration and resolution of this matter start with the Respondents challenge to the competence of the appeal.
THE PRELIMINARY OBJECTION
The Respondent argued the preliminary objection on pages 2-10 of the Respondents Brief, while the Appellants response thereto is on pages 2-13 of the Appellants Reply Brief. The Respondent predicated the preliminary objection on three grounds as follows:
1. The notice of appeal was filed out of time without regularization;
2. The grounds of appeal, being grounds of mixed law and facts, were filed without the leave of the Honourable Court first sought and obtained; and
3. Assuming but not conding that the Honourable Court has the jurisdiction to entertain this appeal, whether grounds 6 and 7 of the Appellants grounds of appeal are not incompetent?
FIRST GROUND OF OBJECTION
The notice of appeal was filed out of time without regularization.
The Respondents argument is that the Ruling of the lower Court appealed against is an interlocutory decision and that by the provisions of Sections 241 and 242 of the 1999 Constitution and Sections 14 (1) and 24 (1) of the Court of Appeal Act, leave of Court is necessary to appeal against an interlocutory Ruling on grounds of facts or mixed law and facts and that the appeal must be brought within fourteen days of the decision unless leave is granted to appeal out of time. The cases of AMUDIPE vs. ARIJODI (1978) 9-10 SC 27, ATANDA vs. OLANREWAJU (1988) 10-11 SC 1, ODOFIN vs. AGU (1992) 3 NWLR (PT 225) 350 at 368 and 376 and AULT & WIBORG (NIG) vs. NIBEL (2010) 6-7 SC 1 at 19 were referred to. It was submitted that while the Ruling was delivered on 30th September, 2014, the notice of appeal was filed on 14th October 2014, fifteen days after the Ruling was delivered, and therefore the notice of appeal having been filed out of time was incompetent, null and void. The case of OWOH vs. ASUK (2008) 4-5 S.C (no page stated) was relied upon.
The Appellants in reply submit that the Ruling of the lower Court is a final decision as it dismissed the Appellants counterclaims and there was nothing further to go back to the lower Court for in respect of the counterclaims. It was stated that the applicable test was the nature of order test and that the order of the lower Court dismissing the counterclaim was final as it finally determined the rights of the parties on the counterclaim. The cases of AKINSANYA vs. UBA LTD (1986) 4 NWLR (PT 35) 273 at 291-292, 294, 295 & 297, IGUNBOR vs. AFOLABI (2001) 11 NWLR (PT 723) 148 at 165 and ODUTOLA vs. ODERINDE (2004) 12 NWLR (PT 888) 574 at 582-583 were cited in support.
It is the further contention of the Appellants that even if the decision of the lower Court was interlocutory, the notice of appeal was filed within 14 days of the Ruling and not 15 days, since by Section 15 (2) (a) of the Interpretation Act the date of the Ruling is not reckoned with in the computation of time and so there was no need for extension of time or to seek and obtain leave. It was conclusively asserted that the notice of appeal filed within 14 days of the final decision of the lower Court was filed well within the three month time limit for filing an appeal against a final decision.
Central to the resolution of this first ground of objection is whether the decision of the lower Court was final or interlocutory. As evident from the submissions of learned counsel, the consequences of the nature of the decision are different. Where the decision is final then by Section 241 (1) (a) of the 1999 Constitution, an appeal can be brought as of right irrespective of whether the grounds of appeal are of law alone, or of facts, or of mixed law and facts. Where however the decision is interlocutory, then leave of either the lower Court or this Court is necessary for an appellant to appeal as stipulated in Section 242 of the 1999 Constitution.
The decision of the lower Court was in respect of an application to dismiss the counterclaims of the Appellants. The lower Court allowed the application and dismissed the said counterclaims for being statute barred. It seems to me that the decision of the lower Court dismissing the counterclaims finally disposed of the rights of the parties in so far as the counterclaims were concerned and there remained nothing for the lower Court to determine in so far as it relates to the counterclaims. See AKINSANYA vs. UBA (supra), IGUNBOR vs. AFOLABI (supra) and ODUTOLA vs. ODERINDE (supra). Consequently, notwithstanding that the decision of the lower Court was in a Ruling delivered upon an interlocutory application the material consideration is not the function of the lower Court which delivered a Ruling, but the nature of the order made. Where, like in this case, the order is a dismissal, then it is a final decision. The test of determining whether a decision is final or interlocutory is now very well settled. In ALOR vs. NGENE (2007) 17 NWLR (PT 1062) 163 at 178, Tobi, JSC stated:
Two tests have been laid down for determining whether or not an order of Court is final or interlocutory. They are (a) the nature of the application made to the Court; (b) the nature of the order made. In Nigeria, it is the nature of order test that has been constantly applied. If the order made finally disposes of the right of the parties, then the order is final. If the order does not, then it is interlocutory. An order is also regarded as final if at once affects the status of the parties for whichever side the decision may be given, so that if it is given for the plaintiff, it is conclusive against the defendant, if it is given for the defendant, it is conclusive against the plaintiff. In order to determine whether or not the decision of a Court is final or interlocutory, the decision must relate to the subject matter in dispute between the parties and not the function of the Court making the order.
I iterate that the decision of the lower Court dismissing the counterclaim related to the subject matter of the dispute between the parties in the Appellants counterclaims and it finally disposed of the rights of the parties in the said counterclaims. Accordingly, by the nature of order test applicable in Nigeria, it is a final decision: OMONUWA vs. OSHODIN (1985) 2 NWLR (PT 10) 924, ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 22-23 (CA) and DANKWAMBO vs. ABUBAKAR (2015) LPELR (25716) 1 (SC). Being a final decision, the Appellants can appeal as of right within three months of the decision, in line with the combined stipulations of Section 241 (1) (a) of the 1999 Constitution and Section 24 (2) (a) of the Court of Appeal Act.
Though I have held that the decision of the lower Court is final, I have to, for good order sake, state that the Respondents contention that the Appellants filed the appeal after 15 days of the decision of the lower Court is not correct. The decision of the lower Court was delivered on 30th September 2014. The Notice of Appeal was filed on 14th October, 2014. The provisions of Section 15 (2) (a) of the Interpretation Act are explicit that in computation of time, the day of the happening of the event is excluded. It provides thus:
A reference in an enactment to a period of days shall be construed
a) where the period is reckoned from a particular event, as excluding the day on which the event occurs.
Therefore, in the peculiar circumstances of this matter, 30th September 2014, the day the Ruling of the lower Court was given would be excluded. The computation would begin from 1st October, since September is a month of 30 days. Accordingly when time is computed and calculated from 1st October 2014, which is the day after the day the Ruling was delivered, the Notice of Appeal which was filed on 14th October 2014 was filed 14 days after the Ruling and not 15 days as erroneously submitted by the Respondents. In AKEREDOLU vs. AKINREMI (1985) LPELR (327) 1 at 9-10, or (1985) 2 NWLR (PT 10) 787 at 794 Aniagolu, JSC stated thus:
The principle of this exclusion of the day of the happening of the event has become a principle of general acceptance. Maxwell on Interpretation of Statutes 12th Ed. Page 309 … has it thus: where a statutory period runs From a named date to another, or the statute prescribes some period of days or weeks or months or years within which some act has to be done, although the computation of the period must in every case depend on the intention of parliament as gathered from the statute, generally the first day of the period will be excluded from the reckoning, and consequently, the last day will be included. See also EZEIGWE vs. NWAWULU (2010) LPELR (1201) 1 at 39 (SC) or (2010) 4 NWLR (PT 1183) 159.
Let me festinate to state that it is only in election matters, which are sui generis, and to which the provisions of the Interpretation Act have been held not to apply, that the day of the happening of the event is included in the computation of time. See OKECHUKWU vs. INEC (2014) 17 NWLR (PT 1436) 255 at 284 PDP vs. INEC (2014) 17 NWLR (PT 1437) 525 and NGIGE vs. INEC (2015) 1 NWLR (PT 1440) 281. This present appeal not having emanated from an election matter, the day of the Ruling of the lower Court is excluded from computation of time and the appeal was therefore filed within 14 days of the decision of the lower Court. This ground of objection is resolved against the Respondent.
SECOND GROUND OF OBJECTION
The grounds of appeal, being grounds of mixed law and facts, were filed without the leave of the Honourable Court first sought and obtained.
The Respondents contention in this ground is that the Appellants grounds of appeal are grounds of facts or mixed law and facts and which require leave pursuant to Sections 241 and 242 of the Constitution. It was stated that the grounds challenge the findings of facts and evaluation of facts by the lower Court and that when the grounds are examined together with its particulars it becomes clear that they are grounds of mixed law and facts, notwithstanding what the Appellants tagged the grounds to be. The cases of UGBOAJA vs. SOWEMIMO (2008) 7 SC 1 at 20, UBA vs. GMBH (1989) 6 SC (PT. 1) 22, NJEMANZE vs. NJEMANZE (2013) 1-2 SC (PT 1) 105 and BIDOYE vs. ALAWODE (2001) 3 SC 1 were referred to. It was conclusively submitted that the grounds being of mixed law and facts, and leave not having been sought and obtained, the condition precedent to the validity of the appeal on those grounds, id est, obtaining leave to appeal, not having been met; the appeal was liable to be struck out as this Court had no jurisdiction to entertain the same. The cases of EHINLANWO vs. OKE (2008) 6-7 SC (PT II) 123 at 160 and TIZA vs. BEGHA (2005) 5 SC (PT II) 1 were relied upon.
The Appellants argument is that the Respondents contention is founded on the flawed basis that the appeal is against an interlocutory decision. The Appellants maintain that the appeal being against a final decision they can appeal as of right on grounds of mixed law and facts without having to seek leave. Section 241 (1) (a) of the 1999 Constitution was called in aid.
In resolving ground one of this preliminary objection against the Respondent, I held that the decision of the lower Court appealed against was a final decision and that the Appellants could appeal as of right. The concomitance is that the Appellants can appeal on grounds of law, of fact, or of mixed law and fact, without having to seek leave of court, in exercise of the right under Section 241 (1) (a) of the 1999 Constitution. This ordinarily ought to put paid to any further consideration of this second ground of objection which is evidently anchored on the wrong premise that the decision of the lower Court is an interlocutory decision. However, on account of the fact that this is an intermediate appellate Court, and I neither lay claim to infallibility nor to being a repository of knowledge, I will further examine the grounds of appeal to see if they are grounds of mixed law and facts as posited by the Respondent.
Now, a decision on whether a ground of appeal raises a question of law alone or of mixed law and fact involves an examination of the ground of appeal as framed, together with the particulars thereof: OBATOYINBO vs. OSHATOBA (1996) LPELR (2156) 1 at 33. It is often a thin line that separates a ground of law alone from a ground of mixed law and fact. However, the guiding beacon light to ascertain whether a ground is of law alone, of fact, or of mixed law and fact as stated by Adekeye, JSC in FIRST BANK OF NIGERIA PLC vs. T. S. A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 55-56 is as follows:
The important yardstick for the classification of a ground of appeal is not in the form of the question it raises but for instance
(a) where the ground of appeal shows that the trial Court or appellate Court misunderstood the law or misapplied the law to the fact, it is certainly a ground of law.
(b) where the ground suggests an invitation to the Court where an appeal is lodged to investigate the existence or otherwise of certain facts made by the trial Court or where the evaluation of the evidence tendered is exclusively challenged, it is a ground of fact or at best a ground of mixed law and fact.
(c) where the questions which the Court is bound to answer in accordance with a rule of law arises out of statutory provisions and interpretation of documents, it is a ground of law.
(d) where the question is one that will require questioning the evaluation of facts by the trial Court before application of the law, it is a ground of mixed law and fact.
(e) where the ground of appeal questions the exercise of discretion by a trial Court, it is undoubtedly not a ground of law but at best a ground of mixed law and facts because the manner in which a Court ought to exercise its discretion in a particular case is a question of fact depending on facts and circumstances of each case.
(f) whether or not discretion is exercised judicially and judiciously or arbitrarily in any particular case is a question of mixed law and fact.
(g) A ground of appeal complaining of failure of the Court to discharge its duty considering and pronouncing on the issues raised before it is a question of law.
(h) A ground of appeal which is a complaint of the misapplication of correctly stated principles of law to the facts of a case is a ground of law alone.
Nwadike & ors v. Ibekwe & ors (1987) NSCC vol. 18 Pt. II pg. 1220, Abidoye v. Alawode (2001) 6 NWLR Pt. 709 pg. 463, Ezeobi v. Abang (2000) 9 NWLR Pt 691 pg. 516, Ashamu v. Ofili (2004) 5 NWLR Pt. 863 540, Metal Construction (WA) LTD v. Migliore (1990) 13 NWLR Pt. 635 pg. 472, Comex Ltd v. Nigeria Arab Bank Ltd (1997) 3 NWLR Pt. 496 pg. 643, Coker v. UBA Plc (1997) 2 NWLR Pt. 490 pg. 641.
Against the background of the foregoing classification, an examination of the grounds of appeal at pages 374-378 of the Records makes it limpid that grounds one, two, three, four, five (pages 374-377) relate to the complaint that the lower Court misunderstood the law or misapplied the law with respect to the specific provisions of the Limitation Law to be used in ascertaining if the Appellants counterclaim was statute barred. There is no dispute on the facts, it is simply the issue of the governing Section to apply between Section 3 and Section 8 of the Limitation Law. In line with classification (a) of the FIRST BANK OF NIGERIA PLC vs. T.S.A INDUSTRIES LTD case (supra), the said grounds are definitely grounds of law.
Ground six (pages 377-378) complains about a breach of the Appellants constitutional right to fair hearing/fair trial. This is a right guaranteed under Chapter IV of the 1999 Constitution. By the stipulations of Section 241 (1) (d) of the 1999 Constitution, a person can appeal as of right where he contends that any of the provisions of Chapter IV of the Constitution has been, is being or is likely to be contravened. Since Ground six raises a ground of fair hearing no leave is required as an appeal lies as of right in respect of such a ground of appeal. See SOUTH ATLANTIC PETROLEUM LTD vs. THE MINISTER OF PETROLEUM RESOURCES (2013) LPELR (21892) 1 at 19 and DANGOTE vs. AFRICAN PETROLEUM (2012) LPELR – 7974 (CA).
With respect to ground seven (page 378), it is effulgent that the complaint therein is in respect of the failure of the lower Court to take into consideration the peculiar facts and circumstances of the case. By all odds, based on classification (b) and (d) of the FIRST BANK OF NIGERIA PLC vs. T.S.A INDUSTRIES LTD case (supra), the said ground is a ground of mixed law and fact as it questions the evaluation of facts by the lower Court and if the lower Court duly considered the peculiar facts and circumstances of the case. Being a ground of mixed law and fact, leave is ordinarily required to appeal on such a ground, if the appeal were against an interlocutory decision. However, having held that the appeal is against the decision of the lower Court sitting at first instance, the Appellants have the constitutional right to appeal as of right; in such circumstances, there is no dichotomy as to whether the grounds are of law, of fact, or of mixed law and fact.
In a summation, this second ground of objection is accordingly resolved in favour of the Appellants.
THIRD GROUND OF OBJECTION
Assuming but not conceding that the Honourable Court has the jurisdiction to entertain this appeal, whether grounds 6 and 7 of the Appellants grounds of appeal are not incompetent?
The submission of the Respondent is that the appeal is against the decision of 30th September 2014 but that the Appellants formulated grounds based on an earlier Ruling of a different Judge made on 30th January 2012 by which the Respondent was allowed to set up its counterclaim. It was contended that the argument of the Appellants question the rationale of the lower Court in dismissing the counterclaims based on the provisions of the Limitation Law, when it had earlier allowed the Respondent to set up a counterclaim, using the provisions of the NDIC Act to save the counterclaim; but correspondingly, failed to save the Appellants Counterclaims on the provisions of Section 3 of the Limitation Law. The Respondent therefore maintained that grounds six and seven of the grounds of appeal raise issues which do not arise from the decision of 30th September 2014 and that there is no appeal against the Ruling of 30th January 2012, which Ruling remains valid, binding, subsisting and presumed acceptable to the parties. The case of LAGOS STATE BULK PURCHASE CORPORATION vs. PURIFICATION TECH (NIG) LTD (2012) 11-12 SC 184 was relied upon.
Replicando, the Appellants in the Reply Brief submit that neither ground six nor seven complain against the Ruling of 30th January, 2012. It was stated that the complaints in the said grounds are in respect of the right of the Appellants to a fair hearing/trial and the impression a reasonable person who is present at the trial would have, seeing that the lower Court saved the Respondents counterclaim using the provisions of Section 44 of the NDIC Act, but failed to apply Section 3 of the Limitation Law to save the Appellants counterclaims. It was stated that it was this peculiar fact or circumstance of the Respondents counterclaim having earlier been saved that the lower Court failed to take into account in its Ruling dismissing the counterclaims as a result of which a fair trial was not afforded the Appellants. The cases of EKIYOR vs. BOMOR (1997) 9 NWLR (PT 519) 1 at 10-11, OKOCHA vs. INEC (2010) (LPELR 94718) 1 at 52 (CA), SKYE BANK PLC vs. AKINPELU (2010) 9 NWLR (PT 1198) 179 at 213 and NIGERIA PORTS AUTHORITY vs. CONSTRUZIONI GENRALE FARSURA LOGEFARSPA (1974) NSCC 622 were relied upon.
The objection of the Respondent in this respect is that grounds six and seven and the issue distilled therefrom question the Ruling of the lower Court, differently constituted, which granted the Respondent leave to bring its counterclaim, when the said Ruling, which was delivered on 30th January 2012 was never appealed against and is not the Ruling appealed against in the instant appeal. For ease of appreciation, I will reproduce the said grounds six and seven.
GROUND SIX
The Learned Trial Judge erred in law when in dismissing the Appellants counter claims he breached the Appellants constitutional rights.
PARTICULARS
(I) The Appellants fundamental rights to fair hearing/trial and rights to freedom from discrimination are constitutionally guaranteed under the 1999 Constitution.
(ii) The Respondents counter claims against the Appellants were filed in 2012 more than six years after the cause of action arose and therefore statute barred by virtue of S. 8 of the Limitation Law Cap L67 Laws of Lagos State 2003.
(iii) The Appellants counter claims to the Respondents counter claims were filed in direct response to the Respondents counter claims against the Appellants.
(iv) The dismissal of the Appellants counter claims to the Respondents counter claims on the basis that the said counter claims are statute barred under S. 8 of the Limitation Law of Lagos State while the Respondents counter claims were preserved and sustained is discriminatory and in breach of the Appellants constitutional rights to fair hearing and freedom from discrimination.
(v) In the peculiar circumstances of this case, the dismissal of the Appellants counter claims against the Respondent has occasioned a miscarriage of justice.
GROUND SEVEN
The Learned Trial Judge erred in law when in determining the Respondents application dated 24th March, 2014 for the dismissal of the Appellants counter claims against the Respondent, he failed to take into consideration the peculiar facts and circumstances of the case which error has occasioned a miscarriage of justice.
PARTICULARS
(i) In law, every case must be determined in the light of its peculiar facts and circumstances.
(ii) The Respondents counter claims against the Appellants were filed in 2012 more than six years after the cause of action arose and therefore statute barred by virtue of S. 8 of the Limitation Law Cap L67 Laws of Lagos State 2003.
(iii) The Appellants counter claims to the Respondents counter claims were filed in direct response to the Respondents counter claims against the Appellants.
(iv) The dismissal of the Appellants counter claims to the Respondents counter claims on the basis that the said counter claims are barred under S. 8 of the Limitation Law of Lagos State while the Respondents counter claims were preserved and sustained is discriminatory and in breach of the Appellants constitutional rights to fair hearing and freedom from discrimination.
(v) In dismissing the Appellants counter claims against the Respondent, the Learned Trial Judge did not take into consideration the peculiar facts and circumstances of this case.
(iv) Had the Learned Trial Judge taken into consideration the peculiar facts and circumstances of this case, he would have come to a different conclusion. (See pages 377-378 of the Records.)
The Notice of Appeal makes it clear that the decision of the lower Court appealed against is the entire Ruling delivered on 30th September, 2014. There is nothing in grounds six and seven reproduced above which attacks the Ruling of 30th January, 2012, which Ruling the Appellants did not appeal against. Though the ground of appeal never mentioned 30th January, 2012, but by extrapolation, the Respondents counterclaim filed in 2012 which the lower Court allowed and which the Appellants complain that the same discretion was not exercised in their favour, is in the Ruling of 30th January 2012. (See page 358 of the Records). The fact however remains that the excoriated grounds six and seven do not complain against the Ruling of 30th January, 2012. If anything the grounds extol the said Ruling by the contention that the lower Court should have in order to ensure fair hearing/fair trial, followed similar precepts as in the said Ruling by allowing the Appellants counterclaims to stand instead of dismissing them for being statute barred.
The law is that a ground of appeal is the error of law or facts alleged as the defect in the decision appealed against and on the basis of which the decision should be set aside. Put differently, it is the reason why the decision is considered wrong by the aggrieved party: IDIKA vs. ERISI (1988) 2 NWLR (PT 78) 503 at 578 and AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464.
The determining factor in ascertaining the nature or character of a ground of appeal is the real issue or complaint raised in the ground. In ascertaining the real issue or complaint, the ground of appeal as formulated and all the particulars thereto are to be read and construed together. See OBATOYINBO vs. OSHATOBA (supra) at 33, ODUKWE vs. ACHEBE (2008) 1 NWLR (PT 1067) 40 at 53 and ABIA STATE INDEPENDENT ELECTORAL COMMISSION vs. ONYEABOR (2011) LPELR (3563) 1 at 31. Having incisively and insightfully considered the said grounds six and seven together with their particulars, I am unable to agree with the Respondent that they complain against the Ruling of 30th January 2012. There is nothing in the said grounds which allege any defect in the said Ruling of 30th January, 2012. The Appellants do not contend that the said Ruling is wrong; rather their complaint is that the discretion as exercised by the lower Court in the said Ruling should have been exercised in a similar manner by the lower Court in the Ruling of 30th September, 2014, subject of this appeal. This third ground of objection is therefore resolved against the Respondent.
All the grounds on which the preliminary objection is anchored have been resolved against the Respondent. Inexorably, the said preliminary objection has no merit and the Respondents motion filed on 4th March 2016, wherein the preliminary objection was raised is hereby dismissed. The threshold question in the preliminary objection having been resolved in favour of the Appellants, we segue to consider the appeal on the merits.
THE APPEAL
The Appellants formulated three issues as arising for determination, as follows:
1. Whether the Learned Trial Judge was right when in determining the competence of the Appellants counter claims he rejected S. 3 of the Limitation Law Cap L67 Laws of Lagos State 2003 and rather applied S.8 of the said Limitation Law of Lagos State. (Ground 1).
2. Whether on proper interpretation and application of S.3 of the Limitation Law Cap L67 Laws of Lagos State 2003, the Learned Trial Judge was right to hold that the Appellants counter claims were statute barred. (Grounds 2, 3, 4 and 5).
3. Whether from the facts and circumstances of this case, the Learned Trial Judge breached Appellants constitutional rights. (Grounds 6 and 7).
The Respondent distilled two issues for determination, namely:
1. Whether the provisions of S. 3 of the Limitation of Law of Lagos State Cap L67 Laws of Lagos State 2003 can be applied to save Appellants already statute barred Counter claims (grounds 1, 2, 3, 4 and 5)
2. Whether from the facts and circumstances of this case, the learned trial Judge breached the Appellants constitutional right to fair hearing. (Grounds 6 and 7).
Notwithstanding that the Respondent combined issues one and two as distilled by the Appellants into a sole issue, the issues for determination as formulated by the parties still remain the same in every material particular. In pursuit of brevity and clarity, I would further tinker with issue numbers one and two as distilled by the Appellants and issue number one as crafted by the Respondent. This is in order to arrive at a formulation of an issue that will bring precision and clarity to the disceptation therein: UNITY BANK PLC vs. BOUARI (2008) ALL FWLR (PT 416) 1825 at 1846-1847 and MUSA SHA JNR vs. DA RAP KWAN (2000) 5 SCNJ 102 at 127. The issue which I find concise in this regard is:
Whether the lower Court was correct in its decision that the Appellants counterclaims were statute barred.
It is on the basis of the above issue and issue number three as formulated by the Appellants, which I will in this judgment consider as issue number two that I will now proceed to the resolution of the vexed issues in this appeal.
ISSUE NUMBER ONE
Whether the lower Court was correct in its decision that the Appellants counterclaims were statute barred.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The conspectus of the Appellants contention is that the lower Court should have used the provisions of Section 3 of the Limitation Law, Cap L67, Volume 5, Laws of Lagos State, 2003 to hold that the Appellants counterclaims were not statute barred rather than resorting to Section 8 of the Limitation Law. It was submitted that Section 3 is a special provision while Section 8 is a general provision and that a general clause does not extend to those things which are before specially provided for.
The various Latinisms of this legal principle namely: generalis clausula non porrigitur ad ea quae ante specialiter sunt comprehensa; (a general clause does not extend to those things which are before specially provided for); generale dictum generaliter est interpretandum: generalia verba sunt generaliter intelligenda [3 Inst. 76] (a general saying is to be interpreted generally: general words are to be understood generally); generale nihil certi implicat [2 Co. 33] ( a general expression implies nothing certain); generale tantum valet in generalibus quantum singulare in singulis [11 co. 59] (what is general prevails as much amongst things general as what is particular amongst things particular) and generalia specialibus non derogant [Jenk Cent 120] (general things do not derogate from special) were restated and the cases of FMBN vs. OLLOH (2002) 9 NWLR (PT 773) 475 at 488, 489-490 and SCHRODER vs. MAJOR (1989) 2 NWLR (PT 101) 1 at 18 -19 (per Oputa, JSC) were referred to. It was stated that the lower Court was in error, which occasioned a miscarriage of justice, by rejecting Section 3 of the Limitation Law which deals specifically with counterclaims and applying Section 8 which generally deals with fresh actions.
It is the further submission of the Appellants that by Section 3 of the Limitation Law, a counterclaim is deemed to have been commenced on the same date as when the action was commenced. It was opined that the Respondents counterclaim though filed in 2009, is by virtue of it being a counterclaim, and in accordance with Section 3 of the Limitation Law, deemed to have been commenced in 1998 when the suit was commenced, and therefore the Appellants counterclaims to the Respondents counterclaim though filed in 2014 and 2012 respectively is deemed in the eyes of the law by virtue of the said Section 3 to have been commenced in 1998. It was therefore posited that since the 1st Appellants cause of action in the amended counterclaim accrued in 1998 and the 2nd Appellants cause of action accrued at the latest in 1996, their counterclaims, deemed commenced in 1998, is therefore not statute barred.
The Appellants submit that a deeming provision as in Section 3 of the Limitation Law creates a legal fiction whereby what does not exist in reality is by the Act of Parliament treated as if it exists in reality. The cases of ORJI vs. D. T. M. (NIG) LTD (2009) 18 NWLR (PT 1173) 467 at 497 and NIMASA vs. HENSMOR (NIG) LTD (2015) 5 NWLR (PT 1452) 278 at 320 were relied upon. The Appellants contend that the role of a judge is jus dicere, not jus dare, and that having failed to give effect to the words used in Section 3 of the Limitation Law which are clear and unambiguous the lower Court abdicated its duty and responsibility. The case of UGWU vs. ARARUME (2007) 12 NWLR (PT 1048) 367 at 498 was cited in support. It was conclusively stated that similar provisions to Section 3 of the Limitation Law have been interpreted by the Courts in England and the United States to the effect that for purposes of computing the limitation period, a counter claim is deemed to have been commenced on the same day that the Plaintiffs suit was commenced. The case of HENRIKSENS REDERI A/S vs. PHZ ROLIMPEX (1973) ALL ER 589 at 593-594 (per Lord Denning, M.R.) was called in aid. The lower Court, it was finally opined erred in law when it held that the Appellants counterclaim, which by operation of law are deemed to have been filed in 1998, were statute barred.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondent submits that Section 3 of the Limitation Law is inapplicable to save the Appellants counterclaims that were already statute barred. It was stated that for purposes of the limitation of action, a cause of action arises where there is a person who can sue and another who can be sued. It was stated that the 2nd Appellant only became a party in the suit in 2012 and could not have been deemed to have commenced a counterclaim in 1998, when it was not yet a party in the suit.
It was further submitted that the 1st Appellants counterclaim was for libel, which cause of action accrued in 1998 with a limitation period of three years; while the 2nd Appellants counterclaim was in contract, which cause of action accrued between 1993 and 1996 with a limitation period of six years and therefore there was no way the cause of action which arose at different times and were filed at different times could be deemed to have been commenced together.
It is the contention of the Respondent that its counterclaim was statute barred but was salvaged by the provisions of Section 44 of the NDIC Act, which provision did not inure in favour of the Appellant; and that but for the said provisions, the Respondent no longer had a right of action on its counterclaim, the period of limitation having expired. The case ofUBA PLC vs. ABDULLAHI (2003) 3 NWLR (PT 807) 359 at 379 380 was referred to. The Respondent maintained that Section 3 of the Limitation Law cannot apply to save the Appellants counterclaims because the Respondents counterclaim which the Appellants counterclaims would be deemed as having been commenced on the same date as was in 2013, by which date the Appellants counterclaims had already become spent by law. It was stated that the effect of the Appellants submission was that a cause of action can exist in perpetuity. It was conclusively submitted that the authorities relied upon by the Appellants were inapplicable and that the proposition that the Appellants can file a counterclaim in an action in which they are claimants was not permissible in law, as the provisions of the Rules of Court do not support a claimant also being a counterclaim in its own case.
APPELLANTS REPLY ON LAW
In the Reply Brief the Appellants posit that the contention that a counterclaim to a counterclaim is an unknown procedure is a new issue being raised for the first time by the Respondent and that since leave was not sought for the issue to be raised, it was incompetent and ought to be struck out. The cases of ISHENO vs. JULIUS BERGER (2008) 6 NWLR (PT 1084) 582 at 609 and IDUFUEKO vs. PFIZER PRODUCTS LTD (2014) 12 NWLR (PT 1420) 96 at 122 were relied upon. It was however stated that the cases of OGBONNA vs. A-G IMO STATE (1992) 1 NWLR (PT 220) 647 at 675 and 692 and NAL MERCHANT BANK PLC vs. ONU (2001) 5 NWLR (PT 705) are authorities to the effect that the Appellants can file a counterclaim to a counterclaim. The Appellants rehashed their submissions on the general provisions represented by Section 8 of the Limitation Law and the special provisions represented by Section 3 of the Limitation Law.
RESOLUTION
The flayed holding of the lower Court which is at the root of the disceptation is at page 373 of the Records. Hear the lower court:
To my mind, to give this section the interpretation given to it by the Defendant/Counter Claimants would make nonsense of the Limitation Law. In this case, a party was joined in the suit in 2012, how can it be reckoned that he [sic] suit was commenced in 1998, when he was not even a party. It would means someone could wake up 15 years after an action is filed to bring a counter claim and then hide under Section 3! A counterclaim would be deemed to have commenced on the same date as the action in which the set off or counter claim is pleaded! That is the key! That cannot be correct. The cause of action in respect of the 1st Defendant Counter Claimant arose in 1998, (16 years) that of the 2nd between 1993 and 1996. (17-19 years) for counter claims for libel and breach of contract? That cannot be the intention of the lawmakers. That will result in chaos and anarchy! There must be an end to litigation and I so hold.
The Appellants have rightly submitted that there is nothing in the Ruling appealed against nor in the grounds of appeal raising the question of whether there can be a counterclaim to a counterclaim. Since it is not a live issue, I will not interrogate it in any way. However, let me state perfunctorily that there appears to be dicta by Karibi-Whyte and Nnaemeka-Agu, JJSC in OGBONNA vs. A-G IMO STATE (supra) at 675 and 692 to the effect that a plaintiff is entitled to counterclaim on a defendants counterclaim.
Now, the law has been settled beyond peradventure that where a trial Court reached a right decision, the reason given for arriving at the decision is immaterial, since the appellate Court is only concerned with whether the correct decision was arrived at and not whether the reasons are correct. See NDAYAKO vs. DANTORO (2004) 13 NWLR (PT 889) 187 at 220 and DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161. So of interest in this issue is whether the lower Court was right when it held that the Appellants counterclaims were statute barred and not whether the reason it gave for so holding are correct.
The crux of the Appellants contention is hinged of the legal principle generalis specialia derogant (special things derogate from general things). The Appellants posit that the special provision of limitation period as it relates to a counterclaim in Section 3 of the Limitation Law overrides the general provision as it relates to a fresh action as set out in Section 8 of the Limitation Law.In Maxwell on Interpretation of Statutes (11th Ed.) page 164, it is stated that where a general intention is expressed and also a particular intention which is incompatible with the general one, the particular intention is considered an exception to the general one. See AQUA LTD vs. ONDO STATE SPORTS COUNCIL (1988) 4 NWLR (PT 91) 622, SCHRODER vs. MAJOR (supra) and FMBN vs. OLLOH (supra). It is on this premise that the Appellants maintain that Section 3 of the Limitation Law was applicable and that their counterclaims to the counterclaim of the Respondents consequently dates back to 1998 when the action was commenced since the counterclaim of the Respondent though filed in 2009 also dated back to 1998. The basis of this contention is the Appellants presumption that the provisions of the Limitation Law apply to the Respondents counterclaim, such that it can be said to have been filed in 1998 in order for the counterclaims to counterclaim to also take benefit of Section 3 of the Limitation Law and be deemed to have been filed in 1998. The provision of Section 3 of the Limitation Law is relevant. It provides:
3. Set-off and Counterclaim.
For the purposes of this Law, any claim by way of set-off or counter-claim shall be deemed to be a separate action and to have been commenced on the same date as the action in which the set-off or counter-claim is pleaded.
The above provision is explicit and admits of no ambiguity in its stipulation that a counterclaim for purposes of the Limitation Law is deemed to have been commenced on the same date as the action in which the counter-claim is raised. So on the face of it, it would appear that Section 3 would apply to the Appellants counterclaims for it to be deemed as having been commenced on the same date as the Respondents counterclaim, which by the said provision would relate back to 1998 when the action was filed. But there is a caveat, and a big one at that. This shall only be so if the Respondents counterclaim was filed pursuant to the provisions of Section 3 of the Limitation Law, or put differently, if the Limitation Law applied to the Respondents counterclaim as to give it its validity. Where it does not, then totally different considerations would apply.
It is in this wise, that the provisions of Section 44 of the NDIC Act come into play. It reads:
44. The provisions of the Limitation Law of a State or the Limitation Act of the Federal Capital Territory shall not apply to a debt owed to a failing or a failed insured institution.
The above provision is clear that the Limitation Law does not apply to the Respondents counterclaim. The effect of this therefore is that by the provision, the Respondents counterclaim to recover the debt owed Trade Bank PLC by the Appellants cannot become statute barred, the effective commencement date for the counterclaim is when it was filed as it cannot be deemed to have been commenced when the main action was commenced because the provision of Section 3 of the Limitation Law which provides for that does not apply to the Respondents Counterclaim. See Section 4 of the Limitation Law which provides that its provisions shall not apply where a period of limitation is fixed by any other enactment. Section 44 of the NDIC Act, has implicitly provided that there is no limitation period for recovery of debts owed to a failing or failed insured institution. It therefore follows that the effective commencement date of the Respondents counterclaim to which the provisions of Section 3 of the Limitation Act will inure in favour of the Appellants is 2012 in the case of the 2nd Appellant, when it became a party to the action by virtue of the counterclaim against it, and in the case of the 1st Appellant, 2009 when the original counterclaim against it was initiated and to which date the amended counterclaim dates back to.
So in order for the Appellant counterclaims to valid and proper they have to filed within the respective periods limited for the accrual of their respective causes of action reckoned from 2009 for the 1st Appellant and 2012 for the 2nd Appellant.
It is agreed on all sides that the 1st Appellants cause of action in its counterclaim for libel accrued in 1998 while the 2nd Appellants cause of action in its counterclaim founded in contract accrued at the latest in 1996. Though the amended counterclaims of the Appellants were filed in 2014, they date back by Section 3 of the Limitation Law to 2009, in case of the 1st Appellant, and 2012 in case of the 2nd Appellant. The limitation period for an action in libel is three years. So the 1st Appellants cause of action in libel which accrued in 1998 expired by effluxion of time in 2001. Therefore as at 2009, when the said counterclaim dated back to by virtue of Section 3 of the Limitation Law, the limitation period for enforcement of the cause of action had run out. With regards to the 2nd Appellant, by Section 8 of the Limitation Law the limitation period for an action in contract is six years. So by 2012, when the 2nd Appellants counterclaim, which cause of action accrued in 1996 dates back to the limitation period had run out; the six years having expired about 2002.
In the circumstances therefore, since the statute of limitation had caught up with the causes of action in the Appellants counterclaims, the Appellants had no right of action and were left with a bare, empty and unenforceable cause of action. See EGBE vs. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20 and OGBORU vs. SPDC (NIG) LTD (2005) 17 NWLR (PT 955) 596 at 620. Accordingly, the lower Court arrived at the correct decision when it held that the Appellants counterclaims were statute barred. This issue is resolved against the Appellants.
ISSUE NUMBER TWO
Whether from the facts and circumstances of this case, the Learned Trial Judge breached Appellants constitutional rights.
SUBMISSIONS OF THE APPELLANTS COUNSEL
The Appellants submit that the Respondents counterclaim was statute barred but was revived, saved and deemed valid and competent by virtue of Section 44 of the NDIC Act. That the Appellants in direct response to the Respondents counterclaim filed their own counterclaims and that in the circumstances, it was not fair, equitable and constitutional to allow the Respondent to proceed with its counterclaim, while dismissing the Appellants counterclaims for being statute barred. It was maintained that it was discriminatory to allow the Respondents counterclaim, which was ordinarily statute barred, and dismiss the Appellants counterclaims; and that in consequence, the Appellants right to freedom from discrimination under Section 42 of the 1999 Constitution was breached as the application of the Limitation Law was discriminatory against the Appellants. It was further submitted that it would be in breach of the Appellants right to fair hearing to dismiss the Appellants counterclaims, thereby making it impossible for them to recover the debts owed to them by the Respondent.
The Appellants contended that where a government agency enjoys a statutory privilege such as conferred by Section 44 of the NDIC Act, such statutory privilege must also be extended to its opponent in the litigation. The cases of NIGERIA PORTS AUTHORITY vs. CONSTRUZIONI GENERAL FARSURA COGEFAR SPA (supra) at 630 was referred to. It was posited that it was monstrous and unjust to prevent the Appellants from setting up their counterclaims. It was further contended that based on the decision of the Supreme Court in the NIGERIA PORTS AUTHORITY case, the Respondent must be deemed to have waived the privilege conferred upon it by the Limitation Law, since it had taken benefit of Section 44 of the NDIC Act which legitimized its otherwise statute barred counterclaim. It was conclusively submitted that the decisions of the Courts must reflect justice, equity and that which is fair and just to the parties. The case of FLOUR MILL OF NIGERIA LTD vs. OGUNBAYO (2014) LPELR (24264) 1 at 32 (CA) and EZE vs. GOV. OF ABIA STATE (2014) 14 NWLR (PT 1426) 192 at 216 were relied upon.
SUBMISSIONS OF THE RESPONDENTS COUNSEL
The Respondent submits that the NDIC Act which created it granted it the statutory dispensation under Section 44 of the NDIC Act; but that the Companies and Allied Matters Act under which the Appellants were incorporated conferred no such privilege on the Appellants and therefore the Appellants can only blame the legislature and not the Court that interpreted the laws placed before it. The Respondent argues that the NIGERIA PORTS AUTHORITY case was inapplicable as the decision was on whether it will amount to a denial of fair hearing if the counterclaim in the action was dismissed for failure to issue pre-action notice and it was held that since NPA commenced the action, that failure to issue pre-action notice on them for the counterclaim was not fatal as the NPA is deemed to have notice of the suit it had commenced.
APPELLANTS REPLY ON LAW
In the Reply Brief, the Appellants argue that the contention that they should take their grievance to the legislature was the similar argument rejected by the Apex Court in the NIGERIA PORTS AUTHORITY case. It was maintained that fair trial and the ends of justice will only be served if the statutory privilege by which the Respondent is able to sue the Appellants in otherwise barred claims is extended to the Appellants to file their own otherwise statute barred counterclaims.
RESOLUTION
In the course of this judgment, I resolved issue number one as distilled by the Court against the Appellants and held that the lower Court was correct in its decision that the Appellants counterclaims were statute barred. The contention of the Appellants in this issue is that this decision of the lower Court which has been affirmed in this judgment, breached their constitutional right to fair hearing and freedom from discrimination, as it is discriminatory when they are not afforded the benefit of the provisions of Section 44 of the NDIC Act, by virtue of which the Respondent could pursue its counterclaim, which otherwise would have been statute barred.
It is pertinent to recollect at this stage that the main action was instituted by the 1st Appellant before the lower Court. At the time the 1st Appellant instituted the action in 1998 the cause of action it desires to pursue in its counterclaim had accrued. It however chose not to pursue that cause of action. The same is equally true of the 2nd Appellant. At the time the action was commenced its cause of action had equally accrued but it chose not to litigate in respect of the said cause of action. So the failure of the Appellants to pursue the causes of action they seek to litigate in their counterclaims can neither be laid at the doorstep of the Court or the Respondent.
The justice administered in a Court is not abstract justice conceived by the judex. It is justice according to law. The law is trite that sympathy and sentiments have no place in the administration of justice. A Court of law does not base its decision on sympathy or sentiments. The situation in which the Appellants find themselves in is unfortunate, but sentiments command no place in judicial deliberations: KALU vs. FRN (2016) LPELR (40108) 1 (SC) and HUEBNER vs. AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT LTD (2017) LPELR (42078) 1 at 58 (SC). There is nothing discriminatory in the application of Section 44 of the NDIC Act, the said provision which provides that the limitation law will not applyNto an action to recover debt owed to a failed or failing bank cannot be extended to the Appellants in respect of the causes of action in their counterclaims.
It is justice according to law. The circumstances of the NIGERIA PORTS AUTHORITY case relied upon by the Appellants are totally different from the instant case. In the said case, the rationale for the decision of the Apex Court is that since the Nigeria Ports Authority had cast the first stone by going to Court, they had waived their right to insisting that they be given pre-action notice before they can be sued on the counterclaim since they were already in Court with the defendant, whom they had dragged to Court. It is not a comparable situation in this matter. As already stated, the provisions of Section 44 of the NDIC Act inures in favour of the Respondent and they cannot be said to have waived their right in respect of the Appellants having failed to bring the action in respect of the causes of action in their counterclaims when the main action was filed. Facts are the fountainhead of the Law and the ratio decidendi in a case is not to be pulled out of con and given general application: ADEGOKE MOTORS vs. ADESANYA (1989) 5 SC 41 at 130 and APC vs. INEC (2014) 11 SC 36 at 216. I am therefore unable to agree with the Appellants that their right to freedom from discrimination was breached by the lower Court allowing the Respondents counterclaim to proceed while dismissing their counterclaims. Put simply, the Appellants were indolent in pursing the causes of action in their counterclaims, which causes of action, I iterate, had accrued as at 1998 when the main action was commenced, but they chose not to pursue the same. Equity aids the vigilant, not the indolent.
The rationale behind limitation laws and its enforcement was eloquently stated by Edozie, JSC in AREMO II vs. ADEKANYE (2004) 13 NWLR (PART 891) 572 at 592-593 as follows:
“Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute-barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation for instituting such an action has elapsed. See the cases of Eboigbe vs. N.N.P.C. (1994) 5 NWLR (Part 347) 649; Odubeko vs. Fowler (1993) 7 NWLR (Part 308) 637; Sanda vs. Kukawa Local Government (1991) 2 NWLR (Part 174) 379; Ekeogu vs. Aliri (1991) 3 NWLR (Part 179) 258. The rationale or justification supporting the existence of statute of limitation includes the following:
1. That long dormant claims have more of cruelty than justice in them,
2. That a defendant might have lost the evidence to disprove a stale claim and
(3) That persons with good causes of action should pursue them with reasonable diligence
The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute-barred: See the case Egbe vs. Adefarasin (supra) at 20-21.”
The Appellants have clearly stated that it was in response to the Respondents counterclaim that they now decided to dust up their stale causes of action. It seems to smack more of cruelty than justice. Furthermore, the counterclaims had not been pursued by the Appellants with reasonable diligence, given the fact that it merely seemed to be reactive and took all of 16 years and 17-19 years respectively, as found by the lower Court, for them to bring the same.
With respect to the contention that their right of fair hearing was breached by the dismissal of their counterclaims, the consequence of the counterclaims being statute barred is that the Appellants had no live action to pursue. The fair hearing provisions in the Constitution only arise where the right of action is intact. Where on account of the cause of action being statute barred, the issue of fair hearing cannot be raised. Hear the Apex Court in AKPANUDOEDEHE vs. AKPABIO (2012) LPELR (9728) (SC), where Rhodes-Vivour, JSC stated thus:
“Section 36 of the Constitution guarantees the right to fair hearing in our Courts. When the Constitution provides a limitation period for the hearing of a matter (in this case 180 days) the right to fair hearing is guaranteed by the Courts within 180 days. Once 180 days elapsed, the hearing of the matter fades away along with any right to fair hearing. There is no longer a live petition left. There is nothing to be tried even if a retrial order is given. It remains extinguished forever. Put in another way fair hearing provided by Section 36 of the Constitution is only applicable when the petition is alive. In this case, the petition is dead by effluxion of time and so the issue of fair hearing cannot be raised.”
I kowtow. The conflating of the foregoing is that in the diacritical circumstances of this matter, the Appellants constitutional rights were not breached. This issue is resolved in favour of the Respondent.
In the light of the fact that the issues for determination have been resolved against the Appellants, the ineluctable conclusion is that there is no merit in the appeal. The appeal is therefore dismissed. The decision of the lower Court delivered on 30th September, 2014 is hereby affirmed. Parties are to bear their respective costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read in draft the comprehensive judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A., with which I agree entirely.
TIJJANI ABUBAKAR, J.C.A.: My learned Brother Ugochukwu Anthony Ogakwu JCA, granted me the privilege of reading in draft the lead judgment just rendered. I am in agreement with the comprehensive reasoning and conclusion and therefore adopt the entire judgment as my own with nothing extra to add.
Appearances
Andrew Igboekwe, Esq., SAN with him, Miss Ogochukwu Ofili & Mrs. Damilola AjayiFor Appellant
Layi Babatunde, Esq., SAN with him, J.O. Akolade, Esq., Opeoluwa Akinosi, Esq., Miss Tomike Layi-Babatunde and David Owoeye, Esq.For Respondent
