SWIFT BIRD SUGAR COMPANY v. OFI FOOD INDUSTRIES LIMITED
(2010)LCN/3806(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 18th day of May, 2010
CA/I/19/2007
RATIO
ACTION: HOW IS A CAUSE OF ACTION DETERMINED
In determining the cause of action recourse is had only to the writ of summons and statement of claim and nowhere else. There is a plethora of case law on this subject matter. See the cases of UNION BANK OF NIGERIA PLC V. ROMANUS C. UMEODUAGU (2004) VOL. 121 LRCN 4972 at 4979-4980 and LABODE V.OTUBU (2001). NWLR PART 712 pages 255 at 276. PER STANLEY SHENKO ALAGOA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
Between
SWIFT BIRD SUGAR COMPANY
(NIGERIA) LIMITED Appellant(s)
AND
OFI FOOD INDUSTRIES LIMITED Respondent(s)
STANLEY SHENKO ALAGOA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of W. K. Olaifa, J. of the High Court of Justice Ibadan in Suit No. I/191/2004 delivered on the 20th November, 2006. In the said High Court below, the present Appellant as Plaintiff had commenced action against the present Respondent as Defendant under the Undefended List Procedure pursuant to Order 23 Rule 1 of the High Court (Civil Procedure) Rules 1988 of Oyo State. In its marked writ of summons dated the 26th April, 2004 contained at pages 1 and 2 of the Record of Appeal, the plaintiff had claimed as follows-
1. The sum of N450,000.00 (Four hundred and fifty thousand Naira) due to the plaintiff and being the balance of the rent unpaid by the defendant in respect of lease of agreement situate at Block C, Plot 6, Oluyole Industrial Estate, Ring Road, Ibadan and which sum the defendant has refused, failed and or neglected to pay to the Plaintiff despite repeated demand and promise to pay.
2. Interest at the rate of 10% per annum from the date of judgment until payment.
In its supporting affidavit the Plaintiff deposed to facts in support of its claim under the Undefended List and that it verily believed that the defendant had no defence to the action.
Leave was thereupon granted to the plaintiff to have this suit entered in the Undefended List. Defendant brought an application to defend the suit and to have the said suit transferred from the undefended list to the general list for hearing. In its ruling on the application at page 34 of the Record of Appeal the trial court observed as follows-
‘There is no doubt that a triable issue is raised in the arguments of both Counsel’.
This Court is disposed to granting the Defendant’s application for leave to defend the Suit. Accordingly,” it is hereby ordered that the parties shall file their pleadings forthwith.”
Pleadings having been so ordered, the Plaintiff filed a statement of claim dated the 6th July, 2004 and filed same day which is contained at pages 32 and 33 of the Record of Appeal wherein it claimed against the defendant at paragraph 11 as follows –
(i) The total sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) being the balance of the rent unpaid by the defendant to the plaintiff at N75,000.00 for the years 1995/96, 1996/97, 1997/98, 1998/99, 1999/2000 and 2000/2001 respectively in respect of lease of the Plaintiff’s property situate, lying and being at Block G, Plot 6, Oluyoie Industrial Estate, Ring Road, Ibadan and which sum the defendant has refused, failed and/or neglected to pay to the plaintiff despite repeated demands and promise to pay.
(ii) Interest at the rate of 10% per annum from the date of judgment until payment.
In response the Defendant filed a statement of defence which was subsequently amended and by paragraphs 14 and 15 of which it averred as follows –
14. The Defendant will contend at the trial of this action that if the Plaintiff has any right to any balance of rent unpaid as from 1995 on the itemized premises as claimed against the Defendant which the Defendant is not conceding, such right has been extinguished by operation of law and by the Limitation Laws of Oyo State.
15. The Defendant will at the trial rely on the equitable defences of laches, acquiescence and waiver of rights.
Whereof the Defendant herein urges the Court to dismiss all the plaintiff’s claims as frivolous.
In his considered judgment already referred to earlier, the learned trial Judge dismissed the plaintiff’s case on the ground that same was statute barred. This appeal is predicated on the finding of the learned trial Judge in his judgment delivered on the 20th November, 2006.
The aggrieved Plaintiff now as Appellant filed a Notice of Appeal dated the in December, 2006 containing three grounds.
The said Notice of Appeal is contained at pages 157-159 of the Record of Appeal and is reproduced hereunder.
NOTICE OF APPEAL
TAKE NOTICE that the Plaintiff/Appellant being dissatisfied with the decision more particularly stated in Paragraph 3 contained in the judgment of Honourable Justice W. K. Olaifa of the High Court of Justice, Ibadan dated 20th November, 2006, doth hereby appeal to the Court of Appeal upon the ground set out in Paragraph 3 and will at the hearing of the appeal seek the reliefs set out in Paragraph 4. AND THE APPELLANT further states tha the name and address of the persons directly affected by the appeal are set out in Paragraph 5.
2. PART OF THE DECISION COMPLAINED Of:
Whole decision.
3. GROUNDS OF APPEAL
(1) The learned trial Judge erred in law when he held:
“I reject with respect that the cause of action was the time the defendant actually paid for each year as being canvassed by the plaintiff counsel.
Having not instituted the action within the period prescribed by the law, plaintiff in this case has lost the right of action.”
Particulars:
(a)The claim in this case is for unpaid rent arrears of N450,000.00.
(b)The rent was at the rate of N180,000.00 per annum but N105,000.00 per annum was paid by the respondent for each of the years rent claimed.
(c)The action was instituted on 4th March, 2004 for balance of rent as follows:
1995/96 rent was partly paid on 4/9/96; 1996/97 rent was partly paid on 29/1/99; 1997/98 & 1998/99 rent was partly paid on 8/7/99; 1999/2000 rent was partly paid on 3/7/2000; 2000/2001 rent was partly paid on 7/8/2001.
(2) The learned trial Judge erred in law when he dismissed the plaintiff’s claim in its entirety despite the fact that not all the claim was statute barred.
Particulars:
(a)The learned trial Judge himself held in the course of the judgment that “claim for 1999/2000 and that of 2000/2001 was not barred as plaintiff sued in 2004”.
(b)The claim for 1997/98 and 1998/99 could also not have been statute barred if the date of part payment was taken into consideration.
(3) The judgment is against the weight of evidence.
(4) RELIEFS SOUGHT FROM THE APPEAL:
(1) An order allowing this appeal and setting aside the decision of the lower court complained about.
(2) Such further order or orders as this honourable court may deem fit to make in the circumstances.
From the three grounds of appeal contained in the Notice of Appeal the Appellant in paragraphs 3.01 and 3.02 at page 2 of the Brief of Argument dated the 10th December, 2007 and filed same day distilled the following two issues for the determination of this Court-
(1) Whether or not the cause of action arose at the time when payment was due or at the time when the Respondent actually paid for each year’s rent so the case is caught by the Limitation Law.
(2) Having held by the learned trial Judge on page 153 of the proceedings that rent for 1999/2000 and that of 2000/2001 was not barred as plaintiff sued in 2004, whether or not the learned trial Judge was right in dismissing the appellant’s claim in its entirety.
The Respondent on its part formulated in paragraph 3.0 at page 2 of its Brief of Argument dated the 9th February, 2009 and filed on the 16th February, 2009 but deemed filed on the 17th June, 2009 following the grant by this Court of a motion on Notice dated the 16th February, 2009 and filed on the 16th February, 2009 and brought pursuant to Order 7 Rule 10(1) and (2) of the Court of Appeal Rules 2007 for an order:
(1) Extending the time within which the Respondent may file its brief of Argument.
(2) Deeming as duly filed and served the Respondent’s Brief of Argument.
the following sale issue for the determination of this Court-
“Whether or not the learned trial Judge was right when he held that the Appellant’s claim for the entire sum of money outstanding as balance of unpaid rent as contained in the Appellant’s statement of claim was statute barred and thus dismissing the same in its entirety.”
On the 24th March, 2010 this appeal came up for hearing. Alhaji M. O. Olumakin Counsel for the Appellant adopted and relied on the said Appellant’s Brief of Argument earlier referred to as well as a Reply brief of Argument of the Appellant dated 2nd March, 2009 and filed same day and urged this Court to allow the appeal. A. A. Ademidun Esq. Counsel for the Respondent also adopted and relied on the Respondent’s Brief of Argument earlier referred to and urged this Court to dismiss the appeal.
The Appellant’s Brief of Argument appears to me to be too restrictive, and I instead would prefer to consider and determine this appeal on the Respondent’s Brief of Argument which is undoubtedly more all encompassing as it covers all aspects of the grounds of appeal. It is refreshing to the memory to reproduce it once again and it is as to
“Whether or not the learned trial Judge was right when he held that the Appellant’s claim for the entire sum of money outstanding as balance of unpaid rent as contained in the Appellant’s statement of claim was statute barred and thus dismissing the same in its entirety.”
It is necessary to state briefly the facts of this case, as contained in the statement of claim. Both parties are limited liability companies carrying on business in different parts of Ibadan. The defendant is said to have entered into a lease agreement with the Plaintiff on the 1st October, 1994 in respect of the property situate and lying at Block G, Plot 6, Oluyole Industrial Estate, Ibadan. A copy of the lease agreement evidencing this transaction was tendered as Exhibit A. The defendant it is contended, took possession of the said premises on October 1, 1994 and has been in occupation of the premises for its business. The lease was initially for a term of one year at the rate of N100,000.00 per annum commencing on the 1st October, 1994 but with an option to renew thereafter at an annual rent of N180,000.00 at the instance of the tenant. The defendant exercised the option to renew the lease at the end of the first year. By the exercise of the option to renew the lease, the rent became N180,000.00 per annul as agreed in the lease agreement.
In paragraph 8 of the statement of claim the plaintiff averred as follows:
“The Plaintiff avers that the defendant paid fully the rent of N100,000.00 for 1994/95 and subsequently has failed to pay fully the rent as agreed.
PARTICULARS:
YEAR AMOUNT PAID BALANCE
1995/96 N105,000.00 N75,000.00
1996/97 N105,000.00 N75,000.00
1997/98; &
1998/99 N210, 000.00 N150,000.00
1999/2000 N105,000.00 N75,000.00
2000/2001 N105,000.00 N75,000.00
BALANCE UNPAID: N450,000.00
In paragraph 9 of the Statement of Claim the plaintiff averred that the defendant had refused, failed and/or neglected to pay to the plaintiff the rent arrears of N450,000.00 despite repeated demands and promise to pay.
As was earlier noted the defendant filed an amended statement of defence but the paragraphs of the said amended statement of defence which are germane to this appeal are paragraphs 14 and 15 which state as follows –
14 – The Defendant will contend at the trial of this action that if the plaintiff has any right to any balance of rent unpaid as from 1995 on the itemized premises as claimed against the Defendant which the Defendant is not conceding, such right has been extinguished by operation of law and by the Limitation Laws of Oyo State.
15 – The Defendant will at the trial of this action rely on the equitable defences of laches, acquiescence and waiver of rights.
Appellant has submitted in his Brief of Argument that this case was instituted on the 4th March, 2004 and that by the Limitation Laws of Oyo State 2000 an action in contract is statute barred after five years of the accrual of the cause of action. Plaintiff/Appellant’s interpretation of the mode of payment by the Respondent and the effect thereof as contained in his particulars under paragraph 8 of the Statement of Claim is best summed up in paragraphs 4.01 – 4.04 at pages 2 & 3 of his Brief of Argument in his own words as follows-
“The rent of N180,000.00 owed for 1995/96 was partly paid on 4/9/96. We submit that this in effect is to shift the date of accrual of cause of action to the date of part-payment thereby shifting the date of accrual of cause of action to that date and the balance became statute barred only on 4/9/2001. The rent of N180,000.00 owed for 1996/97 was partly paid on 29/1/99 thereby shifting the date of accrual of cause of action to that date and the balance became statute barred only on 29/1/2004. The rent owed for 1997/98 and 1998/99 was partly paid on 8/7/99 thereby shifting the date of accrual of cause of action to that date and the balance became statute barred only on 8/7/2004. The rent owed for 1999/2000 was partly paid on 3/7/2000 thereby shifting the date of accrual of cause of action to that date and the balance became statute barred on 3/7/2005. The rent owed for 2000/2001 was partly paid on 7/8/2001 thereby shifting the date of accrual of cause of action to that date and the balance became statute barred only.
on 7/8/2006.”
Appellant contended that the general rule under the common law is that payment of a lesser sum than the amount due does not discharge the larger sum and that in the case of part-payment of debt, it is the time the defendant actually made part-payment that the cause of action arose. Reliance was placed on the following cases – MEMORY FINANCE CO. LTD. V. M.I.A. (2005) ALL FWLR (PART 247) 1445 at 1455; ONADEKOV. U.B.N. Plc. (2006) All FWLR (PART 301) 1872 at 1891. While conceding that the balance of N75,000.00 due on 4/9/2001 and the balance of N75,000.00 due on 29/1/2004 are caught by the Limitation Law, Appellant submitted in’ his Brief that the remaining years are not so affected.
Respondent has submitted that both in the writ of summons and statement of claim particularly paragraph 8 the Appellant’s claim is for a lump sum. There is no doubt that assertion is true. The writ of summons at page 2 of the Record of Appeal reads as follows,
“The Plaintiff’s claim against the defendant is for:
1. The sum of N450,000.00 (Four hundred and fifty thousand naira) due to the plaintiff.
While paragraph 11 of the statement of claim reads:
WHEREOF the plaintiff claims:
(i)The total sum of N450,000.00 (Four Hundred and Fifty Thousand Naira) being …”
(Underlining mine for emphasis)
The cause of action by the plaintiff’s pleadings is the failure of the Respondent to FULLY pay the rent. In determining the cause of action recourse is had only to the writ of summons and statement of claim and nowhere else. There is a plethora of case law on this subject matter. See the cases of UNION BANK OF NIGERIA PLC V. ROMANUS C. UMEODUAGU (2004) VOL. 121 LRCN 4972 at 4979-4980 and LABODE V.OTUBU (2001). NWLR PART 712 pages 255 at 276. It is clear from paragraph 8 of the statement of claim that the cause of action accrued in 1995/1996 and action was not commenced until 2004 after over eight years. Appellant had said that the Respondent had said at page 125 of the Record of Appeal that the only claim that is not statute barred is rent of 2001 and that even the learned trial Judge had held at page 153 that the claim for 1999/2000 and 2000/2001 were not statute barred as the plaintiff sued in 2004 and that admitted facts need no further proof citing MOZIE V. MBAMALU (2006) All FWLR (PART 341) 1200 at 1217 and AMADI V. AIHO (2006) All FWLR (PART 334) 1949 at 1960 in support but Appellant had admitted in paragraph 4.05 at page 3 of its Brief of Argument that the balance of N75,000.00 due on 4/9/2001 and another balance of N75,000.00 due on 29/1/2004 were statute barred. What is of note is that as at the year 2004 when the appellant filed action, Appellant was making a claim for a total or lump sum of N450,000.00 with respect to a matter in which cause of action had accrued in 1995/96 by the Appellant’s own pleadings. Section 18 of the Limitation Law of Oyo State 1989 provides that,
“No action founded on contract, tort or any other action not specifically provided in Parts 2 and 3 of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.”
From 1995/96 when action accrued to the year 2004 when action was filed is about some eight or so years. I agree with the Respondent that a breakdown of claims as the Appellant has done in paragraph 8 of the statement of claim is not the same thing as the cause of action which is the failure to pay rent in full. The Appellant’s appeal lacks merit and is accordingly dismissed, the suit at the lower court being statute barred and the Judgment of W. K. Olaifa J. delivered on the 20th November, 2006 is accordingly affirmed. I make no order as to costs.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JCA: I have had the benefit of reading before now the judgment of my learned brother S, S. ALAGOA, JCA just delivered. He has comprehensively considered and satisfactorily resolved the sole issue for determination in this appeal. I agree with his reasoning and conclusion that the suit before the Oyo State High Court, Ibadan was statute barred and properly dismissed by that court. I find no merit in this appeal. It is hereby dismissed. The judgment of the lower court delivered on 20th November, 2006 is hereby affirmed. I make no order for costs.
SIDI DAUDA BAGE, J.C.A.: I had a preview of the Judgment just delivered by my learned brother, S. S. Alagoa, JCA. His Lordship has dealt with the issues raised exhaustively and there is nothing more to add.
I agree with his reasoning and conclusion that the appeal lacks merit. I also dismiss same and affirm the Judgment of the lower Court delivered on 20th day of November, 2006.
I also abide by the order awarding no Costs.
Appearances
Alhaji M. O. OlumakinFor Appellant
AND
A. A. Ademidun Esq.For Respondent
