UNION BANK OF NIGERIA PLC v. EMMANUEL MGBECHI NWAIGWE
(2019)LCN/12815(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/OW/21/2016
RATIO
COURT AND PROCEDURE: DUTY OF THE COURT
“The law is elementary that a judge, being the depository of the law, is bound on oath to decide an issue according to the law of the land whether or not his attention is drawn to the statute in question. In other words, a judge is entitled to determine the effect of law on a given state of facts, NWADIARO v. SHELL DEV. CO. LTD (1990) 5 NWLR (PT. 150) 322; ARABAMBI v. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (PT. 159) 1 @ 37. It is the duty of the Court to consider all issues placed before it, before arriving at any decision, NDDC v. PRECISION ASSOCIATE LTD (2007) ALL FWLR (PT. 385) 533 @ 573; OLOWOLARAMO v. UMECHUKWU (2003) 2 NWLR (PT. 805) 537; EGHAREVBA v. OSAGIE (2009) 18 NWLR (PT. 1173) 299@ 310 – 311.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
UNION BANK OF NIG. PLC – Appellant(s)
AND
EMMANUEL MGBECHI NWAIGWE – Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Abia State, Aba Judicial Division, delivered on the 21st of December, 2011, in suit No. A/138/2005, in which the Court below held that Suit No. A/138/2005 was not statute-barred.
SYNOPSIS OF FACTS
The suit, the subject matter of this appeal was instituted vide Writ of Summons and statement of claim filed on the 31st of March 2005. ? Pages 1-10 of the Record of Appeal.
In paragraph 31 of the amended statement of claim, the Respondent (Plaintiff in the Court below) claimed against the Appellant (Defendant in the Court below) the following: –
a. The sum of N15,000,000.00 (Fifteen Million Naira) being special and general damages for breach of contract and intentional infliction of emotional distress.
b. AN ORDER directing the Defendant to re-open the Plaintiff account number 1071190583 with all the entries accruing to the said account. ? Pages 41 ? 45 of the Record of Appeal.
In December 1983, the Respondent opened a current account No. 1071190583, with the Appellant in its office at Factory Road Branch Aba, Abia State. It was opened mainly for the purpose of receiving dividend from shares which he held in various companies from his family home.
The Appellant sent him quarterly statements of account in Lagos, but in 1987, he stopped.
In mid 1999 the Respondent while returning to Lagos from his village, went to the Appellant to:- (a) cash personal cheque which he needed to pay his fare; (b) stamp and sign mandate form for share dividends and (c) pay in a cheque of N1,500,000.00.
To his surprise however, the Appellant told him that the Account No. 1071190583 belonging to the Respondent was no longer in the Appellant?s system.
On the part of the Appellant, he denied this but stated that the Respondent was its customer who abandoned his account for several years. This necessitated the Appellant to close his account. The said account was a current account which persistently remained in debit due to interest charges.
When the Respondent later showed up in 1999, he was informed of the closure of his account. The Appellant offered to issue him a cheque for the total amount due and pending in the Respondent’s account which was the sum of N1,607. 85k (One Thousand Six Hundred and Seven Naira, Eighty Five Kobo). This sum included his total credit, and the sum of N427:54. The Respondent refused it, but insisted that his account be re-opened. This was in the year 1999.
At the end of the hearing of the case, the Court below delivered a three lined judgment. I shall reproduce same verbatim.
JUDGMENT
Case of Claimant is not statute barred. His case succeeds. Special and general damages assessed at N10,000.000 (Ten Million Naira).
Sgd
IJEOMA OFFONRY
(JUDGE)
-Page 118 of the Record of Appeal. 21/12/2011.
The Appellant is dissatisfied with this judgment and has appealed same.
He filed a Notice of Appeal on the 18th of January 2012 with Four (4) Grounds of Appeal. ‘Pages 119 – 121 of the Record of Appeal.
The Appellant filed his Brief of Argument on the 17th of March 2017. It is settled by Bertram Faotu.
The Respondent’s Brief filed on the 18th of May 2018, but deemed filed on the 22nd of May 2018 is settled by J. C. Okafor Esq.
The Appellant filed a Reply Brief on the 21st of June, 2018 but same was deemed filed on the 24th of January 2019.
On the 24th of January, 2019 parties adopted their respective briefs of argument.
The Appellant distilled three (3) issues for determination from the Grounds of Appeal which are: –
1. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE SUIT WAS NOT STATUTE BARRED.
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE CLAIM OF THE RESPONDENT SUCCEEDED AND GRANTED THE CLAIMANT’S CLAIM FOR BREACH OF CONTRACT.
3. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE GRANTED THE CLAIMANT’S CLAIM FOR DAMAGES.
The Respondent distilled three (3) issues for determination from the Grounds of Appeal. They are:-
1. WHETHER FROM THE CIRCUMSTANCES OF THIS CASE, THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE RESPONDENT’S SUIT IS NOT STATUTE – BARRED.
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE CLAIM OF THE RESPONDENT SUCCEEDED AND GRANTED THE RESPONDENT’S CLAIM FOR BREACH OF CONTRACT AND INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.
3. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE GRANTED THE RESPONDENT’S CLAIM FOR DAMAGES AND AWARDED THE SUM OF N10,000,000.00 (TEN MILLION NAIRA) IN FAVOUR OF THE RESPONDENT.
The issues for determination proffered by the Respondents can be said to be an adoption of the issues proffered by the Appellants.
I shall consider this appeal based on the Appellant’s issues for determination.
ISSUE NO 1.
It is a JURISDICTIONAL ISSUE and I have perused arguments of the respective parties in this Appeal. But I deem it pertinent to consider Issue No 1 first and foremost. If the contention/argument in that issue succeeds, then it knocks off the bottom the entire appeal and would make the consideration of the other issues academic.
The Appellant has argued that it was in mid 1999 that the Respondent realized that his current account No. 1071190583 with the Appellant bank had been closed by the Appellant. That all the facts in which the Respondent?s claim granted by the Court, were founded occurred in 1999. That the Suit, the subject matter of this appeal was filed on the 31st of March 2005. He submits that the Respondent in paragraph 8 of his Statement of Claim, and paragraph 8 of his amended Statement of Claim, pleaded the date the cause of action accrued which is mid 1999. A fact corroborated by the Appellant in his Statement of Defence. That from 1999 to 2005 when the suit was instituted is a period of six years. Submits that the Respondent right of action expired in 2004.
That by virtue of Section 18 of the Abia State Limitation Law, the Suit is statute barred.
Section 18 of the Abia State Limitation Law has this to say:-
‘No action founded in contract tort, shall be brought after the expiration of five years from the date on which the course of action accrued.’
That by virtue of the pleading in paragraph 29 (b) of the statement of claim and paragraph 31 (a) of the Amended Statement of Claim as well as the Plaintiff’s testimony in Court on 19/1/09, wherein he stated that ‘I sued the Defendant in breach of contract’ the matter smacks of breach of contract.
Citing SANDA v. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT. 174) 379, he submits that the Law is settled that where the law prescribe a period for instituting an action, proceedings cannot be instituted after the prescribed period and the period of limitation will begin to run from the date when the cause of action accrued.
The law is settled that the term ’cause of action’ constitutes a factual situation, the existence of which entitles the person to obtain from the Court a remedy against another person THOMAS v. OLUFOSOYE (1986) 1 NWLR (PT. 18) 669.
In paragraph 8 of the Amended Statement of Claim, he had avered thus:-
In mid 1999, the Plaintiff whilst returning to Lagos from village approached the Defendant.
(a) To cash personal cheque he needed to pay his fare.
(b) Stamp and sign mandate form for share dividends and
(c) Pay in a cheque of N1,500,000.00 but to his surprise he was told that the account number belonging to him was no more in the system of the Defendant.
‘It is true to say that it was on that fateful mid 1999 day that the Respondent became aware that his current account was no more operative, and the number was no more in the system of the Defendant. That constitutes a fact coming from the source itself. The Appellant is the bank while the Respondent was one of its customers who maintained a current account with it.
It was after the Respondent became aware of this fact, that he reacted and confirmation of the fact was set in motion.
The fact which constituted the fact of closing the account of the Respondent took place in the year 1999. Letters were subsequently written viz: Exhibit ‘G’ is the letter which the Appellant acknowledged receipt of letter of the Respondent dated 16/1/2002 and 4/4/2002 respectively. The Appellant also stated therein that the account, subject matter of this action had been closed in its book since 30th December 1999 due to poor operation.
It is my view not true that it was in Exhibit ‘G’ that the Appellant for the first time informed the Respondent that his account has been closed since 30th December, 1999.
The facts in paragraphs 8, 9 and 10 of the Amended Statement of Claim filed on the 8th of November, 2006 should be read together to ascertain when the cause of action arose. In paragraph 3.02 of the Reply brief of the Appellant, he submits inter alia that in law, there is a difference between when a legal injury occurred, and continuance of the injury or damage, citing INEC v. OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (PR. 1498) 167. He submits that the legal injury, if any, that gave rise to the cause of action took place in mid 1999. I am in agreement with that submission in its entirety. The cause of action cannot by any stretch of imagination be said to have accrued on the 18th of April, 2002, when the Respondent claimed that he received a letter from the Appellant.
It is my view that the investigation that followed the information given the Respondent, the subsequent written letter and other discussions and negotiation were a continuance of the injury. The Respondent became aware of the fact that his current account with the Appellant had been closed when he went to Lagos in mid-1999.
The Respondent pleaded that in 1999, he was forced to sell his gold wrist watch, as a result of the injury caused him by the Appellant paragraph 10 of the Amended Statement of Claim (Page 42 of the Record of Appeal).
The case in hand had to do with a case of refusal by the Appellant to do further business with the Respondent who had abandoned the account for several years.
There is no doubt that the suit, the subject matter of this Appeal is statute-barred.
In addition, a cursory look at the three lines judgment of the Court below shows glaringly that no reasons were proffered for granting the reliefs sought. No reasons were given as to why the matter is not statute barred in the opinion of the Court below.
The judgment of the Court below was perverse in all its ramification.
The suit the subject matter of this Appeal was dead on arrival having not been instituted within the period prescribed by law. Even so, the judgment of the Court below is dead on arrival, as it did not portray the legal features of a judgment. It is incurably bad.
The law is elementary that a judge, being the depository of the law, is bound on oath to decide an issue according to the law of the land whether or not his attention is drawn to the statute in question. In other words, a judge is entitled to determine the effect of law on a given state of facts, NWADIARO v. SHELL DEV. CO. LTD (1990) 5 NWLR (PT. 150) 322; ARABAMBI v. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (PT. 159) 1 @ 37.
It is the duty of the Court to consider all issues placed before it, before arriving at any decision, NDDC v. PRECISION ASSOCIATE LTD (2007) ALL FWLR (PT. 385) 533 @ 573; OLOWOLARAMO v. UMECHUKWU (2003) 2 NWLR (PT. 805) 537; EGHAREVBA v. OSAGIE (2009) 18 NWLR (PT. 1173) 299@ 310 – 311.
The judgment of the Court below does not show that the Court below complied with the sacred principle of considering the issues placed before it.
Issue No. 1 must be necessarily answered in the negative. The suit the subject matter of this Appeal was instituted outside the time limited to it by law. It is statute barred and the proceeding accruing from it becomes null and void ab initio.
This issue is resolved in favour of the Appellant and against the Respondent.
Having, held that the action at the Court below is statute barred, there will be no need to consider Issues 2 and 3. Indeed in my view the Court below did not consider the facts in the case, as this is reflected in the judgment of two and half sentence delivered on the 21st of December, 2011.
I deem it proper to further address the issues of the judgment of two and half sentences delivered by the Court below.
It did not state reasons why the case of the Claimant is not statute barred. It did not proffer grounds for the award of special and general damages. Special damages (if any) must be specifically pleaded. There is nothing on the face of the amended statement of claim that special damages were pleaded. What was the rationale for granting special damages in favour of the Respondent. The judgment cannot stand by, reason of it; being utterly perverse.
As rightly put by Per ALOYSIUS IYORGYER KATSINA-ALU, J.S.C OGOLO & ORS V. OGOLO & ORS (2003) LPELR-2309(SC):
“It is no longer in doubt that writing a judgment is an art and as such each Judge is entitled to and free to follow his own style in achieving the end result. However, there are certain essential components which a good judgment must incorporate inter alia, set out the nature of the action before the Court; the issues in controversy; a review of the case for the parties; a consideration of the relevant law raised and applicable to the case; specific findings of the fact, and conclusions. The reasons for arriving at the conclusions must also be stated. As there should be no fixed or right form of embarking on the process of achieving the end result stated above, what is, however, most essential is that the Judge should show a clear understanding of the facts and issues raised in the case, the law applicable; and from all these, he should be able to arrive at a conclusion deciding all the issues in controversy in the case before him. See Onuoha v. The State (1988) 2 SC (Pt.II) 115; (1988) 3 NWLR 9 (Pt.83) 460; Igwe v. Alvan Ikoku College of Education, Owerri (1994) 8 NWLR (Pt.363) 459 at 480-481; Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703; Imogiemhe v. Alokwe (1995) 7 NWLR (Pt. 409) 581 at 593; and Akinfolarin v. Akinnola (1994) 3 NWLR (Pt.335) 659.”
In ATOLAGBE v. SHORUN (1985) LPELR 592 SC, the word ‘Perverse’ was stated to mean persistent in error different from what is reasonable or required, against weight of evidence
It is apparent that the Court below shut its eyes to the obvious in this case, ANSA v. NTUK (2009) 9 NWLR (PT. 114) at Page 557.
To allow the decision of the Court below would be prejudicial to the Appellant.
Issues 2 and 3 are consequently resolved in favour of the Appellant and against the Respondent.
The Appeal succeeds and the judgment of the Abia State High Court holden in Aba, delivered on the 21st of December, 2011 in Suit No A/138/2005 is hereby set aside. N30,000 costs in favour of the Appellant.
ITA GEORGE MBABA, J.C.A.: I agree
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother HON. JUSTICE R. N. PEMU, JCA. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.
Appearances:
Bertram Faotu, Esq.For Appellant(s)
J. C. Okafor, Esq. BL, LLM (KSM, JP)For Respondent(s)
