UNITED BANK FOR AFRICA PLC v. DR. HYACINTH OSONDU EZE (2014)

UNITED BANK FOR AFRICA PLC v. DR. HYACINTH OSONDU EZE

(2014)LCN/7537(CA)

In The Court of Appeal of Nigeria

On Friday, the 14th day of November, 2014

CA/E/362/2012

RATIO

STATUTE OF LIMITATION: ACTIONS THAT ARE STATUTE BARRED AFTER THE EXPIRATION OF SIX YEARS

If the Suit was founded on tort of detinue, the claim, I would have thought would have been for damages for wrongful detention, as the main or principal claim to bring the case within the purview of S. 20 of Enugu State Action law, 2004. In that case, the statute of limitation would apply if the matter to which the statute relates was instituted well beyond the 6 years limitation period allowed by the law. Section 20(1)(a) of the action Law provides:-

“20(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:-

(a) actions founded on simple contract or on tort;

(b) actions to enforce a recognizance;

(d) actions to recover any sum recoverable by virtue of any enactment, other than a penalty or sum by way of penalty or forfeiture.” per. SAIDU TANKO HUSAINI, J.C.A.

ACTION: CAUSE OF ACTION; THE DEFINITION OF A CAUSE OF ACTION

A cause of action, simply defined means the facts which when proved will entitle a Plaintiff to a remedy against a defendant. See Oshoboja vs. Amuda (1992) NWLR (Pt.250) 690. To give rise to a remedy, there must be a wrongful act of a party, that is the party sued, which has injured or given the Plaintiff a reason to complain in a Court of Law. See: Labode v. Otubu (2007) 3 SC 15 and Attorney General of Federation v. Attorney General of Abia State (2007) 7 SC (Pt.1) 32. per. SAIDU TANKO HUSAINI, J.C.A.

JUSTICES

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSAINI Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC – Appellant(s)

AND

DR. HYACINTH OSONDU EZE – Respondent(s)

SAIDU TANKO HUSAINI, J.C.A. (Delivering the Leading Judgment): This Interlocutory Appeal is against the Ruling delivered at the High court of Enugu State Holden at Enugu on 4th Day of June, 2012 in Suit No. E/56/2011.

United Bank for Africa Plc, the Appellant herein are the defendants in the suit instituted at the High Court wherein the Plaintiff, Dr. Hyacinth Osondu Eze, in the writ of summons and the statement of claim, sought to compel the defendant to return to him the 3 (three) certificates deposited with them (defendants).

Upon service on them of the papers Originating the action, the defendants, by way of a Motion on Notice dated the 13th May, 2011 and filed at the Court below on the 19/5/2011 prayed the Court for:-

1) An Order striking out the said Suit on the ground that the defendant is not a juristic person which can sue or be sued,

2) An Order dismissing the said Suit for being statute barred, and

3) Such other order as the Court deemed fit to make.

In the course of the proceedings at the Court below it become necessary to amend the writ of summons and the Statement of Claim so as to reflect the correct name that the defendants are known as United Bank for Africa Plc. Parties on both sides were agreed that such amendment should be effected.

The question of the nomenclature by which the defendants are known having been sorted out the coast was now clear for the Court below to address the only prayer now left the motion paper and that is the prayer for an order dismissing the suit for being statue barred.

The Court after taking arguments of Counsel on both sides in a considered Ruling delivered on Monday 4th June, 2012 refused the application and directed proceedings to continue but defendants, not happy with that Ruling of Court lodged an appeal to this Court vide the Notice of appeal dated 10th July, 2012 and filed on the 20th July, 2012. The Notice of Appeal contains 2 (two) grounds. Shorn of the particulars, the 2 (two) grounds of appeal are as follows:-

1) The learned trial Judge erred in law in holding that the present action in retinue in which the cause of action accrued more than six years earlier could be entertained because parties in the meantime exchanged correspondence in which the defendant acknowledged that it was searching for the documents concerned.

2) The Lower Court misconstrued the law by holding that failure by the Plaintiff to pay in full fees prescribed by the High Court Rules on the processes filed by him upon late filing was a matter of mere technicality whereby did not stop the Suit from proceeding to trial even though objection was taken timeously.

The appellant formulated 2 (two) issues in the brief of argument dated the 30/10/2012 and filed on the 6/11/2012 while the Respondent by the brief filed on the 5th June 2013 identified 2 (two) issues akin to those formulated by the appellant. In view of the similarity of issues distilled by parties on either side, I shall address this appeal based on the 2 (two) issues earmarked for determination by the Appellant.

ISSUE NO. 1:-

Is this action in the tort of detinue which accrued in 2001 not statute barred in 2011 when the Suit was filed?

By the very manner issue No. 1 was couched suggest to me that the Appellant has taken a position as to what the Suit is all about. According to the Appellant or their Counsel, the suit being a case founded on tort of detinue, the Respondent herein as the Plaintiff at the Court below was bound by law to institute his case within 6 years from the date the cause of action arose. Learned Appellant Counsel referred to S.20(1) of the Action Law of Enugu state 2004 to submit that the cause of action in this case having arisen in the year 2001, it was too late and rather belated to file action in the year 2011 over that cause of action in tort as the same was statute barred as at the date the action was maintained. Learned Appellant’s Counsel cited the following authorities namely:-

1) Egbe v. Adefarasin (1987) 1 SC 1;

2) Fadare & Ors. v. Attorney General of Oyo State (1982) 4 SC 1;

3) Arafa v. Ejeagwu (2000) 15 NWLR (Pt.692) 684;

4) Savage vs. Uwaechina (1972) 3 SC 225.

Learned Appellant Counsel urged this Court therefore to hold that action instituted by the Plaintiff/Respondent was statute barred, a submission which did not go down well with the Respondent.

In their own brief of argument it was contended on behalf of the respondent that the Suit filed by him at the Court below was mainly to compel the Appellant who is the defendant of the Court below to return the 3 (three) documents deposited with them to the owner, the Plaintiff (Respondent) so far as the latter had discharged his own side of the bargain, it was now left for the other party to also fulfill its own obligation by the release of those documents but which was not forthcoming from them.

At this point, the question may now be posed as to the true nature of the case or claim before the lower Court. Is it an action founded on tort of detinue otherwise referred to as unlawful retention or detention of property belonging to the respondent, which is the contention of the Appellants OR is it an action seeking to compel the appellant to produce or release those documents in their possession to the owner as argued by the Respondents?

“20(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:-

(a) actions founded on simple contract or on tort;

(b) actions to enforce a recognizance;

(d) actions to recover any sum recoverable by virtue of any enactment, other than a penalty or sum by way of penalty or forfeiture.”

At this point it is most appropriate to revert to the Amended Statement of Claim with a view to discover what indeed is the nature of Plaintiff’s claim at the Lower Court. At paragraph 10 of the Amended Statement of Claim, the Plaintiff prays the Court for:-

“10. Wherefore the Plaintiff claims against the defendants as follows:-

(a) An Order of specific performance compelling the defendants to return to the Plaintiff forthwith the three Original Certificates deposited as collateral by the Plaintiff, namely, B.Ed. Certificate from the University of Ibadan, NYSC discharge Certificate and National Directorate of Employment Ceftificate.

(b) IN THE ALTERNATIVE N100M (One Hundred Million Naira) compensation for permanent loss of the three Certificates.

That claim for an order compelling the appellant, the defendant at the Court below to return to the Respondent, (the Plaintiff) all the documents described at paragraph 10(a) of the amended Statement of Claim is by no means, the Principal Claim or relief sought by the Respondent.

In legal parlance, this is an action for specific performance. It is an equitable remedy. Its grant in premised on the fulfillment of certain conditions as for instance, the existence of valid contract between the parties and the person seeking to enforce his rights under a contractual agreement has fulfilled all the conditions precedent and that he has performed all those terms which ought to have been performed by him. See:- Egenwa v. Ekong (1999) 11 NWLR (Pt. 625) 55, 62; Coker vs. Ajewote (1976) NSCC 429, 433.

Counsel for the Respondent in his brief has argued that the Respondent has done all that was required of him and it is now left for the appellant by the existing arrangement between them to discharge its own obligations towards the Respondent by releasing the documents to him. Learned Respondent’s counsel further referred this Court to subsection 6 of Section 20 of the Action Law of Enugu State to submit that a claim for specific performance or injunction and other equitable reliefs were exempted by the operation of the Action Law of Enugu State. I agree.

Sub-section 6 of section 20 of the Action Law provides:-

“This Sections shall not apply to a claim for specific performance of a contract or for Injunction or for other equitable relief.”

Thus, the claim before the Lower Court against the appellants being essentially a claim for specific performance, the Court below has jurisdiction and it effectively and properly exercised it. Peradventure that the claim at the lower Court was founded exclusively on tort of detinue then the question arises as to when the cause of action arose to give a right of action to the Plaintiff.

The Appellant in his brief of argument at page 2 paragraph 3.2 has contended that the cause of action accrued to the Plaintiff in the year 2001 but that Plaintiff took no action or steps until 2011 and for that reason, the Suit of the Plaintiff was statute barred as at 2011.

This submission of Counsel for the appellant was drawn for the pleadings. The Amended statement of Claim at paragraphs 4, 5 and 6. But paragraphs 5 and 6 are very much on point. The 2 (two) letters referred to at paragraph 5 of the amended Statement of Claim are at pages 44 and 46 of the Record. The letter at page 44 dated 23/7/2001 was written by the Respondent himself and addressed to the Appellant by which he demanded that his three Certificates be released to him. This letter of demand was coming up about 5 months after the Respondent had cleared his debts with the Bank (UBA).

The second letter, the letter from the Firm of Solicitors, C.C. Okoro & Associates to the Manager U.B.A. Plc is dated 2nd December, 2010 on the same subject-matter i.e the demand for the release of three documents or certificates in the custody of the Appellant.

By the contents of those letters, each letter of demand constitutes a separate cause of action.

It may be argued that the cause of action which accrued to the Respondent in the 2001 had gone stale as at the date action was maintained at the Court below, by virtue of S.20(1)(a) of Action Law of Enugu State and therefore not enforceable.

In Egbe v. Adefarasin (1987) 1 SC 1, the apex Court per Oputa, JSC held that:

“A cause of action is thus said to be Statute barred, if, in respect of it proceedings cannot be brought because the period laid down by the limitation law or Act had elapsed.

How does one determine the period of limitation? The answer is simple – by looking at the writ of summons and the Statement of Claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date on which the Writ of Summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.”

Time begins to run when the cause of action arises. See Fadere vs. Attorney General of Oyo State (1982) 4 SC 11, 24-25; Araka vs. Ejoagiru (2000) 15 NWLR (Pt. 692) 684. This is true as far as the letter dated 23/7/2001 is concerned but not so in relation to the Solicitor’s letter dated the 2nd December, 2010 by which the cause of action, gone stale was revived in 2010. The response to Solicitors letter is at page 47 of record. The said response letter is dated 21-12-2010. The Suit giving Rise to this appeal was instituted on the 1st March, 2011, a period falling within the 6 years Limited by the law. Looked at from both ways, whether from the statutory point of view i.e. the exemption from limitation provisions or from the revival of liability by written acknowledgment point of view, the Respondent’s claim was not statute barred. In effect; this issue (No. 1) is resolved in favour of the Respondent.

Under Issue No. 2 the question is whether the Lower Court did not misconstrue the law when it held that failure by a litigant to pay Court fees prescribed by the Rules was a matter of technicality, which when taken up timeously would not preclude the Court from proceeding to trial? I want to put this question differently and that is what is the attitude of the Courts towards the litigant where it becomes apparent in the course of proceedings, that the litigant had not paid certain fees as prescribed by the Rules of Court.

Shortly after the Plaintiff had taken out a Writ of Summons and Statement of Claim at the Court below, same were served on the defendants. Rather than file a defence to the Suit, the defendant came up with a motion on Notice dated 13/5/2011 and filed on the 19/5/2011 wherein he sought for an order among others, dismissing the Suit for being statute barred. The said motion along with the supporting affidavit were then served on the Plaintiff, the Respondent before this Court.

It was not until the 29/2/2012 that the Plaintiff filed his counter affidavit and a written address in opposition to the motion on Notice dated the 13/5/2011 and filed on the 19/5/2011 contrary to the dictates of the Rules. Order 39 Rule 1(3) of the High Court Rules of Enugu State 2006 provide:

“Where the other party intends to oppose the application, he shall within 7 days of the service on him of such application, file his written address in opposition to the motion and may accompany it with a Counter-Affidavit if it is being opposed on grounds of facts which are not already party of the proceedings.”

By the foregoing Rule, the party who chooses to file a Counter-Affidavit and a Written Address in opposition to Motion on Notice, must do so within 7 days of service on him of the said Motion. Where however circumstances do not permit and a Counter-Affidavit and Written Address were filed outside the 7 days permitted by the Rules, then the party in default is obliged to pay default fees for the duration he was in default. This is where the proviso to Order 44 of the High Court Rules of Enugu State comes in handy. It provides:-

“Provided that any party who defaults in performing an act within the time authorized by the Judge or under these rules, shall pay to Court an additional fee of not less that N200.00 (two hundred naira) for each day of such default.”

This point was raised and the attention of the Court below drawn to the fact that the Counter-Affidavit in opposition to the motion, not having been filed within 7 days as allowed by the Rules, would attract some penalty and that the Plaintiff needed to pay some fees for his default.

In addressing this question the Court below had this to say at page 61 of the Record:-

“On the application of Order 44 rule 4 particularly the provision thereof, if litigant under pays any penalty the blame goes to the taxing Officer as he us supposed to work with document of court not viva voce claim of a litigant or the payee…”

Those remarks made at Court below cannot possibly be the panacea or the Solution to the live issue or question of non-payment. The issue goes beyond shifting blame on the Taxing Officer whose duty it is to make proper assessment of fees a litigant was expected to pay in those circumstances. The problem having been identified required immediate solution and it was for the Court below to take proactive approach as done in the case of Lawal & Anor. v. Odejim & Anor, (1963) WNLR 123, – also reported in (1963) ANLR 569, 570, where inadequate fees were paid for the a Writ of summons, the trial court allowed the Plaintiff, time to pay the balance of the fees.

Where in the course of proceedings it became obvious that a party or litigant had not paid the fees that was required of him or there was short fall in the fees paid by him, the Court should order that such fees be paid accordingly. See: Akpaji v. Francis Udemba (2009) 6 NWLR (Pt.1138) 645 of (2009) 2-3 SC (Pt. 11) 1.

See further decisions in:-

1) ACB Ltd v. Henshow (1990) 1 NWLR (Pt. 129) 646, 650;

2) Egonu v. Oyakhire (1985) 1 NWLR (Pt. 2) 195, 202 – 203;

3) Noibi v. Fikolata & Anor. (1987) 1 NWLR (Pt.52) 619, 632.

4) Alhaji Sande v. Alhaji Abdulahi (1989) 4 NWLR (Pt.116) 387, 405-406.

That is what the Court below ought to have done but it failed in that regard. I would on that note resolve issue No. 2 in favour of the appellant and allow this appeal on that account and I remit the case back to the same Enugu State High Court, holden at Enugu for hearing or continuation of hearing, after all necessary payments of default fees or short – fall have been made by the Plaintiff, (Respondent).

Ordered accordingly.

TOM SHAIBU YAKUBU, J.C.A.: I was obliged with the draft of the judgment prepared and just delivered by my learned brother, SAIDU TANKO HUSAINI, JCA, I perused it. His Lordship, to my satisfaction, meticulously and comprehensively addressed the issues thrown up in the appeal.

Let me just chip in a word. Generally, the payment of appropriate filing fees by litigants is to enable the court’s functions on the case to start. Seven-Up bottling Co. Ltd V. Yahaya (2001) 4 NWLR (Pt.902) 47 at 55 (CA). Hence, the payment of filing fees is a condition precedent or a pre-condition which must be fulfilled by a claimant/plaintiff before the assumption of jurisdiction over his case by the court, Patrick Izuagbe Okolo V. Union Bank of Nigeria (2004) 1 SCNJ 113 at 124.

Therefore, the payment of the appropriate filing fees by a party, is to activate the jurisdiction of the court on the case. It is not a matter of procedural but substantive jurisdiction. Ogli Oko Memorial Farms Ltd & Anor V. Nigeria Agricultural & Cooperative Bank Ltd & Anor (2008) 4 SCNJ 436 at 448; Abia State Transport Corporation V. Quorum Consortium Ltd (2009) 4 SCNJ 1 at 9 – 10. The learned trial judge ought to have ensured that the respondent herein, paid the appropriate default fees when the appellant drew the attention of the court to the issue.

It is for this and the fuller reasons ably adumbrated in the lead judgment, that I too, allow the appeal in part only. I adopt as mine, the order remitting the case to the trial court for hearing and determination, on merits upon the payment of the short fall in the default fees by the respondent.

EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother SAIDU TANKO HUSAINI JCA. I completely agree with the reasoning and conclusions therein. I agree with the orders made therein.

Appearances

Dr. A.J.C. Mogbana with (C.A. Azena)For Appellant

AND

C.C. OkoroFor Respondent