YESUFA v. SKYE BANK PLC
(2021)LCN/15904(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, February 26, 2021
CA/L/1050/2016
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Between
MADAM SAMIAT OMOTUNDE YESUFA APPELANT(S)
And
SKYE BANK PLC RESPONDENT(S)
RATIO:
THE KNOWLEDGE OF THE CLAIMANT OF THE CAUSE OF ACTION IS IRRELEVANT
The position of the law is that knowledge of the Claimant, and by implication, of the accrual of the cause of action is immaterial and it is immaterial that a party was absent from jurisdiction or that there was no Court within the jurisdiction to entertain the suit.
Apart from fraudulent concealment of right of action, which itself furnishes a cause of action, knowledge cannot be said to be relevant. Since it does not take any considerable length of time for instruction to a bank to make payment into a customer’s account to be carried out, the Claimant’s cause of action must Nbe held to have arisen in 1991 after the instruction had been given by her employer to the bank.” (The underlining is supplied by me for emphasis). OYEBISI FOLAYEMI OMOLEYE, J.C.A.
THE RATIONALE FOR THE LIMITATION OF ACTION FOR THER COMMENCEMENT OF ACTION
Now on the resolution of the issue whether or not a suit is statute barred, the law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation, it extinguishes the right to action but not the cause of action itself, which is rendered stale and unenforceable in a Court of law. The rationale for limitation of time for the commencement of actions would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost, or due to unavailability of materials evidence or death, vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timeously within the period allowed under the relevant applicable limitation law. See the cases of: (1) P.N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) p. 900. (2) Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) p.398 at p. 416; (3) Nigerian Ports Authority Plc v. Lotus Plastics Ltd & Anor. (2005) 19 NWLR (Pt.959) p.158; (4) Ikosi Industries Ltd. V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA) and (5) Buremoh v. Akande (2017) LPELR – 41565 (SC). OYEBISI FOLAYEMI OMOLEYE, J.C.A.
THE POSITION OF THE LAW ON THE PERIOD OF LIMITATION OF ACTION
The law is fairly settled that, the period of limitation begins to run from the day after the date on which the cause of action accrued. See the cases of: (1) ADESULE V. MAYOWA (2011) 13 NWLR (Pt. 1263) p.135 and (2) KANO STATE HOUSE OF ASSEMBLY & ORS. V. UMAR (2014) LPELR – 24008 (CA).
Sequel to the foregoing stated statute and case laws, in the instant matter, the action of the Appellant founded on a contract and for the operation of an action as rightly subscribed to by the Appellant, must ordinarily be commenced within six years of its accrual, that is within six years from 1991, when her said retirement benefit was paid into her account with the Respondent by her former employer. The original initiating Writ of Summons and Statement of Claim of the Appellant were issued on the 17th of November, 2009 – see pages 1 to 7 of the Record of Appeal, a period of about eighteen years after the cause of action accrued. Clearly this time is beyond the period specified by the Limitation Law of Lagos State, hence, the action is statute barred and the said initiating process incurably incompetent even on arrival at the Registry of the trial Court. OYEBISI FOLAYEMI OMOLEYE, J.C.A.
THE NATURE OF THE BANKER AND CUSTOMER RELATIONSHIP
“ I am at one with the learned trial Judge, for the law is quite trite that, a bank is a debtor to its customer. Put in other words, the nature of the banker and customer relationship is that of contract of debtor and creditor in respect of the money deposited with the banker by the customer. See the cases of: (1) YESUFU V. AFRICAN CONTINENTAL BANK LTD. (1981) LPELR – 3524 (SC); (2) ALLIED BANK (NIG.) LTD V. AKUBUEZE (1997) 6 NWLR (Pt. 509) p.374; (3) STANDARD TRUST BANK LTD. V. ANUMNU (2008) 14 NWLR (Pt. 106) p. 125 and (4) UBN PLC V. CHIMAEZE (2014) 9 NWLR (Pt. 1411) p.166. OYEBISI FOLAYEMI OMOLEYE, J.C.A.
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the High Court of Lagos State, Lagos Judicial Division per Y.A. Adesanya, J. (of blessed memory, hereinafter referred to as “the trial Court”) delivered on the 28th of June, 2016 in Suit No. LD/1937/2009.
The Appellant as Claimant by a Writ of Summons and Statement of Claim both dated and filed on the 17th of November, 2009 sued the Respondent as Defendant. By the order of the trial Court, same were amended and the Appellant’s claims against the Respondent are as follows:-
“1a. The repayment of her retirement benefit of $25, 096,61 wrongfully transferred to Account No. 35800093S, instead of her Account No. 34800093S.
1b. The repayment of the balance of $168.69 accepted by the Defendant as balance of the Claimant in Account No. 348011017.
2. 20% interest rate per month, in her retirement benefit of $25,096,61 transferred since 1991 till the substantial suit is determined.
3. The cost of this litigation to be assessed at the rate of N3 million.
4. The sum of N10 Million being specific damages in respect of financial loss, set back, medical bills, inconveniences and humiliation.
5. The sum of N20 Million as general damages since 1991.”
The Appellant also made an allegation of fraud against the Respondent which is predicated on the following particulars thus:
“1. The defendant outrightly denied the existence of Account No. 34800093S and denied knowledge of the letter of authority to transfer the retirement benefit of the claimant to the account.
2. The Defendant also openly denied the Claimant knowledge of any previous transaction despite knowing the relationship between Cocoa Producers Alliance and the Claimant; this led to the opening of the second Account 348011017 to enable the Claimant claim the money in paragraph 14.
3. On presentation of further evidence by the Claimant to the Defendant, the Defendant claimed that the Claimant has closed her account, but could not show Letter of Authority to close, or where the money in the Account was transferred.”
(See pages 1 to 7 and 112 to 117 of the Record of Appeal respectively).
The background facts of this matter, from the perspective of the Appellant, are that, the Appellant was a customer of the respondent bank and a former employee of Cocoa Producers Alliance. Amongst others, the Appellant operates account No. 34800093S with the Respondent. Upon the retirement of the Appellant, Cocoa Producers Alliance sequel to a letter of authority dated the 31st of July, 1991 transferred the sum of twenty-five thousand, ninety-six dollars and sixty-one cents ($25,096.61) being the retirement benefit of the Appellant into her said account with the Respondent. Immediately after the transaction, the Appellant took her gravely ill husband to London, United Kingdom for cancer treatment and returned to Nigeria in January 1995. After the death of her husband in June, 1995, on a visit to the Respondent to make a withdrawal, the Appellant discovered that there was no money in her said account No. 34800093S. According to the Appellant, at the time of the transfer, although her employer’s secretary mistakenly typed a wrong account No. 35800093S in the letter of transfer, the Appellant’s names and other details with the Respondent were correctly stated therein. Subsequent to further enquiry, the Appellant was told by the officials of the Respondent that she had personally closed the account but without any document to buttress the claim. As a matter of fact, the Respondent could not trace the details of her said account, it rather denied that the Appellant ever operated an account with it and became hostile to her. The Appellant later found some documents relating to the account, hence, she wrote two letters to the Respondent on the 13th of September, 2005 and 17th of October, 2005 respectively in furtherance of her enquiries. Failure on the part of the Respondent to respond to all her entreaties caused the Appellant to brief a counsel to write a letter on the 14th of September, 2009 to the Respondent to formally demand information on the status of and transactions on her said account.
It is apposite to state and according to the Appellant that, while she was making the above stated enquiries regarding her account with her said retirement benefits, her former employer contacted her that there was a mistake in the calculation of her retirement benefits which led to a shortfall of the sum of four thousand and eighty-six dollars ($4,086.00). She therefore opened a new account No.348011017 with the Respondent into which the said shortfall was paid.
As stated hereinbefore, the Respondent having failed to furnish the details of her account No. 34800093S, the Appellant took the action, the subject of this appeal, against the Respondent on the 17th of November, 2009.
In response to the action of the Appellant, the Respondent, in addition to its defence, by a Notice of Preliminary Objection dated and filed on the 2nd of March, 2016 challenged the competence of the said action and consequentially the jurisdiction of the trial Court to adjudicate upon same. The grounds upon which the objection was predicated are as follows:
“a. The cause of action, according to the Claimant, arose in 1991.
b. The suit was commenced against the Defendant outside the limitation period provided by the enabling laws.
c. Being an action that is based on contract, the limitation period for instituting such suit had since elapsed.
d. The suit as presently constituted discloses no reasonable cause of action against the Defendant.
e. By the combined effect of the preceding paragraphs, the Honourable Court lacks the jurisdiction to entertain the suit.”
In support of the Notice of Preliminary Objection of the Respondent is an affidavit of nine paragraphs deposed to by Joseph Ndibuagu, a Solicitor in the law firm of the Respondent’s counsel. The relevant paragraphs 4 to 7 thereof are hereunder reproduced as follows:
“1. That the events leading to this suit, according to the Claimant, started in 1991, and since then, till on 24th day of November, 2015, no legal action was taken by the Claimant against the Defendant.
2. That the time provided by the Limitation Laws of Lagos State to commence such suit is 6 years.
3. That the Claimant, in paragraphs 6, 7 and 8 of her Statement of Claim, acknowledges the fact that the proceedings leading to this suit started in 1991.
4. That starting this suit outside the statutory period provided by the Limitation Laws of Lagos State robs this Honourable Court of powers and/or jurisdiction to entertain this suit.”
The Appellant, in response to the Respondent’s objection, filed a counter affidavit of twenty-two paragraphs deposed to by Alhaji Balogun Yesufa, the Appellant’s Attorney. The relevant paragraphs 6 to 20 thereof are hereunder set down thus:
“6. That in respect of paragraph 4, I state as follows: that the cause of action in this suit arose in 2005, when the claimant on return to Nigeria, after the loss of her husband, wrote the Defendants through her letter dated 13th September, 2005 (marked Exhibit A), which arose due to hostility of the Defendants who refused to state where the money was.
7. That further to the above, when the Defendant hostility continued, due to refusal to show the account details, she further wrote a letter of reminder to the Defendant through a letter dated 17th October, 2005 (Marked Exhibit B).
8. That I was told by the claimant, that after many years of waiting and several contacts with the defendant, and the Defendant bluntly refused to show the account details, she caused her solicitors, Bakare, Bakare and Partners to write the Defendant through a letter dated 14th September, 2009 (marked Exhibit c).
9. That both letters in paragraphs 6, 7, 8 were all demanding for information on the account transactions, but there was no positive response from the Defendant.
10. That it will clearly be stated that under the Law, that since the Claimant got aware of the fraud in 2005, and went to Court in 2009, that ordinarily it is within time, even when fraud is not pleaded.
11. That I was told by the Claimant who worked with Cocoa Producers Alliance, where she retired in 1991, that the management of Cocoa Producers Alliance mandated all the staffs to open account with the Defendant.
12. That the Claimant’s account No was 34800093S, when she retired from the services of the Cocoa Producers Alliance and it was in this account all her entitlements, salaries and other payments were all paid until the last day of her service.
13. That the Claimant’s stated that her retirement benefit of $25.096.61 (twenty-five thousand and ninety six dollars and sixty-one cents) was transferred as usual through the Cocoa Producers Alliance Account No. 35800018V to all the beneficiaries inclusive of herself. Letter of authority to transfer is dated 31st day of July, 1991 (marked Exhibit D).
14. That the Claimant stated the number in the above paragraph was mistakenly typed wrongfully, by the clerk of Cocoa Producers Alliance as account No 35800093S instead of Account No 34800093S although the name of the claimant was the same.
15. That I state that even if the Account No was typed wrongfully and the name is the same, by Banking Principles, the money could have been safely kept until the right information given or demanded from the customer, which was never done in this case.
16. That I was told by the claimant that the Defendant has refused to show the account details in this account No 34800093S despite several demands, and have not even presented it before this Court.
17. That the issue before this Court is fraud and breach to ethical rules of banking laws and procedure.
18. That the cause of action did not start in 1991 but in 2005, when the claimant came back to Nigeria and became aware of the fraud before going to Court in 2009.
19. That I was told by Godwin Ugwu that in view of this fraud, the claimant pleaded particulars of fraud, in paragraph 23(1-3) of the statement of claim before this Court dated 22nd day of October, 2015.
20. That this preliminary objection is an afterthought and a delay tactics to frustrate the claimant who is presently bedridden with cancer.”
Written addresses in support of and opposition to the preliminary objection were duly filed and exchanged by the respective parties’ Counsel. The objection was heard by the trial Court on the 18th of April, 2016. Consequently, in its considered Ruling delivered on the 28th of June, 2016, the trial Court upheld the Respondent’s preliminary objection, held that the Appellant’s cause of action is caught by the Limitation Laws of Lagos State and statute-barred having been instituted well over six years after it arose. The Appellant’s action was struck out and her claims therein were dismissed.
Dissatisfied with the trial Court’s Ruling, the Appellant has filed this appeal to this Court against it vide her Notice of Appeal dated the 8th of July, 2016 filed on the 11th of July, 2016. The grounds of appeal, which are unnumbered, appear to be two in number and these are contained in pages 224 to 225 of the Record of Appeal.
The parties’ briefs of argument were filed and exchanged by their respective counsel in deference to the rules of this Court.
The Appellant’s brief of argument dated the 4th of October, 2016 was filed on the 5th of October, 2016. In it, the Appellant’s Counsel, Godwin A. Ugwu Esq., formulated the following two issues for the determination of the appeal:
“1. Whether a Customer/Banker relationship can be caught up by Section 8 of Statute of Limitation Laws, when either party has not terminated the contract? (Distilled from ground 3 (ii).
2. Whether in a civil case, where a party pleads fraud, whether it will not outstay Limitation Law? (distilled from ground 3(i).”
On the other part, the Respondent’s brief of argument dated the 24th of August, 2017 was purportedly filed on the 6th of September, 2017 and deemed properly filed on the 11th of December, 2020.
The appeal was heard by this Court on the 11th of December, 2020. At the said hearing of the appeal, learned counsel for both parties adopted their respective briefs of argument in urging upon this Court to hold in favour of their varied positions in the appeal.
“Ex facie” the Respondent’s brief of argument, it can be observed that although a signature has been appended on same, the said signature cannot be ascribed to any of the two counsel whose names have been listed as the Respondent’s Solicitors who purportedly filed the said brief of argument for the Respondent. Furthermore, the seal of the relevant Legal Practitioner has not been affixed to the said brief. By the combined effects of the provisions of Sections 2(1) and 24 of the Legal Practitioners Act, Cap. 207, Laws of the Federation of Nigeria, 2004, only persons who have been called to the Nigerian Bar and whose names are on the Roll of Legal Practitioners in Nigeria can validly sign Court processes. See the cases of: (1) OYAMA V. AGIBE (2016) ALL FWLR (Pt. 840) p. 1274 at p. 1284, paras. B-C and (2) EWUKOYA V. BUHARI (2017) ALL FWLR (Pt.881) p. 1099 at p.1115, paras. D-G. It is now a well settled principle of law that where a Court process is required to be signed by a Legal Practitioner, such process should be signed by such Legal Practitioner. Failure to so do is a fundamental vice. See the case of: WEEKLY INSIGHT & COMMUNICATION NETWORK LTD. V. PETER (2019) LPELR – 46847 (CA), where this Court while reiterating the position of the Supreme Court in the case of: SLB CONSORTIUM LTD. V NNPC (2011) ALL FWLR (Pt. 583) p. 1902 at p. 1904 was emphatic that, once it cannot be said who signed a process, the process is substantially incurably bad in law, so much so that any rule of Court that may be designed to provide a remedy for same will be of no moment, as a procedural rule of Court cannot override the provisions of a substantive law.
Furthermore, Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners Act, Cap. 20, Laws of the Federation, 1990, provides that, a lawyer acting in his capacity as a Legal Practitioner shall not sign or file a legal document unless there is affixed on such a document or legal document, a seal and stamp approved by the Nigerian Bar Association.
It therefore follows that, for a legal document to be valid, it must both be sealed with the legal practitioner’s seal and signed by a litigant or his legal practitioner.
Consequent upon the foregoing, I hold that the Respondent’s Brief of Argument dated the 24th of August, 2017 purportedly filed on the 6th of September, 2017 having been signed by an unknown person, and without a valid seal of a Legal Practitioner, is incompetent and accordingly struck out by me for that reason. This means that the instant appeal is in essence undefended.
Generally, in an appeal where a Respondent did not file a brief of argument, such a Respondent would be deemed to have conceded the issues raised and submissions contained in an Appellant’s brief of argument.
However, failure to file the Respondent’s brief of argument in no way puts the Appellant at an advantage, since the judgment of the Court below is in favour of the Respondent. An Appellant therefore bears the onus to show that the judgment of the Court below was wrong. That is, an Appellant has to succeed on the merits of the issues argued in his brief of argument. Hence, an appellate Court still owes a duty to consider and determine whether or not the relevant appeal is sustainable – See the cases of:- (1) AKANBI V. ALATEDE (NIG.) LTD. (2000) 1 NWLR (Pt. 639) p. 125; (2) FATOKUN V. SOMADE (2003) 1 NWLR (Pt. 802) p. 431; (3) JOHN HOLT LTD V. OPUTA (1996) 9 NWLR (Pt. 470) p. 101; (4) SOFOLAHAN V. FOLAKAN (1999) 10 NWLR (Pt. 621) p. 86; (5) OKELOLA V. ADELEKE (2004) LPELR-2438 (SC); (6) ECHERE & ORS. V. EZIRIKE & ORS. (2006) LPELR-1000 (SC) and (7) CAMEROON AIRLINES V. OTUTUIZU (2011) 4 NWLR (Pt. 1238) p. 512. It is thus legally incumbent on this Court to still proceed to the determination of the instant appeal on the merits based on the processes filed by the Appellant herein.
I have perused the two issues identified for determination in the Appellant’s brief and hold that they are collapsible. Indeed, I believe that the vexed question for resolution in the appeal is: whether or not the action filed by the Appellant at the trial Court is statute barred? I will therefore be adopting my foregoing identified poser in resolving the appeal. I am fortified in this resolve because a Court is entitled to reframe or even reformulate issues for determination of an appeal for the purpose of narrowing down issues in controversy in the interest of clarity and brevity, as long as the reformulated issues are anchored on the grounds of appeal as identified in the notice of appeal. What is more, an appellate Court is generally not under a regimental duty to take all the issues as canvassed by the parties in an appeal. See the cases of: (1) MUSA SHA (Jnr.) & ANOR V. DA RAY KWAN & ORS. (2000) 5 SC p.178; (2) UNITY BANK PLC & ANOR V. BOUARI (2008) 2 SCM p. 193 at p.210; and (3) OKECHUKWU V. I.N.E.C. (2014) 17 NWLR (Pt.1436) p.213 at p.287, paras. D-E.
THE SUMMARY OF THE SUBMISSIONS OF THE APPELLANT’S COUNSEL
The learned Counsel for the Appellant opined that the law is trite that, where the wrong complained of as in the instant matter is a continuous one, cause of action cannot arise until the abatement of the wrong. On this stance, he referred to the cases of: (1.) AREMO II Vs. ADEKANYE (2004) 7 SCNJ p.218; (2.) ADESOLA Vs. ABIDOYE (2001) 2 WRN p.39; (3.) ARIORI Vs. ELEMO (2001) 36 WRN p. 94 and (4.) SHITTA-BEY Vs. A.G. FED. (1998) 7 SCNJ p. 224.
He submitted that although there is a contract between the parties, same has not been determined or severed, as the Respondent has failed to discharge its duty and responsibility towards the Appellant. In other words, the parties are still bound by the terms of the said contract which they both freely entered into. He relied on this position on the case of: ADIMORA Vs. AJUFO (1988) 6 SCNJ p. 18.
It was proposed for the Appellant that her two accounts Nos. 34800093S and 348011017 with the Respondent are still alive. For the Respondent by its letter to the Appellant dated the 23rd of September, 2005 admitted that there is a balance of one hundred and sixty-eight dollars and sixty-nine cents in the above stated second account of the Appellant, in this regard reference was made to page 133 of the Record of Appeal. Hence, the grouse of the Appellant is about the first account into which her retirement benefit was lodged in 1991, which account the Respondent has denied ever existed or without substantiation is said to have been closed by the Appellant.
In the circumstances, the contractual relationship between the parties being alive, the cause of action cannot be affected by Limitation Law. In this wise, he referred to the case of: JACOB ABOYEJI Vs ALHAJI YAKUBU LATEJU (2012) 3 NWLR (Pt. 1288) p. 434 at p. 451.
Furthermore, the learned Counsel relying on the case of: ARAKA Vs EJEAGWU (2000) 15 NWLR (Pt. 692) at p. 684 at p. 718, submitted that, where the limitation is in relation to an action in tort, the provisions of statute of limitation can be waived. He equally opined that, there being an imputation of fraud which the Respondent has failed to react to in its pleadings before the trial Court, the Respondent cannot benefit under the statute of limitation, as fraud debunks any limitation.
This Court was urged by Counsel to allow the appeal, set aside the Ruling of the trial Court, hold that the suit of the Appellant is not caught by the Limitation Law and order that, the suit be re-assigned to another Judge of the trial Court for trial on the merits.
RESOLUTION OF THE APPEAL
On the germane poser of: Whether the Appellant’s action before the trial Court is caught by the Limitation Laws of Lagos State, the proper path to resolving same is to examine the Appellant’s Writ of Summons and the facts averred in her Statement of Claim, in order to ascertain when her cause of action accrued and compare same to the date on which her action was instituted. See the cases of: (1) EGBE V. ADEFARASIN (1987) 1 NWLR (Pt.47) p1; (2) U.B.N. V. OKI (1999) 8 NWLR (Pt.614) p.244; (3) WILLIAMS V. WILLIAMS (2008) 10 NWLR (Pt.1095) p.364; and (4) IBRAHIM V. LAWAL (2015) LPELR- 24736 (SC).
However, before embarking on the said computation and comparison it is pertinent to state at this juncture the definition of the phrase “cause of action”. In the “locus classicus” case of SAVAGE & ORS. V. UWAECHIA (1972) 3 SC (Reprint) p. 206, the Supreme Court per Fatayi-Williams, JSC, (of blessed memory) had the following to say:
“A cause of action is defined in Stroud’s Judicial Dictionary as, the entire set of circumstances giving rise to an enforceable claim. To our mind, it is, in effect, the fact or combination of facts which give rise to a right to sue and it consists of two elements – the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage… it is every fact that it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court…..” (The underlining is supplied by me for emphasis)
See also the cases of: (1) YUSUF V. COOPERATIVE BANK LTD (1994) 7 NWLR (Pt.359) p. 676; (2) IKINE & ORS V. EDJERODE & ORS (2001) 18 NWLR (Pt. 745) p.446; (3) A.G. OF LAGOS STATE V. EKO HOTELS LTD & ANOR (2006) 9 SC p.46; (4) ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) 4 SC p.167 and (5) YARE V. N.S.W. & I.C. (2013) 12 NWLR (Pt. 1367) p.173.
From the above stated definition, a cause of action would accrue from the date on which the factual situation gave the Appellant the right to the reliefs sought in Paragraph 24.(1a) and (1b) of the Statement of Claim, particularly the relief contained in Paragraph 24.(1a), which is the bone of contention between the parties. The said relief is based on the factual premise averred in Paragraphs 6 to 9 contained in pages 114 to 115 of the Record of Appeal. I have equally reiterated earlier on above in this judgment those facts under the background facts of this matter.
Before proceeding with the resolution of the period of limitation of the action of the Appellant, it is apposite to state at this point that, the Appellant’s Counsel has strained his argument too much, in my view, about the relationship of the parties herein. The trial Court at page 2 of its judgment contained in page 219 of the Record of Appeal held that the relationship of the parties “would fall into actions on simple contact
I have scrutinized the entire averments in all the paragraphs of the Statement of Claim of the Appellant contained in pages 114 to 118 of the Record of Appeal. Notwithstanding the Appellant’s bid to sentimentalise the circumstances that culminated in her action, there is no question in my mind that, in the first instance, the averments in paragraphs 6 to 9 formed the factual situation based on which the Appellant sought the reliefs in Paragraph 24(1a) of her Statement of Claim, to the effect that, her retirement benefit of twenty-five thousand, ninety-six dollars and sixty-one cents was paid, by her former employer Cocoa Producers Alliance, to her account with the Respondent on the 8th of August, 1991. To this end, the trial Court found and held as follows:
“Time begins to run when there is in existence a person which can sue and one who can be sued, and all facts have happened which are material to be proved to entitle the Claimant to succeed. The Claimant’s cause of action must be taken to have accrued as soon as the money directed to be paid into her account was not paid. According to her averments, it took her four years to discover that the said sum was not paid. The position of the law is that knowledge of the Claimant, and by implication, of the accrual of the cause of action is immaterial and it is immaterial that a party was absent from jurisdiction or that there was no Court within the jurisdiction to entertain the suit.
Apart from fraudulent concealment of right of action, which itself furnishes a cause of action, knowledge cannot be said to be relevant. Since it does not take any considerable length of time for instruction to a bank to make payment into a customer’s account to be carried out, the Claimant’s cause of action must be held to have arisen in 1991 after the instruction had been given by her employer to the bank.” (The underlining is supplied by me for emphasis)
The above reproduced line of reasoning and conclusion of the trial Court are unassailable and I am in complete agreement with same.
Now on the resolution of the issue whether or not a suit is statute barred, the law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation, it extinguishes the right to action but not the cause of action itself, which is rendered stale and unenforceable in a Court of law. The rationale for limitation of time for the commencement of actions would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost, or due to unavailability of materials evidence or death, vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timeously within the period allowed under the relevant applicable limitation law. See the cases of: (1) P.N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) p. 900. (2) Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) p.398 at p. 416; (3) Nigerian Ports Authority Plc v. Lotus Plastics Ltd & Anor. (2005) 19 NWLR (Pt.959) p.158; (4) Ikosi Industries Ltd. V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA) and (5) Buremoh v. Akande (2017) LPELR – 41565 (SC).
In the case of: Egbe V. Adefarasin (1987) 2 NWLR (Pt.47) p.1, the Supreme Court had considered and simplified the duty of the Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply 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 with the 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.” (The underlining is supplied by me for emphasis)
In Lagos State of Nigeria, actions founded on simple contracts, quasi-contracts and for accounts shall not be brought more than six years from the commencement of such actions. In other words, a Claimant in such actions must file his suit within six years from the date the cause of action accrued, that is six years from the date of the occurrence of the action complained of in his suit. See Section 8(1) and (5) of the Limitation Law of Lagos State, 2003, which provides as follows:
“8. Action barred after certain periods of six years
(1) The following action shall not be brought after the expiration of six years from the date which the cause of action accrued-
(a) Actions founded on simple contract;
(b) Actions founded on quasi-contract;
(c) …
(5) An action for an account shall not be brought in respect of any matter which arose more than six years from the commencement of the action.”
The law is fairly settled that, the period of limitation begins to run from the day after the date on which the cause of action accrued. See the cases of: (1) ADESULE V. MAYOWA (2011) 13 NWLR (Pt. 1263) p.135 and (2) KANO STATE HOUSE OF ASSEMBLY & ORS. V. UMAR (2014) LPELR – 24008 (CA).
Sequel to the foregoing stated statute and case laws, in the instant matter, the action of the Appellant founded on a contract and for the operation of an action as rightly subscribed to by the Appellant, must ordinarily be commenced within six years of its accrual, that is within six years from 1991, when her said retirement benefit was paid into her account with the Respondent by her former employer. The original initiating Writ of Summons and Statement of Claim of the Appellant were issued on the 17th of November, 2009 – see pages 1 to 7 of the Record of Appeal, a period of about eighteen years after the cause of action accrued. Clearly this time is beyond the period specified by the Limitation Law of Lagos State, hence, the action is statute barred and the said initiating process incurably incompetent even on arrival at the Registry of the trial Court.
The Appellant further pleaded an allegation of fraud against the Respondent in the operation of her accounts in Paragraphs 9 to 11(d) with the particulars of the alleged fraud spelt out in Paragraph 23 of the Statement of Claim. I have earlier on in this judgment reproduced the said particulars of the alleged fraud. According to the Appellant’s averments in Paragraphs 11(a) and 11(b), the alleged fraud was discovered by her sometime after the demise of her husband in June, 1995. On this stance, the trial Court held as follows:
“Assuming that there was any fraud on the part of the bank or any of its officers, that fraud must be held to have been discovered in 1995 when the Claimant realized that the money was not in her account …”
It is equally impossible for me to fault the above stated finding of the trial Court. Ordinarily, therefore in law, the cause of action of the Appellant in respect of the relief contained in Paragraph 24(1a) of her Statement of Claim accrued the day after the 8th of August, 1991 when her said retirement benefit was paid into her account with the Respondent by her former employer. However, since there is an imputation of fraud by the Appellant in the present case, the period of limitation shall not begin to run until the claimant has discovered the fraud or could with reasonable diligence have discovered the fraud. See Section 58(1) (a) and (b) of the Limitation Law of Lagos State (supra) which provides thus:
“58 (1) Where, in the case of an action for which a period of limitation is fixed by this Law, either-
(a) the action is based on the fraud of the defendant or his agent or any person through whom he claims or his agent: or
(b) the right of action is concealed by the fraud of any such person;
the period of limitation shall not begin to run until the Plaintiff has discovered the fraud or could with reasonable diligence have discovered it”.
From the averments of the Appellant in Paragraphs 11(b); 11(c) and 11(d) of the Statement of Claim at page 115 of the Record of Appeal, it became crystal clear, without any possibility of concealment to the Appellant in 1995 that, there was no trace of her retirement benefit in her account with the Respondent. That was when the alleged fraud was deemed to have been discovered by the Appellant. It follows therefore that by the provisions of Section 58(1), the period of limitation of an action based on the alleged fraud began to run from 1995. That is, the six year limitation fixed by Section 8(1) and (5) began to run from 1995. The resultant effect is thence that, the right of action of the Appellant had become extinguished by the time her suit was filed about fourteen years outside the time prescribed by law.
Consequent upon the foregoing analysis, from any of the angles of the factual presentations of the circumstances which gave rise to the Appellant’s right to sue the Respondent, the action of the Appellant against the Respondent not being one in perpetuity but limited by law, was filed way out of time. The action, the subject of this appeal is statute barred and unenforceable. The law is ironclad that, where an action is statute barred, the Court will be devoid of jurisdiction to entertain it.
In sum, the sole issue formulated by me for the determination of the appeal is resolved against the Appellant and in favour of the Respondent. I therefore dismiss the appeal for being bereft of merits.
Consequentially, the Ruling of trial Court rendered on the 28th of June, 2016 in this matter is accordingly affirmed in its entirety. The Appellant’s Suit NO. LD/1937/2009 invalidly filed before the trial Court on the 17th of November, 2009 is herewith dismissed for being statute barred.
The parties herein are hereby ordered to bear the costs incurred by them respectively in the course of the prosecution and defence of this appeal.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother, Oyebisi F. Omoleye, JCA and I am in agreement that the appeal lacks merit. Undoubtedly, the Appellant’s action was statute barred as found by the Court below.
For the elaborate reasons contained in the lead judgment, I too dismiss the appeal.
I affirm the ruling of the Court below.
I abide by all the orders in the lead judgment including the order as to costs.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment just delivered by my learned Brother, OYEBISI F. OMOLELYE- PJ, and I am in agreement with the reasoning and conclusions reached in disallowing the Appeal as lacking in merit. Consequently, the Ruling of the trial Court delivered on the 28th of June, 2016 in Suit No: LD/1937/2009 is hereby affirmed while the Appellant’s suit is dismissed for being statute barred. I have nothing else to add to a well written judgment of my learned Brother. I subscribe to all other consequential orders made thereto.
Appearances:
Mr. O. M. Ojumah For Appellant(s)
Mr. M. O. Muomalu For Respondent(s)
