Nze Bernard Chigbu V Tonimas Nigeria Limited & Anor (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

At the Mbano/Etiti High Court of Imo State, the appellant as the plaintiff claimed against the respondents (as the defendants) the following reliefs:

“(a) Declaration that the purported dismissal of the plaintiff by the defendants, as contained in a letter dated 17th July, 1991, as a dealer of the defendants products is unlawful and wrongful.

(b) N20,000,000.00 (Twenty Million Naira) damages for the said unlawful and wrongful dismissal.

(c) An order for the return of the plaintiff’s air conditioner, deep freezer, surface tank, drums, furniture, spare computer, rotary pump, drum hangers, wash-hand basin which the defendants have wrongfully detained at Ehime Mbano. The defendants have in spite of plaintiff’s repeated demands refused to return the said things and have wrongfully detained and still detains same or in default pay the sum of N589,750.00 (Five Hundred and Eighty Nine Thousand, Seven Hundred and Fifty Naira) being the value of the said things.

(d) N1,000.00 (One Thousand Naira) per day for loss of use as a result of the wrongful detention of the said things from July, 1991 until the said things are returned to the plaintiff or their value paid.

(e) An account of the commission due to the plaintiff in respect of the said dealership under an agreement dated the 28th day of July, 1986 (and subsequent amendments thereto) made between the first defendant and the plaintiff and an order for payment for by the first defendant to the plaintiff of any sum found due from the first defendant to the plaintiff upon taking such account.”

The plaintiff later brought a follow-up application pursuant to Order 18 of the Imo State High Court (Civil Procedure) Rules,1988 praying:

“that an account may be taken of moneys and or commission due or belonging to the plaintiff from the defendants or received by any other person on behalf or account of the defendants in respect of and under dealership agreement dated the 28th day of July, 1986 (and subsequent variations thereto) made between the plaintiff and first defendant (and in particular the period 1990 – 1991) and that all necessary inquiries and directions to be taken and made and that provisions be made for the costs of this application.”

An affidavit was filed in support of the application. The plaintiff in paragraphs 10 – 12 of the affidavit deposed thus:

“10. That the defendants have not paid or accounted to me for all the commission due to me in respect of the sales made particularly between 1990 and 1991.

11. That by a letter dated 17/7/91 from the defendants’ Solicitor to me the defendants purportedly dismissed me as the 1st defendant’s dealer without final account. Copy of the said letter is annexed herewith and marked exhibit ‘B’
12. That I have repeatedly requested the defendants to render account in respect of the matters mentioned above but the defendants consistently refused or neglected (sic) to do so.”

The defendants, through an employee of the 1st defendant filed a counter-affidavit. Paragraphs 6 and 7 of the counter affidavit read thus:

“6. That the cause of action endorsed on the said undated writ of summons is said to have arisen on the 17th day of July, 1991, and the writ of summons was filed in this Court on the 23rd day of December, 1996, a period of 5 years and 6 months after the cause of action had accrued.

7. That the plaintiff’s action is clearly statute-barred-debts, and the reliefs endorsed on the suit are all extinguished by statute namely; The Limitation Edict of 1994 of Imo State.”

The defendants later brought an application praying that the plaintiff’s suit be dismissed or struck out on the ground that the suit was statute barred. It was contended that the trial court had no jurisdiction to entertain the suit. The trial Judge (Coram, Opara J.) heard arguments on the application and in his ruling on 4/2/98 held that he had jurisdiction to hear the matter. The defendants’ objection was accordingly dismissed. Dissatisfied, the defendants brought an appeal before the Court of Appeal, Port-Harcourt Division (hereinafter referred to as ‘the court below’). The court below on 29/2/98, in a unanimous judgment allowed the appeal. It held that the plaintiff’s suit was statute barred. The suit was accordingly struck out. The plaintiff has come on a final appeal before this Court. The appeal raises one solitary issue, which is whether the Imo State Limitation Edict of 1994 or the English Limitation Act of 1623 applied to the suit.