Alhaji S. Anisere Ent. Nigeria V. Wema Bank (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

On the 18th day of December, 2006 Honourable Justice J. O. Ige dismissed the case of the Appellant as Plaintiff in favour of the Respondent as Defendant. The parties shall hereafter be referred to simply as Appellant and Respondent respectively.

The Appellant as Plaintiff before the High Court of Justice of Oyo State sought the following reliefs in his Statement of Claim:-

1. A declaration that the failure/refusal of the defendant to release the title deeds which the Plaintiff deposited with the defendant in 1985 when it was granted credit facilities by the defendant despite the fact that the Plaintiff is no longer indebted to the defendant having paid the credit facilities since April, 1994 is illegal, null wrongful and a breach of contractual agreement between the Plaintiff and the Defendant.
2. The sum of N1,000,000.00 (One Million Naira Only) being the damages from wrongful detention off the title deeds of the Plaintiff in respect of the property situate, lying and being at E7/661 Onibudo Street Agugu Area, Ibadan despite the fact that the Plaintiff is no longer indebted to the defendant having paid back the facility since April, 1994 and despite repeated demands the Defendant has refused/neglected to return the said document to the Plaintiff.
3. An order of this Honourable Court directing the Defendant to release the title deeds in respect of the property situate, lying and being at E7/661 Onibudo Street, Agugu Area, Ibadan.
4. ALTERNATIVELY the Plaintiff claims the sum of N2,000,000.00 (Two Million Naira Only) being damages for the loss of the title Deeds in respect of the property situate, lying and being at E7/661 Onibudo Street, Agugu Area, Ibadan the Defendant having failed to return same to the Plaintiff despite repeated demands. (pg 1B of the records for this appeal, transmitted on 09/04/09).

Pleadings were filed and exchanged by the Parties. The Respondent however raised a preliminary point of law that Appellant’s case is caught up by the Limitation Law of Oyo State and urged the Court to dismiss the case in limine. The Respondent then filed a motion on notice under Order 24 Rules 2 and 3 of the High Court (Civil Procedure) Rule, 1988 for an order setting down for hearing the preliminary issues or point of law raised in paragraphs 7 and 8 of the Statement of Defence.

The trial Court heard arguments and delivered a considered ruling on 19th December, 2006 dismissing the suit of the Appellant as being statute barred.

The Appellant filed a notice of appeal containing 5 grounds against the said decision. A sole issue was raised for determination. The issue is tied to grounds 1, 3 and 4, while grounds 5 and 6 were abandoned. Counsel for the Appellant Kolawole Famakinwa Esq., prepared the Appellant’s brief of argument dated 2nd June, 2009 and filed 3rd June, 2009 but deemed filed on the 18th June, 2009. The Respondent Counsel Ayokunle Elemo Esq., also prepared the Respondent’s brief of argument dated 16th July, 2009 and filed 17th July, 2009 and he relied on the issue distilled by the Appellant.

The sole issue is as follows:-

Considering the statement of claim, the relevant law, fact and circumstances of this case, when was demand made by the Appellant and was the suit statute barred?

The learned Counsel for the Appellant submits that in determining when time starts to run for the purpose of limitation law in Nigeria, the statement of claim, the law, facts and circumstances of the case must be considered. On the authority of Amusan v. Ogundeji (2001) 6 NWLR (Pt.710) 647 @ 659, the learned Counsel states that the statement of claim and all other factors must be considered upon admissible evidence before the limitation law can be applied.

The learned counsel submits further that detinue is a wrongful detention of another person’s property and the action accrues following the Plaintiffs demand. The case of Chigbue vs. Tonimas Ltd (2006) 9 NWLR Pt 984, 189 @ 210 is cited to buttress this point.

The Appellant maintains that in the instant case, no formal demand was made until October, 2003 and that the Respondent refused to surrender the Appellant’s title documents. It is the contention of the learned Counsel, that even when there is right/cause of action, it does not arise, until it has crystallized. That in the instant case, same crystallized in 1994 when the Appellant met the demand of the Respondent, the verbal demand made thereafter for: his documents does not amount to formal demand in law because the cause has not arisen, even though it had crystallized, as verbal demand cannot be the basis for an action in detinue in law.

Submits that by Section 4(1) of 1978, limitation law to the actions founded on simple contract or on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued, that in the instant case, formal demand should be a priority and same should be backed up by a letter of demand/notice, which is more reliable than abstracts/presumptions. It follows that demand in the instant case was made on 29th October, 2003, when a formal letter creating a cause of action was written. The learned Counsel cited the Supreme Court case of Civil Design Construction Nig. Ltd vs. Scoa Nig. Ltd (2007) 6 NWLR (Pt. 1030) @ 366 to the effect that documentary evidence is more reliable than oral evidence. Appellant further submits that a demand letter is a prerequisite for filing a law suit, therefore the letter dated 29/10/2003 passed that test. (See also Alhaji Muktari vs. LBN PLC. (2006) 2 NWLR (Pt 964) 2888 @ 297 – 298.) That it was wrong for the trial Court to rule that “it is right to assume that when the Plaintiff approaches the finance company for loan to finance the contract for the supply of cement, he had demanded informally in 1994 for the return of his title deeds and specifically or formally on 29/10/2003”. There was no proof or evidence of demand concrete enough to justify such finding by the court. That the finding is against the spirit of justice as stated in Chigbue vs. Tonimas Ltd (supra), Zenon Petroleum Cases and W. A. Oil Fields Service Ltd vs. UAC (2000) 13 NWLR (Pt. 683).

The learned Counsel for the Respondent dwells on the payment by the Appellant, of the sum of N1,000.00 by Wema Bank crossed chegue No. 029064 of the 29th September, 1994 and submits that those facts constitute admission against interest and that by these facts, the Appellants admits that the cause of action arose in 1994 when he paid the sum made condition precedent for the release of his title documents.

As to when a cause of action accrues in a claim in detinue, the Respondent maintains that two factors must be present and these are: demand for the chattel by the owner and the refusal by the person wrongfully detaining the chattel. He cites the case of Amusan vs. Obideyi (2001) 6 NWLR (Pt 710) 647 @ 657, Chigbue vs. Tonimas Ltd (2006) 9 NWLR (Pt. 984) 189 @ 210. Submits that the Appellant having paid the requested N1,000.00 and followed by several verbal demands, it can be safely said that there is a demand by the Appellant in the instant case, the learned trial Judge was therefore right. Counsel maintains that the cause of action arose based in 1994 whether the demand was oral or otherwise, coupled with the payment of N1,000.00 made for the return of title documents.