Home Glass Limited V. Linkage Assurance Plc (2016)

LawGlobal-Hub Lead Judgment Report

RITA NOSAKHARE PEMU, J.C.A. 

This is an Appeal against the Judgment of Hon. Justice I. B. Gafai sitting at the Federal High Court Awka, which was delivered on the 20th of May 2014 in Suit No. FHC/AWK/CS/140/2005.
In the lower Court, the Appellant’s case was dismissed as being statute barred.

SYNOPSIS OF FACTS
The Suit, the subject matter of this Appeal, was instituted by Writ of Summons filed on the 22nd of July 2005. – Page 1 of the Record of Appeal.

In Paragraph 14 of the Further amended Statement of Claim filed on the 12th of May 2011, the Appellants (Plaintiff at the lower Court) claims against the Respondent (Defendant at the lower Court) the following –
(a) “The Sum of N5,819,580.00 (Five Million, Eight Hundred and Nineteen Thousand, Five Hundred and Eighty Naira) being money due and unpaid arising from the insurance contract.
(b) N10,000,000.00 (Ten Million Naira) being general damages for breach of Contract”.
Pages 85 – 90 of the Record of Appeal.

On the 17th of May 2012, the Defendant/Applicant (Respondent in the present Appeal), filed a motion on

1

notice, seeking an order of the lower Court, dismissing the Suit, on the ground that the claim against the representative of the Shipping Company being statute barred, the Court lacks jurisdiction to entertain the Suit – pages 114-117 of the Record of Appeal.

In the affidavit in support of the application, the Defendants/Applicants had deposed thus in Paragraphs 3, 4, 5 and 6 –
PARAGRAGH 3 “That on 13/3/07, following an application by the plaintiff, one Supermaritime Nig. Ltd the representatives of M.V. Eurolady, shippers of the purported missing goods, the subject matter of this suit, was joined as a co-defendant in this suit.
PARAGRAPH 4
Subsequently, the said Supermaritime Nig. Ltd, on 30/5/07, brought an application against the plaintiff seeking an order of Court dismissing the suit against it for being statute barred.
PARAGRAPH 5
The Honourable Court, per Allagoa J. In a well considered ruling on 4/4/08, dismissed the action against the said Supermaritime Nig. Ltd on the ground that the action was time barred against Supermaritime Nig. Ltd, who was the representative to the shippers of the goods.

2

PARAGRAPH 6
The action having been dismissed against the principal party to this suit, M.V. Eurolady or its representative, Supermaritime Nig. Ltd, the present suit cannot stand against the defendant, as the Court’s jurisdiction to entertain the said suit had been eroded”.

The Appellant/Respondent filed a Counter affidavit in opposition on the 25th of May 2012 – Pages 125-126 of the Record of Appeal.

They admitted the facts in Paragraphs 3, 4 and 5 but denied the fact in Paragraph 6 thus in their Paragraph 4 –
PARAGRAPH 4
“That the Contract in respect of Cargo Marine Insurance Policy No. MAC/ON/D/00001/99 dated 22/9/99 upon which this suit was predicated was between the plaintiff/respondent and the defendant/applicant (as Central Insurance Company Ltd). The said Cargo Marine Insurance Policy No. MAC/ON/D/00001/99 dated 22/9/99 is hereby attached and marked Exhibit “A”.
PARAGRAPH 5
That Supermaritime (Nig.) Ltd is the Nigerian representative of the shipping company.
PARAGRAPH 6
That neither the shipping company nor its representative Supermaritime (Nig.) Ltd was party to the said Insurance Contract.

3

PARAGRAPH 7
That the Cargo Marine Insurance Policy No. MAC/ON/D/00001/99 dated 22/9/99 specifically stated that “This Insurance is subject to Nigerian Jurisdiction”.
PARAGRAPH 8
That the dismissal of the plaintiff’s suit against Supermaritime (Nig.) Ltd does not affect the jurisdiction of the Court to entertain this suit”.

In essence, the Appellant (Respondent’s) case is that the dismissal of the Plaintiff’s suit against Supermaritime (Nig.) Ltd does not affect the jurisdiction of the Court to entertain Suit No. FHC/AWK/CS/140/2005.

In a Ruling delivered on the 20th of May 2014, the Suit was dismissed, as being statute barred.

The Appellant, is dissatisfied with the decision, and is desirous of appealing it.

Pursuant to the Practice Direction of this Honourable Court, he filed a Notice of Appeal on the 20th of March 2015, encapsulating five (5) Grounds of Appeal. (Not paginated on the Record of Appeal).

The Respondent had filed a Notice of Preliminary Objection on the 16th April 2015, which he argued in Paragraph 4 of his brief of Argument filed on same date.

?The Appellant filed his brief of Argument on the 24th of March

4

2015. It is settled by Onyechi Ononye, Esq.

The Respondent filed his brief of Argument on the 16th of April 2015. It is settled by L.C. Alinnor (Jnr) Esq.

The Appellant filed a Reply brief of Argument on the 29th of April 2015.

The Appellant had distilled three (3) Issues for determination from the Grounds of Appeal in his brief of Argument. They are
-1. “WHETHER THE APPELLANT’S SUIT AGAINST THE RESPONDENT IS STATUTE BARRED SAME BEING HINGED ON SIMPLE CONTRACT OF INSURANCE BETWEEN THE APPELLANT AND THE RESPONDENT.
2. WHETHER THE LEARNED TRIAL JUDGE IN HIS RULING OF 20TH MAY, 2014 RIGHTLY RELIED SOLELY ON THE RULING OF ALAGOA J. DELIVERED ON 1/2/2008 IN ARRIVING AT HIS DECISION THAT THE APPELLANT’S SUIT AGAINST THE RESPONDENT IS STATUTE BARRED AND THUS DISMISSED THE APPELLANT’S SUIT.
3. WHETHER THE LEARNED TRIAL JUDGE THOROUGHLY EVALUATED THE PROCESSES FILED AND ISSUES RAISED IN RESPECT OF THE SUIT BEFORE REACHING THE CONCLUSION THAT THE APPELLANT’S SUIT AGAINST THE RESPONDENT IS STATUTE BARRED.”

The Respondent at Page 4 of his brief of Argument distilled two (2) Issues for determination from the Grounds of Appeal.

5

They are –
1. “Whether, in the light of the grounds of the Preliminary Objection, as stated above, the present notice of appeal is competent and sustainable in Law.
2. If the answer to issue 1 above is in the negative, whether the learned trial judge was right in holding that the appellant’s case against the respondent was statute barred as well”.

On the 19th of April 2016, learned Counsel for the parties, adopted their respective briefs of Argument.

Before I proceed to consider the merits in this Appeal, I deem it necessary to consider the Notice of Preliminary Objection filed on the 18th of April 2015 and incorporated in the Respondents brief of Argument at its Pages 4 – 6 (Paragraph 4 thereof).

It is that whether the appeals having been previously withdrawn vide a Notice of withdrawal dated 19/2/15 cannot be heard subsequently.

In Paragraph 3 (d) in support of the Notice of Preliminary Objection, the Preliminary Objection deposed thus by one Ijeoma Allinnor (Mrs.) Legal Practitioner in the Law firm of Alinnor, Alinnor & Co. That –
PARAGRAPH 3
“However, on 19/2/15, the appellant filed a Notice of

6

Withdrawal of the Appeal, whereupon the Honourable Appellate Court, on 19/3/15, following an oral application by the appellant for a withdrawal of the Appeal against the aforesaid judgment which was in favour of the respondent, the appeal was withdrawn and struck out.
A copy of the said Notice of withdrawal is attached herewith as “Exhibit A”.

Curiously, the said Exhibit “A” – Notice of withdrawal, upon a careful perusal of same by me, has the following features –
1) “The parties thereon are stated as HOME GLASS LIMITED (as Appellant) and CENTRAL INSURANCE LIMITED (as Respondent).
2) The Appeal number thereon is CA/E/516/2014 and not CA/E/83/2015”.
Indeed. The notice of withdrawal did not indicate what Appeal No. he is withdrawing.

Although the parties stated on the Notice of Withdrawal are the same as on the Writ of summons, there is nothing to show in the Record that the names of the parties have been amended or any of the parties struck out for that matter.

I am of the view that the appeal withdrawn as Exhibit “A”, annexed to the Notice of Withdrawal is not the same as the present Appeal. Therefore the present

7

Appeal has not been previously withdrawn as shown on the Record of Appeal.
Consequently the objection is misconceived and same is hereby overruled.

THE APPEAL
A Painstaking look at the Issues for determination proffered by the Respective parties, it seems to me that apart from the issue of withdrawal of Notice of appeal proffered by the Respondent in his notice of Preliminary Objection, the bane of the parties arguments have to do with the Issue of the Suit being incompetent, as being statute barred. It would be correct to say that Issue 2 of the Respondents Issues for determination is an adoption of the Appellants Issues for determination.
I shall consider this appeal based on the appellants issues for determination.

ISSUE NO. 1
The Appellant has argued that the lower Court erred by basing its Ruling on the reasoning proffered by Allagoa J. delivered on the 1st of February 2008, in respect of a motion filed on the 30th of May 2007. Thereby declaring the suit statute barred.

?He submits that the Appellant’s Suit is based on Contract of Insurance between the Appellant and the Respondent. That it has a limitation

8

period of six years like any other simple Contract.

He submits that the said Contract is CARGO MARINE INSURANCE POLICY No. MAC/ON/D/00001/99, entered into on the 22nd of September, 1999. This can be seen at the Schedule part of the policy, which is Exhibit “A” attached to the Counter affidavit of the Appellant.

He submits that he has no claim against Supermaritime Nig. Ltd.
That as seen from the Appellants’ Amended Statement of Claim, the cause of action against the Respondents arose on the 24th of April 2001, when it became clear from the Police Report that the Appellant’s goods were not going to be delivered.

That the Appellants instituted his claim on the 22nd of July 2005. – a period of four years and three months, from the time when the cause of action arose.

?That assuming, but without conceding that the cause of action arose in the 22nd of September 1999, which is the date the contract of Insurance was entered into, the action cannot still be statute barred. This is because from 22nd of September 1999 (when the Contract was entered into) to 27th July 2005, when the suit was instituted is 5 years 10 months – a

9

period of less than six years.

He submits that the lower Court did not consider the Writ of Summons and Amended Statement of Claim before arriving at the conclusion that the Appellants’ claim was statute barred. Indeed that he never referred to the Writ of Summons or amended Statement of Claim in his Ruling.

ISSUE NO. 2
Simply put, the Appellant submits that the learned trial Judge was wrong to have in his Ruling of 20th May 2014, wrongly relied solely on the Ruling of Allagoa J. delivered on the 1st of February 2008.

He submits that the learned trial Judge ought not to have determined whether the Appellants’ suit against the Respondent is Statute Barred, based on Carriage of Goods by Sea Act and Article 3 Rule 6 of Hope Rules when the Contract of Insurance between the Appellant and the Respondent is not governed by any of these laws, but by Marine Insurance Act And the limitation of action under simple contract is 6 years.

ISSUE NO. 3
It is the Appellants contention that the lower Court failed to thoroughly evaluate the processes filed, and issues raised in respect of the Suit, before reaching a conclusion that the

10

appellants suit is statute barred.

He submits that the lower Court has the power to look at all the Court processes before making its findings. And that the essence of the front loaded documents was for the Court to look at the documents carefully, in order to determine if there was anything left for the Court to deal with, But that the lower Court failed to do this. That the frontloaded documents show that there was a Simple Contract of Insurance between the Plaintiff and Central Insurance Company. That the goods, the subject matter of the Contract of Insurance was carried by Sea and the goods got lost eventually. The Suit was instituted to recover the Insurance sum, and for damages arising from the Simple Contract of Insurance.

He submits that the cause of action against the respondent and that of the Supermaritime Nig. Ltd who were the agent of the Shipping Company are not the same.

He further submits that the learned trial Judge did not evaluate the relevant documents before him before arriving at the conclusion that the appellants’ suit against the Respondent was statute barred.

ISSUE NO 1
In IFS INV. LTD v. BRENAL

11

LINE LTD (2010) 19 NWLR. (Pt. 1224) 495 at 534, the process for determining whether a claim or counter claim is statute barred was set out by the Supreme Court. It is thus –
1) “Firstly by examining the limitation period provided in the enabling Statute to see the period stipulated for the claim before it.
2) Secondly, the trial Court determines when the cause of action arose by examining the Writ of Summons and Statute of Claim.
3) Thirdly, when the trial Court is satisfied as to when the claimant’s cause of action arose, the trial Court compares that date with the date the Writ of Summons was filed. If the time from when the cause of action arose to when the Writ of summons was filed is beyond the period allowed in the enabling Statute, then the suit is Statute barred”.

The Appellant alleged that the suit is predicted on Contract of Insurance between the Appellant and the Respondent on record. That this simple contract by statute has a limitation period of 6 years.

Exhibit “A”, attached to the counter affidavit of the Plaintiff/Respondent at the lower Court was filed on the 28th of May 2012. – Pages 125 – 143 of the Record of Appeal.

12

The contract of Cargo Marine Insurance Policy No. MAC/ON/D/00001/99 dated 22/9/99 was between the Plaintiff/Respondent and the Defendant/Appellant (as Central Insurance Company Ltd).

A cursory look at Exhibit “A” it seems to me that neither the Shipping Company nor its Representatives – Supermaritime Insurance (Nig.) Ltd was party to Exhibit “A”.

The Respondent as defendant in the lower Court filed no reply to the Counter affidavit. He is deemed to have admitted the facts therein.

It is apparent that from the Amended Statement of Claim of the Plaintiff (Appellant in this Appeal), the cause of action against the Respondent arose on the 24th of April 2001, when the goods ordered could not be delivered. That constituted a breach of the contract.

?It is on record that the Plaintiff had at the lower Court sought leave to join Supermaritime Nig. Ltd, as representative of M.V. EUROLADY, the Shippers of the appellants consignment, which leave was granted on 13/3/2007. It was joined as 2nd defendant. There after it filed a motion on the 30th of May 2007 for dismissal of the Suit as being statute barred and same was

13

granted. The suit was dismissed against Supermaritime Nig. Ltd.

The Appellant submits that all he seeks in his claim, is the insurance sum, and damages for breach of Contract, as reflected in Paragraph 14 of the Amended Statement of claim – page 90 of the Record of Appeal.

It is my view that the Appellants suit against the Respondent is not Statute barred. The cause of action arose in 2000 when it was apparent that the goods were lost. The suit was instituted in the year 2005 – about a period of five years. The suit is therefore not statute barred, as it was hinged on a Simple Contract of Insurance which should be instituted within 6 years.

The learned trial Judge therefore was misconceived when she held that the suit was Statute barred and I so hold.

This issue is resolved in favour of the Appellant and against the Respondent.

ISSUE NO. 2
The Ruling of the 20th of May 2014, from all indications on the record was hinged on the findings of the Allagoa J, in his ruling of 1st February 2008. This was a grave error.

In the Ruling of the learned trial Judge, he had this to say inter alia.

14

“I have also further referred to the decisions in the impossible to divest the Ruling from reference to the earlier Ruling of the Court of 4/4/08 as referred by both parties. I have what this Court was invited to determine therein was whether or not the suit was statute barred, period. The issue of statute bar is relative to cause of action and not to party. The cause of the action in the suit was declared statute barred. The cause of action has not changed as against the Defendant. It is only logical therefore that this Court shall arrive at the same position”.

The learned trial Judge should have considered the application on its merits, instead of relying on the Ruling of his brother Judge. That was a grave error. Each case must be considered and determined on its merits.

The circumstances inherent in the facts leading to the decision of the 1st of February 2008, is different from the one leading to the decision of 20th May 2014.

As earlier noted, the claim of the appellant was for an Insurance claim.

This issue is resolved in favour of the Appellant and against the Respondent.

ISSUE NO 3
It is evident and indeed apparent that

15

the learned trial Judge did not evaluate thoroughly the processes filed, and the issues raised in respect of the suit, before reaching his conclusion declaring the Appellants suit statute barred.

He did not rely on any of the documents before Court, even the originating process. Indeed all he relied on was the earlier ruling of another Judge. What confers jurisdiction on a Court is the Writ of Summons and the statement of claim, and not the statement of Defence, or earlier ruling, or interlocutory application for that matter. Each case must be treated based on its own peculiar features.

Where the finding of a Judge or Judgment does not flow from the evidence led and accepted by the trial Court, the appellate Court can reverse the Judgment – NDILI v. AKINSUMADE (2000) 8 NWLR (Pt. 668) 2930 336-337; ORO v. FALADE (1995) 5 NWLR (Pt. 396) @ 385; VEGPER IND. LTD. v COCOA IND. LTD, 2008 13 NWLR (Pt. 1105) 486 @ 509-511.

A Judgment or Ruling that does not evaluate the evidence and the facts before it, before arriving at a conclusion is patently perverse – ADIMORA v. AJUFO 3 NWLR (Pt. 80) Page 1; MINILODGE LTD v. NGEI (2007) 4 WRN 54.

16

The Ruling of the learned trial Judge is perverse and I so hold.
This issue is resolved in favour of the Appellant and against the Respondent.
The Appeal succeeds and the Ruling of Hon. Justice I. B. Gafai delivered on the 14th day of April 2014, in Suit No. FHC/AWK/CS/140/2005 is hereby set aside. Parties to bear their respective costs.

Other Citations: (2016)LCN/8719(CA)