Julius Berger Nigeria Plc Vs. R.i. Omogui-2001
LAWGLOBAL HUB Lead Judgment Report
A. KALGO, J.S.C.
The only issue to be determined in this appeal as formulated by the appellant in its brief and adopted by the respondent is:-
“Whether the Appellant’s claim is statute barred by virtue of the provisions of Section 4 of the limitation law Cap. 89 Laws of the Bendel State 1976 (applicable to Delta State).”
This case may properly be regarded as one with a chequered history and it appears to me pertinent and desirable to set out, albeit briefly the facts and circumstances which gave rise to it for a better understanding of the situation.
The respondent’s Fuel distribution tanker, of Styre make, used for the distribution of Kerosene was involved in an accident along Sapele/Warri Road Junction at Okirigue with a trailer belonging to the appellant on the 5th of August 1981. Soon after the accident, the appellant undertook to repair the respondent’s tanker and as a result towed the tanker to its workshop in Sapele. Later the appellant changed its mind and instead of effecting the repairs itself, it asked the respondent to remove the tanker to his workshop, repair it and submit the repair bill to the appellant’s insurance company for settlement. The respondent refused to do so and stood by the earlier agreement and undertaking by the appellant to carry out the repairs. Realising this stand, the appellant again changed gear and asked the respondent to furnish it with an estimate of the cost of repairs and the amount would be released to the respondent. The respondent promptly complied with this last request but all efforts to collect the money from the appellant to carry out the repairs by the respondent failed. As a result of this unending tussle the respondent filed an action in 1981 in the Sapele High Court which went up to the Court of Appeal Benin and finally to the Supreme Court in 1992 where he (respondent) succeeded and the appellant was ordered to pay him the sum of N32, 000.00. The appellant paid the said judgment debt but refused to release the respondent’s tanker to enable him carry out the repairs despite repeated demands. The respondent therefore filed this action in the Sapele, High Court, which is the subject of this appeal and in which he claimed from the appellant:-
- “An order for the delivery up by the Defendant to the plaintiff of the plaintiff’s vehicle, a Styre Diesel Tanker Lorry with Registration No. LP 7875 or payment by the Defendant to the plaintiff of the sum of N537, 000.00 (Five hundred and thirty-seven thousand Naira) being the value thereof.
- Interest on the amount found to be due to the Plaintiff from the Defendant at the rate of 30% per annum from 24/4/92 (the date of commencement of demand for return of the vehicle until the entire sum is fully liquidated, or interest at such rate and for such period as this Honourable Court may deem fit.”
The parties filed and exchanged pleadings. In paragraph 13 of the Statement of Defence dated 14/12/93, the defendant/appellant averred thus:-
“13. The Defendant shall before or at the trial of this case raise by way of preliminary objection on point of Law and apply to this Honourable Court to dismiss the action on the ground that the action/claim is statute-barred.”
Thereafter, on the 16th of March 1994, the appellant filed a motion on notice supported by an affidavit praying the trial court for:-
“(1) An order setting down the preliminary objection on point of law raised in the paragraph 13 of the Statement of Defence for hearing/arguments;
(2) An order dismissing the action on the ground that it is statute barred, in accordance with section 4 Limitation Law, Cap. 89 Laws of Bendel State of Nigeria 1976 (applicable in Delta State).”
The respondent filed an 11 paragraph counter-affidavit. The motion was heard on 30th May 1994 by the learned trial judge Nwulu, J, and on 17th of June 1994, he ruled that the respondent’s action was statute – barred and he dismissed it accordingly. The respondent was dissatisfied with the ruling and he appealed to the Court of Appeal, Benin Division. The Court of Appeal heard the appeal and allowed it. It set aside the orders of the trial court and remitted the case back to Delta State High Court for trial by another Judge other than Nwulu, J. The appellant appealed from that decision to this court.
As I stated earlier in this judgment, the only issue for determination in this appeal is whether the action of the respondent in the trial court was statute – barred.
It is common ground that the parties’ vehicles were involved in an accident on the 5th of August 1981. The appellant admitted liability for causing the accident, towed the respondent’s vehicle to their workshop and undertook to carry out the repairs on the respondent’s vehicle. When the appellant refused to honour the undertaking, the respondent sued them in court for cost of repairs and loss of use which case ended in the Supreme Court and the appellant was ordered to pay a total of N32,000.00 to the respondent. The appellant paid the amount as ordered. This case was suit No. S/58/81 in the Sapele High Court, CA/B/89/85 in Court of Appeal Benin and SC. 163/1987 in the Supreme Court. The judgment of the Supreme Court was delivered on the 27th of March 1992. See Onwuka & Anr. v. R.I. Omogui (1992) 3 NWLR (Pt. 230) 393.
It is not in dispute that the first suit No. S/58/81 and the present suit No. S/31/93 filed by the respondent are both connected with the accident which took place on 5/8/8 1. But suit No. S/58/81 which finally ended in the Supreme Court on 27th March 1992 in the respondent’s favour had nothing to do with the claim of returning the respondent’s tanker to him. It was only for cost of repairs and loss of use. The respondent stated this clearly in paragraph 10 of his Statement of Claim, which in his counter affidavit paragraph 5, he urged the trial court to refer to in deciding the motion. It is also evident from the affidavits filed in the motion before the trial court that the question of the respondent asking the appellant to return the tanker to him (respondent) for repairs did not arise. In fact according to paragraphs 4, 10 and 11 (ii) of the appellant’s Statement of Defence, it was the appellant who requested the respondent by letter dated 21/8/81 to remove the tanker from their workshop and the respondent refused to do so. Therefore, It could not be correct to say that the respondent, before filing the suit no. S/58/81 had demanded from the appellant the return of his damaged tanker.
But after the Supreme Court settled the question of the claim for cost of repairs and damages for loss of use of the tanker on 27th March 1992, the respondent would be free to demand for his tanker from the appellant to carry out the repairs to it. And this is what he said he had done as he stated in paragraphs 12 and 13 of his Statement of Claim, which are properly linked to paragraphs 4 and 5 of his counter – affidavit. Paragraphs 12 and 13 of the Statement of Claim read:-
12 After the judgment of the Supreme Court, the Plaintiff demanded from the Defendant the sum adjudged due to him for repair of his vehicle and loss of use and also demanded from the Defendant return of his vehicle to enable him effect the necessary repairs and put the vehicle to use. This the plaintiff did through his Solicitors, Solomon Asemota & Co who wrote various letters to the Defendant dated 16/4/92, 24/4/92, 4/8/92 and 16/10/92 and also, visited the Defendant’s office along NPA Express-way, Warri. The Defendant is hereby given notice to produce the said letters which will be relied upon by the plaintiff at the trial.
- The Plaintiff avers that the Defendant has paid to him the money for repair of the vehicle and loss of use, but has failed, refused and/or neglected to deliver up his vehicle to him despite the aforesaid demands, hence this present action. Plaintiff will at the trial rely on the covering letter dated 24/4/92 by which Defendant’s Solicitors Femi Okunnu & Co., forwarded a cheque to plaintiffs Solicitors, Solomon Asemota & Co.
And paragraph 4 and 5 of the counter-affidavit also read:
- That I am advised by B. O. Orhewere Esq., and I verily believe that the cause of action in this suit occurred in 1992 when the Defendant refused to return my Vehicle to me after the Supreme Court decision delivered on the 27th day of March 1992. The said decision is now reported in Onwuka and another V. Omogui (1992) 3 N.W.L.R. (Pt 230) 393.
- That the events which led to the cause of this present suit has been stated in the Statement of Claim filed by me in this suit. I urge this Honourable Court to refer to the Statement of Claim and defence filed by the Defendant at the hearing of this motion.
It is clear from paragraph 14 of the Statement of Claim above that after the Supreme Court judgment, the respondent through his counsel wrote 5 letters to the appellant apart from personal calls, demanding the return of his tanker, but the appellant refused. But in a reply to the 2nd letter dated 24/4/92, the appellant paid the judgment debt, but refused to return the tanker.
I am of the firm view, that in the circumstances of this case, after the Supreme Court judgment in the respondent’s favour on the cost of repairs and damages for loss of use, the respondent was perfectly entitled to claim the return of his tanker so as to effect the necessary repairs on it. And any refusal or denial on the part of the appellant who had the custody of the tanker since after the accident in August 1981, will afford a cause of action for which a remedy is available in court. Therefore, by the combined effect of paragraphs 4 and 5 of the respondent’s counter – affidavit and paragraphs 12 and 13 of the Statement of Claim which have not been denied by the appellant, I am satisfied that the cause of action for this second instant action in Suit No. S/31/93 arose on the 4th of April 1992. The question of the return of the respondent’s tanker could not have arisen on 5/8/81 when the accident happened particularly as it was the appellant who towed away the tanker to its workshop for repairs. It could also not be on 21/8/81 as learned counsel for the appellant submitted in his brief, because the letter dated 21/8/81 requesting the respondent to remove the tanker from the appellant’s workshop was written during the arguments on the repairs of the tanker and before the action in Suit No. S/58/81 was filed.
There is no doubt that the instant action was based on claim on tort allegedly committed by the appellant. According to S. 4 (1) (a) of the Limitation Law (Cap. 89 of Laws of Bendel State) 1976, applicable to Delta State at the material time, the action must be filed within 6 years of the time when the cause of action arose. The action was filed on the 26th of March 1993. It was filed within time and is therefore valid, competent and maintainable. See, Bello v. A-G. Oyo State (1986) 5 NWLR (Pt. 45) 828; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1; Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649.
The Court of Appeal, per Ige, JCA, and concurred in by Akintan and Nsofor, JJCA, had this to say:-
“I agree with the Appellant that the vehicle was never wrongfully detained by the Respondent until 24/4/92, when the Appellant first demanded for the return of his vehicle. The Respondents had the vehicle in their custody from the date of accident and when negotiations broke down, the Plaintiff/Appellant did not collect the vehicle from the respondent’s premises until the issue of cost of repairs was finally settled by the Supreme Court in 1992…
This in my view settles the question of the time the cause of action arose in this case. Time begins to run against the Plaintiff /Appellant as from 24/4/92 and when this date is compared with the date on the writ of summons, the Plaintiff’s action in Suit No. S/31/93 is not statute – barred at all. Action was taken within 12 months.”
I entirely agree with this finding of the Court of Appeal in this matter. I answer this issue in the negative and against the appellant.
As this is the only issue raised for the determination of this court and was resolved against the appellant, this appeal lacks merit and is hereby dismissed. I accordingly affirm the decision and orders of the Court of Appeal made on 15th day of March 1996. I however add that the case should be heard expeditiously as it was filed since 1993. I award the costs of N10,000.00 against the appellant in favour of the respondent.
SC.10/1997