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.
- 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’
- 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.
- 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.
It was common ground that the plaintiff’s cause of action accrued on 17/7/91 and that the plaintiff’s suit was brought on 23/12/96. Under the Limitation Act of 1623, the plaintiff had 6 years within which to bring his suit whereas under the Imo State Limitation Edict of 1994, he had 5 years. The 1994 Edict came into force on 30/12/94. The Edict repealed the 1623 Act.
In the appellant’s brief, counsel opened his argument by defining the meaning of a cause of action. He relied on Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 at 20. It was argued that plaintiff’s reliefs (c) and (d) was in the tort of detinue and that as an action in detinue would not be complete until there have been a demand and refusal, the cause of action would only accrue from the date the defendants refused to return the goods. Counsel relied on Julius Berger (Nig.) Plc. v. Omogui (2001)15 NWLR (Pt.736) 401. It was argued that since pleadings had not been filed at the time defendants brought their application to dismiss or strike out plaintiff’s suit, the court below acted prematurely in striking out plaintiff’s claims (c) and (d). It was further argued with respect to plaintiff’s claim a, b and e, that the law applicable to plaintiff’s claims was the Limitation Act, 1623, it being a statute of general application by virtue of section 15 of the High Court Law Cap.61, Laws of Eastern Nigeria applicable in Imo State.
Plaintiff’s counsel argued that the substantive Law existing at the time a cause of action accrued would govern the determination of an action and the rights and obligations of the parties were determinable only by reference to such substantive law. It was submitted that a change of law after the cause of action accrued would not affect the accrued rights and obligations of parties unless the change was made retrospective- Rossek v. A.C.B. Ltd. (1993) 8 NWLR (Pt.312) 382; Alese v. Aladetuyi (1995) 6 NWLR (Pt.403) 527 and Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377. It was, counsel argued, immaterial that the law had been repealed – Governor of Oyo State v. Folayan (1995) 8 NWLR (Pt.413) 292; Section 13 of the Interpretation Law Cap. 66 Laws of Eastern Nigeria applicable in Imo State and Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt.58) 539.
The respondents’ counsel opened his argument by making three propositions of law, namely:
“(a) The Imo State Edict of 1994 is not a retrospective enactment;
(b) The presumption against retrospectivity is not inflexible and may be displaced by very clear words used in an enactment; and
(c) An enactment such as a statute of limitation which affect procedure and practice of the courts apply retrospectively and therefore the presumption against retrospectivity does not apply to such a procedural enactment.”
Counsel referred to the observations of Nnaemeka-Agu JSC in Adamu v. The State (1991) 4 NWLR (Pt.87) 530 at 541 as stating the correct principle of law. The observations read:
“apart from purely procedural matters, provisions of a statutes cannot be taken as applying retrospectively, but prospectively, except by very clear words.”
Counsel argued that none of the provisions of the Imo State Limitation Act offended against the rule relating to retrospectivity. It was submitted that it was clear from the language of the enactment that the legislature intended that:-
“(a) any other enactment relating to limitation of action which had previously applied in Imo, State before 30th December, 1994 (and this must include all statutes of England) shall cease to apply after 30th December, 1994; and
(b) The only actions, which shall not be affected by the provisions of the Edict are those actions commenced before 30th December, 1994.”
Counsel relied for the above on West v. Gwynne (1911) 2 Ch D. 1 as discussed in Ojokolobo v. Alamu (supra). Counsel urged the court to give the words used in sections 44 and 45 of the Imo State Limitation Edict their plain and ordinary meaning.
In the consideration of the one issue for determination in this appeal, I bear in mind that I am dealing with the interpretation of the provisions of a law. In the interpretation of a statute the court must construe its provisions literally and the words used given their ordinary meaning.See Onashile v. Idowu (1961) 1 All NLR 313 at 316;(1961) 2 SCNLR 53; Adejumo v. Mil. Governor of Lagos State (1972) 3 sc. 45 at 54.
Now section 18 of the Imo State Limitation Edict, 1994 provides:
“No action founded on contract, tort or any other action not specifically provided for in parts (ii) and (iii) of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued.”
I observed earlier that it was undisputed that the cause of action accrued on 17/7/91 and that plaintiff’s suit was brought on 23/12/96. In Ojokolobo v. Alamu (1987) 3 NWLR (Pt.61) 377 at 394, this Court per Nnamani JSC, observed:
“It is settled law that the presumption against retrospective construction has no application to enactments which only affect procedure and practice of the courts. As Mellish, J. said in Republic of Costa Rica v. Erlanger (1874) 3 Ch. D 62, no person has a vested right in any course of procedure.”
Wright J. in In Re: Athlumney (1898) 2 Q.B. 541 at 552 on the same point similarly observed:
“Perhaps no rule of construction is more firmly established than this- that a retrospective operation is not to be given to a statute so as to impair existing right or obligation, otherwise than as regards procedure.”
Plaintiff’s counsel has however argued that a Limitation Law is not to be treated as a part of procedural law but rather as one of substantive law. On this submission he relied on Raleigh Industries (Nig.) Ltd. v. Nwaiwu (1994) 4 NWLR (Pt.341) 760 at 771 and Atolagbe v. Awuni (1997) 9 NWLR (Pt.522) 536. Defendants’ counsel for his part relied on THE YDUN (1899) P.236 for his submission that a statute dealing with limitation of actions is an act dealing with procedure only and applies retrospectively.
The cases which plaintiff’s counsel relied upon for his submission that statutes of limitation are a part of substantive Law do not unequivocally support that proposition. In Atolagbe v. Awuni (supra), Ogundare JSC in his dissenting judgment discussed limitation laws with a view to show that such laws are necessary in that it enables litigations to be brought to an end. At pages 590-591 of the report, His Lordship observed:
“Another argument that has been proffered is that limitation laws are examples of conditions precedent which the courts have always upheld. With profound respect, I think this argument is without any merit. To describe limitation provisions as conditions precedent shows lack of knowledge of the nature of such provisions. Limitation statutes are laws that fix certain periods within which actions must be brought or proceedings taken. These laws are based on the principle interest republicae ut sit finis litium, that is to say, it is in the public interest that there is an end to litigation.
Such laws are of two kinds. There are those, such as the Limitation Law of Lagos State Cap. 118, Laws of Lagos State 1994, where on the expiration of the time the remedy is barred, but not the right. For example, in the case of a simple contract debt which has remained unpaid and unacknowledged for six years, the creditor’s right to bring an action to recover it is gone (S. 8(1) of the Limitation Law of Lagos State) but the debt exists for other purposes. The creditor can exercise a right of lien to recover it, but cannot set-off or counterclaim, because this is in the nature of a cross-action (section 3). It is in this category that section 1 of the Ondo State Approval of Appointment of an Oba and Presentation of Instrument of Appointment and Staff of Office Edict, 1991 which provides:
‘Any person who is aggrieved by the appointment of another person as an Oba shall within seven days of the date of such appointment institute action in the High Court challenging the appointment.’
falls – see Akinnuoye v. Military Administrator of Ondo State. & Ors. (1997) 1 NWLR (Pt.483) page 564.
The second category consists of laws which, on the expiration of the time prescribed the right itself is barred. Examples of this are sections 15 and 22 of the Limitation Law of Lagos State which extinguish the title of the person who has been out of possession of chattel or land for the period of limitation prescribed in the Law. It is immaterial that he may be ignorant that another is in possession- see Rains v. Buxton (1880) 14 Ch.D 537.”
And in Raleigh Industries Ltd. v. Nwaiwu (supra), a decision of the Court of Appeal, Kaduna Division, Opene JCA said at page 771,
“No doubt Mr. Daudu has put a very powerful and forceful argument but I must say that I entirely disagree with him that the question of limitations of actions is a matter of law as contained in relevant statutes.”
A short statement as the above is certainly inconclusive to support the proposition that statutes of limitation are aspects of the substantive law.
It seems to me that, such statutes only take away the right of action from a party without destroying that right since it can be enforced in other ways, for example by exercise of a right of lien. In Ojokolobo v. Alamu (supra), this Court would appear to have accepted that limitation laws are matters of practice and procedure only by quoting with approval the observation of Vaughan Williams L.J in THE YDUN (1899) P.236 where dealing with a Statute of Limitation, he observed:
“I also agree that the Act is retrospective, for though, no doubt, the general rule of construction is that ‘nova constitutio futuris formam imponere debet non praeteritis, ‘it is pointed out in Moon v. Durden (1884) 2 x EX 22 at 43) that rule of construction yields to a sufficiently expressed intention of the legislature that the enactment shall have a retrospective operation, and there is abundant authority that the presumption against a retrospective construction has no application to enactment which affect only procedure and practice of the Court.”
The court below, in the lead judgment per Ogebe JCA observed at page 80 of the record thus:
“The trial Judge failed to determine whether or not the limitation Edict of 1994 is a substantive or procedural law. In the case of Ifezue v. Mbadugha (1984) 5 Sc. 79 at P.82; (1984) 1 SCNLR 427 Obaseki JSC, tried to define procedural law in the following words:
‘In the procedural law or adjectival law including rules of court, the law or rule normally fixed time for doing an act or the taking of a step in the proceedings.”
I HAVE NO HESITATION IN HOLDING THAT THE limitation Edict of 1994 of Imo State is a procedural law as defined above. It does not give any rights or obligations to the parties. It only limits the light of action by a party and that is purely procedural.”
In Atolagbe v. Awuni (supra) this Court per Onu JSC at page 575 emphasised the distinction between substantive law and procedural or adjectival law thus:
“It is pertinent at this juncture to point out that the distinction between substantive law and procedure can be quite difficult at times. Broadly speaking, however, procedural or adjectival law relates to practice and procedure, that is, the rules according to which substantive law is administered. It prescribes the method for enforcement of rights and duties and obtaining redress for wrongful invasion of those rights as well as the enforcement of obligations or duties. On the other hand, substantive law is concerned with the creation, definition, limitation of obligation. See Gafari v. Johnson (1986) 5 NWLR (Pt.39) 66 at 77.”
It is apparent that the court below correctly decided that the Limitation Edict 1994 of Imo State is a procedural law. Being such a procedural law, it operates retrospectively. More than that however, it seems to me that even if the conclusion of the court below was that the Edict was a substantive Law which did not operate retrospectively, a close perusal of sections 44 and 45 of the Edict yields no conclusion other than that the intention of the law-maker was to make the Edict operate retrospectively. The concurring opinion of Ikongbeh JCA at pages 83-84 of the record captures succinctly the combined implication of sections 18, 44 and 45 of the Edict thus: “It is pertinent at this juncture to have a look at the relevant terms of the edict. The relevant sections are 18, 44 and 45. They provide:
’18. No action founded on contract, tort or any other action not specifically provided for in Parts II and III of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued.
- Any enactment relating to limitation of action which were in force in the State immediately before the commencement of this Edict shall cease to apply.
- Nothing in this Edict shall affect any action commenced before the commencement of this Edict.’
As can be seen, section 44 clearly and effectively repeals all previous legislation, including, of course, the English Limitation Act, that regulated limitation of actions. Then section 45 expressly excepts from the operation of the provisions of the Edict actions commenced before the commencement of the Edict. That means, in my view, that none of its provisions, including, of course, section 18, is intended to apply to actions commenced before the date on which the Edict took effect. A necessary corollary from this state of affairs, in my view, is that any action not commenced before the commencement of the Edict is caught by its provisions. That means that all such actions, including, the plaintiff’s/respondent’s, have to be brought within five years from the accrual of the cause of action.
I am satisfied that the Edict contains enough clear provisions roping in the plaintiff’s/respondent’s action into its operation. That being the case, I do not see that it lies within our power to dance around the issue. It is not for us to consider whether or not the plaintiff/respondent has been fairly treated. Our duty is to ascertain the intention of the law-maker from the words he has used. Once we have done that we are in duty bound to give effect to it regardless of the consequences.”
I think that the court below was right in its conclusion as to plaintiff’s claims (a), (b) and (e). The court below however failed to see that claims (c) and (d) were reliefs founded in the tort of detinue. For as long as a person detains the chatel of another against the will of the owner, an action in detinue will lie against the person wrongfully detaining the chattels. It is an essential pre-requisite that there be a demand by the owner followed by a refusal from the person detaining the chattel to constitute an action in detinue. At the time the defendants brought their application to dismiss or strike out plaintiff’s suit, a statement of claim had not been filed by the plaintiff. It was not therefore shown when a demand followed by a refusal was made. It is possible these were done within the 5 years limit allowed under the Limitation Edict of 1994. The result is that the defendants’ objections in respect of claims (c) and (d) were premature.
In the final conclusion, this appeal partially succeeds. Plaintiff’s claims (a), (b) and (e), which are statute-barred are struck out. There will be liberty to the plaintiff to file his statement of claim in respect of claims (c) and (d) and the case further pursued on those claims I make no order as to costs.
SC.129/2002