MR. TOLULOPE ODEBIYI v. WEMA BANK PLC & ORS (2014)

MR. TOLULOPE ODEBIYI v. WEMA BANK PLC & ORS

(2014)LCN/7168(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of May, 2014

CA/L/59/2000

RATIO

STATUTE OF LIMITATION: IMPLICATIONS OF A STATUTE BARRED ACTION

Where an action is statute barred, a party who ordinarily might have had a cause of action loses the right to enforce the cause of action by judicial process given the fact that the period of limitation prescribed by the limitation law for instituting such an action has elapsed. See P.N. UDOH TRADING CO. LTD Vs ABERE (2001) 11 NWLR (PT 723) 114; ODUBEKO Vs FOWLER (1993) 7 NWLR (PT 308) 637; EBOIGBE Vs NNPC (1994) 5 NWLR (PT 347) 649. In ARAKA Vs EJEAGWU (2000) 12 SC (PT 1) 99. The Supreme Court held per Kalgo JSC that:
“In my interpretation, “statute barred” simply means barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect.”

Thus, the general principle of law is that where a statute provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to a Plaintiff, proceedings shall not be brought after the time prescribed by the statute had expired. See OBIEFUNA Vs OKOYE (1961) 1 All NLR 357; N.P.A PLC Vs LOTUS PLASTICS LTD (2005) 19 NWLR (PT 959) 158. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

JURISDICTION: WHETHER A PLEA THAT AN ACTION IS STATUTE BARRED RAISES THE ISSUE OF JURISDICTION

It is trite law that a plea in any given case that an action is statute barred is a plea which raises the issue of jurisdiction, and which determinant is the writ of summons and the statement of claim. See ADEKOYA Vs FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT 1099) 539. In NDUKA Vs OGBONNA (2010) LPELR at page 11-12 this court held thus:
“Being on issue of jurisdiction therefore, a court of law confronted with such question on whether an action is statute barred or not is duty bound to determine the issue first, and if it finds out that it is statute barred, it should merely dismiss the suit, since no amount of resort to its merit could resuscitate it.”
See also ADEYEMI Vs OPEYORI (1976) 9-10 SC 31 at 51; NIMPA Vs PYENDANG (1994) 7 NWLR (PT 356) 346. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

MR. TOLULOPE ODEBIYI (Substituted for Mrs. Olukemi Odebiyi who was earlier substituted for Chief Jonathan A.O. Odeyibi Appellant(s)

AND

WEMA BANK PLC (Formerly National Bank of Nigeria Limited)
THE DEPUTY SHERIFF
(High Court Lagos)
PROF. M. I. JEGEDE
(Practicing as M.I. Jegede & Co.)
MRS. NURA IDOWU LAYENI
MR. MAROOF LAYENI
DR. KUBRAT ADEYEMI
MRS. IYABO ADESEGUN
(4th to 7th Respondents as Administrators of the Estate
of Alhaji Yunusa Layeni formerly the 4th Respondent) Respondent(s)

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered on the 26th day of May 1998 by Adeniyi J. wherein the Plaintiff’s claim was dismissed.

The Appellant herein had as Plaintiff filed a writ of Summons dated 24-3-1992 at the trial court against the Defendants (now Respondents) and as per the amended statement of claim filed on 8-12-1992 sought the following reliefs in paragraph 28 therein:
(i) Declaration that the purported “Sale” by “Auction” of the property known as Plot 21, Block X Dideolu Estate, Victoria Island, Lagos by the 2nd defendant on 11th November, 1991 in the purported execution of the judgment Debt and Costs awarded in Suit LD/1248/84 is ultra vires, invalid, null and void and of no effect.
(ii) Alternatively, an order setting aside the aforesaid purported sale of the Plaintiffs land in issue.
(iii) An order of perpetual injunction to restrain the Defendants from acting as if there had been a due sale of the Plaintiffs interest in the property covered by Certificate of Occupancy No. 8/8/1982G in due execution of the judgment debt and costs in Suit LD/1248/84.
(iv) An order of mandatory injunction compelling the Defendants jointly or severally to release to the Plaintiff the title deed of his property.
(v) Judgment for the amount of N336,961.33K (being the difference between N820,326.39 paid by the Plaintiff to the 1st Defendant and N483,365.06 being the actual judgment debt) or being the overpayment on the sum of N820,326.39K with 25% interest per annum from 5th March 1992 till judgment and thereafter till the sum is liquidated.”

The salient facts of this case as gleaned from the record is that on 7-3-1986, the first Respondent obtained judgment against the Appellant in the High Court of Lagos State in suit NO LD/1248/84. Wherein the Appellant is to pay the sum of N300,000 with interest at the rate of 10.5% per annum from February 1982 till 7th March 1986 and thereafter at the rate of 4% per annum until final payment.

The said judgment sum was however not paid by the Appellant and on the 15-12-89, the 1st Respondent applied for and obtained an order for issuance of writ of attachment and sale of the Appellant’s property at Plot 21, Block 10 situate at Maroko, Victoria Island, Lagos. The said property was eventually sold by public auction conducted by the 2nd Respondent on 11-11-1991 and Certificate of Sale was issued on 30-12-1991.
However in March 1992, the Appellant approached the 1st Respondent with a proposal for him to sell the same property himself to enable him pay the longstanding judgment debt awarded in favour of the 1st Respondent in March 1986. He was in the process of doing so, having contacted some potential buyers when he was told by an officer of the 1st Respondent that the property has already been sold and the title document released to the buyer.
Incensed with the new development, he then filed this action in the trial court claiming the reliefs as earlier reproduced in this judgment. The Respondents variously filed their statement of defence. At the hearing of the suit, the Appellant testified personally and called one other witness. The 1st Respondent called two witnesses in defence.

The 2nd Respondent gave evidence for himself and for the 1st Respondent. The 3rd Respondent testified personally and also called one other witness, while the 4th Respondent also gave evidence personally. In a judgment delivered by the trial court on 26-5-1998, the Appellant’s claim was dismissed. His discontentment with the said judgment led to his filing a Notice of appeal containing five grounds of appeal. It is dated the 27th day of May 1998.
The five grounds of appeal are set out below:
GROUND ONE
Error in Law
The Learned Trial Judge erred in law when he failed to consider in his judgment issues raised by the Plaintiff in his pleadings, evidence and address.
PARTICULARS OF ERROR
1. His Lordship failed to consider the effect of non-compliance with the provisions of the Sheriffs and Civil Process Law Cap. 127 1973, Law of Lagos on the purported sale of the Plaintiff property.
2. His Lordship failed to consider the effect of failure to properly attach the judgment creditor’s property on the whole process of execution.
3. His Lordship did not consider the effect of non-service from 41 and Notice of Sale on the Plaintiff before purported sale.
4. The non-issuance of Form 38 and the non-existence of a valid writ of execution upon which the purported sale of the Plaintiff’s property can be predicated upon.
5. The alleged writ upon which the Defendant’s action was predicated had expired at the time execution was effected.
6. His Lordship failed to consider the allegation of fraud against the Defendants and its effect on the purported sale of the Plaintiff’s property.
7. His Lordship neglected the Plaintiff’s claim for the over-payment on the sum due to the 1st Defendant.
GROUND TWO
Error in Law
The Learned Trial Judge erred in law when he considered and found on issues which counsel had not raised during the trial and thus had not made submissions on.
PARTICULARS OF ERROR
1. His Lordship considered and found on the issue whether the Defendants were estopped from relying on Sections 47 and 48 of the Sheriffs and Civil Process Law when counsel did not raise the issue of estopped.
2. The period of limitation does not cease to run during the period of negotiations.
3. Equitable principle does not over ride statutory provisions.
4. It is wrong for a judge to give a decision on a point which opportunity was not accorded counsel to argue particularly a point which throughout hearing was not raised.
GROUND THREE
Error in Law
The Learned Trial Judge erred in law when he held that section 47 and 48 of the Sheriff’s and Civil Process Law effectively bars the Plaintiff’s right of action.
PARTICULARS OF ERROR
1. Section 47 relates to applications not actions.
2. The section attempts to bar only applications based on irregularity in the conduct of the sale and not those concerned with irregularities preceding the sale or fraudulent acts associated with the execution.
3. When a cause of action is based on fraud or the right of action is canceled by fraud, the period of limitation does not begin to run until the fraud is discovered.
GROUND FOUR
The Learned Trial Judge erred in law when he held that the knowledge of the order for the issuance of a writ and sale of property satisfy the requirement under the judgment (Enforcement) Rules for service on the judgment debtor of Form 40 and Notice of Sale.
PARTICULARS OF ERROR
1. From the summary of evidence contained in the judgment it was the testimony of PW1, DW3, DW4 and DW5 that the statutory notices of the attachment and sale were not personally served on the Plaintiff.
2. From the summary of evidence contained in the judgment, it was the testimony of DW1 that it was after the sale he sent a notice to the Plaintiff informing him of the sale.
3. The requirement of service of Form 41 under Order 5 Rule 3 and 4 of the Judgment (Enforcement) Rules and notice of sale under Order 5 rule 6 are mandatory provisions.
GROUND FIVE
The whole judgment is against the weight of evidence.

Briefs of argument were subsequently filed and served as per the relevant Rules of this court. The Appellant’s brief of argument is dated 28-2-2013 and filed on 5-3-2013 but deemed properly filed and served on 10-10-2013.
The 1st to 3rd Respondent’s brief of argument is dated and filed on 21-3-2013 but deemed properly filed and served on 10-10-2013.
The 4th Respondent died during the pendency of this appeal and the four administrators of his estate were substituted for him as the 4th to 7th Respondent.
Their amended brief of argument is dated and filed on 3-4-2013 but deemed properly filed on 10-10-2013.
In the Appellant’s brief of argument, two issues were formulated for determinations as follows:
(1) Whether the failure of the learned trial judge to consider all the issues arising from the pleadings of the parties occasioned miscarriage of justice to the Appellant.
(2) Whether sections 47 and 48 of the Sheriff and Civil Process Act CAP 407 LFN 1990 operated as a time bar to Appellant’s suit,

For the 1st to 3rd Respondents, two issues were also distilled for resolution as follows:
(1) Whether the learned trial judge failed to consider relevant issues and evidence before giving the judgment in this action. – (Ground 1)
(2) whether section 47 and 48 of the Sheriffs and Civil Process Act CAP 407 1990 did not operate as a time bar to this action. (Ground 3)

Two issues were also formulated in the 4th-7th Respondent’s brief of argument. To wit:
(1) Whether the learned trial judge considered the material issues arising from the pleadings of the parties and evidence, and if not, whether there was a miscarriage of justice in any event.
(2) Whether Sections 47 and 48 of the Sheriffs and Civil Process Act CAP 407 laws of the Federation of Nigeria 1990 operated as a time bar to the Appellant’s suit.

Two issues formulated by each of the parties are virtually the same except for grammatical presentation. I will therefore adopt the two issues formulated in the Appellant’s brief of argument in the consideration of this appeal.

Before I proceed, I however note that the Respondents drew the attention of the court to the Appellant’s five grounds of appeal wherein it was pointed that the two issues in the Appellant’s brief were derived from grounds 1 and 3 of the Notice of appeal and that leaves grounds 2 and 4 hanging in which case they should be deemed abandoned.

I have indeed read and compared the five grounds of appeal with the two issues formulated in the Appellant’s brief which indeed reveal that no issues were raised from grounds 2 and 4. In the circumstance, the only option left is to deem the two grounds of appeal as abandoned. It is trite law that a ground of appeal from which no issue has been formulated and upon which no argument has been canvassed is deemed abandoned by an Appellant, and should accordingly be struck out. See IYOHO Vs EFFIONG (2007) 11 NWLR (PT 1044) 31; ARO Vs ARO (2000) 3 NWLR (PT 649) 443 and UKIRI Vs GECO-PRAKIA (NIG) LTD. (2010) 443 NSCQR 268 at 278 – 279.

Accordingly, Grounds 2 and 4 of the Appellant’s Notice of Appeal are hereby struck out, having being abandoned by the Appellant. I will now go to the issues for determination as formulated in the Appellant’s brief of argument, but I will first deal with issue No.2.

ISSUE NO. 2
“Whether Section 47 and 48 of the Sheriffs and Civil Process Act CAP 407 LFN 1990 operated as time bar to the Appellant’s suit.”

Dwelling on this issue, learned counsel for the appellant referred to section 47 of the Sheriff and Civil Process Act to submit that the time limitation in Section 47 do not apply to the suit filed by the Appellant because the section contemplates bringing in an application by the judgment debtor in the suit to set aside the sale as opposed to a fresh action. Reliance was placed on the case of ORISAWALE Vs DEPUTY SHERIFF (1962) WNLR 129 and ABEGUNDE Vs ANGLO-FRENCH TRADING CO. (1961) WNLR 122.

He referred to the parties pleadings to submit that issues were not only joined by the parties about irregularities in the conduct of the sale, but issues joined extended to the whole process commencing from the misstatement of the amount outstanding against him by the valid writ of execution, the non attachment of the property before the sale, the non service of the notice of sale and the absolute lack of good faith as evidenced by all the above irregularities occurred before the conduct of the auction.

He added that the Appellant led evidence in proof of same and since the claim made out by the Appellant in the lower court challenged steps taken before the sale, it puts the validity of such sale in question in which case section 47 of the Sheriff and Civil Process Act will not apply. See ABEGUNDE Vs ANGLO FRENCH TRADING CO. supra.
On the other hand, learned counsel contended that even if section 47 were to apply (though not conceded), the question arises as to when the course of action arose for the purpose of computing the limitation period.
He then contended that the Appellant herein was informed of the safe of the property on 20-3-1992 and the action was instituted on 24-3-1992, and it therefore follows that computation of time shall commence from 20-3-1992 when he became aware of the wrong committed against him, as against the finding of the learned trial judge that the cause of action arose much earlier since the judgment was entered in 7-3-1986 and the writ of attachment ordered by the court on 15-12-1989. He added that time begins to run when the Plaintiff became aware of the damage as held in ALATAHA Vs ASIN (1999) 5 NWLR (PT 601) 44.

Further submission was made that the required writ of attachment in Form38 was never issued and never served on him, rather what was served was Form 3, the praecipe for a writ of execution against personal property which praecipe had expired before the purported execution and these are causes of action that arose after 15-12-1989 when the writ was ordered by the trial judge.
He then urge the court to hold that even if sections 47 and 48 are found to apply, the appellant’s action is not statute barred because he became aware of the cause of action long after it arose due to the concealment by the Respondents.

In the 1st to 3rd Respondent’s brief; it was submitted by their counsel that sections 47 and 48 of the Sheriffs and Civil Process Act by their combined effect succinctly prescribed the time limit within which the sale of a property subject of an attachment could be challenged. He referred to the Appellants submission in paragraphs 4.2.5 to 4.2.20 of his brief to submit that they are inconsistent with the reliefs sought in the Appellant’s writ of Summons which shows that he is challenging the sale or the conduct of sale of the property in question and the process taken or not taken in the said sale. He added that, since the Appellant is not challenging the attachment but the sale, the two authorities of ORISAWALE and ABEGUNDE cited by the Appellant supra are clearly not applicable to this case. He added that in ABEGUNDE’S case, the ground for filing the fresh action was that the Plaintiff’s case had not been determined before the sale, unlike this case where judgment was given since 1986 and which judgment was not challenged and the attachment and sale was ordered since 1989 to the knowledge of the Appellant. Furthermore he says, since the Appellant admitted in his brief that he is not challenging the order of attachment, it follows that the only thing left is the sale which is the basis for this action. Consequently, Section 47 and 48 will apply to bar any challenge to the sale of an immovable property in execution of court judgment after 21 days from the date of the sale and this limitation cannot be avoided simply because the Appellant opted to challenge the alleged irregularities through a fresh suit instead of an application as prescribed by the Act.

On the issue of when the cause of action arose and the time the limitation period begins to run under the Act, learned counsel submitted that by virtue of section 47 and 48, time begins to run from the date of sale of the immovable property in satisfaction of the judgment debt and not when the judgment debtor became aware of the sale.
He added that the provisions of section 47 and 48 are specific unlike other statutes of limitation, which have a general provision.

Furthermore, he says, public policy necessitated the need to limit the period within which a judgment debtor may challenge the sale of a property under a court order to 21 days because there is need for a prospective buyer to be assured of a good title in such a situation, thereby maintaining the integrity of the court or judicial process.

He also submitted that if the computation of time is tied to the knowledge of the judgment debtor, it will make it impossible to enforce judgment because a judgment debtor may in the circumstance choose to evade service and thus frustrate the process of executing the order of court granting a sale.

It was further submitted that the Appellant was aware that the court had made an order of attachment on the property and did not challenge the said order, he is therefore not within the category of a judgment debtor that requires such notices complained of. He added that the sale of the Appellant’s immovable property was effected on the 11th of November, 1991, but he only brought this suit to set aside the sale on 24-3-1992, that is 134 days after, in which case the sale has become already absolute under section 48 of the Act. He therefore urged this court to dismiss the appeal.

In their response to this issue, learned counsel for the 4th to 7th Respondent submitted that Sections 47 and 48 of the Act contemplate only applications to set aside sale and as such apply to the Appellant’s action. He cited OKOYE Vs STANDARD BANK OF WEST AFRICA LTD (1971) 1 NMLR 58 AT 59 AND bank of the north Ltd Vs NBCL LTD (1990) 5 NWLR (PT 150) 263.

On the Appellant’s contention that sections 47 and 48 of the Act only apply to applications to set aside and not fresh actions, he argued that a litigant who opted to commence proceedings otherwise than as prescribed by the law, cannot hide under such non compliance to overreach the other party. He added that the authorities of OKOYE and BANK OF THE NORTH cited Supra clearly show that the Appellant ought to have come by way of motion on notice filed within 21 days from date of sale, and this is contrary to the Appellant’s position that by filing a fresh action, he is precluded from the full effect of section 47 and 48 of the Act in so far as the claim is for an order to set aside the sale, and this ought to qualify the Appellant’s suit for dismissal in limine for being incompetent.

Learned counsel further submitted that the authorities of ORISHAWALE VS DEPUTY SHERIFF and ABEGUNDE VS ANGLO FRENCH TRADING CO cited Supra by the Appellant to back up his contention that irregularities before sale are not envisaged by section 47 and 48 of the Act do not apply in this case.

On the availability of the plea of fraud to the Appellant to escape the effect of section 47 and 48, learned counsel submitted that a plea of fraud could not avail the Appellant having not been specifically pleaded, neither was it raised anywhere in the statement of defence, but only came up in the Appellant’s address in the lower court. Thus not having been specifically pleaded with its particulars, the Appellant is precluded from raising the issue of fraud now. See AKPUNONU Vs BEAKART OVERSEAS (2000) 3 NSCQR Vol. 3. 184 at 191 and IKOLI Vs OLI (1962) 1 All NLR 194. See also Section 135(1) Evidence Act 2011.

With regard to the contention of the Appellant that due to the defects in the notification processes prior to the sale and some misstatements by the officers of the 1st Respondent, the sale should be set aside, learned counsel submitted that it is not supported in law and in fact as placed before the lower court. He added that by virtue of section 21(2) of the Conveyance Act 1881 raised by the Respondents in their defence and upheld by the lower court, they are found to have bought the property for valuable consideration without any taint of fraud.
He added that even if there were irregularities leading to the eventual sale, the 4th to 7th Respondents are bona fide purchasers for value without notice of any defects in the title of the seller. This court was therefore urged to dismiss the appeal.

The issue in contention herein is the effect or impact of sections 47 and 48 of the Sheriff and Civil Process Act on the Appellant’s suit filed in the lower court seeking to set aside the sale of his property situate at Plot 21, Block 10, Maroko, Victoria Island, Lagos in satisfaction of the judgment obtained against him in 1986.

The two sections are herein below set out
Section 47:
“At any time within 21 days from the date of sale of any immovable property, application may be made to the court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the court that he has obtained substantial injury by reason of such irregularity.”
Section 48:
“When sale becomes absolute, if no such application as is mentioned in section 47 of this Act is made, the sale shall be deemed absolute. If such application be made and the objection be disallowed, the court shall make an order continuing the sale; and in like manner, if the objection be allowed, the court shall make an order setting aside the sale for irregularity”.
To my mind, the provisions of the two sections above reproduced are clear and unambiguous. A judgment debtor who is not satisfied with the sale of an immovable property on grounds of material irregularity in the conduct of such sale and wants the court to set aside the sale accordingly shall do so by way of an application which shall be made within 21 days from the date of the sale of such immovable property. Provide however, an order to set aside will not be granted unless the applicant proves to the satisfaction of the court that he has sustained substantial injury as a result of the alleged irregularity. Where however no such application was made to the court within the prescribed period of 21 days from the date of the sale, the said sale shall become absolute. Where the application is brought within time, it then behoves the court to consider such application whether it will be granted and the sale set aside, or refused and the sale confirmed.
The bottom line here is that any application challenging the sale of an immovable property on grounds of material irregularity must be brought within 21 days from the date of the sale. The law is emphatic here that it shall be from the date of the sale and not when a party had knowledge of the sale.

It is also not in doubt that provision of section 47 of the Act brings it within the category of statutes of limitation wherein an aggrieved person who seeks the intervention of the court must initiate the process within the period prescribed by the relevant statute or else, the action becomes statute barred.

The sale of the immovable property situate at PLOT 21, BLOCK 10, MAROKO, VICTORIA ISLAND, LAGOS took place on the 11th day of November, 1991 and the certificate of sale issued to the purchaser by the High Court of Lagos State is dated 30-12-91. This is evidenced from the record, particularly Exhibit N3, the public auction notice issued by the order of Sheriff of Lagos State and dated 11-11-1991;
Exhibit N4, the notice of sale signed by the Deputy Sheriff and dated 21-10-1991; and Exhibit O, which is the certificate of sale issued to the purchaser of the immovable property and dated 30-12-1991. The processes were served through substituted means as it was indicated on the document that (the original copies were pasted on the “T square” pegged on the land in the presence of one Adekunle Adebola). The same goes with the Forms 40 and Form 41 (Notices of Attachment dated 4-10-91).

The main grouse of the Appellant is that though he was aware of the order of attachment of the property in question, he was however not aware of the whole process leading to the sale of the property until March 1992 when he went to the 1st Respondent to inquire about his account balance with them, and he had in fact commenced the process of paying back the debt owed the 1st Respondent based on the sum of N1,081,242 said to be outstanding but it was not until 20-3-1992 when he was told by an officer of the 1st Respondent that the property had been sold. It was therefore the contention of the Appellant that the time for computing the limitation period commence on 20-3-1992 when he became aware of the sale and he instituted the action on 24-3-1992. For the Respondent however, time begins to run from the date of the sale of the immovable property in satisfaction of the judgment debt by virtue of section 47 and 48 of the Act.
I am inclined to agree with the stance of the Respondents going by the specific provision of section 47 of the Sheriff and Civil Process Act which requires that an application to challenge the sale carried out pursuant to the order of enforcement of a judgment debt shall be made “at any time within 21 days from the date of the sale”.
This is a specific statutory provision aimed to achieve a particular purpose and does not give room for embellishment or unwarranted colouration. It means what it states, that it is within 21 days from the date of the sale and not within 21 days from the date the judgment debtor became aware of the sale. I am not unmindful of the fact that the interest of the justice must be served in any given situation, hence equity stands as the watch dog against any apparent foul play. However, there is evidence on record that the notice of sale and other processes related thereto were served vide substituted means which in law is proper service. I am also not unaware of the fact that judgment was obtained against the Appellant since 1986 and it was not until 1991, five good years later that it was formally enforced against him by way of a sale of his immovable property, a process which he cannot deny knowledge of, going by the fact on record that he was also making moves to sell the same property to satisfy the judgment debt except that he was beaten to it, albeit by order of court.
That notwithstanding, in ascertaining the time when the cause of action accrued for the purpose of a limitation law, the court only looks at the writ of summons and the statement of claim which contains averments as to when the wrong committed by the Defendant took place and compare it with the date when the writ of summons was filed.
Where it is apparent in the statement of claim that the period is beyond the time allowed by the limitation law, it renders the suit incompetent for being statute barred. See ELABANJO Vs DAWODU (2006) 15 NWLR (PT 1001) 76 and WOHEREM Vs EMERUWA Supra.

In the instant case, the writ of summons was filed in the lower court by the Appellant on 24-3-1992 and the main claim therein is for an order to set aside the purported sale of the Plaintiff’s land or in the alternative, a declaration that the purported sale is null and void and in paragraphs 6 and 7 of the amended statement of claim, he averred that:
1. On 7th March, 1996, His Lordship, Adeniji J, in Suit No. LD/1248/84 entered judgment against the Plaintiff for the sum of N300,000 with interest thereon at the rate of 101/2% per annum from February 1982 until 7th March 1986 and thereafter at 4% per annum until the whole debt is liquidated.
2. The 1st Defendant attempted to levy execution on the Plaintiff’s properties at Ibadan, Ilaro and Iboro in Oyo and Ogun states respectively but failed to do so. Thereafter, the 1st Defendant, on 15th December 1989 obtained an order of court Coram Adeniji J. that a writ of attachment and sale be issued against the plaintiff’s property known as Plot 21 in Block X on approved layout Plan No, TPRO.987 situate at Maroko, Victoria Island, Lagos State, and covered by a Certificate of Occupancy No. 8/8/1982G Registered as No. 8 at Page 8 in Volume 1982G of the Lands Registry Lagos.

From the above averments, it is glaring that the Appellant was fully aware that judgment was entered against him on 7-3-1986 and he did not appeal against it. He was also aware that on 15-12-1989, the lower court ordered that a writ of attachment and sale be issued against his property at Plot 21, Block X, Maroko, Victoria Island, Lagos.

The Respondents as defendants in the lower court relied on section 47 and 48 of the Act to raise the issue that the action was statute barred.

In OLAGUNJU Vs PHCN supra, the Supreme Court per ONNOGHEN JSC held thus at page 126:
“I hold the considered view that a defendant who pleads the defence of statute of limitation need not call or adduce evidence if facts needed to establish the defence can be gleaned or contained or apparent in the case presented by the Plaintiff’s case to successfully establish the defence as in the instant case”.
Aloma Mukhtar JSC (as he then was) added strength to this view by positing thus at page 129:
“It is fact that evidence was not adduced by the defendants but it is also a fact that the materials required to determine the issue of limitation have already been supplied by the plaintiffs in their statement of claim and other court processes”.

In KOLO Vs FBN PLC (2003) 3 NWLR (PT.806) 216.
It was held that the statement of claim is recognized as a matter of law as the first place to look at to determine if there be a cause of action and when it accrued.
In MILITARY ADMINISTRATOR EKITI VS ALADEYELU & ORS (2007) 14 NWLR (PT 0055) 619. The Supreme Court relying on its earlier decision in WOHEREM VS EMERUWA (2004) 3 NWLR (PT 890) 398 at 417 held that for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim only. See also AMUSAN VS OBIDEYI (2005) 14 NWLR (PT 945) (2008) 11 NWLR (PT 1099) 539.
At the Court of Appeal level, numerous decisions have been given along the same line. In GBADEHAN VS KILADEJO (2011) LPELR (8911) at page 27. This court held per Kekere-Ekun JCA (as he then was) that:-
“It is correct, as submitted by learned counsel for the Appellant, relying on the case of SAVANNAH BANK Vs PAN ATLANTIC (1987) 1 (PT.49) 212 at 259 C – H and WOHEREM VS EMERUWA (2004) 13 (PT 890) 238, that the onus of pleading and proving that an action is statute barred lies on the defendant. However, having so pleaded, in order to determine the issue, it is the writ of summons and statement of claim that would be considered by the court”.

In the instant case, it is not in dispute that the Appellant is challenging the sale of immovable property. The provisions of section 47 are very clear on what is to be done by a party who seeks to challenge a sale and it must be within 21 days from the date of the sale. Pursuant to the order of the lower court, the auction sale was conducted on 11/11/1991 but the Appellant filed a suit challenging it on 24/13/1992 that is about 134 days thereafter. This no doubt is a clear breach of section 47 of the Act. The learned trial judge had in his judgment at page 129 of the record held thus:
“Sections 47 and 48 above is a statute of limitation designed to bar, hinder or obstruct by its interposition, any legal redress, if as is in this case of setting aside sale of immovable property on the ground of any material irregularity in the conduct of the sale is taken after twenty-one days from the date of the sale, sale to he deemed absolute.
A cause of action is thus said to be statute barred if in respect of the proceedings cannot he brought because the period laid down by the limitation Act had elapsed.
See: Odubeko V. Fowler (1993) 7 (Pt.365) 637.
How does one determine the period of limitation?
The answer is simple – by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a Cause of Action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation Act, then the action is beyond and is statute barred.
In this case, the sale took place on 11/11/91, Certificate of Sale – Exhibit “O” was issued on 30/12/91, the writ of summons was filed on 24/3/92. The time for filing the writ in this case is a period of more than four months beyond the period allowed by the Limitation Act, then the action to set aside sale is statute barred”.

I entirely agree with the reasoning and conclusion of the learned trial judge, that by virtue of section 47 and 48 of the Sheriff and Civil Process Act, this action is statute barred and I see no reason to hold otherwise. It was contended by the appellant that the limitation in Section 47 of the Sheriff and Civil Process Act do not apply to the appellant’s action, because the provision contemplates filing an application to set aside, by the judgment debtor in contrast with the fresh action brought by the appellant. Also relying on the authorities of ORISAWALE VS. DEPUTY SHERIFF Supra and ABEGUNDE VS. ANGLO FRENCH TRADING CO. Supra, he argued that the provisions of section 47 does not protect sale of land done in pursuance of an invalid execution.

For the Respondents, it was submitted that the approach of the appellant in differentiating between irregularities at sale stem from a misapprehension of the purport of the decisions in Orisawale and Abegunde’s cases. Because Abegunde’s case in particular is distinguishable from the instant case because in the former, the Plaintiffs claim was not duly determined at the time of the sale.
Also in Orisawale’s case the view of the judge as regards the application of section 30 and 31 of the Western Nigerian Sheriffs and Civil Process Law Cap 116 which is in pari material with section 47 and 48 of the Sheriff and Civil Process Act under review supports the fact that any complaint after sale shall be made to the court by way of an application within 21 days.
The appellants suit in the lower court speaks for itself having regard to the reliefs sought, which borders on setting aside or nullify the sale of the immovable property. To my mind therefore resorting to the use of a fresh action instead of coming by way of an application does not change the scenario. I see the method adopted by the appellant as an attempt to pull wool over the “eyes” of the court. Section 47 and 48 of the Act are very clear to the effect that a judgment debtor who seeks to set aside a sale on grounds of material irregularities must do so within 21 days from the date of the sale. Therefore whether the appellant decides to come by way of a fresh action or by application it must be done within the prescribed period. The authorities of Abegunde and Orisawale relied on by the appellant does not help his case. This issue is accordingly resolved against the Appellant.

On issue No 2, that is whether the failure of the learned trial judge to consider all the issues joined by the parties occasioned miscarriage of justice to the Appellant.
The summary of the Appellant’s argument in the brief is that the learned trial judge failed to consider all the issues raised and the evidence led by the parties before reaching the conclusion that the action is statute barred and this occasioned miscarriage of justice.

For the 1st to 3rd Respondents, it was argued that the trial judge was right to have considered and determined first the fundamental issue of limitation as provided by sections 47 and 48 of the Sheriffs and Civil Process Act 1990. Also that the issue of limitation of time was and is capable of determining the Appellant’s case at the trial court being an issue of jurisdiction which was very fundamental and having so been determined, did not occasion miscarriage of justice.

In ARAKA Vs EJEAGWU (2000) 12 SC (PT 1) 99. It was held by the Supreme Court that a limitation Law or Act removes the right of action, the right of enforcement and the right to judicial relief and leaves the Plaintiff with a bare and empty cause of action which he cannot enforce if such cause of action is statute barred.

In the instant case, the lower court rightly dealt first with the limitation issue as per section 47 and 48 of the Sheriff and Civil Process Act 1990, because that will determine whether or not it has the jurisdiction to hear the matter before it and having found and held that the Appellant’s action is caught by the provisions of section 47 and 48 of the Act and thus statute barred. It robs it of the jurisdiction to proceed further to consider or evaluate whatever issue or evidence placed before it. Proceeding any further on the matter will constitute an exercise in futility due to jurisdictional incapacitation.

However a perusal of the reliefs sought in the lower court as contained in paragraph 28 of the amended statement of claim show that Relief V is exclusive and independent of the main reliefs (i) and (ii). It reads thus:-
“Judgment for the amount of N336,961,33k (being the difference between N820,326.39 paid by the plaintiff to the 1st defendant and N483,365.06 being the actual judgment debt) or being the over payment on the sum of N820,326,39k with 25% interest per annum from 5th March 1992 till judgment and thereafter till the sum is liquidated.”
In paragraph 18 – 20 of the said amended statement of claim it was averred as follows:-
“18. At the 1st Defendant’s head office the Plaintiff was informed that the balance of the account earlier stated by its letter dated 5 March 1992 was erroneous and that the actual amount due was only N820,326.39k. Thereupon, the Plaintiff wrote another union Bank of Nigeria Plc cheque for the amount said to be owing and demanded his title deed which he was told to collect later on 20th March, 1992 to give room for the cheque to clear. The cheque has since been cleared.
19. The Plaintiff shall establish that neither the sum of N1,081,242.00 nor N820,326.39 represents his appropriate indebtedness to the 1st Defendant. Rather, the amount owed as at 13 March, 1992 was N483,365.06k as per the judgment aforesaid.
20. The Plaintiff further contends that owing to this reckless and gross negligence by the 1st Defendant he has been denied the use of the sum of N336,961.33k being the difference between the sum of N820,326.39k (which was paid by the plaintiff) and the sum of N483,365.06k (which was the actual judgment debt owed by the Plaintiff to the 1st Defendant) as declared by the Honourable Court.

The above averments were not challenged by the 1st Respondents in their statement of defence except for mere denial. The defendant who wishes to deny an allegation must do so clearly and unambiguously so that the court and his adversary will with certainty know he is not admitting it. A traverse therefore must clearly allude to the fact pleaded and not be evasive and ambiguous. See ATTA & ORS VS NNACHO & ORS (1965) NWLR 28 and A.G. ANAMBRA STATE VS. ONISELOGU ENT. LTD (1987) 9- 11 S.C. 197 and EKO ODUME VS UME NNACHI (1964) ALL NLR 329.

Thus where as in this case the allegation of facts as averred to in paragraph 18 to 20 of the amended statement of claim is not specifically denied by the 1st Respondent against whom it was made, thereby joining issues on it, the said allegation shall in the circumstance deemed to be admitted. All that the 1st Respondent did was to aver in paragraph 11 of the statement of defence as follows:-
“In reply to paragraph 18, 19, 20, 21 and 22 of the statement of claim, the 1st Defendant denies the allegations therein and avers that the sale by auction is valid and made in good faith in that the 1st Defendant had no other motive in the sale of same except to realize the judgment due to it”.

It is glaring from the above averment that attention was focused on the sale by auction and no denial was made regarding the extra sum of N336,961,33k being claimed by the appellant as the difference between N820,326.39k paid to the 1st Respondent and the actual sum of N483,365.06 owed to it.

The learned trial did not address this issue in his judgment but dismissed the suit in its entirety having regard to reliefs (i) and (ii) claimed by the appellant but found to be statute barred. I believe that it would be proper to have excised those reliefs not affected by the limitation law from the others and make a finding accordingly.

In the circumstance, this court finds it necessary to invoke the provisions of section 15 of the Court of Appeal Act 2004 to rectify the anomaly inherent in the judgment of the lower court. See EZEIGWE Vs NWAWULU (2010) 4 NWLR (PT 1185) 159 and OBI Vs INEC (2007) 11 NWLR (PT 1046) 565.

Accordingly, this appeal succeeds in part.
The judgment of the lower court delivered on the 26th day of May 1998 is hereby affirmed, except for Reliefs (v) in the appellant’s amended statement of claim which is hereby granted as follows:-
Judgment is entered for the appellant in the sum of N336,961,33k (being the difference between N829,326,39k paid by the appellant to the 1st Respondent and N483,365,06, being the actual judgment debt) or being the over payment on the sum of N820,326,39k with 15% interest per annum from March 1992 till judgment and thereafter till the sum is liquidated.
Parties to bear their costs.

AMINA A. AUGIE, J.C.A.: I read in draft the lead Judgment just delivered by my learned brother Oseji, JCA, and I agree with his reasoning and conclusion. I have nothing useful to add because he covered the field entirely. I therefore adopt his Judgment as mine and also allow the appeal in part. I abide by the consequential orders in the lead Judgment including the order that the parties are to bear their own costs.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, SAMUEL CHUKWUDUMEBI OSEJI JCA. I agree with his Lordship’s reasoning and conclusions. The wordings of Sections 47 and 48 of the Sheriff’s and Civil Process Law are clear and unambiguous. They must be given their literal ordinary meaning. See Nwakire v. COP (1992) NWLR (Pt. 241) 289.
“After all, the primary rule of construction is the literal construction which requires that we give the words used in the statute and only those words, their ordinary and natural meaning, omitting no words and adding none, in the construction we arrive at, save in accordance with the recognized rules of construction.” Per Nnaemeka-Agu JSC.

The Sections constitute effective time bar to the appellant’s suit. The attempt by the appellant to draw a distinction between filing of an application to set aside the sale and a fresh suit to set aside the sale is as stated by my learned brother an attempt to pull the wool over the Court’s eyes. Whether by application or by a fresh suit, it must be within 21 days from the date of the sale of the property; not the date the appellant became aware of the sale.

My learned brother has exhaustively and lucidly dealt with all the issues raised in the appeal. I agree with his conclusions and I abide by the consequential orders including the order as to costs.

Appearances

Dr. K.U.K. Ekwueme with O. Awoniyi and O. MakanjuolaFor Appellant

AND

S. Adeseun with Y.A. Adegoke for 1st and 3rd Respondents
J.D. Oloyede with L.K.J. Layeni and A.K. Lawal for 4th – 7th RespondentsFor Respondent