PIUS NWABUEZE UMEH v. EDWARD OTTAH (2014)

PIUS NWABUEZE UMEH v. EDWARD OTTAH

(2014)LCN/7497(CA)

In The Court of Appeal of Nigeria

On Friday, the 31st day of October, 2014

CA/E/188/2012

RATIO

ACTION: CAUSE OF ACTION; WHEN DOES THE PRESCRIBED TIME WITHIN WHICH AN ACTION MUST BE COMMENCED BEGINS TO RUN

All sides agree that the date the cause of action accrued is not exposed in the writ of summons and statement of claim. As judicially restated by a long line of cases including Eboigbe v NNPC (1994) 6 SCNJ 71 the prescribed or limited time begins to run from the date the cause of action accrued. The period of time prescribed by law within which an action must be commenced in court, cannot be said to have expired when the date it commenced is not certain. Therefore an objection that an action is statute-barred because it is brought outside the limited time will fail, if the date the cause of action accrued is not certain or not stated in the writ of summons and or statement of claim. So the statement of claim must state the date of accrual of the cause for the action, so that the period prescribed by law within which such an action can be commenced would be reckoned from that date to the date the writ of summons was issued. See Military Administrator Ekiti State & Ors V. Aladeyelu & ors (2007) 4-5 SC 201, and Williams V Williams (2008) 10 NWLR (pt.1095) 364 (SC). per. EMMANUEL AKOMAYE AGIM, J.C.A.

PRACTICE AND PROCEDURE: TRIAL OF A DEMURER; THE TRIAL OF A DEMURER MUST BE BASED ON WHAT

APPEAL: DECISION NOT APPEALED AGAINST; WHETHER THE DECISION OF THE COURT NOT APPEALED AGAINST IS DEEMED ACCEPTED

There is no ground of this appeal complaining against the decision of the trial court not to rely on the said affidavits and Exhibits to determine the objection. By not appealing against this holding, the parties herein have accepted it as correct, subsisting and binding. The Supreme Court in Iyoho v. Effiong (2007) 4 SC (pt. iii) 90 held that “it is settled law that a decision of the court not appealed against is deemed accepted by the party against whom the decision was entered and therefore binding.” See also SPDC Nigeria LTD & Anor v X M Federal Ltd & Anor (2006) 7 SC (Pt. ii) 27 and Biariko v Edeh- Ogwuile & Ors (2001) 4 SC (Pt. ii) 96. per. EMMANUEL AKOMAYE AGIM, J.C.A.

STATUTE OF LIMITATION: ACTION THAT STATUTE BARRED; WHEN IS A CAUSE OF ACTION SAID TO BE STATUTE BARRED

The question now is whether it is the correct procedure to revert to affidavit evidence in order to discover the date when the cause of action arose or accrued to the plaintiff? In answer to this question, I should refer to the decision in Egbo vs. Adefarasin (1987) 1 SC where the apex Court, per Oputa JSC of blessed memory, held that:- “A cause of action is thus said to be statute barred, if, in respect of its proceedings cannot be brought because the period laid down by the limitation law or Act had elapsed. 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 on which the Writ of Summons was filed. This can be done without taking oral evidence from witness. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.” Emphasis supplied on words underlined. Per. SAIDU TANKO HUSAINI, J.C.A.

JUSTICES

AMIRU SANUSI (OFR) Justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

Between

PIUS NWABUEZE UMEH – Appellant(s)

AND

EDWARD OTTAH – Respondent(s)

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): On 26 -10 – 2004, the respondent herein as plaintiff filed a claim in the High Court of Enugu State at Enugu and caused a writ of summons to issue on 10 – 11 – 2004 commencing suit No. E/815/04. On 28 – 04 – 2005, the plaintiff filed his statement of claim wherein he claimed for:-

(i) A declaration that the property situate and known as No. 2 Mounts Lane Awkunanaw, Enugu is and was at all material times the bona fide property of the plaintiff.

(ii) A declaration that the deed of assignment registered as No. 1 Page 1 Volume 1402 was not executed by the plaintiff and at no time did he negotiate to transfer the property to the defendant who has not furnished any consideration to him so as to effect the purported assignment which is invalid null and void.

(iii) An Order of court revoking the said Deed of Assignment and directing the Registrar of Deeds, Lands Enugu to Expunge the same from the records kept at the Registry of Deeds Enugu.

(iv) Perpetual injunction restraining the first defendant, his servants, workmen and or agents from further acts of trespass on the said property.

(v) N100, 000.00 (One Hundred Thousand Naira) only being damages for trespass.

By a motion on notice dated and filed on 29 – 06 – 2011, the defendant (appellant herein) applied for an order striking out the substantive suit on the ground that the suit is statute barred and the court lacks the jurisdiction to entertain it and for such further orders as this honourable court may deem fit to make in the circumstances. The motion is supported by an affidavit of 7 paragraphs deposed to by one Chief Ikechukwu Umeh as Attorney of the defendant and supported by power of attorney, deed of lease of 19 – 4 – 1975 and unregistered assignment of 7 – 3 – 1991. It was accompanied by the address in support of the motion. The plaintiff filed a counter affidavit deposed to by Mr Kenneth Ottah, Attorney and younger brother to the plaintiff. It is accompanied by the plaintiff’s address in opposition to the motion and Exhibits A to B38. The defendant filed a further affidavit also sworn to by Chief Ikechukwu Umeh and accompanied by Exhibits FA1 to FA2 and a written address.

After hearing both sides in respect of the motion, the trial court rendered its ruling on 3 – 4 – 2012, holding that the motion on notice was premature and incompetent, struck same out and adjourned the Suit for pre-trial proceedings. Dissatisfied with the ruling of the trial court, the defendant on 3 – 04 – 2012 commenced this Appeal No. CA/E/188/2012, by filing a notice of appeal containing only one Ground of Appeal.

Both parties to this appeal have filed, exchanged and adopted their briefs of arguments, namely; Appellant’s Brief, Respondent’s Brief and the Appellant’s reply brief. The appellant’s brief raised one issue for determination as follows –

“Whether Suit No. E/815/2004 was Statute-Barred.”

The respondent’s brief raised the same issue for determination.

I will determine this appeal on the basis of the sole issue for determination in the appellant’s brief.

Learned Counsel for the appellant argued that the respondent’s Suit No. E/815/2014 at the trial court was statute-barred having regard to Ss. 12(c) and 22(2) of the Actions Law, Cap 3 Laws of Anambra State 1986, the Law in force at the time the Suit was filed. According to him, the cause of action accrued on 7 – 03 – 1991, when the Suit property was sold to the appellant and both the property and the tenants therein were handed over to the appellant, and that the fact that the respondent carefully avoided stating the date on which the cause of action arose, should not be an advantage to him. Learned Counsel submitted further that by failing to sue the appellant within 12 years from the date the cause of action accrued that is 7 – 03 – 1991, the respondent’s right of action ceased to exist by virtue of Ss. 12 (c), 22 (2) and 23 (1) of the Actions Law and so the suit No. E/815/2004 brought on 8 – 11 – 2004 was statute-barred. For the above submissions, Learned Counsel relied on EGBE v ADEFARASIN (1987) ANLR 1 at 10 – 14, ABIOLA v. OLAWOYE (2006) 13 NWLR (pt. 9961) 1 at 22 and ELABANJO & ANOR v DAWODU (2006) 15 NWLR (pt. 1001) 76 at 100 and 123 – 124. He finally urged this court to resolve the lone issue in favour of the appellant and hold that Suit No. E/815/2004 in the trial Court was statute-barred.

Learned Counsel for the respondent argued replicando that the appeal is incompetent because no leave of court was sought to argue the issue of mixed law and facts, which the dispute as to the date the cause of action accrued gave rise to. Learned Counsel also argued that the Suit property was under a mortgage and until a deed of release, following payment of the debt, has been registered, no dealing in respect of the said property can be entertained at the Registry of Deeds, Ministry of Lands. Learned Counsel referred to facts in the record of this appeal showing that as at 05 – 10 – 1999 the deed of release was yet to be delivered by the mortgagee.

Learned Counsel for the respondents then Submitted that the concealed fraud of the appellant was only known to the respondent in 1998 when he returned from the United States of America for the memorial service of his late father and that the claim in the circumstances is not caught by the limitation period as the appellant will not be allowed to use the statute as a vehicle to cover his fraudulent activities. He further submitted that even if the suit is statute-barred, Ss. 12 (C) and 22 (2) of the Action Law are subject to S. 42 (a), (b) and (c) which provides that where there is mistake or fraud, the limitation period is postponed and will not operate, as equity will give relief from such limitation on account of fraud, accident or mistake. Learned Counsel then urged this court to dismiss the appeal as it is devoid of merit.

Let me now consider the above arguments of Learned Counsel for both sides.

The facts forming the cause for the action in Suit No. E/815/2004 at the trial court are stated in paragraphs 4 – 21 of the statement of claim as follows –

4. On or about 19th April 1975, Chief Mathias Agbo leased the said property to Mr Edward Ottah which was duly registered as No. 6 Page 6 Volume 815 Lands Registry Enugu.

5. By a Deed of Mortgage dated 27th day of August, 1980, the said Edward Ottah stood as surety for one Vincent Ugorji Mba who borrowed a sum of money from United Bank for Africa Ltd in respect of which the Mortgage Deed was duly registered as No. 61 Volume 1053 Lands Registry Enugu which is hereby pleaded.

6. The Deed of Release in respect of the mortgage has not been registered. The same is hereby pleaded.

7. The plaintiff at all material times has not donated any irrevocable power of attorney to any person whatsoever to sell, alienate, mortgage or dispose of his interest in the said property to any person whatsoever.

8. The plaintiff departed Nigeria for the United States of America for further studies on the September, 1984 and never came back to Nigeria until 30th April, 1998 to attend the one-year memorial service and ceremony of his late father Chief A. O. Ottah.

9. At the trial, photocopies of his International Passport No. 1281790 will be relied upon to confirm his departure date whilst page 6 of his International Passport No. B 803301 of 5th August 1993 will confirm his arrival date as 30th April 1998.

10. The plaintiff’s late father on health grounds departed Nigeria from Murtala Muhammed International Airport on 11th June, 1994 and spent 5 (five) months in the United States of America before returning to Nigeria. At the trial, Chief A. O. Ottah’s International Passport No. 460815 issued on 14th August, 1989 will be relied upon.

11. The plaintiff’s attention was drawn to a purported Deed of Assignment said to be made between him and one Pius Nwabueze Umeh and registered as No. 1 Page 1 volume 1402 Lands Registry, Enugu.

12. The plaintiff was not a signatory to the instrument and neither does he know one Lazarus Odoh who signed as a witness to his purported signature on 4th August, 1994 when he was not in Nigeria.

13. The plaintiff on further investigation got the information that his late father Chief A. O. Ottah had the intention to sell the property and had collected some money from one Ikechukwu Umeh.

14. The plaintiff on receiving the information advised his late father Chief A. O. Ottah not to sell his (plaintiff’s) property and that he should arrange to refund Mr Ikechukwu Umeh the money he collected from him.

15. Chief A. O. Ottah later informed the plaintiff that he had reached an agreement with Mr Ikechukwu Umeh permitting him to collect rent from the property from 1992 to 1995 in order to realize the amount he paid to Chief A. O. Ottah.

16. The plaintiff denies that the signature accredited to him in assignment dated 4th August, 1994 is not his own and that the said witness One Lazarus Odoh is not known to him whatsoever. The said signature differs from the plaintiff’s authentic signature in his International Passport and the Lease Agreement with Chief Mathias Agbo which was registered as No. 6 Page 6 Volume 815 Lands Registry Enugu.

17. The said Chief A. O. Ottah never gave any receipt to Mr Ikechukwu Umeh for the purchase of the property after the plaintiff advised him not to sell his (plaintiff’s) property. The defendant has no such receipt of purchase. The plaintiff will at trial produce a photocopy of the receipt sent to the late Chief A. O. Ottah for his signature which he declined to sign.

18. During the lifetime of Chief A.O. Ottah, he had retained the services of Barrister G. C. Obiora – Onyia to arrange for the sale of this property to one Mr Ikechukwu Umeh who throughout the transaction was represented by Messrs. G. N. Okonkwo & Associates Legal Practitioners.

The 1st defendant is hereby given notice to produce the letter dated 8th January, 1991 to his solicitor.

19. On behalf of the plaintiff, who was in the United States of America, his mother Mrs C. Ottah on 19th December, 1997, wrote the Manager UBA Ltd not to release the original Deed of Release of the Legal Mortgage of the property to G. N. C. Okonkwo & Associates without the consent of his son when she got information that the defendant was seeking to obtain this in order to register the assignment to which the plaintiff was not privy to. The said letter is hereby pleaded.

20. The plaintiff through his solicitor H. C. F. Ebue (now late) on 16th December, 1997 applied for caution to be entered against any dealings in respect of the said property to the Registrar of Deeds, Lands Enugu after payment of the Caution Fee on the Receipt No. 0274457. The second defendant is hereby given notice to produce the said Notice.

21. The said Registration of the Assignment without a Deed of Release being filed and registered by the plaintiff is irregular, unlawful, and null and void and was done clandestinely.

The part of the ruling of the trial court complained against in this appeal held that –

“However, the issue of fraud which has been raised in the statement of claim has compounded the application of the limitation period in this Suit. Ordinarily, the period of the limitation from the manner the cause of action has been framed in this Suit is not easily deducible from the pleadings. The agreement for refund through the collection of rents was for the period 1992 – 1995.

The dispute on the deed of release and subsequent entering of caution in the Land Registry was in December, 1997 it would appear that the cause of action accrued in 1992. From 1992 to 8th November, 2004 is about 11 years or thereabout which is less than 12 years limitation period.

But much cannot be done at this stage in view of the allegation of fraud and failure of the defendant to file his pleadings to date. The exact day or month when the cause of action arose in 1992 is not known. Even if it started in January, 1992, it will not be up to 12 years by 8th November, 2004 when this Suit was filed.

In any case, it is my humble view that the absence of further oral evidence on when the cause of action actually accrued to the plaintiff in this suit, the state of pleadings and the date on which the writ of summons was filed. This case is not statute-barred. I am therefore persuaded by the special circumstances of this case especially the allegation of fraudulent acts on the part of the plaintiff to assume jurisdiction and hear and determine this case on the merit”

The starting point for the determination of this issue of whether an action is statute-barred is to determine when the cause for the action accrued. In our present case, it is obvious that both sides dispute the date the cause of action accrued. In resolving this dispute, the trial court was obviously equivocal. After holding that the date was not stated in the writ of summons and statement of claim, it held that “it would appear that the cause of action accrued in 1992”. Further in its ruling, it held that “it is my humble view that in the absence of further oral evidence on when the cause of action actually accrued to the plaintiff in this suit, considering the state of the pleading and the date on which the writ of summons was filed, this case is not barred”. The statement of the trial court that “it would appear that the cause of action accrued in 1992” is based on the averment in the statement of claim that the respondent’s father who sold the property to the appellant had reached an agreement with the appellant through his attorney, permitting the appellant to recover the money he paid to the respondent’s father for the purchase of the respondent’s property by collecting rents from the suit property from 1992 to 1995.

In our present case, the date relied on by the appellant for his objection that Suit No. EN/815/2014 is statute barred is 07 – 03 – 1991 as the date the cause for the action. This date is obviously not contained in the statement of claim. The implication of this position is that there was no factual basis for the demurrer.

The procedure used by the appellant in making the objection is legally wrong for the following reasons. Firstly, the Enugu State High Court Rules 2006, which was the rules applicable as at 24 – 06 – 2011 to all civil proceedings including all partly heard cases and matters as to the steps to be further taken in such cases by virtue of Order 1 Rule 1 (1) and (3) therein, had in its Order 22 Rule 1 abolished demurrer. Therefore, a defendant could no longer raise a legal defence by motion without filing a statement of defence (demurrer). Therefore, the appellant’s motion on notice to strike out the suit for being statute-barred filed on 24 – 06 – 2011 should not have been brought by virtue of Order 22 Rule 1 of the 2006 Enugu State High Court Rules.

Generally, it is trite law that the trial of a demurrer must be based exclusively on facts in the writ of summons and statement of claim. The objection postulates that the facts in the statement of claim taken as admitted disclose no cause of action or disclose a legal feature that defeats the right of action even if a cause of action exists or that renders the action incompetent. However, in some exceptional circumstances where undisputed facts showing that the court lacks jurisdiction to entertain the matter or that the action is incompetent, have emerged and formed part of the record before the court by other means outside the statement of claim, such an objection has been allowed by courts on the basis of such undisputed facts on the principle that an objection to the jurisdiction of a court to entertain a case can be raised and tried at any stage of the proceedings in a case. So the underlying notion is that the factual basis of the objection must not be in dispute. In our present case, it is glaring from the affidavit in support of the defendant’s motion on notice, the plaintiffs counter affidavit in opposition, the defendant’s further affidavit and the massive documentary exhibits accompanying their respective affidavits and the addresses of counsel on their behalf that both sides did not agree on when the cause of action accrued. It remained a triable issue on the affidavits. A demurrer cannot be based on such a disputed fact.

The appellant should have filed a statement of defence, stating therein facts showing clearly the date the cause of action accrued, pleading the defence of limitation of action and raising it as a point of law for the court to try before or at the trial as required by Order 22 Rule 2 (1) of Enugu State High Court Rules 2006. This point was argued before the trial court by Learned Counsel for the respondent in his written address in opposition to the appellant’s motion applying to strike out the suit for being statute-barred. The trial court correctly decided the point in its ruling thus –

“I am enjoined by the decision of the Supreme Court in a plethora of cases to look at the statement of claim as it relates to the cause of action and when it arose and compare it with the date the Suit was filed in order to determine the number of years the action has accrued to the plaintiff/respondent. Thereafter I shall by simple arithmetic determine whether the action was brought within the time allowed by law or outside the same. If it is outside the limitation period, the action is statute-barred. If it is within the period, the Suit will be declared competent and the court will assume jurisdiction to hear and determine same. In order words, I am not allowed to look at the affidavit evidence filed by the defendant/appellant, neither are the contentious Exhibits annexed to the affidavit relevant in the determination of the period of limitation in this case”.

As is obvious from the portion of the ruling earlier reproduced at pages 8, 9 & 12 of this judgment, the trial court relied exclusively on the writ of summons and statement of claim in determining the appellant’s objection to the suit. It did not consider the affidavit and further affidavit in support of the motion on notice and the counter affidavit thereto with the Exhibits annexed to all the said affidavits in determining the objection.

The appellants having accepted the decision of the trial court that the affidavits and Exhibits are not relevant materials for the determination of the objection as correct and binding, cannot validly rely on the same Affidavits and Exhibits in support of this appeal. The submission of the Learned Counsel for the appellant that –

4. 1. 2. My Lords, the facts in support of this appeal is contained in the affidavit evidence in support of the Appellant’s Motion before the lower court (Pp. 9 to 20 of the Record) and paragraph 3.06 of the statement of facts herein were not disputed by the Respondent (see the last paragraph of page 9 of the Record).

It is therefore obvious that the cause of action accrued on 07/03/1991 when the property in issue was sold to the Appellant and both the property and the tenants were handed over to the Appellant. The vendor remained alive until he died in 1998.

The fact that the respondent carefully avoided stating the date on which the cause of action arose, that is, when the alleged wrong was committed should not be advantage to him.

4.1.3. By failing to sue the appellant within 12 years from the date the cause of action accrued that is 07/3/91, the respondent’s right of action is caught by Sections 12 (c), 22 (2) and 23 (1) of the Actions Law(supra.) hence the suit No. E/815/2004 brought on 08/11/2004 was statute-barred, runs contrary to the said unchallenged part of the ruling of the trial court. It is therefore invalid. It is trite law that a party in an appeal cannot validly argue contrary to any holding, finding or decision not appealed against. See Adejobi V State (2011) LPELR 97 (SC)

The above reproduced portion of the argument of the Learned Counsel for the appellant constitutes the substance or the heart of the argument of this appeal. Since it is invalid, it follows that the entire appeal has collapsed.

Another part of the ruling of the trial court against which there is no appeal is the holding that, however, because of the allegations of fraud in the sale of the suit property contained in the statement of claim, it would assume jurisdiction, hear and determine the case on the merit. According to the trial court “the issue of fraud which has been raised in the statement of claim has compounded the application of the limitation period in this suit.” By not appealing against this part of the ruling of the trial court, the appellant accepted the holding as correct and binding. See Iyoho V Effiong (supra), SPDC Nigeria LTD & Anor V X M Federal Ltd & Anor (supra) and Biariko V Edeh- Ogwuile & ors (supra). Therefore he cannot argue contrary to this part of the ruling.

The only ground for this appeal, the lone issue in this appeal and the only argument in this appeal is that Suit No. E/815/2004 was statute-barred and therefore should be struck out. As it is glaring from the appellant’s brief of argument, the entire appeal is based on S. 12 (c) and s. 22 (2) of the Actions Law of Anambra State cap 3 1991 Revised Edition of its Laws which provides that: –

12(c) Lapse of Time: – Where the time allowed under the law for bringing action in respect of a particular matter has lapsed.

22 (2) No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it accrued to some person through whom he claims, to that person:

23 It is curious that the appellant chose to rely on the Action Law of Anambra State, when Enugu State, where the cause of action occurred and where the case is filed has its own Action Law. As at 26-10-2004, when this suit was filed in the High Court of Enugu State, the applicable limitation statute in Enugu State was the Actions Law Cap 4 2004 Revised Edition of the Laws of Enugu State and not the Actions Law of Anambra State. Enugu State was created out of Anambra State on 27-8-1991. S. 4 of States (Creation and Transitional Provisions) No. 2 Decree of 1991 ensured that all existing Laws inforce in Anambra State on the 27-8-1991 continued to be applicable to Enugu State. The Revised Edition of the Laws of Enugu state 2004 came into force on 31-12-2004 by virtue of S. 1 of the Introduction to the Revised Edition of the Laws of Enugu State 2004. The date of the Action Law cap 4 of the said Revised Edition is 27-8-1991, which is its own effective date. So the relevant statute of limitation is the Action Law of Enugu State. S. 12 (c) therein is exactly the same with S. 12 (c) of Action Law of Anambra. S.22 (2) of the Enugu State Law is different from S. 22 (2) of the Anambra State Law. While the time limited for land recovery actions in the Anambra State law is 12 years, in the Enugu state law it is 20 years. For ease of reference, S. 22 (2) of the Actions Law of Enugu state is reproduced here. It states that- “No action shall be brought by any other person to recover any land after the expiration of twenty years from the date on which the right of action accrued to him or, if it accrued to some person through whom he claims, to that person:

Without appealing against the part of the ruling of trial court which in essence held that these provisions will not bar it from exercising jurisdiction to the suit on the merits because of the allegations of fraud in the statement of claim, this appeal cannot be sustained.

The implication of the said holding of the trial court is that, even if the action was brought outside the limited period of 12 years or 20 years, the court can still hear it on the merits and no limitation law including Ss. 12 and 22 of the Actions Law can operate to bar the said hearing. This appeal runs contrary to this unchallenged holding. The sole ground of this appeal the issue for determination and appellant’s arguments in this appeal are therefore invalid.

Assuming the said ground of appeal, issue and arguments herein were valid, this appeal will lack merit in view of the statement of claim and S. 42 (a) and (b) of the Actions Law Cap 4 2004 Revision of Enugu State Laws. S. 42 of the Actions Law States that: “where, in the case of any action for which a period of limitation is prescribed by this law, either –

(a) The action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agents; or

(b) The right of action is concealed by the fraud of any such person as aforesaid; or

The period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:” Exactly the same provision is contained in S. 42 of the Actions Law of Anambra State.

It is glaring from the clear words of this provision that it does not defeat or nullify the operation of S. 12 (c) and S. 22 (2) of the same Actions Law. It did not state that claims alleging fraud or mistake are not subject to statutes limiting the time for bringing such claims. What S.42 has done is to modify the effect of S. 22 (2) of the Actions Law with respect to the date the period of limitation shall start running. Whereas S. 22 (2) states that it shall start running from the date of accrual of the right of action, S. 42 states that the period of limitation in the cases listed therein shall start running from the date the plaintiff discovered the fraud or the mistake as the case may be, or could with reasonable diligence have discovered it. So an action based on the fraud of a defendant or his agent or where the right of action is concealed by the fraud of a defendant or his agent or where the action is for relief from the consequence of a mistake must be brought to court within the period limited by statute or other law for bringing such action. If it is brought outside such period, the right of action would become unenforceable and any action brought in exercise of that right cannot be entertained and tried by the courts. Allegations of fraud or mistake in the statement of claim cannot prevent the application of any law limiting the time for bringing such actions.

In our present case, it is clear from paragraphs 7 to 21 of the statement of claim already reproduced herein at pages 5 to 8 of this judgment that this action is based on allegation of fraud of the appellant and or his attorney, Mr Ikechukwu Umeh and the respondent’s father and that the right of action is concealed by the fraud of the appellant and or his said attorney. Paragraphs 8, 9 and 10 of the statement of claim states that the plaintiff left Nigeria to the United States of America for further studies and did not come back till 30 – 04 – 1998, when he came to Nigeria and attended one memorial ceremony in honour of the late father, Chief A. O. Ottah and that the father had been in the United States of America from 11 – 06 – 1994 for five months for medical treatment. Paragraphs 11, 12, 13, 14 and 15 states that the plaintiff’s attention was drawn to the deed of assignment of the suit property registered as No. 1 in Page 1 Volume 1402 at Enugu Lands Registry, that on further investigation got information that his father had collected money from the appellant’s attorney to sell the suit property and that on receiving the information he advised his late father Chief A. O. Ottah to refund the money to appellant’s attorney and not to sell the suit property. The statement of claim did not state the exact date the plaintiff became aware of the assignment. It is clear from the statement of claim that the limitation period should be reckoned from the date the plaintiff became aware of the assignment or could with reasonable diligence have discovered it.

The appellant was therefore wrong to have argued that the limitation period began to run from the date the right or cause of action accrued. The objection which proceeded from this wrong premise was ab initio ill fated. There was nothing to show that 12 years or 20 years had elapsed from the date the right of action accrued to 26-10-2004, when the suit was filed.

In the light of the foregoing, I hold that this appeal fails as it lacks any iota of merit. It is hereby dismissed. The ruling of the High Court of Enugu state in suit No. E/815/04 delivered on 3-4-2012 is hereby affirmed.

The appellant shall pay cost of N100, 000 to the respondent.

AMIRU SANUSI, J.C.A.: I have the advantage of reading before now the Judgment just delivered by my learned brother Agim JGA. I agree entirely with the reasoning and conclusions arrived therein that the appeal is devoid of any merit. The appeal is therefore accordingly dismissed by me. I endorse the order on costs made in the lead Judgment.

SAIDU TANKO HUSAINI, J.C.A.: I have had the advantage of reading in draft the lead Judgment just delivered by my Learned brother, Emmanuel Akomaye Agim, JCA to which I agree in toto. My Lord, permit me to make a few remarks.

On the 24th day of June, 2011 the appellant, the Defendant at the Court below through his Counsel filed a Motion on Notice objecting to the Jurisdiction of the Lower Court to hear Respondent’s (Plaintiff) Suit on account of the Suit being Statute barred and for reason of which the Court lacked Jurisdiction to entertain the claim.

The Respondent filed a Counter-Affidavit to the said Motion prompting a further affidavit being filed by the Appellant, the Defendant/Applicant at the lower Court.

The Motion on Notice came up and was argued on 14th March, 2012 after which ruling was reserved to the 3rd April, 2012. The Lower Court in a considered Ruling delivered same day struck out the application and held that the suit was not statute barred.

This Ruling delivered at the Court below gave birth to the instant appeal which was argued based on the lone issue prepared and raised by the Appellant in his brief of argument, the issue being “whether the suit No. E/815/2004 filed by the Respondent was statute barred.

The contention by the Learned Appellant’s Counsel that the Suit was statute barred was premised on the provisions of the Actions Law, Cap 3 Laws of Anambra State 1986, the statute in force at that material time and also on facts deposed to in the affidavit in support of the Motion on Notice which they filed at the lower Court, challenging the competency of the Suit. Section 12 C of the Actions Law of Anambra State provides:-

“12. A right of action shall cease to exist in the following circumstances:-

(a) xxx

(b) xxx

(c) lapse of time – where the time allowed under the law for bringing action in respect of a particular matter has lapsed;

(d) xxx

(e) xxx

(f) xxx

(e) xxx

Section 22 (1)xxx

“No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it accrued to some person through whom he claims to that person.”

For the purpose of computation of the period of 12 years, limited by statute, time begins to run against the plaintiff (Respondent) from the date the cause of action arose. The Appellant or Learned counsel representing him gave the 07/03/1999 as the date the cause of action arose. This date as can be seen was extracted and drawn from facts in the affidavit evidence deposed to by the appellant in support of his application at the lower Court. The question now is whether it is the correct procedure to revert to affidavit evidence in order to discover the date when the cause of action arose or accrued to the plaintiff?

In answer to this question, I should refer to the decision in Egbo vs. Adefarasin (1987) 1 SC where the apex Court, per Oputa JSC of blessed memory, held that:-

“A cause of action is thus said to be statute barred, if, in respect of its proceedings cannot be brought because the period laid down by the limitation law or Act had elapsed. 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 on which the Writ of Summons was filed. This can be done without taking oral evidence from witness. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.”

Emphasis supplied on words underlined.

So it is the Writ of Summons and the statement of claim and not facts contained in the affidavit evidence that must be looked into in determining the period of limitation set by statute.

Learned Appellant’s Counsel had in his brief of argument cited the decision in Egbe v. Adefarasin (supra) but it appears to me that he was not guided by it.

Again, the apex Court in Fadare & Ors. v. Attorney General of Oyo State (1982) 4 SC 1, 24-25 has held that:

“Time begins to run when the cause of action arises. See Solomon v. African Steemship Ltd. 9 NLR 99. Also Board of Trade v. Cayner, Irvine and Co. Ltd. (1927) A.C 610. Time therefore begins to run when there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. Cooke v. Gill (1873) LR 8 CP 107, 119. See: Letong v. Cooper (1955) 1 Q.B 222, 242).”

Unless it so clearly shown in the Writ of Summons and statement of claim of the date the cause of action arose, the computation of the period of Limitation becomes difficult to ascertain. This is the problem the appellant and his Counsel found themselves in. But the onus is on them to establish that the suit instituted by the respondent was statute barred. They failed and so this appeal deserve a dismissal Order.

From the more elaborate, comprehensive and detailed analysis of issues arising in this appeal as contained in the lead judgment, I too agree that this appeal lack merit and should be dismissed. I so order. I abide by the Order as to cost.

Appearances

IZU NWANKWO Esq. with K.C. NwankwoFor Appellant

AND

DR E. E. J. OKEREKE with P.C. MbahFor Respondent