MALLAM ADAMU IBRAHIM & ORS v. ALHAJI ISA YA?ATA YUSUF
(2016)LCN/8246(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/K/238/2013
RATIO
PRACTICE AND PROCEDURE: HOW TO CONSIDER WHETHER IS STATUTE BARRED OR NOT
That in determining whether a suit is statute barred or not the claim(s) as endorsed on the Writ of Summons and the statement of claim are to be considered, not the statement of defence. The cases of Nkuma v. Odili (2006) All FWLR (Pt.313) P.24 @ 35; Ogoejufo v. Ogoejofo (2000) FWLR (Pt.63) P. 141 @ 151 and Intercity Bank Plc v. Alhaji Ali (2002) FWLR (Pt.126) P.838 @ 853 were cited to buttress the submissions Supra. Learned counsel further contended that where the issue is whether or not a plaintiff’s suit is statute barred or not, the Court is to compare the date the cause of action accrued with the date the writ of summons and the statement of claim alleging the wrong was filed. Reliance was placed on the cases of Mrs. M. N. Oranyeli v. First Bank of Nigeria PLC (2001) FWLR (Pt.68) P.1217 @ 1225 and Chief Woherem v. Emere-gyva & Ors (2004) All FWLR (Pt.221) P.1570 @ 1581. per. IBRAHIM SHATA BDLIYA, J.C.A.
PRACTICE AND PROCEDURE: WHAT THE COURT IS TO DETERMINE WHERE A PLEA THAT AN ACTION IS STATUTE-BARRED IS RAISE BEFORE TRIAL
Where a plea that an action is statute-barred is raised before trial, the Court is to determine when the cause of action arose and when the suit was filed. The Court must decide by looking at the statement of claim for the date when the cause of action arose, and the writ of summons for date when the action was filed. No other process can be considered. The defendant must rely on the date pleaded by the plaintiff rather than the date pleaded in the statement of defence unless, the date when the cause of action arose is admitted by the plaintiff in his reply. Adeyemi v. Opeyori (1976) 9-10 SC 31; Izeikwe v. Nnadozie (1953) 14 WACA 361; Aremo II v. Adekanye (2004) 13 NWLR (Pt.891) 572; Woherem v. Emereuwa (2004) 13 NWLR (Pt.890) 398. See also Kasandubu & Anor v. Ultimate Pet. Ltd. (2008) 7 NWLR (Pt.1086) P.274 @ 297.
In order to determine if a party’s action is statute barred, the Court is only enjoined to look at the plaintiff’s claim. The period of limitation is determined in a case by looking at the writ of summons and the statement of claim, which allege when the wrong suffered by the plaintiff was committed, and placing it aside by side with the date on which the writ was issued. If the writ was issued beyond the time allowed by the applicable law, the action is statute barred. Sanni v. Okene L.G. (2005) 14 NWLR (Pt.944) 60; Adaji v. Amodu (1992) 8 NWLR (Pt.260) 472; U.B.N. Ltd. v. Oki (1999) 8 NWLR (Pt.614) 244; Emiator v. Nigerian Army (1999) 12 NWLR (Pt.631) 362 referred to. per. IBRAHIM SHATA BDLIYA, J.C.A.
PRACTICE AND PROCEDURE: WHAT IS A CAUSE OF ACTION? WHEN IS A CAUSE OF ACTION DISCLOSED OR ACCRUED?
In Amede v. UBA (2008) 8 NWLR (Pt.1090) P.623 @ 656, cause of action has been defined as the facts which establishes or gives rise to a right of action. It is the factual situation which gives a person a right to a judicial relief. Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Yusufu v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt.359) 676; L.U.T.H & M.B v. Adewole (1998) 5 NWLR (Pt.550) 406. Cause of action means the factual situation, which if substantiated, entitles a plaintiff to a remedy against a defendant. See Kasandubu v. Ultimate Pet. Ltd. (2008) 7 NWLR (Pt.1086) P.274 @ 302; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) P.1.
The term cause of action can also be defined as the fact or facts which establish or give rise to a right of action. A factual situation whose existence entitles the plaintiff to obtain from the Court of law, a remedy against the defendant. Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Yusuf v. Co-operative Bank Ltd, (1994) 7 NWLR (Pt.359) 676; U.B.N Ltd. v. Oki (1999) 8 NWLR (Pt.614) 244; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1; Ogbimi v. Ololo (1993) 7 NWLR (Pt.304) 128. per. IBRAHIM SHATA BDLIYA, J.C.A.
COURT: WHETHER A COURT CAN RAISE AN ISSUE SUO MUTO IN THE HEARING OF A CASE
The law is trite, a Court can raise an issue suo motu in the hearing of a case but it must allow the parties to be heard on the issue so raised before taking a decision. The Supreme Court in the case of Chami vs. UBA Plc (2010) 6 NWLR (Pt.1191) p.474 @ 500 held that where a trial Court raised an issue suo motu without asking the parties to address on it, and went to take a decision, such a decision cannot be sustained and on appeal’ In Ndele & Ors v. Agiri & Ors (2009) 18 NWLR (Pt.1173) P. 219 @ 252, the Supreme Court held that a Court will be in error to raise any issue suo motu without affording the parties the opportunity to address on it. See also Atanda v. Lakami (1974) All NLR P.1; Olusanya v. Olusanya (1983) 1 SCNLR P.1 and Aja’o v. Ashiru (1973) 1 All NLR P.51.
This Court, in the case of Igbeke v. Emordi (2010) 11 NWLR (Pt.1204) P. 1 @ 33 per Ariwoola J.C.A, enunciated that:
“though it is ordinarily not offensive for the Court or Tribunal to raise an appropriate issue suo motu but it is already settled law, that where a Court raises an issue suo motu, it must afford the parties or their counsel the opportunity to address the Court on such an issue so raised. This is to ensure compliance with the rules of fair hearing for the purpose of doing justice to both parties. See Dlek (Nig.) Ltd’ v. Oil Mineral Producing Areas Dev. Commission (OMPADEC) (2007) 4 SCM 75 at 98; (2007) 24 WRN 1, (2007) 29 NSCQR 1706; (2007) 7 NWLR (Pt.1033) (402); Bello Ogundele & Anor. v. Shittu Agiri & Anor. (2009) 11-12 SCM (Pt.1) 95 at 100 – 101; (2009) 18 NWLR (Pt.1173) 219; Shasi & Anon v Smith & Ors. (2009) 12 (Pt.2) 146 at 156; (2009) 18 NWLR (Pt.1173) 330. ” per. IBRAHIM SHATA BDLIYA, J.C.A.
PRACTICE AND PROCEDURE: THE IMPLICATION OF A SITUATION WHERE A PARTY FAILS TO ADDRESS A COURT ON AN ISSUE RAISED SUO MOTU
The Law is trite, where a party is given the opportunity to address a Court on an issue raised suo motu but neglected or failed to do so, he cannot be heard to complain of denied of fair hearing. See Chami v. UBA Plc (2010) 6 NWLR (Pt.1191) P. 474 @ 497. On the 27/2/2013 the Lower Court made an order that parties file written address on the issue raised by the learned trial Judge regarding the competence of the suit before it in view of the provisions of Section 4 of the Limitation Law, 1991. per. IBRAHIM SHATA BDLIYA, J.C.A.
COURT: ADJOURNMENT; WHETHER IT IS AT THE DISCRETION OF THE JUDGE TO GRANT AN ADJOURNMENT
The law is trite, the granting of an adjournment is at the discretion of the Judge. Adjournments are not just granted for the asking of it. There must be cogent and reasonable materials placed before it to enable it exercise its discretion in favour of the application or not. per. IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
Between
1. MALLAM ADAMU IBRAHIM
2. IBRAHIM MOHAMMED
3. AUDU MOHAMMED NDAGI
4. ABDULLAHI MOHAMMED AGABA
5. AMINA MOHAMMED
6. HAUWA MOHAMMED Appellant(s)
AND
ALHAJI ISA YA?ATA YUSUF Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Kaduna State High Court (the Lower Court) in suit No.KDH/KAD/248/2012 delivered on the 14th of March, 2013. By a Writ of Summons and Statement of Claim the appellants (as plaintiffs) sought the following orders against the respondent (the defendant) at the Lower Court.
“(A) A DECLARATION that the pledge of two (2) rooms in the property No.YY.12 Kazaure Road, Kaduna made by the Plaintiffs’ grandmother, Madam Fatima, in favour of the defendant’s father has been amortized through receipts by way of rent collected by the defendant’s father and the defendant from the property till date.
(B) AN ORDER releasing to the plaintiffs six (6) rooms being occupied by the defendant and his agents in the property by the reason of the said Pledge.
ALTERNATIVELY:
(c) A DECLARATION that the plaintiffs have an equitable right to redeem the pledge of the said two (2) rooms and accordingly that the price of the redemption be on the basis of the terms fixed by the Honourable Court
having regard to the rent so far collected by the defendant from the property as well as the circumstances of this case.
(D) AN ORDER directing the defendant and his agents to surrender to the Plaintiff possession of the six (6) rooms and any part of the property being occupied by the defendant.
(E) AN ORDER OF PERPETUAL INJUNCTION restraining the defendant either by himself, his agents or any person acting on his behalf from entering into, remaining on or in any manner tampering with the said property No. YY.12 Kazaure Road, Kaduna or doing any act prejudicial to the interest and right of the plaintiffs over the property.”
?After the filing of pleadings the suit proceeded to Pre-Trial Conference on the 16th of July 2012. The Pre-trial conference did not hold up to the 30th of January, 2013. The suit was adjourned to 27/2/13 for hearing. On the 27th of February 2013, the Lower Court recorded as follows:
“I have perused the plaintiffs claims and form the view that the competence of the suit in its entirety and by extension the jurisdiction of this Court ought to be addressed having regards to the limitation law of
Kaduna State. I direct that both parties filed and serve their respective written addresses on the issue within 7 days from today. The Defendant’s application for adjournment is also granted, case adjourned to the 14/3/2013 for adoption of written addresses on the competence of this suit.”
The suit was adjourned to 14th of March 2013 for adoption of written address by learned counsel to the parties. Both learned counsel to the appellants and the respondent failed to file written addresses as ordered by the Court on the 27/2/13. The Court then ruled on pages 96 – 98 of the record of appeal, and concluded its ruling on page 98 thus:
“The instant action is therefore incompetent thereby robbing this Court of the requisite jurisdiction to entertain same.
In consequence therefore, the action is struck out for want of competence and lack of jurisdiction of this Court to entertain same.”
The appellants were dissatisfied with the ruling of the Lower Court, hence they filed an appeal to this Court on the 12th of April, 2013 consisting of the five (5) grounds of appeal. Shorn of their particulars the five (5) grounds of appeal
are thus:
“Ground 1
The learned trial Judge erred in law and came to a wrong decision when he held that the Appellants’ suit was incompetent and thus the Court lacked jurisdiction to entertain the matter on the ground that it has become statute barred under Section 4 of the Limitation Law, Cap 89, Laws of Kaduna State.
Ground 2
The learned trial Judge misdirected himself and thus came to a perverse decision then he construed the averments in the Appellants’ Statement of claim to mean that the cause of action accrued in 1958 being the date the pledge was allegedly made and thus the property could no longer be recovered after ten (10) years from the said date whereas that was not the purport of the said averments in the statement of claim.
Ground 3
The learned trial Judge wrongly applied the provision of Section 4 of the Limitation Law, Cap.89 Laws of Kaduna State to the Appellants’ suit before him whereas there is a clear distinction between when a transaction took place and when a right of action can be said to accrue from
the same transaction.
Ground 4
The learned trial Judge erred in law and occasioned a miscarriage of justice when he suo motu raised the issue of limitation of the appellants’ suit and proceeded to decide same and terminate the matter in limine without the input of the parties or their counsel.
Ground 5
The decision of the learned trial Judge is against the weight of evidence. ”
The appellants filed their brief of argument on the 28th of June, 2013. The respondent did not file brief of argument as required by the Rules of Court, 2011. The appellants sought and obtained an order of Court for the hearing of the appeal on their brief of argument which was granted on the 29th of September, 2015. The appeal was heard on the 20th of January, 2016 whereat learned counsel to the appellants adopted the brief of argument and urged the Court to allow the appeal, set aside the ruling of the Lower Court delivered on the 14th of March, 2013, and order for the trial of the suit on the merit by the Lower Court.
?On page 5 of the appellants’ brief of argument two (2) issues
have been distilled from the five (5) grounds of the notice of appeal. They are thus:
(i) Whether the learned trial Judge was right in holding that the Appellants’ action was statute barred by reason of its being caught up by Section 4 of the Kaduna State Limitation Law, Cap. 89 Laws of Kaduna State which rendered it incompetent and robbed the Court of jurisdiction to entertain same.
(ii) Whether the learned trial Judge was not wrong when he suo motu raised the issue of limitation of the Appellants’ suit and proceeded to terminate the suit without allowing the parties or their counsel to address him on the issue.”
?RESOLUTION OF ISSUES
ISSUE 1
On issue one, Unoakihe Esq., who settled the appellants’ brief submitted that the learned Judge of the Lower Court erred in law when he held that the suit No. KDH/KAD/248/2012 was incompetent by reason of being statute barred. That being statute barred the Lower Court had no jurisdiction to adjudicate same. That in determining whether a suit is statute barred or not the claim(s) as endorsed on the
Writ of Summons and the statement of claim are to be considered, not the statement of defence. The cases of Nkuma v. Odili (2006) All FWLR (Pt.313) P.24 @ 35; Ogoejufo v. Ogoejofo (2000) FWLR (Pt.63) P. 141 @ 151 and Intercity Bank Plc v. Alhaji Ali (2002) FWLR (Pt.126) P.838 @ 853 were cited to buttress the submissions Supra. Learned counsel further contended that where the issue is whether or not a plaintiff’s suit is statute barred or not, the Court is to compare the date the cause of action accrued with the date the writ of summons and the statement of claim alleging the wrong was filed. Reliance was placed on the cases of Mrs. M. N. Oranyeli v. First Bank of Nigeria PLC (2001) FWLR (Pt.68) P.1217 @ 1225 and Chief Woherem v. Emere-gyva & Ors (2004) All FWLR (Pt.221) P.1570 @ 1581.
Learned counsel referred to the averments in Paragraphs 18, 19, 20 and 21 of the statement of claim and adumbrated that the facts contained in the foregoing paragraphs took place in 20, 19 when the respondent asserted his ownership or right to the property in dispute as against the pledge made to his father. That the suit was filed when all efforts made to resolve the
dispute failed. That the cause of action arose in 2010, whereas the suit was filed in 2012, a period of 2 years, which does not come within the ambit of the provisions of Section 4 of the Limitation Law of Kaduna State, 1991, to render the same statute barred as erroneously held by the Lower Court.
Counsel pointed out that time starts to run when a cause of action arose and ends with the filing of the suit. The cases of Dr. Iweka v. SCOA (2000) 3 SCNJ P. 71 and Chief Ikhine v. Chief Edjerode (2002) FWKR (Pt.92) P.1775 @ 1975 were cited to reinforce the submissions supra. Concluding, learned counsel did urge the Court to hold that the Lower Court erred in law when it held that it had no jurisdiction to entertain the suit being statute barred, and that to resolve issues I in favour of the appellants.
Section 4 of the Kaduna State Limitation Law, 1991, provides as follows:
“4. No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued some persons through whom he claims to that person.”
?On page 98 of the printed record
of appeal, the Lower Court held thus:
“Paragraphs 5, 6 and 10 of the plaintiffs’ statement of claim shows that the alleged transaction between the parents and or grandparents of the parties took place in 1958. The instant action ‘was filed on 30/03/2012, a period of about 54 years. This action is clearly caught up by S.4 of the Kaduna state Limitation Law Cap. LKS.”
Was the learned trial Judge of the Lower Court right in arriving at the decision that suit No. KDH/KAD/248/2013 instituted by the appellants was statute barred? What are the principles of law that guide the Court in determining whether a suit is statute barred or not? In Agi v. Eno (2010) 5 NWLR (Pt.1188) p.626 @ 641 the Court held that it is the cause of action as determined from the originating-,process and statement of claim that is relevant for the determination of the preliminary objection that a suit is time barred. An essential part of the cause of action is that of its accrual, and as a general rule a Court cannot go outside the originating process and statement of claim to determine the accrual of the cause of action.
The documents the Court considers in determining
whether an action is statute-barred are the writ of summons and statement of claim, or the originating summons and the affidavit in support. The Court considers these documents to determine when the alleged wrong was committed, i.e. the cause of action, and when the action was commenced which are the requirements in determining a limitation period Adigun v. Ayinde (1993) g NWLR (pt. 313) 516. See also CAC v. Governing council of ITF (2015) 4 NWLR (Pt.1439) P.114 @ 131.
Where a plea that an action is statute-barred is raised before trial, the Court is to determine when the cause of action arose and when the suit was filed. The Court must decide by looking at the statement of claim for the date when the cause of action arose, and the writ of summons for date when the action was filed. No other process can be considered. The defendant must rely on the date pleaded by the plaintiff rather than the date pleaded in the statement of defence unless, the date when the cause of action arose is admitted by the plaintiff in his reply. Adeyemi v. Opeyori (1976) 9-10 SC 31; Izeikwe v. Nnadozie (1953) 14 WACA 361; Aremo II v. Adekanye (2004) 13 NWLR (Pt.891) 572;
Woherem v. Emereuwa (2004) 13 NWLR (Pt.890) 398.
See also Kasandubu & Anor v. Ultimate Pet. Ltd. (2008) 7 NWLR (Pt.1086) P.274 @ 297.
In order to determine if a party’s action is statute barred, the Court is only enjoined to look at the plaintiff’s claim. The period of limitation is determined in a case by looking at the writ of summons and the statement of claim, which allege when the wrong suffered by the plaintiff was committed, and placing it aside by side with the date on which the writ was issued. If the writ was issued beyond the time allowed by the applicable law, the action is statute barred. Sanni v. Okene L.G. (2005) 14 NWLR (Pt.944) 60; Adaji v. Amodu (1992) 8 NWLR (Pt.260) 472; U.B.N. Ltd. v. Oki (1999) 8 NWLR (Pt.614) 244; Emiator v. Nigerian Army (1999) 12 NWLR (Pt.631) 362 referred to.
The statement of claim filed by the appellants in suit No.KDH/KAD/248/2012 can be found on pages 3 -5 of the printed record of appeal. Paragraphs 10 – 19 thereof are germane in deciding whether a cause of action has been disclosed, and when it accrued. The averments in the said paragraphs are reproduced hereunder:
“5. Late Madam
Fatima was granted a right of occupancy over the property by the Kaduna Native Authority by virtue of Certificate of Occupancy No.1312 dated 1841 with effect from the 15th of October, 1941 which term was later renewed by another certificate of occupancy No. 3051 dated 1946. The aforesaid certificates are hereby pleaded.
6. A re-grant of the right of occupancy was later made by another certificate No. 056937 dated 21st of May, 1979 and registered at page 74 in volume VIII of the Kaduna Local Government (now Kaduna North Local Government) register. The said certificate of occupancy is hereby pleaded.
7. The plaintiffs aver that their grandmother, Madam Fatima, acquired the property No YY. 12 Kazaure
Road, Kaduna and developed same by herself into rooms.
8. The Plaintiffs aver that their father, Mohammed Ibrahim Baba Yawo, was the only surviving child of the Late Madam Fatima hence upon here death the property No. YY.12 Kazaure Road, Kaduna devolved on the said Mohammed Ibrahim Baba Yawo according to Moslem Law.
9. The Plaintiffs aver that their father, Mohammed Ibrahim Baba Yawo, died about
two years ago as a Moslem and upon his death, the property No.YY.12 Kazaure Road, Kaduna devolved on the Plaintiffs in
accordance with Moslem Law.
10. The Plaintiffs aver that sometime in 1958 during the life time of their grandmother, Madam Fatima, she pledged two rooms within the said premises No.YY.12 Kazaure Road, Kaduna to the defendant’s father, Alhaji Yusuf Aila for a Loan.
11. The Defendant’s father was initially living in the said two (2) rooms as a licensee of the Plaintiffs’ grandmother before the aforesaid loan and this was because the defendant’s father was a friend to one of her sons who is also now late.
12. The Plaintiffs aver that though their late father took possession of the house upon the death of his mother, he nevertheless left the defendant’s father to occupy the premises having regard to his knowledge of him as well as the cordial relationship they have enjoyed prior to that period.
14. The Plaintiffs’ father subsequently relocated to Bida in Niger state and only paid occasional visits to Kaduna and this continued until his death two years ago.
15.
The defendant’s father took advantage of the plaintiffs’ father’s absence from Kaduna to encroach into and occupy other extra rooms within the premises in which he accommodated his relations without the consent or agreement of the plaintiffs’ father.
16. The issue generated a row between the plaintiffs’ father and the defendant’s father but plaintiffs’ father decided to leave the issue due to the intervention of other persons who were privy to their closeness.
17. Even when the defendant’s father relocated from the premises, he left his relations to continue to occupy same and this continued until the plaintiffs’ father who was well stricken in age passed on.
18. the plaintiffs, upon the death of their father, gave notice to the defendant’s relations to, vacate the premises and it was at this stage that the defendant surfaced with a claim to ownership of the part of the property hitherto occupied by his father and relations. The notices are hereby pleaded.
19. The plaintiffs’ aver that there was no time any part of the property was sold to the defendant’s father by the plaintiffs’ grandmother or any
person at all.
20. The plaintiffs state that the defendant and his relations have been enjoying the benefits accruing from the property through the six rooms they occupy therein till date.
21. The plaintiff shall rely on all documents whether specifically pleaded or not but in so far as they are supported by the facts pleaded and accordingly hereby give the defendant notice to produce the originals of such documents in his possession at the trial.”
Is there a cause of action disclosed by the averments supra?
What is a cause of action? When is a cause of action disclosed or accrued? In Amede v. UBA (2008) 8 NWLR (Pt.1090) P.623 @ 656, cause of action has been defined as the facts which establishes or gives rise to a right of action. It is the factual situation which gives a person a right to a judicial relief. Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Yusufu v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt.359) 676; L.U.T.H & M.B v. Adewole (1998) 5 NWLR (Pt.550) 406.
Cause of action means the factual situation, which if substantiated, entitles a plaintiff to a remedy against a defendant. See Kasandubu v.
Ultimate Pet. Ltd. (2008) 7 NWLR (Pt.1086) P.274 @ 302; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) P.1.
The term cause of action can also be defined as the fact or facts which establish or give rise to a right of action. A factual situation whose existence entitles the plaintiff to obtain from the Court of law, a remedy against the defendant. Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1; Yusuf v. Co-operative Bank Ltd, (1994) 7 NWLR (Pt.359) 676; U.B.N Ltd. v. Oki (1999) 8 NWLR (Pt.614) 244; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1; Ogbimi v. Ololo (1993) 7 NWLR (Pt.304) 128.
In determining whether a suit is statute barred or not, the time the cause of action arose or accrued and the time the suit has been filed or instituted are to be ascertained by looking at the pleadings contained in the statement of claim. In Chief Ikhine v. Chief. Edjerode (2002) FWLR (Pt.92) p.1775 @ 1795, the Supreme Court enunciated that in dealing with limitation of action by statutory provisions the precise date when the cause of action arose or accrued must be determined. The time from which the bar of an action begins to run is measured by years, months and dates, that
is, from the date the cause of action arose’ See CAC v. Governor Council ITF (2015) 1 NWLR (Pt.39) P. 114 @ 131 and JAHCO Ltd. v. Owoniboys Tech. Services Ltd. (1995) 4 NWLR (Pt.391) p. 534. The test for determining when a cause of action begins to run is when there exist in favour of the person who can sue, all the facts that have happened, which are required to prove that the plaintiff is entitled to judgment. That notwithstanding, a cause of action has to be looked at from the peculiar circumstances of any given case. Thus, when a cause of action can be said to have arisen varies from one case to another and it is always the function of the facts of the case, which gives rise to a right of action thus entitling the person to a judicial relief.
However, the general principles of law enunciated supra do not apply in respect of customary pledge. The learned trial Judge ought to have realized that limitation provisions do not apply customary pledge whatever the subject matter of such pledge. In Ufomba & Ors v. Ahuchaogu & Ors (2003) FWLR (Pt. 157) P. 1013 @ 1033, the Supreme Court held that a pledger’s right to redemption is perpetual and cannot
be clogged by use of subterfuge or delay, and that lapse or limitation would not bar redemption. A pledge can be redeemed at any time, it can even ran in perpetuity. See Mbubu v. Obori & Anor (2003) FWLR (Pt. 156) P.844 @ 852, where it has been held that one of the incidents of a customary pledge is that time does not run against a pledge. The cause of action in a pledge does not arise until the pledge money is either tendered or rejected or the pledgee sells or attempts to sell the pledged property. See Igbum v. Alhaji Nyarinya & Anor (2001) FWLR (Pt. 67) P. 950 @ 979 and Alhaji Yashe v. Umar (2003) FWLR (Pt. 182) P. 1855 @ 1861. Therefore, had the learned trial Judge adverted his mind to the nature of the transaction, that is the pledge and the rights of the parties thereto, he would have realized that it was a customary pledge. The averments contained in the statement of claim fortifies the nature of the pledge by the appellants’ grandmother and the respondent’s father. The appellants’ right to redeem the pledge per suit KDH/KAD/248/2012 cannot be taken away by the provisions of Section 4 of the Kaduna State Limitation Law, 1991. The said suit is
competent, and the Lower Court has the jurisdiction to adjudicate same. The Lower Court, therefore, erred in law by striking it out. Issue I is resolved in favour of the appellants.
ISSUE 2
Learned counsel to the appellants submitted that the Lower Court erred in law when it raised the issue of whether suit No. KDH/KAD/248/2012, was statute barred, and resolved same without allowing counsel to submits written address as required by law. That the refusal to allow the filing of written address by the Lower Court occasioned a miscarriage of justice to the appellants. The case of Chami v. UBA Plc (2010) 6 NWLR (Pt.1191) P.474 @ 500 cited to buttress the submissions supra.
In his further submission, counsel contended that the failure to file the written address which was ordered by the Court was not the fault of the appellants, rather it was the mistake of counsel. That the appellants should not be denied justice because of the inaction of counsel. Busari v. Oseni (1992) 4 NWLR (Pt.237) P.557 @ 583 cited in aid. In conclusion, learned counsel did urge the Court to hold that the refusal to allow the written address to be filed on the
14/3/14 tantamount to denial of fair hearing which occasioned a miscarriage of justice to the appellants.
The Court has been urged to resolve Issue 2 in favour of the appellants. That if the Issue 1 and 2 are resolved in favour of the appellants, the appeal be allowed, the Judgment of the Lower Court be set aside, and the case be remitted to the Lower Court for been trial on the merit.
On the 27/2/2013, the learned trial judge of the Lower Court made the following order as recorded on page 95 of the printed record of appeal.
“I have perused the plaintiffs claims and form the view that the competence of the suit in its entirety and by extension the jurisdiction of this Court ought to be addressed having regards to the limitation law of Kaduna State. I direct that both parties file and serve their respective written addresses on the issue within 7 days from today. The Defendant’s application for adjournment is also granted. Case adjourned to the 14/3/2013 for adoption of written addresses on the competence of this suit.”
The hearing of the case was then adjourned to the 14th of March 2013 for adoption of the written address by Court .
The learned counsel to the parties failed to file written address as ordered by the Court. On the 14/3/13, learned counsel applied for an adjournment to enable them file the written address. The learned trial judge refused to grant the adjournment on the ground that parties were given opportunity to file the written address but failed, neglected and or refused to do so. The learned Trial Judge then considered the provisions of S.4 of the Limitation Law, Kaduna State, 1991, and held that the suit filed by the appellants was statute barred having not been file with 10 years of the accrual of the cause of action.
Was the learned trial judge of the Lower Court right in law when it raised the issue of the suit being statute barred by the provisions of Section 4 of the Limitation Law, Kaduna State, 1991, and resolved same without the filing of the written address by the parties? The law is trite, a Court can raise an issue suo motu in the hearing of a case but it must allow the parties to be heard on the issue so raised before taking a decision. The Supreme Court in the case of Chami vs. UBA Plc (2010) 6 NWLR (Pt.1191) p.474 @ 500 held that where a trial
Court raised an issue suo motu without asking the parties to address on it, and went to take a decision, such a decision cannot be sustained and on appeal’ In Ndele & Ors v. Agiri & Ors (2009) 18 NWLR (Pt.1173) P. 219 @ 252, the Supreme Court held that a Court will be in error to raise any issue suo motu without affording the parties the opportunity to address on it. See also Atanda v. Lakami (1974) All NLR P.1; Olusanya v. Olusanya (1983) 1 SCNLR P.1 and Aja’o v. Ashiru (1973) 1 All NLR P.51.
This Court, in the case of Igbeke v. Emordi (2010) 11 NWLR (Pt.1204) P. 1 @ 33 per Ariwoola J.C.A, enunciated that:
“though it is ordinarily not offensive for the Court or Tribunal to raise an appropriate issue suo motu but it is already settled law, that where a Court raises an issue suo motu, it must afford the parties or their counsel the opportunity to address the Court on such an issue so raised. This is to ensure compliance with the rules of fair hearing for the purpose of doing justice to both parties. See Dlek (Nig.) Ltd’ v. Oil Mineral Producing Areas Dev. Commission (OMPADEC) (2007) 4 SCM 75 at 98; (2007) 24 WRN 1, (2007) 29 NSCQR
1706; (2007) 7 NWLR (Pt.1033) (402); Bello Ogundele & Anor. v. Shittu Agiri & Anor. (2009) 11-12 SCM (Pt.1) 95 at 100 – 101; (2009) 18 NWLR (Pt.1173) 219; Shasi & Anon v Smith & Ors. (2009) 12 (Pt.2) 146 at 156; (2009) 18 NWLR (Pt.1173) 330. ”
On the 27th of February 2013 the learned trial judge of the Lower Court ordered for the filing of written address by counsel on the issue of whether the suit filed by the appellants was statute barred or not in view of the provisions of Section 4 of the Kaduna State Limitation Law, 1991. Learned counsel to the parties neglected to file the written address. On the 14th of March, 2013, the case came up for hearing. An application for an adjournment of the case was made by learned counsel to the appellants.
The Learned trial judge refused to grant the adjournment. He proceed to take a decision on the issue he raised on the 27/2/13, and came to the decision that the suit was statute barred in view of the provision of Section 4 of the Kaduna State Limitation Law 1991, vis- a vis the date of the filing of the of the writ of summons commencing the suit before the trial Court.
The Law is trite, where a party is given the opportunity to address a Court on an issue raised suo motu but neglected or failed to do so, he cannot be heard to complain of denied of fair hearing. See Chami v. UBA Plc (2010) 6 NWLR (Pt.1191) P. 474 @ 497. On the 27/2/2013 the Lower Court made an order that parties file written address on the issue raised by the learned trial Judge regarding the competence of the suit before it in view of the provisions of Section 4 of the Limitation Law, 1991. The matter was then adjourned to the 14/3/2013 for adoption of the written address. The parties failed to file the written address. On 14/3/2013, learned counsel applied for an adjournment to enable them file the written address. The learned trial Judge refused to grant the adjournment. The law is trite, the granting of an adjournment is at the discretion of the Judge. Adjournments are not just granted for the asking of it. There must be cogent and reasonable materials placed before it to enable it exercise its discretion in favour of the application or not. In my view, having made an order on the 27/2/2013 for the filing of a written address, the parties were
accorded opportunity to be heard. They neglected and or refused to comply with the order. They cannot complain of lack of fair hearing when the learned trial judge considered and resolved the issue raised on 27/2/13 which led to the striking of the suit. Issue 2 is resolved against the appellants.
Having resolved the 2 (two) issues in favour of the appellants, the appeal succeeds. The ruling of the Lower Court in suit No.KDH/KAD/248/2012 striking out the said suit is hereby set aside consequently.
I make an order, pursuant to Section 15 of the Court of Appeal Act, 2010, relisting suit KDH/KAD/248/2012 on the Lower Court’s cause list for trial on the merit. The said suit is hereby remitted to the Chief Judge of Kaduna State for same to be given a full trial by a judge of that Court, other than Justice B. U. Sukula. I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.:?I have had a preview of the judgment just delivered by my learned brother, Ibrahim Shata Bdliya; JCA. I agree with the reasoning advanced and the conclusions arrived at that the appeal succeeds in part. Consequently, the ruling
of the Lower Court in suit No.KDH/KAD/248/2012 delivered on the 14th of March, 2013 striking out the Appellants’ suit is hereby set aside.
The suit is hereby remitted to the Chief Judge of Kaduna State for trial de novo by another Judge of the High Court other than Justice B. U. Sukola.
I abide by order as to costs.
ISAIAH OLUFEMI AKEJU, J.C.A.:?I had the opportunity of reading the draft of the judgment of my learned brother, IBRAHIM SHATA BDLIYA JCA before it was delivered. I agree with the reasoning of my learned brother and the conclusion that there is merit in the appeal based on the sound resolution of the issues. I allow the appeal and abide by the consequential order.
Appearances
M. A. Fasominu, Esq.For Appellant
AND
No Appearance for the RespondentFor Respondent
