INSPECTOR JOSEPH ETABA AYAMI v. MRS. IFEOMA ONOURAH & ANOR
(2016)LCN/8399(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 23rd day of March, 2016
CA/C/210/2011
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
Between
INSPECTOR JOSEPH ETABA AYAMI Appellant(s)
AND
1. MRS. IFEOMA ONOURAH
2. MR. KENNETH OBI Respondent(s)
RATIO
LIMITATION LAW: STATUTE OF LIMITATION; HOW TO DETERMINE THE PERIOD OF LIMITATION IN A PARTICULAR CASE
In dealing with this issue of whether or not the present action was caught by the statute of limitation, the question that readily comes to mind is how does one determine the period of limitation in a particular case?
In response to the above question, Oputa JSC in EGBE v. ADEFARASIN (1985) 1 NWLR (Pt. 3) 549 cited in WILLIAMS v. WILLIAMS (2008) All FWLR (Pt. 433) 1257, STATED:
“….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…”
It is therefore trite that when the issue of an action being barred by the limitation law is raised the period of limitation is determined by looking at the writ of summons and the statement of claim alleging the wrong said to have been committed giving rise to the cause of action and when it was committed. PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
LIMITATION LAW: STATUTE OF LIMITATION; THE IMPLICATION OF AN ANCTION THAT IS STATUTE BARRED
The issue of Statute of Limitation is very fundamental. It touches on jurisdiction of the Court. It follows therefore that where an action is statute barred, the consequence is that the right of action becomes extinguished by law and unenforceable by a Court action for ever, so that the claimant remains without a remedy and his claims would be dismissed. See EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (Pt. 631) 362.
ONWUMALOBI V. N.N.P.C (1999) 12 NWLR (Pt. 632) at 639.
Consequent upon the foregoing, it is trite that the statement of claim and not the statement of defence determines an action being barred by the Limitation Law. It was therefore erroneous for learned counsel for the Appellant at page 3, paragraph 4.04 of his brief of argument to refer to the Respondents’ statement of defence and premise the issue of the Limitation Law on the said Statement of Defence.
While striking out the case for being statute barred the learned trial Judge found as follows:
“It seems to me and I so hold that the claim is for the years allegedly breached, that is 8 years before filing this suit as any other claim will be speculative. That being the case, it is beyond 5 years as stipulated by the Limitation Law of Cross River
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State because the cause of action accrues on the date on which the incident giving rise to the cause of action accrued.
….. I hold that this action being a claim for a breach of contract and the breach being allegedly done by the defendants, it is caught up by S.16 of the Laws of Limitation of 2004 Cross River State Laws and it is hereby struck out.” PER. CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal as Claimant at the lower Court claimed against the Respondents as Defendants the sum of Twenty Million Naira for breach of contract on payment of Ground rent.
A summary of the facts of this case as presented by both Sides, starting with the Appellant was that his late father gave land to the 1st Respondent’s father where he built a house and that both parents agreed on payment of Ground rent.
That when the 1st Respondent’s father died, his two sons took over the management of the house and paid Ground rent in arrears to the Appellant through his agent and thereafter, the Respondents breached the agreement on payment of ground rent.
The Respondents own version was that the land was an outright sale and there was no clause for payment of Ground rent and that they have not paid any Ground rent to the Appellant. That the two brothers of the 1st Respondent that allegedly paid the Ground rent were dead.
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In a considered Judgment delivered on the 28th day of February, 2011, the learned trial Judge A. A. Onyebueke, J, of the Obubra Judicial Division
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of the High Court of Cross River State, entered judgment for the Respondents and dismissed the claim of the Appellant.
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Dissatisfied with that judgment, the Appellant commenced this appeal by a Notice of Appeal filed on the 29th of April, 2011. Seven grounds of appeal were incorporated in the said Notice of appeal and four issues formulated for determination by the Appellant. They read:
“(a) Whether the learned trial Judge was right when he struck out a suit which bothered on land, on the ground that it was caught by Section 16 of the Limitation Law, Cap. L.14, Laws of Cross River State of Nigeria, 2004?
(b) Whether the learned trial Judge has right when he considered irrelevant factors in defeating the Appellant’s claim, failed to properly evaluate the evidence before him and also failed to distinguish the relationship between the Appellant as Landlord and the Respondent as Tenant and their interest in the land in dispute?
(c) Whether the learned trial Judge was right in going ahead to hear and dismiss a suit he had earlier struck out for want of jurisdiction and for being statute barred?
(d) Whether the learned trial Judge was right
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when he made pronouncements indicting the Appellant of the criminal allegation of forgery of rent receipts that was not proved to the standard required by law.”
The Respondents also formulated four issues for determination as follows:
“(1) Considering that in deciding whether the limitation law applies the fulcrum is the Claimant’s claim, whether the Appellant’s case was not caught by the statute of limitation as to occasion the dismissal of the suit.
(2) In the face of the final judgment of the trial Court dismissing the action, whether the Court’s order striking out the suit instead of dismissing it after holding that the limitation law applied, is of any moment.
(3) Whether it was inapt for the trial Court to find and hold that the receipts tendered by the Claimant were fraudulently made for the purpose of the case bearing in mind the state of the pleadings and evidence.
(4) Whether the judgment of the trial High Court is not the product of a proper appraisal of evidence received at the trial.”
Issue No. 1 as formulated by both counsel are very similar. In dealing with this appeal, I will make use of the first issue as
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formulated by counsel for the Appellant since it bothers on Section 16 of the Limitation Law of Cross River State. A resolution of this issue will determine the need or otherwise to go into the remaining three issues.
Taking this first issue, learned counsel for the Appellant E. J. Amatey Esq cited the case of OGUNLANA v. DUDA (2010)1 NWLR (Pt. 1176) 534 at 564 and contended that the issue before the trial Court bothered on land and that disputes arising from sale of land, rent, declaration of title or any such contract relating to land are not caught up by the statute of limitation like simple contracts. He cited paragraph 3 of the Amended Statement of Defence and argued that since the Respondents stated that they entered into a customary agreement that the statute of limitation cannot be invoked in respect of land held under Native law and Custom. Citing OKULATE v. AWOSANYA (2000) 2 NWLR (Pt. 646) 555 and MONYE v. ANYICHE (2005) 8 WRN at 222, counsel submitted that it is the claim of the Plaintiff that determines the issue of jurisdiction of the Court. That to determine whether or not a suit is caught up by a statute of limitation the Court looks at the
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statement of claim on when the cause of action arose.
He posited that where as in this case there has been continuance of the damage, a fresh cause of action arises from time to time and as often as the damage is caused.
In his reply to the foregoing submissions, learned counsel for the Respondents K. U. Ejukwa Esq, in his brief, submitted that the learned trial Judge was right in striking out the action for being statute barred considering the fact that the cause of action accrued in 2001 when the Appellant claimed the 1st Respondent’s brother paid rents and thereafter ceased to pay. He cited AREMO v. ADEKANYE (2000) 2 NWLR (Pt. 644) at 277 as well as IWEKA v. S.C.O.A. (NIG) LTD (2000) 7 NWLR (Pt. 664) pg. 325 to drive his points home. He argued that it was erroneous for the Appellant to premise the issue of limitation law on the statement of defence rather than the Writ of Summons and the statement of claim. He referred to page 3, paragraph 4.04 of the Appellant’s brief and described it as the undoing that transcended the entire gamut of the Appellant’s argument and wrong conclusion on this issue of the limitation law.
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In dealing with this
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issue of whether or not the present action was caught by the statute of limitation, the question that readily comes to mind is how does one determine the period of limitation in a particular case?
In response to the above question, Oputa JSC in EGBE v. ADEFARASIN (1985) 1 NWLR (Pt. 3) 549 cited in WILLIAMS v. WILLIAMS (2008) All FWLR (Pt. 433) 1257, STATED:
“….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…”
It is therefore trite that when the issue of an action being barred by the limitation law is raised the period of limitation is determined by looking at the writ of summons and the statement of claim alleging the wrong said to have been committed giving rise to the cause of action and when it was committed.
It may therefore be pertinent to look at the claim of the Appellant at the trial Court. Paragraph 13 of the amended statement of claim comes very handy, it reads:
?WHEREOF the plaintiff claims from the defendants jointly and severally the sum of N20m for breach of contract”
(underlining mine).<br< p=””
</br<
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Again, it is important to determine when the cause of action accrued to tie it with the provisions of the said Section 16 of the Limitation Laws of Cross River State. To this end, paragraph 8 of the Amended Statement of Claim needs to be reproduced. It states:
“B. Plaintiff states that after pressure from the plaintiff, Onuorah Henry paid N32,= on 30/12/86 and Onuorah Osita paid N56= on 17/12/2000 to the plaintiff through his agent one Mr. Abeng Ofem. Receipts were issued upon these payments. The stamps of the said receipts are hereby pleaded.”
(underlining mine).
From the foregoing paragraphs of the Appellant’s statement of claim, the Appellant founded his action on contract, while the cause of action accrued in 2001 after the year 2000 when the Appellant claimed the 1st Respondent’s brothers paid rents and thereafter stopped payment.
It was consequent upon paragraph 8 of the Amended Statement of Claim regarding the accrual of the cause of action in 2001, that the Respondents raised the issue of statute of limitation in their own paragraph 8 of their further Amended Statement of Defence.
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To establish whether the defence of invoking
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Section 16 of the Limitation Law is available to the Respondents there is also need to reproduce the said Section for clarity of purpose. Section 16 of the Limitation Law Cap. L.14, Vol. 4, Laws of Cross River State of Nigeria 2004 provides as follows:
“No action founded on contract ….. or any other action not specifically provided for in part I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.” (underlining mine).
Looking at paragraph 13 of the Appellant’s Amended Statement of Claim, it became obvious that his claim was for a lump sum of money for breach of contract (N20 Million Naira).
Also going by paragraph 8 of the Appellant’s amended statement of claim the cause of action arose in 2001. Five years from then expired in 2005. Record shows that this suit commenced in 2008, eight years after the cause of action accrued. This is clearly contrary to the law governing limitation. See IWEKA V. S.C.O.A. (NIG) LTD (2000) 7 NWLR (Pt. 664) 325, AREMO V. ADEKANYE (2000) 2 NWLR (Pt. 644) at 277.
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The issue of Statute of Limitation is very fundamental. It touches on
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jurisdiction of the Court. It follows therefore that where an action is statute barred, the consequence is that the right of action becomes extinguished by law and unenforceable by a Court action for ever, so that the claimant remains without a remedy and his claims would be dismissed. See EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (Pt. 631) 362.
ONWUMALOBI V. N.N.P.C (1999) 12 NWLR (Pt. 632) at 639.
Consequent upon the foregoing, it is trite that the statement of claim and not the statement of defence determines an action being barred by the Limitation Law. It was therefore erroneous for learned counsel for the Appellant at page 3, paragraph 4.04 of his brief of argument to refer to the Respondents’ statement of defence and premise the issue of the Limitation Law on the said Statement of Defence.
While striking out the case for being statute barred the learned trial Judge found as follows:
“It seems to me and I so hold that the claim is for the years allegedly breached, that is 8 years before filing this suit as any other claim will be speculative. That being the case, it is beyond 5 years as stipulated by the Limitation Law of Cross River
9
State because the cause of action accrues on the date on which the incident giving rise to the cause of action accrued.
….. I hold that this action being a claim for a breach of contract and the breach being allegedly done by the defendants, it is caught up by S.16 of the Laws of Limitation of 2004 Cross River State Laws and it is hereby struck out.”
I entirely agree with the above finding and have no justification to interfere with same.
Learned counsel for the Appellant had contended that the learned trial Judge ought to have dismissed the suit rather than make an order striking it out having held that the limitation Law applied. My humble but firm view on this is that no miscarriage of justice was occasioned by the said order striking out the suit. Even though the suit ought to have been dismissed in the circumstance, the order striking out the suit still has the effect of a dismissal as the right of action of the Appellant becomes extinguished by Law and I so hold.
The action being a claim for breach of contract and having been commenced outside the five years stipulated by Law is caught up by Section 16 of the Limitation Law Cap.
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L.14 Vol. 4 Laws of Cross River State of Nigeria.
The first issue is hereby resolved against the Appellant and in favour of the Respondents. The outcome of this first issue has rendered a consideration of the other three issues academic and unnecessary.
The suit at the trial Court having been caught up by Section 16 of the Limitation Law, it robbed the Learned trial Judge of jurisdiction to hear the suit. His dwelling into the other issues was unnecessary and a mere surplusage.
In the premise, the order of the learned trial Judge that the suit is caught up by the Limitation Law is affirmed. This appeal is accordingly dismissed.
N100, 000 (One Hundred Thousand Naira) costs against the Appellant and in favour of the Respondents.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree.
ONYEKACHI AJA OTISI, J.C.A.: My learned Brother, C. E. Nwosu-Iheme (Ph.D), JCA, made available to me a copy of the Judgment just delivered in draft form in which the Appellant’s appeal was dismissed. I am in agreement with his reasoning and conclusion, which I adopt as mine. I also dismiss this appeal.
I abide by the orders made in the
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lead Judgment, including the order as to costs.
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Appearances
Mba E. Ukweni Esq. with him, M. T. Otu,
E. E. Eteng, C. A. C Efifie, E. Ekpe and
J. B. Ikpeme, Esq.For Appellant
AND
T. B. Isuwa, Esq.For Respondent
