OKO JAMES EGWUINI & ORS v. TOM AGADA & ANOR
(2018)LCN/12418(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of April, 2018
CA/E/530/2013
RATIO
ACTION: CAUSE OF ACTION
“A cause of action is said to have accrued when the combination of facts giving the right to sue or complain has occurred or ‘when facts establishing a civil right or obligation and facts establishing that right and obligation exist side by side, a cause of claim is said to accrue.’ See ASABORO & ANOR. V. PAN OCEAN OIL CORPORATION (NIG.) LTD & ANOR. (2017) LPELR 41558 (SC), UBN PLC V. UMEODUAGU (2004) LPELR 3395 (SC), OSIGWE V. PSPLS. MANAGEMENT CONSORTIUM LTD. & ORS. (2009) LPELR 2807 (SC), JULIUS BERGER NIG PLC V. OMOGUI (2001) LPELR 1638 (SC).” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
ACTION: WHEN AN ACTION IS STATUTE BARRED
“The law is settled that in determining whether or not an action is statute barred, it is the writ of summons and /or statement of claim only that must looked at if one has been filed. See MILITARY ADMINISTRATION (EKITI STATE) & ORS. V. ALADEYELU & ORS. (2007) LPELR 1875 (SC). F. R. I N. V. GOLD (2007) LPELR 1287 (SC). This is because when a defendant raises a defence that the action against him is statute barred, he is raising an issue of jurisdiction on the matter placed before it as the Court has no jurisdiction to adjudicate or entertain a matter that is statute barred no matter how meritorious the action may be perceived to be. See OLAGUNJU & ANOR. V. PHCN PLC (2011) LPELR 2556 (SC).” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
CONTRACT: BREACH OF CONTRACT
“Limitation period for a breach of contract starts to run when the breach occurs even if the party affected treats the contract as continuing in force. However where the breach is a breach of an obligation to perform the contract on a periodic basis such as an agreement for payment of annual rent in a lease agreement, each failure to perform will give rise to a fresh cause of action and corresponding limitation period each year that the breach continues. See OSAWARU V. EZEIRUKA (1978) LPELR 2791 (SC), OBUEKE & ORS. V. NNAMCHI & ORS. (2012) LPELR 7810 (SC), (2012) 12 NWLR (PT. 1314) 327 (SC), ADEPOJU V. OKE (1999) 2 NWLR (PT. 594) 154 AT 169. INEC V. OGBADIBO LOCAL GOVT. & ORS. (2015) LPELR 24839 (SC) AKPAN & ANOR. V. AKPAN & ANOR. (2014) LPELR 22637 (CA).” PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. OKO JAMES EGWUINI
2. GABRIEL U. UCHA
3. JOSEPH OKO INYA Appellant(s)
AND
1. TOM AGADA
(Trading under the name of Tom Gadas Oil)
2. THE ATTORNEY GENERAL OF EBONYI STATE Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment):
The appellants herein as the plaintiffs instituted suit no. HAE/2/2005 in the High Court of Ebonyi State, Afikpo Judicial Division wherein they claimed the following reliefs:
(a) An order revoking the purported statutory certificate of Occupancy dated 8/10/82 No. 7/7/16 issued to M. N. Agada as the same was obtained not in good faith and without the consent and/or authority of the plaintiffs.
(b) A declaration that the purported sale and/or purchase of the plaintiffs’ No. 51 Eke Market Road/Square is illegal, void and of no effect whatsoever in that the transaction was done without the plaintiffs’ consent and/or authority.
(c) A declaration that the defendant had incurred forfeiture on the grounds of misbehaviour and/or misconduct in respect of the parcel or portion of land held of the plaintiffs not as a tenant but as a volunteer.
(d) N11,400,000.00 (Eleven Million, Four Hundred Thousand Naira) being special and general damages for trespass into Plaintiffs’ piece or parcel of land.
(e) An Injunction restraining the Defendant, his servants, agents or privies from further trespass on land.
PARTICULARS OF SPECIAL DAMAGES:
(a) Compensation for defacing the land by digging 8 pits at N800.000.00 per a pit. N6,400,000.00
(b) Annual tribute of N200,000. 00 per annum 1987 to 2005
= N3,800,000.00
TOTAL = N10,200,000,00
GENERAL DAMAGE = N1,200,000,00
GRAND TOTAL = N11,400,000,00.
The appellants by virtue of a deed of lease dated 10/4/1963 leased the land in dispute measuring 621.40 square yards registered as No. 16 at page 16 in Volume 241 at the Lands Registry Office in Enugu, to John Holt Limited for a petrol station. The lease was renewable every 10 (ten) years. In 1976 John Holt assigned its residual interest in the said land to one Nnali Mba Agada after obtaining the consent of the appellants. The said Mr. Agada paid and the appellants accepted the rent for the period of 1976 – 1977 and he was allowed to start operating the petrol station. However, Mr. Agada without the appellants’ consent applied for and obtained a certificate of occupancy dated 8/10/82 in respect of the land.
The appellants protested the grant of the certificate of occupancy to Agada by a letter written to the Land Use and Allocation Committee, Imo State. Their counsel also wrote a letter dated 18/2/85 to Agada and informed him that the certificate of occupancy is subject to the terms and conditions of his customary tenancy. After several correspondences between the appellant and Agada, he went to the appellants with his daughter Mrs. Patience Aja Item in September 1986 and informed them that he had given his petrol station to the said Mrs Item. She settled the arrears of rent and agreed to a renewal and review of the lease agreement with the appellants. A new agreement was signed with Mrs. Patience Aja Item. Agada died in 1990 and his daughter died in 1999. Since 1987 to date no rent has been paid to the appellants. The 1st respondent who is now occupying the land refused to pay rent on the ground that his late father has a certificate of occupancy in respect of the land. The 1st respondent filed a statement of defence wherein he denied most of the averments of the appellants. He however admitted paragraph 10 of the appellant?s statement of claim that Mr. Agada entered into a lease of agreement with John Holt Limited in 1976. He stated that since 1976 when Agada took effective possession of the Land, bought same from the lessees and obtained certificate of occupancy in 1982, no person has ever challenged his ownership and occupation or possession of the land.
The 2nd respondent was joined as a party to the suit on 23/1/2007. By a motion on notice filed on 25/1/2013 and raised objection to the suit on the ground that the Court has no jurisdiction to entertain the suit as the suit is statute barred. Parties filed and exchanged written addresses. In a considered ruling delivered by Honourable Justice E. Ngene on 11/7/2013, the Court below upheld the objection and dismissed the suit.
Dissatisfied with the ruling, the appellants filed a notice of appeal in respect of the judgment on 23/7/2012. The sole ground of appeal is that:
GROUND OF APPEAL
(a) The learned trial judge erred in law when he ruled that the suit is statute barred without taken into consideration when issues where joined by parties.
PARTICULARS
(1) The learned Judge erred in law not taking into cognizance that what is before Court is title in a family land.
(2) The learned judge erred in law for not taking into cognizance the chronological order of events before the Applicants went to Court.
(3) The learned Judge erred in law for not taking into cognizance that certificate of occupancy is not a primary title in family land.
PARTICULARS
(a) The 1st Defendant clearly stated in paragraphs 8, 9 & 10 of statement of Defence stated the father who was a sub ? tenant bought the land from the lessee of the plaintiffs John Holt Ltd in 1976.
(b) The plaintiffs has been acknowledging receipts of payment of the lessees, John Holt Ltd, Sub – tenant Mr. Agada and one Patricia Item senior sister tom the 1st Defendant.
(c) The learned Judge erred when he failed to recognize the continuous nature of the transaction before the suit.
(d) The learned Judge erred when he failed to recognise that you cannot hide under statute to commit fraud.
(e) The learned Judge erred when he did not allow the parties to ventilate their suit on merit.
PARTICULARS
(a) All the materials needed to determine the preliminary objection on its merits and uphold the same were before the Court.
(b) A statute cannot be used as instrument to commit fraud.
(c) A preliminary objection with the only issue formulated that the time 1st Defendant predecessor in title obtain certificate of occupancy was in 1982, cannot be used as barrier to a non title (sic)of a land by an occupier.
The appellants’ brief of argument was filed on 11/12/2013. It was settled by Godwin A. Ugwu. The 1st respondent’s brief of argument was filed on 30/11/2016. It was deemed filed on 31/5/17. The 2nd respondent’s brief of argument was filed on 11/9/2015. It was settled by M. Awada. It was deemed filed on 31/5/17.
The appellants raised the following issues for determination:
(a) Whether in the circumstance, a sub-tenant with unexpired lease of twenty (20) years, who fraudulently obtained certificate of occupancy without the consent of the lessor, can hide under Section 2(1) of Limitation Act to claim statute barred in a family land. (sic)
(b) Whether in the circumstance, where a fraud is committed by the Defendant by obtaining certificate of occupancy and the Court acknowledged the fraud, can the Defence hide under Section 2(1) of Limitation Act to claim statute barred to claim title in the family land.? (sic)
The 1st respondent raised the following issue for determination:
‘Whether from the facts and circumstances of this case, the learned trial Judge was right in dismissing the appellants’ suit for being statute barred.’
The 2nd respondent raised the following issues for determination:
a. Whether in the circumstances of this case, an action brought in 2005 seeking for the revocation of the certificate of occupancy issued to N.M. AGADA in 1982 had not become statue barred?
b. Whether a person who was aware of an alleged fraudulent activity on his land, but neglected or refused to ask for judicial remedy, cannot be caught by the statute of limitation when he now wakes from his slumber over twenty years after?
c. Whether a mere allegation of unsubstantiated fraud committed on land is enough to defeat a defence of limitation of action where on the face of the writ, the cause of action accrued in 1985?
I have considered the ground of the 2nd respondent?s objection, the ruling of the Court below and the sole ground of appeal. I have no doubt that the 1st respondent properly identified the only issue thrown up for determination in this appeal which is whether from the facts and circumstances of this case, the learned trial Judge was right in dismissing the appellants’ suit for being statute barred.
On that issue, the appellants’ counsel submitted that length of time is not a bar to seeking a relief in a case of fraud. He referred to AROWOLO V. IFABIYI (2002) WRN 19 AT 115. UBA PLC V. BTL IND. LTD. (2006) 12 SC 63 AT 76 – 77. AKIBU V. AZEEZ (2003) 1 SC (PT. 11) 71 AT 87. AJIBONA V. KOLAWOLE (1996) 10 NWLR (PT. 476) 22 AT 36. He further submitted that the Court below did not take cognizance of the issue of fraud which it acknowledged in its ruling, the chronology of the events that happened between the parties and the fact that the man who obtained the certificate of occupancy later paid rents until 1986. He referred to the receipt on page 198 of the record of appeal that where fraud is pleaded as in the instant case, the matter is taken outside the purview of Limitation Law.
He referred to BANJO V. WOHEREM JP V. EMEREUWA & ORS. (2004) 35 WRN 23 AT 27. He submitted that where Limitation Law relates to torts and contracts the statute of limitation can be waived. He referred to ARAKA V. EJEAGWU (2000) 15 NWLR (PT. 692) 684 AT 718. He argued that the cause of action arose in 2001 when the appellants demanded for payment of their rent after the death of the 1st respondents’ predecessors in the title and when upon their enquiry, they became aware of the 1st respondent’s presence on the land. On when a cause of action begins to run, counsel referred to N.P.A. V. AJOBI (2006) 7 SC (PT. 1) 23 AT 27. He urged the Court to hold that the cause of action arose in 2001 and not when the 1st respondent’s predecessor in title fraudulently obtained the certificate of occupancy.
In response, the 1st respondent’s counsel submitted that the struggle over the validity or otherwise of the certificate of occupancy reached a climax in 1985 when the 1st respondent’s father, M. N. Agada told the appellants to go to Court to contest it but the appellants decided not to do that until 2005, a period of 20 years later.
He referred to paragraphs 12 (b) and 17(c) and 18 of the Further Amended Statement of Claim. He submitted that the appellants having failed to demand for payment of rents between 1986 and 2011 have slept on their right since the cause of action for forfeiture over non- payment of rents arose in 1987 and as a right to recover land by virtue of a breach of condition or forfeiture shall be deemed to have accrued on the date on which the forfeiture was incurred or condition broken. He further submitted that the period of negotiations and settlement do not affect the period of limitation as parties cannot by their conduct subtract from the contents of a statute. He referred to IBETO CEMENT CO. LTD. v. A.G. FEDERATION (PT. 1069) 470 AT 501 (C – D). S. P. D. C. N. LTD. V. EJEBU (2011) 17 NWLR (PT. 1276) 324 AT 342 (A – C).
On when time begins to run in an action based on fraud, counsel submitted that where an action is based on fraud, the period of limitation shall not begin to run until the plaintiff has discovered the fraud and from the averments in the Further Amended Statement of Claim, the appellants discovered the alleged fraud if any between 1982 – 1985 when counsel to the parties exchanged letters and equity aids the vigilant not the indolent. He referred to OFFICER IN CHARGE, G. P. G. V. GUDU (2010) 2 NWLR (PT. 1177) 148 AT 161 (G) CRUTECH V. OBETEN (2011) 15 NWLR (PT. 1271) 588. He finally submitted that limitation of actions applies as a defence to an action in tort and contract. He referred to UJOATUONU V. ANAMBRA STATE GOVT. (2010) 15 NWLR (PT. 1217) 421 AT 436 (E – F).
In his response, the 2nd respondent’s counsel argued that even if the appellants denied knowledge of the fact that their title/interest in the land in dispute were put in issue by the certificate of occupancy issued on 8/10/1982, the letter of 19/12/1983 which was a follow up to their letter of 20/7/1981 show that they had knowledge of the fact that their title/interest had been put in issue. He submitted that whether reckoning from the date of the issuance of the certificate of occupancy on 19/12/1983, the truth is that their right of action had become extinguished same having been caught up by statute of limitation.
Counsel referred to Sections 3 and 33(1) (a-c) of the Limitation Law of Abia State, No. 18, Cap. 24, Laws of Abia State, Volume 11, 1998 – 2000 made applicable to Ebonyi State from 3/5/1999. He submitted that a person who was aware of the alleged fraudulent activity on his land but neglected or refused to ask for judicial remedy, having been caught by the statute of limitation when he wakes up from his slumber has effectively divested the Court of jurisdiction to adjudicate on the matter. He argued that assuming but not conceding that any or all of the situations enumerated under Section 33(1) of the Limitation Law are applicable to the instant case, the appellants discovered the fraud or concealment if any in 1982 or 1985, therefore, the action is statute barred.
RESOLUTION:
The law is settled that in determining whether or not an action is statute barred, it is the writ of summons and /or statement of claim only that must looked at if one has been filed. See MILITARY ADMINISTRATION (EKITI STATE) & ORS. V. ALADEYELU & ORS. (2007) LPELR 1875 (SC). F. R. I N. V. GOLD (2007) LPELR 1287 (SC). This is because when a defendant raises a defence that the action against him is statute barred, he is raising an issue of jurisdiction on the matter placed before it as the Court has no jurisdiction to adjudicate or entertain a matter that is statute barred no matter how meritorious the action may be perceived to be. See OLAGUNJU & ANOR. V. PHCN PLC (2011) LPELR 2556 (SC).
The following facts can be gleaned from the averments in the Proposed Further Amended Statement of Claim on pages 134 – 138 of the record of appeal which was deemed as properly filed and served by the Court below on 19/1/2012 (See pages 210 – 215 of the record of appeal:
(1) The land in dispute was leased to John Holt Limited via a deed of lease dated 10/4/1963 and registered as 16/16/241 at the Lands Registry Office in Enugu.
(2) After obtaining the consent of the appellants, John Hold Ltd assigned its residuary interest in the said land to Mr. M. N. Agada in April, 1976.
(3) Immediately Mr. Agada took over the property he obtained a Certificate of Occupancy on the land and refused to pay rent to the appellants.
(4) The appellants by a letter dated 20/7/1981 demanded for payment of rents from Mr. Agada but his counsel by two letters dated 19/12/83 and 15/2/85 informed the appellants that Mr. Agada would no longer pay rent in view of the Certificate of Occupancy obtained by him.
(5) By a letter dated 25/11/1984, the appellants wrote a letter of protest to the Land Use and Allocation Committee of Imo State over the issuance of Certificate of Occupancy to Mr. Agada.
(6) After several correspondences between the appellants and Mr. Agada, he introduced his daughter, Mrs Patience Item to them in 1987 and informed them that he had given the petrol station to the said daughter.
(7) Mrs. Item paid the arrears of rent for 1986/1987 period. A new lease agreement dated 20/9/86 was executed by the appellants and Mrs. Item.(see pages 200 -201 of the record)
(8) Since 1987 till date no rent has been paid. Mr. Agada died in 1990. Mrs Item died in 1999.
(9) When the appellants noticed the 1st respondent on the land, they approached him and demanded payment of arrears of rent, he refused to pay rent on the ground that he has bought the land and the petrol station from the other children of the Late Mr. Agada and that his father had a Certificate of Occupancy in respect of the land.
The appellants averred as follows in paragraph 21 of the Proposed Further Amended Statement of Claim:
“The plaintiffs contend that the Defendant by challenging the ownership of this No. 51 Eke Market Square, by expanding the area beyond the agreed boundary without the consent of the plaintiffs, by refusing to pay the annual tribute, by failure to be bound by the terms and stipulations therein contained in the agreement and by his various acts, forfeited any right to remain in possession of the land.”
The Court below after considering the above facts held as follows:
“It is therefore evident from the above excerpts from the Further Amended Statement of Claim that the cause of action, that is, the obtaining of the Certificate of Occupancy now sought to be revoked without the consent of the plaintiffs arose after they became aware of same vide the letters dated 19/12/83 and 15/2/85, wherein M. N. Agada intimated them of his intention not to pay rent and challenges them to go to Court.
It must be borne in mind that time of negotiations and settlement do not affect the period of limitations.
In other words time for limitation run during negotiation. See IBETO CEMENT CO. LTD VS. AG FEDERATION (2008) 1 NWLR (PT. 1069) 470.
An arithmetical computation of the period when the cause of action accrued that is when M. N. Agada in reliance on his Certificate of Occupancy which he obtained without plaintiffs’ consent, refused to pay rent and challenged the plaintiffs to go to Court, and the date the plaintiffs filed this suit, that is, from 1985 to 2005 is about twenty (20) years.
By virtue of Section 2 (1) of the Limitation Act then operational State of Nigeria when the cause of action accrued, the plaintiffs ought to have brought this suit within twelve (12) years of becoming aware of the said Certificate Occupancy obtained without their consent and refusal of M. N. Agada to pay rent. The plaintiffs as it were, slept over their rights and/or were hoodwinked by the antics of the said M. N. Agada not to institute an action. The plaintiffs have themselves to blame.
In the light of all that I have said above, I hold that this action brought by the plaintiffs against the defendants herein is statute barred and same is accordingly dismissed.
I have carefully perused the entire averments in the Further Amended Statement of Claim. The claim of the appellants can be compartmentalized into two areas. (1) The claim seeking to set aside the certificate of occupancy issued in 1982 for fraud. (2) Forfeiture of the lease for breach of contract and breach of covenant as a result of failure to pay rent. The law is settled that in determining whether an action is statute barred, the Court will look at the date on which cause of action accrued and compare same with the date on the writ or any originating process by which the action was commenced.
A cause of action is said to have accrued when the combination of facts giving the right to sue or complain has occurred or ‘when facts establishing a civil right or obligation and facts establishing that right and obligation exist side by side, a cause of claim is said to accrue.’ See ASABORO & ANOR. V. PAN OCEAN OIL CORPORATION (NIG.) LTD & ANOR. (2017) LPELR 41558 (SC), UBN PLC V. UMEODUAGU (2004) LPELR 3395 (SC), OSIGWE V. PSPLS. MANAGEMENT CONSORTIUM LTD. & ORS. (2009) LPELR 2807 (SC), JULIUS BERGER NIG PLC V. OMOGUI (2001) LPELR 1638 (SC).
In the instant case, the appellants alleged that Mr. Agada fraudulently obtained a certificate of occupancy on the land in dispute without their consent and refused to pay rent to them. From the facts earlier stated, the parties are ad idem that the land was leased to John Holt in 1963. It was the remainder of the period of lease that was assigned to Mr. Agada. He paid the rent for 1976 – 1977 and refused to pay further rent to the appellant. The Court below was right when it held that the appellant became aware of the issuance of certificate of occupancy vide letters dated 19/12/1983 and 15/2/1985 and that time for purposes of the cause of action predicated on fraud accrued and started to run in 1985. Section 33(1) of the Limitation Law of Imo State which was the law applicable as at the time the cause of action accrued provides that the period of limitation shall not begin to run when an action is based on the fraud of the defendant until the fraud is discovered or could reasonably have been discovered. See NWOSU & ANOR. V. OFFOR (1997) 2 NWLR (PT. 487) 274 AT 281 (C – D), AROWOLO V. IFABIYI (2002) 4 NWLR (PT. 757) 356.
The Court below further held that negotiation for settlement does not stop the limitation period from running. It is the general position of the law that once a cause of action accrues, the limitation period does not stop running merely because parties engage in negotiation for settlement unless the negotiation results in settlement or admission of liability by the defendant. Therefore, the application of the principle is dictated by the facts of the particular case. See EBOIGBE V. N.N.P.C (1994) 5 NWLR (PT. 347) 649. A. G. ADAMAWA STATE & ORS. V. A. G. FEDERATION (2014) LPELR 23221 (SC).
In the instant case, after the appellants became aware of the issuance of the certificate of occupancy to Mr. Agada and they threatened to go to Court, Mr. Agada engaged in negotiation with the appellants which resulted in him introducing his daughter to them. The daughter paid the arrears of rent up to 1986 and entered into a new agreement with the appellants. Therefore, negotiation resulted in settlement and the time for instituting an action stopped running. There was no reason for the appellants to institute an action against Mr. Agada having acknowledged them as the owner of the land. In law, the lease agreement between the appellants and Mrs. Item by which the land was leased to her for 99 years at an annual rent of N100:00 (One Hundred Naira) commencing from 1/1/1986 subject to a review every fifteen years constitutes a fresh agreement. Failure of Mrs. Item to pay rent constitutes a breach of a continuing obligation or covenant under the lease agreement to pay rent as at when due for the period of the lease. In law, the appellants have a right to sue for breach of the lease agreement or waive their right by simply demanding for payment of rent. Mrs. Item’s failure to pay rent was continuous and failure each year constitutes a fresh cause of action.
A fresh cause of action accrued each year Mrs. Item failed to pay rent under the terms of the agreement between her and the appellant. Limitation period for a breach of contract starts to run when the breach occurs even if the party affected treats the contract as continuing in force. However where the breach is a breach of an obligation to perform the contract on a periodic basis such as an agreement for payment of annual rent in a lease agreement, each failure to perform will give rise to a fresh cause of action and corresponding limitation period each year that the breach continues. See OSAWARU V. EZEIRUKA (1978) LPELR 2791 (SC), OBUEKE & ORS. V. NNAMCHI & ORS. (2012) LPELR 7810 (SC), (2012) 12 NWLR (PT. 1314) 327 (SC), ADEPOJU V. OKE (1999) 2 NWLR (PT. 594) 154 AT 169. INEC V. OGBADIBO LOCAL GOVT. & ORS. (2015) LPELR 24839 (SC) AKPAN & ANOR. V. AKPAN & ANOR. (2014) LPELR 22637 (CA).
The law is settled that it is a continuing tort of trespass for a person to remain on another’s land without that other’s authority or consent. CHUKWUMA V. IFELOYE (2008) LPELR 862 (SC), (2008) 18 NWLR (PT. 1118) 204 AT 244 – 245 (F & C). ASABORO & ANOR. V. PAN OCEAN OIL CORP. (NIG.) LTD. & ANOR. (2017) LPELR 41558 (SC). In the instant case, since the 1st respondent’s father got to the land in dispute by virtue of a lease which expired and Mrs. Item took over possession of the land, 1st respondent has refused to pay rent or vacate the premises on the ground that his father had a certificate of occupancy which the appellants are contending was obtained by fraud, I am of the firm view that the law treats the 1st respondent as a trespasser. His continuous occupation of the land without paying rent to the appellants is actionable by the appellants and is not caught by the provisions of the Limitation Law. It is a continuous cause of action which is an exception to limitation of action. See AREMO 11 V. ADEKANYE (2004) 13 NWLR (PT. 891) AT 593 – 594 (H & B).
In conclusion, this appeal has merit and it is hereby allowed. The ruling of the High Court of Ebonyi State delivered on 11/7/2013 in suit no. HAF/2/2005 and in respect of the motion no. HAF/16M/2013 is hereby set aside. The 2nd respondent’s objection is dismissed. The case is hereby restored to the cause list and shall be remitted to the Court below for trial before another judge of the Court on merit.
IGNATIUS IGWE AGUBE J.C.A.: I had the privilege of reading in advance the erudite Judgment of My Learned Brother M.O. Bolajl-Yusuff JCA and I agree completely with his reasoning and conclusion that the Appeal is meritorious and hereby succeeds.
I abide by the order setting aside the Ruling of the Ebonyi State High Court delivered on 11/7/2013 in Suit No. HAF/2/2005 in respect of Motion No. HAF/16M/2013 and restoring the Appellant?s Suit to the Cause List.
I also order that the case file be remitted to the Honourable, The Chief Judge for re-assignment to another Judge.
JOSEPH TINE TUR, J.C.A.: I read a copy of the decision delivered by my learned colleague, MO. Bolaji-Yusuff, JCA and I agree with the conclusions that this appeal is meritorious and it is hereby allowed.
Appearances:
Godwin UgwuFor Appellant(s)
Chibueze Okereke for the 1st Respondent.
Paul Awada (Director Civil Litigation, Ebonyi State) with him, S. N. Ogbuinya (Senior State Counsel) for the 2nd Respondent.For Respondent(s)
