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A.G. & C.J AKWA IBOM STATE & ORS v. UDO-IME (2022)

A.G. & C.J AKWA IBOM STATE & ORS v. UDO-IME

(2022)LCN/15931(CA) 

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/C/273/2017

Before Our Lordships:

Raphael Chikwe Agbo Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

1. THE HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE AKWA IBOM STATE 2. THE HON. COMMISSIONER MINISTRY OF LANDS AND TOWN PLANNING, AKWA IBOM STATE 3. THE AKWA IBOM STATE GOVERNMENT APPELANT(S)

And

AIR COMMANDORE ITA UDO-IME (RTD) (SUING BY HIS ATTORNEY MR. AKANIMO JOSEPH EDET) RESPONDENT(S)

 

RATIO

THE RATIONALE FOR THE EXISTENCE OF STATUTES OF LIMITATION

The rationale for the existence of statutes of limitation is that long dormant claims have more of cruelty than justice in them and a defendant may have lost the evidence to disprove a stale claim and that a person with a good cause of action should pursue it with reasonable diligence. See EKEOGU V. ALIRI (1990)1 NWLR (prt.126) 345, SOSAN V. ADEMUYI (1986)3 NWLR (prt.27) 241 and IBRAHIM V. LAWAL (2015)17 NWLR (prt.489) 490. PER SHUAIBU, J.C.A.

THE POSITON OF LAW ON A DEFENCE FOUNDED ON A STATUTE OF LIMITATION

 A defence founded on a statute of limitation is a defence that a plaintiff has no right of action. It is a defence which can be raised in limine and without any evidence in support. It is sufficient if, prima facie, the date of taking the action outside the prescribed period is disclosed in the writ of summons and the statement of claim. See HASSAN V. ALIYU (2010) 17 NWLR (prt. 1223) 547 at 619.  PER SHUAIBU, J.C.A.

THE DUTY OF THE TRIAL COURT
On the part of the respondent, counsel re-iterated his earlier argument that in determining whether the allegation of fraud constitute compelling evidence, the duty of the trial Court is to be discharged only after listening to the evidence and not at the stage of preliminary objection. He referred to WOHEREM V. EMEREUWA (2004)13 NWLR (prt.890) 398 at 419 to the effect that the appellants are deemed to have admitted the averment concerning fraud in paragraph 16 of the statement of claim. It was further submitted that a party would not be allowed to take advantage of the limitation law where there is compelling evidence of disability, mistake and or fraud. Counsel referred to SANNI V OKENE L.G. (2005)14 NWLR (prt.944) 60 at 74 – 75. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): At the High Court of Akwa Ibom State, sitting in Uyo the respondent as plaintiff took out a writ of summons and statement of claim respectively filed on 10/7/2015 and claimed jointly and severally against the defendants (now appellants) as follows:-
1. An order of Court compelling the defendants to identify and hand over the plot of land for agricultural purposes measuring 56.591 hectares in Ikot Oduot Nung Oku Ebere Otu Ibesikpo to the plaintiff.
2. An order of Court compelling the defendants to allocate a plot of land for agricultural purposes measuring 56.591 hectares in Ikot Oduot/Nung Oku Ebere Otu Ibesikpo to the plaintiff and for which the plaintiff paid the sum of N2,000,000.00 (Two Million Naira).
Or in the alternative:
(a) N2,000,000.00 (Two Million Naira) paid to the defendants by the plaintiff for the allocation of the said land.
(b) N500,000,000.00 (Five Hundred Million Naira) damages for breach of contract.
(c) 20% interest on the sum of N2,000,000.00 (Two Million) monthly calculated from June, 1998.
​(d) 20% interest from the date of judgment till the judgment debt is paid.

Upon being served with the originating process, the appellants filed a notice of preliminary objection praying the lower Court to strike out the suit for being incompetent and also for want of jurisdiction. The grounds on which the objection was predicated read:
1. The suit is statute barred, having been instituted more than 10 years after the cause of action arose and
2. The Court lacks jurisdiction to entertain same.

After hearing parties on the respective affidavit evidence and in a considered ruling delivered on 12/7/2016, learned trial judge found that the issue of the respondent’s suit being statute barred cannot be determined at the stage of the proceedings without evidence being adduced. He therefore held the view that the preliminary objection was premature and accordingly struck it out.

​Miffed by the above decision, appellants filed this appeal after obtaining the leave of this Court on 23/2/2017. The notice of appeal which occupies pages 126-128 of the record contains two grounds of appeal. The said grounds of appeal shorn of their particulars are reproduced hereunder as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Ground 1:
The learned trial judge erred in law when he assumed jurisdiction to hear the respondent’s suit HU/197/15 which violates Section 1 (1) and 16 of the Limitation Law Cap 28 vol.43 Laws of Akwa Ibom State 2000.
Ground 2:
The learned trial judge erred in law when he held that he had jurisdiction to hear the case and that the issue of fraud alleged by the respondent should be determined at the end of the trial of the case.

The appellants submitted two issues for the determination of this appeal thus:
1. Whether in the given circumstance, the Suit HU/197/2015 was not statute barred under Sections 1 (1) and 16 of the Limitation Laws Cap. 28, Vol.43, Laws of Akwa Ibom State 2000.
2. Whether the respondent’s pleadings has disclosed any prima facie case of fraud against the appellants to warrant the trial Court’s decision that issue of fraud can only be determined after full trial and thus assume jurisdiction to hear and determine this suit?

On his part, the respondent adopted the two issues formulated by the appellants.

​The facts giving rise to this appeal as gathered from the record briefly states that by a letter dated 17th October, 1996, the respondent applied to the then Bureau of Lands, Survey and Urban Development, Akwa Ibom State for allocation to him a piece of land for agricultural purposes. The appellants in response agreed vide their letter BLSUD/LD/S/24/Vol.IV/363 of 30th April, 1997 to set aside for allocation a parcel of land measuring 68.346 hectares to the respondent upon fulfillment of certain conditions. Consequently, the respondent through his letter of 22nd July, 1998 acknowledged the counter offer, wherein he pleaded for a waiver of at least 50% of the premium. On 12th September, 2013, the respondent’s solicitors, Messrs Francis Ekanem caused a letter of demand unto the appellants threatening to take legal action if the land was not identified and given to the respondent. On 10th July, 2015, respondent instituted an action at the lower Court seeking inter alia, an order compelling the appellants to identify and hand over the plot of land to him.

Issue No 1
Proffering argument on this issue, learned counsel for the appellants submits that the respondent’s suit having been caught by the provisions of Section 1 (1) and 16 of the Limitation Laws of Akwa Ibom State, 2000 same is statute barred. He referred to the averments in paragraphs 5 – 10 of the statement of claim in contending that the cause of action was the failure to transfer the land to the respondent after he purportedly made a part payment in June, 1998. Thus, the suit which was filed over 17 years after the said part payment is over the statutory ten (10) years allowed for the recovery of land under Section 1 (1) of the extant Limitation Law.

Counsel submits further that even if the cause of action lies in contract, same arose after five (5) years as provided for under Section 16 of the said Limitation Law and the action is equally statute barred. The preliminary objection according to counsel was meant to challenge the competence of the suit and the jurisdiction of the trial Court and therefore timely. He referred to AROWOLO V. AKAIYEJO (2012) 4 NWLR (prt. 1290) 287 at 370 to the effect that the appellants are at liberty to move the Court to determine the action in limine irrespective of whether they file a defence or not.

​In response, learned counsel to the respondent contends that by the averments in paragraphs 4 of the statement of claim, the land which the appellants proposed to allocate to the respondent and for which he paid two Million Naira (N2,000,000,00.) was only identified but not acquired. In effect, the appellants did not acquire the land let alone process it. He submits that given the circumstances, no right of action accrued to the respondent at any time in the case.

The period of limitation is determined by looking at the writ of summons and statement of claim only to ascertain the date that the alleged wrong in question that gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the writ of summons was filed. Thus, if the date on which the writ of summons or statement of claim was filed is beyond the period allowed by the limitation law, the action is statute barred. See EGBE V. ADEFARASIN (1987)1 NWLR (prt.47) 1, MILITARY ADMINISTRATOR, EKITI STATE V. ALADEYELU (2007)14 NWLR (prt. 1055) 619 and A.G, ADAMAWA STATE V. AG, FEDERATION (2005) 78 NWLR (prt.958) 581.

The respondent’s contention is that no right of action accrued to him at any time in this case. A cause of action simply means the facts (not evidence) that will be necessary for the plaintiff to prove, if traversed, to support his right to judgment. A cause of action means the subject matter of the grievance founding the action. Put differently, it is the reason for the grievance and the complaint to the Court for redress. These include every material fact the plaintiff must, or shall, prove to enable him succeed against the defendant. A cause of action is therefore the factual situation, the existence of which entitles one to obtain from the Court a remedy against another person. See AFOLAYAN V. OGUNRINDE (1990)1 NWLR (prt.127) 369 and THOMAS V. OLUFOSOYE (1986)1 NWLR (prt.18) 659.

On when the cause of action arose, in the case of A.G, ADAMAWA STATE V. A.G. FEDERATION (supra), the apex Court held that a cause of action arises on a date or from the time when a breach of any duty or an act occurs which warrants the person who is injured or the victim who is adversely affected by such breach to take a Court action to assert or protect his legal right that has been breached or violated.

​The respondent in paragraphs 4-10 of the statement of claim on pages 4-5 of the record averred that:-
4. Sometime in 1997, the said Bureau of Lands, Survey and Urban Development acknowledge the letter of application by the plaintiff and informed him that a parcel of land has been identified for the plaintiff and that the processes of acquisition was already on course. The said letter dated the 30th day of April, 1997 is hereby pleaded.
5. In June, 1998, the defendants offered the plaintiff a plot of land covering 56.591 hectares in Ikot Oduot/Nung Oku Ebere Otu, Ibesikpo Asutan Local Government Area to which the plaintiff accepted and paid the sum of N2,000,000.00 (Two Million Naira) via a Union Bank Plc. cheque No. 3791232669 to the defendants as premium.
6. The plaintiff states that in furtherance of the above transaction and as requested by the defendants, the plaintiff completed and submitted the acceptance form for the above transaction. The plaintiffs’ letter of acceptance to the 3rd defendant dated 22nd July, 1998 is hereby pleaded.
7. After paying the money the plaintiff was informed by officials of the 2nd defendant that the land allocated to him will be surveyed and documents of title given to him after all the necessary processes of identification and transfer of the land to the plaintiff had been concluded.
8. The plaintiff states that the 3rd defendant on the 28th day of July, 1998 wrote to the 2nd defendant, forwarding all the documents submitted by the plaintiff in respect of the transaction to the 2nd defendant and directing the 2nd defendant to process the Certificate of Occupancy for the plaintiff in respect of the land allotted to the plaintiff. The said letter as copied to the plaintiff is hereby pleaded.
9. The plaintiff states that from that time he has waited patiently for the conclusion of the process and submission of the documents of title of the allotted land to him to no avail.
10. The plaintiff further states that successive officers of the 2nd defendant have repeatedly advised the plaintiff to be patient while the process was on-going and promised to fast-tract its earliest conclusion. The plaintiff states further that the defendants failed to show any land to him.

​From the above, the respondent’s cause of action arose upon the failure of the appellants to transfer land to the respondent despite making part payment for it in 1998. In CIL Risk & ASSET MGT LTD V. EKITI STATE GOVT. (2020) 12 NWLR (prt.1738) 203 at 267 and 269, the Supreme Court held that a cause of action for the purpose of limitation law arose when the plaintiff becomes aware that his legal right had been breached by the defendant. In other words, time begins to run when there exists a person who can sue and another who can be sued and to the knowledge of the plaintiff, all facts have happened which are material to be proved to entitle him to succeed.

In the instant, having accepted the counter-offer and proceeded to make part payment of two Million naira (N2,000,000.00) to the appellants as a premium, it is preposterous for the respondent to claim as he did, that no right of action accrued to him at any time in this case. Furthermore, the suit giving rise to this action having been filed on 10/7/2015, same was a period of seventeen (17) years. SECTION 1 (1) of the Limitation Cap 78, Laws of Akwa Ibom State 2000 provides that the statutory period allowed to recover land to ten (10) years. It reads:-
“No action shall be brought by any person to recover any land after the expiration of ten years from right of action accrued to him or, if it first accrued to some person through whom he claim, to that person.”

Similarly, Section 16 of the said Limitation Law provides that:-
“No action founded on contract, tort or any other action not specifically provided for in parts 1 and II of this Law shall be brought after expiration of five (5) years from the date on which the cause of action accrued.”
By virtue of Section 16 of the Limitation Law above, an action founded on a simple contract shall not be instituted after the expiration of five years from the date on which the cause of action accrued. In the instant case, the appellants in June, 1998 offered the respondent a plot of land covering 56.591 hectares in Ikot Oduot/Nung Oku Ebere Otu, Ibesikpo Asutan Local Government Area to which the respondent accepted and paid the sum of two million naira (N2,000,000.00) as premium. Thus, from June, 1998 when the contract was consummated to the time of filing this action on 10/7/2015 was equally seventeen (17) years outside the five years prescribed in Section 16 of the Limitation Law aforesaid.

The rationale for the existence of statutes of limitation is that long dormant claims have more of cruelty than justice in them and a defendant may have lost the evidence to disprove a stale claim and that a person with a good cause of action should pursue it with reasonable diligence. See EKEOGU V. ALIRI (1990)1 NWLR (prt.126) 345, SOSAN V. ADEMUYI (1986)3 NWLR (prt.27) 241 and IBRAHIM V. LAWAL (2015)17 NWLR (prt.489) 490.

In the instant case, the respondent’s suit at the lower Court having been commenced outside the prescribed period offends against the provisions of the law and does not give rise to a cause of action.

​I have stated elsewhere in this judgment that the lower Court had found that the issue of the respondent’s action being statute barred cannot be determined at the stage of the proceedings without evidence being adduced. That is far from being the correct legal position. A defence founded on a statute of limitation is a defence that a plaintiff has no right of action. It is a defence which can be raised in limine and without any evidence in support. It is sufficient if, prima facie, the date of taking the action outside the prescribed period is disclosed in the writ of summons and the statement of claim. See HASSAN V. ALIYU (2010) 17 NWLR (prt. 1223) 547 at 619.

In the instant case, the date having sufficiently been pleaded in paragraph 5 of the statement of claim, the learned trial was in error not have confined himself to the statement of claim in determining the issue as to whether the respondent’s case was statute barred. This issue is resolved in favour of the appellants.

Issue No.2
This issue deals with the question as to whether the respondent’s pleadings disclosed prima facie case of fraud necessitating full blown trial before same can be determined by the trial Court. The appellants’ contention is that the issue of fraud in paragraph 16 (a) – (e) of the respondent’s pleadings do not disclose any element of fraud as there was no deception in the process for acquisition of the alleged plot of land. Counsel submits that the appellants were transparent in dealing with the respondent and that the respondent’s allegation of fraud is a ruse and colossal falsehood. In aid, counsel relied on paragraph 16 of the statement of claim to contend that the respondent did not plead that he complied with the conditions of the counter-offer.

On the part of the respondent, counsel re-iterated his earlier argument that in determining whether the allegation of fraud constitute compelling evidence, the duty of the trial Court is to be discharged only after listening to the evidence and not at the stage of preliminary objection. He referred to WOHEREM V. EMEREUWA (2004)13 NWLR (prt.890) 398 at 419 to the effect that the appellants are deemed to have admitted the averment concerning fraud in paragraph 16 of the statement of claim. It was further submitted that a party would not be allowed to take advantage of the limitation law where there is compelling evidence of disability, mistake and or fraud. Counsel referred to SANNI V OKENE L.G. (2005)14 NWLR (prt.944) 60 at 74 – 75.

​I have stated earlier that an issue of limitation of action is a peripheral matter which must be resolved before proceeding to determine the merits of the case and thus the issue of limitation of time to institute an action is a preliminary issue touching on competence of not only the action but of the Court before which the action is pending.

The respondent’s contention here is that the allegation of fraud in the suit requires hearing evidence from the parties before same could be resolved either way. The appellants on the other hand maintained that the trial Court needed no further evidence to determine the respondent’s allegation of fraud as the pleadings did not disclose any prima facie case of fraud against the appellants to warrant going into hearing on the merits.

In paragraph 16 of the statement of claim, the respondent averred as follows:
“16. The defendants have acted in a most fraudulent manner conceivable against the plaintiff in respect of this matter.
PARTICULARS OF FRAUD
(a) The defendants collected the sum of N2,000,000.00 (Two Million Naira) from the plaintiff with the promise to allocate the said land to him.
(b) The defendants had no intention of allocating any land as promised to the plaintiff from the beginning.
(c) The defendants informed the plaintiff that the N2,000,000.00 (Two Million Naira) paid by the plaintiff for the land was to enable the defendants pay compensation to owners of the land to be acquired for the plaintiff.
(d) The defendants did not acquire any land for the plaintiff and did not survey any land neither did the defendants pay for the survey of any land for the plaintiff.
(e) The defendants pocketed the plaintiff’s N2,000,000.00 (Two million naira) and played the plaintiff along for the time to lapse.”

​A fraud is an intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right. In the realm of civil law, fraud involves acts, omissions or concealments by which an undue advantage is taken of another. The pertinent question here is does the averment in paragraph 16 of the respondents’ statement of claim prima facie discloses intentional perversion of truth? I do not think so considering the fact that the issue concerning the said plot was ignited by the respondent himself and that the subsequent communications between the parties does not evince wrongful or criminal deception intended to result in financial or personal gain. It is clear from the several exchanges of letters the appellants neither induced nor lure the respondent to make the part payment of two million naira (N2,000,000.00) as premium. It is thus my view that the pleadings did not disclose prima facie case of fraud. That being the case, the decision of this Court in SANNI V OKENE L.G. (supra) is totally inapplicable to the facts in this case. While the respondents in that case had no statutory power to remove the appellant from the Okene Local Government Traditional Council, the appellants in this case have the statutory powers to allocate land under Section 5 of the Land Use Act. Consequently, the respondent cannot be allowed to thwart the application of Limitation Law to this action. And the appellants having successfully pleaded the limitation law against the respondent’s right of action, the action becomes extinguished and unmaintainable in law. I resolved this issue also in favour of the appellants.

In the result, the appeal is meritorious and it is accordingly allowed. The respondent’s suit No. HU/197/2015 is hereby struck out for want of jurisdiction. There is however no order as to costs.

​RAPHAEL CHIKWE AGBO, J.C.A.: I was privileged to read in advance the lead judgment of my learned brother Shuaibu, JCA and I agree with both the reasoning and conclusions and have nothing useful to add. I too allow the appeal and abide by the consequential orders contained therein.

BALKISU BELLO ALIYU, J.C.A.: I read in draft, the judgment prepared by my learned brother, Muhammed Lawal Shuaibu, JCA. I agree with him that this suit is statute barred and the Respondent had an empty cause of action that cannot be enforced by judicial intervention.

​I too allow this appeal and set aside the ruling of the High Court of Akwa Ibom State, Uyo Judicial Division delivered on the 12th July, 2017 in Suit No. HU/197/2015. I abide by the order of no cost made in the lead judgment.

Appearances:

Sediong Udonnah (Asst. Chief State Counsel, MOJ, AKS) For Appellant(s)

Francis Ekanem For Respondent(s)