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ABUBAKAR & ANOR v. CHAMO (2022)

ABUBAKAR & ANOR v. CHAMO

(2022)LCN/15958(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, January 14, 2022

CA/A/694/2018

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. KABIRU ABUBAKAR 2. RABIATU A. KABIRU APPELANT(S)

And

ALHAJI UBA CHAMO RESPONDENT(S)

 

RATIO

THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES

Burden of proof in civil matters is on the party who asserts a fact and has to prove it. The standard of proof is preponderance of evidence or the balance of probabilities. See the cases of LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228, DAODU V. NNPC 1998 2 NWLR PT.538 P.355 and KALA V. POTISKUM 1998 3 NWLR PT. 540 P.1.

The onus of proof of an allegation is on the party who claims and it does not shift until he has proved his case on the preponderance of evidence. When the burden is discharged, it then shifts and continues to shift. A party is not allowed to rely on the weakness of its opponent in order to succeed. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P.65.
It is elementary and firmly settled that the trial Court has the privilege and opportunity to deal with both facts and the law in respect of matters before it, listens to witnesses and watches their demeanor.
PER WILLIAMS-DAWODU, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF JURISDICTION

Jurisdiction is the life wire of any proceedings before a Court and where it is found to be absent, however well the proceedings were conducted, a verdict of nullity would be entered as if the proceedings never took place, amounting to sheer waste of the much needed judicial and everyone’s time and resources. It is determined by the claim on the Claimant’s Writ of Summons and Statement of Claim. See the cases of ADEYEMI V. OPEYORI 1976 9-10 SC 31, TUKUR V. GOVT. OF GONGOLA STATE 1989 4 NWLR PT. 117, SAUDE V. ABDULLAHI 1989 4 NWLR PT. 116 387 SC, MADUKOLU V. NKEMDILIM 1962 2 SCNLR 341, PETROJESSICA ENTERPRISE LTD. V. LEVENTIS TECH. CO. LTD. 1992 5 NWLR PT. 244 675, FORESTRY RESEARCH INSTITUTE OF NIGERIA v. GOLD (2007) LPELR-1287(SC) and IDIH V. UTENO 2009 LPELR- CA/A/230/06 and a host of others. PER WILLIAMS-DAWODU, J.C.A.

THE PURPOSE OF STATUTE OF LIMITATION

​It is settled law and certain that a legal right to a claim or to enforce an action is not in perpetuity but generally limited by Statute as such right would otherwise have remained in perpetuity. Statute of Limitation removes the right to action, the right of enforcement, the right to judicial relief and leaves the Claimant with bare and empty cause of action that cannot be enforced and gives him nothing, where a period of time has expired and the Claimant has failed to exercise his right to sue before then. The right to commence an action, sue, begins to run from the moment the cause of action arises, the date the cause of action accrues. It is clear that, the objective and intendment of the Statute accords with fairness, and conforms, with the reality of human society, as it is geared to protect Defendants from embarrassment where witnesses are no longer available for many reasons necessary documents could be out of circulation, lost, destroyed and are impossible to come by even in the archives etc. See the cases of EGBE V. ADEFARASIN NO. 2, SOSAN V. ADEMUYIWA 1986 3 NWLR PT. 27 241, ADEOSUN V. JIBESIN 2001 14 WRN 706, NZE BERNARD CHIGBU V. TONIMAS NIG. LTD. & ANOR 2006 LPELR-846 SC, ELABANJO V. DAWODU 2006 15 NWLR P. 97, AKIBU V. AZEEZ 2003 5 NWLR PT. 814 643 and SHELL PETROLEUM DEV. COY. LTD. V. CHIEF GOODLUCK C. R. MEBURU 2013 LPELR-21889 CA. PER WILLIAMS-DAWODU, J.C.A.

DEFINITION OF THE TERM “CAUSE OF ACTION”

Cause of action has been described as the entire set of facts or circumstances giving rise to an enforceable claim. It includes all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed. See the cases of EMINTOR V. NIGERIAN ARMY 1999 12 NWLR PT.631 362, IBRAHIM V. OSIM 1987 4 NWLR PT. 67 965, SANDA V. KUKAWA LOCAL GOVERNMENT 1991 2 NWLR PT. 174 379, ATTORNEY GENERAL OF THE FEDERATION V. ABACHA 2010 17 NWLR PT. 1221 1 and ABBA MOHAMMED SANI V. PRESIDENT FEDERAL REPUBLIC OF NIGERIA & ATTORNEY GENERAL OF THE FEDERATION 2010 PT. 1198 153. PER WILLIAMS-DAWODU, J.C.A.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A. (Delivering the Leading Judgment): This appeal emanated as a result of the Judgment of the High Court of the Federal Capital Territory, Abuja, delivered by Hon. Justice U. A. Musale in Suit No. FCT/HC/CV/1300/2014 wherein the Court below granted the claim of the Respondent (the Plaintiff at the Court below).

At the Court below the Respondent claimed in the main as follows against the Appellants:
1. A declaration that by the understanding of the 1st defendant to the plaintiff as contained in their agreement dated 6th September, 2002 and 13th March, 2004 the plaintiff is entitled to an order of this Honourable Court evicting the defendants from the property known as Plot 298 measuring about 750M2 at Gbazango Layout
2. A declaration that the 1st Defendant is stopped by his conduct from reneging from the undertaking contained in the contract of the parties as contained in the agreement made by the parties relating to the title to plot No. 298 measuring 750M2 at Gbazango Layout on 13th March, 2004.
3. A declaration that the defendants having not acquired any proprietary right over the property described as Plot No. 298 measuring about 750M2 at Gbazango Layout after obtaining consent from the plaintiff to stay and develop the said plot are trespassers to the extent that the 1st defendant has breached his undertaking as contained in the agreements entered on the 6th September, 2002 and 13th March, 2004 between the plaintiff and the 1st defendant.
4. An order of this Honourable Court compelling the 1st defendant to fulfill his obligation as contained in the undertaking made on both the 6th September, 2002 and 13th March, 2004.
In the alternative:
5. An order of this Honourable Court ejecting the defendants from the property known as Plot No. 298 measuring about 750M2 at Gbazango Layout in view of the agreement contained in the documents made by the parties on the 6th September, 2002 and 13th March, 2004.
6. An order of this Honourable Court directing the defendants to pay to the plaintiff as general damages the sum of N10,000,000.00 (Ten Million Naira) for trespass to plot No. 298 measuring about 750M2 at Gbazango Layout from 2004 till the date judgment is delivered in this suit.
7. An order of this Honourable Court commanding the defendants to pay post-judgment interest on the judgment sum until liquidation.

As garnered from the printed record before this Court, the case of the Respondent was that the Appellant mistakenly built on his land with plot number 298 which made them to enter into an agreement dated the 6th day of September 2002 to swap the said plot with that of the Appellant’s plot 278. But on getting to plot 278 to commence development, he found that the Appellant was not the owner of the plot as someone else successfully proved ownership of the plot. The Appellant gave him another plot no. 172 in 2004 which brought about another agreement between them dated 13th March 2004 which was also a false claim, in another’s name. He therefore instituted an action at the Court below against the 1st Appellant for parties to return to the status quo before the swap of the plots.

​Parties in compliance with the Rules filed and exchanged their processes. The Appellants’ joint amended brief dated October 29th 2020, filed October 30th 2020, deemed as properly filed and served on July 5th 2021, was settled by Lukman O. Fagbemi Esq. together with their Reply Brief filed July 23rd 2021. The Respondent’s dated July 9th 2021 and filed same date was settled by Abdul Mohammed, SAN.

The Respondent raised a preliminary objection through Notice of Motion filed July 9th 2021.

RESPONDENT’S PRELIMINARY OBJECTION
The preliminary objection must be first dealt with one way or the other in order to clear the way for the substantive appeal.

The Respondent sought the following two orders in the main:
1. An order of this Honourable Court striking out Ground 3 of the Appellant’s Amended Notice of Appeal dated 30th November, 2020 and deemed properly filed and served on the 5th of July, 2021 for being incompetent.
2. An order striking out Issue 3 in the Appellant’s Amended Brief of Argument dated 30th November 2020 and deemed as properly filed and served on the 5th July 2021.

The five grounds submitted in respect of the objection are:
1. Ground 3 in the Amended Notice of Appeal is a complaint that the trial Court granted all the Relief sought by the Respondent.
2. The Ground did not emanate from the judgment of the trial Court. Ground 3 of the Appellant’s (sic) Amended Notice of Appeal is incompetent as same is against the judgment of the lower Court.
3. The Appellant distilled Issue 3 from Grounds 2 and 3 of the Amended Notice of Appeal.
4. Having distilled the (sic) Issue 3 from a competent ground and an incompetent Ground, Issue 3 becomes incompetent and liable to be struck out.
5. By virtue of the above, all the arguments canvassed under Issue 3 thereto becomes (sic) incompetent.

I have very carefully considered the said Ground 3 of the Appellants’ amended Notice of Appeal. I am afraid I fail to agree with the submission of the learned Counsel to the effect that the Ground be struck out as well as Issue 3 which was distilled from it.

GROUND 3 in the amended Notice of Appeal is as follows without the Particulars of error:
The learned trial Court erred in law and occasioned a miscarriage of justice against the Appellant when it granted all the relief sought by the Respondent in spite of the fact that Respondent failed to proof (sic) his entitlement to the relief sought having regard to the nature of evidence adduced by the parties on record.

ISSUE 3 states thus:
“Whether the learned trial Court was right in law in granting the claim of the Respondent having regard to the nature of the case and the evidence led by the parties at the trial Court”.

The argument of the learned Respondent’s Counsel is that Issue 3 for determination arose from the incompetent Ground 3 of the appeal and therefore should be declared incompetent, liable to be struck out and cited the cases of AMADI V. ORISAKWE 1997 7 NWLR PT. 511 161, NWADIKE V. IBEKWE 1987 4 NWLR PT. 677 and KOREDE V. ADEDOKUN 2001 15 NWLR PT. 736 483.

On the other hand, the learned Appellants’ Counsel argued that the Appellants’ amended Notice of Appeal was not filed on November 30th 2020 as mentioned by the Respondent and urged therefore that the objection be discountenanced. He submitted that the said Ground clearly challenged the decision of the Court as it emanated from the judgment of the Court, concluded wrongly in spite of the evidence placed before it by the parties. He submitted further that in substance the relief sought by the Respondent was granted regardless of the variation of same. And that where the said Ground is read together with its particulars, the doubt flies as to the Appellants’ complaint about the decision and in support cited the cases of F.H.A. V. KALEJAIYE 2010 19 NWLR PT. 1226 147, BRIGGS V. C. L. O. R. S. N 2005 12 NWLR PT. 938 59 and ACHONU V. OKUWOBI 2017 LPELR 42102.

As aforestated, with a close and careful consideration of the said Ground and Issue being objected to by the Respondent, one is unable to find as argued by the Respondent. In my view and humbly, the substance and purport of the Ground along with its Particulars show that the said Ground emanated from the judgment of the Court that is being appealed. In consequence, this objection cannot be sustained, it is hereby overruled and accordingly dismissed.
I therefore proceed to consider the main appeal.

ISSUES SUBMITTED ON BEHALF OF THE APPELLANTS FOR DETERMINATION:
1. Having regard to the peculiar nature of claim as contained in the amendment (sic) statement of claim filed by the Respondent at the trial Court and the main relief sought which are founded on the enforcement of the contract entered into on the 6th day of September, 2002 and the one dated 13th day of March 2004, whether the learned trial Court was not wrong in law when it held that the matter is not caught by the provision of Section 7 (1) (a) of the Statute of Limitation Act and same not statute barred (Ground 4 ).
2. Whether the learned trial Court was not wrong in law when it granting (sic) to the Respondent, those reliefs contained in the judgment without proper evaluation of the entire evidence led (sic) parties having regard to the evidence on record (Ground 1).
3. Whether the learned trial Court was right in law in granting the claim of the Respondent having regard to the nature of the case and the evidence led by the parties at the trial Court Grounds 2 and 3).

ISSUES SUBMITTED BY THE RESPONDENT FOR DETERMINATION
a. Whether the trial Court was right in finding that the Respondent’s suit is not statute barred?
b. Whether the trial Court properly evaluated the evidence, before arriving at the conclusion that the Respondent was entitled to the reliefs granted to the Respondent.

​I have very carefully considered the foregoing Issues by both sides. The two sets of Issues are similar in substance though differently couched. With respect, those by the Respondent are more clearly put, simply couched and for those reasons, I shall adopt them for the just and fair determination of this appeal.

SUBMISSIONS MADE ON BEHALF OF THE PARTIES
APPELLANTS’ ARGUMENT
The learned Counsel for the Appellants submitted that the Respondent’s Writ of Summons filed on 15/4/2014 is in breach of Section 7 (1) (a) of the Limitation Act CAP 522 Laws of the Federation of Nigeria as the instant action is in respect of a contractual matter which time frame is six (6) years from the date of occurrence of the cause of action found from the Writ of Summons and Statement of Claim and cited in support the cases of WILLIAMS V WILLIAMS 2008 10 NWLR PT. 1095, AMUSAN V. OBIDEYI 2005 14 NWLR PT. 945 32 and SIFAX NIGERIA LTD. & ORS. V. MIGFONIGERIA LTD. & ANOR. 2015 PT. 1623 138. He argued that the cause of action of the Respondent was based on the agreement of September 6th 2002 and it accrued to him in 2004 when the 1st Appellant failed to fulfill his obligation according to the agreement which the Court wrongly interpreted to be a matter for recovery of land and not enforcement of the contract. The position of the Court he argued was wrong as the entire case of the Respondent was to enforce the agreement of September 6th 2002, Exhibit CH3. He submitted that the deadline for the Respondent’s action was 2010 from 2004 and therefore his suit commenced in 2014 was barred by statute and cited in support the cases of ODUBEKO V. FOWLER 1993 7 NWLR PT. 308 637, SHELL PETROLEUM DEVELOPMENT CORPORATION V. FARAH 1995 3 NWLR PT. 382 148 and PN UDOH TRADING CO. LTD. V. ABERE 2001 11 NWLR PT. 723 114 amongst others cited. He submitted that the decision of the Court was therefore perverse and cited in support the cases of ATOLAGBE V. SHORUN 1985 NWLR PT. 2 P. 30, OSUJI V. EKEOCHA 2009 16 NWLR PT. 1166 81 and IROLO & ORS V. UKA & ORS 2002 14 NWLR PT. 786 P. 195.

He argued that the learned Court failed to properly evaluate the evidence before it and therefore occasioned fundamental miscarriage of justice against the Appellants and cited the cases of F.R.N. V. YAHAYA 2019 7 NWLR 1670 P. 85, JOHN OGBU & ANOR. V. THE STATE 2007 2 SCNJ 319, (CPC) V. INEC & 41 ORS 2011 12 SC PT. V 80 and ADEWALE JOSEPH V. THE STATE 2011 6-7 PT. V 1. He asserted that the Appellants on their part adduced copious and cogent evidence to show that the purported Plot 298 which formed the basis of Exhibit CH3 was never in existence whilst the Respondent failed to prove his case that there was breach of the agreement of September 6th 2002 between the parties. He urged therefore that the Court’s judgment be set aside and cited among others the cases of EHOLOR V. OSAYANDE 1992 LPELR-8053 SC P. 43 and ADELEKE V. IYANDA 2001 13 NWLR PT. 729 1.

The learned Counsel with respect to Exhibit R, the previous statement of DW2, the 2nd Appellant submitted that the Court was wrong to have referred suo motu to the document, Exhibit R, as it had been amended and no longer useful to either the Court or any of the parties notwithstanding the provision of Section 232 of the Evidence Act and cited the case of ROTIMI & ORS V. MCGREGOR 1974 11 SC 13 P. 152. In conclusion, he submitted that the decision of the Court is perverse and urged that same be set aside in the interest of justice.

RESPONDENT’S ARGUMENT
The learned Counsel for the Respondent submitted that the decision of the Court below is on terra firma. That the agreement between the parties was one that pertained to land to recover Plot 298 from the Appellants who had wrongly trespassed on it and failed to honour their mutual agreement to pass valid title in both Plots 278 and 172 and not an agreement for the enforcement of a simple contract. And that the Respondent’s suit was for a return of the parties to the status quo ante bellum. Therefore, he submitted that given the facts of the case between the parties. Section 15 (2) (a) of the Limitation Act of the Federal Capital Territory Cap. 522 LFN 1990 is the applicable law with respect to this appeal as opposed to Section 7 (1) thereof. Consequently, the Respondent had a period of twelve (12) years from when the cause of action started to run against him which was March 2004 when the Respondent realized that the 1st Appellant had no proprietary right to transfer to April 15th 2014 when he instituted the suit. He submitted therefore that the Respondent’s right of action was still alive and not caught by the Statute of Limitation.

​Further, he submitted that the Court correctly found that the Appellants were trespassers upon the established case of the Respondent’s in that regard and therefore applicability or otherwise of the Limitation Law becomes otiose based on the principle of continuing trespass. There was no doubt about the fact that the structures of the Appellant remained on Plot 298 and that makes it a case of continued trespass until the cessation of the trespass. In support, he cited the cases of APOSTLE PETER EKWEOZOR & ORS V. THE REGISTERED TRUSTEES OF SAVIOUR APOSTOLIC CHURCH OF NIG. 2014 16 NWLR 1434 433 CA, NIGERIAN NATIONAL PETROLEUM CORPORATION V. MALLAM IDI ZARIA & ANOR. 2014 LPELR-22362 6A and ADEPOJU V. OKE 1999 3 NWLR PT. 594 154.

According to the learned Respondent’s Counsel, there was no doubt that the Respondent owned Plot 298 as contained in his witness statement and the documents tendered, Exhibit CH3, the original copy of the agreement which is the exact copy of Exhibits K and K1 submitted by the Appellants and Exhibit K2, the certificate of occupancy in favour of the 2nd Appellant in respect of the plot. He cited in support the cases of AWOTE V. OWODUNNI (NO. 02) 1987 2 NWLR PT. 57 367, ISO V. ENO 1999 2 NWLR PT. 590 204 and KAMALU V. UMUNNA 1997 5 NWLR PT. 505. He submitted that by a community reading of Sections 20, 21, 22, 23, 24 and 41-42 and Section 171 of the Evidence Act, Exhibit CH3, K and K1 being one and the same document, there is sufficient ground in support of the Court’s finding that the Respondent had proprietary right over Plot 298 on which the Appellants built. Therefore, the Respondent was entitled to judgment entered in his favour. The argument that the Court acted in error by making a finding on the existence of Plot 298 is misconceived as the document to that effect was admitted without objection he added.

He contended that Exhibit R was tendered to fulfill the requirement of Section 232 of the Evidence Act, to show the inconsistent statement previously made by the DW2 on the same issue before the Court and not to force DW2 to adopt the said Exhibit R as her testimony. The learned Counsel in support cited the cases of KASIMU BELLO MAIGARI V. HON. AMINU IBRAHIM MALLE & 2 ORS SC 454/2019 and OKAFOR V. NNAIFE 1987 4 NWLR PT. 64 120. He urged that the Court should take cognizance of Exhibit R since the DW2 admitted making the statement in the first place and cited in support the cases of KASA V. STATE 1994 5 NWLR PT. 344 P. 269 and ROMAINE V. ROMAINE 1992 NWLR PT. 238 P. 650 amongst others. He argued that even where the Court failed to use Exhibit R, or is found to have wrongly used it, the case of the Respondent was still established as it was shown that the agreement to swap Plots 298 with 279 on September 6th 2002 between the parties existed by Exhibit CH3, K and K1. That the issue of documents on Plot 298 as being fake were not pleaded even as stated by the 1st Appellant at trial. Consequently, the trial Court was right to discountenance such testimony as the evidence went to no issue having not been pleaded. In support, he cited the case of EDHEREMU UGBODUME & ORS V. REV. MOSES ABIEGBE & ORS 1991 LPELR-3316 SC. He asserted that the Court below pronounced on all the material issues before it including the verification exercise at Bwari Area Council on the authenticity of Plot 298 and in that regard submitted that the Court was right to have found that the Appellants breached the agreement of 6th September 2002 and still remained trespassers on Plot 298 belonging to the Respondent. In conclusion, the learned Counsel urged that the appeal be dismissed with substantial cost as it lacks merit.

​THE POSITION OF THE COURT
ISSUES A and B
a. “Whether the trial Court was right in finding that the Respondent’s suit is not statute barred?
b. Whether the trial Court properly evaluated the evidence, before arriving at the conclusion that the Respondent was entitled to the reliefs granted to the Respondent”.

I have painstakingly considered the briefs by the parties along with the Record before this Court and now proceed to consider the two Issues already adopted together reproduced above, along with the findings of the Court below.

Burden of proof in civil matters is on the party who asserts a fact and has to prove it. The standard of proof is preponderance of evidence or the balance of probabilities. See the cases of LONGE V. FBN PLC. 2006 3 NWLR PT. 967 P. 228, DAODU V. NNPC 1998 2 NWLR PT.538 P.355 and KALA V. POTISKUM 1998 3 NWLR PT. 540 P.1.

The onus of proof of an allegation is on the party who claims and it does not shift until he has proved his case on the preponderance of evidence. When the burden is discharged, it then shifts and continues to shift.

A party is not allowed to rely on the weakness of its opponent in order to succeed. See the cases of IMAM V. SHERIFF 2005 4 NWLR PT. 914 P. 80, ELIAS V. OMO-BARE 1982 2 SC P. 25 and AGBI V. OGBEH 2006 11 NWLR PT. 990 P.65.

It is elementary and firmly settled that the trial Court has the privilege and opportunity to deal with both facts and the law in respect of matters before it, listens to witnesses and watches their demeanor.

Briefly, the facts being argued by both sides were according to the Respondent to the effect that the agreement dated September 6th 2002 between the parties was the first when he agreed to swap his land plot 298 at the Gbazango Layout for that of the Appellants’ plot 278 within the same layout because the 1st Appellant had commenced development on his own plot upon mistaken identity with his own plot. The 1st Appellant undertook to pass his plot no. 278 to the Respondent but the Respondent was unable to take possession as someone else claimed ownership. The second agreement between the two parties was made on March 13th 2004 for the 1st Appellant to give another plot of his no. 172 to the Respondent. That also did not materialize as the plot was found not to be in the 1st Appellant’s name in consequence of which the Respondent approached the Court below and sought to return to status quo ante bellum.

The Appellant’s position is that the action of the Respondent was barred by statute, specifically Section 7 (1) (a) of the Limitation Act and that being the position, the Court had no jurisdiction to have entertained it as the whole proceedings amounted to a nullity. Particularly, as the claim of the Respondent was that of simple contract between the parties and as the period of time given in that regard is six (6) years only. And that, the action does not come under Section 15 of the Limitation Act as contended by the Respondent.

Jurisdiction is the life wire of any proceedings before a Court and where it is found to be absent, however well the proceedings were conducted, a verdict of nullity would be entered as if the proceedings never took place, amounting to sheer waste of the much needed judicial and everyone’s time and resources. It is determined by the claim on the Claimant’s Writ of Summons and Statement of Claim. See the cases of ADEYEMI V. OPEYORI 1976 9-10 SC 31, TUKUR V. GOVT. OF GONGOLA STATE 1989 4 NWLR PT. 117, SAUDE V. ABDULLAHI 1989 4 NWLR PT. 116 387 SC, MADUKOLU V. NKEMDILIM 1962 2 SCNLR 341, PETROJESSICA ENTERPRISE LTD. V. LEVENTIS TECH. CO. LTD. 1992 5 NWLR PT. 244 675, FORESTRY RESEARCH INSTITUTE OF NIGERIA v. GOLD (2007) LPELR-1287(SC) and IDIH V. UTENO 2009 LPELR- CA/A/230/06 and a host of others.

​It is settled law and certain that a legal right to a claim or to enforce an action is not in perpetuity but generally limited by Statute as such right would otherwise have remained in perpetuity. Statute of Limitation removes the right to action, the right of enforcement, the right to judicial relief and leaves the Claimant with bare and empty cause of action that cannot be enforced and gives him nothing, where a period of time has expired and the Claimant has failed to exercise his right to sue before then. The right to commence an action, sue, begins to run from the moment the cause of action arises, the date the cause of action accrues. It is clear that, the objective and intendment of the Statute accords with fairness, and conforms, with the reality of human society, as it is geared to protect Defendants from embarrassment where witnesses are no longer available for many reasons necessary documents could be out of circulation, lost, destroyed and are impossible to come by even in the archives etc. See the cases of EGBE V. ADEFARASIN NO. 2, SOSAN V. ADEMUYIWA 1986 3 NWLR PT. 27 241, ADEOSUN V. JIBESIN 2001 14 WRN 706, NZE BERNARD CHIGBU V. TONIMAS NIG. LTD. & ANOR 2006 LPELR-846 SC, ELABANJO V. DAWODU 2006 15 NWLR P. 97, AKIBU V. AZEEZ 2003 5 NWLR PT. 814 643 and SHELL PETROLEUM DEV. COY. LTD. V. CHIEF GOODLUCK C. R. MEBURU 2013 LPELR-21889 CA.

Section 7 Limitation Law provides thus:
“The following action shall not be brought after the expiration of six years from the date on which the cause of action accrued;
(a) actions founded on simple contract.”

Section 15 (2) (a) Limitation Law provides as follows:
No action by a person to recover land –
(a) shall, subject to paragraph (b) of this Subsection, be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person.

From aforegoing provisions of the law, it is pertinent to know the nature of the agreement between the parties, whether or not it was one of a simple contract. It therefore becomes necessary to look at the Respondent’s claims. Reference is made here to aforestated claims 1-7 shall be hereunder reproduced for ease of reference and better appreciation of same:
1. A declaration that by the understanding of the 1st defendant to the plaintiff as contained in their agreement dated 6th September, 2002 and 13th March, 2004 the plaintiff is entitled to an order of this Honourable Court evicting the defendants from the property known as Plot 298 measuring about 750M2 at Gbazango Layout.
2. A declaration that the 1st Defendant is stopped by his conduct from reneging from the undertaking contained in the contract of the parties as contained in the agreement made by the parties relating to the title to plot No. 298 measuring 750M2 at Gbazango Layout on 13th March, 2004.
3. A declaration that the defendants having not acquired any proprietary right over the property described as Plot No. 298 measuring about 750M2 at Gbazango Layout after obtaining consent from the plaintiff to stay and develop the said plot are trespassers to the extent that the 1st defendant has breached his undertaking as contained in the agreements entered on the 6th September, 2002 and 13th March, 2004 between the plaintiff and the 1st defendant.
4. An order of this Honourable Court compelling the 1st defendant to fulfill his obligation as contained in the undertaking made on both the 6th September, 2002 and 13th March, 2004.
In the alternative:
5. An order of this Honourable Court ejecting the defendants from the property known as Plot No. 298 measuring about 750M2 at Gbazango Layout in view of the agreement contained in the documents made by the parties on the 6th September, 2002 and 13th March, 2004.
6. An order of this Honourable Court directing the defendants to pay to the plaintiff as general damages the sum of N10,000,000.00 (Ten Million Naira) for trespass to plot No. 298 measuring about 750M2 at Gbazango Layout from 2004 till the date judgment is delivered in this suit.
7. An order of this Honourable Court commanding the defendants to pay post-judgment interest on the judgment sum until liquidation.

In particular, paragraph 2 of the Respondent’s statement of claim states as follows: “The 1st defendant trespassed into the plaintiff’s plot 298 measuring about 750M2 at Gbazango Layout without the plaintiff’s consent or Authorisation”
The Court stated thus in its finding and correctly in my view and humbly:
“Going by the claim of the plaintiff, the cause of action is to recover land trespassed upon by the defendants. If that is the cause of action, then, this matter falls under the provision of Section 15 (2) (a) of the Limitation Act. The time required ought to be expiration of 12 years from the date the right of action accrued to the plaintiff. I therefore hold that the plaintiff is not caught by the statute of Limitation Act raised by the defendants. From whatever angle you look at the issue, including accepting that the right of action accrued on the 6th September, 2002.”

Cause of action has been described as the entire set of facts or circumstances giving rise to an enforceable claim. It includes all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed. See the cases of EMINTOR V. NIGERIAN ARMY 1999 12 NWLR PT.631 362, IBRAHIM V. OSIM 1987 4 NWLR PT. 67 965, SANDA V. KUKAWA LOCAL GOVERNMENT 1991 2 NWLR PT. 174 379, ATTORNEY GENERAL OF THE FEDERATION V. ABACHA 2010 17 NWLR PT. 1221 1 and ABBA MOHAMMED SANI V. PRESIDENT FEDERAL REPUBLIC OF NIGERIA & ATTORNEY GENERAL OF THE FEDERATION 2010 PT. 1198 153.

Having correctly found that the action brought by the Respondent was in respect of land, it further held thus and correctly:
“The period of 12 years had not lapsed at the time this suit was instituted on the 15th April, 2014. The issue of statute-bar raised by the defendants is found unmeritorious and therefore dismissed”.

Indeed the suit at the Court below as filed on 15/4/2014, the first agreement between the parties on the issue of swapping each other’s land was September 6th 2002 and the second was March 13th 2004. Therefore one could not agree more with the Court’s position where the applicable provision is Section 15 of the Limitation Law which provides twelve (12) years and not six (6) years as in Section 7 of the said law. In consequence, the Respondent’s case was rightly filed, alive and the Court had jurisdiction to have entertained it.

​On whether or not the Respondent established his case, the following documents were tendered and admitted in support of his case:
i. Search report from Bwari Council in respect of plot no. 172 Gbazango Layout admitted as Exhibit CH
ii. AMAC conveyance of Provisional Approval dated 15th June, 1995 in favour of Sirki Babangida in respect of plot no. 172 at Gbazango Layout as Exhibit CH1
iii. A write-up titled TAKARDA YAR JEJENIYAR WURI dated 13th March, 2004 admitted as Exhibit CH2.

It is necessary to note that Exhibit CH2 was expunged by the Court upon the submission of the Appellants’ learned Counsel that it was inadmissible having been written in Hausa language without the English version.
iv. The copy of the Hausa agreement dated 6th September, 2002 titled yar Jejeniyar Tsakanin Alhaji Uba Sale Chamo and/da A. Kabiru Abubakar and the English translation by Jamila Haruna of the High Court of the FCT, both admitted as Exhibit CH3. The translated copy dated November 11th 2014.

The Appellants in their defence tendered the following documents:
i. The Hausa agreement dated September 6th 2002 and the English version of same by Jamila Haruna dated November 11th 2014 were admitted as Exhibits K and K1 respectively.
ii. Certificate of occupancy (customary) in favour of Rabiatu A. Kabiru (the 2nd Appellant) dated March 1997 and AMAC Conveyance of provisional approval dated 15th June 1995 in favour of Zazhi Kuphi both in respect of plot no. 298 admitted as Exhibits K2 and K3 respectively
iii. Abuja Municipal Area Council conveyance of provisional approval in favour of Nurudeen Musa in respect of plot no. 278 dated 15th June 1996 admitted as Exhibit K4.
iv. Cash receipt from N. C. Nwachukwu & Co. no. 014 dated 11th November, 2014 admitted as Exhibit K5.

Through the 2nd Appellant, Mrs Kabiru, her statement on oath deposed to on December 9th 2014 admitted as Exhibit R which was tendered to discredit the evidence of the DW2, the 2nd Appellant.

​The Court found from the evidence before it that Plot 298 exists and Exhibit CH3, the agreement of September 6th 2002 in spite of the argument of the Appellants that plot 298 did not exist. The Court found the existence of Plot 298 from Exhibit K2 aforementioned, the Right of occupancy processed by the Respondent in favour of and granted to the 2nd Appellant pursuant to Exhibit CH3, the September 6th 2002 agreement, wherein the Respondent left Plot 298 for the 1st Appellant who in exchange gave his Plot 278. From the Record second agreement was made on March 13th 2004 for Plot 172, Exhibit CH2 in Hausa language as the Respondent could not take possession of the said 1st Appellant’s Plot 278 which turned out to be non-existent. The Court in respect of the foregoing held thus on pages 280-281 of the Record:
“…In my view, the plaintiff has fulfilled all righteousness. But one can see the type of people the plaintiff had transacted with …
Before the Court, plot No. 298 is still in existence. …This the 1st defendants (sic) did not contradict. The 1st defendant when cross-examined said –
The plaintiff gave me plot 298 and I gave him 278. I do not have any document to show that plot 298 is fake from Bwari Area Council. Bwari Area Council told Alh Uba that plot 278 is not existing. I did not compensate Alh. Uba for loosing (sic) plot 278.
The Court also holds the view that nothing is before it to show plot 298 is fake Plot No. 298 has valid documents before the Court.

Further, the Court stated as follows on pages 283-284 of the Record:
“…From the record, the plaintiff had made good his bargain by giving the 1st defendant good title to plot 298. He even assisted in getting Certificate of Occupancy to the defendants. The defendants on the other hand gave the plaintiff fake documents of plots 278 and the plaintiff end (sic) up with nothing.
There is no doubt that the plaintiff in the agreement entered into on the 6th September, 2002 did not receive any benefit. There is therefore total failure of consideration. The plaintiff is therefore entitled to restitution. In the present circumstance, he is entitled to plot 298 …”

It therefore concluded that the Appellants “remained the trespassers they are” as since the agreement on exchange failed for lack of consideration on the part of the Appellants.

One cannot agree more with the position of the Court and indeed have no occasion to disturb the findings. The Respondent from the preponderance of evidence as can be seen from the Record before this Court established his case against the Appellants.

​The argument by the Appellants that Plot 298 was fake in my view and humbly cannot hold. The Appellants remained on the land even though they claimed it was renumbered. There was no evidence that they were asked to leave or that possession was taken away from them unlike the situations with the Respondent who could not even take possession of either Plot 278 or Plot 172. Further and important is the fact that the Appellants failed to plead that issue and testifying orally in that regard only goes to no issue as argued by the learned Respondent’s Counsel. The 1st Appellant, DW1 on page 244 of the Record stated thus: “…I did not put in my defence” in other words, he failed to plead those facts … “l do not have any document to show that plot 298 is fake from Bwari Area Council.”

The argument by the Appellants’ Counsel on Exhibit R which the Court below rightly referred to cannot hold. In the light of the foregoing, the two Issues are both resolved in favour of the Respondent.

​In the result, this appeal cannot be allowed as it fails and is hereby dismissed. The judgment of the Court below delivered on May 7th 2018 is hereby accordingly affirmed.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Elfrieda Oluwayemisi Williams-Dawodu, JCA.

I agree fully with his reasoning and the conclusion that this appeal lacks merit. I too, do dismiss this appeal and I affirm the judgment of the trial Court delivered on 07/05/2018.

BATURE ISAH GAFAI, J.C.A.: I have had a preview of the judgment just delivered by my learned brother William-Dawodu, JCA. I am in agreement with the reasonings expressed therein and conclusions arrived thereat. It is evident that the appeal is vexatious and unmeritorious.

For the fuller reasons canvassed in the lead judgment, I too dismiss this appeal.

Appearances:

Mr. L. O. Fagbemi For Appellant(s)

Mr. Abdul Mahammed, SAN, with him, Mr. Obiabo F. Amedu, Mr. Kolade Lawal, Ms Hajara Shehu and Abusufyawu Abubakar For Respondent(s)