ANGIYA v. EMMANUEL (2021)

ANGIYA v. EMMANUEL

(2021)LCN/15163(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Tuesday, May 11, 2021

CA/MK/103/2016

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

HAJIA ANDOZYI ANGIYA APPELANT(S)

And

PATRICIA AWAITI EMMANUEL RESPONDENT(S)

RATIO

LIMITATION LAW OR STATUTE OF LIMITATION

The law is settled that Limitation Law or Statute of Limitation is a law that prescribes the period of limitation for instituting certain actions in Court. It also regulates the subsistence of the cause of action and by so doing, requires a party who has a cause of action accruing to him to diligently seek the operation of the relevant laws as a matter of obligation for prompt remedy through judicial process within the time limited by the law, else, his right to do so becomes unenforceable at the expiration of the time limited.
The Apex Court per BELGORE, CJN (as he then was) at page 19, paragraphs D-E in the case of NZE BERNARD CHIGBU V. TONIMAS NIGERIA LIMITED & ANOR (2006) LPELR-846 (SC); has this to say on the nature of Limitation Law as follows:
“The Limitation Law is certainly procedural, setting out clearly, time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature and such Statute on this all important subject, must be read as a whole. As such, whether specifically stated or not in such a Statute, it must be read retroactively. A person should not sleep on his rights.”

Accordingly, it is trite that in determining whether an action is statute barred or not, the Court has a duty to look at the date on which the cause of action accrued and to compare same with the date on the Writ of Summons or any Originating process by which the action was commenced. PER AGUBE, J.C.A.

WHEN IS A CAUSE OF ACTION SAID TO HAVE ACCRUED

A cause of action is said to have accrued when the combination of facts giving rise to the right to sue or complain has accrued or when facts establishing a civil right or obligation exist side by side. See the following authorities ASABORO & ANOR V. PAN OCEAN OIL CORPORATION (NIG.) LTD. & ANOR (2017) LPELR-41558 (SC), OSIGWE V. PSPLS. MANAGEMENT CONSORTIUM LTD & ORS (2009) LPELR-2807 (SC) and JULUIS BERGER NIG. PLC V. OMOGUI (2001) LPELR-1638 (SC). PER AGUBE, J.C.A.

WHETHER OR NOT THE MOST BASIC ELEMENT IN THE CREATION OF A CONTRACT IS THE AGREEMENT

Fundamentally, the most basic element in the creation of a contract is agreement. Did the parties agree and what did they agree upon or whether an offer was made which the other party accepted unconditionally without any variation? These are the questions the Court would ask in determining whether parties have reached an agreement or not. It was on this background that the Apex Court in the case of E. SAPARA V. UNIVERSITY COLLEGE HOSPITAL BOARD OF MANAGEMENT (1988) LPELR-3014 (SC); set out the essential ingredients of a valid contract as follows:
“In order to constitute a contract, there must be an offer made by one person to another and an unqualified acceptance of that offer by the person to whom it was made…”
Consequently, it is trite that for a contract to exist and be valid, there must be an offer, an unqualified acceptance of the offer and a legal consideration. See the case of BALIOL NIGERIA LIMITED V. NAVCON NIGERIA LIMITED (2010) LPELR-717 (SC). Indeed, there must be mutuality of purpose and intention. See the case of AJAYI-OBE V. EXECUTIVE SECRETARY (1975) 3 SC P.1. The parties involved in the contract must agree, in other words, there must be a consensus ad idem or agreement of the mind to be bind by the terms of the Agreement. It is on this premise that I pose this question, what then was the intent of the parties with regards to the Sale’s Agreement? It is my belief that the main purport of any legal agreement is to set out clearly what the parties agreed upon. See HENRISON OKECHUKWU V. HUMPHREY C. ONUORAH (2000) LPELR-2431 (SC). PER AGUBE, J.C.A.

WHETHER OR NOT IT IS REASONABLE TO FORMULATE ISSUE(S) WHICH ARE MEANT FOR DETERMINATION AT THE TRIAL COURT ON APPEAL

However, it is absolutely unreasonable to formulate issue(s) which are meant for determination at the trial Court on Appeal. This is particularly so because, Courts have been admonished to refrain from running commentaries on issue(s) that would eventually call for determination in the substantive suit. In CHIEF T. A. L. AKAPO (OJORA OF LAGOS) V. ALHAJI H. A. HAKEEM-HABEEB & ORS (1992) LPELR-325 (SC), the Apex Court opined inter alia:
“Courts are enjoined to refrain from deciding substantive matters at the interlocutory stage of the case.”
See also OCHOLI ENEJO JAMES SAN V. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2015) LPELR-24494 (SC).
Again, in ABOSELDEHYDE LABORATORIES PLC V. UNION MERCHANT BANK LIMITED & ANOR (2013) LPELR-20180 (SC), it was held that:
“It is not a forgotten principle of law that in an Interlocutory Application, certain boundaries must not be crossed. A trial Court or Appellate one as the Court below must desist from making any findings in any Interlocutory ruling which may prejudice the substantive case…” PER AGUBE, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): This Appeal challenges the Ruling delivered by the Honourable Justice A. Kaka’an, on the 16th day of March, 2016 at the Makurdi Division of the High Court of Justice, Benue State of Nigeria whereof the Defendant/Appellant’s Application in Motion No. MHC/46M/2016, dated 12th day of January, 2016 was dismissed on the grounds that the claim of the Plaintiff/Respondent disclosed reasonable cause of action and did not constitute any abuse of Court process. Dissatisfied with the decision of the trial Court, the Appellant invoked the jurisdiction of this Court by filing a Notice of Appeal dated 31st day of March, 2016 predicated on two (2) Grounds which I reproduce hereunder with their respective particulars.
“GROUNDS OF APPEAL
GROUND ONE (MISDIRECTION OF LAW):
The learned trial Judge misdirected himself in law and thereby occasioned a miscarriage of justice when it held:
“It is clear from the case put up by the Plaintiff that he seeks to recover the land he bought from the 1st Defendant. Therefore, I agree with the learned Counsel for the Respondent that the

appropriate Limitation Law is the Limitation Law 1988 Revised Laws of Benue State 2004. Section 3 thereof not Section 18 of the same Law. By the provision, no action shall be brought by any person to recover land after the expiration of ten (10) years from the date on which the right of action accrued to him or, if it is first accrued to some person through whom he claimed to that person. The Applicant himself vide paragraph 4.02 on page 2 of his Written Address conceded that the cause of action accrued to the Plaintiff in 2006 and that this suit was filed on the 9th day of December, 2014, a period of eight (8) years, five (5) months. By tenure of Section 3 of the Limitation Law of Benue State, therefore this suit is not caught by the statute of Limitation and I so hold. On reasonable cause of action, the law is that it is a cause of action with some chance of success when only the allegations in the pleadings are considered. Put in another way, so long as the Statement of Claim or the particulars disclose some cause of action or raise some question fit to be decided by the Judge, it cannot be said that the suit does not disclose reasonable cause of action

while a cause of action comprises of every fact which would be necessary for the Plaintiff to prove if it traversed to support his right to the judgment of Court. I had reviewed the case put up by the Plaintiff in his Writ and Statement of Claim. He claims to have paid the 1st Defendant N200,000.00 for the land he seeks declaration over. It is a matter of specific performance of a contract between the two parties. If this is not a reasonable cause of action, I wonder what else will. On the whole, I find no merit in this Application as I find no incidence of abuse of the process of this Court and I tried to show the case discloses a reasonable cause of action. The fact that the case is weak if at all it cannot be ground for striking it out, the objection to my jurisdiction is not sustainable and is accordingly dismissed”
PARTICULARS OF MISDIRECTION
a. The objection at the lower Court targeted the soi-disant contract for the sale upon which the Plaintiff/Respondent’s action was coming outside the five (5) years period permitted by Section 18 of the Limitation Law Cap. 96 1988 Revised Edition Laws of Benue State, 2004.
b. That the

objection of the Appellant in the Court below did not relate to question of title as to enable the Application of Section 3 of the Limitation Law Cap. 96 1988 Revised Edition Laws of Benue State, 2004 as found by the Court.
GROUND TWO
The learned trial Judge misdirected himself in law and thereby occasioned miscarriage of justice when he refused or failed to apply and pronounce on Section 3 (1) Contract Law Cap. 44, 1988 Revised Edition Laws of Benue State, 2004 relied upon by the Appellant.
PARTICULARS OF MISDIRECTION
(a) The learned trial Judge refused or failed to apply Section 3 (1) of the Contract Law of Benue State, 2004 to the case of the Appellant.
(b) The learned trial Judge refused or failed to pronounce and rule on Section 3 (1) of the Contract Law of Benue State, 2004.”

STATEMENT OF FACTS:
The case of the Plaintiff/Respondent at the lower Court was that sometime in 2006, the 1st Defendant asked Mrs. Amatiku Agbanwo to look for a buyer who would purchase her piece of land measuring 80ft x 40ft which formed part of the larger land with beacon Nos. MKD/PBZI/9541, MKD/PBZI/9542, MKD/PBZI/9543 and MKD/PBZI/9544

lying and situate at No. 2 Oju Street Wadata, Makurdi Benue State on the basis that she needed money to treat herself. She further maintains that thereafter, she accompanied Mrs. Amatiku Abganwo to the 1st Defendant’s house where she was shown the dimension of the land as same was confirmed by the 1st Defendant.
Again, it was the further case of the Plaintiff that the sum of Two hundred thousand naira (N200,000.00) was agreed as the consideration for the sale of the piece of land in the presence of Mrs. Amatiku Agbanwo and that sometime in July, 2006 she paid to the 1st Defendant the sum of Two hundred thousand naira (N200,000.00) as earlier agreed including an Agency fee of Ten thousand naira (N10,000.00) and that after the payment, she deposited a trip of sand and 2,500 burnt bricks amounting to Ten thousand naira (N10,000.00) only.

The Plaintiff maintains that after the transaction, she visited the 1st Defendant for the signing of the Sale’s Agreement and was informed that the 1st Defendant after collecting the consideration sum of two hundred thousand naira (N200,000.00) traveled to Wukari in Taraba State the following day and that

she waited for the 1st Defendant’s return but when she was not forthcoming, she decided to send Hannatu Pius and Amatiku Agbanwo to find out what the issue was but the 1st Defendant told them to return back that she was receiving traditional medication and would soon be back.

It was the Plaintiff’s further statement that she was later informed that the 1st Defendant had left Wukari for Abuja where she was staying with her children and would secretly visit Makurdi without showing any interest of signing the Agreement. She maintains further that in 2009, she met the 1st Defendant where an arrangement was concluded that the Plaintiff should bring a Surveyor to survey the land since she was making plans to obtain Certificate of Occupancy on the said piece of land.

It was the further case of Plaintiff that on the day appointed for the exercise of signing the Agreement, the 1st Defendant invited one Shagari Auta who made sure that the piece of land was not surveyed and according to the Plaintiff this led to the misunderstanding between Emmanuel Apela and Angya, the daughter of the 1st Defendant. Thereafter the matter was reported at

“A” Division of the Police where it was resolved.

The Plaintiff asserted that sometime in 2010, she fell sick and was taken to Taraba and Nasarawa States respectively for treatment and upon her return in 2012, she discovered that, the said piece of land was fenced with old zinc and iron scraps were deposited thereat and that she immediately reported the issue to Mrs. Amatiku Agbanwo and Agbanwo Auta who denied knowledge of the second sale to the 2nd Defendant. The Plaintiff claimed that Amatiku went to Abuja to enquire from the 1st Defendant why she sold the piece of land to the 2nd Defendant and further requested the 1st Defendant to come down to Makurdi to clear the confusion but the 1st Defendant refused to act on the request.

It was also the case of the Plaintiff that Jukun Elders of Wadata came into the matter and resolved that the 1st Defendant should handover the land to the Plaintiff and pay back to the 2nd Defendant the money she had collected from him but the 1st Defendant refused on the basis that her daughter was beaten up by the Plaintiff’s husband in 2009 and when the matter was not resolved; she, through her Counsel

D.D Aboshi, Esq., filed a petition against the 1st Defendant to the Commissioner of Police, Benue State Command dated 18th November, 2014.

According to the Plaintiff in her statement, the D.P.O interviewed them and further advised that the 1st Defendant should release the Plaintiff’s land to her to avoid more problems but this was not forth working so she transferred the case to the Criminal Investigation Department (C.I.D) Makurdi where they narrated their statements and the 1st Defendant was then charged before the Chief Magistrate’s Court 4, Makurdi for the offence of cheating upon the completion of the Police investigation and that the matter is still pending at the Magistrate’s Court.

As can be seen from the Plaintiff’s statement, there was no further information regarding the outcome of what transpired at the Magistrate’s Court. Thus, the Respondent, then Plaintiff, at the trial Court initiated the matter in Suit No. MHC/425/2016 against the Defendant, now Appellant, whereof she claimed as follows:
“(a) A declaration that the Plaintiff is the owner of the piece of land measuring 80ft x 40ft which

formed part of the land with beacon Nos. MKD/PBZI/9541, MKD/PBZI/9542, MKD/PBZI/9543 and MKD/PBZI/9544 lying and situate at No. 2 Oju Street beside the Nigeria Police Barracks, Wadata Makurdi, having bought same from the 1st Defendant sometime in 2016.
(b) A declaration that any purported sale or transaction between the 1st and 2nd Defendants on the said piece of land lying and situate at No. 2 Oju Street beside the Nigeria Police Barracks, Wadata Makurdi is illegal, null and void.
(c) An Order of the Honourable Court setting aside any purported second sale by the 1st Defendant to the 2nd Defendant or anybody.
(d) An Order of the Honourable Court directing the 1st Defendant to release the said piece of land lying and situate at No. 2 Oju Street beside the Nigeria Police Barracks, Wadata, Makurdi to the Plaintiff forthwith.
(e) An Order of the Honourable Court directing the 2nd Defendant to vacate the said piece of land located at No. 2 Oju Street beside the Nigeria Police Barracks, Wadata, Makurdi.
(f) Ten million naira (N10,000,000.00) only being the general damage suffered by the Plaintiff as a result of the refusal or second sale by

the 1st Defendant to the 2nd Defendant.
(g) Five million naira (N5,000,000.00) only being the special damages suffered by the Plaintiff including the cost of one trip of sharp sand and 2,500 burnt bricks and the cost of this action.
(h) An Order of perpetual Injunction restraining the 1st and 2nd Defendants, their privies, agents, servant or whosoever is acting on their behalf from interfering with the Plaintiff’s enjoyment of the said piece of land.
(i) Any other legal or equitable remedy or remedies that would meet the justice of this suit.”

It would be recalled that the Appellant upon being served with the Respondent’s (then Plaintiff) Claim, filed a Statement of Defence alongside a Counter-Claim through her Counsel whereof he adopted the averments contained in paragraphs 1-25 of the Statement of Defence. On the 19th day of October, 2015, the learned Counsel for the Respondent (then Plaintiff) filed Motion No. MHC/3001M/2015 wherein he sought the leave of the Court to file the Statement on Oath of Mallam Yusuf Gomna and Rabiu Usman Guruwa as Additional Witnesses as can be seen at pages 70-93 of the Records.

It was the case of the Appellant that, at the conclusion of the pre-trial, the matter was slated for hearing where he (Appellant) filed Motion No. MHC/46M/2016 praying the Court to strike out the Statement of Claim for disclosing no reasonable cause of action; also for an abuse of Court process as can be seen at pages 99-109 of the Records.

In contesting the Appellant’s Motion above, the Respondent filed a Counter-Affidavit dated 22nd January, 2016 which was upheld by the lower Court in dismissing the Appellant’s Application. Dissatisfied with the Ruling, the Appellant filed a Notice of Appeal dated 31st March, 2016.

The Record of Appeal was thereafter compiled, transmitted and entered into this Court and the learned Counsel for the Appellant filed the Appellant’s Brief of Argument dated 17th June, 2016 and settled by P. Okoliko, Esq., wherein two issues were distilled for determination as reproduced hereunder:
“1. Whether the lower Court properly appreciated the nature of the Appellant’s Application before it, as relates to the Application or otherwise of Limitation Law of Benue State.
2. Whether a contract of

sale of land can be valid without a written agreement in respect thereof”

Upon receipt of the Appellant’s Brief of Argument, the Respondent in his Brief of Argument filed on the 4th of July, 2016, and settled by D. D. Aboshi, Esq., adopted the Appellant’s two issues for determination.

On the 19th day of July, 2016 the learned Counsel for the Appellant, filed the Appellant’s Reply Brief of Argument dated 11th July, 2016.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER ONE:
“WHETHER THE LOWER COURT PROPERLY APPRECIATED THE NATURE OF THE APPELLANT’S APPLICATION BEFORE IT, AS RELATES TO THE APPLICATION OR OTHERWISE OF LIMITATION LAW OF BENUE STATE?”

In canvassing this issue, it was the contention of the learned Counsel for the Appellant that the Respondent’s action having been instituted after a period of five (5) years was caught by Section 18 of the Limitation Law of Benue State, 2004 and that this submission was misconceived by the lower Court when it chose to apply the provision of Section 3 of the same Law, a Section that applies to the recovery of land and title to

land in dismissing the Appellant’s Application. Therefore, he submitted that the misconception of the trial Court birthed the misdirection which has occasioned grave injustice on the Appellant. The learned Counsel urged this Court to allow this Appeal and set aside the Ruling of the lower Court.

The learned Counsel for the Appellant further contended that the provision of Section 3 of the Limitation Law of Benue State, 2004 is applicable to recovery of land and not contract for sale of land and that, it is the provision of Section 18 of the same law that is applicable to contract of land as he maintained that contract of land precedes recovery of land and that there cannot be recovery of land without first having an existing valid contract. Therefore, he submitted that an action for recovery of land becomes available for aggrieved party only after all the terms of the contract have been met by the parties.

In rounding up his argument on the above issue, the learned Counsel for the Appellant argued that the law is settled that a cause of action becomes statute barred if legal proceedings cannot be commenced in respect of same because the period

laid down by the Limitation Law has elapsed and that in determining whether an action is statute barred, the Court ought to look at the Writ of Summons and the Statement of Claim which alleges when the wrong was made as he referred us to the case of ARAKA V. EJEAGWU (2000) 4 NSCQR 308 AT P. 333.

The learned Counsel for the Appellant concluded his argument by submitting that, the Respondent having failed to sue the Appellant within the prescribed period of time frame as provided by Section 18 of the Limitation Law of Benue State, 2004, cannot bring his action against the Appellant after the period allowed by the law.

ARGUMENT OF THE LEARNED COUNSEL FOR THE APPELLANT ON ISSUE NUMBER TWO:
“WHETHER A CONTRACT OF SALE OF LAND CAN BE VALID WITHOUT A WRITTEN AGREEMENT IN RESPECT THEREOF?”

On this issue, the learned Counsel for the Appellant argued that a contract of sale of land cannot be valid without a written agreement, particularly when the land is situate in an Urban Area. For this submission, he relied on the provision of Section 3 (1) of the Contract Law of Benue State, 2004 and Section 4 of the Statute of Frauds, 1677.

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It was his submission that there was no Memorandum or Note in writing, evidencing the deposition of the parcel of land in dispute within an Urban Area, therefore, the trial Court had no jurisdiction to entertain the suit as he referred us again to the authorities of IBEKWE V. NWOSU (2011) 9 NWLR (PT. 1251) 1, VIRGIN NIGERIA AIRWAYS LTD V. ROIJIEN (2013) LPELR-2204 and OKEKE-OBA V. OKOYE (1994) 8 NWLR (PT. 364) 670.

It was his further submission that the failure of the trial Court to take cognizance of Section 3 (1) of the Contract Law of Benue State, 2004 was a fundamental error which has occasioned a grave injustice to the Appellant and that the trial Court was duty bound to consider and pronounce on Section 3 (1) supra. Citing and relying on the case of TAISEI (W.A) LTD V. XTOUDOS SERVICES (NIG.) LTD. (2002) FWLR (PT. 126) 954 AT PARAS F-G; he urged us to set aside the Ruling and resolve this issue in favour of the Appellant.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER ONE:
“WHETHER THE LOWER COURT PROPERLY APPRECIATED THE NATURE OF THE APPELLANT’S APPLICATION BEFORE IT, AS RELATES TO THE APPLICATION OR

OTHERWISE OF LIMITATION LAW OF BENUE STATE?”

On this issue, the learned Counsel for the Respondent contended that the lower Court properly appreciated the nature of the Appellant’s Application and that the transaction between them was for the sale of land which the Respondent sought in recovering the land he bought from the Appellant. He maintains further that the appropriate Section of the law was Section 3 of the Limitation Law of Benue State, 2004 and not Section 18 of the same law which the Appellant erroneously believes.

It was the argument of the learned Counsel for the Respondent that her claim borders on recovery of the land she bought from the Appellant at the sum of two hundred thousand naira (N200,000.00) only, sometimes in 2006 and that Section 18 of the Limitation Law supra cited by the Appellant is only applicable to an action founded on contract, tort or any other action not specifically provided under Part 1 and 11 of the Limitation Law of Benue State, 2004.

Still on the above score, the learned Counsel for the Respondent contended that the Respondent paid to the Appellant the sum of two hundred thousand naira

(N200,000.00) only, sometimes in July, 2006 meanwhile the action was initiated at the lower Court in 2014, a period of Eight (8) years and that Section 3 of the Limitation Law (supra) is the applicable law because, she acted within the specified time. OKENWA V. MILITARY GOVERNOR, IMO STATE (1997) 6 NWLR (PT. 507) PAGE 154 AT 167; referred.

ARGUMENT OF THE LEARNED COUNSEL FOR THE RESPONDENT ON ISSUE NUMBER TWO:
“WHETHER A CONTRACT OF SALE OF LAND CAN BE VALID WITHOUT A WRITTEN AGREEMENT IN RESPECT THEREOF?”

On this issue, the learned Counsel for the Respondent contended that the circumstances which led to the failure of the Appellant to execute the sales agreement was adequately captured at pages 6-13 of the Records and that the Appellant willfully frustrated the execution of the sales agreement between them with the intent of defrauding her. She maintains that the Appellant’s act was against the spirit of equitable maxim known as nullus commodum capere potest de injuria meaning that no one can gain advantage of his own wrong.

It was her submission that a party should not be allowed to reap any benefit out

of his own wrong doing as the Court should not allow itself be used as an instrument of fraud as she relied on the case of GAABA V. LOBI BANK NIG. LTD. (2003) FWLR (PT. 173) 106 RATIO 5.

The learned Counsel for the Respondent further contended that the fact that the Agreement was not yet in writing but made orally before the Appellant demonstrated the intent of frustrating the signing of the agreement, even though she has collected the Respondent’s money does not make the contract unenforceable and that an oral agreement is backed by the same force of law as a written agreement as she relied again on the case of G (V.I)C PLC V. O.P & INDUSTRY LTD. (2005) ALL FWLR (PT. 806) PAGE 247 AT 261 PARAS C-E.

It was her further contention that the Respondent has all the evidence to prove that the Appellant sold the piece of land in dispute to her in the sum of two hundred thousand naira (N200,000.00) only and that she took possession before the Appellant went ahead to sell the same piece of land to the second Defendant without her consent and permission.

Again, it was her argument that the Doctrine of Specific Performance is designed to ensure

that none of the parties hides behind the statutory provision of Section 3(1) of the Contract Law of Benue State, 2004 which is similar to Section 4 of the Statute of Frauds, 1677 to evade his contractual obligation and that the Appellant who is not denying the fact that she received the sum of two hundred thousand naira (N200,000.00) from the Respondent for the sale of land which the Respondent wants to recover, is hiding behind the provision of Section 3(1) of the Contract Law of Benue State, 2004 and Section 4 of the Statute of Frauds, 1677 to evade her contractual obligation of releasing the land to the Respondent.

On the above, the learned Counsel for the Respondent submitted that she took possession of the land by depositing one trip of sharp sand and two thousand, five hundred (2,500) burnt bricks on the piece of land before the Appellant took advantage of her absence and sold the land to the second Defendant who had not denied this fact by refusing to file a defence. The learned Counsel referred us to pages 16-21 of the Records in so submitting. She submitted further that it is the payment of purchase price coupled with possession that confers on

a purchaser of land an equitable title. ADENIJI V. ONAGORUWA (2000) 1 NWLR (PT. 639) 1, 32; referred.

Arguing further, the learned Counsel for the Respondent relied on the case of MBA-EDE V. OKUFO (1990) 2 NWLR (PT. 135) 787. 797; and she contended that the provision of Section 3 (1) of the Contract Law of Benue State, 2004 and Section 4 of the Statute of Frauds, 1677 are not to be used to defraud an innocent buyer who paid for a piece of land and took possession

It was her final submission that the reliefs sought by the Appellant in this Appeal should not be granted as they are predicated on the grounds of fraud and in the case of INTERNATIONAL TEXTILE INDUSTRY (NIG.) LTD. V. ADEREMI (1999) 8 NWLR (PT. 614) 268; she urged this Court to dismiss this Appeal for lacking in merit and enter judgment in the Respondent’s favour.

APPELLANT’S REPLY BRIEF ON POINTS OF LAW:
In canvassing this argument, the learned Counsel for the Appellant contended that the Respondent’s argument on issue No.1 that the Appellant frustrated the sales agreement with the sole aim of defrauding her, calls for an evaluation of evidence which is

outside the purview of this Appeal and that fraud was not covered by any Issue or Grounds of Appeal as she urged this Court to discountenance learned Counsel to the Respondent’s contention.

It was her further contention that argument in a brief must be based on the issues formulated from the Grounds of Appeal as she referred us to the authorities of KOLAWOLE V. ALBERTO (1989) NWLR (PT. 98) 282, SALAU V. ARABA (2004) ALL FWLR (PT. 204) 88 AT P.111 PARAS. E-F and JATAU V. AHMED (2003) FWLR (PT. 151) 1887 AT 1893-1894 PARAS. G-A.

It was the contention of the learned Counsel that for the doctrine of part performance to apply, there must be evidence that immediately after the payment, the Respondent was put into possession as she referred us to the case of NLEWEDIM V. UDUMA (1995) 6 NWLR (PT. 406) AT 398.

It was her submission that the Respondent, having not being led into possession upon payment of a deposit, cannot invoke the doctrine of part performance because the doctrine can only be applicable where there is a complete agreement in existence as she urged this Court to allow the Appeal and set aside the Ruling of the lower Court.

RESOLUTION OF ISSUES:
Having scrupulously read through the Records and digested holistically the Ruling of the learned trial Judge and the argument canvassed by the learned Counsel, it is my belief that the crux of this Appeal is the relevant Section of the Limitation Law of Benue State, 2004 to be applied in the circumstances of the case. Parties/Counsel did not formulate different issues so as to adopt the Appellant’s Issue.

However, in determining this Appeal, I shall forthwith adopt the Appellant’s two issues.

RESOLUTION ON ISSUE NUMBER ONE:
“WHETHER THE LOWER COURT PROPERLY APPRECIATED THE NATURE OF THE APPELLANT’S APPLICATION BEFORE IT, AS RELATES TO THE APPLICATION OR OTHERWISE OF LIMITATION LAW OF BENUE STATE?”

prompt remedy through judicial process within the time limited by the law, else, his right to do so becomes unenforceable at the expiration of the time limited.
The Apex Court per BELGORE, CJN (as he then was) at page 19, paragraphs D-E in the case of NZE BERNARD CHIGBU V. TONIMAS NIGERIA LIMITED & ANOR (2006) LPELR-846 (SC); has this to say on the nature of Limitation Law as follows:
“The Limitation Law is certainly procedural, setting out clearly, time frame within which an action must be brought. Unlike substantive law, it is retroactive in nature and such Statute on this all important subject, must be read as a whole. As such, whether specifically stated or not in such a Statute, it must be read retroactively. A person should not sleep on his rights.”

A cause of action is said to have accrued when the combination of facts giving rise to the

right to sue or complain has accrued or when facts establishing a civil right or obligation exist side by side. See the following authorities ASABORO & ANOR V. PAN OCEAN OIL CORPORATION (NIG.) LTD. & ANOR (2017) LPELR-41558 (SC), OSIGWE V. PSPLS. MANAGEMENT CONSORTIUM LTD & ORS (2009) LPELR-2807 (SC) and JULUIS BERGER NIG. PLC V. OMOGUI (2001) LPELR-1638 (SC).

In the instant case, the Respondent, then Plaintiff, at the trial Court commenced the suit by way of Writ of Summons dated 9th December, 2014 and the cause of action accrued in 2012 and not 2006 as was held by the lower Court and for purposes of clarity the said paragraph 19 of the Statement of Claim shall be reproduced hereunder:
“19. The Plaintiff avers that, while the Plaintiff’s sharp sand and 2,500 burnt bricks were deposited on the said piece of land in preparation to build, the Plaintiff, sometimes in 2010 fell sick and travelled severally to Taraba and Nasarawa State respectively in search of traditional medicine and upon her final return sometime in 2012, she discovered that the said piece of land was fenced with old zinc and iron scraps were deposited on it.”

It is necessary therefore to ascertain the date on which the event that is being complained of occurred for in law, that is the date on which the cause of action accrued. Thus, on determination of the accrual of right of action for purposes of Statute of Limitation, the Supreme Court held as follows in the case of CHIEF E.W.J. WOHEREM JP VS. JOEL EMEREUWA & ORS (2004) LPELR-3500 (SC):
“It cannot be disputed that the cause of action matures or arises from the date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached. The duration of a right or the cause of action which is conferred on an injured party is necessarily limited and does not last till eternity. It lapsed after the date the Statute of Limitation proclaims that no such legal action or proceedings may lawfully be taken or commenced by an injured party. It is therefore necessary when dealing with Statute of Limitation to determine firstly the precise date the cause of action accrued

because time will start to run from the moment the cause of action arose.”
Flowing from the above excerpt, there is no doubt that the Plaintiff’s cause of action accrued in 2012 and not 2006 because that was when the Plaintiff (now Respondent), discovered the wrong that was committed by the Appellant then 1st Defendant. It is particularly so because, time begins to run from the moment the cause of action arose or originated, for a cause of action originates from the date on which the incident which gave rise to the cause of action occurred. See FADARE V. ATTORNEY GENERAL OYO STATE (1982) 4 SC 1.

Consequently, as earlier stated, the gist of this Appeal lies on the most preferred statutory provision with regards to the Limitation Law of Benue State to be applied in the circumstances of the case. This is particularly so because, while the Appellant is contending that the appropriate Section of Law to be applied is Section 18 of the Limitation Law of Benue State, Cap. 96, 1988 Revised Laws of Benue State 2004, on the contrary, the Respondent is contending that the prescribed Section to be applied is Section 3 of the same Law.

Now Section 3 of the Limitation Law of Benue State, Cap. 96, 1988 Revised Law of Benue State 2004 provides that:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to some persons through whom he claims, to that person.”

Section 18 of the same law prescribed that:
“No action founded on contract can be brought after the expiration of five years from the date on which the cause of action accrued.”

Looking at the nature of the Plaintiff’s now Respondent’s claim at the trial Court, it is crystal clear that her suit was founded on the recovery of the land she bought from the 1st Defendant now Appellant and not on contract. Thus, the applicable law is Section 3 of the Limitation Law of Benue State, 2004 and not Section 18 of the same Law as was erroneously submitted by the learned Counsel for the Appellant.

Again, it is noteworthy to say with due respect that the trial Court did not take cognizance of the date when the cause of action arose and the date when the suit was initiated. Therefore,

assuming without conceding that she did, the appropriate period ought to have been 2 years 5 months and not 8 years 5 months. Howbeit, despite the irregularities as to the number of years, the trial Court was still right to have held that the applicable law was Section 3 of the Limitation Law of Benue State, 2004 and not Section 18 of the same law.

Predicated on the above, I am therefore in consonance with the submission of the learned Counsel to the Respondent that the claim of the Respondent at the trial Court was for the recovery of the land she bought from the 1st Defendant now Appellant and for a fuller satisfaction, the trial Court was right to have held that Section 3 of the Limitation Law of Benue State was the appropriate prescribed law and not Section 18 of the same law. Accordingly, this issue is resolved in favour of the Respondent against the Appellant.

RESOLUTION ON ISSUE NUMBER TWO:
“WHETHER A CONTRACT OF SALE OF LAND CAN BE VALID WITHOUT A WRITTEN AGREEMENT IN RESPECT THEREOF?”

Fundamentally, the most basic element in the creation of a contract is agreement. Did the parties agree and what did they agree upon

or whether an offer was made which the other party accepted unconditionally without any variation? These are the questions the Court would ask in determining whether parties have reached an agreement or not. It was on this background that the Apex Court in the case of E. SAPARA V. UNIVERSITY COLLEGE HOSPITAL BOARD OF MANAGEMENT (1988) LPELR-3014 (SC); set out the essential ingredients of a valid contract as follows:
“In order to constitute a contract, there must be an offer made by one person to another and an unqualified acceptance of that offer by the person to whom it was made…”
Consequently, it is trite that for a contract to exist and be valid, there must be an offer, an unqualified acceptance of the offer and a legal consideration. See the case of BALIOL NIGERIA LIMITED V. NAVCON NIGERIA LIMITED (2010) LPELR-717 (SC). Indeed, there must be mutuality of purpose and intention. See the case of AJAYI-OBE V. EXECUTIVE SECRETARY (1975) 3 SC P.1. The parties involved in the contract must agree, in other words, there must be a consensus ad idem or agreement of the mind to be bind by the terms of the Agreement. It is on this premise

that I pose this question, what then was the intent of the parties with regards to the Sale’s Agreement? It is my belief that the main purport of any legal agreement is to set out clearly what the parties agreed upon. See HENRISON OKECHUKWU V. HUMPHREY C. ONUORAH (2000) LPELR-2431 (SC).

In the instant case, it is clear that the nature of the agreement ought to have been reduced into writing as captured by the learned Counsel for the Respondent in paragraphs 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the Respondent’s Statement of Claim as can be seen at pages 6 -13 of the Records. But the Appellant evaded the signing of the agreement on the basis that the Respondent’s balance of the consideration sum was yet to be furnished. The Respondent claimed to have paid the sum of two hundred thousand naira (N200,000.00) only for the purchase of the said piece of land and the Appellant is not denying the existence of that fact except that she contends that the Respondent ought to have paid an additional one million naira (N1,000,000.00) before the agreement could be reduced into writing. The foregoing facts require evidence to be called to harness

the proper determination of the suit in respect of the actual consideration sum involved in the Sale Agreement.

which may prejudice the substantive case…”

There is no doubt that the above principles enunciated by the Apex Court remain cardinal and lucid in as much as our adjudicatory system is concerned. Why then would the Appellant want to evade the process of going into full trial so as to resolve the issue on the merit?

The provision of Section 3(1) of the Contract Law of Benue State, 2004 is not mandatorily couched to bar the Respondent completely from commencing the action as can be seen hereunder:
“No action may be brought upon any contract or the disposition of land or any interest in land unless the agreement upon which the action is brought, or some Memorandum or Note thereof, is in writing and signed by the party sued or by some other persons lawfully authorized by him.”
In considering the implication of the above statutory provision, there is no doubt that the word “may” as employed by the draftsman is designed not to be used mandatorily but permissively and directive. The Apex Court in the case of CHIEF J. O. EDEWOR V. CHIEF M. UWEGBA & ORS (1987) LPELR-1009 (SC) held that:
“Generally

the word ‘may’ always meant ‘may’. It has long been settled that “may” is permissive or enabling expression. In MESSY V. COUNCIL OF THE MUNICIPALITY OF YASS (1922) 22 S.R.N.W 494 per CULLEN, C.J at page 497, 498, it was held that the use of the word “may” prima facie conveys that the authority which has the power to do such an act has an option either to do it or not to do it. See also COTTON, L.J. in Re DAKER, MICHELL V. BAKER (1800) 44 CH.D 282…”
It is trite that, in order to validate the intent of the draftsman, a Statute must be construed or interpreted literally in their ordinary grammatical meaning. See ACTION CONGRESS V. INEC (2007) 12 NWLR (PT. 1048) 222 AT 318 PARA.F (2007) 6 SC (PT. 11) 212.
In conclusion, from the authorities above cited, it is a truism that the provision of Section 3 (1) of the Contract Law of Benue State, 2004 as rightly captured by the learned Counsel for the Appellant is permissive and directive and not mandatorily designed to be applied in land transactions. This is so because, the Supreme Court in the case of ATTORNEY GENERAL OF THE FEDERATION V. ATTORNEY GENERAL OF ABIA STATE

(2001) LPELR-24862 (SC) held that:
“As argued by the Plaintiff, the provisions in Order 6 Rule 3(1) are by the use of the word “may” only directive and not mandatory and so can be overlooked. At any rate, we can waive the irregularity under Order 10 Rule 1 (1) the Court may, where it considers it in the interest of justice so to do, waive compliance by the parties with these Rules or any part thereof.”

In the light of the above, this Appeal is unmeritorious and is hereby dismissed. The Ruling of the Lower Court delivered by the Honourable Justice A. Kaka’an, on the 16th day of March, 2016 is hereby affirmed. In consequence, the Suit No. MHC/425/2014 is to be remitted to the Hon. Chief Judge of Benue State for reassignment to another Judge for hearing de novo. Parties to bear their respective costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I read in draft before now, the lead judgment just delivered by my learned brother AGUBE, J.C.A. and I agree with the sound reasoning and conclusions reached therein. I adopt the entire decision as mine. I therefore have nothing more to add save to say that I too

shall dismiss the appeal for lacking merit and it is so dismissed.
I abide by the consequential order as made in the lead judgment.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, J.C.A., and I am in complete agreement with the determination of the two issues donated for resolution. The question of a cause of action or a reasonable cause of action had received judicial attention as reflected in a plethora of decisions. My learned brother, GEORGEWILL, J.C.A. in the case of OKOLI & ORS. V ONWUGBUFOR (2018) LPELR-46660 (CA) said thusly:
“Now, when we speak of “cause of action,” we mean the factual base or a factual situation, a combination of which, makes the matter in litigation an enforceable right or an actionable wrong, Tukur v Govt. of Gongola State (1989) 4 NWLR (Pt.117) 717; Ibrahim v. Osim (1988) 3 NWLR (Pt.82) 257; Thomas vs. Olufosoye (1986) 3 NWLR (Pt.18) 669, 682; Amede v. UBA (2008) 8 NWLR (Pt.1090) 623, 656; that is, the factual situation which gives a person a right to a judicial relief, Egbe v. Adefarasin

(1987) 1 NWLR (Pt.47) 1, Yusuf v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt.359) 676; LUTHMB v. Adewole (1998) 5 NWLR (Pt.550) 406. Simply put, cause of action means the factual situation, which if substantiated, entitles a plaintiff to a remedy against a defendant, Kasandubu v. Ultimate Pet. Ltd. (2008) 7 NWLR (Pt.1086) 274, 302; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1; U.B.N. Ltd v. Oki (1999) 8 NWLR (Pt.614) 244; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1; Ogbimi v. Ololo (1993) 7 NWLR (Pt.304) 128.”

My lord went on to define reasonable cause of action and declared the effect of pleading which discloses no reasonable cause of action as follows:
“…What then in law is a cause of action and when is a cause of action said to be a reasonable cause of action is a situation or state of facts that entitles a party to maintain an action in Court. The state of facts may be (i); a primary right of the claimant actually violated by the defendant, or (ii); the threatened violation of such right, which violation the claimant is entitled to restrain or prevent, as in actions or suits for injunctions, or (iii); it may be that there are doubts as

to some duty or right or the right beclouded by some apparent adverse claim or right, which the claimant is entitled to have cleared up, that he may safely perform his duty or enjoy his property. A cause of action is thus defined as, the entire set of facts or circumstances giving rise to an enforceable claim. See Savage v. Uwaechia (1972) 3 SC 213. See also Ogoh v. Enpee Industries Ltd. (2004) 17 NWLR (Pt.903) 449; United Bank for Africa Plc v. BTL Industries Ltd (2004) 18 NWLR (Pt.904) 180; Adesina v. Ojo (2012) 10 NWLR (Pt.1309) 562; Akilu v. Fawehinmi (No.2) (1989) 2 NWLR (Pt.102) 122 at p.169; Gbadehan v. Kiladejo (2012) 16 NWLR (Pt.326) 399; Alhaji Abudu W. Akibu vs. Oduntan (2000) 10 WRN 48; Omin III v. The Governor, Cross River State (2007) 41 WRN 158 at pp.186-187. In Shell Petroleum Development Company Nigeria Ltd. vs. Nwawka (2003) 1 SC (Pt. II) 127 at p.138, the Supreme Court per Ayoola, J.S.C., held inter alia thus: “Facts do not by themselves constitute a cause of action. For a statement of claim to disclose a reasonable cause of action, it must set out the legal rights of the plaintiff and the obligation of the defendant. It must then go on

to set out facts constituting infraction of plaintiff’s legal right or failure of the defendant to fulfill his obligation in such a way that if there is no proper defence, the plaintiff will succeed in the relief or remedy he seeks.”
And in YUSUF V. AKINDIPE (2000) 8 NWLR (PT.669) AT P.376, the Supreme Court per Ogwuegbu, J.S.C., succinctly stated what would amount to a reasonable cause of action thus:
“A reasonable cause of action means a cause of action with some reasonable chance of success when only the allegations in the pleadings (statement of claim) are considered. So long as the statement of claim discloses some cause of action or raises some question fit to be decided by a Judge as in this case. The mere fact that the case is weak and not likely to succeed, is no ground for striking it out or dismissing it.” Also, in Shell B.P. Petroleum Development Co. Ltd. v. Onasanya (1976) 6 SC 89 at p.94, the Supreme Court had laid down the following guide when it held inter alia thus: “The question that follows is: Looking at the facts pleaded by the Plaintiff in support of its claim, can it be said that the case at all

events has no reasonable chance of success. It needs to be said here that the proposition that a plaintiff has no reasonable cause of action can only be made upon an examination of the facts pleaded in the statement of claim. It has nothing to do with the nature of the defence which the Defendant may have to the plaintiff’s claim. The Court must therefore confine itself only to the averments in the statement of claim in assessment of whether or not the Plaintiff has a reasonable cause of action.”

Now, for a Court to consider and determine whether or not a claim discloses reasonable cause of action and terminating a suit and thus driving the Claimant away from the judgment sit, even without a hearing of his claims on the merit is not a trivial determination. It is a decision to be reached very seriously in the light of the law and the facts as put forward in the pleadings of the Claimant and thus such a decision must never be reached lightly. The claim must be really bad in point of law and the facts to merit such a treatment. In Tika-Tore Press Ltd. v. Umar (supra), this Court had succinctly opined inter alia: –

“For a statement of claim

to be said to disclose no cause of action, it must be such as nobody can understand what claim he is required to meet. The case stated in it must be unsustainable or unarguable or it is incontestably bad.” In NBC Plc v. Ezeifo (2001) 12 NWLR (Pt.726) 11 at pp.28-29, this Court per Oduyemi, J.C.A. had held inter alia thus: “Where the statement of claim discloses no cause of action and if the Court is satisfied that no amendment, however ingenious will cure the defect, the statement of claim will be struck out and the action dismissed. Where no question as to the civil rights and obligations of the Plaintiff is raised in the statement of claim for determination, the statement of claim will be struck out and the action dismissed.”
It is when a cause of action exists that the limitation law can kick in to determine whether the claimant has a right of action even when causes of action exist. The right of action expires because it is against public interest that a claim cannot remain valid in perpetuity, the limitation limits time within which a party can exercise his right of action.

The lead judgment succinctly considered and resolved

the question and I have nothing more to add. I adopt the judgment as mine and abide by other orders made in the lead judgment.

Appearances:

J. Okwori, Esq. with the Brief of J. D. Umaru, Esq. For Appellant(s)

O. Ozueh, Esq. with the Brief of D. D. Aboshi, Esq. For Respondent(s)