BRAIMAH SULEMAN v. MALLAM SANI MUSA (2017)

BRAIMAH SULEMAN v. MALLAM SANI MUSA

(2017)LCN/10186(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of July, 2017

CA/B/419/2011

RATIO

PLEDGE: MEANING AND NATURE OF PLEDGE

‘A pledge means a formal promise or undertaking. The act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and something less than a mortgage. The pledge is said to be as old as recorded history and is still in use. In this transaction, the debtor borrows money by physically transferring to a secured party the possession of the property to be used as security, and the property will be returned if the debt is repaid.’ See BLACK’S LAW DICTIONARY, NINETH EDITION, PAGE 1272; A pledgee is one with whom a pledge is deposited while a pledgor is one who gives a pledge. See IHUNWO VS IHUNWO (2013) LPELR 2008 (SC). PER JIMI OLUKAYODE BADA, J.C.A.

CUSTOMARY PLEDGE: THE PRINCIPLES GOVERNING CUSTOMARY PLEDGE

…I will rely on the decision of the Supreme Court in OKOIKO & ANOTHER VS ESEDALUE & ANOTHER (1974) 3 S.C. Page 15, where the Court laid down the principles which govern Customary Pledge as follows:-

(1) That a pledge is perpetually redeemable and the pledgor’s family is entitled to redeem the pledged land for the amount of the original loan and for nothing more.

(2) That on the redemption by the pledgor, a pledgee of land is not entitled to compensation for putting the land to extra-ordinary economic uses while in possession.

(3) That when pledged land is being redeemed by the pledgor or successor in title, the pledgee must account for benefits derived by him from exploitation of the land while in possession and

(4) That the pledgee in possession must not do anything to clog the pledgor’s right of redemption of the pledged land. PER JIMI OLUKAYODE BADA, J.C.A.

CUSTOMARY PLEDGE: WHETHER LIMITATION PROVISIONS APPLY TO CUSTOMARY PLEDGE

Limitation provisions do not apply to customary pledge. A pledgor’s right to redemption is perpetual and cannot be clogged by the use of subterfuge or delay and laps or limitation would not bar redemption. A pledge can be redeemed at anytime.

In MBUBU VS OBORI & ANOTHER (2003) FWLR Part 156 Page 844 at Page 852], the Supreme Court held that one of the incidents of a customary pledge is that time does not run against a pledge. The cause of action does not arise until the pledge money is either tendered or rejected or the pledgee sells or attempts to sell the pledge property.See the following cases:- IGBUM VS ALHAJI NYARINYA & ANOTHER (2001) FWLR Part 67 Page 950 at 979; – ALHAJI YASHE VS UMAR (2003) FWLR Part 182 Page 1855 at 1861. PER JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

BRAIMAH SULEMAN Appellant(s)

AND

MALLAM SANI MUSA Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of Edo State High Court of Justice, Auchi Judicial Division in Suit No. HAU/29/2009: between ? MALLAM SANI MUSA VS BRAIMAH SULEMAN delivered on the 6th day of October, 2011 wherein Judgment was entered in favour of the Plaintiff hereinafter called the Respondent and against the Defendant hereinafter called the Appellant.

Briefly, the facts of the case are that by paragraph 36 of the Plaintiff?s Statement of Claim filed on the 22nd day of May 2009, the Plaintiff claimed against the Defendant as follows:-
(i) A declaration that the Plaintiff is still the owner of the piece or parcel of land with an area of 1763.162M2 bounded by Beacon Nos. BDS 981, BDS 982, BDS 983 and BDS 984 more particularly described in survey plan No. ISO/ED/106/81 dated 6/7/81 together with an eight (8) rooms building on the land which is lying and situated at No. 73A Warrake Road, Auchi.
(ii) A Declaration that the Defendant?s act of refusing to redeem the pledged property described above is unlawful.
(iii) An order directing the

Defendant to render account of the rents collected from the pledged property from January 2003 till Judgment is delivered in this case.
(iv) An Order that the balance of the account rendered by the Defendant be the full and final settlement of the pledged property.
(v) An Order of perpetual injunction restraining the Defendant, his agents, privies or servants from continuing holding on to the pledged property.

At the conclusion of hearing, the Learned Trial Judge on 6th day of October 2011 delivered Judgment in favour of the Plaintiff and against the Defendant, with (N20,000.00) Twenty Thousand Naira costs in favour of the Plaintiff.

The Appellant who is dissatisfied with the Judgement of the lower Court appealed to this Court.

The Learned Counsel for the Appellant formulated (4) four issues for the determination of the appeal. The issues are set out as follows:-
(1) Was the Legal relationship created between the Respondent and the Appellant a pledge? (Distilled from Grounds 1 & 8)
(2) Was the Learned Trial Judge right in law having regard to the admissions made in the pleadings, oral evidence and from the documents

tendered as Exhibits in holding that the Respondent did not execute Exhibit ?C (Distilled from Grounds 4, 5, 9, 10 & 11)
(3) Assuming but not conceding that the relationship created was a pledge, is it a legal requirement that
(i) A pledge creditor has to specifically claim the loan sum before he could be entitled to be paid the debt.
(ii) And does the Rent collected by a pledge creditor from a pledge property preclude him from receiving the loaned sum OR does same replace the loaned sum upon redemption and
(iii) Can one claim specifically or generally for the improvements made on a pledge property by a pledge creditor ? against the pledge debtor upon redemption of the pledged property by the pledge debtor? (Distilled from Grounds 6 & 7)
(4) Was the learned Trial Judge right in holding that the Respondent?s Claim was not statute barred and thereby unilaterally amended the monetary claim without amendment of pleadings ? thus making the reliefs hitherto held to be statute barred now outside the statute of Limitation? (Distilled from Grounds 2 & 3)

?In his own case, the Learned Counsel

for the Respondent also formulated four (4) issues for the determination of the appeal. The issues are set out as follows:-
(1) Whether or not the Learned Trial Judge was right when he discountenanced or attached no probative value to Exhibit ?C?.
(2) Whether or not having regards to Exhibit ?C? the Learned Trial Judge was right when he held that the contractual relationship between the Appellant and Respondent was a pledge and not a conditional sale.
(3) Whether or not the Learned Trial Judge was right when he held that the Respondent?s Claim was not statute barred and that the Respondent was entitled to his claims.
(4) Whether or not the Learned Trial Judge was right when he held that the renovation work done in the said house in dispute is a claim in special damages which must be strictly proved and that the Defendant failed woefully to establish his Counter Claim.

At the hearing of this appeal on the 3rd day of May 2017, the Learned Counsel for the Appellant was absent from Court although duly served with hearing notice.

?The Learned Counsel for the Respondent stated that the appeal is against

the Judgment of the High Court of Justice, Auchi in Edo State of Nigeria delivered on 6/10/2011. The notice of appeal was filed on 4/11/2011 and the record of appeal was transmitted on 30/12/2012.

The Appellant?s brief of argument was filed on 30/10/2015. The Respondent?s brief was filed with the leave of Court on 30/6/2014. A clean copy was later filed with leave of Court on 24/2/2017.
The Learned Counsel for the Respondent adopted and relied on the said Respondent?s brief of argument in urging that this appeal be dismissed.

Since Counsel for the Appellant was served with hearing notice although he was absent from Court, but since he has filed the Appellant?s brief of argument, the appeal was treated as having been duly argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules 2016.

?I have carefully examined the issues formulated for the determination of the appeal by Counsel for the parties, the issues are similar but the issue formulated on behalf of the Appellant, apart from the fact that it is attached to the grounds of appeal, it also encompasses the issues formulated on behalf of the Respondent. I

will therefore rely on the said issues formulated on behalf of the Appellant in the determination of this appeal.

ISSUES FOR THE DETERMINATION OF THIS APPEAL
ISSUE NO. 1
Was the legal relationship created between the Respondent and the Appellant a pledge? (Distilled from Grounds 1 & 8)

The Learned Counsel for the Appellant submitted that from the evidence of parties and their pleading the word pledge was not used and that it was only used in the Respondent?s pleadings and by the Learned Trial Judge while reviewing the evidence of the parties.
He went further in his submission that-
(i) That the Appellant did not plead or give evidence that the house was used as a pledge but that the Respondent used the document of his house at No. 73A Warrake Road, Auchi as security for the loan.
(ii) That the Respondent did not give evidence on oath that he entered into pledge relationship with the Appellant.
(iii) That the Respondent never used the word pledge but that it was the Learned Trial Judge who used the word while reviewing evidence of the parties.
(iv) That there is no evidence that the relationship between

the Appellant and Respondent was created under customary law.

He referred to the testimonies of both the Appellant and the Respondent at the lower Court and submitted that a pledge known to our indigenous customary law system applies only to land, farm-land or crops, and that it does not apply to chattel like a car.
He also referred to the essential features of pledge under the indigenous arrangement.

It was also stated that the word pledge was used in operational part of Exhibit ?C? i.e. the agreement.

He went further in his submission that the main purpose or understanding behind transaction between the Respondent and the Appellant in Exhibit ?C? is stated in paragraph 2 of the said Exhibit ?C? as follows:-
?… in the event of the failure to fully repay the loan by the end of 31st December 1999, the lender is hereby entitled, empowered and authorized to take over the landed property containing the property without recourse to the borrower payment of any further sum for the house or executing any other written agreement.?

Learned Counsel for the Appellant submitted further

that Exhibit ?C? represents the Respondent?s transaction with the Appellant.

In his response to the submission of Counsel for the Appellant, the Learned Counsel for the Respondent submitted that a pledge is a transaction in the nature of a contract with a right of action assured to the pledgee. The existence of a pledge is a fact to be determined in the light of the evidence adduced in support thereof by the person who asserts that it exists.

He relied on the case of:- OKOROAFOR VS ABAWORONINI (1996) 2 NWLR Part 430 Page 278 at 286.

He referred to the evidence of the Respondent, that of PW1 i.e. Oba Sabah and the Appellant and submitted that in the light of the evidence adduced by the Respondent at the trial of the suit, that there is the existence of a pledge in the loan agreement between him and the Appellant.

?A pledge means a formal promise or undertaking. The act of providing something as security for a debt or obligation. A pledge is something more than a mere lien and something less than a mortgage. The pledge is said to be as old as recorded history and is still in use. In this transaction, the debtor borrows

money by physically transferring to a secured party the possession of the property to be used as security, and the property will be returned if the debt is repaid. See ? BLACK?S LAW DICTIONARY, NINETH EDITION, PAGE 1272; A pledgee is one with whom a pledge is deposited while a pledgor is one who gives a pledge.
See IHUNWO VS IHUNWO (2013) LPELR 2008 (SC).

In this appeal under consideration, the Respondent gave graphic details of what happened at the lower Court between him and the Appellant. He testified as follows:-
?…Oba Sabah told me that he is aware that I have a house along Warrake Road, Auchi that I could use for the purpose. I then agreed to use the house at No. 73A Warrake Road, Auchi as a security for the money given to my sister Unera Momoh to travel to Saudi Arabia. Unera Momoh promised to return the money when she gets to Saudi Arabia. Oba Sabah then took us to the Defendant to give us the money. The Defendant was present when the arrangement was discussed. The Defendant took us to a Lawyer who prepared the agreement. After the agreement was read to me I objected to the contents of the Agreement. I then refused to

sign the said Agreement. Before I was given the money, I deposited my survey plan and the document with which the land on which I built my house was allocated to me by Auchi Plot Allocation Committee. My house is an 8 rooms apartment which is completed. Apart from the 8 rooms I built on the portion of the land, I still have a vacant plot of land which is covered by the same survey plan. It was a period of 3 months for the repayment of the loan money to me by the Defendant. At the expiration of the 3 months, my sister Unera Momoh was not forthcoming with the money. I could also not pay the money within the three months agreed period. I initially agreed orally with the Defendant to repay the N200,000.00 within a period of 3 months and by failure to pay within the period, the Defendant should take possession of the 8 rooms building and collect rents there to recover his money and thereafter return the building to me. After sometimes, I went to the Defendant to demand an account of the money he has collected from the building as rents. He refused to render account to me.?

On the other hand, the Learned Counsel for the Appellant submitted that the

understanding behind the transaction between Appellant and the Respondent is as stated in paragraph 2 of the said Exhibit ?C? which was set out earlier in this Judgment.

The Learned Trial Judge in his Judgment held thus on Exhibit ?C?.
?On the whole, I have given due consideration to the evidence of the parties in this case. After weighing the evidence of the Defendant and his witnesses on the one hand and the evidence of the Plaintiff on the other hand, I prefer the evidence of the Plaintiff to those of the Defendant and his witness. I therefore hold that the Plaintiff did not execute or sign Exhibit ?C?, I therefore discountenance or attach no probative value to Exhibit ?C?.

The decision of the Learned Trial Judge set out above cannot be faulted because the Respondent was not a party to Exhibit ?C?. The Appellant cannot force him to comply with the said Exhibit ?C?.

?It must also be noted that the issue of the transaction between the parties being a conditional sale was not pleaded by the parties. The parties never joined issues on the fact of the transaction

being a conditional sale Agreement.

Consequent upon the foregoing, I am of the view that the Learned Trial Judge was right to hold that the contractual relationship between the parties was not a conditional sale but a loan agreement which from evidence adduced by the Respondent (Plaintiff) was in the nature of a pledge.

This issue No. 1 is hereby resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 2
Was the Learned Trial Judge right in law having regard to the admissions made in the pleadings, oral evidence and from the documents tendered as Exhibits in holding that the Respondent did not execute Exhibit ?C (Distilled from Grounds 4, 5, 9, 10 & 11)

The Learned Counsel for the Appellant referred to paragraphs 15 & 16 of the statement of claim, which stated as follows:-
PARAGRAPH 15:
?The Plaintiff further avers that the said Barrister S.A. Ikpea brought out an already prepared Agreement and urged the Plaintiff to sign his portion, but the Plaintiff insisted that the contents of the document be first read and interpreted to him in Afemai language that he understand as an

illiterate.
PARAGRAPH 16
The Plaintiff avers that when the content of the agreement was interpreted to him by the said Barrister S.A. Ikpea, his attention was never drawn to paragraph 2 of the covenant part of the agreement which stated that failure by the Plaintiff to redeem the pledge on the 1st day of December, 1999, the Defendant will now become the owner of the said property.?

Learned Counsel for the Appellant submitted that the above are admissions of a written Agreement in the pleadings. He went further that the disparity in the Appellant?s evidence ? when he said that Exhibit ?C? was executed in his office ? while DW 1 said it was executed in the Lawyer?s office, and the Court holding that the date of commencement was not written in Exhibit ?C? and that the duration of the contract was for a period less than the three months ? being the reason given by the Trial Judge for not attaching probative value to Exhibit ?C? are not of such magnitude having regard to the evidence led.

He relied on the following cases:-
– UKWU VS ATASIE 2 SCNQR Page 1130

Ratios 2 & 3;
– ADESANYA VS ADERONMU 2 SCNQR Page 1180 Ratio 12 at Page 1184;
– JACK & OTHERS VS WHYTE & OTHERS (2001) NSCQR Page 616.

He urged this Court to hold that the Respondent executed Exhibit ?C?.

The Learned Counsel for the Respondent stated that the Appellant relied heavily on Exhibit ?C? in establishing his case.

On one hand, the Appellant said that the Respondent signed the Agreement in his office and that DW1 Mr. Oba Sabah witnessed the Respondent while on the other hand (DW1) Oba Sabah stated that the Agreement was signed in Barrister S.A. Ikpea?s office and that he witnessed for the Appellant and not for the Respondent.

It was submitted on behalf of the Respondent that the Appellant ought to have called his lawyer to give evidence on Exhibit ?C?, which the Appellant alleged the lawyer prepared. He went further that it was the failure of the Appellant to produce such evidence that made the Trial Court to evoke the aid of Section 149(d) of the Evidence Act and discountenanced and attached no value to the said Exhibit ?C?.

?The Learned Counsel for

the Respondent urged this Court to hold that the Learned Trial Judge was right when he discountenanced and attached no probative value to Exhibit ?C?.

There is no doubt that the Appellant relied heavily on Exhibit ?C?. i.e. the purported Agreement between the parties to this appeal.

?The Appellant testified before the Lower Court as follows:-
?I called my Lawyer Mr. S.A. Ikpea and we all went to Ikpea?s Chambers. We gave my lawyer instructions to prepare an Agreement. Our instructions was that if after one month, the Plaintiff is unable to refund the money, the pledge house will become my own. I then asked Mr. Ikpea to extend the period by two months. Mr. Ikpea asked the Defendant to come the following day to sign the Agreement. After a week, Mr. Ikpea informed me that the Plaintiff has not come to sign the Agreement. I went to tell Mr. Oba and I showed him the Agreement.
On the 11/11/1999, I went again to tell Mr. Oba that the Plaintiff has not signed the Agreement. On the 12/11/1999 the Plaintiff came to my office with Mr. Oba and sent for Alhaji Ekehinde. The Plaintiff eventually signed the Agreement.

Myself and Mr. Oba signed as a witness?. (See pages 86 ? 88 of the record of appeal.)
Under Cross-Examination, the Appellant stated thus:-
?I was the person who added additional 2 months for the repayment of the loan. This is not contained in the loan agreement (see page 88 of the Record.)?

DW1, one Mr. A. Oba Sabah also testified on behalf of the Appellant as follows:-
?The Defendant asked the Plaintiff to bring a person to stand as surety for him, but he told him that he did not want his people to know about the transaction. The Defendant then went to call a man from the Plaintiff?s village Warrake to stand as surety, one Alhaji Ekehinde. We all went to see the lawyer to the Defendant which was on a Sunday. The lawyer is Mr. Ikpea…………. The Lawyer promised to prepare the agreement for the loan and asked us to come another day to sign same………………………………………………….
?The Defendant gave the Plaintiff a period of 3 months to repay the loan. We eventually signed the Agreement. I signed as a witness. My signature is on the agreement ? Exhibit

?C?. (See page 91 of the record.)?
Under Cross-Examination, DW1 stated thus:-
?I signed Exhibit ?C? as a witness to the Defendant. It is true that the transaction was documented by the lawyer. I cannot remember the exact date I signed the Agreement… The Agreement was signed in the lawyer?s office, and not in the Defendant?s office. (See Page 92 of the record of appeal)?.

On the other hand, the Respondent testified as follows:-
?… the defendant took me to a lawyer who prepared the Agreement. After the Agreement was read to me, I objected to the contents of the Agreement. I then refused to sign the said Agreement. (See Page 76 of the record of appeal)?.
Under Cross-Examination the Respondent testified as follows:-
?The Agreement was cancelled by Barrister Ikpea in his office before we went to the house of the Defendant where he gave us the money. After this the Defendant never brought the Agreement for me to sign until date.
… I did not sign any Agreement at Barrister Ikpea?s office, I only saw the Agreement at the Otaru?s Palace. It is

not Oba Sabah who signed as my witness.?
(See pages 78 ? 79 of the Record of Appeal)

A careful perusal of the evidence set out above would reveal that there are material contradictions between the oral evidence of the Defendant and his witness DW1. Therefore, the origin and authenticity of the said Exhibit ?C? is put in doubt.

On one hand, the Appellant (Defendant) is saying that the Respondent (Plaintiff) signed the Agreement in his office and that DW1 (Mr. Oba Sabah) witnessed for the Respondent while on the other hand, DW1 (Mr. Oba Sabah) stated that the Agreement was signed in Barrister S.A. Ikpea?s office and that he witnessed for the Appellant and not for the Respondent (Plaintiff).

It is my view that the Appellant ought to have called the lawyer i.e. the expert who prepared Exhibit ?C? with a view to affirming it and clear the air about who signed and who did not sign the said document.

?It was the failure on the part of the Appellant to produce such evidence that made the Trial Court to evoke the aid of Section 149 (d) of the Evidence Act. The lower Court therefore discountenanced and

attached no probative value to the said Exhibit ?C?.
This Issue No. 2 is therefore resolved in favour to the Respondent and against the Appellant.

ISSUE NO. 3.
Assuming but not conceding that the relationship created was a pledge: Is it a legal requirement that:-
(i) A pledge Creditor has to specifically claim the loaned sum before he could be entitled to be paid the debt?
(ii) And does the rent collected by a pledge Creditor from a pledged property preclude him from receiving the loaned sum or does same replace the loaned sum upon redemption? And
(iii) Can one claim specifically or generally for improvements made on a pledge property by a pledge Creditor against the pledge Debtor upon redemption of the pledge property by the pledge Debtor? (Distilled from Grounds 6 & 7).

The Learned Counsel for the Appellant referred to Judgment of the lower Court where it was held that the Defendant never sought an order for special damages for the renovated work done in the house at No. 73A Warrake Road, Auchi, in his Counter Claim nor a refund of the sum of N222, 000.00.

?He submitted that equity of redemption cannot

be fore-closed; redemption is consummated upon the return of the loaned sum. The pledgor need not bring a Claim or Counter-claim for a Court to make an Order for the refund of the loaned money. He urged this Court to make an Order to that effect.
He went further in his submission that
(i) A pledge Creditor is not a manager to the pledge Debtor as to warrant the pledge Creditor giving account of the profit made on the pledge property to the pledge Creditor.
(ii) The benefits of the pledge Creditor on a pledge property is both the use and financial gain from the pledge property.
(iii) Any financial benefit enjoyed by the pledge Creditor on the pledge property does not foreclose the equity of redemption ? the pledge Debtor has to refund the loaned sum.
(iv) A pledge Creditor is not entitled to claims specially and generally on improvements made on pledge property as such improvements enhanced his financial benefit from the pledged property during the life of the pledge transaction.

The Learned Counsel for the Appellant finally submitted that this Court should hold that the principle that pledges are perpetually

redeemable.

On the other hand, the Learned Counsel for the Respondent submitted that a Counter-Claim in a suit against the suit of Plaintiff puts the Defendant in the same position as the Plaintiff as he who asserts must prove. The general principle of law that his success also depends on the strength of his case and not on the weakness of the Plaintiff?s case also applies to the Defendant who sets up a Counter-Claim in a civil suit.

He relied on the case ofKOLAWOLE VS OLORI (2010) ALL FWLR Part 514 Page 35 at Page 45 Ratio 12;

In the instant appeal, the Learned Counsel for the Respondent stated that the Appellant relied on Exhibit ?C? in setting up his counter claim. He urged this Court to hold that the Appellant failed to prove his Counter-Claim.

The Learned Counsel for the Respondent submitted further that renovation work can only be a claim for special damages because the claim is such that the law will not infer from the nature of the facts of the case.
He submitted that special damages must be specifically pleaded and strictly proved.
He relied on the case of RIVERS VEGETABLE OIL COMPANY LTD. VS EGUKOLA

(2010) ALL FWLR Part 544 page 111 at 130 paragraphs C ? D;

In this case he contended that the Appellant failed to give evidence of the exact amount of money he spent in carrying out the renovation work.

He finally urged this Court to hold that the Learned Trial Judge was right when he held that renovation work done in the property is a claim in special damages which must be strictly proved and that the Appellant failed to establish his counter Claim.

In answering the questions posed under this issue, I will rely on the decision of the Supreme Court in OKOIKO & ANOTHER VS ESEDALUE & ANOTHER (1974) 3 S.C. Page 15, where the Court laid down the principles which govern Customary Pledge as follows:-
(1) That a pledge is perpetually redeemable and the pledgor?s family is entitled to redeem the pledged land for the amount of the original loan and for nothing more.
(2) That on the redemption by the pledgor, a pledgee of land is not entitled to compensation for putting the land to extra-ordinary economic uses while in possession.
(3) That when pledged land is being redeemed by the pledgor or successor in title, the

pledgee must account for benefits derived by him from exploitation of the land while in possession and
(4) That the pledgee in possession must not do anything to clog the pledgor?s right of redemption of the pledged land.

I hereby adopt the principles laid down in the above case as answer to the questions raised under this issue.
Consequent upon the foregoing, this issue is also resolved against the Appellant and in favour of the Respondent.

ISSUE NO. 4
Was the Learned trial Judge right in holding that the Respondent?s claim was not statute barred and thereby unilaterally amended the monetary claim without amendment of pleadings ? thus making the reliefs hitherto held to be statute barred now outside the statute of limitation? (Distilled from Grounds 2 & 3)

The Learned Counsel for the Appellant referred to the Judgment of the Lower Court and submitted that it is the date when a cause of action accrues that determines the date of computation by statute of limitation.

?He went further that the Learned trial Judge having ruled that some of the reliefs are statute barred cannot amend the reliefs thus held

statute barred suo motu as to make it actionable. He went further that it amounts to granting a relief not claimed. It was also submitted that the action between the Respondent and the Appellant is strictly a simple contract where an action could only be brought within 6 years by statute of limitation and the period begins to run from the time the cause of action arose.
He relied on the case of IWEKA VS SCOAN (1 SCNQR) Page 431 at 435.

He went further in his submission that the contractual transaction between the Respondent and Appellant was an interest free loan or friendly loan transaction and not ownership of house No. 73A Warrake Road, Auchi which according to him was only incidental as a result of the default on the part of the Respondent in respect of the loan transaction.
He urged that the issue be resolved in favour of the Appellant.

In his response the Learned Counsel for the Respondent submitted that it is settled law that in order to determine whether an action is statute barred, it is by looking at the Writ of Summons and statement of claim and nothing more.
He relied on the following cases:-
– OGUNDIPE VS NDIC (2009)

1 NWLR Part 1123 Page 473;
– AGI VS ENO (2010) 5 NWLR Part 1188 Page 627.

It was submitted on behalf of the Respondent that on transactions in respect of landed property, an action could be brought within 12 years. And this action was instituted within the statutory period. He urged that this issue be resolved in favour of the Respondent.

Limitation provisions do not apply to customary pledge. A pledgor?s right to redemption is perpetual and cannot be clogged by the use of subterfuge or delay and laps or limitation would not bar redemption. A pledge can be redeemed at anytime.
In MBUBU VS OBORI & ANOTHER (2003) FWLR Part 156 Page 844 at Page 852], the Supreme Court held that one of the incidents of a customary pledge is that time does not run against a pledge. The cause of action does not arise until the pledge money is either tendered or rejected or the pledgee sells or attempts to sell the pledge property.
See the following cases:-
– IGBUM VS ALHAJI NYARINYA & ANOTHER (2001) FWLR Part 67 Page 950 at 979;
– ALHAJI YASHE VS UMAR (2003) FWLR Part 182 Page 1855 at 1861.

Consequent upon the foregoing,

this Issue No. 4 is also resolved in favour of the Respondent and against the Appellant.

In the result, with the resolution of all the four issues for determination in this appeal against the Appellant and in favour of the Respondent, it is my view that this appeal is devoid of merit and it is hereby dismissed.
The Judgment of the lower Court in Suit No. HAU/29/2009: Between ? MALLAM SANI MUSA VS BRAIMAH SULEMAN, delivered on 6/10/2011 is hereby affirmed.
Each of the Parties are to bear their own costs.

PHILOMENA MBUA EKPE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother J.O. Bada JCA. I am in total agreement with the reasoning and conclusions reached therein on both issues one and two.

On issue one, I too am of the ardent view that it was within the purview of the learned trial Judge to hold that the relationship between the parties did not culminate in a conditional sale but merely a loan agreement in the nature of a pledge.

I also tow the line of reasoning in the lead judgment in resolving all the other issues herein mentioned in this

appeal.

In consequence, it is also my view that this appeal is unmeritorious, it fails and is hereby dismissed by me. Accordingly, the judgment of the lower Court in Suit No. HAU/29/2009 delivered on the 6th day of October, 2011 is affirmed.
I abide by the order as to costs in the lead judgment.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I have had the privilege of reading in draft form the leading judgment of my learned brother, JIMI OLUKAYODE BADA, JCA.

I agree entirely with the reasoning and conclusion reached by my learned brother, which I adopt as mine. I have nothing useful to add, as my lord has painstakingly dealt with the issues in the appeal.

For the reasons advanced by my learned brother. I also dismiss this appeal and affirm the judgment of the trial Court.
?There is no order for costs.

Appearances

Appellant’s Counsel Absent.For Appellant

AND

Miss J.N. ChukwuFor Respondent