DON NIEMOGHA & ANOR v. OMAMODE ARUBAYI
(2018)LCN/12242(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/B/337/2009
RATIO
LIMITATION: WHEN AN ACTION IS STATUTE BARRED
“It is therefore trite that when the issue of an action being statute-barred by the Limitation Law is raised, the period of limitation is determined by looking at the Writ of Summons and the Statement of Claim alleging the wrong said to have been committed giving rise to the cause of action and when it was committed…The issue of Statute of Limitation is very fundamental. It touches on jurisdiction of the Court. It follows therefore that where an action is statute-barred, the consequence is that the right of action becomes extinguished by law and unenforceable by a Court action forever, so that the Claimant remains without a remedy and his claims would be dismissed. See EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (PT. 631) P. 362, ONUMALOBI V. N.N.P.C. (1999) 12 NWLR (PT. 632) at 639.” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
CRIMINAL LAW: THE OFFENCE OF FRAUD
“The above principle of law was clearly stated in OYEBISI AFOLABI USENFOWOKAN V. SULE SALAMI IDOWU & ANOR. (1969) ALL N.L.R. Page 121 at 126, as follows: ‘It is settled law that any charge of fraud must be pleaded with the utmost particularity In the common law Courts, no rule is more clearly settled than that fraud must be distinctly alleged as distinctly proved and that it was not allowable to leave fraud to be inferred from facts.'” PER CHIOMA EGONDU NWOSU-IHEME, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
1. DON NIEMOGHA
2. INUSA NIEMOGHA
(For themselves and on behalf of the Niemogha Family) Appellant(s)
AND
OMAMODE ARUBAYI Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment):
The Appellants in this appeal as Plaintiffs at the lower Court claimed against the Respondent as Defendant declaratory action over a piece of land, situate at Plot 23. 24 and 26 behind D.D.P.A. Niemogha Layout Effurun, Five Million Naira damages and Perpetual Injunction.
The Respondent as Defendant raised a Preliminary Objection on the ground that the action was statute-barred.
At the conclusion of hearing G.E. Akperi, J., of the Effurun Division of the High Court of Delta State on the 18th day of March, 2009 in a considered Ruling, upheld the Preliminary Objection and struck out the case for being caught by the Limitation Law and therefore statute-barred.
This appeal is predicated on the said Ruling.
By a Notice of Appeal filed on the 6th of April, 2009, the Appellants filed a single ground of appeal on omnibus ground against the said Ruling of the Court. Subsequently, the Appellants were granted leave by this Court to file additional grounds of appeal. Consequently, the Appellants filed an Amended Notice of Appeal filed on the 9th of January, 2018.
Three issues were formulated by Counsel for the Appellants W.E. Oghiagbepha Esq as follows:
(i) “Whether the learned trial Judge was right when she relied on extraneous issues/averments in arriving at the conclusion that the suit/action was statute-barred.
(ii) Whether the learned trial Judge was right in law when she held that the particulars of fraud was not spelt out or specifically pleaded.
(iii) Whether the learned trial Judge was right in law when she held that there was nothing in the statement of claim which the Plaintiffs’ Counsel relied on as fixing action the date their cause of action arose.”
The Respondent’s Counsel G.C. Arubayi Esq., on the other hand, distilled two issues for determination thus:
“(1) Whether the learned trial Judge was wrong when he held that the cause of action was statute-barred.
(2) Whether the learned trial Judge was wrong when he held that particulars of fraud was not spelt out or specifically pleaded.”
The issues formulated by both Counsel are similar even though couched differently. They could be compressed into one single issue thus:
“Whether on the facts and circumstances of this case, the learned trial Judge was right when he held that the action was statute-barred, that fraud was not specifically pleaded and proceeded to strike out the case for want of jurisdiction.”
Taking the issues he formulated, Learned Counsel for the Appellants W.E. Oghiagbepha Esq., referred to paragraphs 15 &16 of their claim and submitted in summary, that the acts of trespass which gave rise to the cause of action occurred between 1994 and 1995 and that thereafter the Appellants discovered that the Respondent’s father had trespassed on a portion of the Appellants’ family land. He contended that it was erroneous for the learned trial Judge to observe in his Judgment that the Plaintiff did not state any other date to show when his cause of action arose. That it was also not within the law for the trial Judge to have gone to the date when the Certificate of Occupancy which dispossessed his father was made.
He cited ARISONS TRADING V. MILITARY GOVERNOR OF OGUN STATE (2009) ALL FWLR (PT. 496) Pg. 1819.
Counsel referred to paragraph 19 of their Statement of Claim and posited that where fraud is alleged as in this case, time will not run against the Appellants and the Statute of Limitation will not operate against the Appellants.
Reacting to the foregoing, Learned Counsel for the Respondent G.C. Arubayi Esq., argued that what was allegedly and purportedly pleaded by the Appellants as fraud did not comply with the Rules of Court and decided cases on how fraud should be pleaded. He submitted that the Appellants merely made an allegation of fraud without specifically pleading the particulars of fraud.
Counsel argued that the action initiated in 2006 was statute-barred since the Respondent was granted Certificate of Occupancy and had been in possession fifteen (15) years before the case was filed in Court. That having filed this case outside the twelve (12) years allowed by the Limitation Law, it is statute-barred and robbed the lower Court of jurisdiction.
I shall reproduce the Limitation Law applicable to Delta State at the time this action was instituted since this appeal revolves around it.
Section 6(2) of the Limitation Laws Cap. 89, Vol. IV Laws of Bendel State of Nigeria 1976 which was the applicable law at the time this was instituted at the Delta State High Court Effurun Division states as follows:
“No action shall be brought by any person to recover land after the expiration of twelve years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.”
In dealing with the issue as to whether or not the present action was caught by the Statute of Limitation, the question that readily comes to mind is how does one determine the period of limitation in a particular case.
In response to the above question Oputa JSC in EGBE V ADEFARASIN (1985) 1 NWLR (PT. 3) 549 cited in WILLIAMS V. WILLIAMS (2008) ALL FWLR (PT. 433) Pg. 1257 stated thus:
The answer is simple, by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action
It is therefore trite that when the issue of an action being statute-barred by the Limitation Law is raised, the period of limitation is determined by looking at the Writ of Summons and the Statement of Claim alleging the wrong said to have been committed giving rise to the cause of action and when it was committed.
Paragraphs 19 of the Statement of Claim page 9 of the Record of Appeal states as follows:
“(19) Plaintiff avers that the Certificate of Occupancy obtained from Benin on the 25th of September, 1991 was improperly obtained and that the Defendant did not disclose adequate facts to obtain the said Certificate of Occupancy.”
From the above paragraph 19 of the Statement of Claim, it is clear that a Certificate of Occupancy was issued in favour of the Respondent?s father in 1991. Both parties agreed to this as was clearly stated in paragraph 17 of the Statement of Defence. The Supreme Court stated the position of the law on when limitation period commences in land cases in the case of ALHAJA WULEMOTU AJIBONA V. ALHAJI SURAJUDEEN KOLAWOLE & ANOR (1996) 12 S.C.N.J 270 at 282 thus:
“What is needed for the limitation period to commence is absence of possession by the Plaintiff and possession by the Defendant. Right accrues once possession has been lost to the other party.”
As stated in paragraph 19 reproduced above, the Appellants lost possession in 1991 when the Certificate of Occupancy was issued.
The legal right to enforce an action is not a perpetual right, but a right generally limited by statute.
Going by paragraph 19 of the Appellants? Statement of Claim, the cause of action arose in 1991. Records show that this suit commenced in 2006 at the Court below, fifteen (15) years after the cause of action accrued. This is clearly contrary to the law governing limitation.
From 1991 – 2006 was a period of fifteen (15) years which is above the twelve years prescribed by statute. See INEC V. OGBADIBO LOCAL GOVT & 13 ORS (2016) 3 NWLR (Pt.1498) Pg. 167.
The issue of Statute of Limitation is very fundamental. It touches on jurisdiction of the Court. It follows therefore that where an action is statute-barred, the consequence is that the right of action becomes extinguished by law and unenforceable by a Court action forever, so that the Claimant remains without a remedy and his claims would be dismissed. See EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (PT. 631) P. 362, ONUMALOBI V. N.N.P.C. (1999) 12 NWLR (PT. 632) at 639.
In the same breath, the issue of fraud, the Appellants in paragraph 19 of their Statement of Claim merely stated:
that the Certificate of Occupancy obtained from Benin on the 25th of September, 1991 was improperly obtained (Underlining mine for emphasis).
The above is a mere allegation without fraud being specifically pleaded with particularity. I agree with Counsel for the Respondent that were the facts that made obtaining the Certificate of Occupancy fraudulent was not stated in the Statement of Claim, it cannot oust the Limitation Law from being applicable to the present case.
The above principle of law was clearly stated in OYEBISI AFOLABI USENFOWOKAN V. SULE SALAMI IDOWU & ANOR. (1969) ALL N.L.R. Page 121 at 126, as follows:
“It is settled law that any charge of fraud must be pleaded with the utmost particularity In the common law Courts, no rule is more clearly settled than that fraud must be distinctly alleged as distinctly proved and that it was not allowable to leave fraud to be inferred from facts.”
Also, in line with the above, the Supreme Court in OSAYANDE UHUNMWANGHO V. F.I. OKOJIE & 3 ORS (1982) ALL N.L.R. Page 376 stated as follows:
“I think it is now well stated that fraud has to be specifically pleaded and proved. General allegations however strong are insufficient to amount to an averment of fraud of which any Court ought to take notice.”
It is therefore obvious that the Appellants did not specifically plead fraud nor was particulars of fraud pleaded. They casually made a general allegation as stated in their statement of claim that the Certificate of Occupancy ?was improperly obtained?. This, in my view, cannot oust the Limitation Law from being applicable in the present case and I so hold.
In his Judgment striking out the case for being caught by the Limitation Law, the learned trial Judge stated as follows:
(1) The cause of action arose in 1991 to the Predecessor of the Plaintiff (2) Possession left the Plaintiff’s family when the Defendant obtained Certificate of Occupancy (3) Time should be computed from the date of 1991 disclosed in the Statement of Claim and admitted by the Defendant.
This action was filed on the 7/3/06. The Statute of Limitation to exercise right over land put the time at 12 years. Certainly by simple arithmetic the period between the two dates is certainly over 12 years
In the light of these, I hold that the Plaintiff claims is caught by the Limitation Law. It is accordingly statute-barred and is hereby struck out.
The above is a finding of fact by the learned trial Judge borne out of evidence before him. It is neither perverse nor misconception of the law. I therefore see no reason or justification to interfere with same.
The Suit at the Court below having been caught up by the aforementioned Limitation Law. It robbed the learned trial Judge of jurisdiction to entertain the suit. He was well within the law to have proceeded to strike out the said suit for want of jurisdiction having been caught up by the Limitation Law.
In the premise, the sole issue is resolved against the Appellants and in favour of the Respondent. This appeal is unmeritorious and is hereby dismissed. The Ruling of G.E. Akperi, J., of the Effurun Division of the Delta State High Court in Suit No EHC/64/2006 delivered on the 18th of March, 2009 striking out the case for being caught by the Limitation Law is hereby affirmed.
I make no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read before now the judgment just delivered by my learned brother CHIOMA EGONDU NWOSU-IHEME JCA (Ph.D) and I agree with His Lordship’s reasoning and conclusion that the appeal should be dismissed for lacking in merit. The Ruling of Hon. Justice G.E. Akperi of the Delta State High Court in suit No: EHC/64/2006 delivered on 18/3/09 striking out the suit for reason of being statute barred is hereby affirmed. Appeal dismissed. No order as to costs.
PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the Judgment just delivered by my learned brother, CHIOMA EGONDU NWOSU-IHEME, JCA, (Ph.D).
I am in full agreement with the reasoning and conclusion therein. I also see no merit in this appeal and dismiss it accordingly. I also affirm the Ruling of G.E. Akperi J., of the Effurun Division of the Delta State High Court in suit No. EHC/64/2006 delivered on the 18th of March, 2009.
I make no Order as to costs.
Appearances:
F.O. Olokor with him, W. E. OghiagbephaFor Appellant(s)
G.C. Arubayi with him, N.G. EkuremeFor Respondent(s)
