EMMANUEL BAMIGBADE & ANOR V. MR.THOMAS OJO ADEYERI & ORS. (2012)

EMMANUEL BAMIGBADE & ANOR V. MR.THOMAS OJO ADEYERI & ORS.

(2012)LCN/5718(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of December, 2012

CA/EK/50/2011

RATIO

LIMITATION LAW: DUTY OF A PARTY RELYING ON A STATUTE OF LIMITATION

In OYEBANJI Vs LAWANSON (SUPRA) PAGE 133 at PARAGRAPHS A-D, the Supreme Court held as follows:-

“A party wishing to rely on a statute of limitation or the administration of Estate Law must specifically plead same, it is not true therefore that such defence should be left to speculation or inference.”

The failure by the Respondents to plead the statute of limitation in my view has rendered the objection and subsequent ruling of the lower Court null and void and of no effect.

See also the following cases:-

– MBONU Vs NIGERIAN MINING CORP (2006) 13 NWLR PART 998 PAGE 659 at 691 PARAGRAPH G

– FASADE Vs BABALOLA (2003) 11 NWLR PART 830 PAGE 26 at 47 PARAGRAPH E. PER JIMI OLUKAYODE BADA, J.C.A.

EVIDENCE: DUTY OF A PARTY RELYING ON SPECIAL DEFENCE

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

EJEMBI EKO Justice of The Court of Appeal of Nigeria

MODUPE FASANMI Justice of The Court of Appeal of Nigeria

Between

(1) EMMANUEL BAMIGBADE
(2) CHIEF GABRIEL OLAMOSU (Suing for themselves and Other descendants of Sao Agbadamu family of Uro Quarters, Ikere-Ekiti) Appellant(s)

AND

(1) MR.THOMAS OJO ADEYERI
(2) CHIEF (MRS) FUNMILAYO ALONGE
(3) MR. TOPE OJO ADEYERI (Sued for themselves and other children of Sao Ojo Adeyeri of Uro Quarters, Ikere-Ekiti) Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Justice, Ikere-Ekiti Division in Ekiti State in Suit No.: HCR/1/2007 – EMMANUEL BAMIGBADE & 1 OTHER VS THOMAS OJO ADEYERI & 2 OTHERS delivered on 29th day of March, 2011.
Briefly the facts of the case are that the Plaintiffs now Appellants in a representative capacity instituted an action against the Defendants now Respondents also in a representative capacity at the lower court in which they claimed as follows:
“(1) A declaration that the plaintiffs are the persons entitled to the Statutory Right of Occupancy in respect of a parcel or piece of land situate lying and being at the Sao Agbadamu family Compound Uro Quarters, Ikere-Ekiti, Ekiti State.
The parcel of family land is bounded as follows:-
(i) On the 1st side by Adidemoyan house now inherited by the 1st Plaintiff.
(ii) On the 2nd side by Okearo land now owned by Sam Aluko.
(iii) At the 3rd side by Atiba Street
(iv) On the 4th side by late Fasola’s land and now by Sao Ojo Adeyeri’s house.
(2) A declaration that the plaintiffs are the bonafide owner of the communal property known as Akodi built on the part of the parcel of land with Agbadamu Compound at Uro Quarter, Ikere-Ekiti.
(3) An order of court that the defendants should account for the rent received from tenants on the Agbadamu family property three (3 shops built by the family) on which One Thousand Five Hundred Naira (N1,500) rent is paid monthly to the defendants since 1989 till the date of judgment and pay same to the plaintiffs.
(4) General Damage: N100,000 general damages for refusal of the defendants to yield the family landed property documents and other materials in their custody to the plaintiffs since the demise of Sao Adeyeri in 1998 for which the plaintiff suffered general damages. ”
The learned counsel for the Respondents by a Preliminary Objection filed at the lower court contended as follows:
(i) That the lower court lacks the jurisdiction to entertain the suit, same having been statute barred and deserves to be dismissed.
(ii) That the suit discloses no reasonable cause of action
(iii) That the writ of summons in the suit was defective and void.
At the hearing, the learned trial Judge heard the objection and in a considered judgment dismissed the plaintiff’s claims.
It is against this judgment that this appeal was lodged.
The learned counsel for the Appellants formulated two issues for the determination of the Appeal. The said issues are set out as follows:-
“(a) whether the Appellants’ suit is statute barred and the learned trial Judge was correct and right to have held as such. (Ground 1).
(b) whether the point of law raised and canvassed by Respondents was properly raised (Ground 2).”
The learned counsel for the Respondents also formulated two similar issues for the determination of the Appeal. The issues are set out as follows: –
(i) “Whether the Learned trial Judge was not right in striking out the Appellant’s suit on the ground that same was statute barred.
(ii) Whether it was mandatory for the Respondents to have filed pleadings before raising objection on statute barred.”

At the hearing of the Appeal, the Learned Counsel for the Appellants referred to the Appellants’ brief of argument filed on 14/3/2012 which was deemed properly filed and served on 6/11/2012. He also referred to a reply brief of argument filed on 13/11/2012.
He relied on the said briefs of argument in urging that the Appeal be allowed.
The learned counsel for the Respondents also referred to the Respondents’ brief of argument filed on 19/9/2012.
He adopted the said Respondents’ brief in urging that the appeal be dismissed.
As I stated earlier in this judgment, the issues formulated on behalf of the parties are similar, I will therefore rely on the issues formulated on behalf of the Appellants for the determination of the Appeal.

ISSUE A:
“Whether the Appellants’ suit is statute barred and the learned trial Judge was right to have held as such.”
The learned counsel for the Appellants referred to the claims A and B which he contended are declaratory and that the Court can pronounce upon them even where there is no cause of action.
He relied on the case of:-
– BEREDUJO VS COLLEGE OF SCIENCE AND TECHNOLOGY (1991) 4 NWLR PART I87 PAGE 651 at 662 PARAGRAPH F.
He also referred to paragraphs 22, 23, 24, 26 and 29 of the Statement of Claim filed on 12/1/2007.
He submitted that the land in dispute being a trust property is not affected by Limitation Law of Ondo State as applicable in Ekiti State.
He relied on – SECTION 19(1) OF THE LIMITATION LAW ONDO STATE APPLICABLE IN EKITI STATE, and
– OJEME VS. OJEME (2000) 13 NWLR PART 685 PAGE 606 at 6I4 PARAGRAPHS C – D.
– OGBAH VS. B.D.U. (2001) 3 NWLR PART 701 PAGE 579 at 598 PARAGRAPH A.
– BABATUNDE VS OLATUNJI (2000) 2 NWLR PART 646 PAGE 557.
It was further submitted on behalf of the Appellants that it is the Statement of Claim that determines the jurisdiction and not the Statement of Defence.
The learned counsel for the Appellants relied on the following cases: –
– KADZ INT’L LTD VS KANO TANNERY CO. LTD. (2004) 4 NWLR PART 864 PAGE 545 at 568 PARAGRAPH G.
– ENEMUO VS DURU (2004) 9 NWLR PART 877 PAGE 75 at 107 PARAGRAPHS A – D and 109 PARAGRAPHS D – E.
– INEGBEDION VS SELO-OJEMEN (2004) 12 NWLR PART 887 PAGE 411 at 429 PARAGRAPH G.
– UMANAH VS ATTAH (2006) 17 NWLR PART 1009 PAGE 503 at 525 PARAGRAPHS D – F.
It was also contended on behalf of the Appellants that by virtue of Paragraph 30 of the Statement of Claim the cause of action arose in 1998 and that it was not statute barred.
He relied on the case of:-
– P.A.S. & T.A. LTD.VS BABATUNDE (2008) 8 NWLR PART 1089 PAGE 267 at 289 – 290 PARAGRAPHS E – A.
He also submitted that the reliefs of the Appellants are equitable and declaratory in nature and as such not affected by Statute of Limitation. He referred to SECTION 4(7) OF THE LIMITATION LAW OF ONDO STATE AS APPLICABLE IN EKITI STATE.
. ORDER 24 RULE 5 OF THE ONDO STATE RULES OF THE HIGH COURT AS APPLICABLE IN EKITI STATE.
. DAGAZAU VS BOKIR INT’L CO. LTD (2011) 14 NWLR PART 267 PAGE 261 at 348 PARAGRAPHS A – C.
He submitted that the suit is not statute barred, and that this issue be resolved in favour of the Appellants.
The learned counsel for the Respondents in his submission stated that Courts are enjoined to look at the plaintiff’s claim as contained in the Writ of Summons and Statement of Claim.
He relied on the following cases:
– ELABANJO VS DAWODU (2006) 15 NWLR PART 1001 PAGE 76.
– ONADEKO VS U.B.N. PLC (2005) 4 NWLR PART 916 PAGE 44.
– HASSAN VS ALIYU (2010) 17 NWLR PART 122 PAGE 54.
He submitted that a close look at the plaintiff’s claims would reveal that the word “trust” used by the Plaintiffs/Appellants in their pleadings does not mean that they have reliefs bothering on trust before the court.
He argued further that in order to determine when the cause of action arose to ascertain whether the suit is statute barred or not that a court of law is to look at the date the writ was issued and compare same with the date the cause of action arose.
He relied on the following cases: –
– OKENWA VS MILITARY GOVERNOR, IMO STATE (1997) 6 NWLR PART 507 PAGE 154 at 167 PARAGRAPH A.
– OYETOKI NIGERIAN POSTAL SERVICE (2010) ALL FWLR PART 524 PAGE 1572.
He submitted that a look at paragraphs 18 and 19 of the Statement of Claim would reveal that what the Appellants are seeking is Status of Sao Agbamu Akodi which began on 1957.
He also submitted that in view of Section 17 of the Limitation Law of Ondo State bothering on account, that the claim on account is statute barred.
He urged that this issue be resolved in favour of the Respondents.
The Plaintiffs/Appellants’ claim at the lower court was set out earlier in this judgment.
A careful examination of the reliefs would reveal that reliefs A and B of the claim are Declaratory Reliefs which a court has jurisdiction to adjudicate upon.
See- BEREDUJO VS COLLEGE OF SCIENCE AND TECHNOLOGY (SUPRA).

Also, it would be necessary to closely look at paragraphs 22, 23, 24 and 29 of the Statement of Claim set out as follows: –
Paragraph 22:
“The plaintiffs aver further that it is the tradition and custom of Agbadamu family that the reigning Sao had a duty to hold and keep the family properties, documents and landed property in custody for the family and that after his death such materials, records are automatically passed on to the next Sao (reigning Sao) for safe keeping for the family and or during a long interegnum to the most elderly leader of the family.”
Paragraph 23:
“The plaintiffs plead that Sao Ojo Adeyeri for the period he was in office held and kept the following family property and materials for the Sao Agbadamu family viz family minutes books, family history books, the survey and layout of the family land in the case of Sao Agbadamu and Onileke Vs Asamo family, family bank pass book, the Ajakaiye Chieftaincy report and the Akodi family land.”
Paragraph 24:
“The plaintiffs plead further that after the demise of a reigning Sao, the biological children of the Sao would vacate the Sao Akodi (palace) for their private residence and return the Akodi (palace) and other family property records and documents (sic) the Agbadamu family.
Paragraph 26:
“The plaintiffs plead further that their family is entitled to all rent paid on the family property since 1998 till the date of the court judgment.”
Paragraph 29:
“the plaintiff plead further that the defendants had failed and or neglected to return to Sao Agbadamu family all the family materials and property that their late father Sao Adeyeri held in trust for the Agbadamu family during his reign as Sao.”
A careful examination of the above paragraphs of the Statement of Claim of the Appellant at the lower court would reveal that the property under consideration is a trust properly kept on behalf of the family. This is provided for under Section 19(1) of the Limitation Law of Ondo State applicable to Ekiti State which provides as follows: –
“No period of limitation prescribed by this law shall apply to an action by a beneficiary under a trust, being an action –
(a) In respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy or
(b) to recover from the trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use.”
See the case of: – OJEME Vs OJEME (SUPRA).
The claim is for account on the Akodi landed property which the late father of the Respondents held as a trust property.

It would also be necessary to examine the claim of the Appellants in order to determine jurisdiction. Paragraphs 1, 12, 27, 28, 29, 30 and 31 of the statement of claim filed on 12th January, 2007 is relevant and they are set out as follows:-
Paragraph 1:
“The Plaintiffs are all descendants of the late Sao Agbadamu dynasty/family of Uro Quarters in Ikere-Ekiti”
Paragraph 12:
“The Plaintiffs plead further that the Sao Akodi (palace) had been from time immemorial till today remains the bonafide common and communical property of the descendants of Sao Agbadamu”
Paragraph 27:
“The Plaintiffs plead further that after the death of Sao Adeyeri his sons and daughter (defendants) wrongly claimed ownership of the family Akodi which the Agbadamu family vehemently opposed and rejects such illegal claims”
Paragraph 28:
“The Plaintiffs aver that the Defendants have no exclusive customary nor legal right and or claim over the Sao Agbadamu family land, the Akodi building, the family property and the records in dispute’
Paragraph 29:
“The Plaintiffs plead further that the Defendants had failed and or neglected to return to Sao Agbadamu family all the family materials and property that their late father, Sao Adeyeri held in trust for the Agbadamu family during his reign as Sao.”
Paragraph 30:
“The Plaintiff aver that the defendants had denied them of their right to the land in dispute since 1998 and also had refused access to their family property by the defendants since 1998 when Sao Adeyeri died and consequently suffered a lot of inconvenience, frustration and embarrassment which cannot be adequately compensated in monetary terms/evaluation”
Paragraph 31:
“The Plaintiffs plead that the defendants through their letter dated November 15 2005 clearly admitted that “indeed there was at the time of the installation of our clients father as the Sao and till now in existence the communal OKODI known and referred to as OKODI SAO AGBADAMU”
The cause of action arose in 1998 when the Respondents denied the Appellants right of access to their family property upon the death of Sao Adeyeri who is the Respondents’ late father.
The period between 1998 and 2007 when the action was commenced is about 9 years i.e. 3 years short of the statutory period of 12 years required by limitation law of Ondo State applicable to Ekiti State.
See the following cases:-
– P.A.S. & T.A. LTD VS BABATUNDE (SUPRA)
– EGBE VS ADEFARASIN (1987) 1 NWLR PART 47 PAGE 1.
– KADZ INT’L LTD VS KANO TANNERY CO LTD (SUPRA)
– ENEMUO VS DURU (SUPRA)
– INEGBEDION VS SELO – OJEMEN (SUPRA)
– UMANAH VS ATTAH (SUPRA)
Section 22 of the limitation Law of Ondo State as applicable in Ekiti State provides as follows:-
“Whereas there has accrued any right of action (including a foreclosure of action) to recover land or any right of a mortgagee of personal property to bring a foreclosure as action in the respect of the property and
(a) The Person in possession of the land or Personal property acknowledges the title of the person to whom the right of action has accrued ……………The right shall be deemed to have accrued on and not before the date of the acknowledgment or payment.”
In view of the foregoing since the ownership of the properly was not conceded to the Respondents at anytime by the Appellants who vigorously challenged the administration of the Respondents’ late father of Appellants’ Sao Agbadamu family properly. Therefore the claim of the Appellants is not statute barred but continuous since according to paragraph 30 of the statement of claim after the death of the Respondents’ father, the appellants’ access to their property was denied them by the Respondents, which led to the present action.
See the following cases:-
– OGBAH Vs B.D.U. (SUPRA).
– OYEBANJI VS LAWANSON (2008) 15 NWLR PART 1109 PAGE 122 At 138 PARAGRAPHS A-B.
– ADEPOJU VS OKE (1999) 3 S.C. PAGE 28 at 35 PARAGRAPH 15
This issue is therefore resolved in favour of the Appellants.

ISSUE B:
“Whether the point of law raised and canvassed by Respondents was properly raised.”
The learned Counsel for the Appellants stated that the point of Law raised by Learned Counsel for the Respondent as regards the statute of Limitation was not raised in the statement of defence filed on 6th November, 2007.
He submitted that this is contrary to provisions of Order 25 rule 6(1) of Ondo State Rules of the High Court Civil Procedure Rules as applicable in Ekiti State.
He submitted that for the respondents’ to succeed they must plead relevant facts as to statute of limitation to which evidence must be led and having failed to do so the objection has been rendered null and void,
The Learned Counsel for the Respondents in his response submitted that the appellants were not taken by surprise.
He stated that the appellants have sufficient notice for the objection, It was also argued on behalf of the Respondents that the submission that statute of Limitation should be pleaded if not mandatory.
He therefore urged that the issue be resolved in favour of the Respondents’
Order 25 rule 6(1) and (2) of the Ondo State High Court Civil Procedure Rules applicable in Ekiti State provides thus:-
“6 (1) a party shall plead specifically any matter (for example performance, release, any relevant statute of limitation, fraud or any act showing illegality) which is not specifically pleaded might take the opposite party by surprise.”
The statement of defence filed on behalf of the Respondents at the lower Court on 6th November, 2007 is contrary to the provisions of Order 25 rule 6(1) of the Ondo State High Court Civil Procedure Rules applicable in Ekiti State set out above.
In OYEBANJI Vs LAWANSON (SUPRA) PAGE 133 at PARAGRAPHS A-D, the Supreme Court held as follows:-
“A party wishing to rely on a statute of limitation or the administration of Estate Law must specifically plead same, it is not true therefore that such defence should be left to speculation or inference.”
The failure by the Respondents to plead the statute of limitation in my view has rendered the objection and subsequent ruling of the lower Court null and void and of no effect.
See also the following cases:-
– MBONU Vs NIGERIAN MINING CORP (2006) 13 NWLR PART 998 PAGE 659 at 691 PARAGRAPH G
– FASADE Vs BABALOLA (2003) 11 NWLR PART 830 PAGE 26 at 47 PARAGRAPH E.

In view of the foregoing this Issue B is resolved in favour of the Appellants.
With the resolution of the two issues in this appeal in favour of the Appellants and against the Respondents, this appeal therefore succeeded and it is allowed.
In the result the Judgment of the Lower Court delivered on 29th March, 2011 is hereby set aside and in its place this suit is hereby transferred to the Honourable Chief Judge of Ekiti State who shall reassign the case to another Judge in the State to hear the suit on its merit.
There shall be no order as to costs.

EJEMBI EKO, J.C.A.: I read in draft the judgment just delivered by my learned brother, J.O. BADA, JCA, The facts and arguments canvassed by the parties have been adroitly summarized by my learned brother. I do not, therefore, need to reproduce them. Suffice that I hereby adopt the summary of facts and arguments of the parties as done by my learned brother.
I will place the issues in a reverse order that is:
1. Whether the respondents, as defendants, pleaded the special defence of Limitation before raising his objection based on them.
2. Whether the suit of the Appellants was statute barred.

Order 25 Rule 6(1) of the Ondo State High Court (Civil Procedure) Rules applicable to the instant suit at Ekiti State High Court enjoined a defendant, as the Respondents, to specifically plead limitation as a special defence before he could raise and rely on it at the trial in order not to “take the opposite party by surprise”. The plaintiff has a right not to be taken by surprise. The duty of the defendant in this regard is rooted in audi Alteram partem, one of the cardinal pillars of the principle of fair hearing enshrined in Section 36(1) of the Constitution. See AJILA.V. LAWAL (2005) ALL FWLR (PT. 278) 1158. Over the years the law has fossilized and it is now settled that, a party relying on special defence must plead it specifically before he can lead evidence in support thereof. See ODUMOSU V. A.C.B LTD (1976) 11 SC 55 A,G, ANAMBRA STATE V. ONUSELOGU ENT, (1987) 4 NWLR (PT. 66) 547 FCDA V. NOIBI (1990) 3 NWLR (PT. 138) 270.
The Respondents failed to raise the plea of limitation specifically in their pleadings before they brought a motion raising the preliminary objection to the suit of the plaintiffs, the present Appellants, Since he intended thereby not only to “take the opposite by surprise” and consequently deny them their right to fair hearing, the learned trial judge erred in law to have affirmed that procedure.
Having found that the procedure by which the learned trial judge held that the Respondents, as the defendants, had established their objection to the suit on grounds of the suit being statute barred, is totally flawed; it follows, naturally, that the ruling and orders founded on such a procedure not permitted by law are consequently a nullity. As Lord Denning, MR would put it, you cannot place something on nothing and expect it to stay there. It will collapse. See MACFOY V. UAC LTD (1962) A.C 152 at 160. No legal right accrued to the Respondents from these illegal proceedings. The ruling and orders made on 29th March, 2011 by the trial court are all a nullity.
All I have said entitle me to allow the appeal in its entirety. The appeal, on all the issues canvassed, is allowed by me, as I adopt the judgment of my learned brother, J.O. BADA, JCA just delivered in this appeal including all the consequential orders made therein.

MODUPE FASANMI, J.C.A.; I have read in draft the judgment just delivered by my Lord, J. O. Bada, J.C.A.
By para. 30 of the statement of Claim, the cause of action arose in 1998. The suit was instituted in 2007. It commenced 9 years after the cause of action arose. It is 3 years short of the statutory period required by Section 6 of the Limitation Law of Ondo State as applicable to Ekiti State in land matters not held in trust.
After the death of the Respondent’s father as pleaded in para. 30 of the statement of claim, Appellant’s access to their property was denied and refused by the Respondent’s. That has snow balled into the present action. The action is therefore continuous.
The point of law raised by the Respondent as regards the statute of limitation was not pleaded in the Statement of defence filed same day. This is contrary to the provisions of Order 25 rule 6(1) & (2) of the Ondo State Rules of the High Court as applicable in Ekiti State.
I agree entirely with his reasoning and conclusion that the appeal is meritorious. The appeal succeeds and it is also allowed by me. I abide by the consequential orders contained therein inclusive of costs.

Appearances

Mr. Taiwo OgunmorotiFor Appellant

AND

Mr. Oluwayomi Ojo for the Respondents holding brief for Mr. Olabanjo AyenakinFor Respondent