FRANKLIN AGBAEZE AJA v. CHIKA AJA & ORS
(2019)LCN/12593(CA)
In The Court of Appeal of Nigeria
On Monday, the 28th day of January, 2019
CA/OW/114/2016
RATIO
LIMITATION: PURPOSE OF LIMITATION OF TIME
“For Purposes of the Limitation Law, time begins to run when the cause of action arose. In other words, when there exists a person who can sue and another who can be sued. Moreso, when all the facts have happened, which are material to be proved to entitle the Plaintiff to succeed. See DUZU v. YUNUSA (2010) 10 NWLR (PT. 1201); KANO STATE HOUSE OF ASSEMBLY & ORS v. UMAR (2014) LPLER 24008.” PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
FRANKLIN AGBAEZE AJA Appellant(s)
AND
1. CHIKA AJA
2. OSUNDU AJA
3. AGBAEZE AJA
4. IFEANYI AJA Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Abia State High Court, sitting in Igbere delivered on the 26th of November 2014, in suit No. HIE/11/2009. In the judgment, judgment was entered in favour of the Respondents.
SYNOPSIS OF FACTS
At the court below, the Respondents had claimed against the Appellant the following vide writ of summons filed on the 30th of March 2009 viz:
(a) A declaration of the court that the plaintiffs being the sons of late AMOS AJA are entitled to the ownership of
their father property situate and lying at Umuakpa Item Bende in the Bende Local Government Area of Abia State and traditionally called ‘IGULA’ land and measuring approximately 100ft by 100ft (2 plots) and the duplex therein.
(b) An order of perpetual injunction restraining the Defendant either by himself, his servants, agents or privies from parading himself as the owner of the property (duplex) situate at and lying at Umuakpa Item Bende in the Bende Local Government Area of Abia State and traditionally called ‘IGULA’ land measuring approximately 100ft by 100ft.
(c) An order of perpetual injunction restraining the Defendant either by himself, his servant, agents or privies from alienating, mortgaging or disposing of the property known as and called ?IGULA? land and the duplex therein – pages 1-2 of the Record of Appeal.
SYNOPSIS OF FACTS
The Plaintiffs/Respondents are the children of late AMOS AJA AJA, while the Defendant/Appellant is the brother of the Plaintiffs’ father.
By Deed of agreement dated 15th December 1973, between AGBAM OKEREKE MBA OKEREKE and JOHN CHUKWU (all representing the Umuikwuagwu family of Umuakpa Item) on the one part, and the deceased on the other part, the deceased acquired two plots of land measuring 100ft by 100ft (2plots) traditionally called ‘IGULA’ land situate and lying at Obu-Ohuru Umuakpa Item in Abia State of Nigeria.
The Appellant signed as a witness for the Plaintiffs late father. As at the time of the transaction, the Appellant was residing in the deceased house at Aba and also in the village.
The deceased built a duplex on the said IGULA land and in order to encourage the Appellant, he told him to go live in the duplex. But the Appellant has been parading himself as the owner of the land ‘IGULA’ as well as the said duplex built on it. Furthermore, he has put the building up for sale.
The Appellant is dissatisfied with the judgment of the Court below and has appealed against it. Pursuant to the Practice Direction of this Honourable Court, he filed a Notice of Appeal on the 28th of January 2016 with five (5) Grounds of Appeal.
The Appellant filed his brief of argument on the 30th of October 2017. It is settled by Dr. C. O. Chijioke.
The Respondents’ brief of argument was filed on the 9th of February 2018, but same was deemed filed on the 30th of May 2018. It is settled by L. O. Oti Esq.
On the 6th day of November 2018, the parties adopted their respective briefs of argument.
The Appellants distilled three (3) issues for determination from the Grounds of Appeal. They are: –
1. WHETHER THE ACTION WAS NOT STATUTE BARRED.
2. WHETHER THE TRIAL COURT WAS RIGHT TO HAVE HELD THAT THERE WAS NO TRANSFER OF TITLE BY THE CLAIMANTS? FATHER TO THE RESPONDENT/APPELLANT.
3. WHETHER THE TRIAL COURT WAS RIGHT NOT TO HAVE CONSIDERED THE DEFENCE OF PROPRIETORY ESTOPPEL RAISED BY THE DEFENDANT/APPELLANT.
The Respondents proffered three (3) issues for determination. They are: –
1. WHETHER THE ACTION WAS NOT STATUTE BARRED.
2. WHETHER THE TRIAL COURT WAS RIGHT TO HAVE HELD THAT THERE WAS NO TRANSFER OF TITLE BY THE CLAIMANTS? FATHER TO THE RESPONDENT/APPELLANT.
3. WHETHER THE TRIAL COURT WAS RIGHT NOT TO HAVE CONSIDERED THE DEFENCE OF PROPRIETORY ESTOPPEL RAISED BY THE DEFENDANT/APPELLANT.
The Respondents’ issues for determination is an adoption of the Appellant’s issues for determination, and I shall consider this appeal based on the Appellant’s issues for determination.
ISSUE NO 1.
The Appellant submits that the suit, the subject matter of this appeal is statute barred and that the Court below should have held so. Submits that the cause of action pertain to land, and by virtue of the Provisions of Section 3 of the Limitation Law Cap 114, Abia State Laws of Abia State Vol. 5, 2005, the action is statute barred. He submits that the Respondents had made a case that the Appellant paraded himself as the owner of the house in issue and put up the building for sale. No date was given when the Defendant started laying claim to the house or put it up for sale. The 1st Claimant alleged that a cousin told him that prospective buyers were coming to inspect the house in February 2009.
But that the Claimant have been unable to show that the house was built by their father and let to the Appellant to live temporarily.
That where the statement of claim does not provide a guide to the determination of when a cause of action accrued, recourse would be had to the evidence led by the parties at the trial, citing U.T.A. FRENCH AIRLINES V. WILLIAMS (2000) 14 NWLR (Pt 687) 271, AMADI v. MIL. ADM. IMO STATE (2000) 14 NWLR (Pt 625) 328.
He submits that parties were in agreement that the two buildings on the land were erected in 1983 and 1986 respectively. Therefore, he submits, the cause of action arose in 1983 and the Claimants became aware of it in 1983. That the suit, the subject matter of this appeal was instituted on the 30th of March 2009, a period of twenty-six years after the Appellant built the house in issue. That the action became statute barred MUEMUE v. GAJI (2001) 2 NWLR (PT. 697) 289; AJAYI v. ADEBIYI (2011) 11. NWLR (PT. 1310) 137 @ 169 – 170.
ISSUE NO 2
He submits that there is evidence by the Appellant and his witnesses that the father of the Respondents transferred title to him. That this piece of evidence is not cogent enough to contradict the documentary evidence produced by the Respondents, as documentary evidence is always preferred to oral evidence. Submits that the Court below misconstrued Exhibit A – as a title deed and relied heavily on it, thereby arriving at a wrong legal conclusion.
That the said document, not having been registered as required by Section 15 of the Lands Instrument Registration Law, Cap 108, Laws of Abia State 2005, is incapable of conveying title to land. Not having been registered, it is only a purchase receipt, citing TEWOGBADE v. OBADINA (1994) 4 NWLR (PT. 338) 326 @ 356; IKONNE v. WACHUKWU (1991) 2 NWLR (PT. 172) 214.
That where parties have embodied the terms of their agreement in a written document, extrinsic oral evidence is not admissible to add to, vary, subtract from, or contradict the contents of that document. That this does not prohibit an opposing party from cross examining on the documents, or adducing documentary evidence to contradict and render such document unreliable. The rule is concerned with a party who is privy to the document, he submits citing KOIKI v. MAGNUSSON (1999) 8 NWLR (PT. 615) 491; INWELEGBU EZEANI (1999) 12 NWLR (PT. 630) 266.
Submits that the Appellant did not just adduce oral evidence but documentary evidence to show that Exhibit ‘A’ is no longer subsisting. Exhibit ‘A’ has been superceded by Exhibits ‘D’ and ‘E-E7’ tendered by the Appellant, and admitted without objection. Submits that these exhibits should have been ascribed weight over and above Exhibit ‘A’ by the Court.
Submits that unchallenged evidence amounts to admission and must be acted upon by the Court . citing F.C.D.A. v. NZELU.
He submits that when Exhibits ‘D’ and ‘E-E7′ are considered together with the viva voce evidence of the Appellant, on the gift of the land to him, his introduction to the original land owner, and the overt acts of the Claimants father of allowing him to build on the land, there is no doubt that the Appellant led cogent and credible evidence establishing that the Claimants’ father transferred the land to him, who is the only brother.
He submits that the parties transaction was customary in nature, and that there is no need for strict application of English Rules.
He submits that documentary evidence is unknown to native law and custom citing OLUBODUN v. LAWAL (2008) ALL FWLR (PT. 434) 1468; OGUNMUYIWA v. ODUKOYA (2009) ALL FWLR (PT. 454) 1526.
ISSUE NO 3.
It is the Appellants contention that he raised the defence of proprietary estoppel in his statement of defence and indeed led evidence to that effect. That the Court below failed to consider this defence, thereby erring in law. That there was nothing to debunk this defence such as trespass, or want of mistaken belief, as such was not considered at all by the Court below.
RESOLUTION OF ISSUES
ISSUE NO 1.
For Purposes of the Limitation Law, time begins to run when the cause of action arose. In other words, when there exists a person who can sue and another who can be sued. Moreso, when all the facts have happened, which are material to be proved to entitle the Plaintiff to succeed. See DUZU v. YUNUSA (2010) 10 NWLR (PT. 1201); KANO STATE HOUSE OF ASSEMBLY & ORS v. UMAR (2014) LPLER 24008.
The question which becomes inevitable in considering this issue is when did the cause of action arise in the suit, the subject matter of this appeal?
The Claimants/Respondents were the Plaintiffs in the Court below.
In paragraphs 9, 10, 11 and 12 of the further amended statement of claim filed on the 8th of July 2014 ? Pages 66-68 of the Record of Appeal. It has this to say:-
PARAGRAPH 9
The Defendant recently has been parading himself as the owner of the land known as ‘IGULA’ land situate at Umuakpa together with the duplex therein and has gone further to put up the building for sale?
PARAGRAPH 10
‘That agents and properties buyers have been visiting the building for inspection’
PARAGRAPH 11
That 1st Claimant was called recently by a cousin of his from the village that prospective buyers and agents will visit the building on a particular day in February 2009 and the 1st Claimant on the said day being Saturday was on ground to see agent with the properties buyers.
PARAGRAPH 12
The 1st Claimant told the properties buyers that they were purchasing at their own risk just because the Defendant is not the owner of the land and building. The properties buyer walked away when the 1st Claimant produced evidence to the effect.
In paragraph 10 of the Defendants? written statement on oath he deposed thus: –
‘That I have not put up my house for sale and do not intend doing so. I was in the cause of my business travelling overseas
In paragraphs 12 and 13 of the Respondents? amended statement of Defence filed in the 20th of November 2013, he averred thus:
PARAGRAPH 12
In further answer, the Defendant states that he has not put up his house for sale and does not intend doing so. The Defendant shall at the trial lead evidence to show that he was an importer as at the time he commenced the building and that his business took him outside the shores of Nigeria
PARAGRAPH 13
The Defendant denies paragraphs 10, 11 and 12 of the statement of claim and shall at the trial put the Plaintiff to the strictest proof thereof. In answering the Defendant states’ that no sane human being would sell his place of abode in the village, especially in view of the fact that the duplex is worth more than N30,00,000.00 (Thirty Million Naira)
The Limitation Law of Abia State 1999 Cap. 24 Vol. ii Law of Abia State of Nigeria, provides for a Limitation period of ten years.
It is apparent that the cause of action in the suit, the subject matter of this appeal, arose in 2009, when the Appellant alleged that the Respondent attempted to sell the land in dispute. This suit was instituted on the 30th of March 2009.
The suit cannot therefore be said to be statute bar and to say so, is a misconception.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 2.
The Respondents had tendered Exhibit A – Deed of Agreement made on 15/12/1973 between one AGBAM OKEREKE, MBAM OKEREKE, JOHN CHUKWU, all of Umuakpa Item acting for themselves as accredited representatives of Umuikwugwu family on the one part and AMOS AJA AJA on the other part. It is the 1st Claimant’s claim that Exhibit ‘A’ was handed over to him by AMOS AJA AJA (his father) in his lifetime. On the part of the Appellant, Exhibits A-H were tendered by him.
A painstaking look at Exhibit, ‘D’ it shows that Exhibit ‘D’- A building plan in respect of the Duplex which the Appellant allegedly said that he built on the land is not dated nor signed. The legal implication of this is that it is of no probative use or value.
The Appellant did concede that the father of the Respondents owned the land in dispute. He sold a portion to Barrister Eke Onuoha but transferred the remaining portion to the Appellant by way of a gift.
The question is whether the Appellant has been able to establish by credible and cogent evidence that the gift was properly disposed of. The Appellant said that the gift was given to him, but who were the witnesses to that transaction?
Exhibit ‘E’- – ‘E7’ are receipts which are more than 20 years old.
I had observed that Exhibit ‘D’was neither signed nor dated; there is no evidence by the Appellant of the gift of the land to him, nor eye witnesses to his introduction to the original land owner. The Appellant has urged in paragraph 3.2.6 of his brief of argument that the entire transaction was customary in nature and that there is no need for strict application of English Rules. He further urges that long and exclusive possession is recognized by law as a way of proving ownership to land without the necessity of producing document of title.
The facts deposed to by the Appellant in his written statement on oath dated 15th June 2010 is instructive.
I shall reproduce paragraphs 10, 11, 12, 13, 14, 15, 16 thereof: –
10. I was living in one room giving to me by the Claimants’ father as my elder brother and the claimants’ fathers’ only brother, from 1970 to 1978 but was fending for myself as I was already doing my own business at that time. I was particularly trading in ‘fancy clothes’ at Kent Street Aba; where I hired a lock up shop. I shall at the trial rely on some of my rent from 1978 to 1983 to show that I was no longer living with the Claimants’ father as at 1978. I will recognize the receipts when shown to me.
11. The Claimants are aware of this fact especially as I took the 3rd Claimant to live with me at No. 6 Igboukwu Street, when the 3rd Claimant was barely six years old and I was responsible for the education of the 3rd Claimant up to Secondary School level. I sponsored the 1st Claimant’s Secondary School Education after which I sent the 1st Claimant to Michigan in the United States of America for further studies. I kept records of the School fees I paid for the 1st Claimant. When the 1st Claimant stopped attending to his studies, I withdrew my sponsorship. I can recognize the said records and correspondences if shown to me.
12. The said Claimants’ father intended erecting a two storey building on the said land and had already registered the building plan before selling the land to me. The town planning authority refused to substitute my elder brother’s name with my name on the said building plan, and as such I had to build the house with the building plan already registered by my elder brother since he transferred the originally copies of the plan to me. I will recognize the building plan as well as the title deed to the piece of land which was also transferred to me, if I see them.
13. The said one room later became insufficient to accommodate my household comprising myself, my wife, my house boy and housemaid, I pleaded with my elder brother (The Claimants’ father) to allow me occupy two rooms at No. 11 Eme Street by Port Harcourt road, Aba, which was a rooming house belonging to my said elder brother, but he refused and therefore I sought and found an alternative accommodation, a three bedroom flat at No. 6 Igboukwu Avenue by No. 149 Port Harcourt Road, Aba, where I stayed until I completed the said two-story building. When my business started thriving, I sought to commence a two storey building on a piece of land I bought at the hinterland of the Port Harcourt road area of Aba but had to first consult with my elder brother (Claimants’ father). Claimants’ father objected to it on security ground contending that the area where the land was situate was still undeveloped, he suggested that I buy his remaining portion of land covered by a deed of lease registered as No. 100 at page 100 in volume 789 at the lands registry at Enugu (Now Umuahia). I shall at the trial rely on the receipt in respect of the piece of land then situated in the hinterland of Port Harcourt Road area of Aba, which is an unregistered deed of sub lease dated the 15th day of March, 1978 and prepared by S. M. OJUKWU ESQ. I shall also rely on a deed of lease dated 25th day of January, 1978 and Registered as No. 77 at page 77 in volume 175 of the Lands Registry in the office at Owerri (Now Umuahia) covering another piece of land which I bought the same year. I can recognize the documents when shown to me.
14. Upon assuming possession of the land I started paying annual rents to the original landowners and also paid property rates to the Government. The receipts of these payments shall be relied upon at the trial and I will recognize them if shown to me.
15. I caused a lawyer relation of ours, Barrister S. K. AJA, to prepare an Irrevocable Power of attorney, which upon presentation to the Claimants? father, he refused to sign stating that there was no need for a fresh document since he had transferred both the land and his title deeds to me and that I, being his only blood brother should not entertain fear of any kind. It was about a month of transferring the original copies of the title deed to the piece of land to me that the Claimants’ father transferred the building plan to me after I told him that I wanted to erect a two storey building on the land.
16.I reported the Claimants’ father refusal to sign the document to both the said lawyer and my elder sister, who asked me not to worry since my brother had no fraudulent intentions. I did not imagine that any of my nephews would rise up one day to challenge my title over the piece of land in issue, especially given my cordial relationship with the Claimants’ father and the fact that all the Claimants benefited from me.
The following facts flow from those paragraphs. They are, firstly, that the Appellant had always been comfortable and was not in dire need of help. Secondly, (words from his lips) he did state that he had helped the Claimant financially and even sent the 1st Respondent out of the country to study. Thirdly, Exhibit A was not signed by the deceased as he refused to. Fourthly there are no witnesses to any of the transaction he had with the Claimants (Respondents) father.
There is, in my view no cogent material to establish that there was any gift given to the Appellant by the Respondents’ father. Date of gift was not stated. Neither is any proof of title transferred to the Appellant by the deceased Amos Aja Aja.
The Court below was right to have held that there was no transfer of title by the Claimants’ father to the Appellant.
This issue is resolved in favour of the Respondents and against the Appellant.
ISSUE NO 3.
Estoppel is a rule that prevents a person to assert the contrary of a fact, or state of things which he formerly asserted by words or conduct. Put in another way, a person shall not be allowed to say one thing at one time and the opposite at another time. Estoppel is based on equity and good conscience, the object being to prevent fraud and ensure justice between the parties, by promoting transparency and good faith. MABAMIJE v. OTTO (2016) 13 NWLR (PT. 1529) Page 171 ratio 4.
Proprietary estoppel was not pleaded by the Appellant. It is apparent that the Appellant did not prove the gift of the said land in dispute to him. There is no part of the land that was proved to have been transferred in implied by the deceased father of the Claimants/Respondents to the Appellant.
The Appellant did not prove title to the land. The defence of proprietary estoppel raised by the Appellant holds no water. Let me reiterate that the Appellant who pleaded that his ownership of the land was as a result of a gift of same by the Respondents late father, failed woefully to prove by way of evidence, the gift. The date of the said gift was not furnished; there was no evidence of the gift or transfer to him.
In the circumstances, the defence of proprietary estoppel cannot stand as you cannot put something on nothing MACFOY v. U. A. C.
This issue is resolved in favour of the Respondents and against the Appellant.
The Appeal fails and same is hereby dismissed.
The judgment of the Abia State High Court, holden at Igbere in suit No. HIG/11/2009, delivered on the 26th of November 2014 is hereby affirmed.
Parties to bear their respective costs, as this matter is a family issue.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had read before now, the leading judgment just delivered by my learned brother Rita N. Pemu, JCA.
I agree with his opinion and reasoning. I also dismiss the appeal. The decision of the Court below is hereby affirmed.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have had the privilege of reading before now the judgment just delivered by my learned brother HON. JUSTICE R. N. PEMU, JCA. I completely agree with her reasoning and conclusions. I have nothing more to add. I adopt her orders as mine.
Appearances:
Dr. C.O. Chijioke, Esq.For Appellant(s)
L. O. Oti, Esq.For Respondent(s)
