HON. MINISTER, FEDERAL CAPITAL TERRITORY & ANOR v. J. ALUCON LIMITED & ANOR
(2017)LCN/10013(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 6th day of June, 2017
CA/A/352B/2013
RATIO
LIMITATION LAW: THE EFFECT OF AN ACTION BEING CAUGHT BY LIMITATION LAW
It is trite law that when an action is caught by limitation law such an action is said to be statute barred. A cause of action would be said to be statute barred if proceedings are unable to be brought because the period set down by the limitation law has elapsed. PER ABDU ABOKI, J.C.A.
LIMITATION LAW: THE DUTY OF THE COURT IN CONSIDERING WHETHER AN ACTION TO ENFORCE A LEGAL RIGHT IS STATUTE BARRED
In considering whether an action to enforce a legal right is statute barred, the Court should confine itself to the averment in the writ of summons and the statement of claim which allege the factual situation that gave rise to the cause of action. PER ABDU ABOKI, J.C.A.
PLEADINGS: THE EFFECT OF AN UNCONTROVERTED AVERMENT CONTAINED IN A PLEADING
It is my considered opinion that there is no proper denial of the averment in paragraph 5 of the plaintiff/1st respondent statement of claim by the 3rd defendant/2nd respondent.The law is trite that an uncontroverted averment contained in a pleading is deemed to have been admitted. See the cases of; OKENE VS ORIANWO 1998 9 NWLR PT.556 PG 408. MORENIKEJI VS ADEGBOSIN 2003 8 NWLR PT.823 PG 612. IKPANG VS EDOHO 1978 ALL NLR 196. PER ABDU ABOKI, J.C.A.
LIMITATION LAW: THE POSITION OF THE LAW ON WHEN TIME BEGINS TO RUN FOR THE PURPOSE OF LIMITATION LAW
S.18 (3) of the Limitation Act provides thus; “where a right of action to recover land has accrued, and thereafter before the right of action is barred, the land ceases to be in the adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken into adverse possession.” The word “Ward off” though not defined in the law dictionary, but in my view, it means to try to keep away something or someone from a particular place or thing, or to turn something or someone off from a particular place. In the instant case therefore, with the alleged ward off of the trespass into the disputed plot of land by the Director of land in the year 2000, it is my view that the 2nd respondent ceases to be in adverse possession and the right of action in the instant case shall not be deemed to have accrued in 2000 the trespasser having kept away from the particular place. The Supreme Court in FADARE VS ATTORNEY GENERAL OYO STATE 1982 SC 1 held thus; “Time begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.” (underline mine for emphasis) PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
Between
1. HON. MINISTER, FEDERAL CAPITAL TERRITORY
2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY Appellant(s)
AND
1. J. ALUCON LIMITED
2. DALICE PROPERTY DEVELOPMENT COMPANY LIMITED Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice of the Federal Capital Territory Abuja delivered on the 17th April, 2013 by Sylvanus C. Oriji J.
The 1st respondent was the plaintiff at the Lower Court, while 1st, 2nd Appellants and the 2nd respondent were the 1st, 2nd and 3rd defendants at the Lower Court respectively.
The 1st respondent as plaintiff commenced this suit by writ of summons filed on 27/8/2012 wherein it claimed against the defendants as follows:
“1. A DECLARATION of Court that the plaintiff’s offer of statutory Right of Occupancy granted by the 1st Defendant on the 10/08/1993 over Plot 968, Cadastral Zone BO6, Mabushi District Abuja measuring about 2885m2 is prior in time to the offer of Statutory Right of Occupancy made to one Meritex Limited on the 2/5/1999 through whom the 3rd Defendant derives claim title to plot 968, Mabushi District Cadastral Zone BO6, Abuja.
2. A DECLARATION of Court that it is illegal, fraudulent malicious, capricious and unwarranted for the 1st Defendant to have allocated Plot 968, cadastral Zone BO6 Mabushi
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District Abuja to Meritex Limited from whom the 3rd Defendant claim to derive title without first revoking the plaintiff’s statutory holding in the same plot in accordance with the Law or at all.
3. A declaration of Court that the failure of the 1st Defendant whether by himself or through any of his agents and agencies known as the Federal Capital Territory Administration, the Lands Department or howsoever known to reply the plaintiff’s letter received by the defendant on the 9/05/2000 or inform the plaintiff one month after the plaintiff participated in the Recertification exercise constitute a deliberate refusal and fraudulent concealment of the fact of the allocation of Plot 968, cadastral /one BO6, Mabushi District, Abuja to Meritex Limited from which the 3rd Defendant claim title to Plot 968, Cadastral Zone BO6, Mabushi District Abuja.
4. AN ORDER OF COURT setting aside, rescinding and/or nullifying the statutory Right of occupancy granted to Meritex Limited on the 2/5/99 when the Plaintiffs holding was and is still extant and operative and without any form of revocation or at all.
5. AN ORDER OF COURT directing the 1st and 2nd
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Defendants to accord to the Plaintiff all Land rights and privileges over Plot 968, Cadastral Zone BO6, Mabushi District Abuja including issuing the Plaintiff with the Bills for Ground Rent, Certificate of Occupancy or any other matter relating to the Plot.
6. Exemplary damages of N20,000,000:00 (Twenty Million Naira) only against the 1st Defendant for deliberately failing, refusing and or neglecting to issue the Plaintiff with a search Report which could have revealed to the Plaintiff that his statutory holding in Plot 968, Cadastral Zone BO6 Mabushi District Abuja had been allocated to Meritex Limited.
7. AN ORDER OF COURT granting immediate vacant possession of Plot 968, Cadastral Zone BO6, Gudu District, Abuja measuring about 2885 Sqr. m to the Plaintiff
8. AN ORDER OF COURT directing the 1st Defendant whether by himself or through any of his agents and agencies known as the Abuja Geographic Information Systems (AGIS), the Lands Registry, the Federal Capital Territory Administration, the Federal Capital Development Authority or howsoever known to expunge all traces of Meritex Limited and the 3rd Defendant or any person howsoever, except the
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Plaintiff from the land records of Plot 968, Cadastral Zone BO6, Mabushi District, Abuja.
9. Damages of N20,000,000:00 (Twenty Million Naira) only against the 3rd Defendant for trespass to land.
10. Cost of this action.”
Upon service on the 3rd defendant (2nd respondent), it entered a conditional appearance and subsequently filed a notice of preliminary objection to the jurisdiction of the trial Court which objection it founded on seven grounds as set out in pages 59-60 of the printed record.
The preliminary objection was heard by the trial Court on 14/02/2013. The trial Court in its ruling dismissed the notice of preliminary objection, it held inter alia as follows;
“…From all I have said and for the avoidance of doubt, my decision is that the plaintiff’s cause of action accrued in 2011, It did not accrue on 26/6/2000. Assuming it accrued on 26/6/2000 as argued on behalf of the 3rd defendant, the cause of action was deemed not to have accrued by virtue of Section 18 (3) of the Limitation Act by reason of the fact that the trespass on that date was warded off by the Director of Lands. Also, by reason of the plaintiff’s
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allegation of fraudulent concealment of the cause of action, the period of limitation did not run until 2011 by virtue of Section 57(1) of the said Act. The preliminary objection is hereby dismissed with cost of N5,000.00 to plaintiff payable by the 3rd defendant.”
The Appellants dissatisfied with the ruling of the trial Court filed their Notice of Appeal dated 9th December, 2016 containing two (2) grounds of appeal.
Parties in accordance with the rules of this Court filed and exchanged their respective briefs of argument.
The Appellants from their grounds of appeal distilled two issues for determination of the appeal. The said issues are adumbrated as follows:
1. Whether the learned trial judge was right in holding that the suit was not statute barred? (Distilled from Ground 1 of the Appellant’s notice of appeal?
2. Whether the learned trial Judge was right in not applying the provisions of Section 57 (2) of the Limitation Act (Grounds 2 of the Appellant?s notice of Appeal).
The 1st Respondent in its brief of argument also identified two issues as germane to the just determination of this appeal to wit;
1. Whether a
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trespass pleaded in paragraph 4 and 5 of the statement of claim to have accrued in 2000 which was pleaded in paragraph 5 of the same statement of claim to have been warded off in the same year can form the basis upon which the time limited under Section 15 (2) or Section 7 (4) of the Limitation Act LFN 1990 can be reckoned? Or put in another way, whether by Section 18 (3) of the Limitation Act LFN 1990 the plaintiff/1st respondent is not entitled to take the benefit of an adverse possession in the year 2000 that was warded off in that year?
(This Issue is harvested from Grounds “1” of the Notice of Appeal),
2. Whether there is any averment in the statement of claim that would support the application of Section 57 (2) of the Limitation Act LFN 1990? – This issue is harvested from Ground “2” of the Notice and Ground of Appeal.
While the 2nd respondents in its brief of argument identified lone issue for the determination of this appeal as follows;
Whether or not from the facts and circumstances of this matter, the learned trial judge was right when he held that the 1st respondent’s action was not statute barred? (Distilled from Ground 1 of the
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Appellant?s notice of appeal)
I have carefully perused the grounds of appeal filed and the issues distilled by the parties; it is my view that the two issues as distilled by the appellants are all encompassing and capable of disposing this appeal. Therefore, same are adopted in the determination of this appeal.
ISSUE ONE
Whether the learned trial judge was right in holding that the suit was not statute barred? (Distilled from Ground 1 of the Appellant’s notice of appeal)
Learned counsel for the Appellants in their joint brief of argument submitted that the trial judge was wrong in holding that the suit was not statute barred. He referred the Court to the cases of;
TEXACO PANAMA INC. VS SHELL P.D.C.N LTD 2002 5 NWLR PT.759 AT 241-242.
OCHOGA VS MIL. ADMIN. BENUE STATE 2001 1 NWLR PT.695 570 AT 585-586.
?
He contended that from what the plaintiff/1st responded stated through its solicitor one E. N. Ezeonwuka Esq., at pages 25 and 89 – 90 of the record of appeal it can be seen that the act of trespass was discovered by the plaintiff/1st respondent on 26/6/2000 which is the date when the cause of action arose. He referred the
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Court to Section 15 (2) of Limitation Act LFN Abuja 1990.
He submitted that having regards to the date the writ of summons and the statement of claim, the action for the trespass is statute barred. He referred the Court to Section 7 (4) of the Limitation Act (supra) and paragraphs 4 & 5 of the plaintiff?s/1st respondent statement of claim at pages 7 of the record of appeal.
Learned counsel insisted that the 1st respondent’s claim began to run from 26/6/2000, and the trespass was not warded off by the director of lands making Section 18 (3) of the Limitation Act inapplicable. He referred the Court to the cases of;
LAWANSANDA vs KUKAWA LGA (1991) 2 NWLR PT.174 379 AT 388.
FRED EGBE V. ADEFARASIN (1995) 1 NWLR (PT.3) 559 AT 568 ? 569.
SOSAN VS. ADEMUYIWA (1986) 3 NWLR (PT.27) PG 241 AT 216.
NWADIARO VS SHELL PETROLEUM 1990 5 NWLR PT.150 PG 322.
ADEJUMO VS. GAJI 2001 (1996) 1 NWLR PT.425 PG 436 AT 445.
He submitted that there is no proof of fraudulent concealment, but rather there was resort to speculation, and the effect of the finding of the trial judge and conclusion show a perverse decision. He referred
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the Court to the case of ADIMORA vs AJUFO 1988 3 NWLR PT.80 1 AT 19.
From all the above, learned counsel urged the Court to resolve this issue in favour of the appellants, by holding that the cause of action arose on 26/6/2000 and was statute barred.
Learned counsel for the 1st respondent on the other hand referred the Court to paragraph 4 & 5 of its statement of claim where it pleaded that the trespass it noticed by unknown persons in the disputed plot of land in the year 2000 was warded off by the Director of lands of the appellants. He submitted that the appellants despite the pleading in the said paragraph 5 of the statement of claim and the decision of the Court below still filed its preliminary objection in the Court below.
Learned counsel invited the Court to notice that the appellants made no reference in their argument to paragraph 11 and 12 whereat trespass by the 2nd respondent on the land was pleaded. He referred the Court to ADEGBOYEGA VS AWE 1993 3 NWLR PT.280 PG 224.
He contended that by paragraph 5 of the plaintiff/1st respondent statement of claim, the trespass complained of in paragraph 4 of the same pleading was
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warded off in 2000. He referred the Court also to the case of MULIMA VS USMAN 2014 16 NWLR PT.1432 PG 160 AT 202.
He maintained that assuming without conceding that by paragraph 4 & 5 of the statement of claim adverse possession of the disputed land commenced in the year 2000 and remain till date, the 3rd defendant/1st respondent is not a person in whose favour the period of limitation can run. He referred the Court to Section 18 (1) of the Limitation Act and the cases of;
DABO VS ABDULLAHI 2005 7 NWLR PT.923 PG 181 AT 212.
NIGERIAN ENGINEERING WORKS LTD VS DENAP LTD 2001 18 NWLR PT.746 PG. 726.
He urged the Court to hold that adverse possession even if proved, cannot upset the 1st respondent’s claim to title in the disputed plot as the plaintiff claim is founded on recovery of land and trespass and a person in trespass cannot defeat a good title holder.
Learned counsel for the 2nd respondent on the other hand submitted that having regard to paragraphs 1, 4, 5, 6, 7, 11 and 12 of the statement of claim, together with the 1st respondent’s letter of 17th July, 2000 referred to in paragraph 4 of the plaintiff’s pleadings, the 1st
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respondent knew of the 2nd respondent’s trespass and adverse possession of the land in dispute on 26/6/2000. He referred the Court to the cases of;
OBA J. A. AREMO II VS. S. F. ADEKANYE & ORS 2004 11 MJSC 11 AT 20 ? 21.
SHAMSIDEEN ABOLORE BAKARE VS NIGERIAN RAILWAY CORPORATION 2007 12 MJSC 76 AT 89.
NWADIARO VS SHELL DEVELOPMENT CO. LTD 1990 5 NWLR PT.150 PG 322.
EGBE VS ADEFARASIN 1985 1 NWLR PT.3 PG 549.
DAVIES VS AJIBONA 1994 5 NWLR PT.343 PG.234.
NIGERIAN PORTS AUTHORITY VS LOTUS PLASTIC LIMITED & ANOR 2006 2 MJSC 41 AT 55-56.
He insisted that the cause of action arose on 26th June, 2000 or one week after, in either way the 1st respondent’s action is statute barred. He urged the Court to hold so.
It is trite law that when an action is caught by limitation law such an action is said to be statute barred. A cause of action would be said to be statute barred if proceedings are unable to be brought because the period set down by the limitation law has elapsed.
?
In considering whether an action to enforce a legal right is statute barred, the Court should confine itself to the averment in the writ of
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summons and the statement of claim which allege the factual situation that gave rise to the cause of action.
It is pertinent for me here to reproduce the entire statement of claim filed at the Lower Court for ease of reference;
STATEMENT OF CLAIM
1. The Plaintiff is duly incorporated and upon her application for land in the Federal Capital Territory to expand its business she was allocated by the 1st Defendant the Statutory Right of Occupancy in Plot 968 Cadastral Zone BO6 Mabushi District, Abuja measuring about 2885m2 on the 10th August 1993. The Plaintiff pleads its incorporation certificate and the letter of offer of Terms of Grant/Conveyance of Approval.
2. Within one month of the grant of the Statutory Right of Occupancy over Plot 968 Cadastral Zone BO6 Mabushi District Abuja to the Plaintiff accepted same by completing a standard form for a acceptance issued to the plaintiff by the 1st Defendant’s agents in his agency known as the Federal Capital Territory Administration. The letter of acceptance is pleaded and Notice is given to the 1st and 2nd Defendants to produce same.
4. At the time of the allocation of Plot 968 Cadastral
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Zone BO6, Mabushi District Abuja and till date there has been no infrastructure on the land. When the Plaintiff by its Chief Executive Officer Samuel E. Chukwudi applied for building permits and approvals same could not be approved and the Chief Executive Officer stopped following same up because the entire Mabushi District Abuja was inhabitable by reason of there being nobody within the District.
5. The Plaintiff plead and shall rely on a letter received by the 1st Defendant from the Plaintiff in the year 2000 which letter was not replied to by the 1st Defendant. Notice is hereby given to the 1st Defendant to produce this letter. The aforementioned letter was written by the plaintiff to the 1st Defendant when the plaintiff noticed a trespass on Plot 968, Mabushi District Abuja in 2000 by person(s) which the Plaintiff did not know as at then (now the 3rd Defendant). The trespass was in the nature of clearing the entire land area making up Plot 968, Cadastral Zone B06 Mabushi District, Abuja for purposes of commencing development on the land.
6. Immediately after writing the letter pleaded in paragraph 4 above the Plaintiff took a copy to the
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Director of lands in the Lands Registry of the 1st Defendant and made inquiry to be furnished the person who had trespassed on the Plaintiff?s land but the Director of land informed the Plaintiff that from his records there was no other allocation to the Land but the Plaintiffs and promised the Plaintiff that he was going to ward off the trespass which he did at that time and year.
6. The Plaintiff pleads fraudulent concealment of the fact of the allocation of the Plaintiff’s interest in Plot 968, Cadastral Zone B06, Mabushi District Abuja to one Meritex Limited, through whom or wherefrom. The 3rd Defendant claims her interest in Plot 968, Cadastral Zone BO6, Mabushi District Abuja.
PARTICULARS OF FRAUDULENT CONCEALMENT
a. Deliberate refusal and neglect to reply the plaintiff’s letter of 2000 making inquiries/search on the question whether there is another allocation to Plot 968.
b. Deliberate refusal, failure and neglect to inform the plaintiff that the 3rd Defendant was allocated Plot 968, Cadastral Zone BO6, Mabushi District Abuja.
c. Deliberate failure and neglect to produce and issue the Plaintiff with the certificate
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of occupancy more than one month after the Plaintiff participated in the exercise.
7. The Plaintiff shall contend at the trial that its holding in Plot 968, Cadastral Zone BO6 Mabushi District Abuja is prior to that granted by the 1st Defendant to one Meritex Limited through or from whom the 3rd Defendant claim title to the same plot and the 1st Defendant cannot make or grant a subsequent statutory Right of occupancy in Plot 968, Cadastral Zone BO6, Mabushi District, Abuja or any other plot without first revoking the Plaintiff’s prior interest in accordance with subsisting and extant provisions of the Land Use Act LFN 2004.
8. The Plaintiff avers that due to a downturn in its business fortune and the ill health of its chief Executive officer, the Plaintiff could not participate in the recertification exercise embarked upon or commenced by the 1st Defendant in 2004. In view of the matters stated herein the Plaintiff applied to the 1st Defendant to be allowed to recently ‘show’ her interest in Plot 968 Cadastral Zone BO6, Mabushi District, Abuja and the 1st Defendant through his Department of Land Administration wrote the Plaintiff on the 28/06/2010 allowing the
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Plaintiff to participate in the recertification exercise, out of time. The plaintiff pleads its letter to the 1st Defendant and the 1st Defendant?s reply.
9. The plaintiff avers that because of waiver granted to the Plaintiff by the 1st Defendant to participate in the recertification exercise which waiver the Plaintiff avers constitute a recognition and an affirmation of the Plaintiff’s interest in Plot 968, Mabushi District Abuja, the plaintiff paid a fee of N150,000.00 (One Hundred and Fifty Thousand Naira) only and submitted copies of its title document, particulars of Directors, Certificate of incorporation and other documents to the agency of the 1st Defendant carrying on the recertification exercise known as the Abuja Geographic Information Systems (AGIS). The Acknowledgment for recertification issued to the Plaintiff by the 1st Defendant?s agency, the AGIS is pleaded together with the receipt evidencing the plaintiff’s payment for recertification.
10. The 1st Defendant published in 2004 to the whole world that the recertification exercise was going to be carried out on each applicant’s title for recertification within about one month
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after submission of all the applications documents for recertification but the applicant since 2010 after the Plaintiff submitted its title for recertification to the agency created by the 1st Defendant for the recertification exercise known as the Abuja Geographic Information systems has failed, refused and or neglected to issue the Plaintiff with the Certificate of Occupancy as promised or held out in the Thisday publication aforementioned despite several visit paid by the plaintiff to the 1st and 2nd Defendants recertification office to collect the certificate of occupancy. The Thisday Newspaper publication made in 2004 by the 1st and 2nd Defendant is pleaded and shall be relied on at the trial of this suit.
11. The Plaintiff aver that she was informed of the allocation to Meritex Limited through whom the 3rd Defendant claim title to Plot 968, Mabushi District Abuja on conducting a window search in the agency of the Defendant known as the Abuja Geographic Information Systems (AGIS) in 2011 and equally told that it is, perhaps, because of the fact of the allocation to Meritex Limited that the Certificate of Occupancy in the Plaintiff’s name is not
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ready.
12. The 1st Defendant has trespassed fundamentally into the Plaintiff’s land and built a structure therein the plaintiff hereby plead photographs its Director, Mr. Eze Chukwudi took of the trespass and shall rely on same at the trial of this suit and further put the 3rd Defendant on notice to produce its building permits and approvals which shall show that the 3rd Defendant only commenced and built the trespassory property on the plaintiff’s land in 2011.”
It is not in dispute between the parties that the plaintiff’s/1st respondent action at the Lower Court is for the recovery of the disputed land. See also paragraphs 5, 7 and 8 of the plaintiff’s claims as per the writ of summons at page 3 of the record of appeal.
The appellants’ contention is that having regard to the statement of claim the 1st respondent’s cause of action arose on the 26/06/2000 and not 2011 as ruled by the Lower Court. Therefore, by virtue of Section 15 (2) and 7 (4) of the Limitation Act the 1st respondent/plaintiff’s action in the Lower Court is statute barred.
It is pertinent for me to reproduce the said Section 15 (2a) & 7 (4) of the Limitation Act (supra)
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for ease of reference. Section 15 (2a) provides thus;
“No action by a person to recover land;
(a) shall, subject to Paragraph (b) of this Section, be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it first accrued to some person through whom he claims, to that person…”
while, Section 7(4) of the Limitation Act (supra) provides as follows;
“subject to the provision of Section 8 of this Act, an action founded on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.”
It is not in dispute between the parties that the 3rd defendant/2nd respondent allegedly trespassed into the disputed plot of land in the year 2000. See paragraph 4 of the statement of claim at page 7 of the record. However the plaintiff/1st respondent at paragraph 5 of the same pleadings has pleaded that the alleged trespass by the 3rd defendant/2nd respondent it noticed in the year 2000 was warded off by the Director of lands of the appellants immediately.
?
From the record of appeal it appears that the appellants have not filed
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any pleading. The 3rd defendant/2nd respondent in response to said paragraphs 4 & 5 above at paragraph 6 of its statement of defence pleaded thus;
“The 3rd defendant admits paragraphs 4 & 5 of the statement of claim only to the extent that when in 2000 it cleared the land in dispute, it was really for the purpose of commencing development on the land. Since the 2000 when the clearance was made development commenced, it never stopped until it reached the present level in 2011.”
From the above pleading it is my view that the 3rd defendant/2nd respondent pleading has not answered the point of substance in paragraph 5 of the statement of claim i.e the issue of warding off of the trespass, which the plaintiff/1st respondent pleaded the Director of Lands did.
The position of the law is that when a party denies an allegation he must not do so evasively, but must answer the point of substance i.e the substance of the allegation. In other words it is the gist of an allegation that is denied and not the terms in which it is made. See the cases of;
AKINTOLA VS SOLANO (1986) 2 NWLR (PT.24) PG. 598.
ODIBA VS MUEMUE (1999) 6 SCNJ 245 AT
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253.
It is my considered opinion that there is no proper denial of the averment in paragraph 5 of the plaintiff/1st respondent statement of claim by the 3rd defendant/2nd respondent. The law is trite that an uncontroverted averment contained in a pleading is deemed to have been admitted. See the cases of;
OKENE VS ORIANWO 1998 9 NWLR PT.556 PG 408.
MORENIKEJI VS ADEGBOSIN 2003 8 NWLR PT.823 PG 612.
IKPANG VS EDOHO1978 ALL NLR 196.
S.18 (3) of the Limitation Act provides thus;
“where a right of action to recover land has accrued, and thereafter before the right of action is barred, the land ceases to be in the adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken into adverse possession.”
The word “Ward off” though not defined in the law dictionary, but in my view, it means to try to keep away something or someone from a particular place or thing, or to turn something or someone off from a particular place.
In the instant case therefore, with the alleged ward off of the trespass into the disputed plot
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of land by the Director of land in the year 2000, it is my view that the 2nd respondent ceases to be in adverse possession and the right of action in the instant case shall not be deemed to have accrued in 2000 the trespasser having kept away from the particular place.
The Supreme Court in FADARE VS ATTORNEY GENERAL OYO STATE 1982 SC 1 held thus;
“Time begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed.” (underline mine for emphasis)
In that instant case the plaintiff/1st respondent as at 2000 when it noticed a trespass on the disputed land alleged it did not know as at then the persons who trespassed into the land. At the risk of reputation, the plaintiff/1st respondent at paragraph 4, 5 and 6 of its statement of claim earlier reproduced above pleaded thus:
4. The plaintiff plead and shall rely on a letter received by the 1st Defendant from the Plaintiff in the year 2000 which letter was not replied to by the 1st Defendant Notice is hereby given to the 1st Defendant to produce this letter. The
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aforementioned letter was written by the plaintiff to the 1st Defendant when the plaintiff noticed a trespass on Plot 968, Mabushi District Abuja in 200 by person(s) which the Plaintiff did not know as at then (now the 3rd Defendant). The trespass was in the nature of clearing the entire land area making up Plot 968, Cadastral Zone B06, Mabushi District, Abuja for purposes of commencing development on the land.
5. Immediately after writing the letter pleased in paragraph 4 above, the plaintiff took a copy to the Director of Lands in the Lands Registry of the 1st Defendant and made inquiry to be furnished the person who had trespassed on the Plaintiff?s land but the Director of land informed the Plaintiff that from his records there was no other allocation to the Land but the Plaintiff’s and promised the Plaintiff that he was going to ward off the trespass which he did at that time and year.
6. The Plaintiff plead fraudulent concealment of the fact of the allocation of the Plaintiff’s interest in Plot 968, Cadastral Zone BO6, Mabushi District Abuja to one Meritex Limited, through whom or wherefrom the 3rd Defendant claims her
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interest in Plot 968, Cadastral Zone B06 Mabushi District, Abuja.
PARTICULARS OF FRAUDULENT CONCEALMENT
a. Deliberate refusal and neglect to reply the plaintiff’s letter of 2000 making inquiries/search on the question whether there is another allocation to Plot 968.
b. Deliberate refusal, failure and neglect to inform the plaintiff that the 1st Defendant was allocated Plot 968, Cadastral Zone BO6, Mabushi District Abuja,
c. Deliberate failure and neglect produce and issue the Plaintiff with the Certificate of Occupancy more than one month after the Plaintiff participated in the exercise?.
Therefore, from the above plaintiff’s/1st respondent’s pleadings/averments, it is my view that there is no in existence a person who can be sued as at year 2000 for the time to begins to run for the applicability of statute of limitation.
Also, with the alleged fraudulent concealment of the fact of the allocation of the Plaintiff’s interest in Plot 968, Cadastral Zone BO6, Mabushi District Abuja to one Meritex Limited, through whom or wherefrom the 3rd Defendant/appellant claims her interest in the disputed land, it cannot be said that all
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facts have happened which are material to be proved to entitle the plaintiff to succeed.
At the risk of repetition the trial Court in its ruling held inter alia thus:
“…the plaintiff’s cause of action accrued in 2011. It did not accrue on 26/6/2000. Assuming it accrued on 26/6/2000 as argued on behalf of the 3rd defendant, the cause of action was deemed not to have accrued by virtue of Section 18 (3) of the Limitation Act by reason of the fact that the trespass on that date was warded off by the Director of Lands. Also, by reason of the plaintiff’s allegation of fraudulent concealment of the cause of action the period of limitation did not run until 2011 by virtue of Section 57 (1) of the said Act.”
I have carefully examined the provision of Section 18 (3) of the Limitation Act earlier reproduced in this judgment, the provision of the law is clear and unambiguous. It is my view that the right of action to recover the disputed land in the instant case which accrued in 2000, was warded off before the right of action is barred. Therefore, as rightly held by the trial Court in its judgment the right of action shall no longer be deemed to have
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accrued on 26/6/2000.
Also at paragraph 12 of the plaintiff’s/1st respondent’s statement of claim it pleaded that it was informed of the allocation to Meritex Limited through whom the appellant claim title on conducting a window search in Abuja Geographical Information System (AGIS) in the year 2011. The 3rd defendant/2nd respondent in paragraph 5 of its pleading pleaded thus;
“The 3rd defendant denies paragraph 6, 7, 8, 9 and 12 of the statement of claim and put the plaintiff on the strictest proof thereof.”
Here also there is no proper denial of the averment in paragraph 12 of the plaintiff/1st respondent statement of claim. The 3rd Defendant/2nd respondent did not traverse the facts frontally and directly in answer to the Plaintiff’s averments in paragraphs 12, I have earlier said in this judgment that an uncontroverted averment contained in a pleading is deemed to have been admitted.
Therefore, in view of all I have said above, fresh right of action of the plaintiff/1st respondent is deemed to have accrued in 2011. That is when the plaintiff discovered or became aware that the land is again fraudulently taken into adverse possession.
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This fact is clearly pleaded by the plaintiff/1st respondent in its statement of claim. See paragraph 12 of the pleading at page 9 of the printed record.
This issue is resolve against the appellants.
ISSUE TWO
Whether the learned trial Judge was right in not applying the provisions of Section 57 (2) of the Limitation Act (Grounds 2 of the Appellant’s notice of Appeal).
Learned counsel to the appellants in their joint brief of argument submitted that the trial judge was wrong in not applying the provision of Section 57 (2) of the Limitation Act. The trial judge was also wrong in holding that there is no pleading in the statement of claim upon which the Court would apply the provision of Section 57 (2) of the Limitation Act.
He argued that the statement of claim at page 9 of the printed record stated that the 3rd respondent/2nd respondent bought the land from Meritex limited. Having bought from Meritex limited there is no iota of evidence that the 3rd defendant/2nd respondent was party to any fraudulent concealment. Therefore, failure to apply the provision of Section 57(2) of the Limitation Act was prejudicial to the appellant and resulted
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in substantial miscarriage of justice.
He maintained that the decision of the trial Court was perverse and cannot be supported having regards to the evidence. He urged the Court to set aside such decision. He referred the Court to the cases of;
CHRISTOPHER OKOLO VS EUNICE UZOKA 1978 5 SC 77.
ADIMORA VS AJUFO 1988 3 NWLR PT 80 1 AT 19.
EBBA VS OGODO 1984 1 SCNLR 372 AT 388-389.
FASHANU VS ADEKOYA 1974 1 ALL NLR PT.1 AT 35.
He urged the Court to resolve this issue in favour of the appellants.
The 1st respondent in its brief of argument submitted that the only place this Court can look at to discern whether Section 57 (2) of the Limitation Act can operate in this case is the plaintiff/1st respondent statement of claim.
He maintained that Section 57 (2) of the Limitation Act being an equitable principle is only when a party has filed a defence and proved same that he or she can invoke the defence afforded by the Section 57 (2) supra. He referred the Court to the case of MOHAMMED VS MOHAMMED 2012 11 NWLR PT.1310 PG 1 AT 48.
He insisted that from paragraph 1 to 12 of the statement of defence of the 1st respondent no
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paragraph avers to the fact that the 2nd respondent is a purchaser from Meritex Limited or that the 2nd respondent conducted a search and carried out all necessary due diligence before purchasing the disputed land.
Learned counsel contended that the trial Court was right when it held in its judgment that there is no pleading in the statement of claim by which Section 57 (2) of the Limitation Act supra can be applied. He urged the Court to so hold.
Learned counsel for the 2nd respondent submitted that the trial Court’s finding at pages 138 lines 15-24 of the record is not supported by the 1st respondent’s pleading and is perverse. He referred the Court to the case of OVERSEAS CONSTRUCTION LTD VS CREEK ENTS LTD 1985 2 NWLR PT.13 407 AT 412.
He urged the Court to hold that S.57 (2) is applicable in favour of the 2nd respondent and thereby removing the applicability of Section 57 (1) of the Limitation Act.
?
The general rule is that knowledge of the plaintiff that his right or title to land has been tampered with is immaterial in determining when a cause of action arose. However, there is an exception to the general rule, that exception is where
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there is a fraudulent concealment of the right of action. In such a situation the statute of limitation does not apply so long as the party defrauded remains ignorant of the fraud without any fault of his. See the cases of;
AJIBONA VS KOLAWOLE 1996 10 NWLR PT.476 PG 22.
MULIMA VS USMAN2014 16 NWLR PT.1432 PG 160 AT 202.
In the instant case the 1st Respondent/Plaintiff pleaded fraudulent concealment of his right of action by the appellants. The 1st Respondent/Plaintiff pleaded that its holding/allocation to the plot is prior to the grant by the appellants to one Meritex Limited from whom the 2nd Respondent claim title to the same land.
Also no notice was given for the revocation of its allocation and subsequent re-allocation to one Meritex Limited through whom the 2nd Respondent claims title. See paragraphs 6 and 7 of the statement of claim earlier reproduce in this judgment.
The trial Court in its judgment held that in view of the fraudulent concealment of the right of action by the fraud of the 1st defendant, Section 57 (1) of the Limitation Act applies.
?The appellant on the other hand contended that it is Section 57
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(2) that applies and not Section 57 (1) because it is not the appellant who the 1st respondent is accusing for acting fraudulently.
Here it is pertinent for me to reproduce Section 57 (1a -b) and (2) of the Limitation Act for ease of reference:
“(1) Where, in the case of an action for which a period of limitation is fixed by this Act, either.
a. The action is based on the fraud of the defendant or his agent or of a person through whom he claims or his agent; or
b. The right of action is concealed by the fraud of a person, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.
(2) Nothing in Subsection (1) of this Section shall enable an action to be brought to recover, or enforce a charge against, or set aside a transaction affecting a property which has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that a fraud had been committed.”
The Supreme Court in MULIMA VS USMAN (SUPRA) AT 202-203 Per OKORO, JSC held thus;
“Fraudulent
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concealment includes a situation where a party is entitle to a notice of the happening of an event but such notice was not given to him though the failure to give the notice was not fraudulent but merely an oversight.”
In the instant case the 1st respondent/plaintiff pleaded fraudulent concealment and its particulars at paragraphs 6 of its pleading. The plaintiff only discovered the fraud in 2011 after he was informed of the allocation to Meritex Limted on ducting a window search in the AGIS. See also Sections 28 (1) and (2) and 44 (a) (b) & (c) of the Land Use Act and the case of ADMINISTRATORS/EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA VS. EKE-SPIFF & ORS. 2009 7 NWLR 97 SC; 2009 LPELR-3152 (SC).
In the instant case it is my view that the trial Court rightly applied the provision of Section 57 (1) of the Limitation Act.
Furthermore, I have carefully perused the entire record of appeal and in particular the 1st respondent/plaintiff’s claims against all the defendants at the Lower Court, It is my view that the 1st respondent/plaintiff’s action cannot be said was brought to recover or enforces a charge against the appellant, or set aside
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a transaction affecting the property which the appellant has purchased. Therefore, the said Section 57 (2) (Supra) is not applicable in the instant case.
This issue is also resolved against the appellant.
?
Having resolved all the issues in this appeal against the appellant, the appeal lacks merit and is hereby dismiss.
The ruling of the trial Court is hereby upheld.
TINUADE AKOMOLAFE-WILSON, J.C.A.: I read in draft the judgment just delivered by my learned brother, ABDU ABOKI, PJCA. I am in agreement with the reasoning and conclusion and orders reached therein.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading the Judgment just delivered by my learned brother, Abdu Aboki, PJCA.
I am in total agreement with the reasoning and conclusions arrived at, that this appeal lacks merit.
It is accordingly dismissed by me. I upheld the ruling of the trial Court.
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Appearances:
Kelechi NwaiwuFor Appellant(s)
O. J. Aboje for the 1st respondent.
M. E. Oru. With him, Yauande Savage (Miss,) for 2nd Respondent.
For Respondent(s)
Appearances
Kelechi NwaiwuFor Appellant
AND
O. J. Aboje for the 1st respondent.
M. E. Oru. With him, Yauande Savage (Miss,) for 2nd Respondent.For Respondent
