KEBBI v. KWARA INVESTMENT PROPERTY DEVELOPMENT CO. LTD (2021)

KEBBI v. KWARA INVESTMENT PROPERTY DEVELOPMENT CO. LTD

(2021)LCN/15091(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Monday, March 22, 2021

CA/IL/68/2019

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Between

ALHAJI DANJUMA ALIU SERIKIN KEBBI (Head Of Family Of Serikin Kebbi) APPELANT(S)

And

KWARA INVESTMENT PROPERTY DEVELOPMENT COMPANY LIMITED RESPONDENT(S)

RATIO

MEANING OF CAUSE OF ACTION; WHAT WILL BE TAKEN INTO CONSIDERATION IN DETERMINING THE PERIOD OF LIMITATION FOR COMMENCING A CAUSE OF ACTION

The law is trite that it is the combination of facts which gives a person a right to judicial relief which is the cause of action. It is the interest and circumstances giving rise to an enforceable claim. See NPA VS. BEECHAM PHARMACEUTICALS PLC (2012) 18 NWLR PT. 1333, PG. 454 PER NGWUTA JSC (of blessed memory) where he stated:- “The phrase “Cause” connotes the totality of all material facts necessary to establish a legal right in a particular case. See also Fadare vs. AG. Oyo State (1980) 4 SC Pag 1. Where Aniagolu JSC held “a cause of action is said to be statute barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed.” How then does one determine the period of limitation? 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 Court a cause of action by comparing that date with the date on which the Writ of Summons was filed. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

IMPORTANCE OF FILED DOCUMENTS

Documents filed are like words uttered and do speak for themselves. They are more reliable and authentic then words from the vocal cord of man as they are neither transient or subject to distortion and misinterpretation but remain permanent and indelible through the ages. See AIKI VS. IDOWU (2006) 9 NWLR PT. 984 PG. 50. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

WHETHER ORAL EVIDENCE CAN BE ADMISSIBLE TO ADD TO, VARY, SUBTRACT FROM OR CONTRADICT THE TERMS OF A WRITTEN INSTRUMENT

The parties in this Appeal made Exhibit B and therefore, it would be binding on them even though it was not registered. The parties’ intendments were reduced into writing and therefore, oral or affidavit evidence cannot be admissible and also cannot be used to explain the contents of such a document. See NNUBIA VS. A.G. RIVERS STATE (1999) 3 NWLR PT.593 PG.82. The general Rule is that where parties have embodied the terms of their agreement or contract in a written document, Extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. See S. 132 (1) of the Evidence Act UBN VS. OZIGI (1994) 3 NWLR PT. 333 PG. 385, KOIKI VS. MAGNUSSON (1999) 8 NWLR PT.615 PG. 492. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

WHAT A CAUSE OF ACTION ENTAILS

A cause of action is therefore, the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to a right to sue as it consists of two elements, viz the wrongful act of the defendant, which gives the plaintiff his cause of complaint, and the consequential damage. See ADESOKAN VS. ADEGOROLU (1997) NWLR PT. 504 PG 237, AJAYI VS. MILAD ONDO STATE (1997) 5 NWLR PT. 504 PG 237, RHEIN MASS UND. SEE GMBH VS. RIVWAY LINES LTD (1998) 5 NWLR PT. 549 PG 265, EMIATOR VS. NIG ARMY (1999) 12 NWLR PT. 631 PG 362, AGBANELO VS U.B.N. LTD (2000) 4 SC PT. 1 PG 233, ODUTAN VS. AKIBU (2000) 7 SC PT. II PG. 106, MESSRS NV SCHEEP VS. THE M.V. “S.ARQZ” (2000) 12 SC PT. 1 PG 164. A cause of action is the factual situation which a plaintiff relies upon to support his claim, recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. The factual situation must, however, constitute the essential ingredient of an enforceable right as claimed. See ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR PT. 971 PG 595; MOBIL OIL PLC VS. D.E.N.R LTD (2004) 1 NWLR PT. 853 PG. 142; NICON INSURANCE COMPANY VS. OLOWOFOYEKU (2006) 5 NWLR PT. 973 PG. 244. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

POSITION OF THE LAW WHERE A MATTER IS DECIDED ON AFFIDAVIT EVIDENCE

The law is that in a matter decided on affidavit evidence, the depositions stand or take the place of oral evidence NWOSU VS INEC (2019) LPELR 48396. In SHITTA-BEY VS. A.G.F. (1998) LPELR 3055. ONU JSC (of blessed memory) held following NNAEMEKA AGU JSC in NWOSU VS. IMO STATE ENVIRONMENTAL AUTHORITY: “Evidence by affidavit is, it must be noted a form of evidence. It is entitled to be given weight where there is no conflict.” However, in this case there is conflict with the Writ and Statement of Claim. Affidavit is a factual statement which the maker or deponent swears to the best of his knowledge, information and belief. It is thus a documentary evidence of the facts deposed to therein. See JMG LIMITED VS. ISRAEL (2020) LPELR 50585, JOSIEN HOLDINGS LIMITED VS. LOCNAMEAD LIMITED (1995) 1 NWLR PT. 371 PG. 254, BUSARI VS. OSENI (1992) 4 NWLR PT. 237 PG. 557; ZENITH BANK PLC VS. BANKOLANS INVESTMENT LIMITED (2011) LPELR 9064. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

IMPORTANCE OF DETERMINING WHETHER OR NOT A SUIT DISCLOSES A CAUSE OF ACTION BEFORE THE CONSIDERATION OF THE WEAKNESS OF THE PLAINTIFF’S CASE

The law is that the Court must not take into consideration the weakness of the plaintiff’s claim before determining whether or not a suit discloses a cause of action. What is important is for the Court to examine the averments in the pleadings to see if they disclose some cause of action or raise some questions which are fit to be decided by it. See NICON INSURANCE COMPANY VS. OLOWOFOYEKU (SUPRA) MOBIL OIL PLC VS. D.E.N.R.LTD (SUPRA). PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

WHEN DOES A CAUSE OF ACTION ARISE

It is true also that a cause of action arises on the date of the event whereby the cause of action becomes complete so that the aggrieved party can begin and maintain his action. See SHELL PET. DEVELOPMENT COMPANY (NIG) LTD VS. FARAH (1995) 3 NWLR PT. 382 PG. 148; ALESE VS. ALADETUYI (1995) 6 NWLR PT. 403 PG. 527, ADEOSUN VS. JIBESIN (2001) 14 WRN PG. 106. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

MEANING OF A REASONABLE CAUSE OF ACTION

A reasonable cause of action is a cause of action with a chance of success. See COMBINED TRADE LTD VS. ALL STATES TRUST BANK LTD (1998) 12 NWLR PT 576 PG. 56, DANTATA VS. MOHAMMED (2000) 5 SC PG. 1. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

DUTY OF THE COURT WHERE THERE IS A FAILURE TO DISCLOSE REASONABLE CAUSE OF ACTION AGAINST A PARTY

Where there is a failure to disclose reasonable cause of action against a party, the Court is obliged to strike out the case against the party. See ABUBAKAR VS FALOLA (1997) 11 NWLR PT. 530 PG. 638. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

WHEN DOES TIME BEGIN TO RUN FOR THE PURPOSES OF THE LIMITATION LAW

Time began to run for the purposes of the Limitation Law from the date the cause of action accrued. See BRITISH AIRWAY PLC VS. AKINYOSOYE (1995) 1 NWLR PT. 374 PG. 722; SHELL PET. DEVELOPMENT COMPANY (NIG.) LTD VS. FARAH (SUPRA); JALLCO LTD VS. OWONIBOYS TECHNICAL SERVICE LTD. (1995) 4 NWLR PT. 391 PG.534; ASABORO VS. PAN OCEAN OIL (NIG.) LTD (2006) 4 NWLR PT. 971 PG. 595. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

EFFECT OF AN ACTION INSTITUTED AFTER THE EXPIRATION OF THE PRESCRIBED PERIOD

Where a Statute of Limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute barred. OGUNKO VS. SHELLE (2004) 6 NWLR Pt. 868 Pg.17; Osun State Governor vs. Dalami (Nig.) Ltd. (2007) ALL FWLR Pt. 365 Pg438. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Kwara State delivered on 25th of November, 2018 by Hon. Justice A. S. Oyinlola. The Appellant in this appeal was the Claimant at the trial Court, whilst the Respondent herein was the Defendant. The Claimant brought a writ under the UNDEFENDED LIST PROCEDURE and claimed the sum of One million, nine hundred thousand (N1,900,000.00) naira. In support of this writ, the Claimant filed a 21 paragraphs affidavit on which he relied on. Also filed and attached to the affidavit were Exhibit A, a letter to the Respondent and Exhibit B an agreement between the parties. The Claimant as deposed to in the affidavit claimed that the Defendant had bought a large expanse of land from the family. He also claimed that they kept One million, nine hundred thousand (N1,900,000.00) naira in the Respondent’s custody for any claim by their previous buyers. The sale to the Respondent was in 2005.

The time limit the Appellant gave for adverse claimants to the land was up until 31st December, 2007. The Appellant also deposed that there was no

adverse claims up until 31st December 2007.

On 6th day of September, 2017, the Appellant wrote the Respondent demanding the refund of the claimed One million, nine hundred thousand (N1,900,000.00) naira. When the Respondent refused to pay, the Appellant filed this suit against the Respondent for its refund.

At the inception of the suit, the Respondent filed its notice of its intention to defend the suit and sought inter alia that there was no reasonable cause of action. The Court suo motu also requested parties to address it on his jurisdiction to adjudicate since the writ seemed to be statute barred.

Parties addressed the Court on the issue of statute barred and the Court held inter alia that the writ was statute barred and that there was no reasonable cause of action. The judgment irked the Appellant hence this appeal.

The Appellant filed its notice and 9 grounds of Appeal on 25th November, 2018. The Appellant filed his Appellant’s brief on 12th November, 2019. The Appellant’s Reply brief was filed on 8th February, 2021. The Appellant in its brief articulated two (2) issues for determination as follows:

“Whether the trial Court was right to have struck out the case of the appellant for not disclosing a cause of action rather than transferring same to the general cause list, when same was brought under the undefended list procedure.”
2. “Whether the decision of the trial Court that the cause of action arose in 31st December, 2007 or 1st January, 2008 and as such statute barred; and subsequently referring to Order 56 Rule 11 and Order 1 Rule 2 to dismiss the suit when there was no lacuna in the Rule or whether it is not perverse and occasioned a miscarriage of justice.

The Respondent filed its Respondent’s brief on 26th November, 2020 and deemed properly filed and served on 2nd February, 2021. The Respondent also articulated two (2) issues for determinations thus:
1. “Whether the trial High Court was not right when it struck out the Appellant suit for not disclosing a reasonable cause of action in the circumstance of this case.”
2. “Whether the trial High Court was not right when it dismissed the Appellant suit for being statute barred in the circumstance of this case.

The two issues articulated by both parties are very similar however, I will utilize the issues articulated by the Appellant, the aggrieved. Both issues for determination border on the jurisdiction of the Court to adjudicate. One is on statute barred and the other is on whether there is a reasonable cause of action.

ISSUE 1
Learned Counsel for the Appellant referred the Court to Order 23 Rule 1 and 3 of the Kwara State High Court (Civil Procedure Rules) 2005 which provides as follows:
“Where a claimant files a writ of summons endorsed with a claim to recover a debt or liquidated money demand only and the writ is supported by affidavit setting forth the grounds upon which the cause of action is based and stating that in the deponent’s action there is no defence to the action, the judge shall if satisfied that there are good grounds for believing that there is no defence thereto, enter the suit for hearing in what shall be called the “undefended list” and cause the writ of summons to be marked accordingly, and enter thereon a date for hearing.”
“Where leave to defend is given under this rule, the action shall be removed from the

“undefended list” and placed on the ordinary cause list; and the Court may order pleadings or proceed to hearing without further pleadings.”

Counsel submitted that the Appellant’s suit disclosed a reasonable cause of action – AIYELABEGAN VS. L.G.S.C. ILORIN KWARA STATE ALL FWLR PT. 802 PG. 1701, TEIBOGREN VS. GOVERNOR DELTA STATE (2015) ALL FWLR PT. 764 PG. 5, S.W. GRAVE HOLDINGS INC VS. FEDERAL GOVERNMENT OF NIGERIA (2013) ALL FWLR PT. 659 PG. 1053 where the Supreme Court defined Cause of action:
“A cause of action is the entire set of facts or circumstances giving rise to an enforceable claim. It includes all those things necessary to give right of action and every fact which is material to be proved to entitle the plaintiff to succeed.”

Counsel argued that in determining a cause of action the Court is only to make reference to the Statement of Claim and in this suit the affidavit in support of the writ plus the Exhibits attached. See 7UP BOTTLING COMPANY LIMITED VS. ABIOLA AND SONS BOTTLING COMPANY LIMITED (2001) 13 NWLR PT. 730 PG. 469.

Counsel further submitted that the learned trial Judge ought not to

look at any other document to determine whether the suit discloses a reasonably Cause of action except the Writ and the Statement of Claim.

The Learned trial Judge ought not to have looked at or considered the Respondent’s intention to defend at this stage.

Counsel re-iterated that the trial Judge had no right to strike out or dismiss this suit brought under the undefended list procedure. Furthermore, Counsel argued that the Respondent did not disclose any defence on the merit that would enable the trial Judge to transfer this suit to the General Cause List. See ACB LIMITED VS. SONEB ENTERPRISES LIMITED (2010) 4 NWLR PT. 1185 PG. 561, JINL VS. O.T.C.N. (2015) ALL FWLR PT. 788 PG. 835.

Counsel conceded that the Appellant did not attach the agreement where the sum owed was embodied. Counsel urged the Court to resolve this issue in favour of the Appellant.

In response, the learned Counsel to the Respondent re-iterated that in determining whether the Plaintiff had disclosed a reasonable cause of action reference would be made to the Writ and Statement of Claim and Exhibits if any. See the case of COOKEY VS. FOMBO (2005) 15 NWLR PT. 947 PG 182 where the Court held:

“A cause of action is the bundle or aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make the claim for the relief or remedy being sought. Thus, the factual situation on which the plaintiff relied to support his claim must be recognised by Law as giving rise to a substantive right capable of enforcement or being claimed against the defendant.” See Ogbimi v. Ololo (1993) 7 NWLR (pt. 304) 128.”

A claimant will only succeed where his claim discloses a reasonable cause of action N.P.A. PLC vs. S.E.S. Limited (2016) 17 NWLR Pt. 1541 pg. 191 where the Supreme Court held as follows:
“Cause of action has been identified in numerous cases. It simply means the aggregate of facts and circumstances which entitles a person to judicial redress or remedy against another person.
It is the factual situation which if substantiated or established entitles the plaintiff to a remedy against the defendant.”
Bello vs. A.G. Oyo State (1986) 5 NWLR Pt. 45 Pg. 828.

Counsel referred the Court to the affidavit in support of the Appellant’s claim and

stated that there is no evidence to support the assertion that goods were supplied to the Respondent by the Appellant. Exhibit B attached to the affidavit showed that it contained no obligation as to payment of compensation to adverse claimants. The Affidavit made reference to Exhibit B and made it the fulcrum of the instant appeal.

Counsel referred the Court to Section 128 of the Evidence Act 2011 and emphasised that once an agreement has been reduced into the form of a document as in Exhibit B, oral evidence will be inadmissible to alter, contradict, or add or vary the content of the document.

The Appellant also conceded that he failed to attach the document wherein his claim is anchored. See MBANEFO VS. AGBU (2014) LPELR 22147. Counsel submitted that the Appellant deliberately withheld the purported agreement. Counsel urged the Court to invoke the provision of Section 167 (d) Evidence Act against the Appellant.

Learned Counsel submitted further that contrary to the Appellant’s brief the depositions in paragraphs 5 – 15 has no foundation in Exhibit B, which is the fulcrum of the Appellant’s claim. Counsel argued that the

learned trial Judge only made reference to the notice of intention to defend for purposes of determining whether there was a defence on the merit in the words of the trial Judge as follows:
“In revisiting the already reproduced Paragraph 8 of the Affidavit in support of the Notice of Intention to defend, it is my decision and very firm one if I must declare that it constitutes a Defence on the merit and a Defence which neutralizes completely the case of the Claimant so much so that Exhibit B was demonstrated to be useless to the point that the Learned Counsel for the claimant has to admit that Exhibit B was not the real agreement that ought to be attached to the Affidavit in support of the Writ of Summons.”

Counsel also argued that questions on jurisdiction of the Court can be raised at any time during trial. See PETROJESSICA ENTERPRISE LIMITED VS. LEVENTIS TECHNICAL COMPANY LIMITED (1992) 6 SC PT. 11 PG. 1, KATTO VS C.B.N. (1991) PT. II – 12 SC PG. 176, NDIC VS. C.B.N (2002) 7 NWLR P.766 PG. 272.

Counsel finally urged the Court to resolve this issue in favour of the Respondent and hold that the Appellant had not disclosed a

reasonable cause of action. See AIYELABEGAN VS. L.G.S.C, ILORIN KWARA STATE (SUPRA), ODUNTAN VS. AKIBU (2000) FWLR PT. 12 PG. 1980, EGBE VS. ADEFARASIN (NO. 2) (1987) 1 NWLR PT. 47 PG. 1.

In reply, the learned Counsel to the Appellant submitted that the Respondent did not controvert the facts in the Affidavit in support. Any averment in the Affidavit not denied is deemed to be admitted. See ADEBIYI VS. UMAR (2012) LPELR 7998. The Court is bound, Counsel argued that by law Affidavit evidence is already admissible before the Court and the Court is bound to use and act upon it, once it is not challenged or rebutted and credible. See BABA VS. N.C.A.T.C. (1991) 7 SCNJ PG. 1; NZERIBE VS. DAVE ENGINEERING COMPANY LIMITED (1994) 9 SCNJ PG. 161; OYEWOLE VS. AKANDE (2009) ALL FWLR PT. 491, PG. 813; AJOMALE VS. YADUAT (1991) 5 SCNJ PG. 178. In MAGNUSSON VS. KOIKO (1993) 12 SCNJ PG. 114. The Supreme Court held:
“Averments of facts on pleadings must be distinguished from facts deposed to in affidavit in support of application before Court, whereas the former, unless admitted, constitutes no evidence, the latter are, by law, evidence upon which a Court of law

may, in appropriate cases act”. Also by rules of practice, “it is now settled law that an affidavit evidence constitutes evidence and any deposition therein unchallenged is deemed admitted.”
See H. S. ENGINEERING LIMITED VS. S. A. YAKUBU LIMITED (2009) PG. 179 LRCN PG. 134; DOGARI VS. ATTORNEY-GENERAL TARABA STATE.

Counsel argued further that with Exhibit A alone, the Appellant had disclosed a reasonable cause of action. See MODIBBO VS. HAMMANJODA (2014) LPELR 24184.

Counsel finally urged the Court to resolve this issue and hold that the Appellant had disclosed a reasonable cause of action.

ISSUE 2:
Appellant’s Counsel submitted that the final date for adverse claims on the Appellant was 31st December, 2007. However, the Appellant’s Counsel stated that the cause of action accrued only when the Appellant made a demand on the Respondent and he refused to refund the money in 2017. See OSIGWE VS. PSPL’S MANAGEMENT CONSORTIUM LIMITED (2009) 3 NWLR PT. 1128, PG. 378; WILLIAMS VS. WILLIAMS (2008) 4 – 5 SCPT. II, PG. 253.

Counsel argued that time started to run when Exhibit A was written and the Respondent refused to refund the money.

Counsel referred to Order 25 Rule 1 – 5, Order 1 Rule 2 and Order 56 Rule 11 of the Kwara State High Court (Civil Procedure) Rules. Counsel argued that what is expected of the learned trial Judge was to transfer this Suit to the General Cause List and order pleadings from parties preparatory for trial. See I. T. I. VS. O. C. B. LIMITED (2015) ALL FWLR PT. 797, PG. 766; G. M. O. NWORAH AND SONS COMPANY LIMITED VS. AKPUTA (2010) ALL FWLR PT. 524, PG. 87.

Finally, Counsel urged the Court to resolve this Issue in favour of the Appellant and transfer this Suit to the General Cause List for trial on merit.

In response, the learned Counsel for the Respondent submitted that it is a settled principle of law that jurisdiction is fundamental and can be raised at any time or stage of the proceedings. See NGERE VS. OKURUKE “XIV” (2017) ALL FWLR PT. 882, PG. 1302.

Jurisdiction must also be resolved expeditiously before taking further steps in a matter. See 7-UP BOTTLING COMPANY VS. ABIOLA AND SONS (2001) FWLR PT. 70, PG. 1611.

Counsel stated that the trial Judge was right to have resolved the question

of jurisdiction rather than send it down to the General Cause List. Counsel argued that the cause of action accrued on 31st December, 2007 or at best 1st January, 2008. See WOHEREM VS. EMEREUWA (2000) 3 NWLR PT. 650, PG. 529; JALLCO LIMITED VS. OWONIBOYS TECHNICAL SERVICES LIMITED (1995) 4 NWLR PT. 391, PG. 534.

Counsel argued that by virtue of S.18 Kwara State Limitation Law 2006 provides:
“No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of six years from the date on which the cause of action accrued.”

It is settled that where the Law provides for institution of the action within a prescribed period, proceedings shall not be brought after the time prescribed by the Statute. Any action commenced after the stipulated period is totally barred; the right of the injured person to commence the action has become extinguished by law. See ADIGUN VS. AYINDE (1993) 8 NWLR PT. 3131, PG. 576; MKPEDEM VS. UDO (2001) FWLR PT. 66, PG. 827; RCC NIGERIA LIMITED VS. BURATTO (1993) 8 NWLR PT. 312, PG. 508.

Counsel submitted that the trial Judge was right to have held that the action was not instituted within the time allowed by law and declined jurisdiction to entertain it whilst dismissing same for being statute barred.

The learned trial Judge also declined the prayer to transfer it to the General Cause List.

Counsel referred the Court to S.18 of the Limitation Law of Kwara State which has ousted the jurisdiction of the Court to hear this matter as it is presently constituted. Counsel urged the Court to hold that the claim of the Appellant was statute barred and resolve this Issue in favour of the Respondent.

In reply, the Appellant’s Counsel submitted that it was the demand and refusal to pay that necessitated the action. After the demand there was a party to sue and a party to be sued. See KANO STATE HOUSE OF ASSEMBLY VS. UMAR (2014) LPELR 24008, ASABORO VS. PAN OCEANIC OIL LIMITED (2006) 4 NWLR PT. 971 PG. 595.

Finally Counsel urged the Court to resolve this issue in favour of the Appellant and allow this appeal.

RESOLUTION
The law is trite that it is the combination of facts which gives a person a right to judicial relief which is the cause of action. It is

the interest and circumstances giving rise to an enforceable claim. See NPA VS. BEECHAM PHARMACEUTICALS PLC (2012) 18 NWLR PT. 1333, PG. 454 PER NGWUTA JSC (of blessed memory) where he stated:-
“The phrase “Cause” connotes the totality of all material facts necessary to establish a legal right in a particular case. See also Fadare vs. AG. Oyo State (1980) 4 SC Pag 1. Where Aniagolu JSC held “a cause of action is said to be statute barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed.”

How then does one determine the period of limitation? 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 Court a cause of action by comparing that date with the date on which the Writ of Summons was filed.

In the present appeal, the Claimant had an agreement of sale of land with the Respondent in the year 2005. The last time to seek compensation from adverse Claimants who may wish to claim from the Appellant was set at 31st December, 2006 by the Appellant. Fortunately for the

Appellant, there were no adverse claims to the land sold to the Respondent. The Appellant in his claim, stated that the Respondent had a sum of One million, nine hundred thousand (N1,900,000.00) naira to its credit that the Respondent had to balance the Appellant since there were no adverse claims.

The Appellant only requested for the supposed credit of One million, nine hundred thousand (N1,900,000.00) naira on 6th September, 2017, 11 years after the last date for any adverse claim. The Appellant filed a claim against the Respondent on 14th June, 2018, 12 years after the last date for adverse claims.

It is interesting to note that the supposed Writ of Summons is claiming for the following:-
The Claimant claims against the Defendant as follows:
“The sum of One million, nine hundred thousand (N1,900,000.00) naira only being the remaining balance of the supplied goods, Defendant refused, failed and neglected to pay back to the claimant despite repeated demands.”

The endorsement on the Writ is different from what the affidavit in support is saying and see Exhibits A and B also in support.
16

The law is that in the determination of when a cause of action accrued, one has to look at the Writ of Summons and the Statement of Claim and in this case the affidavit in support. The affidavit in support shows that the cause of action accrued on the last day for the claim of adverse Claimants on the Appellant which is 31st December, 2007.

This means that the Appellant if desirous of demanding for the said One million, nine hundred thousand (N1,900,000.00) naira should have from 2007, 6 years to demand for refund and or institute an action. These Six (6) years would lapse in the year 2013. The Appellant had up until 2013 to demand for the so called balance left to its credit. Appellant did not do so till the year 2017, and after the refusal by the Respondent filed an action in 2018.

The Appellant filed a notice of intention to defend and a Preliminary Objection. The Preliminary Objection was to the effect that the Appellant had not exhibited any reasonable cause of action. For a start one does not know how this sum came about. There was an agreement Exhibit B but it did not state how this money was deposited with the Respondent. It was the Appellant that filed Exhibit B

in support of his case. Documents filed are like words uttered and do speak for themselves. They are more reliable and authentic then words from the vocal cord of man as they are neither transient or subject to distortion and misinterpretation but remain permanent and indelible through the ages. See AIKI VS. IDOWU (2006) 9 NWLR PT. 984 PG. 50.

The parties in this Appeal made Exhibit B and therefore, it would be binding on them even though it was not registered. The parties’ intendments were reduced into writing and therefore, oral or affidavit evidence cannot be admissible and also cannot be used to explain the contents of such a document. See NNUBIA VS. A.G. RIVERS STATE (1999) 3 NWLR PT.593 PG.82.
The general Rule is that where parties have embodied the terms of their agreement or contract in a written document, Extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument. See S. 132 (1) of the Evidence Act UBN VS. OZIGI (1994) 3 NWLR PT. 333 PG. 385, KOIKI VS. MAGNUSSON (1999) 8 NWLR PT.615 PG. 492.

In this Appeal, the sum of One Million, Nine Hundred (N1,900,000.00) Naira did not

appear in Exhibit B nor reference made to it. It is therefore, difficult for the Court to import this sum into the discuss by way of the Appellant’s affidavit. If the Court expunges paragraphs 5-15 which the Appellant is relying as the substratum of his case, the case will invariably collapse. That is why the Respondent argued that the Appellant had no reasonable cause of action.

A cause of action is the factual situation which a plaintiff relies upon to support his claim, recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. The factual situation must, however, constitute the essential ingredient of an enforceable right as claimed. See ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR PT. 971 PG 595; MOBIL OIL PLC VS. D.E.N.R LTD (2004) 1 NWLR PT. 853 PG. 142; NICON INSURANCE COMPANY VS. OLOWOFOYEKU (2006) 5 NWLR PT. 973 PG. 244.

In the present appeal, the Appellant claimed that the Respondent has the sum of One million, nine hundred thousand naira (N1,900,000.00) to its credit. It is not clear from the Exhibits A and B, the Writ of Summons and the affidavit in support how this debt or credit enured to the Appellant.

The endorsement on the Writ of Summon is
“The sum of One million, nine hundred thousand (N1,900,000.00) naira only being the remaining balance of the supplied goods, Defendant refused, failed and neglected to pay back to the claimant despite repeated demands.”

In the affidavit in support, the sum is said to be credit in favour of the Appellant paragraph 6.

The two documents are saying diametrical opposite things. The money in issue is the same. However, the sums are for very different things. The law is that in a matter decided on affidavit evidence, the depositions stand or take the place of oral evidence NWOSU VS INEC (2019) LPELR 48396. In SHITTA-BEY VS. A.G.F. (1998) LPELR 3055. ONU JSC (of blessed memory) held following NNAEMEKA AGU JSC in NWOSU VS. IMO STATE ENVIRONMENTAL AUTHORITY:
“Evidence by affidavit is, it must be noted a form of evidence. It is entitled to be given weight where there is no conflict.”
However, in this case there is conflict with the Writ and Statement of Claim. Affidavit is a factual statement which the maker or deponent swears to the best of his knowledge, information and belief. It is thus a documentary evidence of the facts deposed to therein. See JMG LIMITED VS. ISRAEL (2020) LPELR 50585, JOSIEN HOLDINGS LIMITED VS. LOCNAMEAD LIMITED (1995) 1 NWLR PT. 371 PG. 254, BUSARI VS. OSENI (1992) 4 NWLR PT. 237 PG. 557; ZENITH BANK PLC VS. BANKOLANS INVESTMENT LIMITED (2011) LPELR 9064.

If the above is what an affidavit is, it is then difficult to choose the correct

state of things between the Writ and the affidavit. This is were the controversy and conflict are. The Court is at a loss which is the real state of things whether the sum claimed is for goods or credit to the Appellant. However, the Court is inclined to take cognizance of the affidavit under oath and last in time.

In the present appeal, the cause of action

accrued on 31st December, 2007 when the so called credit of One million, nine hundred thousand (N1,900,000.00) naira was supposed to be due to the Appellant. The Appellant’s writ, affidavit and Exhibit A and B combined do not disclose a reasonable cause of action that the Court can adjudicate on. A reasonable cause of action is a cause of action with a chance of success. See COMBINED TRADE LTD VS. ALL STATES TRUST BANK LTD (1998) 12 NWLR PT 576 PG. 56, DANTATA VS. MOHAMMED (2000) 5 SC PG. 1.

Where there is a failure to disclose reasonable cause of action against a party, the Court is obliged to strike out the case against the party. See ABUBAKAR VS FALOLA (1997) 11 NWLR PT. 530 PG. 638.

I have now dealt with the issue of whether the Appellant’s claim discloses a reasonable cause of action. I will now deal with whether this suit as it was constituted in the lower Court was statute barred. I have all along referred to the date in which the cause of action accrued in the determination of the first issue. Short of being repetitive I will again state the case before the Court. The cause of action as can be decipherable from the affidavit in

support accrued on 31st December, 2007. Time began to run for the purposes of the Limitation Law from the date the cause of action accrued. See BRITISH AIRWAY PLC VS. AKINYOSOYE (1995) 1 NWLR PT. 374 PG. 722; SHELL PET. DEVELOPMENT COMPANY (NIG.) LTD VS. FARAH (SUPRA); JALLCO LTD VS. OWONIBOYS TECHNICAL SERVICE LTD. (1995) 4 NWLR PT. 391 PG.534; ASABORO VS. PAN OCEAN OIL (NIG.) LTD (2006) 4 NWLR PT. 971 PG. 595.

It is trite that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute barred if legal proceeding cannot be commenced in respect of same because the period laid down by the Limitation law or Act had elapsed. See Adeosun vs. Jibesin (2001) 14 WRN Pg 106.
In the present appeal, the Appellant sat on his rights for over 11 years after the accrual of the cause of action.
Where a Statute of Limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute

barred. OGUNKO VS. SHELLE (2004) 6 NWLR Pt. 868 Pg.17; Osun State Governor vs. Dalami (Nig.) Ltd. (2007) ALL FWLR Pt. 365 Pg438.

Generally, in Civil cases the limitation period is Six years except in land matters which enjoys a maximum period of 12 years in certain jurisdiction.

In this appeal, it is supposedly to be a debt recovery.

In sum, the date the cause of action accrued to my mind is on 31st December, 2007 and the case ought to have been instituted on or before the expiration of 6 years which will expire on 31st December, 2013. This suit was instituted on 14th June, 2018. Sadly effluxion of time had caught up with the Appellant in his quest for justice.

The general principle of law is that where a Statute provides for the institution of an action within a prescribed period, proceedings shall not be brought after the time prescribed by such statute had elapsed. Any action that is instituted after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See OBIEFUNA VS. OKOYE (1961) 1 ALL NLR PG, 357; EGBE VS. ADEFARASIN (NO. 2) (1985) 1 NWLR PT. 3 PG 549;

FADARE VS. A.G. OYO STATE (SUPRA), NASIR VS. CIVIL SERVICE COMMISSION KANO STATE (2010) LPELR 1943; EBOIGBE VS. NNPC (1994) 5 NWLR PT. 347 PG. 649; ASABORO VS. PAN OCEAN OIL COMPANY (NIG.) LTD (SUPRA).

I therefore, hold that the two issues articulated by the Appellant have been resolved against it. The Appellant’s claim did not disclose a reasonable cause of action. Also the supposed Writ was statute barred having been instituted well over Six (6) years after the accrual of the cause of action.

The parties had urged the Court to transfer the suit brought under the Undefended List Procedure. Sadly once the Court identifies that it lacked jurisdiction the only procedural duty left for it to do is to strike out the suit. See UMANAH VS ATTAH (2006) 17 NWLR Pt.1009 Pg. 503.

Therefore, this appeal is grossly unmeritorious, it is dismissed. I affirm the judgment of the lower Court.

Cost to the Respondent is assessed at One hundred thousand (N100,000.00) naira.

IBRAHIM SHATA BDLIYA, J.C.A.: I agree the appeal is unmeritorious, therefore it should be dismissed. My learned brother, UZO I. NDUKWE-ANYANWU,

JCA, did consider all the issues for determination in the appeal creditably. I too dismiss the appeal for being meritless. I abide by the order made in the lead judgment on costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I was privileged to read the draft judgment of my learned brother UZO NDUKWE-ANYANWU, JCA. I agree with his Lordship’s reasoning and conclusion therein that this appeal has no merit and is dismissed. I abide by the consequential orders made therein.

Appearances:

MAGAJI OBA ABDULKADIR, ESQ., with him, TOBI OLOLU, ESQ, S. T. OLAOLU, ESQ., L. D. N. ABUBAKAR, ESQ., A. Z. ABDULSALAM, ESQ. and TAJUDEEN SALMAN, ESQ. For Appellant(s)

AHMED TAFA, ESQ., with him, M. G. ALAYA For Respondent(s)