ATOYEBI V AIYEDUN & ORS

ATOYEBI V AIYEDUN & ORS


IN THE COURT OF APPEAL
IN THE ILORIN JUDICIAL DIVISION
HOLDEN AT ILORIN

ON FRIDAY, 18TH MAY, 2018


Appeal No: CA/IL/68/17
CITATION:

Before Their Lordships:

CHIDI NWAOMA UWA, JCA

HAMMA AKAWU BARKA, JCA

BOLOUKUROMO MOSES UGO, JCA


BETWEEN

MR. SAMUEL OLANIYI ATOYEBI

(APPELLANT)

AND

MR. AZEEZ A. AIYEDUN
ALHAJI JIMOH FOLORUNSHO ARAOJE

(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Statute Barred Action –

Effect of a statute barred action

“The materials upon which the issue of the action being statute barred is predicated upon the writ of summons and the statement of claim. Merely looking at the reliefs sought at the trial Court (reproduced earlier in this judgment), relief (1) sought “a declaration that the purported sale of the claimant’s property
…. is invalid by reason of said fraud, as well as fraud on the face of the Deed of Assignment ….. same is null and void of no legal effect whatsoever.” The second claim asked that the Deed of Assignment and the execution be set aside, the third is to restrain the 1st and 2nd respondents from giving effect to the said Deed of Assignment, the fourth is to set aside any purported registration by the 2nd Respondent as assignee of the Certificate of Occupancy of the property in question and the fifth is for the Court to direct the respondents (then defendants) to return to the appellant the Certificate of Occupancy No. KW 3673. The above is a summary of reliefs 1- 5 as claimed by the Appellant. Reliefs 6 – 9 are also centred on the same property and events surrounding it. From the reliefs sought, it is clear that they were not for possession of any property as erroneously argued by the learned counsel to the Appellant but, rather challenging the sale of the property belonging to the appellant which was sold to the 2nd Respondent. This is also reflected in the appellant’s ground one (1) of his Notice of appeal, which alleged the claim to be that of recovery of possession.

?The learned trial judge relied on Section 4 of Kwara State Limitation Law before arriving at its decision that the appellant’s action is statute barred. To determine whether the action was statute barred or not, it is apt at this juncture to determine when the cause of action arose and the law applicable in the present circumstances. The writ of summons and the statement of claim would be examined in respect of some of the claims earlier highlighted, for instance declaring the sale of the appellant’s property at Hussein Adeniyi Close, Off Unity Road, Ilorin covered by Certificate of Occupancy No. KW 3673 unlawful, null and void, of no legal effect and setting aside the Deed of Assignment relating to the property. The Appellant made out that he was pressurized to sign the Deed of Assignment and came to this realization when he regained consciousness (when he reflected back on his action of signing the Deed) on 20/3/95. As rightly held by the trial judge, at page 315 of the printed records, that as at

22/3/95, when the appellant wrote Exhibit 11 the entire purchase price of N1,600,000.00 had been paid. Whether the effective date the cause of action arose when the property was paid for, is taken to be 20/3/95 or 22/3/95, it makes no difference, the action having been taken out on 1/12/06. Section 4 of the Limitation Law of Kwara State, Cap. 30, Laws of Kwara State, 2006 provides the time frame for instituting actions, where the claim relates to property. Section 4 of the Kwara State Limitation Law, Cap 30, Laws of Kwara State, 2006 limits the right of action pertaining to land within Kwara State to ten (10) years from the time when the cause of action accrued. The Appellant’s time to have taken out his action expired in March 1995, having failed to do so within the prescribed period provided by law the reliefs sought are statute barred. Where the reliefs sought in reliefs 1 – 5 are found to be statute barred, automatically relief 6 relating to the rents from the same property cannot be rightly claimed in the same action taken out on 1/12/06, the property having been sold in 1995. It is the sale and the Deed of Assignment that the appellant sought to be set aside and declared null and void.

Limitation Laws are to limit the period within which actions must be brought or proceedings taken in the public interest, to put an end to litigation. In the case of AREMO II VS. ADEKANYE and ORS (2004) LPELR – 44 SC PP. 17 -18, PARAS. F – B, his lordship Edozie, JSC, on the purpose of Statute of Limitation held that:

“The rationale or justification supporting the existence of Statutes of Limitation includes the following: (1) that long dormant

claims have more of cruelty than justice in them: R.B. POLICIES at LIOYD’S VS. BUTLER (1950) 1 KB 76 at 81 – 82, (2) that a defendant might have lost the evidence to disprove a stale claim: JAMES VS. BEEL GROVE PROPERTIES LTD. (1949) 2 KB 700 at 704 and, (3) that persons with good causes of action should pursue them with reasonable diligence. BOARD OF TRADE VS. CAYZER IRVINE & CO. (1927) A.C. 610 at 628.”

Also, see, MURMANSK STATE STEAMSHIP LINE VS. KANO OIL MILLERS LTD (1974) LPELR – 1927 (SC) P. 8, PARAS. E – F and NZE BERNARD CHIGBU VS. TONIMAS NIGERIA LIMIT D & ANOR (2006) LPELR – 846 (SC), P. 19 – 20 PARAS. D – E and F – B, (2006) 9 NWLR (PT. 984) P. 189. Further, the purpose is to avoid the inconvenience and embarrassment to defendants whose witnesses may no longer be easily reached, documents may not be easily traced or may have been destroyed, may not be well archived (due to lack of storage facilities) or may take time to locate. The reasons are endless.

The learned counsel to the appellant had argued that the issue of limitation is procedural and could and was waived by the respondents who waited till the address stage to raise it. I would say it is not procedural, as stated earlier; it could be raised at any stage of the proceedings. On the issue of it not being procedural, see the decision of this Court in NDUKA VS. OGBONNA (2010) LPELR – 4587 – CA, as per Sanusi, JCA (as he then was). Also, it is settled law that where the law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period, where it is done, it is a nullity. See, OBIEFUNA VS. OKOYE (1961) 1 ALL NLR 357, SANDA VS. KUKAWA LG & ANOR (1991) LPELR – 30001 (SC) P. 14 PARA. D; (1991) 2 NWLR (PT. 174) 379 and SYLVA VS. INEC & ORS (2015) LPELR – 24447 (SC) PP. 55 – 56, PARAS. F – C.

The learned trial judge at page 316 of the printed records in resolution of issue one (1) before the trial Court held as follows:

“Now Section 4 of the Kwara State Limitation Law provides that no action shall be brought to recover any land after the expiration of 10 years from the date from which the right of action accrued to him. Having held that the cause of action accrued in March 1995, it is my humble view that by end of March 1995, (sic) it ought to have dawned on the claimant that his only redress ought reasonably be by filing action in Court. This action was however fled on 1/12/2006. It is not 17/12/2006 as claimed by the 1st defendant in his written address.

Having held that the cause of action accrued on 20/3/1995, since the action must be filed within 10 years of the accrual of the cause of action, the 10 years will laps on 20/3/2005. The action was filed on 1/12/2006, meaning the cause of action under consideration is statute-barred. It is time-barred.”

I cannot fault the above finding in respect of whether the appellant’s action was statute barred. I agree with the finding. What is the effect of an action that is statute barred? The Supreme Court in the case of WILLIAM O. OLAGUNJU & ANOR VS. POWER HOLDING CO. OF NIG. PLC (2011) LPELR – 2556 (SC) at P. 11, PARAS. C- E, his lordship, Onnoghen, JSC (as he then was) in respect of the implication on jurisdiction when an action is held to be statute barred held thus:

“It should be noted that when a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the Court concerned on points of law because where an action if found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with empty unenforceable cause of action.” The above decision says it all. Having held that the action is statute barred, there is nothing left of the appellant’s issue one.”Per UWA, J.C.A. read in context

2. Statute Barred Action –

Effect of a statute barred action

“It has long been settled that jurisdiction is the life blood of any adjudication and where lacking renders the proceedings stale and of no use. See Dapianlong Vs. Dariye (2007) 8 NWLR (pt. 1036) 332. In the instant case, it is evident that the claimant’s action was brought in violation of Section 4 of the limitation law of Kwara State 2005. The consequence is that even though the claimant may have had a course of action, his right to seek redress through judicial intervention became stale and unenforceable. It is a jurisdictional matter. My lord amply treated the issue at length to my satisfaction and I agree with the conclusion that the claim was statute barred In the event and upon this premise, I also dismiss the appeal and affirm the decision of the lower Court.”Per BARKA, J.C.A.  read in context

B. PRACTICE AND PROCEDURE
3. Issue of Jurisdiction – Appropriate time to raise objection to the jurisdiction of the Court

When an objection to the jurisdiction of Court can be raised

“I will start with the resolution of the appellant’s issue one (1) which all the parties agree borders on the jurisdiction of the trial Court to have entertained the action in the first place. It is not disputed that the issue of the action being statute barred was raised and argued by the respective counsel to the parties at the address stage before the trial Court arrived at its decision. It is elementary law that the issue of limitation of time, being a jurisdictional issue could be raised at any time, at any stage of the action, even at the Supreme Court, even though not pleaded in the statement of defence. On the effect of lack of jurisdiction on processes or proceedings of the Court, in the case of PEOPLES DEMOCRATIC PARTY & ORS VS. BARRISTER SOPULUCHUKWU E. EZEONWUKA & ANOR (2017) LPELR – 42563 (SC) PP. 92, PARAS. A – D, his lordship Muhammad, JSC, stressed that:

“It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See, OMOKHAFE VS. EZEKHOMO (1993) LPELR – 2649 (SC), UKAEGBU VS. UGORJI (1991) 6 NWLR (PT. 196) 127, OMOMEJI & ORS VS. KOLAWOLE & ORS (2008) LPELR – 2650 (SC).”

On this note, the argument of the learned counsel to the appellant that the issue of the action being statute barred which borders on jurisdiction ought not to have been raised and argued at the address stage at the lower Court therefore, does not hold water. See, OLOBA VS. AKEREJA (1988) LPELR – 2583 (SC) PP. 17 – 18, PARAS. F – D, per Obaseki, JSC, OBIKOYA VS. THE REGISTRAR OF COMPANIES and OFFICIAL RECEIVER OF POOL HOUSE GROUP (NIGERIA) LTD (1975) LPELR – 2175 (SC) P. 6, PARAS. A – B, per Elias, JSC, ADEGBOLA and ORS VS. IDOWU & ORS (2017) LPELR – 42105 (SC) PP. 17 – 18, PARAS. E – A, per Galinje, JSC, and ALIMS NIGERIA LIMITED VS. UNITED BANK FOR AFRICA (2013) LPELR – 19768 (SC) PP. 9 – 10, PARAS. B – C, per Fabiyi, JSC, (2013) 6 NWLR (PT. 1351) P. 613. Similarly, that the issue should have been formally raised also cannot stand, these arguments are discountenanced. I hold that the issue was properly raised and argued by the parties. The Court was also right to have looked into it.”Per UWA, J.C.A. – read in context

4. Issue of Jurisdiction – Appropriate time to raise objection to the jurisdiction of the Court

When an objection to the jurisdiction of Court can be raised

“I had the privilege of reading in draft the judgment of my learned brother CHIDI NWAOMA UWA, J.C.A., and I agree with his reasoning and the case of appellant in the lower Court was at the end of the Clay ‘decided on the Limitation Law of Kwara State, which was not pleaded by the respondent. One of the main pegs of appellant’s argument here is that since Limitation Law was not pleaded by respondent as required by the Rules of the lower Court but only raised during final address, it was incompetent and should have been discountenanced by that Court. While I appreciate that argument, the apex Court in recent times seems to have taken the view that Limitation statute where applicable affects the jurisdiction of the Court so it can be raised at any time in the case even if not pleaded, as it is not caught by the Rules of Court that requires its being pleading. This is exemplified by its decisions in the cases of Elabanjo v. Dawodu (2005) 15 NWLR (PT 1001) 76; (2005) ALL FWLR (PT 328) 604; F.R.l.N v. Gold (2007) ALL FWLR (PT 380) 1444; Nasir v. Kano State Civil Service Commission (2010) FWLR (PT 515) 195 (S.C.); Owners of Arabella v. NAIC (2008) ALL FWLR (PT 443) 1208 @ 1231; Ajayi v. Adebiyi (2012) ALL FWLR (PT 634) 1 @ 30. It think it necessarily has to be so, if I may add my voice to the issue, since calculation of time for Limitation purposes is normally based on the date of accrual of cause of action as pleaded by the claimant in his writ of summons and statement of claim (Egbe v. Adefarasin (No 2) (1987) 1 NWLR (PT 47) 1) and so, unless elicited during trial, may not require or depend on. what the defendant may say in his defence. Besides, the rationale for the existence of Limitation statutes as admirably set out by my learned brother in the lead judgment ought not to be waived aside on grounds only of a defendant’s omission to specifically plead it, Section 2(b) of Limitation Law of Kwara State Cap K30 is very categorical and definite with its provisions that “No action shall be brought by any person to recover any land after the expiration of a period of 10 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.’ No action means no action and nothing else, even more so when the lawmaker decided to also opt for the mandatory shall to further drive home its point. When rules of Court which are simply handmaids to justice clash with the provisions of substantive statutes, something must give way, and that must the rules. I further note, too, that even in the related matter of service of pre-action notice, it has been also held by the Supreme Court in Nigercare Development Co. Ltd v. Adamawa State Water Board (2008) ALL FWLR (PT 422) 1052, (2008) 34 NSCQR 226 that because service of pre-action notice, where required by statute, is a condition precedent to exercise of jurisdiction by the Court, it can also be raised at any time and the failure to plead it does not affect its efficacy. Incidentally, in Nigercare the issue of service of pre-action notice was not even raised by the defendant in its pleading or even in final address. It was the trial judge who, while writing judgment, stumbled on it and asked counsel to address him on it, after which he declined jurisdiction and struck out the case. The apex Court on appeal held that he was in order. By reason of that decision, this Court (Ejembi Eko, J.C.A. as he then was) was even prompted to declare in Port Harcourt Refining Co. Ltd v. Okoro (2012) ALL FWLR (PT 606) 466 @ p. 485 – 486 that the long-revered authority ofKatsina Local Authority v. Makudawa (1971) 1 NMLR 100 which had held that a condition precedent like service of pre-action notice is deemed waived if not pleaded no longer represents the position of the law. For this little embroidery of the lead judgment of my learned brother Uwa, J.C.A., which judgment I here adopt as mine, I also dismiss this appeal and uphold the judgment of the lower Court.”Per UGO, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY UWA, J.C.A.


The appeal is against the judgment of the Kwara State High Court delivered on 21st November, 2016 presided over by A.A. Adebara, J, in which the appellant’s claims were dismissed in their entirety.

The appellant as claimant at the trial Court, claimed against the respondents (as defendants) jointly and severally as follows:

1. “A declaration that the purported sale of the Claimant’s property situate at Hussein Adeniyi Close, Off Unity Road, Ilorin covered by the certificate of occupancy No. KW 3673 by the fraudulent procurement of the execution of a deed of assignment to favour the 2nd Defendant fraudulently procured by fraud, deceit, undue influence and pressure exerted on the Claimant by the 1st Defendant which is followed by the unlawful forceful taking over of possession of the said property by the 2nd Defendant is invalid by reason of said fraud, as well as fraud on the face of the Deed of Assignment and deception, undue influence and pressure exerted on Claimant by the 1st defendant acting for the joint benefit of both 1st and 2nd Defendant and same is null and void of no legal effect whatsoever.

2. An order of this Honourable Court setting aside the said deed together with the execution of the said deed of assignment.

3. An order of perpetual injunction restraining the 1st and 2nd Defendants from attempting to give effect to the said deed of assignment by registration of any interest at the land’s registry.

4. An order of this Honourable Court setting aside any purported registration of the 2nd Defendant as assignee of the certificate of occupancy No. KW 3673.

5. An order of this Honourable Court directing the 1st

– 2nd Defendants to return to the Claimant forthwith the certificate of occupancy No. KW 3673.
6. Account of all rents collected and accruing from the premises from January 1997 at the rate of N24,000 per flat per annum of the 12 flats, until the determination of this suit and payment over of such to the Claimant.

7. N5,000,000 damages for unlawful imprisonment, harassment, humiliation and inhumane treatment meted out to the plaintiff in the hands of the Nigeria Police acting as agents for and as procured by the 1st and 2nd Defendants and for the breach of the fundamental human rights of the Claimant.

8. The sum of N300,000 against the 1st Defendant only being the difference between the upper limit of N500,000 instructed to be the amount payable upon a successful interest waiver negotiation with the First Bank and the sum of N800,000 purportedly unilaterally paid by the 1st Defendant to the Bank contrary to instruction and without a recourse to the Claimant whereby the Claimant was made to lose the said sum of N300,00.

9. The sum of N1,000,000 against the 1st Defendant for breach of specific instruction to the 1st Defendant contained in the letters dated 26th January 1995, 22nd March 1995, and the breach of duty imposed upon him by the fiduciary relationship between the Claimant and the 1st Defendant when in collaborating with and acting in concert with the 2nd Defendant the 1st Defendant breached the Claimant’s instructions to him.”

The background facts leading to the above claims on the part of the appellant are that the Appellant maintained accounts with First Bank. The accounts became facility accounts. To secure facilities, the appellant deposited the title documents of his property which is the subject matter of the case that led to this appeal, as equitable mortgage. The appellant’s business went down and his level of indebtedness escalated. In seeking for a solution out of his situation, he consulted the 1st Respondent, a lawyer, for the purpose of resolving his indebtedness to the bank. The Appellant instructed the 1st Respondent to ascertain his level of indebtedness and to enter into interest waiver negotiation with the Bank for resolution of the indebtedness to enable him pay back. The Appellant alleged that rather than the interest waiver negotiation, the 1st Respondent presented the 2nd Respondent, a prospective buyer of the property. It was made out that the 1st Respondent later prepared a Deed of Assignment and pressurized the appellant to sign on the ground of a reassuring document to ensure that upon conclusion of negotiations with the Bank, the property would be sold to the 2nd Respondent. The appellant alleged that he was not carried along on the ongoing negotiation. The appellant eventually received a letter from the bank to come and collect his security documents, he then wrote to notify the 1st respondent inviting him to arrange the conclusion of the transactions. The 1st Respondent then demanded that he should surrender the title document of the land to the 2nd Respondent, on the ground that he had bought same.

The Appellant refused to surrender the document which led the Respondents to make a report to the police after which the document was collected from him. This led to the appellant instituting the action that led to the appeal, upon dismissal of same by the trial Court.

The appellant formulated seven (7) issues for the determination of the appeal as follows:

Issue 1: “Whether the learned trial judge was not in error and same occasioned a miscarriage of justice by his decision that the Appellant’s action or any part thereof at the lower Court was statute barred and that notwithstanding that Respondents did not plead statutory bar or made same part of their case up till trial, they had not waived any right to raise that the action was statute barred. – distilled from grounds 1, 2 and 3.

Issue 2: Whether evaluations of evidence by lower Court is not wrongful, wherein it both held that Appellant’s arguments based on Exhibit 10 are extraneous to Exhibit 10, and non compliance with amounted (sic) to nothing but not fatal, and Appellant’s earliest and only response to Exhibit 5 which was written contrary to instructions, was Exhibit 11, for which in wrongfully accepting 1st Respondent’s evidence against that of Appellant, he held that he was thus not convinced that Appellant complained about purchase price, and Appellant had waived his right to insist on bindingness of his instruction in Exhibit 10, and all occasioning a miscarriage of justice. – distilled from grounds 4,5,6 and 7.

Issue 3: Whether Appellant having already pleaded that property in issue herein was under undischarged encumbrance, and further also pleading aspects of invalidity based on pressure exerted in executing Exhibit 24, lack of legal capacity to alienate thereby need a separate plea and decision by lower Court to discountenance Appellant’s arguments thereon, which drew out the legal implications of the invalidity and Appellant’s lack of legal capacity to alienate same thereby which he also held will not avail Appellant, are not wrongful. – distilled from ground 8.

Issue 4: Whether notwithstanding having held that pressure was exerted on Appellant in executing Exhibit 24, the decision by the learned trial judge to yet hold that Exhibit 24 was not vitiated, based on grounds parties did not join efficacy of Exhibit 24 on, and for which he held he was thus not able to set aside sale predicted thereon, and in the face of failure to fulfill condition precedent to such sale, and further applying MINI LODGE LTD VS. NGEI (2010) ALL FWLR PT. 506 P. 1806, in the circumstance of this case, is not an error in law. – distilled from ground 9.

Issue 5: Whether notwithstanding having held it was established pressure was exerted on Appellant in his executing Exhibit 24, the decision by the learned trial judge in the circumstance of this case, to have eventually held that fraud was not proved against any of the Respondents, had not occasioned a miscarriage of justice – distilled from ground 10.

Issue 6: Whether the learned trial judge’s decision in the face of uncontroverted evidence based on Appellant’s pleadings, to hold that Appellant had not proved false imprisonment against Respondents, relying thereby on Respondent’s Counsel final addresses only, is not wrongful. – distilled from ground 11.

Issue 7: Whether the learned trial judge’s decision to dismiss Appellant’s case in their entirety in the face of evidence which had creditably proved Appellant’s case is not wrongful, which wrongfulness has occasioned a miscarriage of justice”. – ground 12.

In response, the 1st Respondent also formulated seven (7)

issues as follows:

Issue No 1. “Whether non pleading of defence of Statute of Limitation constitutes a waiver of the defence. Grounds 1,2,3.

Issue No 2: Whether the conclusion arrived at by the trial Court in respect of Exhibit 10 can be supported in view of his other findings in respect of Exhibits 5 and 11 – Grounds 4,5,6 and 7.

Issue No. 3: Whether Appellant having already pleaded that property in issue herein was under undischarged encumbrance, and further also pleading aspects of invalidity based on pressure exerted in executing Exhibit 24, lack of legal capacity to alienate thereby need a separate plea and decision by lower Court to discountenance Appellants arguments thereon, which drew out the legal implications of the invalidity and appellants lack of legal capacity to alienate same thereby which he also held will not avail Appellant, are not wrongful – Ground 8.

Issue No. 4: Whether the trial Court is correct to hold that Exhibit 24 was signed under pressure and yet refused to set it aside on the principle of law in AWOJUGBAGBE LIGHT LIMITED VS. CHINUKWE (2004) ALL FWLR (PT. 229) PG. 943 – Ground 9. Issue No. 5: Whether having held that Exhibit 24 was held under pressure (sic) the trial Court can still properly hold that fraud was not committed by the Respondents? Ground 10.

Issue No.6: Whether the trial Court is right in view of uncontroverted evidence before it to hold that false imprisonment was not committed by the Respondents. Ground 11.

Issue No.7: Whether the judgment of the trial Court is perverse?”

Marriage of Issues.

Issue No. 1: – Grounds 1, 2, 3.

Issue No. 2: – Grounds 4, 5, 6, 7.

Issue No. 3: – Ground 8.

Issue No. 4: – Ground 9.

Issue No. 5: – Ground 10.

Issue No. 6: – Ground 11.

Issue No. 7: – Ground 12.

The 2nd Respondent on his part also distilled seven (7) issues as follows:

(i) “Whether the learned trial judge was right when he held that part of the Appellant’s claims was statute barred, and that the Respondents could raise the defence even when they did not plead same in their Statement of Defence. – Grounds 1,2,3.

(ii) Whether not being a party or privy to the instructions of the Appellant to the 1st Respondent (Exhibit 10), the 2nd Respondent was bound by same or consequences of alleged failure to comply with same by the 1st Respondent. – Grounds 4,5,6,7.

(iii) Whether the Appellant is right, after taking benefits of the sale of his property to the 2nd Respondent, to raise the issue of his incapacity to dispose same at his time of sale. – Ground 8.

(iv) Whether not being a party to the alleged pressure exerted on the Appellant by the 1st Respondent in executing the deed of assignment (Exhibit 24), the 2nd Respondent can be held responsible for the alleged act. – Ground 9.

(v) Whether the Appellant established the commission of fraud by the Respondents in the sale of his property to the 2nd Respondent. – Ground 10.

(vi) Whether the Appellant established a case of false imprisonment against the Respondents. Ground 11.
(vii) Whether the trial Court properly evaluated the evidence of the parties before arriving at its decision in this case.” – Ground 12.

In arguing his first issue, the learned counsel to the appellant M.O.A. Olawepo Esq, adopted and relied on his brief of argument filed on 23/6/17 and his reply brief filed on 16/1/18 as his argument in this appeal in urging us to allow the appeal, set aside the judgment of the trial Court and grant the appellant’s claims. It was submitted that the appellant’s claims in his reliefs 1 – 5 at the lower Court were for recovery of possession which was also the finding by the trial Court with no appeal against same, which was argued to be binding. It was conceded and said to have been also found by the Court that Section 4, of the Kwara State Limitation Law, laid down ten (10) years Statutory Limitation period for instituting an action upon accrual of such action.

The trial Court was said to have identified the above provision but, wrong in determining when the cause of action accrued. It was submitted that the Court found that the injuries began when the appellant was pressurized to execute a Deed of Assignment against his will on 20/3/95, page 331 of the printed records of appeal, while the Appellant pleaded in paragraph 43 of his statement of claim that adverse possession of the property was wrestled and taken away from him in January, 1997, when the cause of action crystallized and completed. Reference was made to paragraph 42 of the 1st Respondent’s statement of Defence, page 73 of the records and also paragraph 19 of the 2nd Respondent’s Statement of Defence, page 100 of the records. Section 10, of the Kwara State Limitation Law was reviewed. The issue was said to have been raised at the address stage when the attention of the trial Court was drawn to the applicable law and both learned counsel addressed the issue of the Limitation Law, particularly Sections 4 and 10. It was alleged that the trial Court deliberately failed to apply Section 10 as determining when the cause of action arose. It was stressed that adverse possession took place in January, 1997. Reference was made to the cases of AMOPE VS. GAMBARI (2015)
ALL FWLR (PT. 800) P. 1344 and KRAUS THOMPSON ORG. VS. NIPSS (2004) 17 NWLR (PT. 901) P. 44. It was argued that the action was filed on 1/12/2006, less than ten (10) years which means that it was filed within time. It was argued that the trial Court was wrong to have held that the appellant’s action was statute barred. Without conceding that the action was statute barred, it was argued that even if it was, in law the Appellant is not barred from maintaining his action. It was submitted further, that the law recognizes statutory bar as a special defence available to the defendant who could seek that the action be struck out in limine, without trial but, that the enforcement could be waived or by his inaction in activating the right and thus deem it waived for the other party (the claimant). See, ARIORI VS. ELEMO (1983) 1 SCNLR 1. It was also argued that where the defendants did not waive the right, they must specifically plead statutory limitation and where not pleaded, it would be deemed waived, see, Order 27 Rule 4 (1) Kwara State High Court (Civil Procedure) Rule, 2005. It was contended that the trial Court was wrong to have held that the Statute of Limitation raises a jurisdictional issue which could be raised anyhow, any time and need not be raised in the pleadings. Also, wrong in holding that the defendants had not waived their right to the defence, having raised same in their final addresses.

The learned counsel to the appellant argued in the alternative, that the respondents as defendants should have come by way of an objection challenging the jurisdiction of the Court.

The learned counsel conceded that Statutory Limitation raises an issue of jurisdiction but, that it is not one that could be raised anyhow or one that cannot be waived as held by the trial Court. It was submitted that the cases relied upon by the learned trial judge were not applicable to the present case, also, that the trial Court wrongly held that a defence of law can be raised in limine without any defence in support. It was reargued in conclusion that the trial Court was wrong to have held that the claim is statute barred in that the breach giving rise to the claim is tagged with the land transaction, and thus related, we were urged to so hold.

In response to the appellant’s issue one (1), the learned counsel to the 1st Respondent O.T. Olorunnisola Esq. appearing with M.H. Ibiyemi (Mrs.) and O.O. Adepitan (Miss) adopted and relied on his brief of argument filed on 21/7/17, in urging us to dismiss the appeal and uphold the judgment of the trial Court. It was submitted that the defence that an action is statute barred is in the nature of jurisdiction which could be raised at any time. It was argued that the important thing is to have materials upon which such decisions could be anchored on; it could be the writ of summons and statement of claim without evidence. Further, that when such challenge is raised, the important thing is to afford the parties the opportunity to address the Court which was done in this case.

It was the contention of the learned counsel that contrary to the submissions of the learned counsel to the appellant, from the statement of claim, the declaratory relief sought in paragraph 56 challenged the sale of the claimant’s property as well as setting aside the Deed of Assignment and the execution of same.

It was stressed that the appellant’s claim was not for recovery of property, reference was made to ground one (1) of the Notice of Appeal. The learned counsel refutted the allegation that the trial Court fractionalized “the claims into separate compartments for treatments”. It was concluded that a special defence need not be pleaded and that the trial court did not break up the appellant’s case into “various compartment” but, resolved all the issues raised by the parties in their claim and counter claim.

On the part of the 2nd Respondent, the learned counsel K.B.A. Badmus Esq. adopted and relied on the 2nd Respondent’s brief of argument filed on 20/9/17 but, deemed filed on 15/1/18, as his argument in this appeal in urging us to dismiss the appeal and uphold the judgment of the trial Court. In his response to the appellant’s issue one

(1), the learned counsel agreed that the issue of the action being statute barred was not raised in the Respondents’ pleadings but, in their respective final written addresses. It was submitted that the issue of limitation of time being jurisdictional could be raised at any time notwithstanding that same was not pleaded in the statement of defence. See, ELABANJO VS. DAWODU (2006) ALL FWLR (PT. 328) 604 at 649 – 650 and OLAGUNJU VS. PHCN (2011) ALL FWLR (PT. 582) 1635 at 1644. The learned counsel agreed with the finding of the learned trial judge that the issue of the action being statute barred could be raised at any time, provided that there are sufficient materials upon which it is predicated, such as the writ of summons and the statement of claim. It was argued that since claims 1, 3 and 5 relate to the appellant’s property which was sold to the 2nd Respondent, Sections 4 and 33 of the Kwara State Limitation Law Cap. K30, Laws of Kwara State, 2006 should be read together and applied. It was submitted that the trial Court was right to have held that the Appellant’s action is statute barred.

Further, that claim number six (6) which relates to account of rents collected from 1997 till the date of the judgment is caught up by the provisions of Section 18 of the Kwara State Limitation Law. It was argued that by reliance on Section 24(c) (i) of the same Law, the learned trial judge was right to have held that the claim to account for rent for the period, 1997, 1998, 1999 and 2000 is statute barred, is correct. See, HONIKA SAWMILL (NIG) LTD VS. HOFF
(1992) 4 NWLR (PT. 238) 673 at 678 – 680. It was submitted that the rent owed from 1997 to the date of judgment of the trial Court cannot be claimed as a lump sum and that the rent denied the appellant at the end of each year gave rise to a separate cause of action.

In alternative argument, it was submitted that since the trial Court also considered the claims on the merit and dismissed same as unproved, the issue of whether the claim was statute barred or not is no longer a live issue for this Court to determine.

In his reply brief filed on 16/1/18, the learned counsel to the Appellant in responding to the argument in respect of the appellant’s issue one re-argued his point that the issue of statute of limitation was raised for the first time at the address stage at the trial Court, in which both parties addressed the Court but, argued that it is not the proper procedure, conceding too that even if it bordered on jurisdiction which could be raised at any time, it should be raised formally. We were urged to hold that, not having been raised properly, it should be deemed waived, also to distinguish the authorities relied upon by the trial Court from the present case. We were also urged to fault the decision of the trial Court that the action is statute barred and allow the appeal and hold that the period of ten (10) years provided in Section 4 of the Kwara State Limitation Law should be computed from 1997 as opposed to 1995 utilized by the trial Court.

I will start with the resolution of the appellant’s issue one (1) which all the parties agree borders on the jurisdiction of the trial Court to have entertained the action in the first place. It is not disputed that the issue of the action being statute barred was raised and argued by the respective counsel to the parties at the address stage before the trial Court arrived at its decision. It is elementary law that the issue of limitation of time, being a jurisdictional issue could be raised at any time, at any stage of the action, even at the Supreme Court, even though not pleaded in the statement of defence. On the effect of lack of jurisdiction on processes or proceedings of the Court, in the case of PEOPLES DEMOCRATIC PARTY & ORS VS. BARRISTER SOPULUCHUKWU E. EZEONWUKA & ANOR (2017) LPELR – 42563 (SC) PP. 92, PARAS. A – D, his lordship Muhammad, JSC, stressed that:
“It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See, OMOKHAFE VS. EZEKHOMO (1993) LPELR – 2649 (SC), UKAEGBU VS. UGORJI (1991) 6 NWLR (PT. 196) 127, OMOMEJI & ORS VS. KOLAWOLE & ORS (2008) LPELR – 2650 (SC).”

On this note, the argument of the learned counsel to the appellant that the issue of the action being statute barred which borders on jurisdiction ought not to have been raised and argued at the address stage at the lower Court therefore, does not hold water. See, OLOBA VS. AKEREJA (1988) LPELR – 2583 (SC) PP. 17 – 18, PARAS. F – D, per Obaseki, JSC, OBIKOYA VS. THE REGISTRAR OF COMPANIES and OFFICIAL RECEIVER OF POOL HOUSE GROUP (NIGERIA) LTD (1975) LPELR – 2175 (SC) P. 6, PARAS. A – B, per Elias, JSC, ADEGBOLA and ORS VS. IDOWU & ORS (2017) LPELR – 42105 (SC) PP. 17 – 18, PARAS. E – A, per Galinje, JSC, and ALIMS NIGERIA LIMITED VS. UNITED BANK FOR AFRICA (2013) LPELR – 19768 (SC) PP. 9 – 10, PARAS. B – C, per Fabiyi, JSC, (2013) 6 NWLR (PT. 1351) P. 613. Similarly, that the issue should have been formally raised also cannot stand, these arguments are discountenanced. I hold that the issue was properly raised and argued by the parties. The Court was also right to have looked into it.

The materials upon which the issue of the action being statute barred is predicated upon the writ of summons and the statement of claim. Merely looking at the reliefs sought at the trial Court (reproduced earlier in this judgment), relief (1) sought “a declaration that the purported sale of the claimant’s property…. is invalid by reason of said fraud, as well as fraud on the face of the Deed of Assignment ….. same is null and void of no legal effect whatsoever.” The second claim asked that the Deed of Assignment and the execution be set aside, the third is to restrain the 1st and 2nd respondents from giving effect to the said Deed of Assignment, the fourth is to set aside any purported registration by the 2nd Respondent as assignee of the Certificate of Occupancy of the property in question and the fifth is for the Court to direct the respondents (then defendants) to return to the appellant the Certificate of Occupancy No. KW 3673. The above is a summary of reliefs 1- 5 as claimed by the Appellant. Reliefs 6 – 9 are also centred on the same property and events surrounding it. From the reliefs sought, it is clear that they were not for possession of any property as erroneously argued by the learned counsel to the Appellant but, rather challenging the sale of the property belonging to the appellant which was sold to the 2nd Respondent. This is also reflected in the appellant’s ground one (1) of his Notice of appeal, which alleged the claim to be that of recovery of possession.

The learned trial judge relied onSection 4 of Kwara State Limitation Law before arriving at its decision that the appellant’s action is statute barred. To determine whether the action was statute barred or not, it is apt at this juncture to determine when the cause of action arose and the law applicable in the present circumstances. The writ of summons and the statement of claim would be examined in respect of some of the claims earlier highlighted, for instance declaring the sale of the appellant’s property at Hussein Adeniyi Close, Off Unity Road, Ilorin covered by Certificate of Occupancy No. KW 3673 unlawful, null and void, of no legal effect and setting aside the Deed of Assignment relating to the property. The Appellant made out that he was pressurized to sign the Deed of Assignment and came to this realization when he regained consciousness (when he reflected back on his action of signing the Deed) on 20/3/95. As rightly held by the trial judge, at page 315 of the printed records, that as at 22/3/95, when the appellant wrote Exhibit 11 the entire purchase price of N1,600,000.00 had been paid. Whether the effective date the cause of action arose when the property was paid for, is taken to be 20/3/95 or 22/3/95, it makes no difference, the action having been taken out on 1/12/06. Section 4 of the Limitation Law of Kwara State, Cap. 30, Laws of Kwara State, 2006 provides the time frame for instituting actions, where the claim relates to property. Section 4 of the Kwara State Limitation Law, Cap 30, Laws of Kwara State, 2006 limits the right of action pertaining to land within Kwara State to ten (10) years from the time when the cause of action accrued. The Appellant’s time to have taken out his action expired in March 1995, having failed to do so within the prescribed period provided by law the reliefs sought are statute barred. Where the reliefs sought in reliefs 1 – 5 are found to be statute barred, automatically relief 6 relating to the rents from the same property cannot be rightly claimed in the same action taken out on 1/12/06, the property having been sold in 1995. It is the sale and the Deed of Assignment that the appellant sought to be set aside and declared null and void. Limitation Laws are to limit the period within which actions must be brought or proceedings taken in the public interest, to put an end to litigation. In the case of AREMO II VS. ADEKANYE and ORS (2004) LPELR – 544 SC PP. 17 -18, PARAS. F – B, his lordship Edozie, JSC, on the purpose of Statute of Limitation held that:

“The rationale or justification supporting the existence of Statutes of Limitation includes the following: (1) that long dormant claims have more of cruelty than justice in them: R.B. POLICIES at LIOYD’S VS. BUTLER (1950) 1 KB 76 at 81 – 82, (2) that a defendant might have lost the evidence to disprove a stale claim: JAMES VS. BEEL GROVE PROPERTIES LTD. (1949) 2 KB 700 at 704 and, (3) that persons with good causes of action should pursue them with reasonable diligence. BOARD OF TRADE VS. CAYZER IRVINE & CO. (1927) A.C. 610 at 628.”

Also, see, MURMANSK STATE STEAMSHIP LINE VS. KANO OIL MILLERS LTD (1974) LPELR – 1927 (SC) P. 8, PARAS. E – F and NZE BERNARD CHIGBU VS. TONIMAS NIGERIA LIMITED & ANOR (2006) LPELR – 846 (SC), P. 19 – 20 PARAS. D – E and F – B, (2006) 9 NWLR (PT. 984) P.189. Further, the purpose is to avoid the inconvenience and embarrassment to defendants whose witnesses may no longer be easily reached, documents may not be easily traced or may have been destroyed, may not be well archived (due to lack of storage facilities) or may take time to locate. The reasons are endless.

The learned counsel to the appellant had argued that the issue of limitation is procedural and could and was waived by the respondents who waited till the address stage to raise it. I would say it is not procedural, as stated earlier; it could be raised at any stage of the proceedings. On the issue of it not being procedural, see the decision of this Court in NDUKA VS. OGBONNA (2010) LPELR – 4587 – CA, as per Sanusi, JCA (as he then was). Also, it is settled law that where the law prescribes a period for instituting an action, proceedings cannot be instituted after the prescribed period, where it is done, it is a nullity. See, OBIEFUNA VS. OKOYE (1961) 1 ALL NLR 357, SANDA VS. KUKAWA LG & ANOR (1991) LPELR – 30001 (SC) P. 14 PARA. D; (1991) 2 NWLR (PT. 174) 379 and SYLVA VS. INEC & ORS(2015) LPELR – 24447 (SC) PP. 55 – 56, PARAS. F – C.

The learned trial judge at page 316 of the printed records in resolution of issue one (1) before the trial Court held as follows:

“Now Section 4 of the Kwara State Limitation Law provides that no action shall be brought to recover any land after the expiration of 10 years from the date from which the right of action accrued to him. Having held that the cause of action accrued in March 1995, it is my humble view that by end of March 1995, (sic) it ought to have dawned on the claimant that his only redress ought reasonably be by filing action in Court. This action was however fled on 1/12/2006. It is not 17/12/2006 as claimed by the 1st defendant in his written address.

Having held that the cause of action accrued on 20/3/1995, since the action must be filed within 10 years of the accrual of the cause of action, the 10 years will laps on 20/3/2005. The action was filed on 1/12/2006, meaning the cause of action under consideration is statute-barred. It is time-barred.”

I cannot fault the above finding in respect of whether the appellant’s action was statute barred. I agree with the finding. What is the effect of an action that is statute barred? The Supreme Court in the case of WILLIAM O. OLAGUNJU & ANOR VS. POWER HOLDING CO. OF NIG. PLC (2011) LPELR – 2556 (SC) at P. 11, PARAS. C- E, his lordship, Onnoghen, JSC (as he then was) in respect of the implication on jurisdiction when an action is held to be statute barred held thus:

“It should be noted that when a defendant contends that the action of the plaintiff is statute barred, he is raising an issue of jurisdiction of the Court concerned on points of law because where an action if found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with empty unenforceable cause of action.”
The above decision says it all. Having held that the action is statute barred, there is nothing left of the appellant’s issue one. The appellant’s issue one (1) is resolved against him.

With the resolution of the appellant’s issue one against him, there is nothing left of the rest of the issues, looking into them would be an exercise in futility and a waste of precious judicial time. I am not unmindful of the appellant’s issue seven (7) of false imprisonment contained in the same action leading to this appeal, held to be statute barred. It cannot be extracted from the action and determined on its own.

In the final analysis, based on the resolution of issue one alone, the appeal is unmeritorious and it is hereby dismissed.

The decision of the trial Court in respect of issue one, that the action instituted by the appellant is statute barred is hereby affirmed, but, the finding dealing with accounting for rents and the claim for damages for false imprisonment that the trial Court found not to be statute barred is erroneous and it is hereby set aside. Suit No. KWS/150/ 06 instituted in the lower Court is hereby struck out.

The parties are to bear their respective costs.

BARKA, J.C.A.

I had the advantage of reading the judgment just delivered by my lord CHIDI NWAOMA UWA JCA. It has long been settled that jurisdiction is the life blood of any adjudication and where lacking renders the proceedings stale and of no use. See Dapianlong Vs. Dariye (2007) 8 NWLR (pt. 1036) 332. In the instant case, it is evident that the claimant’s action was brought in violation of Section 4 of the limitation law of Kwara State 2005. The consequence is that even though the claimant may have had a course of action, his right to seek redress through judicial intervention became stale and unenforceable. It is a jurisdictional matter. My lord amply treated the issue at length to my satisfaction and I agree with the conclusion that the claim was statute barred In the event and upon this premise, I also dismiss the appeal and affirm the decision of the lower Court. I make no order as to costs.

UGO, J.C.A.

I had the privilege of reading in draft the judgment of my learned brother CHIDI NWAOMA UWA, J.C.A., and I agree with his reasoning and the case of appellant in the lower Court was at the end of the Clay ‘decided on the Limitation Law of Kwara State, which was not pleaded by the respondent. One of the main pegs of appellant’s argument here is that since Limitation Law was not pleaded by respondent as required by the Rules of the lower Court but only raised during final address, it was incompetent and should have been discountenanced by that Court. While I appreciate that argument, the apex Court in recent times seems to have taken the view that Limitation statute where applicable affects the jurisdiction of the Court so it can be raised at any time in the case even if not pleaded, as it is not caught by the Rules of Court that requires its being pleading. This is exemplified by its decisions in the cases of Elabanjo v. Dawodu (2006) 15 NWLR (PT 1001) 76; (2005) ALL FWLR (PT 328) 604; F.R.l.N v. Gold (2007) ALL FWLR (PT 380) 1444; Nasir v. Kano State Civil Service Commission (2010) FWLR (PT 515) 195 (S.C.); Owners of Arabella v. NAIC (2008) ALL FWLR (PT 443) 1208 @ 1231; Ajayi v. Adebiyi (2012) ALL FWLR (PT 634) 1 @ 30. It think it necessarily has to be so, if I may add my voice to the issue, since calculation of time for Limitation purposes is normally based on the date of accrual of cause of action as pleaded by the claimant in his writ of summons and statement of claim (Egbe v. Adefarasin (No 2) (1987) 1 NWLR (PT 47) 1) and so, unless elicited during trial, may not require or depend on. what the defendant may say in his defence. Besides, the rationale for the existence of Limitation statutes as admirably set out by my learned brother in the lead judgment ought not to be waived aside on grounds only of a defendant’s omission to specifically plead it, Section 2(b) of Limitation Law of Kwara State Cap K30 is very categorical and definite with its provisions that “No action shall be brought by any person to recover any land after the expiration of a period of 10 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.’ No action means no action and nothing else, even more so when the lawmaker decided to also opt for the mandatory shall to further drive home its point. When rules of Court which are simply handmaids to justice clash with the provisions of substantive statutes, something must give way, and that must the rules. I further note, too, that even in the related matter of service of pre-action notice, it has been also held by the Supreme Court in Nigercare Development Co. Ltd v. Adamawa State Water Board (2008) ALL FWLR (PT 422) 1052, (2008) 34 NSCQR 226 that because service of pre-action notice, where required by statute, is a condition precedent to exercise of jurisdiction by the Court, it can also be raised at any time and the failure to plead it does not affect its efficacy. Incidentally, in Nigercare the issue of service of pre-action notice was not even raised by the defendant in its pleading or even in final address. It was the trial judge who, while writing judgment, stumbled on it and asked counsel to address him on it, after which he declined jurisdiction and struck out the case. The apex Court on appeal held that he was in order. By reason of that decision, this Court (Ejembi Eko, J.C.A. as he then was) was even prompted to declare in Port Harcourt Refining Co. Ltd v. Okoro (2012) ALL FWLR (PT 606) 466 @ p. 485 – 486 that the long-revered authority of Katsina Local Authority v. Makudawa (1971) 1 NMLR 100 which had held that a condition precedent like service of pre-action notice is deemed waived if not pleaded no longer represents the position of the law. For this little embroidery of the lead judgment of my learned brother Uwa, J.C.A., which judgment I here adopt as mine, I also dismiss this appeal and uphold the judgment of the lower Court. I abide by my lord’s order as to costs.

Appearances:

M.O.A. Olawepo, Esq. For Appellant(s)

O.T. Olorunnisola, Esq. with him,

M.H. Ibiyemi (Mrs.) and O.O. Adepitan (Miss) – for 1st Respondent.

K.B.A. Badmus,Esq.- for 2nd Respondent. For Respondent(s)