Albert Ebenogwu & Anor V. O. O. Onyemaobim (2007)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.CA.

By a writ of summons and a statement of claim dated and filed on the 10/10/95, the respondent commenced this action initially against the 1st appellant alone before the Plateau State High Court. Later by an amended writ and statement of claim, the respondent was granted leave to join the estate of one 2nd Lt. Godwin Idoko as a defendant in the matter. Whereupon the respondent as the plaintiff claimed against the 2nd defendant now appellants the following reliefs:

(1) A declaration that the plaintiff is the lawful owner and landlord of that building and premises together with the appurtenances thereto lying and situate at V.39. Mallam Kure Street. Jenta (otherwise called V.39, Jenta New Layout) and that the plaintiff is entitled to lawful possession of and rent on the aforesaid building and premises (V.39, Mallam Kure Street, Jenta. Jos).

(2) A declaration that the plaintiff is entitled to possession of all that piece/plot of land known as (No. V., Jenta New Layout Jos) and a right to be granted a statutory Right of Occupancy over same.

(3) A declaration and/or order that the defendants are trespassers to and are not in lawful possession and/or occupancy of that building and premises lying, being and situate at No, V.39 Mallam Kure Street. (Jenta New Layout) Jos and has (sic) no right to collect and/or use rent collected therefrom.

(4) An order on the defendants to quit and deliver up immediate vacant possession of the building and premises including the appurtenances thereto to the plaintiff.

(5) An order of injunction perpetually restraining the defendants from further dealing in any manner whatsoever with the landed property.

(6) An order for account from the defendants of all arrears of rent/mesne profits on the said building and premises together with the appurtenances thereto at N300.00 per month for each of the three stores and N150.00 per month for each of the eight rooms from October, 1979 until possession of the building and premises together with appurtenances thereto are delivered up to the plaintiff; and payment by the defendants to the plaintiff all money collected by defendants in respect of the said property, inclusive of all such sums due on the four rooms occupied by the defendants.

(7) One Million Naira damages for trespass and/or unlawful possession, and collection or rents on the building and premises together with appurtenances thereto without rendering account, and/or for detention/retention of same.

(8) Costs of this suit.

The respondent case as plaintiff before the lower court was to the effect that he acquired the property in issue as an empty plot from one Dung Jah, the customary owner for the sum of ? 190 pounds on the 26th April 1962. Exhibit A is the sale agreement. That he thereafter applied to and received the approval of the Jos Native Administration to build on the said land. By agreement with two building companies, a building was erected on the land. He tendered the agreements before the court as well as receipts of payments he made to the two building companies. When the ground floor of the building was completed, the respondent obtained the approval of the Jos Native Authority Administration to occupy the building, which he did on connecting electricity to the building. At the onset of the Nigeria Civil War in 1966, the respondent had to leave Jos for Western Region. After the Biafran War, he returned to Jos and went to the Abandoned Properties Committee for the house, which being satisfied of his ownership handed over the property to him.

On going there, he found that the property was completely occupied by the Nigerian Army. On contacting them, they confirmed being B on the property, expressed their desire to remain on same as tenants and paid him his arrears of rent for the time they had been in possession and occupation. He applied for and was granted a new Certificate of Occupancy in respect of the premises.

He left for the East and as a result of sickness and series of misfortunes could not return to Jos till 1979. On going to the Army to collect arrears of rent, he was informed that the army had vacated the propet1y and was no longer interested in renting same.

He went to the property and found a number of civilians including the 1st appellant and the army in occupation. The 1st appellant challenged his ownership of the property and told him that the house belonged to an undisclosed person and that, he was the caretaker. The Army, the State Security Service and the Police tried to intervene in the matter but the 1st appellant was adamant that he was caretaker for an undisclosed owner.

The respondent made a search at the Lands Registry and found that the property was still registered in his name.

In 1995, the 1st appellant alleged that the property belonged to one 2nd Lt. Godwin Idoko who before his death had willed part of the property to him. The respondent thereafter initiated the case giving rise to this appeal before the trial court.

The 1st appellant on the other hand, testified that the property was bought by the late 2nd Lt. Godwin Idoko from the respondent in 1974 and the said late 2nd Lt. Godwin Idoko made him caretaker to the property and on his death willed part of the property to him and he was thereafter collecting rent on the property and transmitting same to the family of the deceased in their village. That he only became aware of the respondent in 1995 when he came to claim the property as his. He said he had been on the property since 1974 and had been paying tenement and grounds rent since then and tendered receipts to that effect and was the landlord and caretaker of the property. At the conclusion of trial, the learned trial Judge in a well considered judgment delivered on the 21/11//2005 entered judgment for the plaintiff and granted him all the reliefs claimed.

Being dissatisfied, the defendants as appellants have now appealed to this court on six grounds of appeal.

As it is the practice of this court, parties filed and exchanged briefs of argument.

In the appellants’ brief, the following issues were formulated for the determination of this appeal:

1. Whether from a close and careful reading of the pleadings and evidence adduced the respondent’s case was not caught up by the statute of limitation and thus became statute barred.
2. Whether the learned trial Judge was right in raising suo motu, the issue of concealment and determination same (sic) without affording the parties an opportunity to address it on the issue.
3. Was the trial Judge right in expunging exhibit 5 when in judgment (sic) after admitting it earlier during the hearing of the matter.
4. Whether from the entire evidence proffered by the plaintiff, it can be said that the plaintiff discharged the onus of proof on him in view of the overwhelming evidence of the defendants.
5. W the trial Judge right in awarding cost of N15,000.00 against the defendants from 26/4/2001 to 21/11/2005 without adverting his mind to the fact that earlier awards of cost of appearances had been paid by the defendants.

The respondent formulated these issues:

1. Whether the action of the plaintiff/respondent was statute barred.
2. Whether the learned trial Judge raised the issue of concealment suo motu without affording parties the opportunity of addressing the court on the said issue.
3. Whether the plaintiff/respondent proved his claim before the lower court entitling him to judgment.
4. Whether the appellants can appeal on costs without the leave of court first had and obtained.

The appellants proffered arguments on six issues even though they formulated only five issues. On the other hand, the issues formulated by the respondent aptly cover all the grounds of appeal.

I will adopt them accordingly in the determination of this appeal.

On both parties, issue one which covers ground one, the appellant submits that the respondent’s case before the trial court was statute barred: the cause of action having accrued 16 years before the respondent initiated the action. He maintains that from the pleadings the respondent was aware of the challenge to his title over the property as at 1979 yet never went to court till October. 2005. The appellant further submits that the action having not been brought within 10 years stipulated by the provisions of section 3 and 4(1) of the Plateau State Limitation Edict No. 16 of 1988, it was belatedly filed and the trial court lacks the competence to determine it. – He relied on and cited the case of Gov. Ekiti State v. Awolola (2006) All FWLR (Pt. 312) 2006: S.T Onadeko v. U.B.N. Plc (2006) All FWLR (Pt. 301) 1872: (2005) 4 NWLR (Pt. 916) 440: Carey v. Bormordsey Metropolitan Borough Council (1093) 20 TLR 2 and urged us to allow the appeal on this issue.

The respondent submits on this issue that the Plateau State Limitation Edict having not been specifically pleaded by the appellant before the trial court, its provisions cannot avail him. He relies on .the provisions of Order 25 rule 6(1) of the Plateau State High Court (Civil Procedure) Rules 1988 which he said is a mandatory provision and that by the failure of the appellant to specifically plead it, he was deemed to have waived his right to the benefit of the state. See also A.D.C.. Obitti, Imo State v. Chief Tom E. Okedi & Ors. (2004) II NWLR (Pt. 884) 369: Adesanoye & 2 Ors. v. Prince Adewole (2006) All FWLR (Pt. 340) 1000: (2006) 14 NWLR (Pt. 1000) 242.

It was also the submission of the respondent that the appellant who had maintained from 1979 that he was only a caretaker for an undisclosed owner did not reveal the identity of the owners until 1995 and that the course of action could only have arisen then when there was a named person to sue. For the above reasons, he maintained that the cause of action arose as at 1995 not in 1979. and urged us to so hold.

Here,are two factors raised by the respondent:

1. That the appellant has not pleaded the limitation statute, it can therefore not avail him now.

That as at 1979 when the respondent found the appellant in occupancy of the property in question, the appellant did not disclose the supposed owner of the property but only identified himself as a caretaker.

For a better understanding of this issue and the other issues in the appeal, I reproduce hereunder the pleadings of the parties.

Amended Statement of Claim

1. The plaintiff is a farmer and resides at Isikwo, Ezioko Village, Oko, Orumba North Local Government Council of Anambra State:
2. The defendant is a retired soldier in the Nigerian Army and also a security guard With the University of Jos and he resides at V.39 Mallam Kure Street (Jenta New Layout) Jos, Plateau State. The defendant was transferred from Enugu in 1970 to Jos by the Nigerian Army and was put on the property (V.39 Mallam Kure Streel, Jenta, Jos) by the Local Army Headquarters in Jos and the defendant has continued to live there even after his retirement from the army. Since coming to Jos in 1970 and until his retirement from the army, the defendant worked in the Estate Department of the Nigerian Army (presently 3rd Armoured Division) in Jos;
3. The plaintiff states that by a transaction under Native Law and Custom, he purchased and took possession of a vacant piece or plot of land situate at V.39, Jenta New Layout (presently Y.39, Mallam Kure Street, Jenta), Jos (hereinafter called “the property”) in April, 1962 from the customary owner, Mr. Dung Jah, now deceased. The sale and purchase of the property which was at a consideration of one hundred, and ninety pounds was evidenced in an agreement dated 26th April. 1962 made between the plaintiff and Dung Jah:
4. After the purchase of the said propel1y, the plaintiff by a letter dated 13th June, 1963 submitted his building plans for approval to build a house on same, and the application (for approval) was approved by the Lands and Survey Office of the Jos Native Authority by their letter (to the plaintiff) dated 18th June. 1963:
5. Having secured the said approval. the plaintiff engaged the services of M. Diji & Company to which it paid the sum often pounds pursuant to the letter’s receipt number 290 dated 23,d August. 1963 and another twenty pounds via the contractor’s receipt No. 294 dated 31/8/63 being the first and second payments respectively for the erection of the building at V.39 Jenta Layout, Jos which presently is V39, Mallam Kure Street. Jenta, Jos. And the lands officer of the Jos Native Authority, Lands Office was duly informed by the plaintiff’s letter dated 28th August, 1963 that work had commenced at the site (Plot V.39); 6. The plaintiff made further payments of forty pounds (by two equal installments) to M. Digi & Company via the letter’s receipt number 299 and 203 dated 14/9/63 and 28/9/63 respectively for the construction of the building at V39, Jenta New Layout, Jos which is now C V39, Mallam Kure Street, Jenta Jos;
6. By the plaintiff’s letter to the lands officer, Jos Native Authority, dated 28th June, 1965, the plaintiff applied for Certificate of Occupancy in respect of the plot at V.39, Jenta New Layout, Jos. And the Jos Native Authority, Lands and Survey Office, by their letter dated 2nd July, 1965 sent the plaintiff cel1ificate of occupancy form to fill and forward to them for necessary action, and same was duly filled by the plaintiff who signed and dated same 19th July, 1965; 8. By an agreement made/dated 10th September, 1965, the plaintiff engaged the services of the Nigerian Building Company at the agreed sum of two hundred and thil1y pounds to complete the building at V39, Jenta New Layout, Jos and same was paid instalmentally via Nigerian Building Company receipt numbers 258 (dated 8/11/65), 269 (dated 15/2/66), and 273 (dated 23/4/66), 278 (dated 1/7/66) amongst others:
7. The plaintiff also paid one pound to the Electricity Corporation of Nigeria, evidenced on the letter’s invoice as connection fee, and pursuant to this payment the property (V39, Jenta New Layout. Jos) was connected with electricity and given meter number 1/66-7:
8. After the completion of the ground floor of the building on the plot (V39), the plaintiff by a letter dated 1st July, 1966 wrote the lands officer, Jos Native Authority. Lands and Survey Office informing him of the said completion whereupon the latter carried out all Inspection of same to confirm the completion and by his latter to the plaintiff dated 14th July, 1966 permission to occupy the said ground floor was granted:
9. After obtaining the said permission to occupy the ground floor of the properly, the plaintiff was forced to flee Jos due to the hostilities which had broken out in the then Northern Region of Nigeria and which precipitated the Nigeria/Biafran war of 1967-1970;
10. The property was yet to be rented out to tenants before the plaintiff fled Jos for Eastern Nigeria;
11. At the end of the war, the plaintiff came back to Jos, and after the said plot/building was returned to the plaintiff by the Abandoned Property Committee, the plaintiff filled another application for Certificate of Occupancy over the said plot No, Y.39, Jenta New Layout (now Y.39, Mallam Kure Street, Jenta), Jos which he signed and dated 16/12/71, and submitted same to the Jos Native Authority, Lands and Survey Office whose lands officers minutes on same recommending that the plaintiff be granted a certificate of occupancy for the period of thirty years; and the said approval was communicated to the plaintiff by the Jos Local Administration via their letter dated 2nd November, 1972 and Certificate of Occupancy No, 0634 over Y.39, Jenta New Layout, Jos Native Town for a term of thirty years commencing from 5th December, 1972 was given to the plaintiff after he had paid twelve pounds ten shillings, via the Jos Local Administration receipt No, 021383 dated 4/12/72, to the Jos Local Administration:
12. After the property was returned to the plaintiff, the plaintiff went to the property and found that it had been entirely taken over and occupied by men of the Nigerian Army, and the plaintiff then went to the then Local Army Headquarters at Queen Elizabeth Way (now Murtala Muhammed Way), Jos where on presentation of his documents of title pertaining to the property, he was paid all his arrears of rents on the property, and the Army expressed its desire to continue its tenancy thereof;
13. The plaintiff states that knowing the Nigerian Army to be a very good tenant he (plaintiff) did not see the ground to be shuttling between his Enugu, home and Jos every now and then for the sole purpose of collecting monthly rents from a very reliable tenant (the Nigerian Army) which could pay several years’ arrears of rents on demand, and this was more so because the plaintiff then mysteriously lost his son and his brother and had fallen sick, which sickness was in the main psychological, giving rise to his conference to the Eternal Sacred Order of Cherubim and Seraphim at 14, Ilukwe Street, Enugu where he was subject to spiritual treatment by way of regular prayers;
14. After some years, when the plaintiff had become strong/sound enough to travel, the plaintiff visited Jos to collect his accumulated arrears of rent from the Nigerian Army but the plaintiff was told that as a part of the policy of the Obasanjo Military Administration’s hand over of o power to the civilians, more particularly to Alhaji Shehu Shagari as the President of Nigeria on 1st October, 1979, all soldiers had to move into the Military Barracks; that the Army finally left the premises at V.39, Mallam Kure Street, Jenta, Jos in September, 1979;
15. On further enquiry, the plaintiff was told by certain Mr. Innocent C. Egwui that the defendant has been on the premises before and after October, 1979 claiming to be my caretaker, putting tenants in the premises and collecting rents from them while he personally occupies four rooms in the premises;
16. The plaintiff then confronted the defendant, telling defendant that plaintiff owns the premises and asked him who put him (defendant) on the premises but the defendant became violent and threatened to kill the plaintiff should the plaintiff enter the premises again;
17. The plaintiff’s request for all arrears of rent collected by the defendant was violently rebuffed by the defendant who then claimed that he was a caretaker for an unknown, undisclosed, and or imaginary person.

Consequent upon the defendant’s strange and untoward conducts, the plaintiff severally visited Jos and the 3rd Armoured Division, Jos demanding that his property which he never alienated to any one be relinquished to him (by the Army) but without success. And as a last resort, the plaintiff wrote the 3rd Armoured Division, Jos in May, 1995 but the defendant failed to co-operate to have the matter sorted out by the Army;

20. As a result of defendant’s claim that someone else other than the plaintiff owned the premises (property), the plaintiff was forced to go to Jos North Local Government Council to find out if there was any fraudulent dealing in his title to, interest and right to possession and occupation of the property but the plaintiff found that his ownership of the property/premises and Certificate of Occupancy had not been in any way altered. The Jos North LGC wrote the Police Area Command in answer to the police request stating that the plaintiff is the rightful owner of the property;
21. The plaintiff was advised to pay and he paid N500.00 as rent fees on the property for the year 1984 to 1988. The receipt dated 31/5/95, number 152827, shall be relied upon;
22. The plaintiff again had to consult his solicitors who wrote to the Bureau for Lands, Survey and Town Planning Jos by a letter dated 12/06/95 to find out if any other person had been given a right and/or Certificate of Occupancy to and over that property;
23. The aforesaid Bureau wrote the plaintiff’s solicitors, via a letter dated 29th June, 1995, stating that the propel1y (v’39, Mallam Kure Street, Jos) does not fall on any existing statutory grant. This was after the plaintiff had taken a staff of the Bureau to the property and the property was surveyed and a site plan dated June, 1995 in the plaintiff’s name was prepared and submitted to the Bureau. The site plan and Bureau letter shall be relied upon;
24. The plaintiff then applied for a Statutory Right of Occupancy over the property and paid N250.00 for the application which payment was covered by Plateau State of Nigeria Revenue Collector’s receipt No. C447603 dated 16-06-95;
25. The plaintiff also N 1,000.00 as registration fee on PL 24369 (the Right of Occupancy number, on the application, given to the plaintiff). N 100.00 per site inspection and N 100.00 on the site plan and was issued Plateau State Revenue Collector’s receipt numbers 0447829.0447830 and 0447831 respectively, all dated 23/6/95;
26. The Bureau wrote to plaintiff via its letter dated 4/7/95 acknowledging receipt and registration of plaintiff’s application for a Statutory Right of Occupancy as R. of O. No. PL 24369:
27. The plaintiff has, through his solicitors, served the defendant a notice dated 12/6/95 to quit the premises, even though the defendant, as a trespasser and/or illegal or unlawful occupant of the premises, is not entitled to any quit notice, but the defendant has refused to quit and deliver possession of the premises to the plaintiff;
28. Rather than quit the premise, the defendant has continued to collect rents from the tenants, issuing some with suit notices, while the propel1y/premises continue to remain unkempt and unmaintained. The notices to quit served on one of the tenants shall be relied upon at the hearing of this suit;
29. The plaintiff has been often compelled, as a result of the recalcitrant attitude of the defendant, to have to travel all the way from Oko in Anambra State to Jos expending so much money in the process:

Amended Statement of Defence

SAVE AND EXCEPT as is hereinafter expressly admitted, the defendants hereby deny each and every averment in the plaintiff’s statement of claim (hereinafter referred to as the claim) as if same were set and traversed seriatim.

1. The 1st defendant is not in a position to admit or deny paragraph 1of the statement of claim.
2. Paragraph 2 of the statement of claim is denied and the 1st defendant will contend at the hearing of this suit that he was not put on the property known as V.39. Mallam Kure Street, Jenta, Jos by the Army Headquarters nor has he ever worked in the Estate department in the Nigeria Army Jos since there is nothing like the Estate Department in the Nigeria. The plaintiff is put to the strictest proof thereof.
3. The averment in paragraphs 3, 4, 5, 6 and 7 of the statement of claim are denied and the plaintiff is put to the strictest proof thereof.
4. In fut1her answer to the averment in paragraph 3 of the claim, the 1st defendant avers that he is neither a trustee nor representative of the estate of late 2nd Lt. Godwin Idoko but a cousin of his to whom the house in question was willed.
5. In fut1her answer to paragraphs 4, 5, 6 and 7, the 1st defendant avers that he is not in a position to deny or admit the averments so the plaintiff is thereby put to the strictest proof thereof.
6. The defendants deny paragraphs 8, 9 and 10 of the statement of claim and put the plaintiff to the strictest proof thereof.
7. Paragraphs 11 and 12 of the statement of claim are denied and the plaintiff is put to the strictest proof thereof. In further answer to paragraph 12 of the claim, the defendants aver that the plaintiff sold the said house to the late 2nd Lt. Godwin Idoko.
8. The defendants aver fut1her in answer to paragraph 12 of the claim that it was when the plaintiff realized that he could lay no claim to the premises during the lifetime of the late Godwin Idoko having earlier sold it to him that he waited until after his death to sue.
9. The defendants deny paragraphs 13 and 14 of the statement of claim and will at the trial of this suit contend that:-

(a) The propet1y was not rented as claimed to the Nigerian Army but was sold, assigned and/or validly transferred to one 2nd Lt. Godwin Idoko’s (now deceased), Commission Officer in the Nigerian Army, sometimes in 1974.

Relevant documents evidencing this sale were destroyed in a fire accident, which gutted the said Godwin Idoko’s house in December 1981.

However, the proposed building plan, which was not affected by the said fire disaster, is hereby pleaded and shall be relied upon at the hearing of this suit. The police extract, which was given upon the report of the said fire incident is hereby pleaded and shall be relied upon at the hearing.

(b) The said Godwin Idoko (deceased) who is a cousin of the defendant upon acquiring the said property made a will wherein he gave part of the building to the I” defendant and also appointed him caretaker over the entire building.

The will of the said Godwin Idoko (deceased) is hereby pleaded and shall be relied upon at the hearing of this suit.

(c) The 1st defendant in his capacity as caretaker rented out the premises to tenants who were mostly soldiers of Idoma origin from Benue State and this accounted for the large presence of Military personnel in the building. However, by [979 during the handover of power to civilian administration, most of these soldiers had either left for the barracks or transferred out of Jos.

10. The averments in paragraph 15 of the statement of claim is denied and the defendants states further that the Army has a well established system of renting quarters for their serving personnel which is usually not on a monthly basis.
11. Paragraphs 16, 17, 18 and 19 of the statement of claim are vehemently denied and the plaintiff is put to the strictest proof thereof at the hearing that the plaintiff having waited for 21 years i.e. (1974-1995) before taking any action in May, 1995 has slept over his right, if any is denied, he had over the property.

(a) During this period of 21 years that the 1st defendant was in possession of caretaker to the said Godwin Idoko (deceased), he has been taking in tenants and collecting rent from them. The rents so called were remitted to the said Godwin Idoko (deceased) until his death in May 1994. His (1st defendant) possession or the ownership right of the deceased was never challenged by anyone until February, 1995. One year after the death of the deceased landlord.

(b) That the said Innocent Egwui who resided very close to the defendants misled the plaintiff into thinking that the defendant was occupying the said property illegally. Further Mr. Innocent Egwui is a principal actor in the well-designed lot to seize by unlawful means the said property from the defendant.

12. Paragraphs 20, 21, 22 and 23 of the statement of claim are denied and the plaintiff is put to the strictest proof thereof. In addition, the defendants at the hearing of this suit shall contend that the plaintiff realized rather belatedly the inherent difficulty in forcefully trying to enter upon and seizing the defendant’s property by using men of the Army, police and SSS, the plaintiff now resolved to going through the back door by enlisting the services of the officials of Jos North Local Government. In the process, the plaintiff was misled into paying rental fees on property for the year 1984 to 1985, same having earlier been paid by the defendant. The defendant shall rely on property Rate demand notice and revenues receipt evidencing the said payments.
13. The 1st defendant denies paragraphs 24, 25 and 26 of the statement of claim and puts the plaintiff to strictest proof thereof. The 1st defendant shall further contend that on realizing the dubious motive of the plaintiff in trying to process a new Statutory Right of Occupancy over the said property, he instructed his solicitors Messers Igoche P. Onuh & Co., who wrote a caveat to the Director – General Bureau for Lands, Survey and Town Planning. 105 thereby stopping any further action on the plaintiff’s application. The said letter dated 23rd October, 1995, shall be relied upon at the hearing of this suit.
14. The averment in paragraphs 27. 28 and 29 arc denied and the plaintiff is put to the strictest proof thereof. Further the 1st defendant Slates that he is not occupying the said property illegally or unlawfully. Secondly, that the said property is well kept and maintained. And finally the trip made by the plaintiff is not to the 1st defendant’s knowledge and certainly not at his instance.
15. Whereof the 1st defendant denies all the claims made in paragraph 30 of the statement of claim and shall at the hearing urge the Honourable Court to dismiss the entire suit for being statute bailed.
16. The 1st defendant avers that the said building situate at No. V.39, Jenta New Layout (now V.39, Mallam Kure Street, Jenta), Jos was sold to late 2nd Lt. Godwin Idoko by the plaintiff before he (plaintiff) fled Jos during the war.
17. The 1st defendant will also be heard at the hearing to state that the said 2nd Lt. Godwin Idoko had willed the said premises to him before his death.
18. Whereof the 1st defendant claims as follows:-

(i) A declaration that the said building situates at D No. V.39, Mallam Kure Street, Jenta, Jos, belongs to him, same having being previously willed to him by one 2nd Lt. Godwin Idoko to whom plaintiff sold the building.

Where a party seeks to rely on a statute of limitation, the E requirement under the rules of court in Plateau State is as provided under Order 25 rule 6(1) of the Plateau State (Civil Procedure) Rules, 1988 which provides:-

“A party shall plead specifically any matter for example performance, release, any relevant statute of limitation, fraud or any fact showing illegality which if not specifically pleaded might take the opposite side by surprise.”

The above provision is mandatory; it requires the appellant who wants to rely on the Limitation Edict to specifically plead same, so as to give sufficient notice to the other party. See A.D.C., Obitti, Imo State v. Chief Okedi & 3 Ors. (supra) at 385 per Ikongbeh, J.C.A:

“To be able to rely on a statute of limitation as defence, the defendant is obliged to specifically plead such statute. The word used is shall. It makes a pre-emptor H demand on the defendant for the action specified. If the defendant fails to plead the statute he cannot take advantage of it.”

Before I give my answer as to whether the statute was pleaded or otherwise. I will look on the second factor, i.e. when the cause of action in this matter did arose?

A cause of action as defined by the courts is said to be the fact or set of facts which gives a party a right to a judicial relief Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549. Where there is a limitation period, such limitation period is determined by looking at the writ of summons and the statement of claim which alleges when the wrong was committed giving rise to the cause of action and comparing it with the time when the matter was commenced i.e. when the writ of summons was filed. Time can, however, only begin to run when there is in existence a person who can sue and one who can be sued and all material facts arc there to be proved to entitle the plaintiff to the sought relief.

I have closely looked at the plaintiff’s pleadings in finding out when the cause of action in this matter arose. In my view paragraphs 19 and 20 of the statement of claim are here, relevant. I must agree with the respondent’s submission that it was only at the time disclosure was made as to the person who owned the property – i.e. a known person who can be sued that the cause of action arose. Prior to 1995, there was nondisclosure of a defendant to be sued as the 1st appellant had maintained he was only a caretaker on the premises. The cause of action arose as at 1995 and the learned trial judge rightly found so.

I am also in agreement with the respondent that the appellant having not specifically pleaded the statute of limitations in his statement of defence, he can now not raise it to his advantage. In any case, even if it can avail him, it was a law which was promulgated in 1988. Can it have retrospective effect on matter that was said to have arisen in 1979? I believe the answer is no. I resolve this issue in favour of the respondent.

The second issue relates to the appellants’ 2 and 3 issues and to the finding of the trial court as contained at page 262 reproduced hereunder:

“Another issue on this regard is the conduct of the defendant, the 1st defendant did everything possible to conceal to the plaintiff the 1st defendant claimed had put him on the property as caretaker. At a point, he said it was one Mr. Akor, but when he ask for time to produce the said Mr. Akor, he changed and said it was one 2nd Lt. Godwin Idoko who put him on the property as caretaker. It will be contrary to equity and good conscience for the defendants to use such conduct to avail himself of lapse of time. The court will not allow him to get away with such conduct, he may have no dishonest motive but that does not matter so far he has kept the plaintiff out of the knowledge of his right of action and in itself is enough – Admin/Exec., Estate, Abacha v. Eke-Spiff (2003) 1 NWLR (Pt. 800) 114.”

The appellant submits on the above that the learned trial Judge was wrong in law to have concluded that the 1st appellant did everything possible to conceal to the plaintiff the person the 1st appellant claimed put him on the property as caretaker. He contends that the respondent did not plead concealment neither did he lead evidence to establish concealment, the learned trial Judge was thus wrong to have suo motu raised concealment without according the o parties the opportunity of addressing him. That this infringes on the right of the parties to fair hearing and vitiates the proceedings. With all due respect to the learned counsel to the appellants, the above finding of the learned trial Judge was based on the pleadings and the testimony of the respondent/plaintiff before the lower court.

See in particular paragraph 19 of the amended statement of claim. See also page 183, lines 2-5 where the respondent while testifying in chief said:

‘The 1st defendant challenged me, he said he did not know me and that he was on the property as a caretaker for someone else who I did not know and under cross-examination at page 194, lines 2-5 of the records:

‘When I introduced myself to the 1st defendant in 1979 that I was the owner of the property, he said he did not know me that he was a caretaker for an undisclosed person.’”

As can be seen from the above, the issue of ‘concealment’ was not a new issue introduced by the trial judge in his judgment, or raised suo motu by the court as alleged by learned counsel. That the 1st defendant did not initially disclose the supposed owner of the property to the respondent was not introduced at judgment stage, rather it was pleaded and evidence led in support.

The contention that it was raised suo motu and parties not given a chance to address the court on it cannot hold water. The finding of the lower court complained against was an assessment of the pleadings and the evidence in support, the use of the word concealment was apt and in order to the adduced evidence and the circumstances of the case. This issue must also fail.

The next issue relates to the respondent’s 3rd issue and the appellants’ issues 4 and 5. These issues are on the evaluation of evidence by the trial court. The case as put up by the respondent before the lower court was that he was disposed of a land on which he built on by the 1st appellant who claimed he was a caretaker on the property initially for an unnamed principal and subsequently for the deceased 2nd Lt. Godwin Idoko who was said to have bought it from the respondent. The respondent testified before the lower court and tendered documents to show he originally purchased the vacant and from whom, how he built on the property as well as a certificate of occupancy to the land. The 1st appellant on the other hand, testified that the property belonged to the deceased, his cousin who purchased it from the respondent that he was staying on the property as a caretaker but that before 2nd Lt. Idoko died, he relied part of the property to him and the other part to his children, and that since 1974 after the deceased died, he had been collecting rent and transmitting same to the children of the deceased and had been paying ground and property dues on the property since then. He also tendered some documents which included exhibit 5, a deed of assignment where the property was said to have been sold to late 2nd Lt. Idoko by the respondent which was subsequently expunged by the lower court that it being a registrable instrument, it was not registered.

It is trite that title of land can be proved in one or more of five ways:

1. by traditional evidence:
2. by production of documents of title which are duly authenticated:
3. by acts of selling, leasing, renting out all or part of the land or farming on it or on a portion of it:
4. by acts of long possession and enjoyment of the land:
5. by proof of possession of connected or adjacent land in circumstances rending it probable that the owner of such connected or adjacent land would in addition, be the owner of the land in dispute.

See Idundun v. Okumagba (1976) 9-10 SC 227; Thompson v. Arowolo (2003) 109 LRCN 1345; (2003) 7 NWLR (Pt. 818) 163; Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628.

In an action for declaration of title to land, it is the duty of the plaintiff to adduce sufficient evidence to establish the mode of acquisition of his title by one or more of the five ways. He must rely on the strength of his case and not on the weakness of the defendants’ case. In the instant case, the respondent relied on documentary evidence as the mode of his acquisition, the appellant could not prove a better title. The lower court properly appraised the evidence and rightly found for the plaintiff. I see no cause to disturb that finding. The last issue was on the costs awarded on delivery of judgment. The appellant submits that the lower court was wrong to have awarded N15,000 cost for 30 appearances without adverting its mind to the fact that the appellant had already paid N 17,000 for 3 appearances, which ought to have been subtracted from the 30 appearances.

I have checked the records and it is a fact that a total cost of N 17,000 was awarded against the appellant by the lower court on the 19/6/2003, 28/7/2003 and 21/11/2003.

The lower court should have adverted its mind to it while making the order for cost for appearance; it should have been for 30 appearances less the 3 appearances. The appeal is allowed on this Issue.

In the circumstances, I find no merit in the other grounds of appeal and I hereby dismiss it. I affirm the decision of the lower court delivered on the 21/11/05 with an amendment on the order for cost. The respondent shall be entitled to cost of N500 for each of the 27 appearances against the appellant before the lower court.

Cost of N50, 000 is awarded against the appellant in this court.

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Other Citations: (2007)LCN/2548(CA)