John Ehanire V. Patrick Erhunmwuse (2007)
LawGlobal-Hub Lead Judgment Report
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
This is an appeal against the judgment of Hon. Justice, J. I. Acha of the Benin Division of the Edo State High Court in Suit No. B/360/2003. By an Amended Statement of Claim dated 3rd May, 2004, the appellant, as plaintiff before the lower Court, claimed the following reliefs, namely: –
- A declaration that the continuous detention of the building and premises known as No.3 Osagie Street, Off St. Saviour Road, Benin City within the Benin City Judicial Division from the plaintiff by the Defendant is wrongful;
- An order directing the defendant to quit the building and premises known as No.3 Osagie Street, Off St. Saviour road, Benin City, forthwith;
- An order directing the defendant to put the building and premises in a good state of tenantable repairs before vacating same;
- N10,000,000.00 (Ten Million Naira) being general damages for unlawful detention and/or usage; and
- Perpetual injunction restraining the defendant from parading himself as the owner of the building known as No.3 Osagie Street, Off St. Saviour Road, Benin City, having divested himself of the title therein.
By paragraph 22 of the Statement of Defence dated 15/3/04, the defendant averred as follows:-
- “The defendant shall contend before or during the hearing of this case that this Honourable Court lacks the requisite jurisdiction to entertain this suit as it is statute-barred since the cause of action (if any) arose since 1986 when the defendant allegedly refused to hand over the property to the plaintiff.”
Further to the statement of defence, the defendant filed a motion on notice dated 30/4/04. It was filed on 3/5/04. This application inter alia was for an order setting down the points of law in paragraph 22 of the statement of defence for hearing and determination before trial. It was supported by a 5 paragraph affidavit. The Plaintiff/Respondent/Appellant filed a 10 paragraph Counter-Affidavit to oppose the application. By an order dated 31/5/04 and after hearing respective learned counsel, the learned trial Judge granted the defendant’s application for a proceeding in lieu of demurrer to determine whether or not suit No. B/360/2003 was statute-barred.
The motion was heard on 29/7/04 and ruling was reserved for 18th October, 2004. In his ruling of 18/10/04, the learned trial Judge held as follows: –
“I find and I hold that this suit was filed outside the statutory period of 12 years allowed by the Limitation Law; it is therefore statute barred and not maintainable in law. This suit is accordingly dismissed.” “See page 47 lines 6 -10 of record of appeal.
The plaintiff was dissatisfied with this ruling of the lower Court. He appealed to this’ Court in a notice of appeal dated 28/10/04 and filed on 8th November, 2004. The notice of appeal contains 5 grounds of appeal with very copious particulars. To prosecute the appeal, the appellant filed the appellant’s brief of argument. It is dated 29/3/06 and filed on 30/3/06. It was settled by learned Counsel Chief D.O. Okoh. The respondent’s brief of argument was settled by learned Counsel Mr. K.E. Mozia. It is dated 21/8/06 but was deemed properly filed and served on 5/2/07. To cap it all, learned Counsel Chief Okoh, filed a reply brief to the respondent’s brief of argument. The reply brief was dated and filed on 19/2/07.
When the appeal come before- us for hearing on 18th April, 2007, respective learned Counsel adopted and relied on their respective briefs of argument. In arguing the appeal, the appellant abandoned ground 4 of the grounds of appeal and formulated 2 issues for determination in this appeal from the remaining 4 grounds of appeal. The 2 issues are: –
- Whether the appellant’s claim is statute-barred having regards to the nature of damage which is in continuance and lingering in nature and/or whether the claim does not come within the exceptions of the Law of Limitation; and
- Whether time runs during the pendency of an action.
After raising and arguing a preliminary objection on the competence of issue 1 in the appellant’s brief, the respondent’s brief, ex abundante cautela, formulated and argued a lone issue as what learned Counsel considered as the main issue in the appeal. It is hereby set out thus: –
“Whether the lower Court was right in holding that the case -was statute-buarred by virtue of the provision of the Limitation Law of Bendel State, applicable to Edo State.”
Before going into the arguments of respective learned Counsel on the formulated issues, I wish to capture what I consider to b e the intriguing circumstances of this case on appeal. The claim of this appellant is founded on a purported sale to him by the respondent his house at No.3, Osagie Street, Benin City. The purported sale was alleged by the appellant to have been executed in 1986. After the said sale, the appellant claims that the respondent refused to hand over the sold house to him. In consequence of the refusal of the respondent to vacate and hand over the sold premises to the appellant, the appellant commenced an action in suit No.OR/ACC/86R/87 before the Oredo Area Customary Court, Benin City. The claim of the appellant against the respondent before that court was for possession and order for the respondent to quit the building known as No. 3, Osagie Street, Benin City, etc. The appellant succeeded in his claim. On an appeal to the High Court by the respondent, the appellant continued with his winning streak. A further appeal to the Court of Appeal, the appellant remained on top, until an appeal to the Supreme Court turned the table against the appellant, when the apex Court held that the Customary Court lacked jurisdiction to entertain the claim of the appellant. The Supreme Court struck out the claim of the appellant. This decision of the Supreme Court was on 30/5/2003.
This suit upon which this appeal is now predicated (Suit No.B/360/2003) was filed on 20/6/03 by the appellant as the plaintiff. Before the claim could be considered in full, this action was dismissed in limine for being statute-barred. It is against this dismissal that the appellant filed this appeal.
In arguing the 1st issue he formulated, learned Counsel to the appellant began by an explanation that the appellant by a Deed of Transfer prepared by the law firm of Giwa Amu and Co., the appellant became the registered owner of the building known as No.3, Osagie Street, Benin City. Learned Counsel explained further that the respondent is illegally occupying No.3, Osagie Street, and has refused to vacate it despite the repeated demands of the appellant for the respondent to give up possession. He added further that the respondent had not paid any rent to him.
After having underscored the facts in the Amended Statement of Claim, particularly paragraphs 2, 16, 19, 20 and 21, learned Counsel also referred to the statement of defence, particularly those averments which deny the key averments in the amended statement of claim. The Defendant/Respondent vehemently denied that he sold his house at No.3, Osagie Street, Benin City, to the Plaintiff/Appellant.
Having done a thorough survey of the state of the pleadings on record, learned Counsel to the appellant went further to define a cause of action as;
“The entire of circumstances giving rise to an enforceable claim which gives rise to a right to sue.”
He also explained that in simple language a cause of action is every fact that would be necessary for the Plaintiff to prove if challenged in order to support his right to the judgment of the Court. Learned Counsel also added that a cause of action consists of 2 elements made up of the wrongful act of the defendant which gives the plaintiff his cause of complaint and the consequent damage. In support of the definition and his explanations, learned Counsel referred to the cases of AKIBU V. ODUNTAN (2000) 13 NWLR (PT.685) 446; FADARE V. A-G OYO STATE (1982) 4 SC 1 and EMIATOR V. NIGERIA ARMY (1999) 12 NWLR (PT.631) 362.
Going straight into his submissions, learned Counsel maintained that from the state of the pleadings the main complaint of the appellant was against continuous possession by the respondent and non-payment of rent. He then submitted the claim of the appellant before the lower Court was not statute-barred as the damage is a continuing and lingering one. He relied on the case of NNPC V. SEL:A (2004) 5 NWLR (Pt.866) 379 at pages 412 -415. While referring to S.6 (2) of the Limitation Law CAP 89 Laws of Bendel State, applicable to Edo State. Learned Counsel explained that this provision stipulates that no action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him. In addition to S.6 (2) (supra), learned Counsel also referred to S.25 of CAP 89 (supra) and suggested that this provision extends the period of limitation in S.6 (2) in circumstances where there was a fraud or mistake. He also submitted that the period of limitation under S.6 (2) shall not begin to run until, the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it.
While still arguing the 1st issue, learned Counsel highlighted that the Defendant/Respondent has alleged fraud and forgery in paragraph 19 of the statement of defence and for which due particulars were given. He remarked that the learned trial Judge failed to consider the issue of fraud raised by the Defendant/Respondent. In a further argument, learned Counsel submitted that the Defendant/Respondent sold his house to the Plaintiff/Appellant and had it assigned as per the Deed of Transfer duly registered at the Lands Registry, Benin City.
In the opinion of learned Counsel since the Respondent has raised the issue of fraud in his Statement of Defence, this necessarily makes the provisions of S.25 (supra) applicable. He also submitted that it is unconscionable for a person who sold his house and who also did not take any action to challenge the sale, to turn around to shield himself from litigation by raising the defence of limitation of time to defeat an action against him for the recovery of the house. Further to this, learned Counsel referred to the case of AROWOLO V. IFABIYI (1995) 8 NWLR (PT.414) 496 where he said the court stated that it is a principle of equity that no length of time is a bar to a relief in the case of fraud in the absence of laches on the part of the person defrauded. There is, according to learned Counsel, no room for the application of the statute of limitation in the case of concealed fraud so long as the party defrauded remains ignorant without any fault of his ‘own. He then submitted that with respect to the facts of this case; since the Respondent became aware that the appellant used his title documents to secure a loan from a bank in June, 1987, the action filed could not have been caught by the statute of limitation. He also referred to IBRAHIM V. GAYE (2002) 13 NWLR (PT.784) 67 at 74 -75.
In what I consider not strictly necessary, learned Counsel spent time underscoring the relevance of the equitable concept of implied trust and its relationship and effect on limitation of time stipulations in statutes. He went to refer to the case of NWADIKE V. A-G ANAMBRA STATE (1997) NWLR (PT.460) 315 at 330, where this court held that a perpetrater of fraud is barred or estopped from taking advantage of the period of limitation in the 1981 Law of Anambra State. With respect to the facts of this case against the decision of the Court in NWADIKE (supra), learned Counsel submitted that the respondent cannot in the circumstances of this appeal rely on the statute of limitation to enable him benefit from his fraud or breach of implied trust. Upon this submission, he urged us to resolve the 1st issue in favour of the appellant.
In arguing the 2nd issue for determination in this appeal, learned Counsel to the appellant started with an explanation that a statute of limitation is subject to some exceptions. He referred to the case of SANNI V. OKENE LOCAL GOVT. (2005) 14 NWLR (PT.944) 60 at 74 – 75 where it was held that a party would not be allowed to take advantage of a limitation law where there is compelling evidence of disability such as mistake or fraud. While putting the facts in this appeal in perspective, learned Counsel submitted that there is clear and genuine mistake on the part of learned Counsel who wrongly tried to enforce the claim of the appellant at the Area Customary Court in 1987. The decision of the Area Customary Court was upheld, though erroneously, by both the High Court and the Court of Appeal. He argued further that the genuine mistake of counsel in filing this action before the Area Customary Court in 1987 should not be visited on the litigant, more so when this erroneous belief was strengthened by successes in subsequent appeals.
After this patronizing effort, learned counsel to the appellant rested his case when he remarked that the Respondent, who has admitted in his pleadings that he is still in possession and has refused to vacate the building or pay rent should not be allowed to take advantage of the mistake of counsel in filing the appellant’s claim in the wrong Court in 1987. He urged the Court to uphold his submission that time ceases to run during the pendency of an action. He also maintained that it is in accord with both common sense and substantial justice to have a remedy where there is a wrong. In conclusion, he urged us to hold that time does not run during the pendency of an action and to also hold that the action of the appellant before the High Court in suit No. B/360/2003 is not statute-barred. He also prayed that this appeal be allowed and the ruling of the lower Court be set aside.
In arguing the case of the Respondent, learned counsel, after the introductory and background remarks, began by challenging the competence of the grounds of appeal and the 1st issue formulated therefrom. The attack on the competence of the grounds of appeal and the 1st issue formulated by the appellant was by way of a preliminary objection by the learned counsel to the Respondent.
In the opinion of learned Counsel ground 4 of the grounds of appeal appears to him to have been abandoned by the appellant. He argued that the 1st issue was no longer apposite as it did not arise from the remaining grounds of appeal. According to learned Counsel, it is only ground 4 that specifically complain about the finding of the lower Court that this action is statute-barred. He also maintained that all the other grounds of appeal raise collateral but independent issues for consideration. He urged the court to discountenance all the arguments of the appellant on the 1st issue. Still arguing the preliminary objection, learned Counsel submitted that ground 4 being the main ground upon which this appeal could have been determined and same having been abandoned and upon which no issue could be formulated should result in the dismissal of the appeal.
The 2nd arm of the preliminary objection relates to the argument of learned counsel to the appellant on the applicability of S.2S of the Limitation Law of Bendel State (supra) as well as the concept of implied trusts. According to learned Counsel, these are new issues which neither formed part of the arguments before the lower Court nor concerned with or covered by the ruling of the lower Court which is the subject of this appeal. Learned Counsel characterized these 2 issues as new issues which could not be argued in this appeal without the leave of this Court. He pointed out that no leave was sought by the appellant to raise and argue these new issues in this appeal. He submitted that they are, therefore, not competent for consideration in this appeal.
Because this preliminary objection seeks to challenge the competence and foundation of this appeal, there is no doubt that it is very important that the issues raised in the preliminary objection should be resolved timeously one way or another before going into the merit of the issues for determination in the appeal, if circumstances permit. It should be noted that learned Counsel to the appellant unequivocally abandoned ground 4 of the grounds of appeal. Though not serially marked, my understanding of the notice of appeal tells me that ground 4 is the 2nd ground of appeal at page 49 of the record of appeal. It reads thus:-
“The learned trial judge erred in law when he relied on the case of UTA FRENCH ARILINES V. MARIE FATAYI-WILLIAMS (2004) 14 NWLR (PT.687) 271 to hold that the Plaintiff’s claim for possession and damages for wrongful detention is statute-barred.”
PARTICULARS
a) By the state of pleadings issues were joined as to continuous possession and detention.
b) Paragraph 20 of the Statement of Defence denied paragraph 15 of the Statement of claim and states as follows “The Defendant vehemently denies paragraph 15 of the Statement of Claim and states that he never sold his house neither did he plead for 6 months of grace to relocate his family neither did he plead to be paying a monthly rent of N400.00. The Defendant states categorically that the N400.00 he was paying into on account in the name of the Assistant Chief Registrar at all was ordered by the court as a condition for the order of Stay of Execution pending appeal which he was paying willingly and avers that he is yet to realize his money back from the coffers of the court having got judgment in his favour at the Supreme Court.”
c) Paragraph 21 of the Statement of Defence “The Defendant states that he never sold his house situate at No.3, Osagie Street, Off St. Saviour Road, Benin City, and could not have been Plaintiff’s tenants as the property has been in his continuous possession since 1985.”
PARTICULARS
a) The facts of this reported case are separate and distinct from the Plaintiff’s claim.
b) In UTA French Airlines Vs. Williams, the Respondent did not appeal against the ruling of the Lagos High Court declining jurisdiction and transferring the suit to the Honourable Chief Judge rather the Respondent filed a new action.
c) Whereas in the Plaintiff’s Claim, Suit No. OR/ACC/86R/87 was prosecuted from the Area Customary Court to the High Court from the High Court to the Court of Appeal successfully till it was struck out by the Supreme Court on 30/5/2004.
Even if this ground of appeal was abandoned by the appellant, and in my view rightly so, it is pertinent to understand that the 1st issue could be formulated from within grounds 1 and 2. I therefore refuse to agree with learned Counsel to the Respondent that the 1st issue is incompetent. I am of the view that it is competent for having been – distilled from grounds 1 and 2 of the grounds of appeal. In view of the special and peculiar facts and circumstances of this case, the 2nd issue is collateral to the 1st issue and the 2 cannot be separated without leading to an absurdity. I therefore find no merit in the preliminary objection and same is hereby dismissed.
After fully arguing the preliminary objection, learned Counsel to the Respondent ex abundante cautela went ahead to what he considers to be the only issue for determination in this appeal. This, he formulated as follows:-
“Whether the lower Court was right in holding that the case was statute-barred by virtue of the provisions of the Limitation Law of Bendel State, applicable to Edo State.”
In arguing this issue, learned Counsel placed a heavy reliance on the decision of the Supreme ‘Court in WOHEREM V. EME REUWA & ORS (2004) 13 NWLR (PT.890) 398 particularly at PA16. He then went on to explain that the learned trial judge found that decision helpful and also relied on it. Learned Counsel also quoted extensively from the ruling of the lower Court. According to learned Counsel, the findings of the lower Court, that limitation of time is determined by looking at the statement of claim with a view to identifying when the cause of action accrued to the Plaintiff against the bench mark set out by the limitation of time statute, is unassailable. He also further categorized the finding that the Plaintiffs cause of action accrued in 1987 as equally unassailable.
Learned Counsel to the respondent referred to paragraphs 16 and 17 of the Amended Statement of Claim and maintained that from the pleadings, the cause of action clearly accrued when the respondent allegedly refused to vacate and deliver the house to the appellant after 6 months of grace period expired. This, according to learned Counsel, would be about July, 1986. Learned Counsel maintained that this alleged refusal by the respondent to pay rent for the period led to the commencing of Suit No. OR/ACC/86R/87. He then argued that whether the period of the accrued of the cause of action is reckoned from July, 1986 or from 1987 when the appellant filed suit No. OR/ACC/86R/87 in respect of the same sale transaction this action before the High Court (Suit N. B/360/2003) was clearly initiated over 12 years after the cause of action accrued.
To achieve maximum effect and consolidate on the submissions he made earlier on, learned Counsel referred to S.6 (2) ” (supra) and submitted that the finding of the lower Court, that the action was not justiciable having regards to S.6 (2) (supra), cannot be validly faulted. He referred to a number of decisions of the Supreme Court on the definition and accrual of a cause of action, as well as when time begins to run for the purpose of a limitation of a cause of action, against which the action becomes statute-barred. These cases are: –
1) MOSOJI V. OYETAYO (2003) 13 NWLR (PT.837) 340 at 347 and 351 C-G.
2) GRAINS PRODUCTION AGENCY V. EZEG-BULEM (1999) 1 NWLR (PT.587) 399 at 408; and
3) WOHEREM V. EMEREUWA & ORS (2004) 13 NWLR (PT.890) 398 at 415.
Upon these decisions, learned Counsel explained that any reference to the Statement of Defence made by learned Counsel to the appellant at pages 5-7 of the appellant’s brief must be – discountenanced for being irrelevant to the determination of the issue of limitation of time.
Closely related to the above explanation, learned Counsel to the respondent referred to the arguments made by Counsel on behalf of the appellant that S.25 of the Limitation Law is available to the appellant as an exception or to exclude S.6 (2) must be rejected in so far as it relates to the alleged fraud pleaded and particularized in paragraph 19 of the Statement of Defence. He then submitted that the extension of time provided under S.25 will only avail a plaintiff, like the appellant herein, if the action that would otherwise be statute-barred is based upon the fraud of the defendant or his agent ‘or of any person through whom he claims or his agent. He maintained that the exception in S.25 will not apply where, as in this case, the fraudulent conduct was alleged against the appellant, as plaintiff. There is no doubt that this is a very forceful and important argument made on behalf of the Respondent.
Further, and in another move, learned Counsel suggested that the issue of fraud and S.25 (supra) was new as it was not raised by Counsel at the address stage and neither was it considered by the Court in its ruling. He added that no leave was sought or obtained before the appellant raised it in his brief. He referred to V. S. STELL (NIG.) LTD V. GOVT. OF ANAMBRA STATE (2001) 8 NWLR (PT.715) 454 where it was held that parties to an appeal will not be allowed to, at the appeal stage and without leave of Court, exploit issues that had not been previously canvassed by them at the trial. He also referred to TELLA V. USMAN (1997) 12 NWLR (PT. 531) 168 at 173.
Learned Counsel to the Respondent also argued very forcefully that there is nothing in our law known as continuous possession or detention or trespass as decided by the lower Court. He urged us to hold that the argument of the appellant on continuing detention ‘was merely fanciful and untenable and to also hold that the case of NNPC & ANOR V. SELE & ORS (supra) to be inapplicable to the facts and circumstances of this case. Learned Counsel also drew our attention to the finding of the lower Court that all the authorities referred do not support the submission that limitation of time is suspended when litigation is pending. He urged us to uphold and affirm this finding because it is contrary to the decision of our Courts that the fact that a suit on the same issues was earlier initiated in a court will not affect the computation of time in respect of another case subsequently initiated in another Court on the same facts or issues. He anchored this point by referring to the decisions in UTA FRENCH AIRLINES V. MRS. FATAYI-WILLIAMS (2001) 1 NWLR (PT.687) 271 at 279 – 280 H – D and OSHEVIRE V. BRITISH CALEDONIAN AIRLINES LTD (1990) 7 NWLR (PT.163) 512 at 522 B – C.
He also submitted that the limitation period laid down by statute cannot be suspended or interrupted irrespective of the statute containing or providing for the limitation period. He relied on HUMBE V. A-G of BENUE STATE & ANOR (2000) 3 NWLR (PT.649) 419 at 441 G -H. He concluded his arguments with a submission that the case of SANNI V. OKENE LOCAL GOVT. (supra) is inapplicable to the facts of this case. He urged us to dismiss this appeal and affirm the decision of the lower Court.
So much of the reply brief of the appellant addressed the arguments with respect to the preliminary objection raised and argued by the Respondent. I considered some of those arguments and submissions in overruling the preliminary objection earlier in this judgment.
As to the circumstances when limitation of time will be extended, learned Counsel to the appellant relies on Sasegbons Laws of Nigeria 1st Ed. Vol. 15 page 669 paragraph 20. 25 which was approved and applied in the case of DAVIES V. AJIBONA (1994) – 5 NWLR (PT.343) 234 at 256. Upon this authority, learned Counsel maintained that where a person seeks relief from the consequence of mistake, the period of limitation could be extended to remove the harsh effect of a provision for limitation of time.
Learned Counsel adopted the approach of the court of appeal in DAVIES V. AJIBONA (supra) that knowledge or absence of knowledge is not material when the ground upon which the period of limitation is sought to be extended pertained to mistake.
In support of his position, he referred to the definition of – mistake as set out in Black’s Law Dictionary 6th Edition page 1001 thus: –
“Some unintentional act or omission, or error arising from ignorance, surprise, imposition or misplaced confidence. A state of mind not in accord with reality. A mistake exists when a person under some erroneous conviction of law or fact does, or omits to do, some acts which, but for the erroneous conviction, he would not have done or omitted..”
Based on mistake being an exception, or factor that allows for period of limitation to be extended, learned Counsel urged us to allow this appeal.
I have carefully considered all the arguments and submissions of respective learned Counsel. I have also read the decided cases referred to in the briefs filed by respective learned counsel and the provisions of S.6 (2) and S.25 of the Limitation Law of Bendel State (supra) applicable to Edo State. It may be said just by the way or a mere observation that the best starting point in this appeal is to underscore the desirability of securing justice as a central issue. It is also of paramount importance to always have it as a central theme that each case must be examined and decided on its own facts and circumstances as no two cases are alike in all particulars. See UNIVERSITY OF LAGOS V. AIGORO (1985) 1 NWLR 143.
The facts of this case are indeed quite unique and unprecedented. The case has a chequered history. The initial facts and circumstances nearly resemble those in MICHAEL AROWOLO V. CHIEF TITUS IFABIYI (supra). The appellant herein was faced with a decision of the Supreme Court which removed or nullified his 3 successive legal victories against the resppndent in 3 previous decisions of duly recognized courts, including the High Court and the Court of Appeal. The Supreme Court overruled those 3 previous decisions for being nullified, having been made without jurisdiction. The Supreme Court also decided that the res in this action was subject to a statutory right of occupancy.
In paragraph 14 of the amended statement of claims the appellant, as plaintiff, averred that: –
- “The Plaintiff says that the prepared Deed of Transfer was handed over to him and they both took the Documents to Prince Eweka, a Justice of Peace, who witnessed the Defendant’s signature and the plaintiff also signed the Deed of Transfer after it has been read to them, and thereafter the Documents were returned to the legal practitioner for perfection in line with the Land Use Act and plaintiff later collected the perfected document from the Solicitor. The Certificate of Occupancy and the Deed of Transfer shall be relied upon at the Trial.”
This, no doubt, is a very potent and positive averment by the plaintiff. It is very serious. The Defendant/Respondent denied it in paragraph 2 of the Statement of Defence only in general terms. From paragraphs 17 to 21 of the Statement of Defence, the defendant/respondent denied and disowned all the events that led to the ultimate event as set out in paragraph 14 of the amended statement of claim. The Defendant/Respondent also pleaded some documents, after having challenged the plaintiff to prove all his material averments. A validly issued Certificate of Occupancy is one of the very well known methods of establishing title to land. The holder of a Certificate of Occupancy of who claims to be the holder of same is entitled to be allowed to show if for whatever its worth.
Now, aside from the foregoing and, coming to this appeal, Section 6 (2) provides: –
“No action shall be brought by any other person to recover any land after the expiration of 12 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.”
There is no doubt that this is a limitation of time stipulation. It is very clear and unambiguous and therefore must be given its effect. The effect very clearly is to render any cause of action barren and unenforceable, if it was a claim for title to land and was brought more than 12 years after the cause of action accrued to the plaintiff. In certain given cases, the exact date when a cause of action could be said to have accrued is not very easy question to answer, while in some it would be easy and simple. For example, in contracts for carriage of passengers by air it is very easy to understand when the contract ought to reasonably to have been performed and at exactly what point in time did a breach of its fundamental term occur; thereby giving rise to a cause of action. It is equally very easy to ascertain when a cause of action would have accrued in a contract of carriage by air. I believe, it is because of this ease that the limitation period to enforce such contracts is merely 2 years. I will therefore not accept the decisions in UTA AIRLINES (supra) and OSHEVIRE (supra) to be helpful in deciding this appeal. They are clearly distinguishable because the claim therein is based on contract when the claim herein is based on Tort.
The claim in this case is very complex. The learned trial Judge quite appreciated this complexity. He appeared to me to be in a dilemma when he lamented about the harsh effect of S.6 (2) (supra) on the facts this case. I wish to underscore this lamentation for reasons which would become very obvious in the course of this judgment. At page 46 of the record of appeal, the learned trial Judge lamented: –
“Before I conclude this ruling, I wish to remark briefly that the instant case has once again thrown to the front burner the injustice inherent in the application of the limitation law. In my personal view, the case of the Plaintiff in the instant case is particularly pathetic. I have reviewed the law as it is. No matter how I feel I am duty bound to apply it. This is the hallowed principle of stare decisis. I have no option in the matter. Tried as I did the facts of this case and especially with the facts of UTA French Airlines v. Mrs. Marie Fatayi- Williams supra were not distinguishable. It is particularly distressful to note that from the on set, the Plaintiff herein was desirous of pursuing a perceived legal right. He briefed a Counsel who filed a suit albeit in a Court without jurisdiction. The law as it stands negates the very principle of law on the point that the sins of the Counsel should not be visited upon his client. That exactly is what has happened in this case. It is hoped that the appellate Courts would have a second look at the law in order to do substantial justice. This is my personal view, which is irrelevant in the present circumstance.”
In order to limit some of the harsh effect of S.6 (2), S.25 of the Limitation Law of Bendel State (supra) provides for situations when the period of limitation could be extended. The Section provides thus: –
“Where, in the case of any action, for which a period of limitation is prescribed by this Law, either –
a) The action is based upon the fraud of the Defendant or his agent or of any person through whom the claims or his agent; or
b) The right of action is concealed by the fraud of any such person as aforesaid; or
c) The action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it.
I do not agree with the argument of learned counsel to the respondent that the applicability or otherwise of S.25 (supra) in this appeal was a new issue for which the appellant needed leave of this Court. The position of learned Counsel is a total misconception and is highly untenable. In so far as S.6 (2) (supra) remains applicable section 25 would also be called to action because it provides that: –
“Where, in the case of any action, for which a period of limitation is prescribed by this law” (Underlining mine for emphasis).
I am therefore of the firm view that S.25 (supra) is applicable, because the appellant could have its benefit, if his case is one that is entitled to the benefits stipulated in S.25.
I wish to also observe, not necessarily with respect to this appeal alone but by way of a general exercise. I do not believe that where a number of issues have been joined in the pleadings of the respective parties a proceeding in lieu demurrer would be the best procedure to decide a case. Every effort must painstakingly be made to do justice. A snappy short cut decision bereft of an examination of the merits of the case settles nothing. In the case of CHIEF JAMES NTUKIDEM & ORS v. CHIEF ASUQUO OKO & ORS (1986) 12 SC 126 at 168, Karibi-Whyte, JSC remarked:-
“It is both fundamental and an elementary principle of the administration of justice that whenever it is possible to determine a case on its merit the Court should not succumb to the temptation of hastily determining it in limine without hearing the complaint…… there is the real need for the Court to appreciate the interest of the proper administration of justice which demands that a complainant should be given reasonable opportunity of presenting his case for its determination on the merits.”
Back to this appeal, from the state of the pleadings and the circumstances of this case it could be seen that the Plaintiff/appellant had all along been determined to seek judicial intervention and redress in the dispute between him and the respondent. He relied on the professional competence of his counsel. Learned Counsel to the appellant seemingly did his best up to a point. If there was any problem beyond that point, that is any problem with the procedure or steps employed by counsel, it was not the making of the appellant but must remain at the doorsteps of his counsel.
It was a mistake to institute this action at the Area Customary Court in 1987 and it remained a mistake to continue to pursue it along the same line up to 2003 when the Supreme Court set aside all the previous decisions of the previous Courts. The judgment of the Supreme Court is extant and binding on the parties and the Courts. I have carefully considered the provisions of S.25 ‘C2’A9 (supra) and I am of the view that the type of “mistake” envisaged by the section is the type defined ‘in Black’s Law Dictionary and referred to above when a person does something under some erroneous conviction of Law or fact which, but for the erroneous conviction he would not have done or omitted.
It is because of the incapacitating and debilitating effect of a mistake as a human attribute, that the courts in this country have always been most reluctant to punish a litigant for the mistake of his counsel. It is so much a cliche to say that the sins of counsel should not be visited on the litigant. The object of the courts is to decide the rights of the parties and not to punish them for mistakes they made in the conduct of their cases. See COPPER v. SMITH (1884) 26 Ch. D. 700. It has been held in a number of decided cases that it is not right to visit the parties with punishment arising out of mistakes, inadvertence or even negligence of counsel. In cases where such mistakes, inadvertence or negligence of counsel are revealed and shown to have caused the non-performance of certain act the court is enjoined to show flexibility by not visiting the sins or mistake of counsel on the litigant. See AKINYEDE V. THE APPRAISER (1971) 1 ALL NLR 162 as discussed, approved and applied by the Supreme Court in BOW AJE V. ADEDIWURA – (1976) 6 SC 143; IBODO V. ENOROFIA (1980) 5 – 7 SC 42 at 57 and BELLO & ORS V. ATTORNEY GENERAL OF OYO STATE (1986) 12 SC 1. In my view this is a proper situation when this well known attitude and approach of the courts should be employed to give a remedy where a right exists. Ubi jus ibi remedium and also because there is no wrong without a remedy. See BELLO V. A. G. OYO STATE (supra) as per Bello, JSC (as he then was).
Upon the foregoing observation, I am of the view that because of the unprecedented circumstances of this matter that this appellant is entitled to have this matter fully litigated without any fetter because of his dogged determination to have the dispute between him and the respondent to be settled by judicial process. The implicit confidence of the appellant in the judicial process should not be misplaced by a hasty dismissal of his suit before the High Court for no apparent fault of his. The confidence of the people of this country on the ability of our courts to do substantial justice devoid of technicalities must be sustained and nourished by giving remedy where a right exists. To do’ otherwise, is a positive and giant step towards chaos and anarchy.
Based on all the foregoing, I hereby allow this appeal. The order of the Edo State High Court, of 18/10/04 as per Acha, J., dismissing suit No.B/360/2003 for being statute-barred ought to be set aside and is hereby set aside. I order that suit No.B/360/2003 be heard and decided on the merits by another judge of the Edo State High Court. I order for N10,000.00 costs for the Appellant against the Respondent.
Other Citations: (2007)LCN/2615(CA)
