3PLR – DANIEL ORJI OGBAH V. BENDE DIVISIONAL UNION JOS BRANCH AND OTHERS

Published by Law Nigeria Admin at October 10, 2018

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR

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DANIEL ORJI OGBAH

V. BENDE DIVISIONAL UNION JOS BRACH AND OTHERS

COURT OF APPEAL JOS DIVISION

8TH NOVEMBER 2000

CA/J/106/99

3PLR/2000/69 (CA)

OTHER CITATIONS

FWLR [pt. 63] 25

BEFORE THEIR LORDSHIPS

IBRAHIM TANKO MUHAMMAD

OLUDADE OLADAPO OBADINA

ISA ABUBAKAR MANGAJI

BETWEEN

DANIEL ORJI OGBAH
CHRISTIAN OKAFOR

AND

BENDE DIVISIONAL UNION JOS BRANCH AND OTHERS

REPRESENTATION

Ofodile Okafor (SAN) with him (Mrs.) Chinwe- Okoli – for the Appellants
I. Usaini – for the Respondents

EDITORS

[Sam Eleanya, Agboola Omolola Oluwafolakemi, Eleanya Kalu Vincent, Eleanya Ugochi Vine]

MAIN ISSUES

ACTION – Computation of time for the purposes of limitation law – whether a discontinued suit should be considered in computing same.

LIMITATION LAW – Action to recover landed property – time limit within which to bring action – Real Property Limitation Act 1874 considered.

LIMITATION LAW – Computation of time for the purposes of Limitation Law – whether a discontinued suit should be considered in computing same.

MAIN JUDGEMENT

A. MANGAJI, JCA (Delivered the leading judgment)
This is an appeal against the ruling of Ntiem J. of the High Court of Plateau State in suit No. PLD/J/167/97 dated 2nd March, 1999 wherein she refused to dismiss the suit upon an application before her to so dismiss the suit on the ground that the action was statute barred. The concluding part of the ruling which formed the main plank of the appeal reads thus:-

“I have been urged to refer to the statement of claim. I have indeed done so, and I found on page 5 paragraph 25 of the said statement of claim, that the plaintiffs did file a case in the High Court here in Jos with file No. PLD/J306/86 and this case was consequently discontinued. Again in 1994 the Plaintiffs returned to court to file the present suit. Could it be said then that the plaintiffs slept over their rights and that section 3 of Edict No. 16 of Plateau State of 1988 operates against them in respect of their claim.

In my opinion, they have not gone to sleep over their rights considering what I have said above in respect of paragraph 25 at page 5 of the statement of claim.

The application based on this point alone has failed.

The application therefore has failed and is hereby refused.”

Not satisfied with the dismissal of the application the appellants herein, with the leave of the High Court duly sought and granted on 12th March, 1999 appealed to this Court on 3 grounds of appeal. The decision appealed against being interlocutory leave had to be sought as rightly apply (sic) for by the appellants. In compliance with the Rules of this Court, parties filed their respective briefs of argument. Arising from the 3 grounds of appeal, the Appellants by their counsel identified one sole issue for determination. The issue is “whether the claim of the Plaintiffs is statute barred.”

Learned Counsel for the Respondents categorically adopted Appellants’ issue for determination. In a ridiculous twist however, learned Counsel, inspite of his categorical stance, went ahead to identify two issues for determination as arising from the grounds of appeal. Let me quote learned Counsel at page 7 paragraph 3.00 of his brief of argument vide:-

“Issues for determination” The Respondents adopts (sic) the issue for determination set out in paragraph 3 of the Appellants’ brief of Argument which is:

(i) When did the cause arise?

(ii) Whether the claim of the plaintiff (sic) is statute barred.”
(Italics supplied)

During the hearing of this appeal on 27th September, 2000, we naturally took up learned Counsel on his rather ambivalent stand. Obviously the identification of two issues as arising for determination in the appeal extirpates learned Counsel’s catergorical statement that the Respondents have adopted the only issue identified by the Appellants. Taking it a bit further, the logic of learned Counsel’s representation in the brief of argument exhibits lack of understanding by him of the real issue identified by the Appellants. In any case learned Counsel realised the real import of what he wrote when we pointed out same to him and in reaction he acceded to the only issue identified by the Appellants. Having formally withdrawn the issue identified by him, the issues are hereby struck out, thus the argument of learned Counsel contained in his brief shall be considered as a response to the argument in the Appellants’ brief based on the solitary issue identified.

It is worthwhile to recapitulate the salient facts which informed the taking up of the writ of summons before the court below as result of which the Appellants herein as Defendants, filed a motion on notice, the ruling of which is now being questioned. The Respondents in this appeal (the plaintiffs before the Court below) in their statement of claim are the Bende Divisional Union, Jos Branch and its principal officers. The 1st Plaintiff (a socio-cultural cum tribal Union) in 1962 was desirous of acquiring a landed property for the purposes of its activities. It then mandated the 1st & 2nd Defendants along with an Elijah Udemba Ikwunze who were the Unions Trustees, to find a suitable landed property and negotiate its purchase on its behalf. In the same year (1962) 1st and 2nd Defendants and the said Elijah Udemba Ikwunze identified a house belonging to a Mr. Daniel Adeleke (now deceased). After hard bargain, the house at No. 24 Langtang Street, Jos (formally No. 24 Palmer Street, Jos) was sold to the Union for a consideration of £750. Money was raised from the funds of the Union with which payment for the house was effected. However, change of title documents could not be effected because the Union was by then not duly registered. A sore fate befell the Union after it was registered in 1965 in that the political climate in the Country at that time was tense and intermittent civil disturbances in the nature of tribal conflicts were recorded. Government therefore de-emphasized tribal unions as a result of which the change of title deeds in the name of Bende Divisional Union was refused by the Jos Local Authority.

Consequent upon the refusal by the Jos Local Authority, the plaintiffs said the Union mandated its trustees who included 1st and 2nd Defendants to register the property in their personal capacities as a safety valve pending the return of normalcy in the country. As the result title documents were accordingly registered in their names in trust for the Union.

Matters were further confounded when in 1966 the Country was plunged in further bloody civil disturbances which forced members of the Union to flee to the defunct Eastern region. Members of the Union only started to return to Jos in 1970 after the civil war which engulfed the country as the consequence of the civil disturbances of 1966 came to an end. That up till that year the landed property was still held in trust for the Union by the 1st and 2nd Defendants and the said Late Elijah Udemba Ikwunze.

It was further the plaintiffs’ case that immediately after the formal inauguration of Bende Divisional Union on 21st June, 1981 steps were taken by the newly elected officers of the Union to recover the Union’s properties with the 1st and 2nd Defendants including the landed property in question. Efforts were made to no avail as the house in question was eventually sold to the 4th Defendant by the 1st three Defendants. The Plaintiffs therefore filed suit No. PLD/J306/86 against the Defendants claiming for the 1st Plaintiff title to it, but that the suit was subsequently discontinued. Not being able to recover the house amicably the Plaintiffs on 25th April, 1994 again filed the present suit claiming as follows in the settled statement of claim:

“1. A Declaration that the property situate, lying and being at No. 24 Langtang Street, Jos is the property of the first plaintiff and that the first plaintiff is entitled to the grant of a Statutory Right of Occupancy over the said property.

A perpetual injunction restraining the first to the fourth defendants, their servants, agents, privies heirs or such other representatives howsoever called or described from trespassing on or committing any further act of trespass in respect of the said property.

An order directing the first to the 3rd defendants to give account of their stewardship as the trustees Cum Officers of the Bende Divisional Union Jos Branch for the period between 1959 and 1981 both years inclusive.

A further order directing the first to the third defendants to give account of all monies collected from or in respect of the property aforesaid either as rent or hire charges from October, 1962 to date inclusive of monies received from the Benue Plateau Abandoned properties Committees.

An order directing the first to the third defendants to hand over to the plaintiffs all Union documents and other moveable properties in their possession particularly the followings:-

(a) Original Copy of the Certificate of Registration.

(b) Unions Constitution

(d) Typewriter.

An order setting aside any Certificate of Occupancy or other document of title granted in respect of the said property in the name or names of the 1st and 4th plaintiffs.

AS ALTERNATIVE TO reliefs 3 and 4 above.

The lump sum of N1,000,000.00 to be paid by the first to fourth defendants.”

There is albeit a variation in the story recounted by the Defendants. Their case is that when the house No. 24 Langtang Street, Jos could not be registered in the name of Bende Divisional Union the 1st and 2nd defendants along with Elijah U. Ikwunze re-negotiated for the purchase of the same property with the Vendor. 1st Plaintiff’s money advanced as Consideration for the purchase was returned to it and the property accordingly registered in their names as their personal property. Their contention is that the property is their own and that the 1st plaintiff did not purchase it since along the line it became impossible to affect transfer of title documents.

After suit No PLD/J167/94 (giving rise to this appeal) was filed, and pleadings were duly ordered , filed and exchanged, the defendants, on 18th August 1998 filed a motion on notice wherein they prayed for an Order to dismiss the plaintiffs’ claim on the ground that the action was statute barred. Plaintiffs contested the application at the end of which the learned trial judge delivered a ruling dismissing the motion. This spurred up the appeal at hand. I shall henceforth refer to the plaintiffs as respondents and defendants as appellants respectively. While arguing the appeal in his brief of argument upon which no oral argument was proffered in amplification, the learned Senior Advocate gave three reasons as the basis for the existence of statutes of limitation viz:-

“(a) That long dormant claims have more of cruelty than justice in them;

(b) That a Defendant might have lost the evidence to disprove a stale claim; and

Learned Senior Adovocate relied on Nwadiaro v. Shell Petroleum Development Company Ltd. (1990) 5 NWLR (Pt. 150) 322 at 337 – 338 for so submitting. He also referred to BLACK’s LAW DICTIONARY 6th Edn. Page 927 thereof.

Continuing, learned Senior Counsel quoted sections 3 and 18 of the Plateau State Limitation Edict No. 16, 1988 and submitted that whereas reliefs I and II contained in paragraph 34 of the statement of claim are covered by section 3 of the said Edict, reliefs 3 and 4 come directly under section 18 of the Edict. He classified the Causes of the Respondents action into two namely: declaration of title to plot No. 24 Langtang Street, Jos covered by Certificate of Occupancy No. PL 429; and an account of both the Appellant’s stewardship from 1959 to 1981 and the rents collected from the said house from October, 1962 to March, 1994 when the action was commenced.

Still in argument, learned Senior Advocate, after referring to paragraphs 18 and 19 of the Statement of Claim submitted that the cause of action arose on 21st June, 1981 when the 1st Respondent was formally inaugurated. He argued that the 1st and 2nd appellants were issued with Certificate of Occupancy (C. of. O for short) on 9/12/72 and upon its expiry was issued another No. 429 on 18th June, 1987 by the Plateau State Government. He said by the issuance of the Certificate of Occupancy, every other right or interest on the land had become extinguished. He relied on section 6(3) of the Land Tenure Law CAP 59 of the Laws of Northern Nigeria, 1963 as well as section 5(2) of the Land Use Act, 1990. He referred to paragraphs 3 and (sic) of the Respondents, counter affidavit in opposition to the motion to dismiss the action in limine, and pointed out that even by those averments the Respondents, after knowing that the even by those averments the Respondents, after knowing that the house in question belonged to the Appellants since 9/12/72 failed to take any steps from 1981 when the 1st Respondent was formally inaugurated until March 1994 – a period of 13 years. He reasoned therefore, that by the said paragraphs 3 and 5, there is a tacit admission that the cause of action indeed arose in 1981. Let me hasten to add parenthetically here that the Appellant did file a reply brief on 13th June, 2000. They equally adopted the brief while arguing this appeal . In paragraph 1.04 of the reply brief it is argued that it is the Real Property Limitation Act 1874 that governs the limitation period in this action being the pre-1900 statute of general application in Plateau State prior to the enactment of the Plateau State Limitation Edict,1988. Learned Senior Counsel wished to adopt this argument in place of his argument contained in paragraph 5.02 at page 7 of the Appellants’ brief.

Further in argument, learned Senior Advocate reasoned that since the claim for declaration of title and injunction are caught by time bar, the ancillary claim for “revocation or setting aside title deed cannot stand on its own.” He said by paragraph 34(3) and (5) of the Statement of Claim the Respondents are seeking for account of the stewardship of the 1st Appellant from 1959 to 1981. He pointed out that the period covered is 22 years.

Learned Senior Advocate directed his attention to the question relating to the time when a cause of action begins to run. He submitted that for the purposes of instituting an action, time begins to run from the date the cause of action accrues. He cited in support Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649 at 695 as well as paragraph 22 of Halsburys Laws of England 4th Edn. Vol. 28. He rightly too relied on Shell Pt. Dev. Co. v. Farah (1995) 3 NWLR (Pt. 382) 148 pp. 186 – 187 and Edosomwan v. ACB Ltd. (1995) 7 NWLR (Pt. 408) 472 at 477 on the question of accrual of cause of action.

Learned Senior Counsel stressed that the 1st and 2nd Appellants purchased the property in question in 1966 and took possession of same in 1972. He argued that the Court below was in serious error in relying on a discontinued suit as basis for its finding that the Respondents did not sleep over their rights. He therefore submitted rather forcefully that the learned trial judge was in grave error to have used a discontinued suit as a basis for deciding whether or not the claim is statute barred. He referred to Halsburys laws of England, 4th Edn. para. 633 and page 465 of Blacks Law Dictionary 6th Edn. He pointed out that it is the suit Not. PLD/J167/94 commenced on 29th March, 1994 that can legally be used for the purposes of deciding whether or not the suit is statute barred. It is his view that “on 9/12/72 when the Appellants were issued with C. of O. No. 0701 by Jos North Local Government, their possession of the property has become adverse to the Respondents and the cause of action accrued from the following day.” He continued and argued, “on the facts of this case by 21/6/81 after the inauguration of the 1st respondent and election of officers, it was in a position to take out a writ of summons to recover the property in dispute No. 24 Langtang Street, Jos. But it did not do so until 29/3/94, a period of 13 years.” On the above score, learned Senior Counsel submitted that the action is statute barred. He referred to and relied on Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 at 666 and few other cases.
Appellants’ reply brief was predicated on the application of the Real Property Limitation Act, 1874 and what appears to be a further emphasis on what the Appellants presented in their brief of argument. On the above score, learned Senior Counsel relied on his argument and submitted that all the reliefs are caught by the statue of limitation and are therefore barred. He urged that the appeal be allowed and the Respondents’ claim before the Court below accordingly struck out.
Learned Counsel for the respondents equally relied on the Respondents’ brief of argument but proffered no oral argument. He however referred to the notice he filed on 15th May, 1999 wherein he gave notice of the respondents’ intention to rely upon preliminary objection. He indicated that he had withdrawn the notice. I think learned Counsel had no alternative than to apply as he did. In point of fact he would have saved himself the embarrassment of making the said application to so withdraw the notice for obvious reasons. In the first place there is nothing contained in the respondents’ brief advancing any argument in line with the respondents’ preliminary objection. Clearly therefore, the preliminary objection was not argued at all to cap it all, there is no application by learned Counsel seeking to be heard on the preliminary objection viva voce. The only obvious inference is that the respondents’ notice to rely upon a preliminary objection is deemed abandoned, it , not having been argued. Learned Counsel’s application to withdraw the preliminary objection, therefore is in my view superfluous since the legal effect of the state of the notice of preliminary objection amounts to an abandonment of it. Be that as it may and for what it is worth, the Respondents’ notice of intention to rely upon preliminary objection dated 15th May, 1999 having been withdrawn is hereby struck out. It is the Respondents’ argument that the cause of action in the suit before the court below only arose in 1986 and the Respondents promptly filed suit No. PLD/J306/86 before the High Court of Plateau State even though it was subsequently withdrawn.

Learned Counsel called in aid the definition of “cause of action” as can be found in Emiator v. N . A. (1999) 9 SCNJ 52 in an attempt at finding when the cause of action arose in the case at hand. He submitted that the cause of action in the suit only arose in 1986 and not 1981 as contended by the learned Senior Advocate for the Appellants. His view is derived from his contention that up till the date the suit was filed before the Court below late Eze Samson Ukaegbu, Late Elijah Ikwunze and 1st Appellant were the registered trustees of the 1st Respondent. He said it was his contention before the court below that “until the written communication were (sic) made the cause of action has not arisen because no action by the Registered Trustees had become manifest that they had converted the property fraudulently to their personal use.” If I understand, learned Counsel, it is his submission, flowing from the above that it was only in 1986 that the Respondents manifestly realised that the 1st Appellant and the other trustees had committed breach of trust in respect of No. 24 Langtang Street, Jos. In the same vein learned Counsel argued that in relation to the 2nd Appellant the cause of action only arose in 1986 when he began to issue quit notices to tenants of No. 24 Langtang Street, Jos, thus representing himself as the owner. Learned Counsel submitted rightly too in my view that the Plateau State Limitation Edict No. 16, 1988 is not applicable to this suit. This is so because the Edict had its commencement date as 1st August, 1988. Given the submissions of the learned Senior Advocate for the Appellants and learned Counsel for the Respondents that the cause of action arose in 1981 and 1986 respectively the applicable statute of limitation should be the law in force before the coming into effect of the said Plateau State Edict. Learned Counsel for the Respondents submitted that it is the pre-1900 English statutes of general application that should apply by virtue of the non-existence of any statute of limitation in Northern Region, being the region Plateau State belonged before its subsequent creation. It is thus trite that the applicable law is the English Real Property Limitation Act, 1874.

On the submission of the Appellants that some of the reliefs are statute-barred by virtue of s. 18 of the Limitation Edict, 1988 of Plateau State, Learned Counsel submitted that that was not raised before the court below and cannot now be raised when no leave was sought and obtained. He relied on Akgaer Jor v. Dom (1999) 7 SCNJ 27.

On the submission of the appellants that the issuance of C. of of O. No. 0701 in 1972 and its later replacement by right of occupancy No. PL 429 of 18/6/87 effectively extinguished the right of the Respondents, learned Counsel submitted to the contrary. He reasoned that, “Section 6(3) of the Land Tenure Law CAP 59 Laws of Northern Nigeria applicable to Plateau State cannot avail acquisition of C. of O. or R. of O. by fraud nor acquisition without valid foundation.” He further submitted that limitation period will not apply where the claim is founded on fraud or breach of trust to which the trustee was a party or privy or as it were where the claim is to recover trust property or the proceeds therefrom retained by the trustee and converted to his own use.

Continuing, learned Counsel submitted that by exhibits AC1, AC2 and AC3 attached to the reply to further and better affidavit deposed to by O.N.U. Obasi, Plaintiffs’ claim cannot be statute barred since their cumulative effect is to acknowledge the fact of title of the property in the 1st Respondent.

Further learned Counsel conceded that the learned trial judge was wrong in using discontinued suit as basis for her finding that the suit was not statute barred. He however submitted that her conclusion that the suit was not statute barred is correct on the ground of selfsame suit No. PLD/J167/94 commenced on 29/4/94 as that suit is not caught by any statute of limitation. He urged this court to hold that the cause of action in the suit only arose in 1986. He urged that the appeal be dismissed as lacking in merit. As I earlier on pointed out, there is considerable consensus that the Plateau State Limitation Edict No. 16 of 1988 is inapplicable in this matter. In paragraphs 18, 19, 20 and 22 of the statement of claim, the respondents’ contention is that the cause of action only arose on 10/1/86 when the 1st respondent caused a letter to be written to the 1st Appellant on the matter of the properties of the Union. The paragraphs read as follows:-

“The 1st Plaintiff (i.e. the Union) was formally inaugurated in 1981 at a meeting held at LGED School Jos on the 21/6/81. The plaintiffs shall rely on the minutes of the meeting at the hearing of this case.

After the inauguration of the Union (i.e. 1st Plaintiff) election was subsequently conducted following which new officers were elected to fill the various posts. At the hearing of this case the plaintiffs shall rely on a copy of the Daily Times Newspaper of 23/4/82.

The Plaintiffs further aver that after the Union had been fully re-organised steps were then taken to recover all the Union’s properties in possession of its former officers particularly the property at No. 24 Langtang Street, Jos as well as the Monies in the Union’s bank account with African Continental Bank, Jos Branch which was later transferred to Umuahia Branch. Based on the foregoing the Union selected some delegates to visit some of the former officers including the 1st defendant. A letter to this effect was written to the 1st defendant to intimate him about the visit. At the hearing of this case the plaintiffs shall rely on letter dated 10/1/86 addressed to the 1st defendant. Notice is given to the 1st defendant to produce the original copy.”

The appellants all through maintained that the cause of action accrued much earlier than 10/1/86. Thus the applicable statute as far as it relates to the limitation of time within which an action can be commenced in this matter cannot be the Plateau State Limitation Edict, 1988 whose operation commenced on 1st August, 1988 well after the cause of action had accrued. Learned Counsel for the respondents in his brief indicated that the applicable law should be the English Real Property Limitation Acts of 1933 and 1974. Learned Senior Advocate for the Appellants agreed with learned Counsel for the respondents in so far as his submission relates to the application of the English Real Property Limitation Act, 1833 only. I agree with the submission of the learned Senior Counsel to some extent. Plateau State of Nigeria is a state created out of the defunct Northern Nigeria. The Northern Nigeria legislature had no local legislation relating to limitation of time in respect of actions such as the one in issue and thus by operation of law only the pre-1900 English statute of limitation relating to real property applied. Plateau State continued to apply the existing Act until 1988 when the Plateau State limitation Edict was enacted and became operational on 1st August, 1988. I must however hasten to point out that the Real Property Limitation Act, 1833 has been repealed and replaced by the Real Property Limitation Act, 1874. See Megarrys Manual of Law of Real Property 4th Edition by P.V. Baker page 528(1). I need only refer to the further repeal of the 1874 Act and its replacement by the Real Property Limitation Act, 1974 as a mere passing remark for the obvious reason that the 1974 Act not being a Pre-1900 statute of general application is absolutely inapplicable to Northern Nigeria afortiori to Plateau State created out of Northern Nigeria. In the event, and as rightly conceded by both learned Counsel, it is the Real Property Limitation Act, 1874 (which prescribes a period of twelve years for the filing of action relating to real property from the date of the accrual of the cause of action) that is applicable. Let me at this juncture recall the definition of the term, a “cause of action”, as variously defined in decided causes. In the old case of Cooke v. Gill (1873) LR8CP page 107 the term has been defined thus:-

“Cause of action has been held from the earlier time to mean every fact which is material to be proved to entitle the plaintiff to succeed – every fact which the defendant would have a right to traverse.”

Oputa J.S.C in Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 while adverting to the inherent difficulty that attends to attempting a precise definition of the term “Cause of action.” cautiously opined thus:-

“It is admittedly an expression that defies precise definition. But it can safely be defined as that fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person right to judicial relief. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.”

See also Yusuf v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt. 359) 676 at 692; LUTH & M. B. v. Adewole (1998) 5 NWLR (Pt. 550) 406; Alao v. NIDB (1999) 9 NWLR (Pt. 617) 103; Humbe v. A. G. Benue State (2000) 3 NWLR (Pt. 649) 419. Following from the above authorities therefore, the cause of action in any given case has to be determined from its very peculiar circumstances. In the event, when a cause of action is said to have arisen varies from one case to another and it is always a function of the facts of the case which give rise to a right of action thus entitling a person to a judicial relief. Having now seen what a cause of action is, the next crucial point to turn attention to is the test to be applied in determining when a cause of action begins to run. This is important in my view, particularly because of the divergent views held by the parties to the appeal at hand on when the cause of action accrued. In Fadare & Ors. v. Att. Gen. of Oyo State (1982) NSCC 52 at 60, the Supreme Court of Nigeria while referring to the case of Board of Trade v. Cayzer, Irvine and Co. Ltd. (1927) A. C. 610 held that:-

“Time, therefore begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed.”

See also Jallco Ltd. v. Owoniboys Tech. Serv. (1995) 4 NWLR (Pt. 391) 534; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; LUTH & MB v. Adewole (supra) and Humbe v. A. G. Benue State (2000) 3 NWLR (Pt. 649) 419. In other words there exists a law limiting time within which actions of matters should be filed such action or matters must as a matter of law be filed within the time specified in the law and the period of time so specified automatically starts running from the date of the accrual of the cause of action. It is plain therefore that time begins to run when there is in existence a person who can sue and another who can be sued, and when all facts have happened which are material to be proved to entitle the plaintiff to succeed. Now looking at the appeal at hand the learned trial judge in her ruling dated 2/3/99 appears not to have focused her attention nor made any definite finding about the actual date or year the cause of action accrued. But one can discern from the ruling that she subtly accepted the year 1981 as the date of the accrual of the cause of action. At page 98 of the record of appeal, the learned trial judge in her ruling said inter alia:-

” The applicants are saying that the cause of action arose in 1981 and that the plaintiffs did nothing until 1994, so they are not entitled to take any action in relation to a title in respect of the land.

I have been urged to refer to the statement of claim. I have indeed done so, and I found on page 5 parag. 25 of the said statement of claim, that the Plaintiffs did file a case in the High Court here in Jos with file No. PLD/J306/86 and this case was consequently discontinued. Again in 1994 the Plaintiffs returned to Court to file the present suit…………………………………………………….

“In my opinion, they have not gone to sleep over their rights considering what I have said above in respect of paragraph 25 at page 5 of the statement of claim.”

If, as the learned trial Judge appears to have accepted, the cause of action arose in 1981, then subsequent findings in respect of the controversy would have been simple. However, the dimension the conflicting affidavit evidence sworn to in support of and the corresponding counter affidavit in opposition to it have disclosed put the question of the date of the accrual of the cause of action a fact the discovery of which should have formed a cornerstone of the ruling. In the supporting affidavit to the motion paper the 3rd Appellant deposed in paragraph 4 to 8 thereof as follows:-

“4. That from the statement of Claim filed on 29/4/94 particularly paragraphs 16-20 thereof the plaintiffs’ cause of action arose sometime in 1981 after the purported formal inauguration of the first plaintiff.

That despite the above, the plaintiffs’ did not institute this action until March, 1994 which is a period of about thirteen (13) years after the accrual of the cause of action.

That I am informed by our solicitor whom I verily believe that the plaintiffs’ claim is statute barred and that this action is incompetent.

That I am further informed by our counsel whom I also verily believe that the statement of claim did not alleged or disclose any act of acknowledgment of the plaintiff’s cause of action by any of the defendants/Applicant.

That I am informed by the first and second defendants whom I verily believe that since they became the registered owners of the property at No. 24 Langtang Street, Jos in 1996, they have never admitted the purported claim of the plaintiffs to ownership of the said property. As a matter of fact on 9/12/72 a certificate of Occupancy was duly issued in their names and this was further replaced by a statutory right of occupancy No. PL 429 on the 18/6/87. A photocopy of the said certificate is attached here and marked Exhibit ‘A’.”

The counter affidavit, the 5th Respondent (sic) posed in paragraph 5 as follows:

“That between 1981 when the 1st plaintiff was formally re-organised and 1986 the 1st and 2nd defendants were still members of the 1st defendant and amicable steps were taken to get the house back from the Trustees. It was when they refused to handover the property that we decided to go to court.”

A further and better affidavit was deposed to which attracted a reply in counter to it. Clearly the Respondents maintained that the cause of action arose in 1986. Exhibit A C 3 accompanying the reply to the further and better affidavit (contained in page 71 of the record) drew a sharp reaction from the Appellants who promptly filed a counter affidavit challenging the authorship of it. Some features of the signature of the author are said to have shown characteristic differences with that of the actual person who was said to have written it. That had put that exhibit to further scrutiny in order to determine its genuineness since the affidavit evidence on record are irreconciliable and there exist no facts on record to find one way or the other the status of the letter. Since nothing has been called to question in respect of it in this appeal, I withhold my comments on it.

No issue has been joined in both the statement of claim and the statement of defence about the formation of the Bende Divisional Union, Jos Branch in early 1962 and its subsequent registration as a corporate body on 27th April, 1965 – See page 68 of the record of appeal. The only contentious issue is that the Appellant by their paragraph 19 have joined issue on the status of the Respondents as members of the Union contending that the latter are members of the Bende Divisional Association which was formed and duly registered under the Land Perpetual Succession Act on 21/10/86. One will see clearly from exhibits AC2, AC3 and AD (contained in pages 70, 71 and 72 respectively of the record) that the correspondences and the resolution contained were addressed and meant for the BENDE DIVISIONAL ASSOCIATION and not the 1st respondent. Insofar as the motion on notice for the dismissal of the main suit before the Court below is concerned the evidence contained in the reply to further and better affidavit easily neutralised itself as it relates to the 1st respondent. Whereas exhibit AB at page 68 of the record unmistakably showed the registration of the 1st respondent as a corporate body, exhibits AC, AC2 and AC3 which were meant to prove the title of the 1st respondent to the disputed landed property situate at No. 24, Langtang Street, Jos emanated from or were addressed to BENDE DIVISIONAL ASSOCIATION.

That gives credence to the averment of the Appellants in paragraph 19 of their statement of defence. Whether the above state of things will have any effect on the application for the dismissal of the suit before the Court below will be seen in the course of this judgment.

Be that as it may, the 1st respondent and the appellants in point of fact existed since 1965. There is thus a person who can sue and persons who can be sued in the suit before the Court of law as early as the year 1965.

Will it be said however that all facts have happened which were material to be proved to entitle the Respondents to succeed as at 1965? The answer must obviously be in the negative and happily both parties are agreed on this. From the affidavits in support of the motion to dismiss the suit and the counter affidavits two divergent contentions emerge. The Appellants contend that by 1981 when the 1st Respondent conducted elections wherein its principal officers were elected, it was in a clear position to institute an action in order to vindicate its rights since as at then it was clear to the principal officers of the Union that the house in issue is held in title in the names of 1st, 2nd and 4th Appellants. By their contention therefore a period of thirteen years had elapsed since the cause of action accrued before the suit was commenced before the Court below. On the part of the respondents paragraph 5 of their counter affidavit at page 64 of the record says it all. It is to the following effect and may I be permitted to repeat it here:-

“That between 1981 when the 1st plaintiff was formally re-organised and 1986 the 1st and 2nd Defendants were still members of the 1st defendant and amicable steps were taken to get the house back from the trustees. It was when they refused to handover the property that we decided to go to Court.”

What is beyond argument is that the Respondents knew that all material facts relating to the house in issue had existed since the year 1981, except of course acts that would show inconsistent claim of title adverse to that of the 1st respondent. Indeed since that year, “amicable steps were taken to get the house back, ” from the Appellants but that up till the year 1986 nothing tangible was achieved. The contents of the reply to the further and better affidavit appear to me to address no issue in the main motion seeking for the dismissal of the suit. The reply, it must be recalled only sought to introduce exhibits “AA”, “AB”, AC1, AC3 and AD. (See pages 65 to 72 of the record). Exhibit AA is a straight forward and non contentious document, it being a newspaper cutting giving story about the unfortunate brutal murder of Eze Sampson Ukaegbu – the 1st Defendant before the Court below. Another issue that was not contested and no issue was joined on it is the incorporation of the 1st Respondent as a corporate body for which exhibit AB being the duplicate copy of its certificate of incoporation was exhibited. Exht. AC1 however cannot safely be acted upon. It is a letter from the General Secretary of the Bende Divisional Association. Jos branch to the late Eze Sampson Ukaegbu. It is not a letter from the General-Secretary of the 1st respondent and cannot therefore advance the cause of the latter Exht. AC 2 is the reply to exht. AC1 which clearly shows that the latter exhibit was written by the Bende Divisional Association, Jos Branch and not the 1st respondent. So also is exhit., AC3 (the contentious letter) said to have been written by the late Eze Samson Uwaka Ukaegbu to the Bende Divisional Association, Jos branch Exht. AD on the other hand is a resolution of the Bende Divisional Association and not that of the 1st respondent. It is for these glaring realities that the reply to the further and better affidavit sworn to by O. N. U. Obasi is rendered irrelevant to the application before the Court below.

In my judgment, paragraph 5 of the Respondents’ counter affidavit only proved that the 1st and 2nd applicants were as at 1986 still members of the 1st Respondent. Clearly that paragraph is only evidence that the Respondents had set up a machinery for the recovery of No. 24 Langtang Street, Jos but fell short of saying that the Appellants had unequivocally put up adverse claim to title over the property. This is made even clearer when the paragraph is read along with paragraphs 20 to 24 of the statement of claim. Since trustees can never in law obtain title by adverse possession against beneficiaries, the only way adverse title can be discerned in the action of trustees is when they exhibit actions inconsistent with the title of the person who bestowed on them the trust property or as the case may be, the beneficiaries.

Let me say that the formal inauguration of the 1st respondent on 21/6/81 only enabled the respondents to organise the activities of the 1st respondent and to recover as in the main suit, the properties of the Union. It could not have been possible for the respondents to have known the claim of the appellants regarding the house No. 24 Langtang Street, Jos without getting positive response from them.
Certainly being trustees of the property as contended by the respondents, their claim to ownership of the property will only become an issue when any action is taken by them adverse to the title of the 1st Respondent. The fact that a certificate of occupancy was issued in the names of the appellants later renewed in their said names is well noted. However, as it relates to the claim of the 1st respondent that the property was vested in the Appellant as trustees, there appears to be no evidence from affidavit evidence that 1st respondent was made aware of the issuance of the said certificates or the assertion of title adverse to its own. As things stand therefore, the averments of the respondents that they only became aware of the adverse claim of title by the Respondents in 1986 determines the commencement date of the accrual of the cause of action. In her ruling, the learned trial judge used suit No. PLD/J306/86 which was filed by the Respondents before the High Court of Plateau State but later on discontinued as basis for finding that they did not “sleep over their rights” and that the Plateau State Limitation Edict 1988 therefore would not apply to bar the respondents from instituting the suit giving rise to this appeal.

But if I may ask was the learned trial Judge right in using a discontinued suit as basis for computing time for purposes of limitation law? For the beginning what is the legal meaning of the term, discontinuance.”

Black’s Law Dictionary 6th Edn. at pages 464 – 465 defined the term to include inter alia:-

“The cessation of the proceedings in an action where the plaintiff voluntarily puts an end to it, either by giving notice in writing to the defendant before any step has been taken in the action subsequent to the answer, or at any other time by order of the Court of a Judge.”

Halsbury’s Laws of England 4th Edition, paragraph 633 discussed a situation akin to what is obtained in the present suit where a writ originating summons is issued and later not continued. It indicated how a writ taken subsequently should be treated when computation of time is called to question. I quote the paragraph:-

“An action is begun in the High Court when a writ or originating summons is issued, and in a county court when a summons or originating application is issued. If a writ is issued within the required time and not properly continued and a fresh writ is afterwards issued on which the plaintiff proceeds, the commencement of the action is the issuing of the last writ and if this is out of time the plaintiff is barred”.
(Italics supplied)

In fairness to the Respondents, they also conceded that the learned trial Judge was in grave error to have used suit No. PLD/J306/86 as the basis for deciding that the Respondents’ claim was not statute barred. Said learned Counsel at page 10 paragraph 4.09 of the Respondents’ brief of argument:

“It is however submitted that though the learned trial judge was right in holding that the suit was not statute barred but was in error in using the discontinued suit (i.e. suit No. PLD/J306/86) as a basis for deciding whether or not the claim is statute barred and that only the new suit No. PLD/J167/94 commenced on the 29/4/94 can be used for that purpose.”

I need therefore, not over emphasize the fact that the learned trial Judge with all due respect to her, was wrong in using suit No. PLD/J306/86 as a spring board for finding that the period allowed by law for the commencement of action in the suit before her had not expired. Once a suit is discontinued it ceases to have any efficacy in the computation of time for purposes of limitation law. In law, once a suit is discontinued, it terminates thereat and cannot be reckoned as a starting point for commencement of action in a subsequent suit filed.

In paragraph 27(c) of the statement of defence the 1st and 2nd Appellants averred that they, ‘purchased the property in 1966 and only took possession of same after the Civil War in 1972. There is no dispute at all that the 1st and 2nd appellants had been in possession of the house. When the 1st Respondent Union was formally inaugurated on 21/6/81 in Jos and the 2nd to 17th Respondents were elected, house No. 24 Langtang, Street, Jos was in the possession of the appellants. Indeed by paragraphs 14, 16 and 17 of the statement of claim title to the house was vested in the late Eze Sampson Uwaka Ukaegbu, Elijah Udemba Ikwunze and 2nd appellant as trustees of the 1st respondent. It was therefore not out of place when upon the formal inauguration of the 1st respondent on 21/6/81, the Respondents as per paragraph 5 of the counter affidavit in opposition to the motion to dismiss the suit took steps to amicably recover house No. 24 Langtang Street, Jos from the 1st and 2nd appellants. Since it was not clear to them whether infact there was any adverse, claim to the title of the 1st respondent.

Now the Real Property Limitation Act, 1874 extinguishes the existing rights of a person to recover any land, after the expiration of twelve years from the date on which the right of action accrued to him. Both learned Counsel are in agreement that that Act is the applicable law, in the instant appeal., The writ of summons in suit No. PLD/J167/94 was taken on 29th March, 1994. From the year 1986 to 29th March, 1994, is a period of eight years. I should stress that when a statute of limitation prescribes a time frame within which an action must be commenced legal proceedings cannot be properly or validly instituted’ after the expiration of the prescribed period. See Obiefuna v. Okoye (1961) 1 ALL NLR 357; Sanda v.. Kukawa L.G. (1991) 2 NWLR (Pt.174) 379; Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; Eboigbe v. NNPC (supra); Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 at 666 and Shell Petroleum Dev. Co. Ltd. v. Farah (supra). It is obvious that the Respondents, had commenced the suit in question well within the prescribed period of twelve years and are therefore not caught by the statute of limitation. The suit is in my view commenced within the prescribed time limit. The declaration sought in respect of house No. 24 Langtang Street, Jos therefore is clearly maintainable. The consequential claims for the account of stewardship from 1959 as well as that of account for monies collected from or in respect of the property, having been, based on the first relief for declaration of title are equally maintainable.

Learned Counsel for the Respondents argued rather extensively, on the provision of section 33 of the Plateau State Limitation Edict,, 1988. Aside from the fact that Law is inapplicable to the suit which fact was drawn to the attention of this Court by learned Counsel himself, the question of fraud, concealment of facts or mistake were never made the case of either party. The pleadings are clear on this and learned Counsel may do well not to introduce in this appeal, matters over which no issues were joined at the Court below. From all that I have said above the finding of the learned trial Judge, though based on wrong reasons, is nevertheless correct on the grounds I discussed in this judgment. The suit before the Court below was not at all rendered statute barred as wrongly assumed by the appellants.

The only issue for determination therefore is resolved against the appellants. All the grounds of appeal accordingly fail. I should think that this is a proper case for parties to fight their respective case with all the facts at their disposal and in order to restore the confidence parties ought to have in relation to their tribal union and among the members inter se. In the event this appeal fails and it is hereby accordingly, dismissed. I award N2,000.00 costs against the appellants.

IBRAHIM TANKO MUHAMMAD, J.C.A.
I read in advance the judgement of my learned brother Mangaji, JCA, I agree with his reasoning and conclusion. I abide by all the consequential orders made in the Judgment including order as to costs.

OLUDADE OLADAPO OBADINA, J. C. A.
I had the opportunity of reading in draft the judgment of my Learned brother, Mangaji, J.C.A. just delivered. I agreed with him that the Appeal lacks merit and should be dismissed. However, I wish by way of emphasis, to make few comments on the only issue raised for determination. The issue is:- “Whether the claim of the plaintiffs is statute barred.”

The plaintiffs claim read as follow:

“(1) A declaration that the property situate, lying and being at NO. 24 Langtang Street, Jos, is the property of the first plaintiff and that the first plaintiff is entitled to the grant of a statutory right of occupancy over the said property.

(2) A perpetual injunction restraining the first to the fourth defendants, their servants, agents, privies, heirs or such other representatives howsoever called or described from trespassing to or committing any further act of trespass in respect of the said property.

(3) An Order directing the first to the 3rd defendants to give account of their stewardship as the trustees cum officers of the Bende Divisional Union Jos Branch for the period between 1959 and 1981 both years inclusive.

(4) A further Order directing the first to the third defendants to give account of all monies collected from or in respect of the property aforesaid either as rent or hire charged from October 1962 to date inclusive of monies received from the Benue – Plateau Abandoned Properties Committee.

(5) An Order directing the first to the third defendants to hand over to the plaintiffs all Union documents and other moveable properties in their possession, Particularly the followings:

(a) Original copy of the Certificate of Registration.

(b) Union’s Constitution;

W Typewriter,

(6) An Order Setting aside any Certificate of Occupancy or other document of title granted in respect of the said property in the name or names of the 1st to 4th defendants.

As ALTERNATIVE TO reliefs 3 and 4 above:

(7) The lump sum of N1,000.000.00 to be paid by the first to fourth defendants.”

The Plaintiffs statement of claim reads; inter – alias follows:

“(1) The 1st plaintiff is a Socio-Cultural Tribal Union in Jos, a Corporate body registered under the Land (Perpetual Succession) Act and has a Common Seal. The plaintiffs shall rely on the Certificate of Incorporation dated 27/4/65 at the hearing of this case …….”

(8) The plaintiffs aver that the property lying, being and situate at No. 24 Langtang Street, Jos (formerly known as 24 Palmer Street, Jos) is the property of the 1st Plaintiff. The property was purchased in 1962 with money raised out of the 1st Plaintiff’s fund and the Vendor and Owner of the property as at then was one Mr. Daniel Adeleke now deceased. At the hearing of this case the Plaintiffs shall rely on all letters pertaining to this case written by the said Daniel Adeleke either to the 1st Plaintiff or its officers as at that time and to the then Local Authority, Jos and they are hereby pleaded.

(9) At the time of the purchase of the property aforesaid, the 1st, 2nd and 3rd Defendants were the President, Treasurer and General Secretary respectively of the 1st Plaintiff. The 1st, 2nd and 3rd Defendants were also trustees of the Union together with one Elijah Udemba Ikwunze, now deceased. The plaintiffs shall rely on the Certificate of Incorporation of the 1st Plaintiff at the hearing of this case.

(10) After the purchase of the property aforesaid and between October 1962 and April, 1965, no change was officially effected to reflect the new ownership of the property as the 1st plaintiff was yet to be registered in April 1965.

(11) The Plaintiffs aver that after the incorporation of the 1st Plaintiff, steps were then taken to change the ownership of the property from the name of Daniel Adeleke to that of the 1st Plaintiff. The Plaintiffs shall rely on all letters pertaining to the change of ownership of the property written by and/or on behalf of the 1st plaintiff to the Local Authority, Jos, particularly the ones dated 18/11/65; 20/9/65 as well as Daniel Adeleke’s letter dated 18/9/65.

(12) By letter dated 11/7/66, written to the Secretary of the 1st plaintiff (i.e. the Union) by the Local Authority, Jos, the Union was made to understand that it was the policy of the then National Military Government that no tribal union should be given any official recognition and as such it was not going to be possible to change ownership of the property aforesaid to the name of the 1st plaintiff. The plaintiffs shall rely on this letter at the hearing of this case.

(13) The plaintiffs aver that as a result of the letter mentioned in paragraph 12 above the union decided that the ownership of the property be changed to the named of the three registered Trustees of the Union (i.e. 1st, 2nd Defendants and the late Elijah U. Ikwunze) for them to hold same in trust for the Union. Based on this, another letter dated 18/7/66 was written by the former owner of the property Daniel Adeleke to the Local Authority to have the property transferred to the said Trustees. The Plaintiffs shall rely on this letter as well as the letter also dated 18/7/66 addressed to the Local Authority and jointly signed by the three trustees.

(14) The request for the transfer of ownership of the property to the names of the trustees was granted by the Local Authority vide its letter dated 27/3/66 addressed to Mr. Daniel Adeleke and copied to the trustees. The plaintiffs shall rely on this letter and the 1st and 2nd defendants are hereby given notice to produce their copies of the letter at the hearing of this case.

(15) The plaintiffs aver that towards the end of the 1966 there was civil uprising and high tension in the country, particularly in the North and as a result of this most Ibos in Jos including members of the 1st Plaintiff all moved home and they started moving back to Jos after the Civil War in 1970. During this period (i.e. between 1966 and 1970) the property in issue was treated as an abandoned property.

(16) After the Civil War in 1970 one of the registered trustees of the 1st plaintiff namely, Elijah Ikwunze who is now deceased applied to the Military Governor’s Office, Rehabilitation and Resettlement Division to claim back the property. In so doing the said Mr.. Ikwunze was acting for and on behalf of the 1st Plaintiff. At the hearing of this case the Plaintiffs shall rely on letter dated 26/9/70 signed by Acting Secretary to Military Government of Benue – Plateau State addressed to Local Authority, Jos as well as the Local Authority’s reply dated 10/10/70.

(17) The Plaintiffs aver that following the approval of the change of ownership of property to the names of the three trustees by letter referred to in paragraph 14 above a Certificate of Occupancy No. 0701 was later issued on the 9/12/72 in their names. The Plaintiffs shall rely on the said Certificate of Occupancy at the hearing of this case and the 1st and 2nd defendants are hereby given notice to produce it at the hearing.

(18) The 1st Plaintiff (i.e. the Union) was formally inaugurated in 1981 at a meeting held at LGED School Jos on the 21/6/81. The Plaintiffs shall rely on the minutes of the meeting at the hearing of this case.

(19) After the full inauguration of the Union (i.e. 1st Plaintiff) election was subsequently conducted following which new officers were elected to fill the various posts. At the hearing of this case the plaintiffs shall rely on a copy of the Daily Times Newspaper of 23/4/82.

(20) The plaintiffs further aver that after the Union had been fully re-organised steps were then taken to recover all the Union’s properties in possession of its former officers particularly the property at NO. 24 Langtang Street, Jos as well as the monies in the Union’s Bank account with African Continental -Bank, Jos Branch which was later transferred to Umuahia- Branch. Based on the foregoing the Union selected some delegates to visit some of the former Officers including the 1st defendant. A letter to this effect was written to the 1st defendant to intimate him about the visit. At the hearing of this case the plaintiffs shall rely on letter dated 10/1/86 addressed to the 1st defendant.

(21) The delegation aforesaid undertook the journeys and visited some of the past officers and members of the Union including the 1st defendant. At the end of their tour they wrote a report of their findings and submitted it to the 1st plaintiff. The plaintiffs shall rely on the said report at the hearing of this case,

(22). During the visit to the 1st defendant by the delegation, he made it clear to them that the property at No. 24 Langtang Street, Jos, was that of the 1st plaintiff and he promised to take all necessary steps to formally hand it over to the Union. On arrival back to Jos, a letter of appreciation was written to him. The plaintiffs shall rely (sic) on the letter dated 6/2/86 addressed to the 1st defendant as well as his reply to it dated 3/3/86 at the hearing of this…………………….”

The defendants /appellants in material particular denied in their statement of defence that the property in dispute, No. 24 Langtang Street, Jos belonged to the plaintiff’s/respondents.- See paragraphs 8,15,16,17,23,27 and 28 of the statement of defence. By an application dated 18th day of April,1998, the applicant applied the Trial Court for an Order dismissing the action on the ground that the claim was statute barred.

The application was supported by affidavit, paragraphs 2 to 5 of which read as follows:

(2) That I know as a fact that this suit was filed on 30th March, 1994 and pleadings have been duly filed and exchanged.

(3) That the plaintiffs’ main cause of action is declaration of title to the property situate at No. 24 Langtang Street, Jos as well as injunctions.

(4) That from the statement of claim filed on 29/4/94 particularly paragraphs 16 – 20 thereof the plaintiffs cause of action arose sometime in 1981 after the purported formal inauguration of the first plaintiff

(5) That despite the above, the plaintiffs did not institute this action until March, 1994 which is a period of about thirteen (13) years after the accrual of the cause of action.”

The Plaintiffs/Respondents filed a counter affidavit against application for dismissal of the claim. In paragraphs 5 and 6 of counter affidavit the Plaintiffs/Respondents’-stated as follows

“(5) That between 1981 when the 1st Plaintiff was formally reorganised and 1986 the 1st and 2nd Defendants were members of the 1st Defendant (sic) and amicable steps were taken to get the house back from the trustees” It was when they refused to hand over the property that we decided to go to court.

(6) That all along we had been taking the matter as a family affair hence we did not go to court as we had thought that it will be amicably resolved.”
The plaintiffs /respondents again, filed a reply dated 19/10/98 to the further and better Affidavit filed by the appellant, wherein the Respondents stated in paragraph 9 thereof:-

(9) In answer to paragraph 6 of the further and better affidavit, I hereby state as of fact that the 1st and 2nd defendants acknowledged that the disputed property belong to the 1st plaintiff/respondent; hence there was no need to challenge the defendants/applicants then, please refer to Exhibit AC 3.”

From the pleadings, the affidavit in support of the application for dismissal and the counter-affidavits against the application the first question that calls for an answer is when did the cause of action in this case accrue. The appellant is saying that the cause of action accrued sometime in 1981 after the formal inauguration and re-organisation of the 1st plaintiff/respondent in the other hand, the respondent stated that after the formal inauguration and re-organisation of the 1st plaintiff/ respondents, steps were taken to recover the property from the Appellants by sending a delegation to the 1st appellants to discuss with 1st appellant, that the appellant should hand over the property back to the 1st respondent and the late appellant promised to formally hand over the property back to the 1st respondent. In other words, there were negotiations after the formal inauguration of the 1st respondent in 1981 between the appellants and the respondents on how the appellants would formally hand over the property to the 1st respondents. In support of their case the respondents pleaded a letter dated 6/ 2/86 addressed to the 1st Appellant as well as his reply dated 3/3/86.

Similarly the Respondents stated in paragraph 7 of their reply to further and better affidavit dated 19/10/98 that peaceful moves were made to settle the dispute over the property between the parties vide letters dated 6/2/86; 3/3/86 and 15/9/86 attached as Exhibits AC1, AC2 and AC 3, respectively.

“The present position of the law is that in considering whether all action is statute barred negotiations between parties will not stop the time from running. – See Lahan v. Attorney-General of Western Nigeria (1961) WNLR 39; Newllett v. London County Council (1908) 24, T.L.R. 331 at 332.”

However, this dictum is, of course, subject to qualification. It obviously must depend upon the state which the negotiation had reached. It must also be qualified in one other way; if there has been admission of liability during negotiation and all that remains is fulfillment of the agreement, it cannot be just and equitable that the action would be barred after the statutory period of limitation giving rise to the action if the defendant were to resile from his agreement during the negotiation. See Chief lrona. Nwadiaro & others v. The Shell Petroleum Development Company of Nigeria Ltd. (1990) 5 NWLR (Pt.150) 322, at 338 – 339.

In paragraphs 21 and 22 of the statement of claim the respondents stated that the 1st respondent sent a delegation to the1st defendant/appellant and other officers of the 1st plaintiff /respondent, in, January, 1986 to discuss the issue of the defendants handing over of the property in dispute to the 1st plaintiff /respondent; and at the end of the tour, the respondents wrote a letter dated 6/2/86 to the 1st defendant/appellant Exhibit 3; the 1st defendant/appellant replied vide -Exhibits 4, promising he would see that the matter was settled.

Exhibit 3 referred to the visit of the delegation sent to the 1st defendant /appellant by the plaintiffs/respondents and made the demand for the handing over of the property by the defendants /appellant to the 1st plaintiff/respondent clear. The 1st defendant/appellant reply (sic) to Exhibit 3 by Exhibit 4 did not deny the right of the 1st respondent to the property.

A careful reading of Exhibits 3 and 4 together seems to show that the 1st defendant /appellant acknowledged that the property belonged to the Association. He urged the plaintiffs to be patient and allow him to get in touch with Mr. E. U. Ikwunze who was one of the Trustees of the 1st plaintiff/respondent. With Exhibit 4 from the 1st defendant to the plaintiffs /respondents in respect of the property in dispute, and the high degree of hospitality lavished by the 1st defendant/appellant on the delegation sent to him by the 1st respondent, it was prudent on the part of the respondents to expect that the 1st defendant /appellant would not have gone through the whole gamut if they, the defendants /appellants had indeed intended to deny that the property belongs to the 1st Respondent. It seems to me, up to 1986, the appellants led the respondents through the garden path to believe that they were prepared to hand over the said property to the 1st respondent, Until sometime in 1986 when they, the Appellants manifested their intention to convert the property to their own by selling the property.

In the circumstances, I think time would start to run from 1986 and certainly not from 1981, Consequently, the action is not statute barred. In that regard, I agree with my Learned brother, Mangaji, J.C.A. that there is no merit in the Appeal. I also, dismiss the Appeal and abide by the consequential orders made by my Learned brother.

Cases cited in the judgment

Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1.

Alao v. NIDB (1999) 9 NWLR (Pt. 617) 103.

Board of Trade v. Cayzer, Irvine and Co. Ltd (1927) A. C. 610.

Cooke v. Gill (1873) LR8CP Page 107.

Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt. 347) 649.

Edosomwan v. ACB Ltd. (1995) 7 NWLR (Pt. 408) 472.

Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1.

Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258.

Fadare & Ors. v. Att. Gen. of Oyo State (1982) NSCC 52; (1982) 4 SC 1.

Humbe v. A. G. Benue State (2000) 3 NWLR (Pt. 649) 419.

Jallco Ltd v. Owoniboys Tech. Serv. Ltd. (1995) 4 NWLR (Pt. 391) 534.

L.U.T.H & M. B. v. Adewole (1998) 5 NWLR (Pt. 550) 406.

Lahan v. A.G Western Nigeria (1961) WNLR 39.

Nwadiaro & Ors v. Shell Petroleum Development Company of Nigeria Ltd. (1990) 5 NWLR (Pt.150) 322.

Newllett v. London County Council (1908) 24 T.L.R. 331.

Emiantor v. N.A. (2000) 24 WRN 97 SC

Akgaer Jor v. Dom (1999) 7 SCNJ 27

Obiefuna v. Okoye (1961) 1 All NLR 357.

Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637.

Sanda v. Kukawa L. G. (1991) 2 NWLR (Pt. 174) 379.

Shell Pet. Dev. Co. Ltd. v. Farah (1995) 3 NWLR (Pt. 382) 148.

Yusuf v. Co-operative Bank Ltd. (1994) 7 NWLR (Pt.359) 676.

Statutes referred to in the judgment

Real Property Limitation Act, 1833.

Real Property Limitation Act, 1874

Real Property Limitation Act, 1974.

Real Property Limitation Act, 1988.

Plateau State Limitation Edict No. 16 1988,s. 33., s. 3. s. 18

Land Tenure Law Cap 59 Laws of Northern Nigeria, 1963, s.6(3)

Land Use Act Cap 202, LF9 1990 s. 5(2)