3PLR – OKAFOR V. BENDE DIVISIONAL UNION, JOS BRANCH

Published by Law Nigeria Admin at July 12, 2019

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OKAFOR

V. BENDE DIVISIONAL UNION, JOS BRANCH

SUPREME COURT OF NIGERIA

SC. 164/2003

FRIDAY, 16 DECEMBER 2016

3PLR/2017/252 (CA)

BEFORE THEIR LORDSHIPS:

WALTER SAMUEL NKANU ONNOGHEN JSC (Presided)

MARY UKAEGO PETER-ODILI JSC

OLUKAYODE ARIWOOLA JSC

KUMAI BAYANG AKAAHS JSC

K. MOTONMORI OLATOKUNBO KEKERE-EKUN JSC (Read the Lead Judgment)

BETWEEN

CHRISTIAN OKAFOR

AND

BENDE DIVISIONAL UNION, JOS BRANCH
MR. DICKSON U. E. UWAGBAMA
EMMA I. CHUKWU
ANTHONY ONWUKANJO
UKOHA U. UKOHA
D. I. KALU
SUNDAY A. UKANDU
MRS. J. NWAMUO

REPRESENTATION

Oyawole Esq. (with him, Luke Ohiero Esq.) – for the Appellant/Applicant.
N. Ugwuala Esq. – for the Respondents.

KEKERE-EKUN JSC (Delivering the Lead Judgment): This appeal is against the judgment of the Court of Appeal, Jos division delivered on 8 November 2000, affirming the ruling of the High Court of Plateau State, sitting at Jos wherein the court dismissed an application filed by the defendants/applicants seeking to dismiss the suit on the ground that it was statute-barred.

The facts that gave rise to this appeal are as follows:

The 1st respondent, the Bende Divisional Union, Jos branch is a socio-cultural/tribunal union while the 2nd to 8th respondents are its principal members. Sometime in 1962, the 1st respondent decided to acquire landed property for the purpose of carrying out its activities. Two of its trustees, namely, Eze Samson U. Ukaegbu and Daniel Orji Ogba (who were later sued as 1st and 2nd defendants) and one Elijah Udemba Ikwunze (all now deceased) were instructed to locate a suitable piece of land and conduct negotiations on its behalf. A house belonging to one Daniel Adeleke (now deceased) situate at No. 24 Langtang street, Jos (former 24 Palmer street, Jos) was identified and purchased for a consideration of £750. It was the respondents’ case that payment was made from funds raised by the union. Unfortunately, it was not possible to effect the necessary change of title because the union was not registered. It eventually got registered in 1965.

However, according to the respondents, the political climate in Nigeria at the time was tense with several civil disturbances and tribal conflicts. It was therefore a policy of the government of the day to de-emphasise tribal unions. Consequently, the Jos Local Authority refused to effect the change of title in the name of Bende Divisional Union.

In trying to find a solution to the circumstance in which it found itself, the 1st respondent authorised its trustees which included the erstwhile 1st and 2nd defendants to register the property in their personal capacities on the understanding that necessary steps would be taken to register the property in the union’s name when the mood in the country was more conducive.

To compound an already uncomfortable situation, civil war broke out in Nigeria in 1966. As a result, members of the union were forced to flee the northern part of the country and return to the former eastern region. It was the respondents’ contention that up till the end of the war in 1970, the 1st and 2nd defendants and the late Elijah udemba Ikwunze held the property in trust for the union. On 21 June 1981, the union was formally inaugurated and immediately thereafter, steps were taken by the newly elected officers to recover the union’s properties in possession of the 1st and 2nd defendants and the late Elijah Ikwunze, which included the property at 24 Langtang Street, Jos. In spite of these efforts, somewhere along the line, the property was sold to the present appellant by the 1st to 3rd defendants.

The respondents, as plaintiffs instituted suit No. PLD/J306/86 against Eze Samson U. Ukaegbu, Daniel Orji Ogbah and three others for title to the property. The present applicant, purchaser of the property, was the 4th defendant. The suit was however discontinued. Subsequently, the respondents instituted a fresh suit on 25 April 1994, seeking the following reliefs:

“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 to 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 charged from October 1962 to date inclusive of monies received from the Benue-Plateau Abandoned Properties Committee.
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 following:

(a) Original copy of the certificate of registration.

(b) Union’s 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 to 4^th defendants.

As alternative to reliefs 3 and 4 above:

The lump sum of N1,000,000.00 (one million naira) to be paid by the first to fourth defendants.”

It was the case of the defendants at the trial that when the property in issue could not be registered in the name of the union, the 1st and 2nd defendants and Elijah Ikwunze renegotiated for the purchase of the property with the late Mr. Adeleke. That the plaintiff’s money, which had been advanced as consideration was returned to it and that they then bought the property themselves and registered it in their names as their personal property. They maintained that the property belonged to them. After the exchange of pleadings, the defendants filed a motion on notice praying for the suit to be dismissed on the ground that it was statute barred.

In a considered ruling delivered on 2 March 1999, the High Court per M. N. Ntiem J. dismissed the application and held that the suit was not statute barred. An appeal to the lower court was dismissed on 8 November 2000 and the ruling of the trial court was upheld.

The appellant is dissatisfied with the decision and has further appealed to this court vide his amended notice of appeal dated 1 March 2013 but filed with leave of this court granted on 25 February 2013. The amended notice of appeal contains 4 grounds of appeal. The parties duly filed and exchanged their respective briefs of argument in compliance with the rules of this court. At the hearing of the appeal on 27 September 2016, H. N. Ugwuala Esq., learned counsel for the respondents drew the court’s attention to a preliminary objection raised and argued in his brief.

Oyawole Esq. adopted and relied on the amended appellant’s brief filed pursuant to an order of this court granted on 25 February 2013 and the appellant’s reply brief which was deemed properly filed on 27 September 2016. He urged the court to overrule the preliminary objection and allow the appeal.
N. Ugwuala Esq., adopted and relied on the respondents’ amended brief of argument filed on 18 March 2013. He adopted the arguments in respect of the preliminary objection at pages 7 – 14 thereof and urged the court to uphold same and strike out the appeal. Alternatively, he adopted his arguments on the merit of the appeal and urged the court to dismiss same.

The respondents having raised a preliminary objection to the competence of the appeal, it is prudent to consider and resolve it first before delving into the merits of the appeal. Should the preliminary objection succeed, it would have the effect of terminating the appeal in limine. See First Bank of Nigeria Plc v. T. S. A. Industries Ltd (2010) All FWLR (Pt. 537) 633, (2010) 15 NWLR (Pt. 1216) 247, (2010) 4 – 7 SC (Pt. I) 242, (2010) LPELR – 1283 (SC) 49; Opara & Anor. v. Amadi & Anor. (2013) All FWLR (Pt. 709) 1019, (2013) 12 NWLR (Pt. 1369) 512, (2013) LPELR – SC.189/2012 at 12, paragraphs D – E; Ikuepenikan v. State (2015) All FWLR (Pt. 788) 919, (2015) 9 NWLR (Pt. 1465) 518, (2015) LPELR – SC.402/2010.

The grounds of the objection as set out in paragraph 3.01 of the respondents’ amended brief of argument are as follows:

The original notice of appeal violates the mandatory provisions of Order 2, rule 8 of the Supreme Court Rules in that it does not reflect the same title of the parties as that which obtained in the court of trial and the Court of Appeal.
There are no proper or competent or juristic respondents in the original notice of appeal filed by the appellant. There is therefore no valid notice of appeal which can or could have been amended.
Assuming but not conceding that the appellant’s original notice of appeal is competent, ground 3 of the amended notice and grounds of appeal filed by the appellant and the issue framed therefrom are merely academic as they are of no practical utilitarian value to the appellant even if judgment is given in his favour in this appeal.

Argument on the preliminary objection

In a nutshell, it is the contention of the learned counsel for the respondents that the appellant failed to comply with the provisions of Order 2, rule 8 of the rules of this court, which make it mandatory that notices of appeal, applications for leave to appeal, briefs and all other documents filed in the appeal shall reflect the same title as that which obtained in the court of trial.

Essentially, the complaint is that in the writ of summons and statement of claim at the trial court and in the original notice of appeal filed pursuant to leave granted by the lower court on 22 January 2001, the names of the 17 plaintiffs at the trial court and respondents at the court below respectively were fully stated while in the instant appeal, the respondents are described as “Bende Divisional Union Jos Branch and 16 others.” On the failure to comply with Order 2, rule 8 of the rules of this court learned counsel relied on P.P.A. v. I.N.E.C. & Anor. (2012) 13 NWLR (Pt. 1317) 215 at 236 – 237.

He further submitted that “Bende Divisional Union and 16 Others” is not a juristic person capable of suing and being sued.

He argued that each of the 17 respondents must stand alone. He relied on: Carlen (Nig) Ltd v. University of Jos & Anor. (1994) 1 NWLR (Pt. 323) 631, (2001) 19 WRN 168; and Lion of Africa Insurance Co. Ltd & Anor. v. Mr. & Mrs. E. A. Esan (1999) 8 NWLR (Pt. 614) 197 at 202. He submitted that in the absence of all the parties being fully and specifically listed, this court would lack jurisdiction over the “16 others” who are not parties before it. Babatola v. Aladejana (2001) FWLR (Pt. 61) 1670, (2001) 12 NWLR (Pt. 728) 597 at 615 referred to.

He submitted that since the original notice of appeal was defective, the leave granted to the appellant by this court on 25 February 2013 to amend same is of no moment, as it stands on nothing. He urged the court to strike out both the original and amended notices of appeal.

In the event that the court does not accede to his requests to strike out the notices of appeal, he urges the court to strike out ground 3 of the amended notice of appeal and the issue formulated therefrom on the ground that they are academic and of no practical value to the appellant even if the appeal succeeds.

It is contended that ground 3 and issue 3 distilled therefrom, which challenge the following finding of the court below, to wit:

“that the consequential claim for an account of the stewardship (of the property) from 1959 and for an account of monies collected for or in respect of the property, having been based on the first relief for declaration of title is equally maintainable”, is academic because the reliefs referred to were never sought against the appellant but against the 1st, 2nd and 3rd defendants who are all now deceased. That the appellant was neither a trustee of the 1st respondent nor a member of the union. Relying on Shettima v. Goni (2011) LPELR 417 (SC), (2011) 18 NWLR (Pt. 1279) 413 at 455, paragraph F, (2012) All FWLR (Pt. 609) 1007, he urged the court to strike out both ground 3 and issue 3 predicated thereon.

In reply, learned counsel for the appellant drew the court’s attention to its record of 25 February 2013 when the appellant was granted leave to amend his notice of appeal, which application was granted without objection from learned counsel for the respondents. He submitted, relying on Adewunmi v. Attorney-General, Ekiti State (2002) FWLR (Pt. 92) 1835, (2002) 2 NWLR (Pt. 751) 474 at 506, paragraphs E – F, (2002) 1 SC 47, that the law is trite that an amendment once granted dates back to the date of the original process and that the process that was amended becomes irrelevant in the determination of any of the issues before the court. He submitted that the respondents are precluded from making any reference to the original notice of appeal. On the curative effect of an amendment, he relied on:

Unity Bank Plc v. Denclag Ltd (2012) 18 NWLR (Pt. 1332) 293 at 327, paragraphs B – G, (2013) All FWLR (Pt. 675) 206.

Relying on several authorities, he challenged the mode of raising the objection. He referred to Order 2, rule 9 of the rules of this court and argued that the objection raised in respect of ground 3 of the amended notice of appeal and issue 3 distilled therefrom, cannot be raised in the form of a preliminary objection since its resolution would not have the effect of terminating the appeal.

Learned counsel argued that looking at reliefs 3 and 4 and the alternative relief 7, which were not fully set out by the respondents in their brief, the interest of the appellant is interwoven with those of the 1st – 3rd defendants. He submitted that the grant of issue 3 in the appellant’s favour would confer a benefit on him. Accordingly, he urged the court to overrule the entire preliminary objection.

It is noteworthy, in my view, that the attack in grounds 1 and 2 of the preliminary objection are targeted at the original notice of appeal dated 23 January 2000 but filed on 23 January 2001 pursuant to leave of the court below granted on 22 January 2001.

It is not in dispute and indeed the records of this court show that on 25 February 2013, a motion on notice filed on 19 October 2001 for leave to amend the said notice of appeal was moved in court and that the application was granted after learned counsel for the respondents, H. N. Ugwuala Esq., informed the court that he was not opposing it. In other words, the application was granted without objection. It is also pertinent to note that there is no appeal against the order granting the amendment. Now, the law is trite that the effect of an amendment of a court process is that it takes effect from the date of the original document sought to be amended. This applies to every successive further amendment of whichever nature and at whatever stage it is made. The action will proceed as if the amendment had been inserted from the beginning. See Adewunmi v. Attorney- General, Ekiti State (2002) FWLR (Pt. 92) 1835, (2002) 2 NWLR (Pt. 751) 474 at 506, paragraphs E – F, (2002) 1 SC 47 per Wali JSC; The Registered Trustees, Airline Operators of Nigeria v. Nigerian Airspace Mgt. Agency (2014) 8 NWLR (Pt. 1408) 1, (2015) All FWLR (Pt. 762) 1786; Brittania-U (Nig.) Ltd v. Seplat Petroleum Development Company Ltd (2016) All FWLR (Pt. 826) 398, (2006) 1 – 3 SC (Pt. III). It was held by this court in the case of Vulcan Gases Ltd v. Gessellschaft Fur Industries Gasverwertung A.G. (G.I.V.) (2001) FWLR (Pt. 53) 1, (2001) 9 NWLR (Pt. 719) 610, (2001) 5 SC (Pt. 1) 1 at 15, that once an amendment is made, what stood before the amendment is no longer material before the court and no longer defines the issues to be tried.

It is the contention of learned counsel for the respondents that the original notice of appeal was fundamentally defective ab initio and therefore the subsequent amendment had no leg to stand on, as you cannot put something on nothing.

It is the correct position of the law that where a document, such as a notice of appeal, is fundamentally defective, it cannot be cured by an amendment. See: Nwaigwe v. Okeke (2008) All FWLR (Pt.431) 843, (2008) 13 NWLR (Pt. 1105) 445, (2008) LPELR – 2095 (SC), (2008) 5 SCNJ 256, (2008) 5 – 6 SC (Pt. 11) 93; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592, (2009) LPELR (140) 1 (SC), (2009) 4 – 5 SC (Pt. 3) 123; Daniel v. I.N.E.C. (2015) All FWLR (Pt. 789) 993, (2015) 9 NWLR (Pt. 1463) 113, (2015) LPELR – SC.757/2013. The issue is whether the failure to state the names of 16 respondents in full was a fundamental or incurable defect that would vitiate the entire process? I answer in the negative. The 1st respondent, Bende Divisional Union, Jos branch is a juristic person capable of suing and being sued in its own name. I think it is mischievous to read Bende Divisional Union, Jos branch together with “and 16 others” as if it is one person. In any event, I am of the view that the failure to state the full names of the remaining 16 respondents was an irregularity that could be cured by amendment. Having failed to challenge the amendment at the time leave was sought, it is too late in the day for the respondents to raise the issue at this stage. They must now forever hold their peace. The amended notice of appeal dates back to the date of the original notice of appeal and properly reflects the full names of the respondents in the appeal. I therefore hold that the original notice of appeal is no longer relevant in these proceedings. The amended notice of appeal filed on 4 March 2015 is competent. Grounds 1 and 2 of the preliminary objection are accordingly overruled.

The third ground of objection is that ground 3 of the amended notice of appeal and issue 3 distilled therefrom should be struck out for being academic and of no utilitarian value of the appellant.

As rightly observed by learned counsel for the appellant, Order 2, rule 9(1) of the rules of this court allow a respondent to file a notice of preliminary objection to the hearing of an appeal.

The purpose of such an objection is to terminate the appeal in limine for being incompetent or fundamentally defective. See: General Electric Co. v. Akande & Ors. (2010) 12 SC (Pt. IV) 75, (2010) LPELR – 9356 (SC), (2010) 18 NWLR (Pt. 1225) 596, (2011) 4 NSCQR 611; Shell Petroleum Development Corporation (Nig.) Ltd v. Amadi & Ors. (2011) 14 NWLR (Pt. 1266) 157 at 183, paragraphs D – F and pages 192 – 193, paragraphs G – A, (2011) 6 SCM 183. Thus, once there are other grounds to sustain the appeal, the procedure of preliminary objection should not be used. See Shell Petroleum Development Corporation (Nig.) Ltd v. Amadi & Ors (supra). Whether the appellant’s issue 3 is academic or not is an issue to be determined when the appeal is determined on its merits. It has no effect on the competence of the appeal itself. There is no complaint against the other grounds of the amended notice of appeal. The preliminary objection raised in respect of this issue is misconceived. It is hereby overruled.

On the whole, I find no merit in the preliminary objection and it is hereby dismissed.

I now proceed to determine the appeal on its merits.

` The appellant formulated 3 issues for determination as follows:

Was the court below right when it suo motu substituted 1981 with 1986 as the date of accrual of cause of action as found by the trial court and against which there was no appeal? (Ground 1).
Whether the learned justices of the Court of Appeal were right in failing to hold that the cause of action accrued in 1981? (Ground 2).
Whether the claim for account of stewardship and monies collected on the property from 1959 is maintenable, and not statute barred? (Ground 3).

The respondents on their part formulated 2 issues thus:

Were the learned justices of the Court of Appeal right in finding and holding as they did that the respondents’ cause of action for the recovery of the property in dispute accrued in 1986 and not in 1981 and that the respondents’ suit is not statute barred? (Grounds 1, 2 and 3 of Amended Notice of Appeal)
Were the learned justices of the Court of Appeal right in holding as they did, that the respondents’ claim for the account of stewardship as well as account for monies collected from or in respect of the property in issue was maintenable and not statute barred? (Ground 3 of the Amended Notice of Appeal).

I observe that the respondents have formulated more than one issue from ground 3 of the amended notice of appeal. Parties have been admonished time and again by this court against proliferation of issues. While it is permissible to formulate a single issue from several grounds of appeal, it is not proper to formulate more than one issue from a single ground of appeal. See Leedo Presidential Hotel Ltd v. B.O.N (Nig.) Ltd (1993) 1 NWLR (Pt. 269) 334 at page 347, paragraphs A – C; Nwankwo v. Yar’Adua (2010) All FWLR (Pt. 534) 1, (2010) 12 NWLR (Pt. 1209) 518, (2010) 3 SCNJ (Pt. 1) 24; Attorney-General, Bendel State v. Aideyan (1989) 9 SCNJ 80, (1989) 4 NWLR (Pt. 118) 646, (2003) FWLR (Pt. 187) 886; Arum v. Nwobodo (2013) All FWLR (Pt. 688) 870, (2013) LPELR – SC.172/2004, (2013) 10 NWLR (Pt. 1362) 374.

In the circumstances, I shall adopt the issues formulated by the appellant in the resolution of this appeal. I shall take issues 1 and 2 together.

Issues 1 and 2

Was the court below right when it suo motu substituted 1981 with 1986 as the date of accrual of cause of action as found by the trial court and against which there was no appeal? (Ground 1)
Whether the learned justices of the Court of Appeal were right in failing to hold that the cause of action accrued in 1981? (Ground 2)

Appellant’s submissions

Learned counsel for the appellant reproduced the following portions of the ruling of the trial court at page 88, lines 12 – 27 of the record and of the judgment of the court below at page 157, lines 11 to 13 and 158, lines 7 – 9 thereof:

Learned trial judge:

“The applicants are saying that the cause of action arose in 1981 and that the plaintiffs did nothing until 1994, so they are not entitle (sic) 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, 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.”

(I note that reference to page 88 of the record is incorrect. The correct page is page 108.)

Court below:

“Now looking at the appeal at hand, the learned trial judge in her ruling dated 2 March 1999 appears not to have focussed 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.” …

“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.”

Learned counsel submitted that from the above reproduced portions of the record, the lower court had “spotted and recognised” the date of accrual of the cause of action as found by the learned trial judge to be 1981. He submitted that notwithstanding this recognition, the court went on to hold that the cause of action accrued in 1986 when the respondents became aware of the adverse title of the appellant (erroneously referred to in the judgment as respondents).

He contended that the crux of the appeal before the lower court was the use by the learned trial judge of the suit filed in 1986, which was later discontinued, to reach a determination that the respondents had not slept on their rights. He argued that by virtue of section 240 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the jurisdiction of the Court of Appeal is limited to determining whether a trial court has arrived at the right conclusion based on the facts and relevant law and not to try the case all over again. He submitted that in the absence of an appeal against the finding of the trial court that the cause of action accrued in 1981, it was wrong for the court below to have disturbed the finding even if in its view such finding was wrong. He relied on the cases of Okuoja v. Ishola (1982) 7 SC 314 – 349; Egonu v. Egonu (1978) 11 -12 SC 111 at 129, (1978) 11 – 12 SC (Reprint) 82; Oshodi v. Eyifunmi (2000) FWLR (Pt. 8) 1271, (2000) 13 NWLR (Pt. 684) 298 at page 332, paragraphs C – E, pages 349 – 350, paragraphs H – A and page 352, paragraphs B – D, (2000) 7 SC (Pt. 2) 154; Nwabueze v. Obi-Okoye (1988) 4 NWLR (Pt. 91) 664. He submitted that the finding remains valid and subsisting until it is challenged and set aside on appeal. Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (Pt. 200) 659, (2001) FWLR (Pt. 58) 1127.

He submitted that in substituting its own views for those of the trial court, the court below abdicated its appellate role.

He argued further that the court below raised the issue of a different date for the accrual of the cause of action suo motu and resolved it without inviting the parties to address it. He urged the court to set aside the decision in this regard. He relied on the case of Oyewole v. Akande (2009) All FWLR (Pt. 491) 813, (2009) 15 NWLR (Pt. 1163) 119 at page 148, paragraphs B – E, (2009) 38 WRN 1.

Under issue 2, it is contended that the court below erred in failing to hold that the cause of action accrued in 1981. Learned counsel referred to paragraphs 5 and 6 of the defendants’/appellants’ counter-affidavit to the motion to dismiss the suit at page 64 of the record and submitted that the averments show that the 1st respondent’s trustees were not willing to hand over the property in 1981 when it was demanded of them and this was what gave rise to negotiations between 1981 – 1985. He submitted that the lower court correctly summarised the facts at pages 142 – 143, lines 17 – 25 and lines 1 – 2 of the record respectively.

He submitted that from the averments before the court, there was clearly a dispute between the then plaintiffs and the 1st – 3rd defendants at the trial court over ownership of the property which is why, in his view, it was averred that efforts were being made by the respondents to see if there could be an amicable return of the property to them from 1981 up till 1994 when they instituted their action in court. He submitted that there could not be a move for a peaceful resolution without the existence of a dispute in the first place. He relied on the case of Eboigbe v. N.N.P.C (1994) 5 NWLR (Pt. 347) 649 at page 675, paragraph A, (1994) 6 SCNJ 71 and Halsbury’s Laws of England, 4th Edition, Volume 28, paragraph 622.

He submitted that a cause of action has been defined as every fact which is material to be proved to entitle the plaintiff to success. That it is a factual situation, which gives a person a right to judicial relief. He referred to Edosomwan v. A.C.B. Ltd (1995) 7 NWLR (Pt. 408) 472 at page 477, paragraphs C – E.

He submitted further that a cause of action accrues when the act of the defendant gives the plaintiff cause to complain and that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action. Shell Petroleum Development Co. (Nig.) Ltd v. Farah (1995) 3 NWLR (Pt. 382) 148 at pages 186 – 187, paragraphs E – D referred.

He submitted that on the facts of this case, the cause of action accrued in 1981 because by that time, the respondents were already aggrieved by the conduct of the 1st – 3rd defendants.

That there were already in existence parties that could sue and be sued for remedies in court. He submitted that negotiations for the purpose of settling a dispute does not stop the limitation period from running. He submitted that the year 1981, when the 1st respondent was re-organised and began negotiating with its trustees for the return of their property, was when the cause of action accrued and that by virtue of the Real Property Limitation Act of 1874, a statutes of general application applicable to Plateau State at the time, the suit was statute barred by the time it was filed in 1994, being 13 years after the accrual of the cause of action. He urged the court to resolve both issues in the appellant’s favour.

Respondents’ submissions

In reaction to the submissions of learned counsel for the appellant, learned counsel for the respondents submitted that a wrong impression has been created by the appellant’s counsel as to the actual finding of the court below regarding the manner in which the trial court resolved the issue of whether the action was statute barred or not. He referred to the ruling of the trial court at page 108 (not 88) of the record and submitted that the trial court did not make any finding of fact that the cause of action accrued in 1981. He submitted that what the trial court did was merely to recapitulate the position being advanced by the defendants/applicants and without agreeing or disagreeing with the applicants, dismissed the objection based on the fact that the respondents had filed suit No. PLD/3306/86 in 1986, although it was subsequently discontinued.

He noted that even the court below, at page 157, lines 8 – 11 of the record, lamented the failure of the learned trial judge to make a specific finding on the date of accrual of the cause of action. He submitted further that the contention of learned counsel for the appellant that the court below accepted that the trial court found the date of accrual of cause of action to be 1981, is not supported by the court’s finding at pages 157 – 158 of the record, which he reproduced in extenso. He submitted that the learned justices appreciated the fact that even if the year 1981 was “subtly accepted” by the learned trial judge as the date when the cause of action accrued, he failed to specifically determine the issue.

He submitted that the sole issue before the trial court was whether the plaintiffs’ (now respondents) claim was statute barred and that the learned trial judge having failed to resolve the issue, the learned justices of the Court of Appeal were in as good a position as the trial court to evaluate the pleadings and affidavit evidence before it and come to a specific finding on the issue.

He noted that the issue in controversy did not depend on the credibility or reliability of witnesses before the trial court but on documentary evidence contained in the pleadings, affidavits and documents attached thereto. In support of this contention, he relied on Ishola v. Union Bank of Nigeria Ltd (2005) All FWLR (Pt. 256) 1202, (2005) 6 NWLR (Pt. 992) 422 at 443, paragraphs A – B; Shell B. P. Development Co. of Nigeria Ltd v. Pere-Cole & Ors (1978) 3 SC 183 at 194 and Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626 at 634, paragraphs F – H, (1986) 4 SC 98.

Referring to paragraphs 18 – 24 of the statement of claim at pages 8 – 9 of the record and paragraph 5 of the respondents’ counter-affidavit at page 64 thereof, learned counsel submitted that although after the inauguration of the 1st respondent on 21 June 1981 and the election of officers, steps were taken between 1981 and 1986 to recover the property in dispute from the trustees, it was only when they became aware that the trustees had exercised acts of ownership by the sale of the property to the appellant between 1985 and 1986 that they decided to go to court.

He submitted that contrary to the contention of learned counsel for the appellant that the cause of action accrued upon the 1st respondent’s inauguration on 21 June 1981, the said inauguration could only have allowed the 1st respondent to reorganise its affairs and that it was when the trustees manifested an adverse claim in 1986 by refusing to hand over the property that the cause of action accrued.

Learned counsel submitted that in any event, the pleading in the statement of claim indicated that it was a claim for the recovery of trust property and for accounts of its management by the trustees and that by the combined provisions of section 31(4) of the Real Property Limitation Act, 1874 and section 6 of the Trustees Act, 1988 applicable to this matter, statutes of limitation are inapplicable where the claim is founded on fraud or fraudulent breach of trust to which a trustee was a party or privy or where the claim is to recover trust property or the proceeds still retained by the trustees or previously recovered by them and converted to their use. He relied on the case of Adekeye & Ors. v. Chief O. B. Akin-Olugbade (1987) 1 NSCC 865 at pages 874 – 875, (1987) 3 NWLR (Pt. 60) 214, (1987) 6 SC 268 and Ojeme v. Ojeme (2000) 13 NWLR (Pt. 685) 606 at 614, paragraphs C – D, (2001) FWLR (Pt. 33) 395. He submitted that in light of the law and authorities cited, whether the cause of action accrued in 1981 or 1986, the limitation period provided for by the Real Property Limitation Act of 1874 does not apply to this case. He urged the court to resolve both issues against the appellant.

Appellant’s reply

Learned counsel for the appellant maintained his contention that the trial court made a specific finding on the date of accrual of the cause of action and submitted that there was no appeal against any alleged failure of the trial court to evaluate the affidavit/documentary evidence and/or determine the issue. On this premise, he submitted that the authorities of Ishola v. U. B. N. Ltd (supra) and Shell B. P. Devt. Co. of Nig. Ltd v. Cole (supra) and Awoyale v. Ogunbiyi (supra) cited by learned counsel for the respondents on the powers of the appellate court to evaluate evidence where the trial court fails to do so, are inapplicable. He urged the court to disregard the submissions regarding the applicability of section 31(4) of the Real Property Limitation Act, 1874 and section 8 of the Trustees Act, 1888 and the authorities referred to on the ground that the issue did not arise either from the pleadings of the parties or the affidavit evidence before the court. He submitted that parties must be consistent with the case they present before the court and are not permitted to change course at the Court of Appeal or at the apex court, as an appeal is a continuation of the case at the trial court. He referred to International Messengers (Nig.) Ltd v. Pegofor Industries Limited (2005) All FWLR (Pt. 270) 2018, (2005) 15 NWLR (Pt. 947) 1 at 19, paragraphs A – B, (2005) 5 SC (Pt. 1) 38; Edebiri v. Edebiri (1997) 4 NWLR (Pt. 498) 165 at page 174, paragraphs A – C, (1997) 4 SCNJ 177.

Resolutions of Issues 1 and 2:

The first issue to be resolved is whether, from a careful perusal of the record, it could be said that the court below suo motu substituted 1981 (as purportedly found by the trial court) with 1986 as the date of accrual of the cause of action. This issue is fundamental and if resolved in the appellant’s favour is capable of disposing of the entire appeal. This is because a court is bound to confine itself to the case presented and the issues raised by the parties. It has no business considering an issue not properly brought before it. See: A.D.H. Ltd v. Amalgamated Trustees Ltd (2007) All FWLR (Pt. 392) 1781 at 1807, paragraphs E – F, (2007) 10 MJSC 49; Ojoh v. Kamalu (2005) 12 SC (Pt. 11) 1, (2005) 12 SCM 332, (2005) 18 NWLR (Pt. 958) 523 at 568, paragraphs B – C, (2005) 12 SCNJ 236, (2006) All FWLR (Pt. 297) 978; F. R. N. v. Yau Mohammed (2014) 19 WRN 1, (2014) LPELR – 22465 (SC). Where a court sees fit to take a point suo motu, the parties must be given an opportunity to address it before a decision on the point is made. See: Olusanya v. Olusanya (1983) 14 NSCC 97 at 102, (1983) 3 SC 41, (1983) 1 SCNLR 134; Ejike v. C.O.P. (2015) 4 – 5 SC (Pt.1) 101; Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524, (1992) 7 SCNJ 217, (1992) LPELR (8053) 1. Failure to adhere to these guidelines would occasion a miscarriage of justice, as it runs counter to the impartial status and stance expected of a judge. See Eholor v. Osayande (supra) at page 543, paragraphs G – H. It would amount to a breach of the parties’ right to fair hearing. Correspondingly, it would render the proceedings a nullity.

Learned counsel for the appellant has argued this issue on the premise that the trial court made a definite finding as to the date the cause of action accrued. I have read again the portion of the judgment at page 108, lines 12 – 27 of the record, reproduced earlier in this judgment. My understanding of the views expressed by the learned trial judge is that even if the cause of action arose in 1981, as contended by the defendant (now appellant) having regard to suit No. PLD/J306/86 filed by the plaintiffs (now respondents), they could not be said to have slept on their rights. The trial court, as rightly observed by learned counsel for the respondents neither agreed nor disagreed with the defendants’ proposition. This is why the court below observed thus at page 157 of the record, which I shall reproduce again for ease of reference:

“Now looking at the appeal at hand, the learned trial judge in her ruling dated 2 March 1999 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.

… however, the dimension the conflicting affidavit evidence sworn to in support 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 the cornerstone of the ruling.” (Emphasis mine)

The word “subtle” is defined in the Oxford Learner’s Dictionary (International Student’s Edition) New 8th Edition as:

“not very noticeable or obvious”.

In Dictionary.com (iPad app) it is defined as “fine or delicate in meaning or intent; difficult to perceive or understand.”

The court below was clearly lamenting the failure of the trial court to make a definite finding on the issue, which “should have” formed the cornerstone of its ruling.

It follows therefore, that if there was no definite finding of the trial court that the cause of action accrued in 1981, the issue of the court below suo motu “inserting” the year 1986 does not arise.

As observed by learned counsel for the respondents in paragraph 6.08 of his brief and as can be seen from paragraph 3.00 of the appellants’ brief at the court below (page 94 of the record), the sole issue distilled for determination of the appeal was: “whether the claim of the plaintiffs is statute barred.”

It has been established that the trial court failed in its duty to evaluate the pleadings, affidavit and documentary evidence before it and failed to reach a decision as to when the cause of action accrued. The law is settled that where a trial court fails to properly evaluate the material before it, and the question in issue does not call for the assessment of the credibility of witnesses, an appellate court is in as good a position as the trial court to evaluate the evidence (or the material before the court) and come to a proper decision, which may or may not accord with that of the trial court. See: Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.127) 369 at 385, paragraph C, (1990) LPELR (198) 1; Obineche v. Akusobi (2010) All FWLR (Pt. 533) 1839, (2010) 12 NWLR (Pt. 1208) 383 at 416, paragraph H, (2010) LPELR (2178) 1; Ishola v. Union Bank of Nigeria Ltd (2005) All FWLR (Pt. 256) 1202, (2005) 6 NWLR (Pt. 992) 422 at 443, paragraphs A – B.

I now proceed to consider whether the lower court was right when it held that the cause of action in this matter accrued in 1986. A cause of action has been held to be “the fact or combination of facts which give rise to a right to sue. The right to sue consists of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent to the wrongful act.” See Egbue v. Araka (1988) 3 NWLR (Pt. 84) 598 at page 599, paragraphs C – D; Amodu v. Amode (1990) 5 NWLR (Pt. 150) 356 at page 367, (1990) 3 NSCC 226; Edjerode v. Ikine (2001) 12 SC (Pt. 11) 94, (2001) 92 LRCN 3288, (2001) 8 NSCQLR 341, (2002) FWLR (Pt. 92) 1775. A cause of action has also been held to be that particular act of the defendant which gives the plaintiff his cause of complaint, every fact which is material to be proved to entitle the plaintiff to succeed and every fact which the defendant would have the right to traverse. See Chevron (Nig.) Ltd v. Lonestar Drilling (Nig.) Ltd (2007) All FWLR (Pt. 386) 633, (2007) 16 NWLR (Pt.1059) 168, (2007) 7 SC (Pt. 2) 27; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1, (1988) LPELR -182 (SC), (1988) 1 NSCC 1005, (1988) 9 SCNJ 27.

A cause of action is said to accrue for the purposes of a statute of limitation upon the occurrence of an event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Adimora v. Ajufo (supra); Yare v. National Salaries, Wages & Income Commission (2013) All FWLR (Pt. 709) 1043, (2013) LPELR – 20520 (SC), (2013) 12 NWLR (Pt. 1367) 173, (2013) 5 – 6 SC (Pt. 1) 108; Owie v. Ighiwi (2005) All FWLR (Pt. 248) 1762, (2005) 5 NWLR (Pt. 917) 184, (2005) 1 SC (Pt. II) 16. Time begins to run where there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See: Owie v. Ighiwi (supra); Fadare & Ors. v. Attorney-General, Oyo State (1982) 13 NSCC 52 at 60, (1982) 4 SC 1, (1982) 1 All NLR (Pt. 1) 24.

It is also well settled that in order to determine when a cause of action accrued, the processes to be considered are the writs of summons and the statement of claim. See: Omomeji v. Kolawole (2008) 14 NWLR (Pt. 1106) 180; Ayanboye v. Balogun (1990) 5 NWLR (Pt.151) 392, (1990) 9 – 10 SC 1; Egbe v Adefarasin (1987) 1 SC 1, (1987) 1 NWLR (Pt. 47) 1, (1987) 1 NSCC (Vol. 18) 1, (1987) 1 SCNJ 1, (1987) 1 All NLR 1 at 21; Woherem v. Emereuwa & Ors. (2004) All FWLR (Pt. 221) 1570, (2004) 13 NWLR (Pt. 890) 398, (2004) 8 SCM 185, (2004) 35 WRN 23.

In the instant case, the relevant paragraphs for determining when the cause of action accrued are paragraphs 18 – 24 of the statement of claim at pages 8 – 9 of the record. The paragraphs are reproduced hereunder for ease of reference:

“The 1st plaintiff (i.e. the union) was formally inaugurated in 1981 at a meeting held at LGED school Jos on 21 June 1981. The plaintiffs shall rely on the minutes of the meeting at the hearing of this case.
After the full inauguration of the union (i.e. 1^st 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 April 1982.
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 1^st defendant. A letter to this effect was written to the 1^st defendant to intimate him about the visit. At the hearing of this case, the plaintiffs shall rely on letter dated 10 January 1986 addressed to the 1st defendant. Notice is given to the 1st defendant to produce the original copy.
The delegation aforesaid undertook the journeys and visited some of the past officers and members of the union including the 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.
During the visit to the 1st defendant by the delegation, he made it clear to them that the property at 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 on the letter dated 6 February 1986 addressed to the 1st defendant as well as his reply to it, dated 3 March 1986 at the hearing of this case. Notice is hereby given to the 1st defendant to produce the original copy of the letter of 6 February 1986. The foregoing letters apart, the 1st plaintiff wrote other letters to the 1st defendant when nothing concrete was heard from him pertaining to the handing over of the property. At the hearing of this case, the plaintiffs shall rely on the letter dated 16 August 1986 addressed to the 1st defendant as well as the one dated 24 March 1986. The 1st defendant is given notice to produce the original copies of the said letters.
Efforts were still being made by the plaintiffs to have the matter of the handing over of the property amicably resolved and in this regard, letters were written to prominent Igbo chiefs as well as members of Imo State council of chiefs (as it was then called). At the hearing of this case, the plaintiffs shall rely on copies of all such letters including the ones addressed to sir Akanu Ibiam as well as his replies to the letters.
Despite the correspondences aforesaid, the 1st, 2^nd and 3rd defendants did nothing to hand over any of the union’s properties to the plaintiffs. Instead they sold the property at 24, Langtang street, Jos to the 4^th defendant. At this juncture, a mass rally of the union members took place on 8 November 1986 where it was resolved that legal steps be taken against the defendants to recover the union’s properties. At the hearing of this case, the plaintiffs shall rely on the report of the said rally dated 12 November 1986 as well as the resolution of the rally dated 8 November 1986.” (Emphasis mine).

It is pleaded in paragraphs 20 – 24 above that after the reorganisation of the 1st respondent in 1981, steps were taken to recover all the union’s properties in the possession of its former officers, including the then 1st to 3rd defendants i.e. Messrs Eze Samson U. Ukaegbu, Daniel Orji Ogbah and Thomas Ogwo Azu. From paragraph 22, it is evident that there was no dispute regarding the return of the properties until 1986 when it was discovered that the 1st and 2nd defendants and Mr. Ikwunze (now deceased) had exercised powers of ownership over the property in dispute by selling it to the 4th defendant (now appellant).

In paragraph 5 of the plaintiffs’/respondents’ counter affidavit to the motion to dismiss the suit at page 64 of the record, it was averred as follows:

“5. That between 1981 when the 1st plaintiff was formally re-organised and 1986, the 1st and 2^nd defendants were members of the 1st defendant 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.”

The court below at page 164 of the record held thus:

“Let me say that the formal inauguration of the 1^st respondent on 21 June 1981 only enabled the respondents to organise the activities of the 1^st 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 and later renewed in their said names is well noted.

However, as it relates to the claim of the 1^st respondent that the property was vested in the appellants 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.”

The court held further at pages 166 – 167 of the record:

“When the 1st respondent union was formally inaugurated on 21 June 1981 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 1^st respondent on 21 June 1981, 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 in fact there was any adverse claim to the title of the 1st respondent.” (Emphasis mine).

I agree entirely with the unassailable findings above. I agree with the learned justices of the court below that the claim of ownership of the property by the trustees only became an issue when they took steps that were adverse to the 1st respondent’s title by the sale of the property to the appellant between 1985 and 1986. It was this sale that alerted the 1st respondent to the fact that there was an adverse claim to the property. There is nothing in the pleadings to suggest that there was any dispute between the parties until the 1st defendant became aware in 1986 that the property had been sold. Indeed, as pleaded in paragraph 22 of the statement of claim, the delegation of the 1^st respondent that met with the 1st defendant was well received and the 1st respondent’s title over the property was acknowledged with a promise to act with despatch in transferring title to it. As rightly observed by the court below, the 1st to 3^rd defendants were already trustees of the property and had registered the property in their own names at the behest of the 1st respondent.

It is to be expected that there would be some delay in the handing over process, which did not raise any alarm until it was discovered that they had exercised acts of ownership on the property by the sale thereof to the appellant. I therefore agree with the court below that the cause of action accrued in 1986.

The parties are ad idem that the applicable law was the Real Property Limitation Act of 1874, a statute of general application, applicable to Plateau State at the time the cause of action arose, which extinguishes the right of a person to recover land after the expiration of 12 years from the date on which the cause of action accrued to him.

The effect of a limitation law is that legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. A limitation law removes the right of action of a plaintiff, his right of enforcement and the right to judicial relief, leaving him with a bare and empty cause of action, which he cannot enforce. See: Military Administrator, Ekiti State v. Aladeyelu (2007) All FWLR (Pt. 369) 1195 at 1219, paragraph C, (2007) 5 SCNJ 1, (2007) 14 NWLR (Pt. 1055) 619, (2007) Williams v. Williams (2008) All FWLR (Pt. 433) 1245, (2008) 10 NWLR (Pt. 1095) 364, (2008) 5 SCNJ 156; Aremo II v. Adekanye (2004) All FWLR (Pt. 224) 2113, (2004) 13 NWLR (Pt. 891) 572. The writ of summons in the instant case was filed on 29 March 1994. From 1986 to 1994 is a period of eight years. The suit was filed well within the statutory limit. Without further ado, Issues 1 and 2 are hereby resolved against the appellant.

Issue 3

Whether the claim for account of stewardship and monies collected on the property from 1959 is maintainable and not statute-barred?

Under this issue, the appellant is dissatisfied with the highlighted portion of the judgment of the court below at page 168 of the record, to wit:

“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.” (italicizing mine for emphasis)

The claims for account of stewardship and for monies collected are contained in reliefs 3 and 4 of paragraph 34 of the statement of claim reproduced earlier in this judgment. They are repeated here for ease of reference:

“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.

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.” (Emphasis supplied)

It is contended on behalf of the appellant that these claims constitute a cause of action and that the said claims for accounts from 1959 pre-date the existence of the 1st respondent, which came into being in 1965. Learned counsel submitted that a claim for account postulates a claim in contract, which ought to be commenced within 5 years of the date of accrual of the cause of action. The following cases were cited in support: Ikine v. Edjerode (2001) 18 NWLR (Pt. 745) 446 at page 471, paragraphs G – H, (2001) 12 KLR (Pt. 131) 3711, (2001) 12 SCNJ 184, (2001) 12 SC (Pt. 2) 94; P. N. Uddoh Trading Co. Ltd v. Abere (2001) FWLR (Pt. 57) 900, (2001) 11 NWLR (Pt. 723) 114 at page 130, paragraphs B – E; and page 136, paragraphs F – G. He submitted that from the facts of this case, the claims for account are statute-barred. He submitted further that the said claims are independent causes of action and are not consequential to the main claim for declaration of title. He urged the court to resolve this issue in the appellant’s favour.

In arguing the preliminary objection, learned counsel for the respondents had argued that ground 3 of the notice of appeal and issue 3 predicated thereon are incompetent for being academic, as the reliefs (3) and (4) referred to were not directed at the present appellant, but at the original 1st, 2nd and 3^rd defendants, who were trustees of the property in dispute and that any order made for an account of stewardship of the property or monies collected thereon would not affect the appellant who is neither a trustee nor a member of the 1st respondent.

It is to be recalled that earlier in this judgment, I held that the third ground of preliminary objection seeking the striking out of ground 3 of the notice of appeal and issue 3 predicated thereon for being academic was not a proper issue to be raised by way of preliminary objection, having regard to the fact that the object of a preliminary objection to the hearing of an appeal is to terminate the appeal in limine. I stated that it was an issue that would properly be considered when the merit of the appeal is being determined as there were other competent grounds capable of sustaining the appeal.

I have now considered this issue on its merits and come to the inevitable conclusion that the issue is indeed academic and not worth expending precious time on. As observed by learned counsel for the respondents, the reliefs contained in paragraph 34 (3) and (4) of the statement of claim are in no way directed at the appellant who was the fourth defendant at the trial court. The reliefs are specifically directed at the 1st – 3rd defendants, who are all now reported dead. There is no substance whatsoever in this issue and it is accordingly resolved against the appellant.

Having resolved all the issues in contention against the appellant, I hold that this appeal is devoid of merit. It is hereby dismissed. The judgment of the court below delivered on 8 November 2000 is hereby affirmed. Costs are assessed at N250,000.00 (two hundred and fifty thousand naira) against the appellant and in favour of the respondents.