Erete Sulaiman Offiong & Ors v. Ntunkae (Barr.) Grace Eyo Ita (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BALKISU BELLO ALIYU, JCA (Delivering the leading judgment)

This appeal is against the ruling of the High Court of Cross River State, sitting at Calabar delivered on the 4th March, 2019 by Hon. Justice Akon Ikpeme in respect of a preliminary objection raised by the appellants in suit No: HC/387/2016.

The suit was filed by the respondent as the plaintiff against the appellants as the defendants by a writ of summons supported by a statement of claim by which he prayed the trial court for the following reliefs:

1. A declaration that the legal right to the property vests in the claimant and is thus entitled to the issuance of a certificate of occupancy of the property situate and known as No. 2B, Edibe Edibe Road, Calabar and registered as No. 8 in volume 138 of the Lands Registry Calabar.
2. Possession of No. 2B, Edibe Edibe Road, Calabar.
3. An order of interlocutory restraining the defendants or their agents or anyone acting on their behalf and claiming through them from trespassing or continuing to trespass on the claimants property at No. 2B, Edibe Edibe Road Calabar, either by renovating or doing any other thing or act to interfere with the claimants ownership and possession of her property pending the determination of this suit.
4. An order of perpetual injunction restraining the defendants, their heirs, agents, servants, privies, or anyone acting, or claiming through them from interfering with the claimants ownership and possession of the property known as No. 2B, Edibe Edibe Road, Calabar.
5. An order of perpetual injunction restraining the defendants jointly and severally and anyone claiming through them from trespassing on the claimant property.
6. The sum of N632,000.00 being arrears of rent owed the plaintiff by the 2nd defendant, for the following years – 2000, 2001, 2007, 2008, 2009, 2010, 2011, 2013, 2014, 2015 and 2016.
7. The sum of N100,000,000 (One hundred million naira) as general damages against the defendants for trespassing on claimants property.

The facts that gave rise to the suit as stated by the respondent are that the respondent bought the disputed property from late Mrs. Mary Essien Eyamba on the 1/3/1993 and the 2nd appellant was a sitting tenant in the property.

The respondent claimed that she permitted the former owner to continue residing on the property being an elderly person and her friend and to continue collecting rent from the 2nd appellant, who was also a tenant on the property.

But the appellant stopped paying rent to the respondents friend and former owner and contrived a plan with the former owner of the property purporting that the respondent has relinquished ownership and surrendered possession of the property back to the former owner so that the difficult tenant, the 2nd appellant can be made to pay rent to the former owner. In pursuance of this connivance, the appellants employed the services of a lawyer who drafted a letter containing their contrivance and requested the Respondent to sign it.

It was after the demise of the Mrs. Mary Essien Eyamba, the former owner in 1998 that the respondent applied to the Lands Registry to register her title to the property, but the husband of Mrs. Eyamba, 1st appellant relied on the letter written by the 2nd appellant to enter a caveat on the property at the Ministry of Lands Calabar on the ground that since the respondent wrote that letter, the property reverted back to his late wife and now belongs to him after her demise.

The respondent filed suit No: HC/141/2000 against the 1st appellant but the suit was struck out when the issue of the caveat were amicably settled with the intervention of the former counsel who wrote the letter of revertal of the property to the former owner.

The property was then registered in the name of the respondent. The respondent then appointed an attorney who collected rents for the property from the 2nd appellant for many years.

However, trouble occurred in 2009, when the respondent sought to eject the 2nd appellant from the property. The 2nd appellant through his lawyers claimed that he had bought the property from the 1st appellant and the property has been assigned to him. The respondent then filed this suit No: HC/587/2016 claiming the above stated reliefs.

In response, the appellants filed statement of defence and counter-claimed the said property. In addition, the appellants filed a notice of preliminary objection by which they prayed the trial court for an order dismissing the suit on the ground that the suit is statute barred and therefore incompetent. In a written address attached to the notice of preliminary objection, the appellants cited and relied on section 1 of the Limitation Law of Cross River State 2004 , which bars action for recovery of land filed after the expiration of 10 years from the date on which the right of action accrued to the claimant. They argued that the respondents claim in the suit was in respect of land acquired on 1st March, 1993, while she filed this suit on the 20th December, 2016, a period of 23 years from the date she acquired the land, making this suit statute barred.

In her reply to the preliminary objection, the respondent submitted that the appellants erroneously argued that the land in dispute was acquired in 1993 and that was the year that the cause of action accrues. This is not correct because the fact of the sale of the property does not constitute cause of action. This is because as at 1993 the 1st appellants wife who sold the land to the respondent was alive and well. That the cause of action did not even arise when the 1st appellant erroneously placed a caveat on the land, but it was because of the illegal renovation of the property by the 2nd appellant in 2009 and a letter from his solicitors dated 21/3/2009 wherein he refused to deliver possession of the land to the respondent that the cause of action arose. She insisted that her suit filed on the 20th December, 2016 is not caught up by the Limitation Law of Cross River State.

The learned trial Judge delivered the trial courts ruling on the Appellants preliminary objection relied on the case of Brig. Gen. O. B. Olorunkunle & Anor. v. Alhaji Abayomi S. Adigun & Ors. (2012) All FWLR (Pt. 614) 139 at 153 and held that:

“Suffice it to say that by the said provision what determines when time begins to run is when the cause of action accrues. With the discrepancy, it is this courts view that to determine exactly when the cause of action accrued in order to determine whether the limitation period has indeed elapsed, would require hearing evidence from both sides. In view of the above, I rule that this issue can be tackled as one of the issues for determination after the hearing of the matter and consideration of the peculiar circumstances of this case. It is therefore the ruling of this court that this issue be tackled after the hearing of the case along with other issues that may arise.”