John Ehanire V. Patrick Erhunmwuse (2007)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the judgment of Hon. Justice, J. I. Acha of the Benin Division of the Edo State High Court in Suit No. B/360/2003. By an Amended Statement of Claim dated 3rd May, 2004, the appellant, as plaintiff before the lower Court, claimed the following reliefs, namely: –

1. A declaration that the continuous detention of the building and premises known as No.3 Osagie Street, Off St. Saviour Road, Benin City within the Benin City Judicial Division from the plaintiff by the Defendant is wrongful;
2. An order directing the defendant to quit the building and premises known as No.3 Osagie Street, Off St. Saviour road, Benin City, forthwith;
3. An order directing the defendant to put the building and premises in a good state of tenantable repairs before vacating same;
4. N10,000,000.00 (Ten Million Naira) being general damages for unlawful detention and/or usage; and
5. Perpetual injunction restraining the defendant from parading himself as the owner of the building known as No.3 Osagie Street, Off St. Saviour Road, Benin City, having divested himself of the title therein.

By paragraph 22 of the Statement of Defence dated 15/3/04, the defendant averred as follows:-

22. “The defendant shall contend before or during the hearing of this case that this Honourable Court lacks the requisite jurisdiction to entertain this suit as it is statute-barred since the cause of action (if any) arose since 1986 when the defendant allegedly refused to hand over the property to the plaintiff.”

Further to the statement of defence, the defendant filed a motion on notice dated 30/4/04. It was filed on 3/5/04. This application inter alia was for an order setting down the points of law in paragraph 22 of the statement of defence for hearing and determination before trial. It was supported by a 5 paragraph affidavit. The Plaintiff/Respondent/Appellant filed a 10 paragraph Counter-Affidavit to oppose the application. By an order dated 31/5/04 and after hearing respective learned counsel, the learned trial Judge granted the defendant’s application for a proceeding in lieu of demurrer to determine whether or not suit No. B/360/2003 was statute-barred.

The motion was heard on 29/7/04 and ruling was reserved for 18th October, 2004. In his ruling of 18/10/04, the learned trial Judge held as follows: –

“I find and I hold that this suit was filed outside the statutory period of 12 years allowed by the Limitation Law; it is therefore statute barred and not maintainable in law. This suit is accordingly dismissed.” “See page 47 lines 6 -10 of record of appeal.

The plaintiff was dissatisfied with this ruling of the lower Court. He appealed to this’ Court in a notice of appeal dated 28/10/04 and filed on 8th November, 2004. The notice of appeal contains 5 grounds of appeal with very copious particulars. To prosecute the appeal, the appellant filed the appellant’s brief of argument. It is dated 29/3/06 and filed on 30/3/06. It was settled by learned Counsel Chief D.O. Okoh. The respondent’s brief of argument was settled by learned Counsel Mr. K.E. Mozia. It is dated 21/8/06 but was deemed properly filed and served on 5/2/07. To cap it all, learned Counsel Chief Okoh, filed a reply brief to the respondent’s brief of argument. The reply brief was dated and filed on 19/2/07.

When the appeal come before- us for hearing on 18th April, 2007, respective learned Counsel adopted and relied on their respective briefs of argument. In arguing the appeal, the appellant abandoned ground 4 of the grounds of appeal and formulated 2 issues for determination in this appeal from the remaining 4 grounds of appeal. The 2 issues are: –

1. Whether the appellant’s claim is statute-barred having regards to the nature of damage which is in continuance and lingering in nature and/or whether the claim does not come within the exceptions of the Law of Limitation; and
2. Whether time runs during the pendency of an action.

After raising and arguing a preliminary objection on the competence of issue 1 in the appellant’s brief, the respondent’s brief, ex abundante cautela, formulated and argued a lone issue as what learned Counsel considered as the main issue in the appeal. It is hereby set out thus: –

“Whether the lower Court was right in holding that the case -was statute-buarred by virtue of the provision of the Limitation Law of Bendel State, applicable to Edo State.”

Before going into the arguments of respective learned Counsel on the formulated issues, I wish to capture what I consider to b e the intriguing circumstances of this case on appeal. The claim of this appellant is founded on a purported sale to him by the respondent his house at No.3, Osagie Street, Benin City. The purported sale was alleged by the appellant to have been executed in 1986. After the said sale, the appellant claims that the respondent refused to hand over the sold house to him. In consequence of the refusal of the respondent to vacate and hand over the sold premises to the appellant, the appellant commenced an action in suit No.OR/ACC/86R/87 before the Oredo Area Customary Court, Benin City. The claim of the appellant against the respondent before that court was for possession and order for the respondent to quit the building known as No. 3, Osagie Street, Benin City, etc. The appellant succeeded in his claim. On an appeal to the High Court by the respondent, the appellant continued with his winning streak. A further appeal to the Court of Appeal, the appellant remained on top, until an appeal to the Supreme Court turned the table against the appellant, when the apex Court held that the Customary Court lacked jurisdiction to entertain the claim of the appellant. The Supreme Court struck out the claim of the appellant. This decision of the Supreme Court was on 30/5/2003.

This suit upon which this appeal is now predicated (Suit No.B/360/2003) was filed on 20/6/03 by the appellant as the plaintiff. Before the claim could be considered in full, this action was dismissed in limine for being statute-barred. It is against this dismissal that the appellant filed this appeal.

In arguing the 1st issue he formulated, learned Counsel to the appellant began by an explanation that the appellant by a Deed of Transfer prepared by the law firm of Giwa Amu and Co., the appellant became the registered owner of the building known as No.3, Osagie Street, Benin City. Learned Counsel explained further that the respondent is illegally occupying No.3, Osagie Street, and has refused to vacate it despite the repeated demands of the appellant for the respondent to give up possession. He added further that the respondent had not paid any rent to him.

After having underscored the facts in the Amended Statement of Claim, particularly paragraphs 2, 16, 19, 20 and 21, learned Counsel also referred to the statement of defence, particularly those averments which deny the key averments in the amended statement of claim. The Defendant/Respondent vehemently denied that he sold his house at No.3, Osagie Street, Benin City, to the Plaintiff/Appellant.