United Bank for Africa Plc V. Alhaji Garba Abdullahi (2002)

LawGlobal-Hub Lead Judgment Report

SALAMI, J.C.A.

This is an interlocutory appeal against the decision of the Kaduna State High Court of Justice, delivered on 19th January, 2000, granting the plaintiff leave to amend his writ of summons as well as the statement of claim, by adding additional seven fresh reliefs. The ruling was consequent upon an application for leave to amend the writ of summons and statement of claim. After the motion had been argued, the learned trial Judge in a reserved ruling, delivered on 11th November, 1999, called on both parties to further address on whether the fresh claims were not statute-barred. Thereafter, counsel caused further affidavits and further counter-affidavits to be deposed to and addressed, the court on the issue, raised in the ruling of 11th November, 1999. The learned trial Judge delivered another reserved ruling in which all the reliefs sought were granted.

The defendant was dissatisfied with the ruling and appealed to this court on 3 grounds of appeal contained in its amended notice of appeal.

Briefs of argument, in accordance with practice and procedure of this court, were settled at amended appellant’s brief and respondent’s brief. In the amended appellant’s brief these issues were framed:

“1. Whether the cause of action in respect of the proposed additional claims of the plaintiff by which he challenged the validity of the deed of legal mortgage, dated 25/5/88 arose on 25/5/88 and are therefore, statute-barred or it arose in 1994, or any time thereafter, and were as a result not statute-barred,

2. Whether the cause of action arose when the plaintiff’s right to challenge the deed of legal mortgage arose on 25/5/88.
3. Whether pursuant to Order 24 rule 6 of Kaduna State High Court (Civil Procedure) Rules, the defendant was precluded from raising objection to the fresh claims and it was premature to raise objection to the addition of the fresh claim on the ground that they were statute-barred, when application was made by the plaintiff to add the fresh claims.”

OR

“Whether it was proper for the appellant to raise objection to the addition of fresh claims, which were alleged to be statute-barred, when application was made by the applicant to add the fresh claim and whether the trial court had power and jurisdiction to consider and determine whether or not the objection was valid at that stage.”

The following issues were identified as calling for determination in the respondent’s brief of argument:-

“1. Whether the provisions of Order 24 rule 6 of the Kaduna State High Court (Civil Procedure) Rules, 1987, make it mandatory for the issue of statute of limitation to be specifically pleaded and particularized for trial and determination in the substantive suit. (Ground 3)

2. Whether in the circumstances of this case, the cause of action arose and thereby time began to run from the date of the execution of the deed of legal mortgage or from the date or dates, when the appellant bank demanded for payment of the loan by the respondent.

OR

3. Whether there was any justifiable dispute or lis inter partes from the very moment of the execution of the deed of the legal mortgage in respect of which any of the parties, especially the respondent, could have invoked the judicial powers or jurisdiction of any court.”

(Grounds 1 and 2)

The appellant, having related its three grounds of appeal respectively to its three issues, proceeded to frame an alternative issue, which it failed to relate to any of the grounds of appeal. The respondent did the same thing in his own brief of argument. The appellant did not finger any of its three grounds of appeal as giving rise to the alternative issue understandably because two issues cannot be frame from one ground. It is settled law that an issue or issues for determination, in an appeal, need to encompass or derive from one or more grounds of appeal, but not a multiplicity of issues arising from the same ground of appeal- Nfor v. Ashaka Cement Co. Ltd. (1994) 1 NWLR (Pt.319) 222, and Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (Pt.88) 664, (1991) 6 SCNJ 1. In the absence of any ground of appeal embracing the alternative issue, I think, it is incompetent and is for that reason struck out.

Appellant’s issue 1 is a variation of its issue 2 and both could be taken together in the manner, learned Counsel for appellant eventually canvassed them in the appellant’s brief of argument. They both cover the same issue as respondent’s issue 2. I think this is the only issue calling for consideration and determination in this appeal.

At the hearing of the appeal, counsel adopted and relied on their respective briefs of argument. The defendant will hereinafter be referred to as the appellant while the plaintiff will be referred to as the respondent.

In arguing the appeal, learned Counsel for appellant contended that learned trial Judge found that the respondent had a right to challenge the deed from the day of its execution and what he meant by challenging the deed is nothing but a cause of action. Learned Counsel argued that some of the reliefs sought by the amended writ became enforceable as far back as 1988 and are for that reason time barred. Learned Counsel argued further that the cause of action in respect of the deed accrued on the date of execution while the three letters referred to by the trial Judge gave rise to some other rights. He concluded his argument by submitting that the period of limitation began to run on the day the cause of action arose and expired on 25th May, 1988 ,thereafter the respondent’s right to institute an action in respect of the same matter is extinct.

In this connection, learned Counsel for respondent argued that, since there existed between the parties a relationship of banker and customer, a cause of action could only have arisen upon a demand by the bank for the payment of the loan. He then submitted that that time for the purpose of the limitation law could only be computed from the date of such demands which could be any of the dates on the letters of demand, that is, exhibits AA, dated 25th July, 1994, or exhibit BB, dated 3rd February, 1995, or exhibit DD, dated 19th February, 1996.

Learned Counsel contended further that, it is preposterous to contend that a cause of action arose as from the date of the purported execution of the deed of legal mortgage, when as at that date, there was no lis or dispute between the parties, which a court can adjudicate upon in exercise of its judicial powers or jurisdiction pursuant, inter alia, to sections 6(6)(a) and 236 of the 1979 Constitution. He further contended that in the absence of lis or justiciable dispute between the parties such a plaintiff will only be inviting the court to indulge in an academic or hypothetical exercise – Badejo v. Federal Ministry of Education (1996) 8 NWLR (Pt.464) 15. He submitted that before a court can adjudicate there must be a dispute requiring determination or lis inter partes. Vide L.P.D.C. v. Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300, 364.

Learned Counsel for respondent having rightly, in my respectful view, conceded that the fact of the respondent’s illiteracy manifested on the date of the purported execution of the deed of legal mortgage nevertheless, he went ahead to contend that respondent’s right to plead his illiteracy was a vested right which remained in abeyance until a dispute arose between him and the appellant. It was according to counsel a contingent right to be invoked when the occasion for doing so avails itself. He cited the case of Wilson & Another v. A.B. Oshin & Others (2000) 9 NWLR (Pt. 673) 442, 461 per Kari bi-Whyte, JSC. I have read the case to which I am referred and am unable to agree that it is an authority for the proposition propounded by learned Counsel for respondent. It is talking about vesting of interest in a chieftaincy matter, where statute of limitation has no role to play. The concession of the learned Counsel for the respondent is to the effect that the cause of action arose on the day the deed of mortgage was executed but the respondent tactically with-held his light to bring an action to declare the deed invalid until such a convenient time when he could exploit the alleged invalidity to his benefit just as he used the purported invalid mortgage to his advantage by drawing down on the money lent to him by the bank. He took money from the bank on the strength of the mortgage deed, which he knew at the material time was void and now wants to defeat the same transaction by the validity or otherwise of the same document. There is no sense in holding the alleged right in abeyance “to be invoked when the occasion for doing so avails itself “. Such an occasion would never avail itself as learned Counsel for respondent and the respondent must have learnt by now, because no court would lend itself to be used as a vehicle of fraud. Assuming without so deciding that the mortgage deed, on which the loan was pegged, were invalid, the appellant would equally be entitled to their money not on the mortgage, but on the principle of money had and received.

The concession of the learned Counsel for the respondent as well as the finding of the learned trial Judge to the effect that the cause of action accrued on the 25 May, 1988, but the respondent right to bring an action was contingent to be invoked on happening of certain events puts appellant’s case beyond doubt. In this connection learned trial Judge reasoned inter alia as follows in his ruling:-

“I agree with Toro that their Exhibits AA, BB and DD, are the letters of demand and the dispute arose from those dates 25/7/94, 3/2/95 and 19/2/96 from these dates to date are not up to 10 years. It is true that the right of plaintiff to challenge Exhibit C, existed from its execution, but there was no cause of action i.e. to say that there was no dispute, until the bank “defendant” now wrote his letter of demand thereby, a dispute arose between the plaintiff and defendant.” (italicings mine)

Clearly learned trial Judge is adept but not sincere or impartial. The learned trial Judge, in the portion of his judgment set out above, was merely playing on words or approbating and reprobating. What learned trial Judge referred to as the right of respondent to challenge exhibit C, means no less than a cause of action which enables the plaintiff to challenge the deed by seeking for a declaration that the deed of mortgage be declared null and void for failure to comply with the provisions of the Illiterates Protection Law, Cap. 74 of the Laws of Kaduna State of Nigeria, 1991. I have looked in vain in the Limitation Law, Cap, 89 of the Laws of Kaduna State of Nigeria, 1991, for a provision suspending or stopping time from running after the right to bring an action had accrued until happening of certain events in future as proposed by learned trial Judge in his ruling and learned Counsel for respondent in his submission before us, In truth, there is no such principle of law in common law nor statute law, The intention of respondent is clear. What emerges from those postures is that the respondent proposes to wait in ambush for the appellant, until he brings an action for the respondent’s indebtedness and validity or otherwise of the mortgage as a defence would be foisted on it to defeat the claim, Otherwise, why draw down on the loan, when one is aware that the security given to secure it is bad?

Notwithstanding admission of the learned Counsel for respondent, in the respondent’s brief, that the cause of action in respect of the deed accrued on 25th May, 1988, and the finding of the learned trial Judge to that same effect, I intend to examine the submission of counsel to determine whether or not a cause of action existed as far back as 25th May, 1988. A cause of action is a right existing in one party to make a claim or demand or a redress on another for one’s right. A cause of action exists or accrues only when a right to make challenge in respect of the subject-matter against another. The phrase cause of action is defined in the Black’s Law Dictionary at p.201 as meaning:

“The fact or facts which give a person a right to judicial redress or relief against another. The legal effect of an occurrence in terms of redress to a party to the occurrence. A situation or state of facts, which would entitle party to sustain action and give him right to seek judicial remedy in his behalf”.

See Bello & Others v. Attorney General of Oyo State (1986) 5 NWLR (Pt. 45) 828, 876 where Karibi-Whyte, JSC said-

“I think a cause of action is constituted by the bundle or aggregate of facts, which the law recognises as giving the plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus, the factual situation on which the plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the defendant. In other words, the factual situation relied upon must constitute the essential ingredient of an enforceable right or claim – see Trower & Sons Lid v. Ripstein (1944) AC 254 at p.263; Read v. Brown 22 QBD 128; Cooke v. Gill (1873) LR 8 C.A. 107; Sugden v. Sugden (1957) 1 A II ER 300; Jackson v. Spittal (1870) LR 5 CP 542. Concisely stated, any act on the part of the defendant, which gives to the plaintiff his cause of complaint is a cause of action.”

And in Afolayan v. Ogunrinde (1990) 1 NWLR (Pt.127) 369, 382- 3 Obaseki, JSC, simplified the matter when he said:-

In its simplest terms, I would say that a cause of action means –

(1) a cause of complaint;

(2) a civil right or obligation fit for determination by a court of law;

(3) a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.

It consists of every fact, which it would be necessary for the plaintiff to prove if traversed, in order to support his right to judgment-Cook v. Gill (1873) LR 8 CP 107; Read v. Brown (1889) 22 QBD 128. When facts establishing infraction of or trespass on those rights and obligations exist side by side, a cause of action, is said to have accrued.

See also Egbe v. Adefarasin (No.2) (1987) 1 NWLR (pt.47) 1; Savage & Others v. M. O. Uwechia (1972) 3 SC 214, 221 and Thomas v. Olufosoye (1986) 1 NWLR (PU8) 669, 682 and Union Bank of Nigeria Ltd. & Another v. Penny Mart (1992) 5 NWLR (Pt.240) 228, 239.

To discover respondent’s civil right or obligation fit for determination by a court of law, it would be necessary to recite the four additional reliefs particularly (i) and (ii) thereof sought to be added to the indorsement to the writ of summons. They read as follows:-

“1. To add the following declarations in the INDORSEMENT to the writ of summons, viz:-

(i) a declaration that the deed of legal mortgage dated 25th of May, 1988, prepared by the defendant whereby, the plaintiff purported to mortgage his property situate and known as proposed reliefs (i) and (ii). The cause of action became complete so that he can commence and maintain an action from the day he executed the deed of mortgage on 25 May, 1988. The same is now caught by the limitation law, in the circumstance of this case, after the efflusion of the time limit of ten years: Adimora v.Ajufo (1988) 3 NWLR (Pt.80) 1, (1988) 6 SCNJ 16. The limitation time does not stop running nor wait till damage is suffered. The cause of action arose from when the breach occurred and not when damage was suffered. The period for limitation will commence to run from the date the cause of action accrued. The cause of action in the instant appeal accrued when respondent was made to execute a deed of mortgage contrary to the provisions of Land Registration Law, Cap. 85. And Illiterates Protection Law, Cap. 74 and not when various letters of demand were written: Rhodes v. Smethurst 150 ER 1335; Pritan Kaur v. Russel & Sons Ltd. (1973) 1 All ER 617; Egbe v. Adefarasin (1985) 1 NWLR (Pt. 3) 549 and Eboigbe v. NNPC(1994) 5 NWLR (Pt. 347) 649. (1994) 6 SCNJ 71, 78 and Emiator v. Nigeria Army (1999) 12 NWLR (Pt. 631) 362, 372, (1999) 9 SCNJ 52. The cause of action which accrued on 25th May, 1988, would be caught by statute of limitation by virtue of Section 4 of Limitation Law, Cap. 89 of the Laws of Kaduna State of Nigeria, 1991, when the right of action thereof would be extinguished.

Section 11 of the Limitation Law, Cap. 89 which prescribes for time limiting redemption action would not avail the respondent.

Section 11 provides as follows:

“11. When a mortgagee of land has been in possession of any of the mortgaged land for a period of ten years after the expiration of the time fixed for redemption no action to redeem the land of which the mortgagee has been so in possession shall be brought to recover it by the mortgagor or any person claiming through him.”

Although, an action for redemption might still be within time, the period of limitation not commencing to run until after expiration of the time fixed for redemption. But the respondent proposed amendment to the writ of summons is not seeking to redeem the mortgaged property, rather he is asking for the voidance of the mortgage which in effect means that it never existed. It necessarily follows that if the action were to be successful and the deed voided there would be in law, no mortgaged property to redeem in the manner envisaged by section 11 of the Limitation Law, Cap. 89.

I agree with learned Counsel for appellant that the provisions of Order 24 rule 6(1) of the Kaduna State High Court (Civil Procedure) Rules invoked by the learned trial Judge does not arise until the amendment has been lawfully obtained. It is therefore, incumbent on him not to permit the fresh issues to be included in either the writ of summons or statement of claim. The cause of action, although alive and legal the right of action in respect of them had been extinguished or taken away by the statute of limitation since 25th May, 1988.

If the appellant delays his opposition against their inclusion in the writ, until after the application had been granted he would be guilty of negligence, inadvertence and dereliction of duty to both his client and the court for allowing the revival of a moribund right of action. He would be faced with a fiat accompli. The reason being that, once amendment is made it relates back to the date of the amended process. An amended writ becomes the origin of the action. In Warner v. Sampson (1959) 1 QBD 297, 321 it was stated that:

“Once pleadings are amended, what stood before amendment is no longer material before the court and no longer defines the issues to be tried.

Halsbury’s Laws of England third Edition Vol.24 at paragraph 358 on page 201 stated thus:-

“If a writ has been amended, the original writ, not the amendment, is the commencement of the action.”

In effect, if appellant had folded its arms and allowed the orders sought to be made without resistance and without raising the issue of limitation of time now being raised it would have been estopped from raising it and must be deemed that the original writ of summons contained the amendment being sought.

The 10 years period of limitation time expired on 25th May, 1988, if the respondent is desirous of instituting an action in respect of time barred remedy, he no longer has the right of action. He could not introduce it surreptitiously by amending the writ as well as pleading in an existing suit in order to give validity to an otherwise dead or stale cause of action. In this connection, the learned authors of Halsbury’s Law of England, 3rd Edition at p.200 said:

“A plaintiff will not be allowed to amend his pleadings to introduce a cause of action, which is barred by the statute at the time of attempted amendment…

The court will refuse to allow a writ to be amended by the addition of a party, when the effect of the amendment will be to defeat the operation of the statute.”

See also Civil Procedure in Nigeria by Fidelis Nwadialo, at page 385, where the learned author stated as follows in paragraph 25. 10:

“(iii) Amendment After Limitation Period OR Where cause of Action Is NOT Existent

25.10 An amendment the effect of which will be to set up a claim that is statute-barred will not be allowed. This principle is clearly stated in Weldon v. Neal, where it is said “We must act on the settled rule or practice, which is that amendments are not admissible when they prejudice the rights of the opposite party as existing at the date of such amendments. If an amendment were allowed setting up a cause of action, which, if the writ were issued in respect thereof at the date of the amendment, would be barred by the Statute of Limitation, it would be allowing the plaintiff to take advantage of her former writ to defeat the statute and taking away an existing right from the defendant, a proceeding which, as a general rule, would be, in my opinion improper and unjust.”

The appellant, in his brief, referred the Court also to the Supreme Court Practice, 1979, otherwise known as White Book Vol. I at page 339, under the caption- Rights Accrued: where the authors like in Civil Procedure Rules in Nigeria, by Nwadialo cautioned against permitting an amendment, which would take away defendants existing right at the time of the amendment and defeating the Statute of Limitation. Such amendment should not be granted, since the grant would prejudice the defendant, the appellant in the instant appeal.

The learned authors said:-

“Right Accrued: Amendments which would prejudice the rights of the opposite party existing at date of proposed amendment are not, as a rule, admissible. Thus, a plaintiff will not be allowed to amend by setting up fresh claims in respect of cause of action, which, since the issue of the writ, have become barred by the Statute of Limitations. Weldon v. Neal 19 QBD 394; Lancaster v. Moss 15 TLR 476.” (italicings mine)

It is, therefore, settled that amendment of writ of summons or pleading, which will have the effect of reviving a cause of action, which is barred by the Statute of Limitation at the time of amendment is not permissible. It is not permissible, because it would take away the defendant’s right, which has vested and therefore, prejudicial to him. The proposed cause of action is different from the existing ones and its introduction, is intended respectfully to over-reach the appellant. An amendment which will prejudice the other party will not be accepted. The courts are created to do substantial and not cloistered justice.

In the circumstance, the appeal succeeds and it is allowed. The decision of the learned trial Judge is set aside. The application for amendment is refused and consequently dismissed.

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Other Citations: 2002)LCN/1239(CA)