In the Court of Appeal, Lagos Judicial Division,holden at Lagos on Thursday, May 24, 2012,Before their Lordships: Ibrahim Mohammed Musa Saluawa, Justice, Court of Appeal,Rita Nosakhare Justice, Court of Appeal, Mohammed A. Danjuma Justice, Court of AppealCA/L/111M/2010Between1. Power Products Int. Limited. 'AppellantAnd2. Wema Bank Plc. 'RespondentWHERE time stipulated within which an action can be brought has elapsed, the action will be statute barred. This means that a party will be denied the right to institute an action once the action is statute barred. So held the Court of Appeal, holden at Lagos in a unanimous leading judgment delivered by his lordship, Rita Nosakhare Pemu (JCA) her learned brothers Ibrahim Mohammed Musa Saluawa and Mohammed A. Danjuma (JJCA), concurring while dismissing the Appellant's appeal.The Appellant was represented by Jide Olawepo Esq. with him are Lukeman Mustapha and Dayo Abudu Esq. while the respondent was represented by J.K. Aworinde Esq.The facts are as contained in the body of the judgment.The action, subject matter of this appeal was commenced by writ of summons dated and filed on August 8, 2006 (shown on page 1 of the Record of Appeal), against Wema Bank Plc- the Respondent who was Defendant in court below.In paragraph 21 of the Statement of Claim, the Claimant's claim is in the sum of N40,000,000 (Forty Million Naira) being special and general damages, for the injuries suffered by the Claimant, on the botched sale of the property, the subject of this suit, (situate at 1, Baba Rere Street, off Lagos Abeokuta Expressway, Sango Ota) as a result of the fraud perpetrated by the Defendant, in connection with the said botched sale.The learned trial Judge, in the process of hearing the case, had to consider an application from the Defendant/Application filed on the 26th of October 2006, for an order striking out and/or dismissing the suit for being incompetent on the grounds that:' That the suit is an abuse of the process of this Honourable Court and the action is statute barred.Page 79-80 of the Record of Appeal.After considering the application, the learned trial Judge on the 10th of June 2009struck out the application on the ground that the action has violated the statutory requirement as laid down in the Limitation Law of Lagos State (1996)- pages 126-131 of the Record of Appeal.) the Appellant is aggrieved.The Application filed its Brief of Argument on July 6, 2010, which is settled by Jide Olawepo Esq. with two issues of determination inherent therein.The Respondent's Brief of Argument was filed on August 20, 2010, but same was deemed filed and served on the 18th of April 2011 pursuant to an Order of Court for extension of time within which the Respondent/Application may file the Respondent's Brief in this appeal filed on the 20th of August 2010.The Respondent had also in his brief of argument, incorporated a Notice of Preliminary Objection as reflected at page 3, paragraph 3.0-3.1 thereof.The Appellant filed a reply brief of argument on the 10th of May 2011.The synopsis of the facts as put forth by the appellant is at page one of his brief of argument.At the public auction conducted by and on behalf of the Respondent on 18 March 1991, the Appellant, acting through its Managing director, purchased the property, the subject of the contract which resulted in this appeal and was subsequently, issued with a purchase receipt confirming same.Consequently, a formal Deed of Assignment evidencing the contract was executed between the Appellant and the Respondent. The Appellant later discovered that in 1994, and in breach of this contract, the Respondent fraudulently prepared, executed and caused to be registered, a Deed of Release, but in favour of the former owner, thus effectively breaching the contract between her and the appellant. When all efforts to make the respondent rescind the breach and rectify the appropriate register of title failed, the Appellant instituted the action, claiming the relief of damages or the breach.In support of the Preliminary Objection, learned counsel for the Respondent argues that Ground No.2 of the Notice of Appeal did not arise or relate to the decision of the trial court appealed against. That the learned trial Judge never held, nor mentioned in his ruling, that the contract was contained in an instrument under seal and that the Respondent admitted the breach of same.Learned counsel submits, that Ground No.3 which alleges sound and correctness of argument, is substantially different from issue No.2 that is alleging inconsistency in the Respondent's case. He urges this Honourable Court to strike them out. Citing Hussaini V. Ogbuokiri (2004) 7 NWLR (pt. 873) 524 @ 540-541 paragraphs f-bIn his reply brief of argument filed on the 10th of May 2011, learned counsel for the Appellant, has urged that the objection raised is erroneous.I shall, as a matter of obligation, consider the Preliminary Objection first, to see how meritorious it is, before I delve into the appeal proper. And that is, if the need arises.It is clear that Ground 2 of the Grounds of Appeal relates to the Judgment, as it affects the issue of breach of contract. It would therefore be incorrect to say that Ground 2 does not flow from the Judgment of the Court below.That ground of Preliminary Objection is therefore misconceived and same is hereby overruled. Ground No.2 of the Ground of Appeal is competent and I so hold. That Ground arose from and relates to the decision of the trial Judge. OVIE V. IGHIWI (2005) 5 NWLR (pt.917) 184 pt. 217, paragraphs a-b.I must hasten to say, that this ground is indeed vague. I do not know what 'application ruled thereon' he is referring to in this Ground.Accordingly both Ground No.3 and Issue No.2 in the Issues for Determination are liable to be struck out and same are hereby struck out.Having struck out Ground No.3 in the Grounds of Appeal, I shall now consider this Appeal in the light of Grounds No. 1, 2 and 4, and the Appellant is left with one sole issue for determination, which is his issue No.1.In his argument, learned counsel for the Appellant, while referring to Section 8(1) and Section 12(1) of the Limitation Law Cap. 167, Laws of Lagos State 2004, submits that while the former deals with actions founded on simple contract and quasi-contract, the latter deals with actions founded upon an instrument under seal, other than an action upon an instrument to recover.He contends that the decision has occasioned a miscarriage of Justice and same ought to be set aside.In his submission, learned counsel for the Respondent had argued, that it is not in dispute that the Deed of Release, the cause of this action was erroneously registered in 1992, and that in law, action based on instrument under seal must be brought within 12 years of its accrual.He argues that in paragraph 4 of the Appellant's statement of claim dated 7th August 2006, he had pleaded that upon sale of the property, the subject of the suit, he was issued a purchase receipt dated 4th April 1991 and the Original Certificate of Occupancy of the property, and the Deed of Assignment were delivered to him.The matter is statute barred, he urges, having been brought in 2006, and he urges Court to so hold.Learned counsel submits that in determining whether or not an action is statute barred, it is the fact as pleaded in the Statement of Claim that the Presiding Judge is enjoined by law to consider.In his reply submission to the Respondent's brief filed on May 10, 2011, learned counsel for the Appellant had contented that the issue of whether the Appellant was diligent in registering his Deed of Assignment or not was not an issue arising in this appeal. He urges that an issue cannot arise from determination in an appeal, unless such had formed part of the decision of the lower court, and as contained in one of the Grounds of Appeal, citing FANNAMI V. BUKAR (2204) ALL FWLR. Pt 198 AT 1210.Now, a painstaking look at the Grounds of Appeal, shorn of Ground No.3, which I had earlier struck out, show that they have the same issue incidental to them.With respect, this depicts a simple contract. At page 12 of the Record of Appeal is the official receipt April 4, 1991 evidencing payment by Chief Shoal Layele on behalf of the Appellant of the sum of One hundred thousand naira (N100, 000) being full payment of the purchase of mortgaged property of Alhaji Salami A. Badmus.The suit, the subject, matter of this Appeal was filed in the year 2006I want to say quickly here that if the suit, the subject matter of this appeal is one of simple contract, (which I hold that it is) then this suit, having accrued in 1994, when the children and relations of Alhaji Salami Ade Badmus, received an offer from the Defendant, to buy back the property from the Defendant, it is statute barred, where time stipulated within which an action can be brought has elapsed, the action will be statute barred.
Click here to read full news..
