Debt is repayable on demand –CA

As the Supreme court held in FOLARIN V. DUROJAIYE (1988) NWLR (pt 70) 351 following the West African Court of Appeal decision in OGUNBAMBI V. ABOWABA (19ST) 13 WACA 222, where land is sold under English law or statute law, money is paid and receipts are issued, the purchaser can only acquire an equitable interest […]

As the Supreme court held in FOLARIN V. DUROJAIYE (1988) NWLR (pt 70) 351 following the West African Court of Appeal decision in OGUNBAMBI V. ABOWABA (19ST) 13 WACA 222, where land is sold under English law or statute law, money is paid and receipts are issued, the purchaser can only acquire an equitable interest if he goes into possession. In order to transfer legal title by purchase, there must be a valid sale, payment of money accompanied by acknowledgment of receipt and execution of a deed of conveyance.
If the sale were under customary law, the statement of claim would have stated so, that the respondent paid the purchase price, the appellants handed over possession of the suitland to him and that the said delivery of possession took place in the presence of witnesses.  There can be no valid sale of land and transfer of title to land by such sale unless these requirements are satisfied.  See FOLARIN V. ADROJAIYE (supra), OBIJURU V. OZIMS (1985) 2 NWLR (pt. 6) 66 at 179, ONIWANYA V. IKUMOLA (1986) 2 NWLR (pt. 22) 386.
Since the facts of the statement of claim show the equitable title of the respondent to the right of occupancy of the suit land, his lawful possession of the suit land and the threat to his said equitable right and interference with his possession of the land, a cause of action for the remedy of injunction to protect his equitable right and possession of the suit land is disclosed.  See HUNSONNU V. DENAPO (2007) LPELR 8701 OYADERE V. KEJI (2005)1 SC (pt. 1) (CA) 19 at 25 In the light of the foregoing I hold that the preliminary objection against relief (a) succeeds.  The preliminary objection against relief (c) fails.
Let me now deal with the issue of whether the claim for refund of the purchase price of the second acre of land is statute barred by virtue of S. 12(c) and 20(1)(a) of the Actions Land of Anambra State.  The full payment for the two acres of land was completed on 13th November 1994.  The survey of the land in the presence of both parties revealed that the second acre of land never existed.  Feeling that the appellants deliberately  deceived him to take his money, the respondent commenced a criminal process against them by laying a complaint at the police station against them.  Following their arrest the members of the appellants’ family promised in December 1994 to refund the purchase price paid to them.
Learned counsel for the appellants has argued that this promise by the members of the appellants’ family to refund the said purchase price of the non-existent second acre of land became a simple contract to pay a debt, upon its acceptance by the respondent.  I agree that a form of contract arises not only upon the promise to refund the purchase price and the acceptance of the promise by the respondent but also due to the failure of consideration. Where money is received for a consideration which has failed as in this case,  law and equity will imply a promise and an obligation to repay the money.  The recipient of the money, in this case, the appellants’ family will be treated in law as having incurred a debt.   It is a debt or obligation arising not only from the promise of the appellants’ family to repay the money but also by operation of law and equity.  This form of contract is in my opinion a quasi   contract to repay money had and received.  It is a quasi contract in the sense that the circumstances exclude any notion of an actual contract.  See ADESINA & ORS V. KOLA & ORS (1993) 7 SCNJ 79 in which the Supreme court relied on the statement of Lord Mansfied in the leading case of Moses v. Macferlan 2 Burr. 1005 explaining why the law implies a debt and the obligation to pay the debt in circumstances such as the one in this case.  According to Lord Mansfied “If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action, founded on the equity of the plaintiff’s case as if it were upon a contract.”
The obligation to pay this simple debt arose  immediately it became clear that the appellant’s family did not have a second acre of land to give to the respondent.  The appellant have argued that this obligation to pay the debt is no longer enforceable because over 6 years have elapsed since the cause of action to enforce the obligation arose and that it arose when the respondent demanded for the payment and the appellants’ family failed to do so in 1994.
I agree with the submission of learned counsel for the appellants that the cause of action for the enforcement of the obligation to pay the debt arose when the respondent demanded for the payment and the appellants’ family failed to pay.  It is clear from the statement of claim that this was in 1994.  See victor Amede v. UBA (2007) LPELR 9043 (CA) where this court relying on the decisions in Omosowan v. Chiedozie (1998) 9 NWLR (pt. 566) 477, Ishola v. S.G.B (Nig) Ltd (1997)2 NWLR (pt. 488) 405 and Edosomwan v. A.C.B Ltd. (1995) NWLR (pt 408) 472, per Abba Aji JCA held that “a cause of action for the recovery of simple debt, just as in the case of detinue accrues only if a person in possession of money or goods has refused to surrender the money or goods after demand has been made for its payment or delivery.  What this simply means is that generally a debt is repayable either on demand or on notice given or upon any other condition agreed upon by the parties.”
Learned counsel for the appellant has argued further that by virtue of S. 12(c) and 20(1) (a) of the Limitation of Action Law, Revised Laws of  Anambra State 1991 the right of action for the refund of the purchase price has ceased to exist due to lapse of time of over 6 years and that therefore the claim for refund is statute barred.  The respondent has argued that the said provisions do not apply to actions for debt recovery by virtue of S. 18 of the Limitation of Action Law.
S. 18 states that –  “The provisions as regards limitation of actions provided in this Law shall have no application where a person bringing an action to recover land, or the person through whom he claims, derived his title to such land solely under customary law.”                                      
It is clear from the express wordings of S. 18 that it excludes only actions for recovery land from application of the Limitation of Actions Law.  A debt recovery action is not excluded by S. 18 from the application of the Limitation of Action Law.
It is clear from S. 20 (1) (a) that an action on a simple contract for recovery of debt must be brought to court within six years from the date the cause of action accrued.  S. 12 (c) states the consequences of the failure to comply with S. 20 (1) (a) of Act.  It is stated clearly that the right of action shall cease to exist and therefore not be exercisable after the expiration of the six years period.  It is clear from the writ of summons and statement of claim that the suit at the trial court was filed over six years after the respondent demanded for the refund and the appellant failed to do so.  Clearly the action was statute barred.  Such a claim is not maintainable after the limitation period of 6 years has expired.
In the light of my holding that the statement of claim disclosed a cause of action for the claim of specific performance and an injunction,  I am not inclined to hold that the action is an abuse of court process.  I therefore resolve issue No 3 in favour of the respondent.
On the whole this appeal partly succeeds.  I hold that the statement of claim does not disclose a cause of action for the claim in paragraph 30 (a)  for a declaration that the plaintiff is entitled to a certificate of occupancy of the suit land and that the claim in paragraph 30 (b) for an order that the defendants refund to the plaintiff the sum of N6, 400,000, the present value of 8 plots of land is statute barred.  The claims for these reliefs are hereby dismissed.
The statement of claim discloses a cause of action for the remedy of perpetual injunction to restrain the defendants from entering the suit land.  It is maintainable.  I make no order as to costs.

  Emmanuel Akomaye Agim Justice,  Court Of Appeal
Counsel
Austine A. Ononye for the appellant
Respondent in person.

Concluded