ENGR. DAYO ATALOYE & ANOR v. THE EXECUTIVE GOVERNOR ONDO STATE & ORS
(2013)LCN/6633(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of December, 2013
CA/AK/9/2011
RATIO
WHETHER A STATUTE BARRED ACTION CAN BE STRUCK OUT OR DISMISSED BY A TRIAL COURT
Given the peculiar nature of the action which I have found to be statute barred, it seems to me and I so hold that whether it is struck out or dismissed by the trial court that either of the order can stand. This is because if a matter is found to be statute barred the plaintiff thereto has no cause of action accruable to him. The resultant effect to my mind is that the intending plaintiff lacks the core materials to generate an action in court. To my mind an action without a cause is like an aeroplane without wings. It definitely cannot fly. Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
1. ENGR. DAYO ATALOYE
2. APOSTLE ATALOYE ALADURA (SUING FOR AND ON BEHALF OF ATALOYE FAMILY AKURE) Appellant(s)
AND
1. THE EXECUTIVE GOVERNOR ONDO STATE
2. THE HON. COMMISSIONER FOR LAND, HOUSING AND ENVIRONMENT, ONDO STATE
3. THE HON. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, ONDO STATE Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State presided over by Hon. Justice N. S. Adeyanju and delivered 17th June, 2010 in which the plaintiffs’ (herein the appellants) suit was dismissed.
By a writ of summons and statement of claim each dated filed 22nd May, 2008, the plaintiffs at the lower court made the following claims against the defendants:
1) A DECLARATION that the purported acquisition of all that piece or parcel of land situate along Akure/Ilesha Road, under the Okuta Elerinla Residential Scheme now surveyed and called Okuta Elerinla layout, Akure, Ondo State is unconstitutional, illegal, null, void and of no effect on the ground that:
a) The purported acquisition was not for one of the purposes for which the land could be acquired.
b) The purported acquisition was not made bona fide with due process of law.
c) The purported acquisition was persecutory and oppressive.
2) N50, 000,000 damages for trespass.
ATTERNATIVELY
1. A Declaration that the plaintiff is entitled to be paid fair and adequate compensation in accordance with the provisions of the Constitution of the Federal Republic of Nigeria.
2. AN ORDER of the court that the plaintiffs be paid the sum of N250,000,000 (Two Hundred and Fifty Million Naira) as compensation for the acquisition of plaintiffs’ lands.
Pursuant to the leave of the trial court granted the defendants they filed their memorandum of appearance dated 23rd September, 2008 on 24th September, 2008 and statement of defence dated 2nd February, 2009 but filed 3rd February, 2009 respectively. The statement of defence was deemed properly filed and served on 3rd February, 2009 and thereafter the case proceeded to trial. The plaintiffs opened and closed their case 30th April, 2009. The defence opened and closed its case on 11th June, 2009. At the conclusion of the trial and after hearing the addresses of the respective counsel, the learned trial Judge in a considered judgment delivered 17th June, 2010 entered judgment in favour of the defendants. See pages 63-82 of the record. Not satisfied with the judgment of the trial court the plaintiffs/appellants filed a notice of appeal on 14th July, 2010.
In line with the rules of this court, the parties filed and exchanged briefs of argument. The appellants’ brief dated 18th February, 2011 and filed 21st February, 2011 was settled by PIUS OLU DAODU, ESQ., while the respondents’ brief dated and filed 13th April, 2012 was deemed proper before the court on 23rd April, 2012. The said brief was settled by ADEBAYO OGUNSUYI, ESQ. for the Hon. Attorney-General and Commissioner for Justice, Ministry of Justice, Ondo State.
At the hearing of the appeal on 11th November, 2013, PIUS OLU DAODU, ESQ. adopted and relied on the appellants’ brief as their argument in this appeal. He urged the court to invoke the provision of Section 15 of the Court of Appeal Acts, 2004 and allow the appeal and set aside the judgment of the trial court. On the part of the respondents, WALE BAMISILE ESQ., Senior Legal Officer, Ministry of Justice, Ondo State adopted and relied on the respondents’ brief as their argument in this appeal. He urged the court to dismiss the appeal and affirm the judgment of the lower court.
The learned counsel for the appellants distilled (3) three issues for determination of the appeal. The issues are:
i. Whether or not the 2nd defendant is a Juristic personality that can be sued.
ii. Whether or not Exhibit P4 revived the cause of action of this suit where it is statute barred.
iii. Whether or not the trial court correctly dismissed the plaintiffs suit.
On the part of the respondents, learned counsel on their behalf came up with two issues as appropriate for the determination of the appeal and the issues are:
a. Whether or not Exhibit P4 (see page 80 of the record of appeal) revived the cause of action in this suit.
b. Whether or not the trial court rightly dismissed the plaintiffs/appellants suit as statute barred.
Since I consider the issues as distilled by the appellants to be encompassing I shall determine the appeal based on the appellants’ issues.
ISSUE (I) ONE
In support of issue (i) one, the learned counsel for the appellants submitted that the Honourable Commissioner for Land is a Juristic personality whose office, duties and functions are spelt out at pages 345-349 of the Interpretation Law of Ondo State, Cap 51. He submits that by the provision of the Law, no other person can perform the responsibilities of the office of the Commissioner for Land. Counsel relied on the case of CARLEN vs. UNIVERSITY OF JOS (1994) 1 SCNJ 72; THOMAS vs. LOCAL GOVERNMENT SERVICES BOARD (1960) NMLR 310; and MAKERI vs. KAFINTA (1990) 7 NWLR (PT. 163) 441 at ratio 2.
Counsel further argued that it is not logically possible for duties and functions to exist in vacuum; and as such if Section 29 of the Native Land Acquisition Law, Cap 89 rightly applied in the recovery of State land, the fact that it is now being applied to recover land wrongly acquired by the State cannot make it wrong in law to hold that the Commissioner is a juristic personality. He also relied on Sections 6 and 71 of the Native Land Acquisition Law of Ondo State to submit that the Commissioner for Land can sue and be sued and that the underlying principle being that the Commissioner of Land must be a creation of statute. See PRINCIPAL GOVERNMENT SECONDARY SCHOOL, IKASHI vs. IGHUDU (2005) 2 NWLR (PT. 940) 543, 566-567.
The learned counsel for the appellants argued finally on this issue that an office occupied by a natural person as constituted is a corporation sole that can sue and be sued. He referred the court to ATT-GEN. OF FEDERATION vs. ANPP (2003) 18 NWLR (PT. 851) 182, 186-187 ratios 1-3 and he urged the court to hold that since the office of Commissioner for Land is occupied by a natural person, the office can sue and be sued.
Although the learned counsel for the respondents seems not to have given consideration to the appellants’ issue (i) one for determination in which case he is deemed to accede to the contention of the appellants’ counsel therein, I shall all the same consider its merit.
RESOLUTION OF ISSUE (i) ONE
Pursuant to the provision of the Subsidiary Legislation of the Interpretation Law of Ondo State, Cap 51, Vol. III Laws of Ondo State, 1978, the office of the Commissioner for Lands is duly created by the statute with specific functions and duties assigned to the office. These duties and responsibilities attached to the office can only be performed by natural persons duly designated. In MAKERI vs. KAFINTA (supra) ratio 2 thereof, the Supreme Court recognized the Commissioner for Lands as sharing competence with the Attorney-General to sue on behalf of the Government under Section 29 of Native Lands Acquisition Law, Cap 89 only in suits to recover possession of State Land, but not in a suit to declare a Deed on State Land void. It seems to me and I so hold that the office of the Commissioner for Lands which is a creature of statute whose functions and duties are carried out by natural persons duly designated, can sue or be sued. This issue is thus resolved in favour of the appellants.
ISSUE (II) TWO
Regarding this issue which is whether or not Exhibit P4 revived the cause of action of the suit where it is barred-the learned counsel for the appellants submitted that the cause of action in respect of this matter is statute barred but can be revived by virtue of Sections 6(a) and 22(1)(a) of the Limitation Law, Cap 61. Laws of Ondo State. The counsel relied on Section 23(1) and (2) to submit that for such a revival to occur there must be an acknowledgment of the cause of action which must be in writing and signed by the person making it or his agent. The learned counsel argued that such acknowledgment shall in respect of recovery of land bind all persons in possession of the said land. He submitted that in the instant case Exhibit P4 was made by the 2nd respondent and addressed to the 2nd appellant. He opined that from all the surrounding circumstances of this case, viewing from the state of pleading that the respondent admitted Exhibit P4. See paragraphs 4 and 10 of the statement of defence at page 9-11 of the record of appeal. Counsel went further to submit that acknowledgment can even be inferred from the state of the pleadings of the parties. He urged on us to rely on the principle of law in NATIONAL UNIVERSITIES COMMISSION vs. OLUWO (2001) 3 NWLR (Pt. 699) 90, 107-101, paras. O-G, A-G-A-D.
Learned appellants’ counsel submitted that Exhibit P4 was made on 27th February, 1997 and the appellants filed this action on 22nd May, 2008. The limitation period in respect of land matter is 12 years against which backdrop he submitted that the action was filed within a period of 11 years. Counsel concluded on this issue by saying that by virtue of Section 29 of the Limitation Laws of Ondo State that the respondents are made liable for unlawful acquisition where acknowledgment can be established. He finally urged on the court to hold that Exhibit P4 revived the acquisition of the appellants’ land.
In their reaction to the issue, the learned counsel for the respondents contended that Section 22 of the Limitation Law of Ondo State which was heavily relied upon by the appellants does not apply to service the cause of action in this matter. He said that Exhibit P4 is not and can never suffice as an acknowledgment of title as contended by the appellants. He also said that Exhibit P4 is a letter of request from the Ministry to the United Apostolic Church of Nigeria for the Church to make an undertaking and the Ministry indicated therein its desire to re-visit the issue of compensation.
Learned counsel argued that Exhibit P4 can best be construed to be a correspondence made during negotiation for settlement of dispute between the parties before the matter was submitted for trial and as such is irrelevant here.
Counsel contended that even where a document like Exhibit P4 is not expressly marked “without prejudice”, that once it can be deduced from the face of the document or circumstances of the statement or document that the statement was made with bona fide intention of arriving at a settlement, the letter cannot be put in evidence in a subsequent action. He relied on the learned author AGUDA on THE LAW OF EVIDENCE (4TH ED.) 1999, spectrum, Ibadan at page 325; and also the authority of CHOCOLADE FABRIKEN LINDT AND SPRUNGLI A.G. vs. NESTLE CO. LTD. (1978) RPC 287 where the principle was applied. (Unfortunately counsel did not make any of these authorities available to the court). However, the learned counsel in further argument on the issue contended that from the content of Exhibit P4 that there is no acknowledgment and or commitment (either express or by implication) to pay any compensation. The letter (Exhibit P4) merely expresses the possibility of re-visiting the issue of compensation. He relied on the authority of OLAOGUN ENT. LTD. vs. SAEBY JERNSTOBERI & ANOR. in stating that an acknowledgment must be very clear to raise any (?) of acknowledgment. He said that acknowledgment or promise to pay liability does not extend the limitation period statutorily prescribed. He referred also to the dictum of Coker, JSC in THADANT vs. NATIONAL BANK (1972) NSCC 28.
He submitted finally that Exhibit P4 contained no clear promise or acknowledgment of appellants’ title to the land in dispute and as such the trial court was right in holding that Exhibit P4 did not revive the cause of action in this suit and thus urged on us to uphold the trial court’s decision and dismiss this appeal. See ADEKOYA vs. F. H. A. (2008)4 SCM 1 at 3.
RESOLUTION OF ISSUE (ii) TWO
Sections 22(1)(a) and 23(1) and (2) of the Limitation Law of Ondo State (supra) are for purposes of clarity reproduced hereunder. They read:
“22. (1) Where there has accrued any right of action…….to recover land…, and-
(a) the person in possession of the land, …….. acknowledges the title of the person to whom the right of action has accrued;……
23. (1) Every such acknowledgment …… shall be in writing and signed by the person making the acknowledgment.
(2) Any such acknowledgment …… may be made by the agent of the person by whom it is required to be made under the last foregoing section, and shall be made to the person, or to an agent of the person, whose title or claim is being acknowledged……” [Emphasis mine].
The land herein in dispute, was acquired in 1963 by the Ondo State Government. See paragraph 5 of the respondents’ statement of defence wherein they claimed that the acquisition was in 1963, and paragraph 6 of the appellants’ reply to the statement of defence where the claim was unrebutted. In the plaintiffs/appellants statement of claim at paragraph 12 thereof, they averred as follows:
“12. The plaintiffs state that between 1976 and up to 1997 the defendants had allocated and or sold the entire land to some individual who erected various residential houses on the plaintiff’s land.”
It is discernible from the foregoing that the cause of action accrued in 1976 when the plaintiffs/appellants observed the purported act of sales and allocation of the subject matter to some “individual”. It then follows that by the year 2008 when the writ of summons in this case was issued, the cause of action was already statute barred given the limitation period of 12 years allowed in land matters by the law. See Section 6(2) of the Limitation Law, Cap 61, Vol. III Laws of Ondo State, 1978 as well as OKAFOR vs. ANAMBRA STATE (2005) All NLR 378. For fresh accrual of the action there has to be an acknowledgment of the said cause of action as well as the title of the person to whom the right of action has accrued, pursuant to section 22(1)(a) of the Limitation Law, (supra). The acknowledgment shall be in writing and signed by the person making it or by his agent.
A critical look at Exhibit P4 which the appellants tenaciously hold out to be an acknowledgment is a document which emanated from the office of the 2nd respondent and addressed to the 2nd appellant. It is dated the 27th February, 1997 and it reads:
“Dear Sir,
RE: ALLOCATION OF STATE LAND
I wish to refer to the letter of offer Ref. No. LDM 958/D/39/134 dated 2nd June, 1995 in respect of the above and to let you know that you will be required to write a letter of undertaking with the State Government that non of her allottees will henceforth be disturbed either by your goodself or any of the members of United Apostolic Church of Nigeria.
2. The issue of compensation though statute barred will be re-visited to placate the initial landowners so as to give peace a chance. However, the family will be required to allow our allottees undisturbed occupation before the claims could be entertained.
3. You will please as a matter of urgency do a letter of undertaking to the State Government as analysed above so as to enable us process a Certificate of Occupancy for the Church on plots 1 and 2, Block 1 Commercial Zone of the state Industrial Layout, Ilesha Road, Akure.
4. Cooperate to enable us assist you as quickly as possible.
Yours faithfully,
(Sgd.) I. T. Adelaja
for: Hon. State Commissioner.” (Emphasis mine).
In construing the above (Exhibit P4), I must confess that I have seen nothing in it that creates the impression that it is an acknowledgment of title as envisaged by sections 21 and 22 of the Limitation Law of Ondo State (supra). Not even from the pleading of the respondents’ statement of defence can the deduction of acknowledgment of title be attributed to the respondents. The document brought to the fore the fact that the respondents had concluded the process of acquisition of the land which in turn had been allocated to people. In fact the only acknowledgment therein is in respect of “plots 1 and 2, block 1 Commercial Zone” for which the respondents were going to issue a Certificate of Occupancy subject to the appellants’ letter of undertaking as demanded by the respondents. It also reveals that the issue of compensation though already statute barred could be revisited by the parties in order to give peace a chance and the appellants was by the said Exhibit P4 expected to enter into an undertaking with the respondents. Thus, outside plots 1 and 2, Exhibit P4 cannot be seen to contain any acknowledgment of title of the appellants over any other land that is to say the OKUTA ELERINLA RESIDENTIAL SCHEME, situate along Akure/Ilesha Road, Akure, Ondo State.
Exhibit P4 could therefore be construed to be a leeway for negotiation with regard to the compensation payable on the acquired land as opposed to being an acknowledgment of title of the appellants. What it has done in effect, is to keep the issue of compensation payable on the acquired land still on the front burner. It therefore follows and in reaction to issue 2 as raised by the appellants; that Exhibit P4 has not revived the cause of action of this suit. The said issue (2) two is hereby resolved against the appellants and in favour of the respondents.
On issue three which is whether or not the trial Court correctly dismissed the plaintiffs’ suit-the appellants have submitted that the trial court was wrong in dismissing the suit. That the proper thing the trial court could have done is to strike out the appellants’ suit. The appellants’ reason for towing this line of argument is because to dismiss the suit is a substantial point of law that the Court of Appeal will and can, on its own motion consider where it is arising from record, even though it was not included as one of the grounds of appeal, nor referred to by the appellant at the hearing before a lower court. This is to suggest that not making it a ground of appeal will not deter the appellant from raising it. Counsel referred to UKAEGBU vs. NWOLOLO (2009) 3 NWLR (Pt. 1127), (?) 194 SC “2222” paras. G-H. Counsel in final submission said that where the trial court finds that the action is statute barred, then its jurisdiction is ousted and then the proper thing to do is to strike out the appellants’ claim. He urged on us to so hold.
In final conclusion of their argument, the learned counsel for the appellants urged this court to allow this appeal and set aside the judgment of the trial court delivered 17th day of June, 2010. He urged that we invoke Section 16 of the Court of Appeal Act to give judgment to the appellants in terms of the appellants’ amended statement of claim. This is because the issues canvassed at the lower court are supported by evidence. He submitted that there was sufficient evidence of acquisition and that the respondent admitted that the appellants were not paid compensation. He relied upon ONWUKA vs. OMOGUI (1992) 3 NWLR (Pt. 230) 393, 399-400, ratios 8 and 9, in urging us to exercise the power of the lower court and give judgment to the appellants.
In their reaction on the issue of dismissal or striking out as the case may be of the suit by the trial court, the respondents as can be seen in paragraphs 4.10 to 5.07 of their brief, contended that the trial court rightly dismissed the plaintiffs/appellants’ suit as statute barred. By their pleadings, the appellants claimed that they first noticed the selling and building of houses on the land in 1976. See paragraph 12 of the appellants’ statement of claim at page 4 of the record; as well as AJIBONA vs. KOLAWOLE (1996) 10 NWLR (Pt. 476) 22, 24-25 ratios 3, 4 and 5; and NWADIAIO vs. SHELL DEV. CO. LTD. (1990) 5 NWLR (Pt. 150) 322, ratio 7.
Counsel went on with the submission that the suit as instituted before the trial court was statute barred and the effect is that the appellants could no longer maintain the suit on the basis of the action. See ELEBANJO vs. DAWODU (2006) 15 NWLR (Pt. 1001) 76 SC., ratio 33. He contended that the plaintiffs were left with a bare and empty cause, an action which they cannot enforce. The effect is that the suit must be dismissed and is properly dismissed by the lower court. Counsel concluded his argument hereon by submitting that this issue of whether the suit was properly dismissed as raised by the appellants is not supported by any of the grounds in the Notice of Appeal. That it is irrelevant in the consideration of this appeal and should be struck out.
He finally urged the court to uphold the judgment of the lower court delivered 17th of June, 2010 and to dismiss the present appeal for lack of merit.
RESOLUTION OF ISSUE (3) THREE
In view of the nature of the last aspect of the respondents’ submission it is pertinent to resolve it first.
Obviously the propriety or impropriety of the dismissal of the action by the trial court is indeed not contained in or supported by any of the grounds of appeal. It has been decided on a plethora of authorities that issues for determination in an appeal have to flow from or relate to the grounds of appeal. An appellant is not permitted to raise issues in excess of his grounds of appeal. Multiplicity of issues more than the grounds of appeal is discountenanced. See UNILORIN vs. OLUWADARE (2003) 3 NWLR (Pt. 808) 557; WILLIAM vs. ADEBAYO (2012) LPELR-7940 (CA.); and NWANKWO vs. YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518 (SC.)Reading through the foregoing authorities, I am satisfied that issues raised in excess of the grounds of appeal can be discountenanced. However, this is not to say that I am unmindful of the fact that a substantial point of law such as the one herein involved, can be raised and considered by the court at any level of the proceedings. It was the holding of the apex court in UKAEGBU vs. NWOLOLO (supra) that:
“….it is now firmly established that an appellate court, will and can, on its own motion, consider a substantial point of law arising on the record, even though it is/was not included as one of the grounds of appeal, nor referred to by the/an appellant at the hearing before a lower court.”
Given the peculiar nature of the action which I have found to be statute barred, it seems to me and I so hold that whether it is struck out or dismissed by the trial court that either of the order can stand. This is because if a matter is found to be statute barred the plaintiff thereto has no cause of action accruable to him. The resultant effect to my mind is that the intending plaintiff lacks the core materials to generate an action in court. To my mind an action without a cause is like an aeroplane without wings. It definitely cannot fly. As rightly submitted by the learned counsel for the respondents, the instant appellants have an empty or bare cause of action which cannot be enforced in any court of law. Thus, the issue of whether the suit was struck out or dismissed is neither here nor there.
The resultant effect of my findings herein is that the order of dismissal of the suit as made by the trial court was proper in the circumstances bearing in mind that the suit was statute barred ab initio. Issue (3) three is in the event resolved in favour of the respondents and against the appellants.
The sum total of all I have said in this judgment is that the trial court was right when it held that Exhibit P4 did not revive the defendants/appellants suit which suit I find to be statute barred pursuant to the provisions of Section 6 of the Limitation Law of Ondo State. The appeal lacks merit and is therefore dismissed. Accordingly the judgment of the High Court of Ondo State delivered by Hon. Justice N. S. Adeyanju on the 17th of June, 2010 in suit nos: AK/1007/2008 is hereby affirmed.
SOTONYE DENTON WEST, J.C.A.: I read in advance the judgment of my learned brother Cordelia Jombo-Ofo, JCA. I agree with the reasoning and conclusions reach therein. Therefore I have just this remark in respect of Limitation Law of Ondo State.
Section 6(2) of Limitation Law, Cap. 61, Vol. 111 Laws of Ondo State 1978 provides to the effect that any cause of action to recover land or interest in land not instituted within 12 years will be statute barred. The cause of action arose in 1976 when the Appellants observed that the subject matter of this action were being sold and allocated to people. They went to sleep and only woke up in 2008, 32 years later to bring this action.
The action is indeed statute barred.
When an action is statute barred, there is no cause of action capable of being litigated. I agree with submission of the Respondent’s Counsel that the Appellants herein have an empty or bare cause of action which cannot be enforced in any Court of law. I hold that the appeal lacks merit and is hereby dismissed.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
Appearances
PIUS OLU DAODU, ESQ.For Appellant
AND
WALE BAMISILE, Senior Legal Officer, Ministry of Justice, Ondo StateFor Respondent
