CHIEF EFFANGA ITAKEN v. MR. EFFIONG EKPENYONG OFFIONG & ANOR
(2016)LCN/8140(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of January, 2016
CA/C/109/2013
RATIO
APPEAL: RAISING FRESH ISSUE; WHETHER A PARTY NEEDS TO OBTAIN LEAVE TO FILE AND ARGUE FRESH ISSUE AND AN EXCEPTION TO THE GENERAL RULE
It is well settled that when a party seeks to file and argue a fresh issue not raised in the lower Court, whether or not the issue pertains to law,leave to file and argue such fresh issue must be had and obtained;Obiakor v. State (2002) SCNLR 193; Obioha v. Duru (1994) 8 NWLR(PT 365) 631; Opobiyi v. Layiwola Muniru (2011) 1 LPELER-8232 (SC); Ohochukwu v. Attorney General Rivers State (2012) LPELR-7849 (SC). Such fresh issue may be raised and relied on, upon any new line of argument or new decided authorities, judicial or statutory to support the argument in an issue; Ogunbadejo v. Owoyemi (1993) 1NWLR (PT 271) 517 at 534; Oseni v. Bajulu (2009) 18 NWLR (PT1172) 164.
An exception to this general rule is where the new issue sought to be raised touches on jurisdiction. The jurisdiction of a Court is the authority which a Court has to decide on matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision.The limits of this authority are set by statute, charter or commission under which the Court is constituted and may be extended or restricted;National Bank (Nigeria) Ltd v. Shoyoye (1977) 5 S.C. 110; Ndaeyo v.Ogunaya (1977) 1 S.C. 7. If the fresh or new issue sought to be raised on appeal challenges the jurisdiction of the Court, generally, leave of Court need not be first obtained; Gaji v. Paye (2003) 8 NWLR (Pt 823) 58 at 599; Elugbe v. Omokhafe (2005) ALL FWLR (PT 243) 629 at 640, 646; Moses v. State (2006) 11 NWLR (Pt.992) 458, (2006) All F.W.L.R. (PT 322) 1437; The Minister of Works & Housing v. Shittu(2007) 16 NWLR (PT 1060) 351. In the case of Moses v. State (2006)11 NWLR (PT 992) 458, Ogbuagu JSC at page 503 said:
“The consequence is long settled in a number of decided authorities to the effect that an appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a lower Court, without the leave of the Court having been had and obtained…Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary”. There is no doubt that the issue of jurisdiction is a threshold issue that can be raised at any time, even on appeal. But this is not at large. It is the accepted view that where all the facts are available to the party, it is desirable to raise it at the lower Court so as to give notice to the opposing party of the case he has to meet; Ezomo v. Oyakhire (1985) 2 S.C. 260. A line may be drawn between when the fresh issue is founded on procedural matters and when substantive law is involved. A complaint touching on the competence of an originating process is procedural and it is not obscure. Any challenge on the competence of procedural step ought to be raised timeously and at the trial Court. However, while a litigant may submit to a procedural jurisdiction, parties cannot confer jurisdiction on a Court where the law has not done so; Obiuweubi v. CBN (2011) LPELR-2185 (SC). Therefore if the fresh issue arises from substantive law, it may be raised on appeal without leave of Court. per. ONYEKACHI AJA OTISI, J.C.A.
COURT: JURISDICTION; WHETHER LIMITATION OF ACTION BORDERS ON JURISDICTION AND THE IMPLICATION OF THE COURT ENTERTAINING A SUIT IT HAS NO JURISDICTION TO ADJUDICATE
Limitation of action by statute is an issue of law and it borders on the jurisdiction of the trial Court to entertain the claims of the claimant by any means. When a defendant contends that the suit submitted to the trial Court for adjudication by a claimant is statute barred, he is in effect contending that the Court has no jurisdiction to entertain the suit at all. Such challenge bordering on limitation of action which raises the issue of jurisdiction, ought to be resolved first; Petrojessica Enterprises Ltd & Anor v. Leventis Technical Company Ltd. (1992) LPELR-2915 (SC);Nwankwo v. Yar’ adua (2010) 12 NWLR (PT 1209) 518. The simple reason being that if the trial Court goes ahead to entertain a suit over which it has no jurisdiction to adjudicate, its effort amounts to an exercise in futility, no matter how well conducted the proceedings have been and how correctly decided. The entire exercise would amount to anullity; APGA v. Anyanwu (2014) LPELR-22182 (SC). Jurisdiction is so fundamental an issue that it can also be raised suo moto by the Court;Nwaogu v. INEC (2008) LPELR-4644 (CA); Tanksale v. Rubee Medical Centre Ltd (2013) LPELR-21445 (CA). per. ONYEKACHI AJA OTISI, J.C.A.
COURT: JURISDICTION; HOW TO DETERMINE THE JURISDICTION OF THE COURT
It is well settled that the jurisdiction of the Court is determined by the plaintiffs claim, i.e. the subject matter and claim before the Court as disclosed in the writ of summons; and/or the statement of claim, where it has been filed, this being because the statement of claim supersedes the writ of summons; Adetayo v. Ademola (2010) 15 NWLR (PT 1215) 169.In APGA v. Anyanwu (supra), the Supreme Court, per Kekere Ekun, JSC restated the position of the law thus:
?The law is settled that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are the processes filed by the plaintiff or applicant i.e. the writ of summons and statement of claim, or…the originating summons and its supporting affidavit.”
See also Opia v. INEC (2014) LPELR – 22185 (SC). The entire content and claim of the statement of claim is the material to be examined in determining whether or not the Court has jurisdiction; Tukur v. Govt. of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; NV Scheep v. MV”Araz” (2000) 15 NWLR (Pf 681) 668; Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348, Nnadi v. Okoro (1998) 1 NWLR (Pt. 535) 573; Omnia Nigeria Ltd v Dyktrade Ltd (2007) 12 MJSC 115. per. ONYEKACHI AJA OTISI, J.C.A.
PRACTICE AND PROCEDURE: STATUTORY LIMITATION; HOW TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED
In determining whether an action is statute barred, all that is required is for the Court to examine the writ of Summons and the statement of claim alleging when the wrong was committed, which gave the claimant a cause of action and comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred; Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 at 20-21; Aremo II v. Adekanye (2004) ALL FWLR (Pt 224) 2113 at 2132 – 2133; Hassan v. Aliyu (2010) 17 NWLR (PT 1223) 547. The Supreme Court, per Adekeye, JSC, in Ajayi v. Adebiyi (2012) LPELR-7811 (SC) restated the guiding elements of limitation of action as follows:
“The yardsticks to determine whether an action is statute-barred are:
a) The date when the cause of action accrued.
b) The date of commencement of the suit as indicated in thewrit of summons.
c) Period of time prescribed to bringing an action to be ascertained from the statute in question.Time begins to run for the purposes of the limitation law from the date the cause of action accrues. It is therefore always necessary when dealing with a limitation of statute, to ascertain the exact date on which the cause of action arose. An action commenced after expiration of the period, within which an action must be brought, as stipulated in a statute of limitation, is not maintainable.The claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such action has elapsed. The claimant would then be left with a bare and empty cause of action which he cannot enforce, for the Court would have no jurisdiction to entertain a statute barred claim; Olagunju v. PHCON (2011) LPELR-2556(SC); Mil. Administrator, Ekiti State v. Aladeyelu (2007) 4-5 S.C.201. Therefore legal proceedings to enforce a cause of action cannot be properly or validly instituted after the expiration of the prescribed limitation period; Ekeogu vs. Aliri (1991) 3 NWLR (Pt. 179) 258;Eboigbe v. NNPC (1994) 5 NWLR (PT 347) 649 at 659; Odubeko v.Fowler (1993) 7 NWLR (Pt. 308) 637; Amadi v. INEC (2012) LPELR-7831 (SC). per. ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
CHIEF EFFANGA ITAKEN Appellant(s)
AND
1. MR. EFFIONG EKPENYONG OFFIONG
2. MR. EKPENYONG EKPENYONG OFFIONG Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Cross River State, Calabar Division Coram Hon Justice Obojor A. Ogar, J., delivered on September 28, 2012, in which the learned Judge dismissed the claims of the Appellant.
The Appellant was the claimant before the lower Court. The subject matter of this appeal is a parcel of land situate at Itaken Street by Itaken Lane, Ikot Effanga Mkpa, Calabar Municipality. The land in issue was part of a large expanse of land owned by the Appellant, described as an illiterate. In 1979, the Appellant expressed his intention to lease out of the large expanse of land an area of 100 feet by 50 feet (450 squaremetres), to the Respondents, for term of 99 years and at the annual rent of N40.00 (forty Naira), being N3,960.00 (three thousand nine hundred and sixty Naira) only for the said term of 99 years. In furtherance of that intention, on November 14, 1979 the Appellant received the sum ofN520.00 from the Respondents as an amount to cover thirteen years,being 1980 – 1993 and issued a receipt. The parties also executed a Lease Agreement, which was
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to take effect from January 1, 1980.
Part of the terms as agreed between the parties was that the Appellant shall have the land revert to him in the event that the Respondents are in arrears for a year after demand or non-observance of the terms of the Lease Agreement. It was alleged by the Appellant that the said Lease Agreement did not reflect the terms as agreed by the parties. Instead of 99 years, it stated the lease would be for 90 years. The executed Lease Agreement had no annexed survey plan delineating the expansion of the100 feet by 50 feet as agreed on. The Appellant alleged that the Respondents unilaterally altered the Lease Agreement from reading that the dimensions of the land would be 100 feet by 50 feet to 100 feet by100 feet, thereby increasing the dimensions of the land by an extra 50 feet. The Appellant denied that the alteration was either made by him or sanctioned by him. He also alleged that the Respondents further expanded the dimensions of the land to 100 feet by 109.65 feet (985.96 square metres) without his consent. In addition to the encroachment on the land, the Respondents refused to pay the balance of the land rent for the remaining 86 years,
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which amounted to N3,440.00 (three thousand four hundred and forty Naira).
As at the time the suit leading to this appeal was instituted in 2009, the Respondents had stayed on the property for an upward period of 16 years (1993 – 2009) after the expiration of the 13 years they paid for. The land rent for those 16 years amounted to N640.00 (six hundred and forty Naira).
The Appellant, in view of these breaches, began to confront the Respondents, demanding that the Respondents vacate the land in issue,but they refused to do.
The Appellant alleged that the Lease Agreement was flawed in that it had no illiterate jurat as required under the Illiterate Protection Law of Cross River State in force as at 1980; and secondly, it was not registered under the Land Instrument Registration Law of Cross River State inforce as at 1980. The receipt dated November 14, 1979, issued for the payment of N540.00 for 13 years also had no illiterate jurat on it.
?Aggrieved by the action of the Respondents, the Appellant approached the High Court by a Writ of Summons dated July 3, 2009, seeking interalia, a declaration for the reversion of title to the land; for mesne profit of N640.00 for the extra 16
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years the Respondents had stayed on the land without rents; and for damages to the tune of N10,000,000.00 (ten million Naira) for trespass, harassment and lack of convenience visited on him on the land by the Respondents.
The Respondents filed a Statement of Defence/Counter-Claim on August 6, 2009. The Respondents contended that the dimension of the land was initially 120 feet by 130 feet, including the thorough fare of the land, but that on the day of signing the Lease Agreement, the Appellant insisted and it was manually reduced to 100 feet by 100 feet. The Respondents averred that the Lease Agreement was to be for 90 (ninety) years; and, that they paid the outstanding balance of land rents in three instalments. They mentioned specific dated receipts, which they asserted were issued to them by the Appellant in respect thereof. The Respondents stated that prior to the institution of the case on July 3, 2009, the Appellant had never made demand for any rent arrears. The Survey Plan filed by the Appellant at the lower Court which covered an area of 914.064 square metres did not show the area of trespass.The Appellant in response filed a Reply to the Statement
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of Defence/Counter-Claim on August 19, 2009, in which he denied issuing the said receipts.
At the conclusion of hearing, the learned trial Judge, in a considered judgment delivered on September 28, 2012 dismissed both the Appellant’s claim and the Respondents’ counter-claim. Dissatisfied by the said decision, the Appellant filed a Notice of Appeal on December 12, 2012 upon five grounds.
The parties exchanged Briefs of Argument, including the Appellant’s Reply Brief, which were respectively adopted on 4/11/2015 by M. I.Emori, Esq., for the Appellant; and by Ekpenyong Ndiyo, Esq., of Counsel for the Respondents.
Out of the five grounds of appeal, learned Counsel for the Appellant,distilled two issues for determination, as follows:Whether the Appellant is not entitled to the reversion of title to the land leased out to the Respondents in 1980, the period thirteen (13) years, starting from 1980 to 1993, for which the sum of N520.00 was paid as rent, having long expired and the Respondents being in arrears for a period of one (1) year and even up to 16 years? (Distilled from Ground l).
?Whether the Respondents are not trespassers due to their continuous stay on the land after the
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expiration of the period covered by the rent of thirteen (13) years they paid and upon their being in arrears for more than one year and even more and for unilaterally increasing the expanse of land originally leased out to them. (Distilled from Grounds 2,3,4 & 5).
Learned Counsel for the Respondents noted that the trial Court had considered and resolved in favour of the Respondents two issues:
a) Did the Defendants default in the payment of the reversed annual rent?
b) Did the Defendants encroach on the claimant’s land not originally given to them?
Upon this consideration, a sole issue for determination was distilled for the Respondents as follows: Was the Appellant entitled to judgment at the trial Court?
The Respondents contended that the cause of action before the lower Court arose, from the pleadings of the Appellant, on January 1, 1993 or the year after being January 1, 1994. The action leading to this appeal which was instituted on July 3, 2009 was commenced more than 10 years after the cause of action arose and therefore was statute barred abinitio.
?In response to this contention, it was submitted for the Appellant that the issue of limitation of action amounted to a
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fresh point of law, being raised for the first time on appeal and that being the case,notwithstanding the fact that it was an issue hinged on jurisdiction, leave ought to have been first sought and obtained before it could be canvassed. Reliance was placed on Gbadamosi v. Dairo (2007) 3 MJSC 1 at 21; Uor v. Loko (1988) 2 NWLR (pt. 77) 430 at 437; Waniko v. Ade-John (1999) 8 NWLR (Pt. 619) 401 at 412. Learned Counsel for the Appellant further submitted that the Respondents had not pleaded the issue of limitation of action, contrary to the provisions of Order 17, Rules 4(3) and 6 of the High Court of Cross River State (CivilProcedure) Rules 2008. Reliance was also placed on the case of Eze v. A-G, Rivers State (2002) 6 WRN 84 at 115. If the Respondents were still at the lower Court and seek to raise the Limitation Law in their pleading after same had been filed, they would have had to amend their pleading upon leave of Court. Raising it for the first time on appeal, it was submitted, was taking the Appellant by surprise and that in order to be able to rely on the issue of limitation of action, the Respondent sought to have come by way of motion on notice, seeking leave to do
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so.
I believe it would be in order to determine, as a preliminary issue, whether the Respondents are procedurally in line to raise the issue of limitation of action for the first time on appeal, and without leave of Court.
It is well settled that when a party seeks to file and argue a fresh issue not raised in the lower Court, whether or not the issue pertains to law,leave to file and argue such fresh issue must be had and obtained;Obiakor v. State (2002) SCNLR 193; Obioha v. Duru (1994) 8 NWLR(PT 365) 631; Opobiyi v. Layiwola Muniru (2011) 1 LPELER-8232 (SC); Ohochukwu v. Attorney General Rivers State (2012) LPELR-7849 (SC). Such fresh issue may be raised and relied on, upon any new line of argument or new decided authorities, judicial or statutory to support the argument in an issue; Ogunbadejo v. Owoyemi (1993) 1NWLR (PT 271) 517 at 534; Oseni v. Bajulu (2009) 18 NWLR (PT1172) 164.
An exception to this general rule is where the new issue sought to be raised touches on jurisdiction. The jurisdiction of a Court is the authority which a Court has to decide on matters that are litigated before it or to take cognizance of matters presented in a formal way for its
8
decision.The limits of this authority are set by statute, charter or commission under which the Court is constituted and may be extended or restricted;National Bank (Nigeria) Ltd v. Shoyoye (1977) 5 S.C. 110; Ndaeyo v.Ogunaya (1977) 1 S.C. 7. If the fresh or new issue sought to be raised on appeal challenges the jurisdiction of the Court, generally, leave of Court need not be first obtained; Gaji v. Paye (2003) 8 NWLR (Pt 823) 58 at 599; Elugbe v. Omokhafe (2005) ALL FWLR (PT 243) 629 at 640, 646; Moses v. State (2006) 11 NWLR (Pt.992) 458, (2006) All F.W.L.R. (PT 322) 1437; The Minister of Works & Housing v. Shittu(2007) 16 NWLR (PT 1060) 351. In the case of Moses v. State (2006)11 NWLR (PT 992) 458, Ogbuagu JSC at page 503 said:
“The consequence is long settled in a number of decided authorities to the effect that an appeal Court will not ordinarily entertain issues that are fresh and not brought and decided before a lower Court, without the leave of the Court having been had and obtained…Let me add quickly, that the only exceptions are where the issue of jurisdiction is raised as a fresh point, leave is not necessary”.
?There is no doubt that the issue of
9
jurisdiction is a threshold issue that can be raised at any time, even on appeal. But this is not at large. It is the accepted view that where all the facts are available to the party, it is desirable to raise it at the lower Court so as to give notice to the opposing party of the case he has to meet; Ezomo v. Oyakhire (1985) 2 S.C. 260. A line may be drawn between when the fresh issue is founded on procedural matters and when substantive law is involved. A complaint touching on the competence of an originating process is procedural and it is not obscure. Any challenge on the competence of procedural step ought to be raised timeously and at the trial Court. However, while a litigant may submit to a procedural jurisdiction, parties cannot confer jurisdiction on a Court where the law has not done so; Obiuweubi v. CBN (2011) LPELR-2185 (SC). Therefore if the fresh issue arises from substantive law, it may be raised on appeal without leave of Court.
Limitation of action by statute is an issue of law and it borders on the jurisdiction of the trial Court to entertain the claims of the claimant by any means. When a defendant contends that the suit submitted to the trial Court for
10
adjudication by a claimant is statute barred, he is in effect contending that the Court has no jurisdiction to entertain the suit at all. Such challenge bordering on limitation of action which raises the issue of jurisdiction, ought to be resolved first; Petrojessica Enterprises Ltd & Anor v. Leventis Technical Company Ltd. (1992) LPELR-2915 (SC);Nwankwo v. Yar’ adua (2010) 12 NWLR (PT 1209) 518. The simple reason being that if the trial Court goes ahead to entertain a suit over which it has no jurisdiction to adjudicate, its effort amounts to an exercise in futility, no matter how well conducted the proceedings have been and how correctly decided. The entire exercise would amount to anullity; APGA v. Anyanwu (2014) LPELR-22182 (SC). Jurisdiction is so fundamental an issue that it can also be raised suo moto by the Court;Nwaogu v. INEC (2008) LPELR-4644 (CA); Tanksale v. Rubee Medical Centre Ltd (2013) LPELR-21445 (CA).
It is well settled that the jurisdiction of the Court is determined by the plaintiffs claim, i.e. the subject matter and claim before the Court as disclosed in the writ of summons; and/or the statement of claim, where it has been filed, this being
11
because the statement of claim supersedes the writ of summons; Adetayo v. Ademola (2010) 15 NWLR (PT 1215) 169.In APGA v. Anyanwu (supra), the Supreme Court, per Kekere Ekun, JSC restated the position of the law thus:
?The law is settled that in determining the jurisdiction of a Court to entertain a cause or matter, the processes to be considered by the Court are the processes filed by the plaintiff or applicant i.e. the writ of summons and statement of claim, or…the originating summons and its supporting affidavit.”
See also Opia v. INEC (2014) LPELR – 22185 (SC). The entire content and claim of the statement of claim is the material to be examined in determining whether or not the Court has jurisdiction; Tukur v. Govt. of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517; NV Scheep v. MV”Araz” (2000) 15 NWLR (Pf 681) 668; Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348, Nnadi v. Okoro (1998) 1 NWLR (Pt. 535) 573; Omnia Nigeria Ltd v Dyktrade Ltd (2007) 12 MJSC 115.
In determining whether an action is statute barred, all that is required is for the Court to examine the writ of Summons and the statement of claim alleging when the wrong was committed, which gave the
12
claimant a cause of action and comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred; Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 at 20-21; Aremo II v. Adekanye (2004) ALL FWLR (Pt 224) 2113 at 2132 – 2133; Hassan v. Aliyu (2010) 17 NWLR (PT 1223) 547. The Supreme Court, per Adekeye, JSC, in Ajayi v. Adebiyi (2012) LPELR-7811 (SC) restated the guiding elements of limitation of action as follows:
“The yardsticks to determine whether an action is statute-barred are:
a) The date when the cause of action accrued.
b) The date of commencement of the suit as indicated in thewrit of summons.
c) Period of time prescribed to bringing an action to be ascertained from the statute in question.Time begins to run for the purposes of the limitation law from the date the cause of action accrues.?
?It is therefore always necessary when dealing with a limitation of statute, to ascertain the exact date on which the cause of action arose. An action commenced after expiration of the period, within which an action must be
13
brought, as stipulated in a statute of limitation, is not maintainable.The claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such action has elapsed. The claimant would then be left with a bare and empty cause of action which he cannot enforce, for the Court would have no jurisdiction to entertain a statute barred claim; Olagunju v. PHCON (2011) LPELR-2556(SC); Mil. Administrator, Ekiti State v. Aladeyelu (2007) 4-5 S.C.201. Therefore legal proceedings to enforce a cause of action cannot be properly or validly instituted after the expiration of the prescribed limitation period; Ekeogu vs. Aliri (1991) 3 NWLR (Pt. 179) 258;Eboigbe v. NNPC (1994) 5 NWLR (PT 347) 649 at 659; Odubeko v.Fowler (1993) 7 NWLR (Pt. 308) 637; Amadi v. INEC (2012) LPELR-7831 (SC).
Section 1 of the Limitation Law, Cap L4, of the Laws of Cross River State of Nigeria, 2004 provides as follows:
?No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him, or if it first
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accrued to some person through whom he claims, to that person.
It is the pleadings of the Appellant as claimant before the lower Court that will reveal whether the relief submitted to the lower Court for adjudication complied with these provisions.
The Appellant pleaded in paragraph 9 of his Statement of Claim at pages 3-7 of the Record of Appeal that he had agreed to lease part of the land in issue, measuring 100 feet by 50 feet to the Respondents for 99 years commencing from January 1, 1980. The agreed land rent was paid for thirteen years, expiring in 1993. From 1993, no further land rent has been paid by the Respondents. In paragraph 16 thereof, he averred that the rent for the thirteen years having expired without further rent being paid, the Respondents, by their agreement had forfeited their rights to the land in issue, which had now reverted to the Appellant. They had thereafter become trespassers. The basis of the claim that the Respondents were trespassers was therefore because they had failed to pay the land rent since 1993 and it had remained unpaid for one year thereafter.
?The words cause of action simply mean a factual situation, the existence of which entitles
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one person to obtain a remedy against another person. A cause of action consists of every fact that would be necessary for the petitioner to prove, if traversed, in order to support his right to judgment. In defining what may constitute a cause of action, the Supreme Court per Karibi-Whyte, JSC in Bello v. Attorney General, Oyo State (1986) 5 NWLR (Pt. 45) 828 at 876 said:
“I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize 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 ingredients of an enforceable right or claim.”
In Fadare vs. Attorney General of Oyo State (1982) 4 SC (Reprint) 1 at 11, the Supreme Court per Nnamani JSC said:
Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are
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material to be proved to entitle the plaintiff to succeed.”
See also: Nigeria Ports Authority vs. Ajobi (2006) 7 S.C. (PT. 1) 23,(2006) 7 SCNJ 168 at page 174.
Time to institute action began to run for the Appellant from 1994 when the cause of action arose; that is to say, when the rent for thirteen years paid by the Respondents had expired and remained unpaid for one year. Action was however not instituted by the Appellant until July 3, 2009.The action clearly ran afoul of the provisions of Section 1 of the Limitation Law, Cap L4, of the Laws of Cross River State of Nigeria, 2004, and therefore was statute barred.
It is of no moment that the issue of limitation of action as a defence was not pleaded either ab initio or by amendment of pleadings, as provided in Order 17 Rule 6 (2) of the High Court (Civil Procedure) Rules, 2008 of Cross River State. Limitation of action is a matter of law. Parties cannot confer jurisdiction on a Court where the necessary vires is lacking; Obiuweubi v. CBN (supra). In the case of Mrs. Comfort v Almo Gases Nig Ltd (2006) ALL FWLR (Pt.335) 93 at 104 CA, this Court considered a similar situation; and held, per Kekere Ekun, JCA (as she then was),
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that the respondent therein could competently raise the issue of limitation of action for the first time on appeal without first obtaining leave to do so. The matter as was presented to the trial Court was ab initio statute barred. The Appellant had an unenforceable unmaintainable right of action.
This conclusion ought to be the end of this appeal. But being a penultimate Court, it is expedient to also consider the merits of the appeal, in the event that the ultimate Court does not agree with this conclusion. I shall therefore consider the issues raised by the parties.
In Issue No 1, the Appellant contended that he is entitled to the reversion of title to the land leased out to the Respondents in 1980 for the period thirteen years, starting from 1980 to 1993, since the sum of N520.00 which was paid as rent had long expired and the Respondents being in arrears for more than one year and up to sixteen years. In response, the Respondents contended that by virtue of the provisions of Section 1 of the Limitation Law, Cap L4, of the Laws of Cross River State of Nigeria, 2004, this claim cannot be made, the action having been commenced more than ten years after the cause of action
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arose. This issue has been considered above. The cause of action arose by January 1,1994. The action commenced on July 3, 2009 was clearly statute barred and in that event unmaintainable. Issue No 1 is therefore resolved against the Appellant.
In Issue No 2, the Appellants contended that the Respondents are trespassers due to their continuous stay on the land after the expiration of the period covered by the rent of thirteen years they paid and upon their being in arrears for more than one year and even more; and, for unilaterally increasing the expanse of land originally leased out to them. In considering this Issue, it would be necessary to also examine the sole Issue formulated by the Respondents: Was the Appellant entitled to judgment at the trial Court? The trial Court had considered whether the Respondents had actually defaulted in the payment of the reserved annual rent; and whether the Respondents did encroach on the Appellant’s land, which was not originally given to them.
?The Appellant’s case was that after an initial payment of the sum of N520.00 for a period of thirteen years, starting from 1980 to 1993, the Respondents made no further payment and were in arrears
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for more than one year and up to sixteen years. The Respondents however asserted that they paid fully to cover the term of 90 years lease granted to them. Exhibits G, H, J and K were receipts tendered by them to show a total payment of N3,600.00, inclusive of the initial N520.00.See paragraph 8 of the Statement of Defence and Counterclaim at pages 27 – 30 of the Record of Appeal and the written deposition of the 2nd Respondent who testified as DW1, at pages 32-34 of the Record of Appeal. As rightly observed by the learned trial Court, the authenticity of these receipts was not impugned by the Appellant, even under cross examination. The learned trial Judge at page 137 of the Record of Appeal queried:
“In any case, the question may be asked: At what stage did the claimant know or remember that the defendants had defaulted in the payment of rent? The initial payment of N520.00 for 13 years was said to expire on the 1st January,1993. The rent for the year following that was due on the 1st of January, 1994. There is no evidence that he made any demand for either the year’s rent, or the outstanding balance, since he stated that payment for the land was to be completed by the second
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payment. Even when he caused solicitors to write to the Defendants in 2008 (Exhibit c) on the subject of “Trespass to Land of Chief Effanga Bassey Itaken” no mention was made of non-payment for the land he “assigned” to the defendants. In the same 2008, he, by a petition he addressed to the state commissioner of Police against the Defendants (Exhibit E), did not also mention that the defendants were owing (sic) him for the land which, as stated in the petition, “I sold to them”. It took the claimant from January 1993 to July, 2009 (a period of 161/2 years) to remember that the defendants had defaulted in the payment of land rent. It is most incredible. There is no credible evidence or any at all, that the claimant ever demanded for rent from the defendants. I am therefore satisfied and hold that the defendants paid the agreed land rent covering a period of 90 years, and that they are not in default in the payment of the rent.”
Having regard to the evidence that was adduced before the trial Court, I do not see any reason to fault its finding and conclusion in this regard.
?The Illiterates Protection Legislations are in place to protect persons who are illiterates in fact. The
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Supreme Court, per Udo Udoma, JSC (of blessed memory) long made it clear in Lawal v G.B. Ollivant (Nig) Ltd (1972) 3 S.C. 120, (1972) ALL NLR 211 that:
“An illiterate within the meaning of the Illiterate’s Protection Act is a person who is unable to read or write any language, that is, a person who is totally illiterate; and that a person who is unable to read or write the language in which a particular document is written but can read and write in some other language, is not an illiterate within the meaning of the Illiterates’ Protection Act?
See also: Ezeigwe v. Awudu (2008) 5-6 S.C. (PT 11) 23; Anaeze v Anyaso (1993) 5 SCNJ 151.
The Appellant had pleaded and testified that the Respondents took advantage of his illiterate status to have him execute the Lease Agreement dated January 1, 1980, Exhibit A. But under cross examination, he admitted, at page 1017 (117) of the Record of Appeal,that:
“I have never signed a document. I only instruct people to sign on my behalf. I did not sign or endorse Exhibit “A” just shown to me. I instructed the defendants to prepare Exhibit “A” and my children signed it.”
?If his children signed the document on his instruction and direction,
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then he cannot be heard to say anyone took advantage of him. It was not in evidence that his children were also illiterate. The contents of the document were therefore known to them and they acted on behalf of their father and with his consent in signing the Lease Agreement. By his conduct in directing his children to sign the said Lease Agreement, he cannot be heard to plead non est factum. The contents of the said Lease Agreement were not new to him.
The Appellant pleaded that:
“…he is a customary beneficiary of vast area of land,situate at Ikot Effanga Mkpa in Calabar Municipality…”
He tendered a Survey Plan No UNCR/343/79, Exhibit B, made on March 19, 1979 showing a total area of 914.064 square metres. His evidence was that he agreed to lease out part of the land measuring 100 feet by 50 feet but that the Respondents unilaterally expanded the land to 100 feet by 100 feet. The Respondents however pleaded and testified that the dimension of the land was initially 120 feet by 130 feet,including the thoroughfare of the land, but on the day of signing the Agreement, the Appellant insisted and it was manually reduced to 100 feet by 100 feet. They denied that they went
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beyond the extent of their land and the thoroughfare allowed to them as their portion had none.They also averred that the Ikot Effanga Mkpa Village Council found that it was the Appellant who encroached into the land leased to them and asked him to compensate them with land measuring 8 feet by 50 feet. See paragraphs 10 and 11 of the Statement of Defence and Counterclaim at pages 27 – 30 of the Record of Appeal and the written deposition of the 2nd Respondent who testified as DW1, at pages 32-34 of the Record of Appeal.
The learned trial Court held that the Appellant did not sufficiently plead facts and or lead sufficient evidence to support the claim of trespass. The precise area of trespass was not pleaded. There was no Survey Plan showing the area of trespass. Even the letter written by his solicitor to the Respondents, Exhibit C, did not state details of the alleged area of trespass. The primary duty of a plaintiff claiming for trespass is to establish and show clearly the area and boundaries of land for which the claim is made. This is simply because the parties and any one claiming through them ought to know the exact area affected by the order. No Court can make a
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finding of trespass in respect of a vague undefined area. As succinctly put by the Supreme Court in Babatola v Aladejana(2001) 6 SC 124, (2001) 12 NWLR (pt 728) 597:
“It is without doubt that where a claim is based on trespass and injunction, the area of the disputed land must be stated with clarity in order to identify the land trespassed upon.”
See also: Adelaja v Alade (1999) 4 SC (PT 1) 81; Adeyefu v Bamgboye (2013) LPELR-19891 (SC); Adeyemo v Adeyemo (2010) LPELR-3621(CA); Abdullahi v Hedima (2010) LPELR-3556 (CA). The learned trial Judge therefore adeptly evaluated the evidence adduced and I see no reason to infer with his conclusion. Issue No 2 formulated by theAppellant and the sole issue formulated by the Respondents are resolved against the Appellant.
I find no merit in this appeal. The appeal fails and is dismissed. The decision of Hon Justice O. Ogar, J., delivered on September 28, 2012 in Suit No C/255/2009 is hereby affirmed.
Parties shall bear their costs.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I have read the judgment just delivered by my learned brother Onyekachi Aja Otisi, JCA. I adopt the reasoning and conclusion reached therein
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as mine and accordingly dismiss the appeal for lacking in merits.
PAUL OBI ELECHI, J.C.A.: I have read in draft the Judgment just delivered by my Learned brother Onyekachi Aja Otisi, JCA.
My Lord has adequately considered both the Preliminary Objection raised and in the main appeal also considered the issues raised on their merit.
?I adopt them as mine and hold same in dismissing the appeal as well. I also abide by the Order as to the parties to bear their costs.
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Appearances
M. N. I. Emori,, Esq.For Appellant
AND
Ekpenyong Ndiyo, Esq.For Respondent
