ABDULLAHI ABBA MAMMAN & ANOR v. ALH. KAKA MALLAM & ANOR
(2018)LCN/12317(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of December, 2018
CA/J/318/2017
RATIO
ACTION: WHERE A PARTY LOOSES THE TO ENFORCE HIS CAUSE OF ACTION
“The general rule is that a party may have a cause of action but looses the right to enforce that cause of action by judicial process because the period of time laid down by the limitation law for bringing such actions elapsed. In order words, where the law prescribed a period for instituting an action, proceedings cannot be instituted after the prescribed period and where action is instituted it will fail due to effluxion of time and inaction of the party and the action will be declared statute barred. SAVANNAH BANK NIG LTD V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD & ANOR (1987) 1 NWLR (PT. 49) 212; OBIEFUNA V. OKOYE (1961) 1 ALL NLR 357; SANDA V. KUKAWA LG (1991) 2 NWLR (PT. 174) AT 390.” PER UCHECHUKWU ONYEMENAM, J.C.A.
COURT AND PROCEDURE: WHETHER THE DECISION OF THE COURT IS BINDING ON PARTIES
“It is pertinent to start by stating the position of the law, that a decision of a Court of competent jurisdiction whether rightly or wrongly decided is binding on the parties and all and sundry, unless and until it is set aside on appeal. While it subsists the same must be obeyed. POPOOLA V. BABATUNDE (2012) 7 NWLR (PT. 1299) 302; S.P.D.C (NIG) LTD. V. X.M. FED LTD. (2006) 16 NWLR (PT. 1004) 189; OSHIOMHOLE V. FGN (2005) 1 NWLR (PT. 907) 414.” PER UCHECHUKWU ONYEMENAM, J.C.A.
COURT AND PROCEDURE: WHETHER THE COURT HAS JURISDICTION TO GRANT RELIEF
“The law is that a Court has jurisdiction to grant relief which though not expressly sought, but is ancillary to and would give efficacy to the reliefs sought from the Court. Even as the law is trite that a Court of justice should not give to a party what he has not claimed, but where the relief or order appears incidental and is necessary for a proper and just determination of the cause, such an order could be made or awarded though not claimed. OYE V. GOVT OF OYO STATE (1992) 7 NWLR (PT. 306) 437; AKAPO V. HAKEEM HABEEB (1992) 2 NWLR (PT. 226) 297; OKOBULE V. OYAGBULE (1990) 4 NWLR (PT. 147) 725.” PER UCHECHUKWU ONYEMENAM, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
1. ABDULLAHI ABBA MAMMAN
2. ALHAJI IBRAHIM ABBA MAMMAN
(Suing for themselves and as representatives of the family of late Abba Mamman) Appellant(s)
AND
1. ALH. KAKA MALLAM
2. BUKAR HASSAN Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment):
This appeal emanates from the decision of the High Court of Borno State sitting in Maiduguri, delivered on 28th February, 2017 in SUIT NO: BOHC/MG/CV/42/2016 by Hon. H. Y. Mshelia J. wherein he dismissed the claimants’ case in its entirety.
By way of a Writ of Summons dated and filed on 23rd June, 2016, the Appellants as Claimants sued the Respondents as Defendants before the trial Court claiming for the reliefs contained in paragraph 17 of their Statement of Claim accompanying the Writ of Summons. They claimed against the Respondents jointly and severally for the following reliefs, thus:
(a) A declaration that the claimants are the owners of and have Right of Occupancy over the shops numbered 214, 216 and 218 lying, being and situate at Modu Makaranta Street Zango Ward, Maiduguri to the exclusion of the Defendants and/or anyone whosoever, claiming title through them having inherited them from their late father who in term acquired title by way of purchase.
(b) An injunction restraining the Defendants, their agents, privies, servants, workers or whosoever claiming title through them or acting on their instructions from occupying the shops.
(c) An order that the defendants vacate the 3 shops immediately as their continued occupation constitute trespass onto the landed properties of the claimants.
(d) Rents of the shops from 1992 to date of filing this suit and further rents from date of judgment up to the date the defendants deliver vacate possession of the shops at rate N150, 000 per annum.
(e) General damages, such further reliefs and the cost of the suit as the Court may find appropriate to order.
The dispute is on the ownership of three shops, numbered 214, 216 and 218 lying and situate at Modu Makaranta Street, Zango Ward, Maiduguri, Borno State. The Appellants contended that the shops originally belonged to their father (Late Alh. Abba Mamman) who bought them from some Igbo men in 1966 – 1967 through the 1st Respondent who served as his agent in the transaction. The shops were in the custody of the 1st Respondent as a caretaker from that moment till sometimes in 1991 when the Appellant’s father informed the 1st respondent of his intention to dispose of them.
The 1st Respondent indicated his interest to buy the shops at the cost of N100,000.00; the price, the Appellants’ father said he would think about. Instead of putting a counter-offer to negotiate the price, the Appellants’ father sold the shops to one Alh. Gutti (now late) at the cost of N170,000.00. Aggrieved by the said sale to the late Gutti, the 1st Respondent sued the Appellants’ late father at the Borno State Upper Area Court No. 1 Maiduguri, challenging the sale and prayed the Court to set aside the sale to which the Court granted in its judgment of 31st December, 1991. The judgment of the Upper Area Court was appealed against to the High Court of Maiduguri by late Alh. Gutti, as an interested party. The said appeal went up to the Supreme Court as appeal No. SC/54/2003; where it was struck out on 14th December, 2010 for being incompetent. Upon the setting aside of the sale to late Alh. Gutti by the Upper Area Court, the 1st Respondent was given the title of the shops after paying the sum of N170, 000.00 as purchase price into the Registry of the Court in 1994. The 1st Respondent later sold the shops to the 2nd Respondent who upon taking possession renovated the shops and is still occupying the shops and running his business thereat.
It was also the case of the Appellant that by virtue of the judgment of the Upper Area Court setting aside the sale without more, title in the shops reverted back to their late father and subsequently to them as heirs. They maintained that the said judgment did not give the 1st Respondent the right to pay into the Court the alleged sum of N170, 000.00 to acquire title which he could pass onto the 2nd Respondent.
The case of the Respondents is that the 1st Respondent was originally the owner of the shops before he sold them to the Appellants’ late father on the condition that whenever their late father wanted to sale the shops he must give the 1st Respondent right of first refusal before it can be sold out to anybody. That based on the said agreement the Appellants’ father bought the properties and gave the 1st Respondent one of the shops to stay rent-free, while he also held the other 2 shops as a caretaker for about 20 years. When the Appellants father decided to sale the shops, he informed the 1st Respondent first as earlier agreed and the 1st Respondent offered to buy the shops at N100,000.00, the price Appellants’ father said the will think about.
That while waiting for the response, the 1st Respondent learnt that the shops were already sold to one Alh. Gutti (late) at the cost of N170, 000.00. Offended with the sale, the 1st Respondent sued the Appellants’ father at the Upper Area Court No. 1 Maiduguri in Suit No. 89/91 seeking to set aside the sale to late Alh. Gutti which the Court granted and ordered the 1st Respondent to pay the sum of N180, 000.00 for the 3 shops which he paid through the Registry of the Court with the knowledge of the Appellants’ father, who later appealed against the said judgment at the Borno State High Court in Suit No. BOM/107A/91. The suit was struck out for want of jurisdiction. Dissatisfied again, the Appellants’ father instituted a fresh case in Suit No. M/53/94 which was also struck out for lack of jurisdiction.
He later filed another matter at the Rent Tribunal, Maiduguri in Suit No. MRT/3332/92 where it was equally struck out based on the judgment of the Upper Area Court in Suit No. 89/91. Alh. Gutti later appealed against the judgment in suit No. 89/91 through the inspector of Area Court to the High Court which competence was challenged up to the Supreme Court where the main appeal before the High Court was struck out by the apex Court. That despite the unsuccessful legal battles by their parents, the children later took up the fight when one Bashir the elder son of Late Alh. Gutti filed another Suit with No. BOHC/MG/CV/68/14 where the Court dismissed the main claims for declaration of title and ordered that the sum of N170, 000.00 only be refunded to the claimant.
It was further the case of the Respondent that it was after the failure of the son of Late Alh. Gutti to secure judgment at the High Court in 2015, that the Appellants then took the battle further by filing another suit at the Rent Tribunal in Suit No. MRT/133/2016. This was also struck out for being incompetent. Dissatisfied again, they filed this matter in suit No. BOHC/MG/CV/42/2016, the subject of this appeal.
At the trial, the Appellants testified for themselves and four (4) documents were tendered from the bar which were admitted in evidence and marked as Exhibits ‘A’, ‘A1′,’B’ and ‘C’, without any objection. Exhibits ‘A’ and ‘A1’ are the Hausa and English versions of the Record of proceedings of the Borno Upper Area Court No. 1, Maiduguri in Suit No. 89/91; Exhibit ‘B’ is the judgment of the Supreme Court in appeal No. SC/154/2003, while Exhibit ‘C’ is the enrolled order of the High Court No. 6 Maiduguri in Suit No. BOHC/MG/CV/68/2014. The Appellants then closed their case.
On the other part, the 1st Respondent testified as a sole witness where 3 documents were tendered from the bar and were admitted in evidence without any objection and were marked as Exhibits D, E & F. Exhibit ‘D’ is the judgment of High Court No. 6 in Suit No. BOHC/MG/CV/68/14, while the Ruling of Maiduguri Rent Tribunal in Suit No. MRT/3332/92 is marked as Exhibit ‘E’ and finally the judgment of the Supreme Court in Appeal No. SC/154/2003 is marked as Exhibit ‘F’. The Respondents then closed their case. The parties filed and exchanged their respective final written addresses, while the Defendants/Respondents’ Counsel adopted their final written address, the Court deemed the Appellants’ final address adopted, their Counsel being absent when the matter came up for adoption of final addresses on 15th February, 2017; wherein the matter was reserved for judgment to be delivered on 28th February, 2017.
In its considered judgment, delivered on the said 28th February, 2017, the trial Court dismissed the Appellants? case in its entirety for lacking in merit.
Dissatisfied and aggrieved with the judgment, the Appellants now appealed to this Court via a notice of Appeal dated 5th May, 2017 and filed on 22nd May, 2017 containing 4 grounds of appeal. In compliance with the rules of this Court, the parties filed and exchanged their respective briefs of arguments. On 1st November, 2018 when the appeal came up for hearing, Mr. Z. M Umar holding the brief of T. Sambo Esq. adopted the Appellants’ brief in urging the Court to allow the appeal. While D. A. Adudu Esq., holding the brief of H. Waziri Esq. adopted the Respondents’ brief and relied on same in urging the Court to dismiss the appeal.
In the Appellants’ brief dated 25th September, 2017 and filed on 5th October, 2017, but deemed properly filed and served on 22nd January, 2018; Mr. Sambo who settled the brief distilled 3 issues for the determination of the appeal. The 3 issues are as follows:
1. Whether the trial Court did not misdirect (sic) itself in construing the documentary evidence adduced/placed before it and thereby robbed itself of proper evaluation of evidence.
2. Whether claimants’ right and cause of action were extinguished due to affluxion of time, inaction by their Late father and as well as Exhibits A1 and E (ground 4).
3. Whether from the pleadings and the evidence led at the trial, the Appellants’ claim for title, injunction, vacant possession, rent and damages ought to succeed.
Meanwhile, in the Respondents’ brief dated 8th February, 2018 and filed on 9th February, 2018, Mr. H. Waziri who prepared the brief adopted the issues raised by the Appellants’ Counsel, but only argued issues 1 and 2 leaving issue No. 3. He contended that the said issue No. 3 is not based on any ground of appeal and as such should be discountenanced.
I have carefully examined the 4 Grounds of Appeal as contained in the Notice of Appeal herein and their particulars vis-a-vis the 3 issues raised by the Appellants’ Counsel, it is evidently clear as rightly submitted by the Respondents’ Counsel that out of the 4 grounds, the Appellants’ Counsel raised only 3 issues 2 of which were distilled from 3 grounds. Issue No. 1 was distilled from grounds 1 and 2, while issue No. 2 was distilled from ground 4. Ground 3 is without any issue, while issue No. 3 was not distilled from any ground at all. The law is settled that any ground of appeal without an issue raised there from is deemed abandoned while any issue, that does not emanate from a competent ground of appeal or any ground at all as well as the argument canvassed in support of the said issue are deemed abandoned and same goes to no issue. See: P.D.P V. INEC (2012) 14 NWLR (PT. 1319), 176; OMO V. JSC DELTA STATE (2000) 12 NWLR (PT. 682) PG. 269.
The Appellants’ Ground 3 having no issue distilled there from as well as the Appellants? issue No. 3 having not been distilled from any ground of appeal are deemed abandoned and having been considered abandoned are hereby struck out with all the arguments in support of the said issue.
Having struck out issue No. 3, we are now left with issues 1 and 2 to deal with. The appeal being the discontent of the Appellants and the Respondents’ Counsel having adopted the issues raised by the Appellants’ Counsel, I too have adopted the 2 issues as they are. I shall determine the appeal based on the 2 issues seriatim.
SUBMISSIONS ON ISSUE NO. 1
Whether the trial Court did not misdirect itself in construing the documentary evidence adduced/placed before it and thereby robbed itself of proper evaluation of evidence?
Mr. Sambo, the learned Counsel for the Appellants agreed with the trial Court and submitted on this issue that out of the 7 documents admitted in evidence at trial, Exhibits ‘A1’ and ‘E’ are the only relevant documents in resolving the issue before the Court. He referred to page 126 lines 16 – 20, page 127 lines 10 ? 11, lines 17 – 23 & line 28; page 128, lines 1 – 4 of the records of appeal to contend that; Exhibit A1 if properly construed, does not contain any order or directives that the shops be sold to the 1st Respondent or any other person for the sum of N180, 000.00 or any amount at all. He contended that judgment of Courts like any legislation must be given their literal meanings and that the only proper construction and better interpretation of Exhibit A1 is that as the sale was set aside, then title in the shops reverted back to the Appellants’ late father and to them as his heirs and that forcing the Appellants to sale their property at a particular price to the Respondents by the trial Court amounts to miscarriage of justice. He submitted that the decision of the trial Court is not based on proper evaluation of evidence, but based on intuition, referring to page 128 lines 5 – 20 of the records of Appeal. He cited: CHIEF J. A. ADENUGBA V. WOLI OKELOLA (2008) ALL FWLR (PT. 398) 292; ANYANWU V. UZOWUAKA (2009) 7 MJSC page 1; to say that his Court can interfere with the trial Court?s findings same being perverse and to re-evaluate the evidence before it. He urged the Court to do so and resolve the issue in favour of the Appellants.
Responding on this issue, Mr. Waziri learned counsel for the Respondents submitted that the trial Court did not misdirect itself in the construction of the documents placed before it. He went ahead to list out all the 7 documents tendered by the parties and conceded that Exhibits ‘A’, ‘A1’ and ‘E’ are the relevant documents for the determination of the matter as stated by the trial Court at page 127 lines 10 – 23 of the records in agreeing with the reasoning of the trial Court on the construction of the said Exhibits that the purpose of going to the Upper Area Court by the 1st Respondent was to have the sale of the 3 shops to Alh. Gutti set aside so as to enable him pay for the shops, because he was interested in the shops in the 1st place. He admitted that although there was no express order in the said Exhibits selling the shops to the 1st Respondent, but contended that there was no need for even consequential orders, because the sale flows naturally from the judgment and that, that was exactly what the 1st Respondent wanted from the Court to set aside the sale to enable him pay for it. This was just what he did immediately the judgment was given, wherein he paid the sum of N180,000.00 as the purchase price.
The learned counsel argued that since the Court sold the shops to the 1st Respondent on 10th December, 1992 as stated in Exhibit E, the Appellants’ father did not appeal against the sale and therefore indolent in the matter. He submitted that the effect of the Order of sale by the Court whether rightly or wrongly stands, as no appeal was made against it, nor was it set aside on appeal. He argued that the decision is binding on the parties, their privies and even on the Court itself. He cited: WITT & BUSH LTD. V. DALE SYSTEM PLC (2007) 5 SCNJ 382; BOINDE AYUYA VS CHIEF NAGHAM YONRIN (2011) 4 SC (PT. 11) 1.
The learned Counsel finally submitted that the hands of this Court are tied as there is no appeal against the Order of sale, making the appeal a mere academic exercise as the judgment in Exhibit A1, whether rightly or wrongly had divested the Appellants’ father of the title in the shops. He urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION OF ISSUE NO. 1
It is pertinent to start by stating the position of the law, that a decision of a Court of competent jurisdiction whether rightly or wrongly decided is binding on the parties and all and sundry, unless and until it is set aside on appeal. While it subsists the same must be obeyed. POPOOLA V. BABATUNDE (2012) 7 NWLR (PT. 1299) 302; S.P.D.C (NIG) LTD. V. X.M. FED LTD. (2006) 16 NWLR (PT. 1004) 189; OSHIOMHOLE V. FGN (2005) 1 NWLR (PT. 907) 414.
The issue here is the trial Court’s construction of Exhibit A1. The said Exhibit A1 is the record of proceedings and the judgment of the Borno Upper Area Court No. 1, Maiduguri in suit No. 89/91 wherein the 1st Respondent sought the Court to set aside the Sale made by the Appellants’ father to a third party, basically based on the 1st Respondent’s right of first refusal. It will be necessary to reproduce an excerpt of the trial Court’s judgment reflecting the construction of the said Exhibit A1 as made by the learned trial Judge at page 127 of the records, wherein it stated thus:
“As rightly argued by the Claimants’ Counsel, the answer to the issue for determination is in Exhibit A1. What is the import of Exhibit A1? A careful study of the judgment as contained in Exhibit A1 clearly shows that the Claimants’ father as Defendant admitted the claim of the 1st Defendant.
The claim was to the effect that there was an agreement giving the 1st Defendant right to first refusal over the shops whenever the Claimants’ father decided to sell the shops. The judgment upheld the right of the first refusal and set aside the sale to the third party. The purposive understanding of the judgment is that the sale to the third party was set aside to enable the 1st Defendant purchase the shops and no more. To hold otherwise, is to whittle down the import of the judgment of a Court of law, on too (sic) technical ground. The argument of Claimants’ Counsel that there is no express order selling the shops to the 1st Defendant cannot hold water in the circumstance of this case. It is also in evidence that the Borno Upper Area Court wrote to Maiduguri Rent Tribunal informing it of the sale of the shops to the 1st Defendant pursuant to the judgment contained in Exhibit A and A1. This happened in 1994 and the Claimants’ father did nothing to challenge that. Rightly or wrongly, the Claimants cannot challenge this now. The judgment in Exhibit A1 has effectively directed the Claimants? father of interest in 1991.
The only issue for determination in this case is resolved against the claimants in favour of the Defendants.”
On this, the Appellants’ Counsel faulted the trial Court contending that the said Exhibit A1 if properly construed does not contain any order directing that the shops be sold to the 1st Respondent at any price at all and that doing so amounted to forcing the Appellants’ father to sell his property to the 1st Respondent which in turn amounts to miscarriage of justice, as judgments of Courts like other legislations must be given their literal meanings and that the trial Court having made the above pronouncement, its findings is not based on proper evaluation of evidence.
I agree with the submission of the learned Counsel for the Appellants that there is no express order or directive in the said Exhibit A1 selling the shops to the 1st Respondent at any price, but it can be inferred as rightly stated by the learned trial Judge in its judgment as can be seen from the above quoted excerpt. From the facts and evidence before the Court, the main purpose of instituting the action that gave birth to Exhibit A1 was to set aside the sale of the shops to the 3rd party to enable the 1st Respondent exercise his right of first refusal which right, the Appellants’ father admitted.
The law is that a Court has jurisdiction to grant relief which though not expressly sought, but is ancillary to and would give efficacy to the reliefs sought from the Court. Even as the law is trite that a Court of justice should not give to a party what he has not claimed, but where the relief or order appears incidental and is necessary for a proper and just determination of the cause, such an order could be made or awarded though not claimed. OYE V. GOVT OF OYO STATE (1992) 7 NWLR (PT. 306) 437; AKAPO V. HAKEEM HABEEB (1992) 2 NWLR (PT. 226) 297; OKOBULE V. OYAGBULE (1990) 4 NWLR (PT. 147) 725.
In the instant case, it is evident from Exhibit A1 that even though the 1st Respondent did not expressly seek for the sale of the shops to himself, the fact that he had in the course of stating his grievances before the Upper Area Court clearly expressed his desire and interest in buying the shops and also expressly sought to set aside the sale by the Appellants’ father to the 3rd party.
It was evident that the sale of the shops to the 1st Respondent by the Court was ancillary to the relief sought from the Court to wit: setting aside the sale by the Appellants’ father. Having ordered the setting aside of the sale; the subsequent sale to the 1st respondent was necessary for a proper and just determination of the cause before the Upper Area Court.
Considering the entire circumstances leading to the institution of the case before the Upper Area Court; its proceedings and the judgment as well as its letter to the Rent Tribunal Maiduguri referred to in Exhibit ?E?; the trial Court cannot be faulted in its findings that the import of Exhibit A1 is to the effect that the sale to the 3rd party was set aside to enable the 1st Respondent purchase the shop which he did since 1991 by depositing the sum of N180,000.00 as purchase price with the Registry of the Upper Area Court.
This to my mind does not amount to putting extraneous things into Exhibit A1 or imputing what the judgment in Exhibit A1 does not intend or contain, but rather can best be described as a painstaking effort in fishing out the intended consequential Orders in the said Exhibit A1 by the learned trial Judge. This is so because, a consequential Order is an Order founded on the claim of the successful party. In other words, a consequential Order is one which is not merely incidental to a decision properly made, but one which is merely to give effect to that decision. LIMAN V. MOHAMMED (1999) 9 NWLR 113; AWONIYI & ORS V. AMORC (2000) 5 WRN 1 AT 13; (2000) 10 NWLR (PT. 676) 522 AT 539.
In the instant case, the letter the Upper Area Court referred to in Exhibit ‘E’ indicated that a consequential Order was made by the said Area Court selling the shops to the 1st Respondent, even as the Order was not obvious in Exhibit A1. The said Order is not merely incidental to the decision in Exhibit A1, but one necessarily flowing directly and naturally from and inevitably consequent upon it. This is so, because it has given effect to the judgment already given in Exhibit A1, it is not the granting of a fresh and unclaimed or unproven relief. The trial Court’s construction of Exhibit A1 is not and cannot be regarded as misdirecting itself by imputing what the judgment in Exhibit A1 does not envisage.
Importantly, it must be noted that the Upper Area Court an inferior Court should not be expected to adhere strictly to the rules of drawing up an order like a superior Court. Having written the letter to the Rent Tribunal to say the 1st Respondent had by the order of the Court bought and paid the purchase price into the Court’s registry shows that was invariably the order that flowed from the decision of that Court. Whether the Court was right or wrong would be for an appellate Court to decide on appeal against the judgment Exhibit – A1 and not just a mere challenge of the ensuing letter.
In the circumstance, I disagree with the submission of the learned counsel for the Appellants that the trial Court’s decision was based on intuition and therefore perverse. Rather, I hold the view that the decision of the learned trial Judge was rightly arrived at after a proper evaluation and well thought out construction of Exhibit A1 and ‘E’ and therefore not perverse. The trial Court having properly evaluated the evidence before it, before arriving at its decision, this Court therefore has no business interfering with its findings and I so hold. This issue is resolved in favour of the Respondents.
SUBMISSIONS ON ISSUE NO. 2
Whether claimants’ right and cause of action were extinguished due to effluxion of time, inaction by their Late father, as well as Exhibits A1 and E.
Mr. Sambo, the learned counsel for the Appellants referred to pages 127 lines 26 and page 128 lines 1 – 20 of the records to say that the sum effect of the trial Court’s judgment was that the claimants’ right of action and cause of action were extinguished by operation of time considering the decision on Exhibit ‘A’ and the inactivity of their late predecessor in title. He contended that Exhibit A1 cannot operate as bar to deny the Appellants the right of action, particularly as the trial Court observed at page 126 lines 12 – 13 that the case was not caught up by the doctrine of estoppel as well as the position in Exhibit D. He argued that Exhibit E which is more of advisory and which struck out the suit, but did not dismiss the same cannot as well operate as estoppel. The learned counsel referred to all the Exhibits which were obtained at different times ranging from 2010 to 2014 and stated that all these show that neither the Appellants, nor their ancestor were indolent, rather were all busy pursuing their rights.
He submitted that the trial Court was wrong to have held at page 128 lines 5 – 20 of the records that the Appellants’ father did not take any step to recover the shops and that there has to be an end to litigations. It was his further submission that there are causes of actions that survives the death of a party and that dispute over title to land is one of such as there is no limitation law that prescribes time within which heirs can validly inherit or pursue such right of inheritance. He urged the Court to hold that the trial Court having found that the case was not caught by the doctrine of res-judicata cannot turn round to hold that the Appellants cannot re-open the case after the death of their father and urged the Court to resolve the issue in favour of the Appellants, allow the appeal and set aside the judgment of the trial Court and enter judgment for the Appellants as per their reliefs claimed with costs.
In his response, the learned counsel for the Respondents contended that by Exhibit ‘A1’ and ‘E’, the learned trial Judge was right that the Appellants’ right and cause of action were extinguished by effluxion of time as a result of their inaction to appeal against the sale of the shops to the 1st Respondent and that based on Exhibit ‘C’ the Appellants’ father not only failed to appeal against the sale, but also admitted that the N180,000.00 paid by the 1st Respondent was still with the Court, but still chose to do nothing. The learned counsel further stated that all the instances of legal battle between the Appellants’ father, the 1st Respondent and the late Alh. Gutti from 1992 when the shops were sold to the 1st Respondent, to the case in Exhibit ‘E’ up till the institution of the suit No. BOHC/MG/CV/68/14 where it was held on 30th September, 2015 that the Appellants’ father had legally lost the capacity to fulfill the bargain with Alh. Gutti that in all of these instances the Appellants’ father did not find it necessary to appeal against the sale to the 1st Respondent and now he is no more.
He submitted that the combined effect of Exhibit A1 is that the Appellants’ father is divested of title so long as there is no order of the superior Court on appeal setting aside the sale made in 1992.
The learned counsel argued that the position of the learned trial Judge at page 128 lines 5 – 18 capitalized on by the Appellants’ counsel is more or less an orbiter dictum, not the ratio, as same has no effect on the judgment and urged the Court to resolve the issues in favour of the Respondents, dismiss the appeal in its entirety and affirm the judgment of the trial Court.
RESOLUTION OF THE ISSUE NO. 2
The general rule is that a party may have a cause of action but looses the right to enforce that cause of action by judicial process because the period of time laid down by the limitation law for bringing such actions elapsed. In order words, where the law prescribed a period for instituting an action, proceedings cannot be instituted after the prescribed period and where action is instituted it will fail due to effluxion of time and inaction of the party and the action will be declared statute barred. SAVANNAH BANK NIG LTD V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD & ANOR (1987) 1 NWLR (PT. 49) 212; OBIEFUNA V. OKOYE (1961) 1 ALL NLR 357; SANDA V. KUKAWA LG (1991) 2 NWLR (PT. 174) AT 390.
In the instant case, I totally agree with the submission of the learned counsel for the Appellants that there are causes of actions that survives the death of a party and land dispute is one of such causes and there is no limitation law that prescribes time within which heirs such as the Appellants herein can validly inherit or pursue their right of inheritance. I also agree with the learned counsel for the Appellants’ submission that the learned trial Judge was right that their action before the trial Court was not caught by the doctrine of issue estopel.
From the circumstances of the case at hand and in view of the decision of the trial Court, the issue is not just whether the Appellants’ cause of action had elapsed due to effluxion of time or inaction of their late father to recover the shops. Rather, the issue is whether the judgment in Exhibit A1 had vested title on the 1st Respondent; and the effect of the inaction of the Appellants’ father to appeal against the said Exhibit A1 for such a long time before his death, and also, whether the Appellants are now barred to re-open the case in a fresh suit, such as the one at hand.
I have stated earlier in this judgment that a decision of a competent Court of law is presumed to be correct and accepted and therefore binding on all the parties, until it is set aside by an appellate Court. Accordingly, while the said decision/judgment subsists the same must be obeyed. S.P.D.C. (NIG) LTD. V. X.M. LTD (supra). In the instant case, the Appellants’ father who was a party in the case before the Upper Area Court No. 1 Maiduguri was alive when the judgment in Exhibit A1 was given on 31st December, 1991 wherein, 30 was days given for any one aggrieved with the said judgment to appeal. The Appellants’ father did not take any serious step to appeal against the order setting aside the sale of the shops to the 3rd Party or the Consequential Order selling the shops to the 1st Respondent, instead, when his appeal was struck out he resorted to filing fresh actions.
In the circumstance, the trial Court was right that the Appellants’ father having not successfully appealed against the judgment in Exhibit A1, within the time given during his life time, the judgment therefore subsists and the parties are bound by it including the Appellants who also did not appeal against it. For this, the Appellants lack the locus to institute the present case as it stands. The law is that appeal against the decision of Upper Area Court lies to either Sharia Court of Appeal or the High Court and it must be within the prescribed period. UMARU BABAI V. GALDIMA YADA & ORS SLRN VOL. 1 1989.
The Appellants having not appealed against the sale to the 1st Respondent, the judgment in Exhibit A1 whether right or wrong still subsists and therefore binding on all and sundry. In view of the foregoing, I hold that Exhibit A1 had divested the Appellants’ father of interest in the shops and vested same on the 1st Respondent as rightly held by the learned trial Judge. It must be stressed here that neither Exhibit A1 nor Exhibit ‘E’ operate to deny the Appellants their right of action, because none of the two decisions serves as estopel, rather, the inaction of the Appellants’ father as well as the Appellants after him and the effluxion of time has made Exhibit A1 a barrier for the Appellants to institute fresh action as the title in the shops legally vests on the Respondents as rightly observed by the learned trial Judge.
In the circumstances, I hold that the law does not prohibit the Appellants from pursuing their inheritance as legal heirs of their late father, but that right cannot be achieved through the institution of a fresh action as wrongly opined by the Rent Tribunal Maiduguri in Exhibit ‘E’ rather, by appealing against the sale of the shops to the 1st Respondent by the Upper Area Court via Exhibit A1. Now that the Appellants failed to appeal on time, whether they can now appeal after more than 20 years is a different issue. The judgment in Exhibit A1 having been given since 1991 has since been foreclosed for appeal. The Appellants’ right to appeal against Exhibit A1 had elapsed since 3rd December, 2011, 20 years from the date of the judgment.
From the foregoing, I resolve issue No. 2 in favour of the Respondents.
Having found that the judgment in Exhibit A1 still subsists and neither the Appellants nor their late father appealed against same, the Appellants and all and sundry are bound by it and the Appellants are now foreclosed from appealing against it having slept over their right to appeal for more than 20 years. This appeal as it stands has no merits, it has failed and the same is accordingly dismissed.
For all I have said above, I affirm the decision of the Borno State High Court in Suit No. BOHC/MG/CV/42/16 delivered on 28th February, 2017 by H. Y. Mshelia, J.
I make no order as to cost.
TANI YUSUF HASSAN, J.C.A.: I agree
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I was privileged to have read in draft the judgment by my learned brother UCHECHUKWU ONYEMENAM, JCA. just delivered and with which I am in total agreement with both the reasons advanced and the conclusion that this appeal is devoid of any scintilla of merit and deserves an order of dismissal.
I also dismiss the Appeal, and I abide by the consequential orders contained therein.
Appearances:
Z.M. Umar, Esq. holding the brief of T. Sambo, Esq.For Appellant(s)
D.A. Adudu, Esq. holding the brief of H. WaziriFor Respondent(s)
