AKUSAM v. SUNDAY
(2022)LCN/16169(CA)
In the Court of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, September 21, 2022
CA/C/58/2018
Before Our Lordships:
Raphael Chikwe Agbo Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
Between
CHIEF JOSEPH AKUSAM APPELANT(S)
And
MADAM REGINA SUNDAY RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUE FOR DETERMINATION IN AN APPEAL MUST BE PREDICATED ON A GROUNDS OF APPEAL
It is settled that an issue for determination in an appeal must be predicated on a ground or grounds of appeal, which in turn must be predicated on the ratio decidendi of the decision appealed against where a ground of appeal or an issue for determination does not meet this requirement; it is liable to be struck out. See Egbe Vs Alhaji (1990) 1 NWLR (Pt 128) 546, Fasuyi Vs P.D.P. (2018) 7 NWLR (Pt 1619) 426 and A.P.C. Vs E.S.I.E.C (2021) 16 NWLR (Pt 1801) 1 at 42. PER SHUAIBU, J.C.A.
DEFINITION OF A CAUSE OF ACTION
In deciding whether or not an action is caught by a statute of limitation, one has to examine two factors viz:
(a) Is there a cause of action?
(b) When does the cause of action arise?
A cause of action is defined in Black’s Law Dictionary, Ninth Edition to mean a group of operative facts giving rise to one or more bases for suing, a factual situation that entitles one to obtain a remedy in Court from another person.
In Egbe Vs Adefarasin (1987) 1 NWLR (Pt 47) 1 at page 20 paragraphs D-E, Oputa, JSC said:
“Now let us examine the meaning of cause of action. It is admitting an expression that defies precise definition. But, it can safely be defined as establishing or giving rise to a right of action. It is the factual situation which gives a person a right to judicial relief”
Also in Akilu Vs Fawehinmi No. 2 (1989) 2 NWLR (Pt 108) 122, the apex Court defined a cause of action to mean “every fact which is material to be proved to entitled the plaintiff to succeed or all those things necessary to give a right to relief in law or equity”. PER SHUAIBU, J.C.A.
THE POSITION OF THE LAW WHERE THE JURISDICTION OF A COURT TO HEAR A MATTER IS UNDERMINED
The foregoing notwithstanding, I will proceed to determine the remaining issues to obviate the need to remit the appeal back by the penultimate Court should the need arises. The law is that where the jurisdiction of a Court to hear a matter is undermined, the order it makes is plain. It is one of striking out. However, an intermediate Court has a duty to pronounce on all issues before it.
In Katto Vs CBN (1991) LPELR-1678 (SC), Akpata, JSC at Pp 32 paras B said:
“Where a trial Court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of appeal thinks the trial Court lacked jurisdiction, the said intermediate Court should in the alternative resolve the complaints in the appeal unless both counsel, particularly respondent’s counsel, concede that the trial Court lacked jurisdiction in the matter. While the Supreme Court, being the final Court of appeal, can afford not to pronounce on other issues placed before it where it finds that the trial Court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised on appeal. It should pronounce on them.” PER SHUAIBU, J.C.A.
FACTORS TO BE SATISFIED TO SUCCEED IN A CLAIM FOR DECLARATION OF TITLE TO LAND
The law is well settled that, to succeed in a claim for a declaration of title to land, the Court must be satisfied as to:
(i) the precise nature of the title claimed that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise, and
(ii) evidence establishing title of the nature claimed. See Emeguara Vs Nwaimo & Ors 14 WACA 347.
Similarly, it is trite law that a plaintiff when claiming a declaration of title to land must succeed on the strength of his own case and not on the weakness of the defendant’s case. What it means, if this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant. However, this broad several principles of law does not naturally apply where the defendant itself lends support to that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. See Adesanya Vs Aderonmu (2000) 6. SC (pt 11) 18 at 25. PER SHUAIBU, J.C.A.
FACTOR TO BE SATISFIED BY THE CLAIMANT BEFORE A DECLARATION OF TITLE TO LAND IS GIVEN
The law is also settled that before a declaration of title to land is given, the first duty of the claimant is to establish, quite clearly, the area of land to which his claim relates. Thus, the boundaries of the land to which the claim relates must be ascertained with a degree of precision and certainty the test being whether a surveyor can from the record of proceedings produce a plan showing accurately the piece of land to which the decree of title has been given. See Makanjuola Vs Balogun (1989) 3 NWLR (Pt 108) 122.
In the same vein, an order of injunction cannot be made in dispute of an area of land whose boundaries are not properly identified. By and large, the onus is on the claimant who seeks a declaration of title to land to show clearly the area of land to which his claim relates. See Agbonifo Vs Aiwereoba (1988) 1 NWLR (Pt 78) 325. PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The claimant’s claim in the High Court of Cross-River State, holden at Obudu were for:
a) A DECLARATION that, the claimant is the owner and or deemed Holder of Customary Right of Occupancy over the piece and parcel of land lying and situate and known as No 2 Old Obudu Road, Sankwala, Obanliku Local Government Area, which said land is measuring 86ft by 63ft is before the roundabout at Sankwala Town.
b) A DECLARATION that, the act of the defendant which consists of entering claimant’s land described in Relief 1 above, and taking over of claimant’s 3 rooms lockup store thereon, and collecting rent on it, without claimant’s consent and authority amount to trespass in law.
c) A DECLARATION that, the act of the defendant which consist of entering the claimant’s land described in relief 1 above and building 2 lockup stores on the left of claimant’s 3 lock up store already on the land, and another 1 lockup store on the right of the claimant’s 3 rooms store already on the land, with the said claimant’s 3 rooms lockup stores being in the middle and unlawfully seizing of claimant’s lockup stores all acts without claimant’s consent and authority amounts to trespass in law.
d) The sum of N10,000,000 being general damages against the defendant for his various acts of trespass described in relief No. 1 above and 3 above which acts were without the consent and authority of the claimant.
e) The sum of N648,000 being rent collected from claimant’s 3 lockup stores on the land in dispute described in relief No. 1 above by the defendant since 1982 to date at the rate of N500 per shop per month, which the defendant had refused to pay over to the children of the claimant, while the claimant was in prison custody despite their repeated demands.
f) AN ORDER directing the defendants to vacate the claimant’s land situate at and known as No 2 Old Obudu Road, Sankwala Obaniliku Local Government Area, Cross-River State, described in relief No. 1 above forthwith.
g) AN ORDER of perpetual injunction restraining the defendant either by himself, agents, servants, privies and assigns from entering the claimant’s land and lockup stores situate at and known as No 2 Old Obudu Road, Sankwala Obaniliku Local Government Area, Cross-River State, described in relief No. 1 above, either to lay claim to do anything thereon in violation of the claimant’s right of ownership and exclusive possession and enjoyment.
Pleadings were filed and exchanged, and at the end of pre-trial exercise, the matter proceeded to trial before Hon. Justice Ashu A. Ewah. After hearing evidence, the learned Judge held that the claimant led cogent and credible evidence in proof of her claims and the defendant was ordered to vacate his land and lockups shops for the claimant.
The defendant was dissatisfied with the judgment and appealed to this Court through a notice of appeal filed 10/7/2017 but with leave of this Court, granted on 15/5/2019, appellant amended his notice of appeal. The said amended notice of appeal contains 20 grounds of appeal.
In his brief of argument, learned counsel for the appellant F. Iyalomhe, Esq set out the following issues for determination:
1. Whether the Court had jurisdiction to hear and determine the case.
2. Whether going by the pleadings and evidence on the printed record, respondent proved her case by cogent and credible evidence to entitle her to judgment in this case.
3. Whether the Court was right in admitting exhibits A and B in evidence but rejecting Appellant’s memorandum evidencing gift to him.
4. Whether the land in dispute was not shown to be family land.
In his own brief, Nathaniel Uche, Esq, learned respondent’s counsel adopts the four issues formulated by the appellant. In addition, counsel raised preliminary objection challenging the competence of the appeal. The grounds of the preliminary objection are:
1. An incompetent issue cannot be argued with a competent issue.
2. Appellant’s issue 4 is not the basis of the decision at the lower Court and thus academic and based on an obiter.
3. Interlocutory rulings are appealed against within a period of 14 days and failure to so do will render the said appeal incompetent. Appellant issue three is based on an interlocutory decision of the trial Court made on 7/10/2016.
4. The appellant is out of time to file an appeal against the interlocutory decision as raised in appellant’s ground 7 and issue 3.
5. Appellant alleged competent issue two is argued with appellant’s incompetent issue 4.
6. The particulars of the appellant in his ground 6 borders on academic issues to wit:
Family land which does not support the said ground which is also academic and, thus incompetent.
7. Appellant’s ground 12 borders on issue which is not supported by adequate pleadings and thus its allusion by the Court is an obiter and not the ratio of the judgment appealed against.
8. Appeal is not against obiter or passing remarks of the trial Court, but based on decisions of Court emanating from the pleadings supported by reliable evidence.
9. Issue one is based on incompetent ground 4 and therefore incompetent.
10. Ground one is an omnibus ground of appeal and issues are not raised from an omnibus ground of appeal therefore issue two is incompetent.
11. Appellant’s ground 4, 9, 10 and 15 borders on misdirection and the passage where the misdirection was alleged to have been made was not quoted.
12. Appellant’s ground 6 is not competent in that particulars do not support the said ground.
13. Appellant brief of argument was filed out of time without the leave of Court, sought and obtained.
As a matter of practice, where there exist a notice of preliminary objection challenging the competence of an appeal before an appellate Court, the Court is duty bound to consider the preliminary objection before proceeding to determine the appeal. That being the case, prudence dictates that I deal with the respondent’s preliminary objection first.
Arguing the preliminary objection, learned respondent’s counsel submit that appellant’s alleged competent issue two cannot be argued with incompetent issue four as the duty of the Court is not to sieve out argument made for incompetent issue from a competent one. He contends that the issue raised therein was never canvassed before the trial Court and hence the appellant cannot draw this Court into becoming a panel of inquiry into ascertaining who is the family head, the principal family members as well as whether there was consent from the necessary parties etc.
Counsel submit further that appellant’s issue four is a mere obiter and an issue raised from an obiter dictum should be discountenanced and likewise grounds 1, 5, 6, 8, 9, 10,11,14,15,16,17,18,19 and 20 being argued as issue two together with issue four which borders on obiter dictum of the lower Court.
Respecting grounds 3 and 4 argued together by the appellant, counsel contends that issue three is based on an interlocutory decision made on 7/10/2016 and the period of 14 days having elapsed, leave of Court ought to have been sought and obtained. He referred to Ikweki V. Ebele (2005) 7 MJSC 125 at 128 and Aghomi Vs State (2018) 43 WRN 92 at 110 to the effect that if an aggrieved person who requires leave to appeal fails to obtain such leave before bringing such appeal, the appeal is incompetent.
It was also the respondent’s contention that appellant raised issue two from ground 1 which is an omnibus ground of appeal and submit that issues are not raised from omnibus ground. Where as in this case, the appellant raised issue two from ground one which is an omnibus ground, same is incompetent. Furthermore, appellant’s ground 4, 9, 10 and 15 borders on misdirection but the passage where the misdirection was alleged to have been made was not quoted. In aid, counsel relied on Order 3 Rule 2 (2) of the Court of Appeal Rules and the cases of Nika Vs Lavina (2002) 8 WRN 95 at 97-98 and Uyo Vs CSNC (2001) 14 NWLR (Pt 732) 116-149 to contend that where a misdirection is alleged; the passage in the judgment where the misdirection is alleged to have occurred must be quoted and the full and substantial particulars of the misdirection must be given. He thus submits that where all the issues of the appellant are struck out, what will be left will be a bare notice which will not sustain the appeal.
Finally, counsel submit that the appellant’s brief of argument having been filed out of time without leave of Court first sought and obtained, same is incompetent and liable to be struck out.
In his response, learned counsel for the appellant faulted the respondent’s preliminary objection contending that there was no cross-appeal or respondent’s notice flowing from which the respondent is raising 13 grounds to her preliminary objection. He submitted that if the respondent wishes to attack any of the grounds of appeal, it is by filing a motion for such ground(s) he perceives as being incompetent to be struck out and not by way of preliminary objection.
Counsel submit that the issue of the mode of acquisition of the land in dispute was canvassed and a finding was made by the trial Judge. Thus, the issue is competent and not academic. Furthermore, ground 7 of the amended grounds of appeal and issue three distilled therefrom borders on admissibility of evidence and hence a matter of law in which leave of Court is not required. He referred to NPA Vs Nmeje (2021) 12 WRN 48 at 65.
On the necessity of quoting a passage of the judgment that complain against misdirection by the trial Judge, counsel submit that the appellant need not particularized any specific holding/findings of the lower Court relying on Ibekwe & Ors Vs Isidore (2021) 175 at 188. And assuming but not conceding the necessity of quoting the passages of judgment, counsel contend that the failure does not make the ground of appeal incompetent in so long as the respondent is not misled.
It was the appellant’s contention that issue two is raised from a combination of several other grounds such as grounds 1, 5, 8, 9, 10, 11, 14, 15, 16, 17, 18, 19 and 20 and thus other grounds makes issue two competent.
Finally, counsel referred the Court to the appellant’s motion to regularize his brief filed on 1st February, 2022 and granted on 2nd February, 2022 without an opposition by the respondent.
To begin with, learned appellant’s counsel faulted the respondent’s preliminary objection on the premise that same can only be sustained where there is cross-appeal or reapondent’s notice. The essence of a preliminary objection is to challenge the competence of the entire appeal. Thus, a preliminary objection is filed where it is intended to truncate the appeal in liminie on the ground that there is a fundamental defect that would affect the Court’s jurisdiction to entertain it. In effect, it forecloses the hearing of the matter to save the Court’s valuable time and avoid an exercise in futility. See Mohammed Vs Olawunmi (1990) 2 NWLR (pt 133) 458 and A.P.C. Vs INEC (2015) 8 NWLR (Pt 1462) 531.
However, where the purpose of a preliminary objection is merely to challenge the competence of some grounds of appeal, the appropriate procedure is by way of motion on notice, the reason being that the success of the objection would not terminate the hearing of the appeal, especially where there are valid grounds that can sustain the appeal.
In the instant case, the respondent is challenging the validity of the entire grounds of appeal as well as the competence of the appellant’s brief of argument and therefore the preliminary objection is well grounded.
Moving away from the propriety of the preliminary objection, I will now consider its potency in the light of the submissions of the respective parties.
It is settled that an issue for determination in an appeal must be predicated on a ground or grounds of appeal, which in turn must be predicated on the ratio decidendi of the decision appealed against where a ground of appeal or an issue for determination does not meet this requirement; it is liable to be struck out. See Egbe Vs Alhaji (1990) 1 NWLR (Pt 128) 546, Fasuyi Vs P.D.P. (2018) 7 NWLR (Pt 1619) 426 and A.P.C. Vs E.S.I.E.C (2021) 16 NWLR (Pt 1801) 1 at 42.
I have earlier reproduced issues two and four which were argued together by the appellant and the cumulative substance of which is whether the land in dispute was shown to be a family land.
Counsel for the respondent contend that the issue was neither pleaded nor canvassed and thus its allusion by the trial Court is an obiter and not the ratio of the judgment. In the case of Buhari & Ors Vs Obasanjo & Ors (2003) LPELR-813 (SC), Tobi, JSC at Pp59-60 Paras G said:
“A statement by a Judge, either by way of a ratio decidendi or an obiter is determined in the context of the facts of the case before the Court. A ratio or an obiter cannot be determined outside the facts of the case or in vacuum. And in that exercise, a Court will be able to determine whether what the Judge said is a ratio or a dictum while ratio of a superior Court is binding, an obiter of a superior Court is generally not binding on inferior Courts. An obiter of the Supreme Court is not binding on that Court. The only pronouncement is the ratio.”
In the instant case, issues regarding ownership of the land in dispute was joined by the parties in paragraph 9 of the statement of claim, paragraphs 5, 6, 7 and 8 of the statement of defence as well as paragraphs 4, 5, 6 and 7 of the reply to statement of defence respectively. Learned trial Judge while considering the parties’ pleadings and evidence adduced in support of the said pleadings summed up their main contention at page 211 of the record as follows:
“The disputed facts to the evidence is that both parties lay claim to the lock up store on the land in dispute. There is no agreement as to who is the owner of the land in dispute between the claimant and the defendant.”
After reviewing and appraising their respective case, he concluded at page 215 of the record thus:
“From the above, there is nothing to show that the claimant bought family land from Ushekabe Ganor. Therefore, the argument of Defendant that Oshekabe Ganor cannot sell family land without the consent of the head of the family and the principal members together with legal authorities cited in that regard, though good law, the said authorities are inapplicable”
I have stated that the ratio of the case is not determined from isolated dictum in the judgment but upon consideration of issues in dispute between the parties and on the facts pleaded, as well as found in support of the contention of issues. That being the case, and considering the issues in dispute between the parties in the present case, I hold that ground 6 of the amended notice of appeal cannot be academic as wrongly conceived by the respondent. Furthermore, issue four distilled therefrom is competent and I so hold.
Ground 7 of the amended notice of appeal complains of admissibility of Exhibits A and B wherein respondent argued that same being an interlocutory decision, the leave of Court is mandatory. By the provisions of Section 241(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.
In the instant case, leave to appeal was not necessary as the issue of admissibility of evidence is a matter of law. Thus, ground 7 and issue three distilled therefrom is competent.
It was also contended by the respondent that the failure of the appellant to reproduce and/or quote the alleged errors or misdirection from the judgment appealed against renders such ground incompetent. The respondent’s complaints here relates to grounds 4, 9, 10 and 15 of the amended notice of appeal herein under reproduced as follows:
“GROUND 4
The lower Court misdirected itself on the facts where it held that the cause of action arose in 2013
PARTICULARS OF MISDIRECTION
1. The respondent pleaded in paragraph 22 of the statement of claim that the Appellant SEIZED and took over her lock up shops in 1982 when she was arrested.
2. And in paragraphs 23, 24, 25, 26, 27, 28, 30, 31 and 33 Respondent pleaded acts of trespass and refusal by Appellant to return the land and proceeds from 1982 along before the purported claim at paragraph 35 at the police station.
3. The lower Court failed to take these averments into consideration in determining when the cause of action actually accrued contrary to the relevant rule of interpretation.
GROUND 9
The lower Court misdirected itself in law when it held that Respondent was entitled to take advantage of the weakness of defence’s case.
PARTICULARS OF MISDIRECTION
1. The law is that claimant must first prove his case before taking advantage of the weakness of the defence.
2. The Respondent woefully failed to prove her case.
3. The Customary Right of Occupancy was produced as evidence of title and its validity was not challenged.
4. The fact that it was issued for residential purpose does not detract from the fact of ownership of the shops.
GROUND 10
The lower Court misdirected itself on the facts when it held on the Appellant’s Customary Right of Occupancy which was for residential building rather than support Appellant’s case regarding ownership of the shops instead supported the case of the Respondent’s since the shops were for a commercial purpose not envisaged by the grant.
PARTICULARS OF MISDIRECTION
1. The document was to show title and not to prove use.
2. The survey plan accompanying the plan shows the residential building and lock up shops to corroborate Appellant’s claim that he had his residence on the said land in addition to the block of shops.
GROUND 15
The trial Court misdirected itself in law when it held that the evidence of the claimant and her witnesses is not contradictory.
PARTICULARS OF MISDIRECTION
1. Respondent and her witnesses said certain things in their written depositions adopted as her evidence but denied them in cross-examination.
2. Claimant claimed to know the Respondent of her land in her evidence in chief but feigned ignorance during cross-examination.
3. CW2 disclaimed a lot of his averments in cross-examination.”
The provisions of Order 7 Rule 2(2) of the Court of Appeal rules 2021 provides that where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. Rule 3 thereof emphatically states:
3. Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence. A ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the Court suo motu or on application by the respondent.”
It is instructive to note here that particulars of error alleged in a ground of appeal are intended to highlight the complaint against the judgment on appeal. They are the specification of the error or misdirection in order to make clear how the complaint is going to be canvassed in an attempt to demonstrate the flaw in a relevant aspect of the judgment. Thus, particulars are not to be independent of the complaint in a ground but ancillary to it. In other words, the whole purpose of grounds of appeal is to give to the other side notice of the case it has to meet in the appellate Court so the errors of law or misdirection complained of must be sufficiently identified in the grounds of appeal. See Globe Fishing Industries Ltd Vs Coker (1990) 7 NWLR (Pt 162) 265 at 300 and N.I.P.C. Ltd Vs Thompson Organization (1969) 1 ALL NLR 138 at 142.
The respondent’s contention as regards to grounds 4, 9, 10 and 15 as well as grounds 2 and 3 of the amended notice of appeal is not for failure to particularize the errors of law or misdirection but on non-reproduction and/or quoting the relevant portions of the said alleged errors and misdirection from the judgment of the trial Court. In Osasona Vs Ajayi (2004) 5 SC (Pt 1) 88 at 96, the apex Court has inter alia held that it is the particulars of the law or misdirection alleged that will ensure that the ground of appeal is sufficiently set out where appropriate, those particulars should be set out or tabulated, particularly where the passage is quoted from the judgment appealed from representing the error of law or misdirection alleged. However, the particulars need not always be separately set out but be embodied or incorporated in the ground of appeal itself provided the ground is so framed as to leave no one in doubt as to the error complained of. See also Atuyeye Vs Ashamu (1987) 1 NWLR (Pt 49) 267 at 282, Kaya Vs United Bank for Africa Ltd (1997) 1 NWLR (Pt 487) 251-266 and Nsirim Vs Nsirim (1990) 3 NWLR (Pt 138) 285 at 297.
In the instance case, the appellant cannot be said to have failed to supply the particulars and nature of the errors or misdirection, so alleged in the aforesaid grounds. Thus, neither the respondent nor the Court is kept in quandary as to the appellant’s complaints on each of the said grounds.
Also, the respondent complained that the appellant raised issue two from ground 1 that is an omnibus ground of appeal and thus incompetent. An omnibus ground of appeal is said to be a general ground of fact complaining against the totality of the evidence adduced at trial. It is not against a specific finding of fact or any document. Therefore, it cannot be used to raise any issue of law or error in law. See Ajibona Vs Kolawole (1996) 10 NWLR (Pt 476) 22. In the case of Calabar East Co-op Thrift & Credit Society Ltd & Ors Vs Ikot (1999) LPELR-826 (SC), the apex Court held…”an appeal predicated on the omnibus or general ground is not at large. It cannot be used to raise issues of law such as that the appellants were operating as servants or agents of the Calabar Municipal Government. Such issue of law must be raised as a separate ground of appeal and not made adjunct to the omnibus ground of appeal. However, the Supreme Court in Sparkling Breweries Ltd Vs Union Bank (2001) 7 SC (Pt 11) 146 at 164 held, that where there was no evidence to support a finding made by the trial Court, that finding can be challenged under the omnibus ground of appeal that the decision is against the weight of evidence.”
Besides, it is very clear to me that issue two is raised from a combination of several other grounds namely: grounds 1, 5, 8, 9, 10, 11, 14, 15, 16, 18, 19 and 20 of the amended notice of appeal. Therefore, issue two is properly raised.
Finally, a careful and meticulous perusal of the record reveals that leave of Court was sought and obtained to regularize appellant’s brief and hence the argument of the respondent is baseless. On the whole, the preliminary objection is baseless and is bereft of substance. It is accordingly overruled. And having overruled the objection, I will proceed to determine the merit of the appeal based on the issues formulated by the appellant and adopted by the respondent.
ISSUE NO. 1
On the first issue, learned counsel for the appellant referred copiously to reliefs a, b, c and e at the lower Court together with averments in paragraphs 22, 23, 24, 25, 26, 27, 28, 31 and 33 of the statement of claim to contend that the cause of action which constitutes the basis of the claim in this action on appeal accrued in 1982 while the suit was commenced on 4th January, 2016. He thus submit that the cause of action having accrued to the respondent and her children well over 10 years prior to the institution of the action, same is statute-barred. He referred to Section 1 of the Limitation Law of Cross-River State, 2004 and the case of A.G. Rivers State Vs A.G. Bayelsa State (2013) ALL FWLR (Pt 699) 1287 at 1090 to the effect that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribed by such statute. Thus, any action that is instituted after that period stipulated by the statute is totally barred.
Counsel submits further that in determining the time when the cause of action accrued, the Court is obliged to be holistic in its view of the statement of claim and not to confine itself to an isolated paragraph relying on the decision in Agbonika Vs University of Abuja (2014) ALL FWLR (Pt 715) 335 at 353.
In his response; learned respondent’s counsel contend that the appellant who was a brother to the respondent’s husband took over the management of the respondent’s shops and only began claiming ownership of the land and shops in 2013 and thus the initial entry of the land was not unlawful. He submit that the cause of action only arose in 2013 when the appellant began laying claim to the land at the police station and not when he lawfully entered therein. He referred to Arabambi Vs A. B. Ind. Ltd (2006) 8 WRN 6 at 7 to contend that the writ was filed in the year 2016 that is three years after the accrual of the cause of action.
It is also the respondent’s contention that a right to title not founded on prescription is not statute-barred, irrespective of the period of possession as prescription is completely unknown under the Customary Law. He referred to Mogaji Vs Cadbury (Nig) Ltd (2009) 23 WRN. And assuming the fact that the land in dispute is not subject to customary law, counsel submit that during the period of the respondent’s incarceration, time do not run.
In deciding whether or not an action is caught by a statute of limitation, one has to examine two factors viz:
(a) Is there a cause of action?
(b) When does the cause of action arise?
A cause of action is defined in Black’s Law Dictionary, Ninth Edition to mean a group of operative facts giving rise to one or more bases for suing, a factual situation that entitles one to obtain a remedy in Court from another person.
In Egbe Vs Adefarasin (1987) 1 NWLR (Pt 47) 1 at page 20 paragraphs D-E, Oputa, JSC said:
“Now let us examine the meaning of cause of action. It is admitting an expression that defies precise definition. But, it can safely be defined as establishing or giving rise to a right of action. It is the factual situation which gives a person a right to judicial relief”
Also in Akilu Vs Fawehinmi No. 2 (1989) 2 NWLR (Pt 108) 122, the apex Court defined a cause of action to mean “every fact which is material to be proved to entitled the plaintiff to succeed or all those things necessary to give a right to relief in law or equity”
The plank of the respondent’s case at the lower Court was while she was in prison custody, the appellant herein trespassed into her land and also built two shops on the left of her 3 lock up shops thereby putting her original 3 lock up shops in the middle of the additional shops trespassed. Specifically, the respondent averred that the other buildings were built on adjoining lands but projecting a few feet into her land measuring 86ft by 63ft. That being the case, the respondent had a cause of action, her cause of action being entering into the land and taking over her 3 lock up shops already on the land and also building additional shop on the right of the said 3 lock up shops which constitutes a trespass on her land.
The next germane question is, when the cause of action arose. Section 1 of the Limitation Law of Cross-River State provides that:
“No action shall be brought by any person to recover land after the expiration of 10 years from the date on which the right of action accrued to him. Or if it first accrued to some person through whom he claims, to that person.”
I have stated earlier that a cause of action includes all those things which are necessary to give a right of action and every material fact which is material to be proved to entitle the plaintiff to succeed. Thus, the cause of action arises as soon as the combination of those circumstances accrued or happened and it is the act of the defendant, which gives the plaintiff his cause of action. And in considering when a cause of action arises, the Court should confine itself to the averments in the writ of summons and statement of claim and nothing more. By the averments in the respondent’s writ of summons and statement of claim, what emerged was that the appellant trespassed into her land while she was in prison custody wherein she spent a period of 15 years in prison custody from 1997 to 2013. Therefore, she could not have become aware of the alleged trespass only in 2013 on the strength of the averments in paragraphs 24 and 33 of the statement of claim which read thus:
“24. The claimant avers that, while she was still in prison custody, the Defendant trespassed into her land without her consent and authority built 2 shops on the left side of her 3 lock up shops, on her land and another shop on the right side putting her original 3 lock up shops in the middle of the additional shops in trespass for even though he was caretaker he did not seek and obtain claimant’s consent to built the additional shop on the claimant’s land.
33. The claimant avers that, she has been persistent in her demand that the defendant vacate her land and lock up stores for her and that again in 2013, she made demands on the defendant to release her land and shop for the enjoyment of her children who have suffered so much, but, the defendant who refused to release her land, rather threatened the lives of her children whom she threatened will die the same way their father died”
I have earlier pointed out that it is the writ of summons and statement of claim that one looks at in ascertaining when the wrong which gave rise to the cause of action arose. This date is then compared with the date the writ was filed. It is to be borne in mind that the relevant time for reckoning the period of limitation is when the cause action arose and not when the injury occurred. Perharps, what occurred on 13th day of April, 2013 was the complaint of threat to the life of the respondent but the cause of actioin arose while she was in prison custody.
Thus, the trial Judge was wrong to have held that the cause of action arose in 2013 when the appellant started setting up adverse claims to the lock up stores. Furthermore, perusal of her claims reads that same are for declaration of ownership of the land in dispute and trespass and therefore not limited to the lock up stores. Consequently, the cause of action must have arisen in 1982 when the respondent was incarcerated for the purpose of limitation of action. And this action having been filed in 2016, Section 1 of the Limitation Law of Cross-River State applies. This means the actioin was filed 33 years after the accrual of the cause of action.
In plethora of judicial decisions including the case of Eboigbe Vs N.N.P.C (1994) 5 NWLR (Pt 347) 649 at 659 it was held that where an action is statute-barred, a plaintiff 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 of instituting such an action has elapsed. The first issue is resolved in favour of the appellant.
The foregoing notwithstanding, I will proceed to determine the remaining issues to obviate the need to remit the appeal back by the penultimate Court should the need arises. The law is that where the jurisdiction of a Court to hear a matter is undermined, the order it makes is plain. It is one of striking out. However, an intermediate Court has a duty to pronounce on all issues before it.
In Katto Vs CBN (1991) LPELR-1678 (SC), Akpata, JSC at Pp 32 paras B said:
“Where a trial Court after holding that it had jurisdiction proceeded to determine the matter before it and an intermediate Court of appeal thinks the trial Court lacked jurisdiction, the said intermediate Court should in the alternative resolve the complaints in the appeal unless both counsel, particularly respondent’s counsel, concede that the trial Court lacked jurisdiction in the matter. While the Supreme Court, being the final Court of appeal, can afford not to pronounce on other issues placed before it where it finds that the trial Court lacked jurisdiction, the Court of Appeal whose stance on jurisdiction may be faulted by the Supreme Court should not ignore other issues raised on appeal. It should pronounce on them.”
ISSUES NO. 2 & 4
On the above, learned counsel for the appellant submit that the respondent who seeks for a declaration of title to land was under obligation to call cogent and credible evidence to establish her root of title by one of the acceptable methods of proof as laid down in Idundun Vs Okumagba (1976) 9 & 10 SC (Pt 227) 246-250. He contend that aside from failing to establish her title through the five recognized methods, appellant merely alluded to purchase of the land from one Oshekabe Gannor whom she refused to call as a witness. Counsel urged this Court to invoke Section 167 (d) of the Evidence Act to the effect that she failed to produce the evidence of ownership because if produced, it would have been adversed to her.
Still in argument, counsel contends that the document made while litigation was in view are not only untenable in evidence but also do not qualify as documents of title and thus the lower Court was in grave error to have received them in evidence and acted on them as document of title.
Furthermore, the appellant challenged the authortity of Ushekabe Gannor to sell the said land as it was family land but the respondent according to counsel made no effort to rebut same beyond the argument of her counsel that the appellant did not say that claimant bought the land from only one member of the family without the consent of their family. He referred to Nruamah Vs Ebuzoeme (2013) ALL FWLR (Pt 681) 1426 to the effect that where the title of your assignor is challenged, as claimant, you have a duty to prove it.
Finally, counsel submit that the respondent had an obligation to identify her land in respect of which she sought a declaration and an order of injunction relying on Dada vs Dosunmu (2009) 27 NSCQR 485 at 490 to contend that the location and size of the land in dispute were put in issue by the parties. Thus, failure of the respondent to identify clearly the land in dispute was fatal to her case and the conclusion of the lower Court that “there is nothing to show that the claimant bought family land” is quite untenable.
On the part of the respondent, learned counsel submit that the respondent has been in possession of the land in dispute prior to her arrest and where the appellant admit that the respondent was in possession of the land in dispute, the burden of proof automatically shift to the appellant relying on Okoye Vs Nwankwo (2016) 10 WRN 62 at 87-88.
Counsel submitted further that the respondent did not only prove that she was in possession prior to her arrest and detention but went further to show that she bought the land from one Oshekabe Gannor whose name was spelt by the appellant as Ushekabe Kanung, a direct son of Mr. Kanung of Bebi who is the owner of the land in dispute. And there being no reliable evidence to rebut the respondent’s assertion, the lower Court was justified in holding that respondent is the owner of all the parcel of land as decribed by the respondent.
On the identity of the land in dispute, counsel contend that both the appellant and the respondent know the land in dispute including the lock up stores as such the identity of the land in dispiute was never an issue before the trial Court. He referred to Nwokidun Vs Okanu (2010) 26 WRN 23 at 30 to submit that where the identity of the land does not arise from the pleadings, particularly where the defendant by his pleadings admitted the description, location, features and dimension of the land, the identity of the disputed land is not a question in issue and does not require prove.
The law is well settled that, to succeed in a claim for a declaration of title to land, the Court must be satisfied as to:
(i) the precise nature of the title claimed that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession or otherwise, and
(ii) evidence establishing title of the nature claimed. See Emeguara Vs Nwaimo & Ors 14 WACA 347.
Similarly, it is trite law that a plaintiff when claiming a declaration of title to land must succeed on the strength of his own case and not on the weakness of the defendant’s case. What it means, if this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment will be for the defendant. However, this broad several principles of law does not naturally apply where the defendant itself lends support to that of the plaintiff and contains evidence on which the plaintiff is entitled to rely. See Adesanya Vs Aderonmu (2000) 6. SC (pt 11) 18 at 25.
The question that needs to be asked is whether the respondent satisfied the Court as to the precise nature of the title to the land in dispute that she claimed.
By the combined averments in the pleadings, particularly paragraphs 9 and 10 of the statement of claim and the evidence of the respondent at the trial, the precise nature of the land in dispute is based on sale under the customary law. The land was said to have been sold to the respondent in 1982 by Oshekabe Ganor wherein a receipt and an agreement was duly executed between them but the respondent’s title documents were burnt along with her other properties as a result of family crises. Furthermore, the land in dispute belonged to the family of Kenung Ebebe of Bebi.
What stands out clear from the state of pleadings and evidence is that while the respondent claimed that she bought the land from Oshekabe Ganor, the appellant maintained that at no time did Kanung Ebebe family of which the appellant is a member assign the said land to one Ushekabe Kanung otherwise known as Oshekabe Ganor. The law is settled that once a party pleads and traces his root of title in a dispute over land to a particular source, and this averment as in the present case, is challenged, that party to succeed as claimant in the action, must not only establish his title to such land, he must also satisfy the Court as to the title of the source from whom he claims to derive his title to the land. See Mogaji & Others Vs Cadbury (Export) Ltd (1985) 2 NWLR (Pt 7) 393.
In the instant case, the respondent has failed to satisfy the Court as to the title of the source from whom she claims to derive her title to the land and therefore the learned trial Judge was wrong to have held that “the claimant led cogent and credible evidence to prove this case and her evidence with that of her witnesses has put to rest the issue of ownership of the lock up stores. And that since both parties are claiming the land where the lock-up stores are situate, the claimant is also the owner of the land in dispute”. The reasoning of the learned trial Judge was clearly based on speculation and or guesswork. However, a Court of law has no business to act on speculation or guesswork but rather on cogent and concrete evidence adduced before it.
The law is also settled that before a declaration of title to land is given, the first duty of the claimant is to establish, quite clearly, the area of land to which his claim relates. Thus, the boundaries of the land to which the claim relates must be ascertained with a degree of precision and certainty the test being whether a surveyor can from the record of proceedings produce a plan showing accurately the piece of land to which the decree of title has been given. See Makanjuola Vs Balogun (1989) 3 NWLR (Pt 108) 122.
In the same vein, an order of injunction cannot be made in dispute of an area of land whose boundaries are not properly identified. By and large, the onus is on the claimant who seeks a declaration of title to land to show clearly the area of land to which his claim relates. See Agbonifo Vs Aiwereoba (1988) 1 NWLR (Pt 78) 325.
Therefore, the question is did the respondent as claimant at the trial Court show the area of land to which she claimed relates? Learned respondent’s counsel has submitted rightly that where parties are ad idem as regards the identity of the land, the issue of identity can never be an issue. But from the parties’ pleadings and evidence, there was no consensus on the precise boundaries of the land in dispute. Whereas in the instant case, the respondent failed to clearly identify the land in dispute, it is palpably wrong for the lower Court to grant declaration and injunction in her favour. On the strength of the foregoing, the second and fourth issues are resolved against the respondent.
ISSUE NO. 3
It was the appellant’s submission that Exhibit A and B being made for the purpose of litigation are inadmissible, under Section 83 of the Evidence Act. And that also using the said document as substitute title documents requires proper stamping and registration before they can be admitted in evidence.
Contrariwise, counsel submit that a document is only registerable if it is meant to convey title in land. Therefore, the lower Court was wrong to have admitted Exhibit A and B but reject a memorandum of gift.
Learned counsel for the respondent did not specifically join issues with the appellant’s counsel on this point but merely states at paragraph 3:10 of the respondent’s brief that “another document tendered by the appellant which was rejected by the Court below was a deed of gift which was not listed. The said document would not have in any way helped the appellant in that the said document which purportedly transfer title to the appellant got a customary right over”. Where the respondent as in this case fails to address any reply to an issue raised in and argued in the appellant’s brief, such a respondent will be regarded as having conceded not only the issue but also to the legal argument canvassed under it. The implication of the above is that the respondent has conceded to the argument of the appellant on the third issue and same is resolved against the respondent.
In the final result, the appeal succeeds and it is hereby allowed. The judgment of the lower Court delivered on 10th July, 2017 is accordingly set aside. However, having resolved that the action was caught by the limitation law, Suit No. HD/1/2016 at the lower Court is hereby struck out.
Parties to bear their respective costs.
RAPHAEL CHIKWE AGBO, J.C.A.: I had the privilege of reading in advance, the lead judgment delivered by my learned brother Shuaibu, JCA and I agree completely with the reasoning and conclusion and have nothing to add. I too allow the appeal and abide by the consequential orders contained therein.
BALKISU BELLO ALIYU, J.C.A.: I had the preview of the judgment delivered by my learned brother, M. L. Shuaibu JCA, and I agree with his reasoning and conclusion therein. The success of the appeal can only be cold comfort to the appellant because the limitation law has robbed him with the ability to enforce any right he may have to enforce. Such right has become an empty vessel with plenty of useless noise. I too strike out suit No. HD/1/2016 in its entirety for being statute barred. I abide by the order of no costs.
Appearances:
Festus Iyalomhe, Esq. For Appellant(s)
Nathaniel Uche, Esq. For Respondent(s)