ALH. ISAH GOMNA v. MORRIS NIGERIA LIMITED
(2019)LCN/12774(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/A/672/2016
RATIO
APPEAL: RIGHT TO APPEAL
“Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows: ‘An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: 1 (a) Final decision in any civil or criminal proceeding before the Federal High Court or a High Court sitting at first instance.’ By the clear provision of the above section, a party can appeal as of right on final decision of the lower Court to the Court of Appeal on any ground, be it pure law, mixed law and fact or facts. See Total International Ltd Vs Awogboro (1994) 4 NWLR (part 337) page 147, Federal Housing Authority & Anor. Vs Kalejaiye (2010) LPELR – 1267 (SC).” PER ADAMU JAURO, J.C.A.
ACTION: CAUSE OF ACTION
“In view of the foregoing, a definition of cause of action is necessary, before determining when the cause of action accrued in this case. The words “cause of action” have been defined in a number of cases, to simply mean the facts which when proved will entitled a plaintiff to a remedy against a defendant. See Oshoboja Vs Amuda (1992) NWLR (part 250) 690. In Afolayan Vs Ogunrinde (1990) NWLR (part 127) 369, the Supreme Court per Obaseki, J.S.C (as he then was) said: ‘In its simplest terms, I would say that a cause of action means
1) A cause of complaint,
2) A civil right or obligation fit for determination by a court of law;
3) A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine. It consists of every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to judgment.'” PER ADAMU JAURO, J.C.A.
COURT AND PROCEDURE: FUNTUS OFFICIO
“A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or charge that order. That Court by virtue of the order, is functus officio, and the only option open to the parties is by way of appeal against the order. This means that the right of the parties has been determined to finality, and they cannot go back to the same Court on those rights.” See also Mudun & Ors Vs Adanchi & Ors (2013) LPELR – 20774 (CA).” PER ADAMU JAURO, J.C.A.
INTERPRETATION: CASUE OF ACTON
“The term cause of action has been defined: ‘The facts or combination of facts which give rise to a right to sue.’
The phrase is of importance chiefly with reference to the Limitations Act, and the jurisdiction of certain Courts. Thus, time begins to run when the cause of action arises (unless postponed by reason of fraud, mistake, acknowledgment etc.) … See JULIUS BERGER (NIG) PLC v. OMOGUI (2001) LPELR 1638 (SC). In EGBE V. ADEFARASIN (1987) 1 NWLR (PART 47) 1 at page 20 paragraphs D-E, Oputa JSC said:
‘Now let us examine the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts, which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.’ See also A.G ADAMAWA STATE & ORS v. A.G. FEDERATION (2014) LPELR 23221 (SC); ONOITA v. TEXACO (NIG) PLC (2016) LPELR 41483 (CA).” PER ADAMU JAURO, J.C.A.
STATUTE: WHERE A CASE IS STATUTE BARRED
“A statute barred action, simply means an action barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no moment and has no valid effect. See Araka Vs Ejeagwu (2000) 12 SC (part 1) 99. In the case of Eboigbe Vs NNPC (1994) NWLR (part 347) 649 at 659 the Supreme Court held that where an action is statue-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 time laid down by the Limitation Law for institution of such an action has elapsed. See also Odubeko Vs Fowler & Anor. (1993) 7 NWLR (part 308) 637.” PER ADAMU JAURO, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
ALH. ISAH GOMNA Appellant(s)
AND
MORRIS NIGERIA LIMITED Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment):
The appeal herein is against the ruling of the High Court of Justice, Niger State, Minna Judicial Division delivered in Suit No. NSHC/MN/100/2016 by Hon. Justice Abdullahi Mikailu on 5th September, 2016.
The facts of the case were that the Appellant as plaintiff instituted an action against the Respondent as defendant before the lower Court, that through parental lineage he became entitled to the Deemed/Customary Right of Occupancy over the land which is lying and situate at Barkin Sale area of Minna, Niger State and measuring approximately 1.401 hectares, in respect of which the defendant has encroached upon. The plaintiff pleaded traditional history and act of exclusive possession and lawful enjoyment of the land in dispute as the basis of his claim. He contended that the act of the defendant in ejecting his tenants and trespassing into his land in an attempt to erect fence has prevented him from exercising exclusive possession and enjoyment over the land, thus, the plaintiff claimed against the defendant as follows:
a) A declaration that plaintiff is entitled to the Deemed/Customary Right of Occupancy over the piece and parcel of land lying and situate at Barkin Sale (Adjacent Morris Nigeria Ltd Minna and measuring approximately 1.401 hectares as captured in the sketch plan dated the 11th April, 2016 and clearly described at paragraph 3 above.
b) An order of perpetual injunction restraining the defendant, his agents, privies, successors-in title, personal representatives or any other person claiming through him from interfering with the plaintiff’s quiet possession and peaceful enjoyment of the disputed land.
c) General damages of Five Million Naira (N5,000,000.00k) only against the defendant.
d) The cost of litigation of Four Hundred Thousand Naira (N400, 000.00k) only.
e) Any order(s) as meets the interest of Justice.
The defendant denied the plaintiff’s claims, and contended that the land in dispute was granted to it by the Niger State Government vide a Certificate of Occupancy number No. 12697 dated 26th August, 1991. That it followed due process in obtaining the grant of the land being complained of, by the plaintiff. The Defendant further denies the lineage of devolution of the disputed property, being put forward by the plaintiff. It contended that the plaintiff’s claim is caught up by laches and acquiescence, the limitation and prescriptive laws of Niger State as the plaintiff’s claim dates back to August, 1991 when the Defendant was issued its statutory certificate of occupancy. It stated further that the claim of the plaintiff is devoid of any substance, gold digging and abuse of process and should be dismissed with substantial costs in favour of the Defendant.
In addition to its statement of defence and the other processes filed, it also filed motion on notice dated 21st June, 2016 challenging the competence of the action vis a vis the jurisdiction of Court, to entertain the suit on the following grounds:
a) The instant cause of action instituted by the Plaintiff against the Defendant arose sometime on 26th August, 1991 when the Defendant acquired its statutory certificate of occupancy.
b) The instant suit was filed on 13th April, 2016 a period of well over 25 years, contrary to the express and mandatory provisions of Section 6 of the Limitation Law of Niger State, 2007.
c) The Plaintiff’s action against the Defendant is thus statute barred and same constitutes an abuse of Court process thereby robbing the Court of jurisdiction.
d) The Plaintiff’s originating process contained no address for service on the Defendant as mandatorily required by the Rules of Court.
The motion was supported by an affidavit of 5 paragraphs, exhibit and a written address. See pages 82 -113 of the record of appeal. In opposition thereof, the plaintiff/Appellant filed a counter affidavit of 5 paragraphs and a written address. See pages 114 – 118 of the record of appeal.
The Defendant/Respondent’s motion which borders on jurisdiction of the lower Court to entertain the suit, the trial judge considered it first wherein a ruling on same was delivered on 5 September, 2016 as follows:
“From the Court’s record, the Writ of Summons was filed on the 13th April, 2016. The period between 26th August, 1991 and 13th April, 2016 is 14 years and 7 months. The Writ of Summons in this Suit was certainly filed outside or beyond the time allowed by the Niger State Limitation Law. The instant action is caught up by Section 6 of the Limitation Law 2005. In essence the action is statute barred. The right of the plaintiff/respondent to the action has been extinguished. Consequently, this Court lacks the jurisdiction to entertain same. I accordingly resolved the lone issue in favour of the defendant/applicant. The suit accordingly struck out.
See 131 of the record of appeal.
Aggrieved with the aforesaid decision, Appellant filed his notice of appeal on 23rd November, 2016 containing two grounds of appeal before the lower Court. The Appellant sought an order setting aside the ruling of the lower Court delivered on the 5th day of September, 2016 and an order dismissing the notice of the preliminary objection filed by the respondent before the trial Court on the 21st June, 2016. See pages 132 – 134 of the record of appeal.
Pursuant to the Appellant’s notice of appeal, the record of appeal was compiled and transmitted to the Court on 1st December, 2016. In accordance with the rules of Court, briefs of argument were also filed and exchanged by the parties. The Appellant’s amended brief of argument settled by E.S. Obidigbo Esq., is dated 8th May, 2018 and deemed filed on 22nd May, 2018. Appellant also filed Appellant’s Reply to the notice of preliminary objection dated and filed on 5th June, 2018. The Respondent’s brief of argument was settled by Austin N. Mwana Esq., is dated 15th December, 2017 and filed on 19th December, 2017.
Before tackling the merit of the appeal, learned respondent’s counsel raised in his brief of argument a preliminary objection as to the competence of the instant appeal. The grounds of the objection are as follows:
a) “That the notice of appeal dated 23rd November, 2016, consisting of grounds one and two thereof consists of mixed law and fact to which no prior leave of this Honourable Court had been sought and obtained. See Section 241 of the 1999 Constitution, as amended and the case law of the Registered Trustees of Christ Apostolic Church Vs Uffiem (1998) 10 NWLR (part 569) 312 at 320 paragraph H where it was held inter alia that:
“Whether the grounds of appeal are either of fact and/or mixed law and facts the application must contain the three prayers, otherwise it will be incompetent and be struck out”. See also Ojemen Vs Momodu (1983) 3 SC 173, Ogbechie Vs Onochie (1986) 2 NWLR 484.
b) The Appellant has combine/formulated one issue for determination arising from the two incompetent grounds without specific reference to which of the grounds the sole issue relates, which is strictly forbidden in law thus rendering both the issue and all the argument incompetent/nullity.
See Awosile Vs Sotunbo (1992) 6 SCNJ 182.
c) The Appellants Notice of Appeal being incompetent robs the appellate Court of jurisdiction to entertain the Appeal
d) Also, when the single issue formulated in a brief of argument is incompetent, the brief and the entire appeal are also incompetent.
It was contended that the Appellants grounds 1 and 2 of the notice of appeal are grounds of mixed law and fact requiring prior leave of Court to be valid. He submits that since the Appellant has not sought and obtained prior leave of Court, the four grounds are incompetent and are liable to be struck out. He referred to the case of Ogidi Vs Egba (1999) 6 SCNJ, 107 at 117. Counsel submits that Appellant’s grounds one and two are vague, general in terms and discloses no reasonable grounds of appeal. He urged the Court to strike out/dismiss same.
Learned counsel contended that the Appellant failed to indicate from which of the two grounds of appeal, his sole issue was distilled from. He submits that the Appellant must indicate from which of the grounds of appeal his issue is distilled from, as issue for determination must arise from the grounds of appeal. Reference was made to the case of Western Steel Works Vs Iron & Steel Workers (1987) 1 NWLR (part 49) 284 at 304. It was further contended that the Appellant having not indicated from which of the two grounds of appeal his sole issue was distilled from, the Appellant has abandoned the two grounds of appeal and/or he has not formulated any issue a rising from the two grounds of appeal and the two grounds of appeal are taken as abandoned and liable to be struck out and/or dismissed by the Court. Counsel referred to the cases of Adejumo Vs Olawaiye (2004) 12 NWLR (part 252) at 273 paragraph A and NBC Plc Vs Ubani (2014) 4 NWLR (part 1398) SC 421 at 471 paragraphs D – E. Learned counsel urged the Court to strike out the Appellant?s sole issue for determination or deem it as abandoned.
Learned counsel for the Appellant submitted that by Section 241 of the 1999 Constitution an appeal shall be from the decisions of the Federal High Court or High Court to the Court of Appeal as of right in case of final decisions in any civil or criminal proceedings before the Federal Court or a High Court sitting at first instance. He contended that in the instant case, the decision of the trial Court, wherein the matter was struck out on the ground of being statute barred, is a final decision of the trial Court, thereby rendering the Court functus officio in the said matter.
It was contended further that appeal lies as of right irrespective of whether the ground of appeal is on facts alone or mixed law and fact, in which case the leave of the Court is not required. In determining whether a decision is final or interlocutory, counsel referred to the case of Olafeju Vs Commissioner, Land and Housing (2011) 12 WRN page 36 at 41. It was further submitted that assuming without conceding that Section 241 (1) (a) is not applicable to the instant appeal, the two grounds of appeal pending before the Court simpliciter, are issues of law and not of facts or mixed law and facts.
In response to the contention that the issue formulated by the Appellant did not arise or relate to the grounds of appeal, it was submitted that the appellant has by virtue of the application filed on 8/5/2018 and was granted on the 22/5/2018 amended his appellant’s brief of argument without any objection by the respondent, and the said brief contained the issue distilled from the two grounds of appeal. Counsel urged the Court to dismiss the respondent’s notice of the preliminary objection for lacking in merit and substance.
Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
“An appeal shall lie from the decision of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
1 (a) Final decision in any civil or criminal proceeding before the Federal High Court or a High Court sitting at first instance.”
By the clear provision of the above section, a party can appeal as of right on final decision of the lower Court to the Court of Appeal on any ground, be it pure law, mixed law and fact or facts. See Total International Ltd Vs Awogboro (1994) 4 NWLR (part 337) page 147, Federal Housing Authority & Anor. Vs Kalejaiye (2010) LPELR – 1267 (SC).
In determining whether a decision of Court is a final decision or not, the Supreme Court in a plethora of cases has laid down a test to be followed, thus, a decision is said to be final where it determines the right of parties in respect of the subject matter in dispute, without leaving any option to either party to relitigate over the same matter in the same Court. On the other hand, a decision or order of a Court which does not finally dispose of the rights of the parties in the substantive matter in the dispute or which does not foreclose the parties from relitigating over the same matter is interlocutory.
See Omonuwa Vs Oshodin (1985) 2 NWLR (part 10) page 974, Idakalu Vs Adamu (2001) 1 NWLR (part 694) page 322 and Ebokam Vs Ekwenibe & Sons Trading Co. Ltd (1999) 10 NWLR (part 622) page 242. The apex Court in the case of Alor Vs Ngene (2007) 17 NWLR (part 1062) page 163 at 177 per Kalgo JSC (as he then was) put it more clearly thus:
“A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or charge that order. That Court by virtue of the order, is functus officio, and the only option open to the parties is by way of appeal against the order. This means that the right of the parties has been determined to finality, and they cannot go back to the same Court on those rights.” See also Mudun & Ors Vs Adanchi & Ors (2013) LPELR – 20774 (CA).
In the instant case, though an order made by the lower Court dismissing the Appellant’s case was based on interlocutory motion challenging the jurisdiction of the Court to entertain the suit, the parties herein cannot relitigate the case before the trial Court, as the Court had declined jurisdiction to entertain the suit. The only option open to the Appellant is to appeal to this Court, which he has now done. Hence the two grounds of appeal filed by the appellant are competent.
On the objection that the Appellant did not specifically relate to which of the two grounds of the appeal his sole issue was distilled from, the settled fundamental principle of law is that any issue raised or formulated in a brief of argument for either the Appellant or Respondent must be distilled from, or predicated upon a competent ground of appeal challenging the decision of the lower Court appealed against. Thus, neither a party to an appeal, nor even the Court itself, is allowed to raise any issue which is not related to, or distilled from the ground of appeal. See CSS Bookshop Ltd Vs RTMERS (2006) 11 NWLR (part 902) 530, Oniah Vs Onyia (1989) 1 NWLR (part 99) 514, Nwosu Vs Udeaja (1990) 1 NWLR (part 125) 188; Mark Vs Eke (2004) 8 NWLR (part 1282) 560 at 597 D – E. The grounds upon which the Appellant’s issue was formulated are:
GROUND ONE
“The learned trial judge erred in law by holding that considering the totality of the plaintiff/appellant pleadings and witness deposition, the case of the appellant is status barred.
PARTICULARS
1) The trial Court misdirected itself by holding that the cause of action of the appellant accrued on the 26th day of April, 1991 when the Certificate of Occupancy No, NGS 12697, was issued.
a) The appellant only became aware of the issuance of the Certificate of Occupancy No. 12697 sometimes in 2014 when the respondent trespassed on the land.
b) There was no notice of the revocation/transfer of appellant’s Deemed Right of Occupancy by any government to the respondent, any person or body, neither did the appellant had knowledge of same till sometime in 2014.
GROUND TWO
a) The learned trial judge erred in law by wrongly applying Section 6 of the Niger State Status of Limitation, 2007 which no retrospective effect; thereby leading to a wrong conclusion.
PARTICULARS
(i) The Niger State Status of Limitation, 2007 became a law on the day of January, 2007 and parts of it’s provisions started regulating lands within Niger State.
ii) The Niger State Status of Limitation does not have any provision as regards the cause of action that accrued before the commencement of the Limitation Law, thus, it does not have retrospective effect.
iii) The Niger State of Limitation, 2007 cannot be applied or regulate an action that took place on the 26th day of April, 1991 and before the commencement of the Limitation Law.
iv) The finding of the trial judge that the case of the appellant is 14 years and 7 months status barred using Limitation Law of Niger State, 2007 is perverse.”
From the above grounds the Appellant distilled his sole issue for determination issue to wit:
“Whether the case of the appellant before the trial Court is statute barred. (Distilled from appellant’s ground 1 and 2 of appeal).”
A cursory glance at the grounds of appeal and their particulars, it is crystal clear that the sole issue for determination, was distilled from those grounds of appeal. It is the law that a party may distill a lone issue from many grounds of appeal in order to narrow the controversies for determination. What is not permissible is for a party to raise many issues for determination from one ground of appeal. See Kalu Vs Odili (1992) 6 SCNJ (part 1) 76. In view of the foregoing, the Appellant’s sole issue for determination is competent, having been distilled from the two grounds of appeal. The Respondent’s preliminary objection is misconceived and lacks merit, same is hereby dismissed.
Having dismissed the Respondent’s preliminary objection, consideration will now be made on the merit of the appeal. Appellant distilled a lone issue from his two grounds of appeal to wit:
“Whether the case of the appellant before the trial Court is statute barred.”
The Respondent for its part also formulated a lone issue for determination as follows:
“Whether the lower Court was right in upholding the Respondent preliminary objection to the competence of the Appellant’s suit same having been caught up by Section 6 of the Limitation Law of Niger State.”
I will adopt the appellant’s issue for determination in the resolution of this appeal, for the two set of the issues are similar and conually identical.
The strength of the Appellant’s argument in this appeal is the contention that the certificate of occupancy No. 12697, issued to the respondent, does not and cannot be said to extend and cover even the portion of land owned by the appellant, which is distinct piece of land sharing boundary with the respondent’s land from the East. Counsel referred to pages 47 – 50 of the record of appeal for a list of those compensated, in which the appellant was not on the list. Learned counsel opined that the Respondent acknowledging the fact that the appellant’s portion of land is not covered by the Certificate of Occupancy No. 12697, it applied to the Honourable Commissioner of Land and Survey on 12/4/1990 for a parking space from the Western boundary to the Eastern boundary, which is the portion of the land now in dispute. He referred to the sketch plan contained on page 22 of the record of appeal.
It was contended that there is nothing before the Court evidencing that the appellant was paid compensation by any person or body with respect to his land, the subject matter of dispute or that the Respondent’s letter of 12/04/1990 was approved by the Honourable Commissioner of Lands and Survey or that the respondent has shown anything to warrant any inference that the appellant was aware that his right over his land, now in dispute, is, has or was being divested. In determining when the cause of action arose in the instant case for the purposes of computation of time, that is, when time begins to run against the appellant, learned counsel referred to the cases of Mulima Vs Usman (2014) SCNJ page 602 at ratio 33; 7up bottling Company Ltd & Ors Vs Abiola & Sons Bottling Co. Ltd (2001) 13 NWLR (part 730) 469 at 495. He submits that the Court should confine itself to the averments in the writ of summons and the statement of claim, which alleges the factual situation that gave rise to the cause of action.
On the above authorities, learned counsel submitted that the appellant has made exposition seriatim, of the derivation of his title and ownership over the disputed land. He referred to paragraph 12 – 15 of the statement of defence on page 5 of the record of appeal. Counsel further pointed out that the appellant pleaded the action of the respondent, which prompted the commencement of this suit and subsequently this appeal. He referred to pages 53 to 54 of the record of appeal. By the above fact, learned counsel maintained that the Appellant has pleaded enough facts that he was in exclusive possession over the disputed land up to 2014, when the respondent attempted to eject his tenant. Learned counsel maintained that in determining the limitation period, the determinant factors are the time the cause of action arose and the time the action was filed. Reliance was placed on the case of Polytechnic, Ibadan Vs Adesina (2012) 38 WRN page 72 at 76 ratio 3.
Learned counsel submits that the statement of defence is immaterial in determining when the cause of action arose, and the contention of the respondent that the cause of action in this case arose on 26/8/1991, the date the Certificate of Occupancy No. NGS 12697 was issued to the respondent by the then Military Governor of Niger State, whereas the suit was filed on 13/4/2016, is not only false but also misleading. Counsel submitted further that assuming without conceding that the Certificate of Occupancy No. NGS 12697, issued on 26/8/1991, covers the land now in dispute, the cause of action cannot be said to have arisen at that time because the appellant was not aware of the issuance of same. So also unaware of the letter written to the Hon. Commissioner of Land and Survey dated 12/4/1990 was approved or not Learned counsel submits that cause of action flows from being aware of the breach or infringement and that when time begins to run. He referred to Mulima Vs Usman (supra) at page 603 ratio 37.
It was also the contention of the learned counsel that there is nothing to show approval, compensation, publication and/or grant of the appellant’s land to the respondent. He opined that if the Certificate of Occupancy No. 12697 or any other one was issued to the respondent without proper revocation, same is incompetent and liable to be set aside. He referred to the case of Registered Trustees of Apostolic Church Vs Mrs. Emmanuel I. Olowolemi (1990) 10 SCNJ 69.
In a further submission, learned counsel contended that though the trial judge relied on the 26/8/1991 as the accrued date for the cause of action, the Niger State statute of Limitation, 2007 does not have or contain any provision as regards to the cause of action that purportedly accrued before the commencement of the law. He stated that this provision cannot apply or regulate an action that purportedly took place on the 26th day of April, 1991. He contended that the cause of action accrued in 2014, when the respondent wanted to eject the appellant from the land. It was submitted that by juxtaposing the provision of Section 6, 7 and 8 of the Limitation Law of Niger State, 2007 and the fact that the tenants of the appellant were in possession of the land, the cause of action arose in the year 2014 and not otherwise. Finally, learned counsel urged the Court to set aside the ruling of the lower Court delivered on 5/9/2016, and also dismiss the notice of preliminary objection filed by the respondent on 22/6/2016.
Learned counsel for the respondent submitted that the decision of the trial Court when it held that the action of the appellant is statute barred under Section 6 of the Limitation Law of Niger State was right. He contended that in determining the jurisdiction of the Court, it is the claim of the plaintiff vides his pleadings that are considered. He referred to the case of Merill Guaranty Savings Loans Limited & Anor. Vs Worldgate Building Society Ltd (2012) 3 SCNJ 639. He submits that in this case the appellant’s writ of summons/statement of claim shows genealogy of the root of title of the Appellant dating back to the 1970’s and when the Appellants suit was filed on 13/4/2016.
It was contended that to determine limitation of the Appellant’s suit, it is the writ of summons and the statement of claim in its totality that is considered. He referred to Elabanjo Vs Dawodu (2006) 15 NWLR (part 1001) 76 at 123 – 124 and Egbe Vs Adefarasin (No. 2) 1 (1987); NWLR (part 47).
Learned counsel argued that by pages 3, 4, 5, 16 and 131 of the printed record, statement of claim and judgment, the appellant’s suit is statute barred, as rightly held by the trial Court. It was opined that by the payment of compensation to the Appellant subjects in 1989, Appellant was aware that his alleged right has been tempered with and he refused to take legal action. He said the case of Registered Trustees of the Apostolic Church Vs Olowolemi (supra), cited by the Appellant is distinguishable and not applicable to the instant case. In concluding, he urged the Court to dismiss this appeal with substantial costs in favour of the Respondent.
A statute barred action, simply means an action barred by a provision of the statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no moment and has no valid effect. See Araka Vs Ejeagwu (2000) 12 SC (part 1) 99. In the case of Eboigbe Vs NNPC (1994) NWLR (part 347) 649 at 659 the Supreme Court held that where an action is statue-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 time laid down by the Limitation Law for institution of such an action has elapsed. See also Odubeko Vs Fowler & Anor. (1993) 7 NWLR (part 308) 637.
In this case, the respondent at the lower Court objected to the Appellant’s suit for being statute barred, he relied on Section 6 of the Limitation Law of Niger State, 2007. The said section provides that:
“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 accrued to some person through whom he claims to that person.”
In order to determine whether an action is statute barred, a consideration must be given to the writ of summons and the statement of claim alleging when the wrong was committed and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ of summons is beyond the period allowed by the Limitation Law then the action is statute barred. See Hassan Vs Aliyu (2010) 17 NWLR (part 1223) 547.
In view of the foregoing, a definition of cause of action is necessary, before determining when the cause of action accrued in this case. The words “cause of action” have been defined in a number of cases, to simply mean the facts which when proved will entitled a plaintiff to a remedy against a defendant. See Oshoboja Vs Amuda (1992) NWLR (part 250) 690. In Afolayan Vs Ogunrinde (1990) NWLR (part 127) 369, the Supreme Court per Obaseki, J.S.C (as he then was) said:
“In its simplest terms, I would say that a cause of action means
1) A cause of complaint,
2) A civil right or obligation fit for determination by a court of law;
3) A dispute in respect of which a Court of law is entitled to invoke its judicial powers to determine. It consists of every fact which it would be necessary for the plaintiff to prove if traversed, in order to support his right to judgment.”
In line with the above authorities, the cause of action in the instant case arose when the Defendant/Respondent was making frantic efforts to extend by fencing their land stretching into the plaintiff’s land by 1.401 hectares. See paragraph 12 of the plaintiff’s statement of claim on page 5 of the record of appeal.
The Defendant/Respondent admitted that he encroached the land in dispute pursuant to the permission it got to erect perimeter fence granted to it by Niger State Urban Development Board vide a letter dated 10/11/2014. See paragraph 18 of the Defendant’s statement of defence on page 35 of the record of appeal. It is apparently clear by those averments the cause of action in this case arose in 2014. The Plaintiff/Appellant’s writ of summons and the statement of claim were filed on 12th March, 2016. The maximum period provided by Section 6 of the Limitation Law Niger State 2007 for the Plaintiff/Appellant to institute this action against the Respondent is 10 years. Where as in the instant case the Defendant/Respondent is contending that the Plaintiff’s/Appellant’s action is statute barred, the onus is on the defendant to establish when the cause of action accrued to the plaintiff. See Odubeko Vs Fowler & Anor. (1993) LPELR 2235 (SC). Furthermore, it is also an established principle founded in the case of Savannah Bank of Nig. Ltd. Vs Pan Atlantic Shipping & Transport Agencies Ltd & Anor (1987) 1 NWLR (part 49) 217 where the Supreme Court per Onu JSC held:
“That it is not enough to plead a particular date the cause of action arose because if the date is not admitted by any reply of the plaintiff to the defendant statement of defence, it will be impossible to compute the limitation period it being not permissible indeed wrong for a Court to compute time from the date pleaded.”
In the instant case, the Defendant/Respondent by its statement of defence contended that the cause of action arose in 1991 when the land in dispute was granted to the Respondent vide Certificate of Occupancy number 12697 dated 26th August, 1991 by the then Military Governor of Niger State. The settled law is that in determining whether or not pleading disclose any reasonable cause of action, the trial Court will only examine the writ of summons and the statement of claim. It will not examine the statement of defence or any defence by way of affidavit. UBN Vs Umeoduagu (2004) 13 NWLR (part 890) 352.
Moreover, in view of the decision in Savanah Bank’s case (supra), the Plaintiff/Appellant did not admit the fact asserted by the Respondent in its statement of defence as to the date accrual of the cause action.
The burden remains on the Respondent to prove that the land granted to it extended to the Appellant’s land. The Respondent has failed to prove such. In view of the foregoing the Appellant’s action was filed within the period allowed by law as pleaded in his statement of claim. The sole issue for determination in this appeal is hereby resolved in favour of the Appellant.
Having resolved this issue in the Appellant’s favour, it is crystal clear that the appeal has merit and is hereby allowed. The ruling of the lower Court delivered in suit No. NSHC/MN/100/2016 by Hon. Justice Abdullahi Mikailu on 5th September, 2016 is hereby set aside. The case is hereby remitted back to the Hon. Chief Judge of the High Court of Justice, Niger State for trial on the merit.
There shall be no order as to costs.
ABDU ABOKI, J.C.A.: I have read before now, a draft of the lead judgment just delivered by my Learned Brother ADAMU JAURO, JCA. I agree that the appeal is meritorious and should be allowed.
The facts that led to the appeal and the reliefs sought by the parties are well spelt out in the lead judgment and I will not repeat same.
My Learned Brother has dealt exhaustively with the sole issue raised in this appeal and I adopt his judgment as mine. However, and just for purpose of emphasis, I will put in one or two words of mine on the definition of the phrase “cause of action”, and when it accrued in the instant appeal.
The term cause of action has been defined: “The facts or combination of facts which give rise to a right to sue.”
The phrase is of importance chiefly with reference to the Limitations Act, and the jurisdiction of certain Courts. Thus, time begins to run when the cause of action arises (unless postponed by reason of fraud, mistake, acknowledgment etc.) … See JULIUS BERGER (NIG) PLC v. OMOGUI (2001) LPELR 1638 (SC).
In EGBE V. ADEFARASIN (1987) 1 NWLR (PART 47) 1 at page 20 paragraphs D-E, Oputa JSC said:
“Now let us examine the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts, which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.” See also A.G ADAMAWA STATE & ORS v. A.G. FEDERATION (2014) LPELR 23221 (SC); ONOITA v. TEXACO (NIG) PLC (2016) LPELR 41483 (CA).
In the appeal under consideration, a community reading of Paragraph 12 of the Appellant’s Statement of Claim, and Paragraph 18 of the Respondent’s Statement of Defence unequivocally shows that the cause of action in this case arose in 2014, when the Respondent herein was making frantic efforts to extend their land stretching into the Appellant’s land by 1.401 hectares. The Suit giving rise to this appeal was filed on the 12th of March, 2016.
By provisions of Section 6 of the Limitation Law, Niger State 2007, actions on land related issues must be instituted within ten years. The Section 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 accrued to some person through whom he claims, to that person.”
It is manifest from the facts of this case that this action is not caught up by Section 6 of the Limitation Law of Niger State and the onus is on the Respondent who claims otherwise to prove same.
It is for this reason and the more detailed reasons given by my Learned Brother ADAMU JAURO JCA that I also find that this appeal is meritorious and ought to be allowed. It is hereby allowed by me.
I also abide by the consequential order contained in the lead judgment.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Adamu Jauro, JCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
E. S. Obidigbo, Esq.For Appellant(s)
Akogwu Egene, Esq.For Respondent(s)
