DR. ELIJAH H.L OLUSEYE (C.A.C. PRESIDENT WORLDWIDE) & ORS V. CHIEF ISAAC OWOLABI OTUN & ANOR (2011)

DR. ELIJAH H.L OLUSEYE (C.A.C. PRESIDENT WORLDWIDE) & ORS V. CHIEF ISAAC OWOLABI OTUN & ANOR

(2011)LCN/4464(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of April, 2011

CA/B/169/2006

RATIO

CAUSE OF ACTION: DEFINITION OF “CAUSE OF ACTION”

(1) No limitation law defined “cause of action” except the Law of Actions Law of Anambra State. Section 2 of the law defines cause of action as the sum total of the facts which are necessary to establish a plaintiff’s entitlement to the remedy which he claims. In Central Bank of Nigeria v. Manexpart S. A. (1987)1 14 WLR (Pt.47) 86 at 98 Nnaemeka-Agu, JCA (as he then was) (May his soul find rest in God) adopted the definition of cause of action by Diplock L.J. in Letany v. Cooper (1965)1 QB 229 at 242 as “a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person.” See also Sanda v. Kakawa Local Government & Anor (1991) 2 LRCN 632 at 642 where Nnaemeka-Agu JSC defined cause of action in the context of limitation of action thus” for the period of limitation of action under the Section is tied to the date of accrual of the cause of action and will run from that date. A cause of action in the context simply means the factual situation which, if substantiated, entitled the plaintiff/appellant to a remedy against the defendants.” Oputa JSC expressed the view that legally, expressions such as findings, action, cause of action are terms of art to which the law ascribed certain and definite meaning and proceeded to define cause of action as follows: “Now let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can 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. A cause of action is the right to enforce presently a cause of action. In other words a cause of action is the operative fact or facts. The factual situation gives rise to a right of action which itself is a remedial right.” See Egbe v. Adefarasin (1987)1 NWLR (Pt.47) 1 at 20 see also Omotayo v. NRC (1992) 7 NWLR (at 254) 471 at 482 – 483. PER NWALI SYLVESTER NGWUTA, J.C.A.

INTERPRETATION OF STATUTE: INTERPRETATION OF SECTION 3 OF THE LIMITATION LAW OF OSUN STATE AS TO WHETHER OR NOT AN ACTION CAN BE DISMISSED AS STATUTE-BARRED, WHERE THE DATE THE TRESPASS WAS OMITTED OR TO WHICH IT CONTINUED WAS NOT PROVIDED

A continuous trespass to property must start at a particular point in time but no where in the processes filed was the date the trespass started nor was the date to which it continued supplied. S.3 of the Limitation Law of Osun State Cap 20 relied on by the appellant provides “S.3 No action shall be brought by any person to recover land after the expiration of ten years from the date in which the right of action accrued to him, or if it first accrued to some person from whom he claims, to that person.” Without the date on which the trespass was omitted or to which it continued the action cannot be dismissed as statute-barred under S.3 of the Limitation Law. PER NWALI SYLVESTER NGWUTA, J.C.A.

APPEAL: ON WHAT BASIS ARE CASES WON ON APPEAL

STATUTE-BARRED: WHAT THE COURT WILL CONSIDER IN DETERMINING WHETHER OR NOT AN ACTION IS STATUTE-BARRED

…for the purpose of determining whether or not an action is statute-barred in limine, the period of limitation is determined by looking at the writ of summons and the statement of claim only, where one has been filed. It is either from one or both of these processes that one can ascertain the alleged date when the wrong in question can be said to have occurred, thereby giving rise to the plaintiff’s cause of action. See MILITARY ADMINISTRATOR, EKITI STATE V. ALADEYELU [2007] 14 NWLR (PT. 1055) 619 @ 628-629; WOHEREM V. EMEREUWA [2004] 13 NWLR (PT. 890) 398 @ 416. PER CHINWE E. IYIZOBA, J.C.A.

JUSTICES

NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria

CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria

MOORE A. A.ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. DR. ELIJAH H.L OLUSEYE (C.A.C. PRESIDENT WORLDWIDE)
2. PASTOR TOLA DEGUN (CHAIRMAN IFE DISTRICT CAC CHURCH)
3. CHRIST APOSTOLIC CHURCH OKE-IBUKUN, ILORO, ILE-IFE Appellant(s)

AND

1. CHIEF ISAAC OWOLABI OTUN
2. MR. ADESOJI ADESOKE FOR THEMSELVES AND ON BEHALF OF AKODA OTUN FAMILY, IFE. Respondent(s)

NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Leading Judgment): Endorsed on the writ of summons issued on 27th January, 2003 at the Registry of the High Court of Justice of Osun State, Ife Judicial Division sitting at Ile-Ife and re-stated in paragraph 29 of the Statement of Claim dated, and filed on 29/1/2003 are the plaintiffs’ claims against the defendant:
“1. A declaration that the Akoda Otun family is entitled to the statutory certificate of occupancy on a piece and parcel of land situate and lying and being at Iloro Area, of Ile-Ife, Osun state. The description of the land is as follows:
On the 1st side by Pedro Street on the 2nd side by Ademiluyi land property.
On the 3rd side by Akoda Otun family land.
On the 4th side by Existing road.
2. A declaration that the documents transferring title of the disputed land to the Christ Apostolic Church, Iloro, and Ile-Ife is invalid, fraudulent and void.
3. A sum of N6 Million Naira only for the continuous acts of trespass committed by the defendants on the disputed land.
4. An order of interlocutory injunction restraining the defendants, agents and privies from committing further acts of trespass on the plaintiff’s landed property lying situate and being at Iloro, Ile-Ife pending the determination of the suit.”
In response to the statement of claim served on them, the defendants in their statement of defence denied the claim relying on the limitation Law and their deed of conveyance. They described the claim as vexations (sic) speculative, unmeritorious, abuse of the process of Court and a gold digging adventure and urged the Court to dismiss same with heavy costs.
The third defendant relied on paragraphs 1 – 26 of the Statement of defence and counter-claimed as follows:
“1. For a declaration that the Registered Trustees of the Apostolic Diocese of Ibadan is entitled to the statutory right of occupancy over the land in dispute Registered as No. 52 at page 52 in Volume 1093 in the Land Registry, Ibadan, now in Osogbo. The said land, which is well known, is measuring 5.696 acres in dimension and situate and lying at Iloro area, Ile-Ife is bounded as follows:
(a) On the first part by Pedro.
(b) On the second part by one Ademiluyi’s land.
(c) On the third part by the Akoda Otun family and
(d) On the fourth (sic) part by an existing road.
The third defendant also counter-claims for: A declaration that the document transferring title of the disputed land to the Registered Trustees of Apostolic Diocese of Ibadan is valid and effective.
3. An order of mandatory injunction restraining the plaintiffs agents, privies or/and persons claiming through or by them from committing acts of trespass on the third defendant’s land situate, lying and being at Iloro, Ile-Ife.
4. On (sic) Million Naira general damages”
In a motion on notice brought “pursuant to Section 3, part 2, Cap 20 Vol.4 of the Limitation Law, Laws of Osun State, Order 8 Rules 1, 2, 3, Order 22, Order 24 Rules 2 and 3, Order 47 Rule 1 High Court (Civil Procedure) Rules” the second and third Defendant/applicants approached the Court for the following orders.
(1) To dispose to (sic) the point of law raised in paragraph 24 And 25 of the defendants/ applicants statement of defence dated 1st October 2004 and filed in this suit.
(2) To dismiss the above suit No. H/F/I/2003 between the Plaintiffs and the defendants therein on the ground that:
(a)The land in dispute was granted through pastors Elijah Titus Latunde, J.A. Modaiyese and James Olatunji Sogbesan and the Registered Trustees of Apostolic Diocese of Ibadan to the third defendant by virtue of the Deed of conveyance dated 18th December, 1968 and Registered as No. 52 at page 52 volumes 1093 of the Land Registry Ibadan now Osogbo.
(b) even if all the facts pleaded in the statement of claim were admitted (and they were denied) the plaintiffs will not be entitled to the claim and damages as the action was not brought within ten years recorded from the 18th day of December 1 968 when the land was conveyed by the plaintiffs’ family to the third defendant’s predecessor in title and therefore statute-barred.”
Learned counsel for the parties concluded their submissions in the motion on 1/4/2005 and the trial court adjourned the ruling to 17/5/2005. The ruling was not delivered as scheduled but later on 31/5/2005. In the said ruling the trial court dismissed the motion on the ground that the date the cause of action accrued was not stated.
Aggrieved by the ruling the appellants who were 2nd and 3rd defendants in the suit filed a notice of appeal containing three grounds.
Through their respective learned counsel the parties herein filed and exchanged their briefs of argument.
In the brief of argument dated 21/9/06 and filed on 28/9/06 learned counsel for the appellant seemingly not familiar with his own notice of appeal stated at paragraph 4.01 of his brief that:
“The appellants filed two grounds of appeal” and distilled one issue from the two grounds. The sole issue raised is “Whether considering the deed of conveyance at pages 17A – 17D of the record the Appellant’s argument particularly at page 20, paragraph 2 of the record of proceedings and the first paragraph of the ruling of the learned trial Judge the lower did make use of the evidence and materials before him to accord fair hearing to the Appellants as provided for in S.36 (1) at the Constitution 1999 when he dismissed their application.”
Learned counsel for the appellants is deemed to have abandoned his 3rd ground of appeal from which no issue is framed.
The 3rd ground is hereby struck out.
On his part learned Counsel for the Respondents framed the following two issues for the Court to resolve:
“1. Whether considering the Deed of Conveyance at pages 17A – 17D of the record; Exhibit “A” the appellants can reasonably complain of gross miscarriage of Justice because the Lower Court refused to dismiss the Respondents’ case at the preliminary stage when the Respondents’ case centres on challenging the validity of the said Deed of Conveyance, Exhibit A. Ground 1 of the Notice of appeal.
2. Whether it will be tantamount to denying the appellants fair hearing under S.36 of the Constitution of the Federal Republic of Nigeria 1999 when the Lower Court refused to consider the appellants’ submission of 11th of April, 2005 urging the Court to dismiss the Respondents case at the Preliminary Statement Ground 2 of the Notice of Appeal.”
The issues of miscarriage of justice in relation to the deed of conveyance Exh. A and fair hearing raised in the Respondents’ issue 1 and 2 respectively are encompassed In the appellants’ sole issue hereunder reproduced for ease of reference:
“Whether considering the Deed of conveyance at pages 17A – 17D of the record the Appellants argument particularly at page 20 paragraph 2 of the record of proceeding, and the first paragraph of the ruling of the learned trial judge the lower Court did make use of the evidence and materials before him to accord fair hearing to the Appellant as provided for under Section 36(1) of the Constitution 1999 when he dismissed their application.”
I will determine the appeal on the appellants’ sole issue reproduced above.
In the brief of argument, part of which was devoted to attack on the learned trial Judge rather than His Lordships Judgment, learned counsel for the appellant reproduced S.3 part 2 Cap. 20 of the Limitation Law, Laws of Osun State. He referred to Exh. A on page 17A – 17D of the records and said exhibit A was registered as No. 52 at page 52 in volume 1093 of the Land Registry, Ibadan now Osogbo. He contended that the Respondents in paragraphs 17 – 19 of their counter-affidavit admitted that grant and the registration of Exh. A as well as the existence of a primary school on the land since 1995 and also that a cathedral was under construction thereon. He referred to the ruling of the Lower Court and said that the Court agreed that the appellants got title to the land in dispute by a deed of conveyance dated 18th December, 1968. He said he referred to a plethora of Supreme Court cases to enable the Lower Court to determine the date the cause of action began and lamented that the learned trial Judge ignored the authorities and resorted to a dictionary definition.
According to learned counsel by so doing the trial court violated S. 36 (1) of the 1999 Constitution by denying the appellants right to a fair hearing. Counsel argued that the trial Court’s failure to consider Exh. A in its ruling to determine the date of accrual of the cause of action was a denial of the appellants’ right to a fair hearing. He cited in support of his argument the case of Ajayi Ltd & 2 ors v. Airline Management support Ltd. (2003)2 SCNJ 148 Lines 33 to 38 for the principle that it is an error in law for the Court to hold that there is no evidence when there is evidence upon which an issue can be resolved. Counsel submitted that there are abundant pieces evidence especially Exh. A and the affidavits from which the lower Court should have ascertained the date the cause of action accrued.
In one breath learned counsel contended that the cause of action accrued on 17th December, 1968, in the next breath he argued that if the learned trial judge had applied the law to the facts before the court he would have come to the conclusion that the cause of action accrued on 18th December, 1968 when the Respondents predecessors in title conveyed the land to the 3rd appellant as evidenced in Exh. A and dismissed the suit as statute-barred. Learned Counsel referred to the issue of accrual of the cause of action which he claimed the lower Court failed to discover and said the issue should have been clear if the court had averted its mind to the Supreme Court’s decision on the issue. He referred to Samuel A. Adigun v. I.O. Ayinde & 2 Ors (1993) 11 SCNJ page 3 ratio 3 for the determination that the cause of action arose the 10th February, 1978 when the accident in which the respondent sustained injury occurred.
Apparently issuing a warning to this Court learned counsel for the appellant relied on Ezekiel Oyinloye v. Babalola Esinkan & Ors (1999) 6 SCNJ page 280 ratio 2 in his contention that it will be a misdirection for a Court of Appeal to ignore, or fail to advert to the issues raised by the parties for the determination of the appeal. Counsel complained that “in its desperate search for the meaning of cause of action the lower court ignore or failed to advert to the appellant’s submission especially at page 20 of the record of proceeding and misdirected itself when he ruled that there was no information to determine the cause of action” He relied on Afolabi Adenle v. Folarin Olude (2002) 94 SCNJ page 97 for the need for the court to consider all relevant evidence in the resolution of issue in the case it decides. He relied on Godwin Ekiyor & Anor v. Chief Frukama Bomar (1997) 7 SCNJ 479 P.480 Saraki v. Alsthom S.A. (2005)1 SCNJ P.3 on the principle of fair hearing. He relied on Ebe Ebe Uka & Anor v. Chief Kalu Okone bolo & Ors (2002)7 SCNJ 137 at 141 and argued that it was wrong for the trial court to shy away from doing its duty and this he said resulted to a miscarriage of Justice. He urged the Court to consider his argument and the authorities he relied on and allow the appeal and set aside the decision of the lower Court.
In his own argument in his brief learned counsel for the Respondent dwelt at length on Exh. A to call its validity in question and concluded that “the controversy surrounding this Magic Deed of conveyance of the Appellants must be resolved one way or the other by the trial Court.’ Apart from citing some cases on fair hearing such as Chief Mene Kem & 2 Ors v. Chief Albert Tekam & 4 Ors (2001)11 SCNJ 138 at 144 – 145. IFEANYICHUKWU EJEKA V.THE STATE (2003) 6 SCNJ P.1 at page 8 learned counsel did not appreciate the issue in contention and devoted his argument to the merit of the main suit and the need for restraint in deciding matters on preliminary objection. In his conclusion he impugned the ruling against which he did not appeal complaining that “… a ruling is not commenced by the finding of the Court … The conclusion as contained in the ruling does not flow from the statement in the opening paragraph of the ruling.” He urged the court to dismiss the appeal with substantial costs.
From the claim and the entire proceeding in the court below as well as the arguments contained in the briefs filed on behalf of the parties by their respective learned counsel three related questions arise in the determination of this appeal. The questions are:
(1) What is a cause of action?
(2) What is the cause of action in suit No.CA/1/169/2006 from which this appeal emanated?
(3) At what point in time did the cause of action accrue?
I will deal with the above questions seriatim.
(1) No limitation law defined “cause of action” except the Law of Actions Law of Anambra State. Section 2 of the law defines cause of action as the sum total of the facts which are necessary to establish a plaintiff’s entitlement to the remedy which he claims. In Central Bank of Nigeria v. Manexpart S. A. (1987)1 14 WLR (Pt.47)
86 at 98 Nnaemeka-Agu, JCA (as he then was) (May his soul find rest in God) adopted the definition of cause of action by Diplock L.J. in Letany v. Cooper (1965)1 QB 229 at 242 as “a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person.” See also Sanda v. Kakawa Local Government & Anor (1991) 2 LRCN 632 at 642 where Nnaemeka-Agu JSC defined cause of action in the con of limitation of action thus” for the period of limitation of action under the Section is tied to the date of accrual of the cause of action and will run from that date. A cause of action in the con simply means the factual situation which, if substantiated, entitled the plaintiff/appellant to a remedy against the defendants.”
Oputa JSC expressed the view that legally, expressions such as findings, action, cause of action are terms of art to which the law ascribed certain and definite meaning and proceeded to define cause of action as follows: “Now let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can 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. A cause of action is the right to enforce presently a cause of action. In other words a cause of action is the operative fact or facts. The factual situation gives rise to a right of action which itself is a remedial right.” See Egbe v. Adefarasin (1987)1 NWLR (Pt.47) 1 at 20 see also Omotayo v. NRC (1992) 7 NWLR (at 254) 471 at 482 – 483.

Now with the above definitions of cause of action in view what is the factual situation in relation to the property in dispute in Suit No. CA/I/169/2006 upon which the respondents (as Plaintiffs) will be entitled to a judicial remedy against the appellants (as defendants)? The declaratory reliefs nos. 1 & 2 and the injunctive relief No. 4 cannot be maintained in absence of a factual situation upon which they can be predicated. That factual situation is the continuous acts of trespass for which N6m was claimed as damages. It is the trespass – the cause of action -that gave rise to the declaratory and injunctive reliefs.
Learned Counsel for the appellant repeatedly flogged Exh. A and flayed the learned trial Judge for not accepting the date of its execution 18th December, 1968 as the date the cause of action arose. It is wrong to regard Exh. A as the cause of action and more so to blame the learned trial Judge for not accepting the date of it execution as the accrual of the cause of action. For purposes of emphasis Exh. A is not the cause of action in the suit and ipso facto the date of its execution cannot be the date of accrual of the cause of action. The cause of action is the trespass for which the claim for N6m as damages and the declaration and injunctive reliefs were sought as remedy. In yet another demonstration of a characteristic traditional of learned counsel he berated the trial Court in the following uncomplimentary and uncharitable terms “In its desperate search for the meaning of cause of action the Lower Court ignored or failed to advert to the appellant’s submissions especially at page 20 of the record of proceedings and misdirected itself when he ruled that there was no information to determine the cause of action.” The learned trial Judge not in desperation, but with a view to doing justice between the parties before him referred to a well established legal source – Black’s Law Dictionary. Nothing in the authorities cited by counsel for the appellant or his supposedly erudite submission all of which he said the learned trial Judge ignored can support the bogus Claim that Exh. A is the cause of action and/or that the date of its execution is the date of accrual of the cause of action. It is unfounded allegation to say that the learned trial judge said there was no information to determine the cause of action.
At page 26 of the records the trial Court stated “Thus there is no information to determine the cause of action arose” Clearly the word “When” was Omitted between the Words “determine” and “the” but even with the omission there is no doubt in honest minds that the Court meant accrual of the cause of action. May be I need to point out to learned counsel that it is insulting as well as derogatory to use the personal pronoun “he” and impersonal pronoun “it” interchangeably in reference to a Judge or any person for that matter.
The omission to state that the address of counsel was considered in the ruling cannot vitiate the decision of the court unless it is demonstrated that the decision would have been different if the Court had expressly stated that it considered counsel’s addressee.
Also the issue of denial of fair hearing orchestrated by counsel in his brief does not arise from the proceedings. No party was denied fair hearing.
And now to the last of the three questions, I have determined that the cause of action is the continuous trespass in relief No. 3. The relief is hereunder reproduced. “A sum of N6 million naira only for the continuous acts of trespass committed by the defendants on the disported land.” See page 2 of the record. A continuous trespass to property must start at a particular point in time but no where in the processes filed was the date the trespass started nor was the date to which it continued supplied. S.3 of the Limitation Law of Osun State Cap 20 relied on by the appellant provides “S.3 No action shall be brought by any person to recover land after the expiration of ten years from the date in which the right of action accrued to him, or if it first accrued to some person from whom he claims, to that person.”
Without the date on which the trespass was committed or to which it continued the action cannot be dismissed as statute-barred under order S.3 of the Limitation Law. Whether the Respondents can prove their case as presented is a matter to be decided at the trial.

Cases are won on appeal by the quality of the grounds of appeal and issues framed there from in relation to the judgment appeal against and the cogency of argument offered on the issues. Disparagement of the trial Judge/Court is neither part of advocacy nor will it enhance the chances of a party’s success in the appeal.
The issue is resolved against the appellants, and consequently the appeal is devoid of merit and it is hereby dismissed. I affirm the ruling of the Court below.
Appellants are to pay costs assessed at N50, 000.00 to the Respondents.

CHINWE E. IYIZOBA, J.C.A.: I read in advance the judgment just delivered by my learned brother Nwali Sylvester Ngwuta JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
The respondents in this appeal sued the appellants in the lower court claiming title to the certificate of occupancy in respect of five acres of family land at Iloro area of Ile-Ife Osun State, declaration that the document transferring title of the disputed land to the appellants is invalid, fraudulent and void; damages for trespass and injunction. The appellants in defence claimed the land was granted to them by the family through a deed of conveyance dated 18th of December, 1968 executed by the representatives of the family at the material time. In the High court the appellants by motion on notice prayed the court to dismiss the case on the grounds, inter alia, that the action was statute barred, not having been brought within 10 years from the 18th day of December, 1968 when the land was conveyed by the respondents’ family to the 3rd appellants’ predecessor in title. In dismissing the motion, the learned trial judge held that there was no information in the processes filed by the respondents to determine when the cause of action arose. I agree with my learned brother that the date on the deed of conveyance cannot be the date the cause of action arose as the factual situation giving rise to the declaratory reliefs 1, 2 and 4 is the continuous trespass on the disputed land. The respondents may not have been aware of the conveyance until much later and it cannot be the subject of conjecture as to when the respondents became aware of the purported conveyance of their family land. Most importantly, for the purpose of determining whether or not an action is statute-barred in limine, the period of limitation is determined by looking at the writ of summons and the statement of claim only, where one has been filed. It is either from one or both of these processes that one can ascertain the alleged date when the wrong in question can be said to have occurred, thereby giving rise to the plaintiff’s cause of action. See MILITARY ADMINISTRATOR, EKITI STATE V. ALADEYELU [2007] 14 NWLR (PT. 1055) 619 @ 628-629; WOHEREM V. EMEREUWA [2004] 13 NWLR (PT. 890) 398 @ 416 Looking at the writ of summons and the statement of claim in this case, no information was disclosed as to when the cause of action arose.

The matter of whether or not the case is statute-barred cannot therefore be raised or determined in limine. The appellants clearly jumped the gun given the state of the pleadings. I abide by the consequential orders made in the lead judgment.

MOORE A. A.ADUMEIN, J.C.A.: I read in draft form the judgment just delivered by my learned brother, NGWUTA, JCA.
I agree with His Lordship’s reasoning in the lead judgment that this appeal lacks merit and it is hereby dismissed. I abide by the order as to costs

Appearances

C.O. Arasanmi Esq.For Appellant

AND

Abayomi Fabunmi Esq.,For Respondent