DR. OKERE NICHOLAS IRAGUNIMA & ANOR v. BEAUTY IGAH & ORS
(2010)LCN/3914(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of June, 2010
CA/PH/293/2001
RATIO
WHAT CONSTITUTES CAUSE OF ACTION
…I agree with the Appellants on the authority of ADEWUSI v. POPOOLA (2000) FWLR (pt.175) 432 that the accrual of the cause of action is the event whereby a cause of action becomes complete so that an aggrieved party can begin and maintain his action. The cause of action, in the first place, is either of these three circumstances – i. Every fact, not evidence, which will be necessary for the plaintiff or claimant to prove, if traversed to support his right to judgment, or ii. Every fact material to be proved by the plaintiff to enable him succeed; or iii. A factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. See THOMAS v. OLUFOSOYE (1986) 1 NWLR (pt.18) 669 per OBASEKI, JSC, and AFOLOYAN v. OGUNRINDE & ORS (1990) 2 SCNJ 62 at 70. PER EJEMBI EKO, J.C.A
DUTY OF THE COURT WHERE THE DEFENDANT INVOKES IN LIMINE THE PLEAS OF THERE EXISTING NO CAUSE OF ACTION OR LOCUS STANDI ON THE PART OF THE PLAINTIFFS, AND THAT THEIR SUIT IS STATUTE BARRED
At this stage, where the defendant invokes in limine the pleas of there existing no cause of action or locus standi on the part of the plaintiffs, and that their suit is statute barred what the trial court is obliged to decide at this stage is only whether the action is maintenable on the facts pleaded. See FRED EGBE v. ALHAJI (1990) 3 SCNJ 41 at 41. At this stage of preliminary objection it is not advisable that the ruling should delve into the merits of the case on disputed facts. PER EJEMBI EKO, J.C.A
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
1. DR. OKERE NICHOLAS IRAGUNIMA
2. JUSTICE SYLVERLINE IRAGUNIMA Appellant(s)
AND
1. BEAUTY IGAH
2. CLARA SHOBAYA
3. GODLOVERS A. DOKUBO OPUEJE (SUBSTITUTED BY MRS. CHRISTIE DOKUBO)
4. ATTORNEY GENERAL, RIVERS STATE Respondent(s)
EJEMBI EKO, J.C.A (Delivering the Leading Judgment): The appeal is against the ruling of Hon. Justice E.N. Ichoku, then the Chief Judge of Rivers state High court, delivered on 13th February, 2000. The Appellants were the plaintiffs while the Respondents were the Defendants at the lower court. By a Deed of Assignment registered as No 83 at page 83 in volume 318, one Mercy A. Ogubie assigned her interest in the property at No 71 Bonny street, otherwise known as Block ‘D’ Port Harcourt to Madam Elizabeth E. Igah, the mother of the then 1st Defendant, now 1st Respondent and the 1st plaintiff now 1st Appellant. The said Madam Elizabeth Igah, a business woman in Port Harcourt, took steps on 23rd May, 1972, to assign her interest in the property in dispute to the 1st Respondent her son. The aforesaid Deed of Assignment was later registered as No 11 at page 11 in volume 219 in the Lands Registry, Port Harcourt in 1995. The said Madam Elizabeth Igah, the mother of 1st Appellant and 1st Respondent, died intestate in July, 1976. After the demise of their mother, the 1st Respondent assigned his interest in the property in dispute to the 3rd and 4th Respondents. Twenty years (20) after the demise of Madam Elizabeth Igah and also twenty three (23) years after the aforesaid Madam Elizabeth Igah had appended her signature to this document purportedly assigning her interest to her son -the 1st Respondent, and also a year after the 1st Respondent had assigned the property in dispute to the 3rd and 4th Respondents, the Appellants as plaintiffs, instituted this suit now appealed against at the lower court claiming per their amended statement of claim for the following:
1) A declaration that the property in dispute is a family property of late Madam Elizabeth the same laving been partitioned or shared in, accord with Okrika native law and custom;
2) An order setting aside the Deed of Assignment made on 23d May, 1972 made between the 1st Respondent, and the late Madam Elizabeth Igah;
3) An injunction restraining 1st Respondent from interfering with the Appellants right of enjoyment of the said property or selling same.
The writ was taken out in 19th March 1996 challenging inter alia the deed of assignment registered by the 1st Respondent in 1995.
As contained at pages 69 – 80 of the Record of appeal, as the parties exchanged their respective pleadings. The 1st Appellant testified on the plaintiffs’ pleading as PW.1. Thereafter 1st Respondent by way of motion on notice, applied to set down the points of law raised in their pleadings. The ground of the application was that the action commenced was statute-barred; that the plaintiffs/Appellants not being parties to the Deed of Assignment between the late Madam Igah and the 1st Respondent, they (Appellants) have no locus standi to pray the court to set aside the Deed of Assignment. The lower court heard the parties and then delivered a ruling upholding the points of law raised by the Applicant and dismissing the Appellants claim in toto, and therefore, the appeal filed timeously, containing seven (7) grounds of appeal, from which, per the Appellants brief, two issues for determination have been raised. The issues read as follows:
“1. whether from the state of the pleadings, the learned trial judge was justified in upholding that the action was statute-barred and there was no fraudulent concealment or concealment on the part of the Respondent of his interest in the property in dispute.
2. whether the learned trial Chief Judge was right in holding that the Appellants have no locus standi to maintain this action”.
The 1st, 2nd and 3rd- 4th Respondents in their respective briefs adopted the Appellant’s two issues as germane to the determination of this appeal. On the hearing date of this appeal, the parties (except 3rd and 4th Respondents) identified and relied on their respective briefs of argument. The brief of the 3rd and 4th Respondents was deemed argued.
The Appellants’ argument under Issue 1 is that the 1972 transaction, Exhibit ‘A” the deed of assignment, having been repudiated by the assignor before registration, no longer vested any registrable interest in the 1st Respondent. That is, that the 1st Respondent could not register an interest not vested in him since Exhibit ‘A’ was repudiated by Madam Elizabeth Igah, the assignor., and the repudiation was acknowledged and accepted by the 1st Respondent in Exhibit ‘D’ dated 18th July, 1972. The Appellants further submitted that on 16th June 1972 the late Madam Elizabeth Igah, the named assignor in Exhibit ‘A’ had published in the Nigerian Star newspapers following declaration or caveat:
DECLARATION
I, Elizabeth Igah of Okrika, resident at 71 Bonny Street, Port Harcourt, do hereby make the following declaration, that I had in error signed some documents concerning my house, No 71 Bonny Street, as if assigned to someone. And therefore any documents, deeds ET CETERA CONCRNING 71 Bonny street House, if tendered by anyone, for mortgage, loan on or sale of the said house should be discountenanced. Anyone disobeying this declaration does so at his or her own risk. The house is still mine.
ELIZABETH IGAH 71 Bonny Street, P.H 18th June, 1972
And that following this publication the 1st Respondent wrote to the said Madam Elizabeth Igah, his mother, in Exhibit ‘D’ stating inter alia
– you think I am after or I am trying to sell according to you., I am not interested on 71 Bonny Street, anymore, so don’t worry the local newspaper.
It was further contended by the Appellants that the said publication in the Nigerian star newspaper and the 1st Respondent’s letter in Exhibit ‘D’ together with the Chief Land Officer’s letter of 17th June, 1972, Exhibit ‘B’, inviting both Madam Elizabeth Igah and the 1st Respondent to his office for interview over the subject matter on Wednesday 21st June, 1972 had estopped the 1st Respondent from claiming ownership of the disputed property on the basis of the purported deed of assignment – Exhibit ‘A’.
The deed of assignment, Exhibit ‘A’, was not registered by the 1st Respondent until some (19) years after the death of Madam Elizabeth Igah in 1976. The fact remains indubitable that the deed of assignment was presented for registration by 1st Respondent, and it was only registered at his instance in 1995 – twenty-three (23) years after it was made and after the assignor, Madam Elizabeth Igah, renounced it in Exhibit ‘D’ on 16th June 1972 Madam Elizabeth Igah, as pleaded by the Appellants in the Amended Statement of claim, died intestate on 22nd July, 1976.
It is also the contention of the Appellants, as plaintiffs, that upon the death of Madam Elizabeth Igah, the mother of 1st Appellant and 1st Respondent, and grand mother of the 2nd appellant, her intestate property, including the disputed property, were shared to her surviving children in accordance with Okrika custom by two Okrika chiefs in 1984. And that the disputed property was partitioned as follows – 1st Respondent – 3 rooms, 1st Appellant – 2 rooms and the mother of 2nd, Appellant – 2 rooms respectively. It is further averred that the 2nd Appellant’s mother died and her share devolved unto the 2nd Appellant.
The 1st Appellant had testified as PW.1 and the Appellants, as plaintiff, had filed, upon leave granted to that effect, the second Amended Statement of claim when the 1st Respondent moved that the issues of the cause of action, locus standi and limitation should be set down for hearing on points of law alone. The learned trial Chief Judge ruled on 13th March, 2000 that
i. the Appellants not being parties to the deed of assignment dated 23rd May, 1972, registered as No 11 Page 11 vol. 219 between Madam Elizabeth Igah and the 1st Respondent could not be heard to pray the court to set aside the said deed
ii. the Appellants have no locus standi to bring or institute the suit, and
iii, the action is statute barred.
The centre point of the learned Chief Judge’s ruling is that the cause of action arose in 1972, and not in 1995 when the 1st Respondent purportedly registered the 1972 deed of assignment between himself and his mother, Madam Elizabeth Igah. This led to the argument whether the applicable limitation statute was the English statute of limitation or the Real Property Limitation Act of England, 1939 or the Rivers State Limitation Law of 1988.
I have perused and considered all the briefs exchanged in the appeal by the parties hereto. I intend to treat and consider the two issues together, as they are related, I agree with the Appellants on the authority of ADEWUSI v. POPOOLA (2000) FWLR (pt.175) 432 that the accrual of the cause of action is the event whereby a cause of action becomes complete so that an aggrieved party can begin and maintain his action. The cause of action, in the first place, is either of these three circumstances –
i. Every fact, not evidence, which will be necessary for the plaintiff or claimant to prove, if traversed to support his right to judgment, or
ii. Every fact material to be proved by the plaintiff to enable him succeed; or
iii. A factual situation, the existence of which entitles one person to obtain from the court a remedy against another person.
See THOMAS v. OLUFOSOYE (1986) 1 NWLR (pt.18) 669 per OBASEKI, JSC, and AFOLOYAN v. OGUNRINDE & ORS (1990) 2 SCNJ 62 at 70.
The undisputed circumstance of this case is that in May 1972 the 1st Respondent got his mother, Madam Elizabeth Igah, an illiterate, to “execute” a purported deed of assignment. Shortly after the transaction and by the publication in the Nigerian star newspaper, Madam Elizabeth Igah came out publicly to repudiate or renounce the transaction, as non est factum. And in Exhibit ‘D’ the 1st Respondent in his own letter of 18th July, 1972 registered only in 1995 to the mother declared inter alia that he was no longer interested in the disputed property, the subject of the deed of assignment of 23rd May 1972. It would appear by this averment that the 1st Respondent accepted the repudiation of the deed of assignment by his mother. He took no further steps to register it in the life time of his mother. The second Amended statement of claim and the evidence of PW.1 further allege that in 1984, after his mother’s death in 1976, the 1st Respondent further participated in the partition of the same property. These and other facts are the grounds on which the Appellants found their assertion that the 1st Respondent was estopped from insisting on the deed of assignment of 23 May 1972, which he did not make any efforts to register until 1995. There is no evidence yet that the 1st Respondent took any steps to challenge Madam Elizabeth Igah’s purported repudiation of the deed of assignment. The newspaper publication had adversely affected his interest to constitute a cause of action. On the other hand, the plea of estoppel by conduct against the 1st Respondent founded on the facts of his own letter of July 1972, Exhibit ‘D’, and the submission to the partitioning in 1984 of the house at No 71 Bonny street, the house in dispute, seems to place the Appellants on a strong wicket that the cause of action could not have accrued in 1972, as the learned chief Judge held, albeit erroneously. These facts are loudly pleaded by the Appellants in second Amended statement of claim.
I do not think the cases of EDOKPOLO & CO. LTD v. OHENHEN (1994) 7 NWLR (pt.358) 511; OMEGA BANK (NIG) PLC v. B.C. LTD (2005) 8 NWLR (pt.928) 547; SANYAOLU v. COKER (1983) 3 SC 724 and AJADI v. OKENIHAN (1985) 1 NWLR [pt.3] 484 will be of any moment at the stage the matter was set down for hearing in limine on points of law on the grounds that no cause of action or locus standi by the Appellants had been disclosed and that the suit was statute barred. EDOKPOLO & CO. LTD v. OHENHEN (supra), for instance, is quite distinguishable. There was plea of fraud, illiterate protection law and repudiation or non est factum by an illiterate. The resolution of the issues was only upon full trial, and not in limine as in the instant case. At this stage, where the defendant invokes in limine the pleas of there existing no cause of action or locus standi on the part of the plaintiffs, and that their suit is statute barred what the trial court is obliged to decide at this stage is only whether the action is maintenable on the facts pleaded. See FRED EGBE v. ALHAJI (1990) 3 SCNJ 41 at 41. At this stage of preliminary objection it is not advisable that the ruling should delve into the merits of the case on disputed facts.
At pages 143 – 147 of the Record, the learned chief Judge in his ruling seems to have confused the issues set down for trial limine. Only points of law, and not resolution of conflicting facts, had been set down for trial in limine. The 1st Respondent had merely raised preliminary objection on points of law; the quick resolution of which will not necessitate full trial, or the determination on the merits of the suit. One fundamental aspect of locus standi, for instance, is that it focuses on the party seeking to get his complaint heard before the court, and not on the issues he wishes to have the court adjudicate on between himself and the defendant: ADESANYA v. THE PRESIDENT (1981) 1 ALL NLR (pt.1) 1 at 45.When locus standi is raised, as the 1st Respondent did at the trial court, the court needs only to examine the cause of action or the claims to ascertain if the plaintiff’s locus standi or standing to sue has been disclosed. In the instant case the Appellants, as plaintiffs, pleaded that their mother, Madam Elizabeth Igah, died intestate in 1976; that in 1984 the property in dispute was partitioned according to Okrika custom and that they, like the 1st Respondent, took their respective portion.
And further that the 1995 registration of the 1972 transaction allegedly repudiated by Madam Elizabeth Igah in the same 1972, in her life time to the knowledge and acknowledgement of the 1st Respondent and the Chief Lands Officer of Rivers state was fraudulent and should be set aside. From the peculiar facts of this case I do not have any hesitation in holding that the cause of action was the 1995 registration of the 1972 transaction, the deed of assignment between the 1st Respondent and Madam Elizabeth Igah which the latter was alleged to have promptly repudiated in 1972.
The Appellants had pleaded that from their conduct the 1st Respondent and the 2nd Respondent (through the Chief Lands officer) were estopped from denying the repudiation. The 1984 partitioning vested in the Appellants the necessary locus standi. The 1995 registration which had the effect of extinguishing or expropriating their interest in the said property at No 71 Bonny Street, Port Harcourt is the cause of action. Since the cause of action accrued to the Appellants in 1995 I think, and I so hold, that the suit is not statute barred by dint of Rivers State Limitation Law No 7, 1988, which prescribes 10 years for action for recovery of real property as House No 71, Bonny street Port Harcourt.
Apropos, I hereby resolved the two issues in favour of the Appellant. The suit of the Appellants before the learned Chief Judge was not statute barred, as he had held quite erroneously. The ruling did not consider that the 1995 registration of the 1972 purported deed of assignment, allegedly repudiated by the assignor and the said repudiation duly acknowledged by the assignee was the cause of action in the suit.
The appeal, on all the two Issues, is hereby allowed. The ruling of the learned Chief Judge at pages 150 – 169 of the Record of appeal is hereby set aside. The reliefs in the motion papers giving rise the ruling the subject of this appeal is hereby dismissed in its entirety. The suit is hereby remitted to the Chief Judge of Rivers state for reassignment and hearing of the same de novo.
Costs assessed at N50, 000.00 shall be paid to the jointly and/or severally by the 1st Respondent.
ISTIFANUS THOMAS, J.C.A: I have had the privilege of reading in advance the lead judgment of my learned brother, Ejembi Eko, JCA, and I entirely agree that the appeal has merit. I hereby allow the appeal on all the issues canvassed, and adopt the lead judgment as my own and also abide by the consequential orders therein, including costs,
TIJJANI ABDULLAHI, J.C.A: I have read in advance the lead judgment of my learned brother, EKO, JCA and I entirely agree with him that the cause of action arose in 1995 and that the suit is not statute barred as erroneously held by the learned trial judge.
It is trite that the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his action. See ADEWUSI v. POPOOLA (2000) FWLR (pt. 175) 432 at p. 434.
In the light of the foregoing and the more detailed reasons contained in the led judgment of His Lordship, I too allow the appeal and remit the suit back to chief Judge of Rivers state for reassignment and trial de novo. I abide by the order as to costs contained therein.
Appearances
I.D. Darego (Miss) for the Appellant (A.J. Jamabo Esq. settled the brief)For Appellant
AND
J.T.O. Ugboduma Esq. with H. Amururhobo Esq. and J.F. Enyindah Esq for 1st Respondent.
I.R. Minakiri (Mrs.) DCL MOJ Rivers State for 2nd Respondent.
O. Ben-Whyte Esq. for 3rd and 4th Respondent (absent.)For Respondent
