IBEANU v. OBINWUNE & ORS
(2020)LCN/14455(CA)
In The Court Of Appeal
(AWKA JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/AW/375/2014
Before Our Lordships:
Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal
Rita Nosakhare Pemu Justice of the Court of Appeal
Bitrus Gyarazama Sanga Justice of the Court of Appeal
Between
JAMES IBEANU APPELANT(S)
And
- CHIEF MRS ROSELINE OBINWUNE 2. BARRISTER FIDELIS OBINWUNE (For Themselves And On Behalf Of The Sons Of Late Chief Charles Oguine Obinwune’s Family Of Ugwudunu Village, Neni) 3. MR. JOSEPH OBINWUNE 4. MR. OKWUDILI OBINWUNE (For Themselves And On Behalf Of Late Chief Cyril Nnaeto Obinwune Family) 5. MR. CHIKWADO IBEANU (Representing The Sons And Beneficiaries Of Late Alphonsus Ibeanu Umudioka Village, Neni) RESPONDENT(S)
RATIO
WHETHER OR NOT A RESPONDENT IS ENJOINED TO DEFEND A JUDGEMENT WITH ALL THE RESOURCES AT HIS DISPOSAL
In DR. OLAFESO & ORS V CHIEF MAKANJUOLA OGUNDIPE & ORS (2018) LPELR 44305 C.A, I did observe that:-
“A Respondent is enjoined to Defend a judgment with all the resources at his disposal. Therefore, a Respondent is not allowed to appear on appeal to be remonstrating with any aspect or part of the decisions except by way of Respondents’ notice or by way of direct appeal against any part of the judgment.”
See also MINISTER PMR V E.L NIG LTD (2010) 12 NWLR (part 261); ECHEFU & ORS V EMENIKE & ANOR (2018) LPELR 43682 C.A. PER PEMU, J.C.A.
WHETHER OR NOT PLEADING SUCH AS LIMITATION LAW MUST BE EXPRESSLY SET OUT IN THE STATEMENT OF DEFENCE
In KETU V ONIKORO 1984 10.S.C. 265 @ 267 Obaseki JSC (as he then was) stated the law thus:-
“It is a cardinal rule of pleadings that such specific matters as the Limitation law must be expressly set out in the Statement of Defence. Once it is not pleaded, the defendant cannot be granted the protection of that law. In the above case, statute bar was not pleaded and even if it is applicable, the Court cannot grant the defendant the benefit of Limitation Law cntrary to the Rules of Pleading and the Principle of avoidance of surprise”.
In GURUYEL V BARA & ORS, 2018 LPELR 44399, this Court had held that matters of jurisdiction deal with and affect the competence of a Court, as a Court to hear a matter, limitation Law on the other hand, affects a cause of action or the validity of a cause of action instituted outside the Limitation period. Thus though a matter caught by the Limitation Law cannot be adjudicated upon by a Court, Limitation Law has nothing to do with the jurisdiction or competence of a Court to decide the matter. PER PEMU, J.C.A
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the judgment of the High Court of Anambra State, Onitsha Judicial Division, delivered on the 28th of March 2014. In the judgment, the Court below granted in part the Plaintiff’s claim and dismissed part of the Reliefs sought by the Plaintiffs.
SYNOPSIS OF THE FACTS
At the Court below, the 1st and 2nd Respondents were Plaintiffs, and brings this Suit for themselves and on behalf of the sons of Late Chief Charles Oguine Obinwune’s Family of Ugwudunu Village, Neni.
The Appellant was the 2nd Defendant in that Suit.
The 3rd and 4th Respondents in this Appeal were the 1st and 3rd Defendants at the trial Court.
The Plaintiffs (1st and 2nd Respondents) claim is as stated in paragraph 27 of their Statement of Claim – Pages 17 – 18 of the Record of Appeal.
It is the case of the Plaintiffs that their late father Chief Charles Oguine Obinwune and the 1st Defendant (3rd Respondent in this Appeal) agreed to join their business with that of their maternal cousins in this wise viz, the Plaintiff’s father and the 1st
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Defendant’s business on one hand was joined with the business of the 2nd Defendant’s father and the 4th Respondent’s father, on the other hand.
The above parties contributed equal amounts to the business, merged and formed the business – SOCIAL TRADING SYNDICATE. The 1st Defendant (3rd Respondent who was most educated among them) became the Managing Director.
The parties agreed that each property they bought will be acquired in the name of Ibeanu and Obinwune, that is to say in the name of either the Plaintiff’s father, or in the name of the 2nd Defendant’s father, or in the name of the father of the 1st and 3rd Defendants.
The parties then proceeded to acquire a total of seven (7) properties, whose title documents are with the Appellant who was the 2nd Defendant in the Suit, and the 1st and 3rd Defendants at the Court below.
The Social Trading Syndicate eventually had problems and could no longer function. The parties discharged and separated with each one going his own way and doing their individual businesses.
It is the story of the Appellant that the property has not been shared but the Appellant
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and the 3rd Respondent (1st and 2nd Defendants in the Court below) have been managing the property and had refused to account to the Plaintiffs.
The matter was taken to Customary Arbitration to no avail.
The Appellant, and the 3rd and 4th Respondents (who were the 1st, 2nd and 3rd Defendants in the Court below) filed a joint statement of Defence – Paragraph 38 of the Record of Appeal.
The Defence of the Appellant at the Court below as well as the 3rd and 4th Respondents is that the Suit of the 1st and 2nd Respondents (as Plaintiffs) is statute barred.
The Appellant is dissatisfied with the judgment of the Court below and filed a Notice and Grounds of Appeal on the 26th of May, 2014 encapsulating six (6) Grounds of Appeal – Pages 350-360 of the Record of Appeal.
The Appellant filed his brief of Argument, but did not state thereon when it was filed. On the 4th of June 2020 when this Appeal was argued, Obi Anizoba ESQ. for the Appellant did not say when his brief of argument was filed.
The brief of argument is however dated 15th of July 2014. It is settled by Obi Anizoba Esq. (JP).
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The 1st and 2nd Respondents filed an amended brief of argument on the 24th of March 2020. It is settled by Dr. J. U. Okoye Esq.
The 3rd and 4th Respondents’ brief of argument was filed on the 17th of July 2017. It is settled by Ephraim N. Agubalu Esq.
The Plaintiff filed a Reply brief on the 4th of October 2016.
The Appellant distilled two issues for determinations from the Grounds of Appeal. Viz.
A. Whether the trial Court was competent to make an order direction the landed properties which situate at No. 37 Zik’s Avenue Fegge Onitsha, No. 1 Ziks Avenue, Fegge Onitsha, No. 15 Bent Lane GRA Onitsha, No. 22 Aggrey Road P.H. Rivers State, No. 17 Awkunanaw Enugu (Now Ochi Street Awkunanaw Enugu), No. 19 Awkunanaw Enugu (Now Ochi Street Awkunanaw Enugu) and No. 2 Mgbemena Street Enugu to be shared between the 1st and 2nd Respondents and the 3rd Respondent only when the relief sought at the trial Court was for an order to share the properties equally between the 1st and 2nd Respondents, the Appellant, the 3rd and 4th Respondents who were parties to the suit. (Grounds 3(i), (ii), (iii), (iv), (v), (vi) and (viii).
B. Whether the suit brought by the 1st and 2nd
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Respondents who were the Plaintiffs at the trial Court was statute barred). Ground 3(vii).
The 1st and 2nd Respondents distilled two (2) issues for determination which are an adoption, verbatim, of the Issues proffered by the Appellant.
The 3rd and 4th Respondents adopts and abide by the issues raised by the Appellant in his brief.
On the 4th of June, 2020 the parties adopted their respective briefs of argument in Court.
Notably is that in the 3rd and 4th Respondents’ brief, in the last paragraph, he urged this Court to resolve the issues as framed by the Appellant in their favour, and to allow the Appeal, as well as set aside the judgment of the 28th day of March 2014. This implies that he concedes the Appeal. But they cannot do this in law as a Respondent cannot concede the Appellant’s case and be a Respondent at the same time. He should have filed a Respondent’s Notice. In DR. OLAFESO & ORS V CHIEF MAKANJUOLA OGUNDIPE & ORS (2018) LPELR 44305 C.A, I did observe that:-
“A Respondent is enjoined to Defend a judgment with all the resources at his disposal. Therefore, a Respondent is not allowed to appear
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on appeal to be remonstrating with any aspect or part of the decisions except by way of Respondents’ notice or by way of direct appeal against any part of the judgment.”
See also MINISTER PMR V E.L NIG LTD (2010) 12 NWLR (part 261); ECHEFU & ORS V EMENIKE & ANOR (2018) LPELR 43682 C.A.
On that plank alone, this Court cannot consider the arguments of the 3rd and 4th Respondents and their brief is hereby discountenanced accordingly.
The 1st and 2nd Respondents raised in paragraph 1.12 of their brief of argument a preliminary objection; of which notice is given to the Appellant. It is that this Honourable Court should strike out the Notice of Appeal and the Appellant’s brief of argument. The Grounds upon which the Preliminary objection is predicated are that:
a. The said Notice of Appeal dated the 26/5/2014 is an abuse of the processes of the Honourable Court since the Appellant therein is also canvasing the same argument he is canvasing in this appeal; Appeal No CA/E/286/2014 already pending before this Court and arising from the same judgment as the instant appeal.
b. The Appellant alongside his co-appellants
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have filed an appellant’s brief of argument in the earlier APPEAL NO. CA/E/375/2014.
c. The filing of two notices of Appeal one by the appellant together with the 2nd and 3rd Respondents (APPEAL NO CA/E/286/2014 and yet another by the appellant solely (CA/E/375/2014) constitutes an abuse of the processes of this Honourable Court.
The 2nd issue for determination in the Appellant’s brief of argument is
“WHETHER THE SUIT BROUGHT BY THE 1ST AND 2ND RESPONDENTS WHO WERE THE PLAINTIFFS AT THE TRIAL COURT WAS STATUTE BARRED”.
This issue is questioning the jurisdiction of the Court below to entertain the Suit, the subject matter of this Appeal. It is pertinent to resolve this issue first and foremost as raised, before going into the merits of the appeal.
If I find that there is merit in this issue of statute bar, then that knocks the bottom off the proceedings in the Court below.
It is the Appellants contention referring to paragraphs 29, 30, 31, 32, 33 and 34 of the statement of Claim that it is from the Writ of Summons or particulars of Claim (if any), or statement of claim that the Plaintiff offers material to the
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Court to decide, whether the Court has jurisdiction or not. That it is from these particulars that dates of cause of action could be garnered to decide for example, whether an action is time barred or not. Or whether a subject matter is within the competence of a Court, or determine whether jurisdiction has been ousted by Statutes – citing McLAREN V JENNINGS (2003)3 NWLR (PART 808) 472 AT 486.
The Appellant submits that the cause of action in the suit, the subject matter of this appeal arose when the 1st and 2nd Respondents father was alive. That this is informed by the pleadings of the 1st and 2nd Respondents in paragraph 28 of their statement of claim that their father died mysteriously in 1996.
That even at the local arbitration same was pleaded, and that all that happened at the local arbitration, pleaded by the 1st and 2nd Respondents in their Statement of Claim, took place before their father died in 1996.
That after the burial of their late father, the 1st and 2nd Respondents went to the 1st Defendant to ask him when the sharing will be done, but the 1st Defendant said no to what was agreed to by the various parties to the
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transaction.
The 1st Defendant said that he would not share the properties, some of which are the subject matter of this appeal.
He submits that the cause of action arose in 1996 when the 1st and 2nd Respondents went to the 3rd Defendant to ask him when the sharing of the landed properties in dispute would be done as agreed to by the parties. The 3rd Respondent said No.
That it was at the point when the 3rd Respondent said no to the sharing of the landed properties with the 1st and 2nd Respondents, that was when the cause of action arose.
Submits that from the facts pleaded by the 1st and 2nd Respondents at the Court below, they showed when their cause of action arose, which was before the demise of their late father Chief Charles Oguine in 1996. Therefore, the Suit filed by the 1st and 2nd Respondents which is the subject matter of this Appeal) filed in 2011 is statute barred.
He submits that from the Plaintiff’s late father seeking the sharing of the landed properties mentioned in 1976 up to 1996, when the Plaintiff’s father died, was more than a period of 12 years.
But the Suit having been filed in the year 2011, it
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was statute barred – far beyond the time limited by operation of law.
The 1st and 2nd Respondents argue that a cause of action is said to accrue for the purpose of limitation, upon the occurrence of an event, whereby a cause of action becomes complete, so that the aggrieved party can begin and maintain his cause of action. That in determining whether a suit is statute barred or not, the time the cause of action arose or accrued, and the time the Suit has been filed or instituted, are to be ascertained by looking at the pleadings contained in the statement of claim.
The 1st and 2nd Respondents submit that defence of statute bar must be specifically pleaded citing N.I.I.A. V AYANFALU (2006) All FWLR. 325 at 141.
In KETU V ONIKORO 1984 10.S.C. 265 @ 267 Obaseki JSC (as he then was) stated the law thus:-
“It is a cardinal rule of pleadings that such specific matters as the Limitation law must be expressly set out in the Statement of Defence. Once it is not pleaded, the defendant cannot be granted the protection of that law. In the above case, statute bar was not pleaded and even if it is applicable, the Court cannot grant the
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defendant the benefit of Limitation Law cntrary to the Rules of Pleading and the Principle of avoidance of surprise”.
In GURUYEL V BARA & ORS, 2018 LPELR 44399, this Court had held that matters of jurisdiction deal with and affect the competence of a Court, as a Court to hear a matter, limitation Law on the other hand, affects a cause of action or the validity of a cause of action instituted outside the Limitation period. Thus though a matter caught by the Limitation Law cannot be adjudicated upon by a Court, Limitation Law has nothing to do with the jurisdiction or competence of a Court to decide the matter.
A cursory look at the Statement of Defence shows that the issue of Statute bar was pleaded at the Court below.
The 1st and 2nd Respondents had at page 4 of their brief raise a Preliminary Objection on the following grounds viz:
a) The said Notice of Appeal dated the 26/5/2014 is an abuse of the processes of the Honourable Court since the appellant therein is also canvassing the same argument he is canvassing in this appeal in Appeal No CA/E/286/2014 already pending before this Court and arising from the same judgment as the
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instant appeal.
b) The appellant alongside his co-appellants have filed an appellant’s brief of argument in the earlier APPEAL NO CA/E/286/2014 and he has also filed an appellants brief in this appeal No CA/E/375/2014.
c) The filing of two notices of appeal, one by the appellant together with the 2nd and 3rd (APPEAL NO CA/E/286/2014) and yet another by the appellant solely (CA/E/375/2014) constitutes an abuse of the processes of this Honourable Court.
It is observed that the Appeal number in the various processes before this Court bear CA/AW/375/2014. The Notice of Appeal however does not bear any appeal No save CA/E/…/2014 – Page 350 of the Record of Appeal.
The Original parties in this case were CHIEF MRS ROSELINE OBINWUNE, BARRISTER FIDELIS OBINWUNE (AS PLAINTIFFS) AND MR CYRIL NWAETO OBINWUNE, MR ONYEKWELU IBEANU and MR CHIKWADO IBEANU (AS DEFENDANTS) Page 3 of the Record of Appeal.
However, at the hearing of the Appeal the 3rd and 4th Respondents substituted the earlier 3rd and 4th PLAINTIFFS. The new 3rd and 4th Respondents are therefore MR JOSEPH OBINWUNE and MR. OKWUDILI OBINWUNE.
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Paragraph 10 of the Statement of Defence – Page 40 of the Record of Appeal is constructive.
I shall reproduce same verbatim
“That since May 1976, all issues relating to property rights between the Plaintiff’s father and the first Defendant have been settled by agreement on the intervention of close relations and it is not true that Social Trading Syndicate had problems, as the company operated till its assets were shared by the parties without bitterness and rancor. And Paragraphs 26, 27, 28, 29, 30, 31, 32, 33, 34 and 35 of the statement of claim are not true as stated. As the first defendant has prevailed upon on Grounds of moral and other blood considerations to share its own property equally with the Plaintiff’s father as shown in the attached deed, and while the parties went to Elele before Reverend Father Edeh, was particularly because of issue of threat to life and similar issues. And when the property matter was mentioned, the agreement was tendered and the parties were asked by Reverend Father Edeh to go home and implement the same and it was there that the issue of selling the plaintiff’s father’s interest in the GRA property was
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first mentioned and the defendants shall plead and rely on laches and acquiescence, estoppel, and statute of Limitations as the transactions were documented and the parties have acted on the said documents since the date therein.”
From above pleading, it is apparent that the Defendants pleaded the issue of statute bar as a fact. It is trite that facts only shall be pleaded. But evidence can be adduced in support of facts pleaded.
The Plaintiff in its paragraphs 29 of his Reply to the Statement of Defence filed on the 27th of April 2012 joined issues with the facts in paragraph 20 of the Statement of Defence.
It is the Appellant’s submission that the 1st and 2nd Respondents cause of action arose when the 1st and 2nd Respondents’ father was alive. The 1st and 2nd Respondents pleaded in paragraphs 28 of their statement of claim that their father mysteriously died in 1996. All the local arbitrations pleaded by the 1st and 2nd Respondents in their Statement of Claim took place before their father died in 1996.
That in Paragraph 33 of their Statement of Claim, the 1st and 2nd Respondents pleaded that the 1st and 2nd Respondents,
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after the burial of their late father went to the 1st Defendant to ask him when the sharing will be done as directed by the various parties (i.e the local arbitrations pleaded by the 1st and 2nd Respondents). The 1st Defendant (the 3rd Respondent in this appeal) told them No; that he would not share the properties some of which are the subject matter of this appeal.
It is trite that a cause of action accrues on the date on which the incident giving rise to the cause of action accrues.
Evidence is awash as to the fact that the dispute between the parties had been brought before local arbitrators. You do not approach local arbitrators unless there is a conflict. The Appellant submits that the cause of action in the suit, the subject matter of its Appeal brought by the 1st and 2nd Respondents arose since 1996. This is because according to the Appellant, and based on the showing in their pleading.
(Paragraph 33 thereof) of the Statement of Claim – Page 25 of the Record of Appeal, the 1st and 2nd Respondents went to the 3rd Defendant to ask when the sharing of the landed properties in dispute would be done as agreed by the parties but the 3rd
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Respondent did not cooperate.
He blatantly said NO. He emphasized that the cause of action of the 1st and 2nd Respondents crystalized at the point when the 3rd Respondent made it clear to them that he was not going to share any landed properties with the 1st and 2nd Respondents.
Decidedly, a cause of action is fact or facts which establish or give rise to a right of action to judicial relief.
In EHIMARE V EMHONYON (1985)1 NWLR (pt. 2)177, it was held that when parties to an action have answered one another’s pleading in such a manner that they have arrived at some material point or matter of fact, affirmed on one side and denied on the other, the parties stand to be “at issue”. They have joined issues and the question thus raised is called “the issue”.
It is the Appellant’s submission that the right of action of the 1st and 2nd Respondents in this Suit arose prior to the death of the 1st and 2nd Respondents’ father in 1996. The sharing which the Plaintiff’s father rejected was done in the year 1976.
The issue of the land sharing had lingered even after the death of the Plaintiffs’
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father. Many letters had been written by the Plaintiffs to the 1st defendant in respect of the sharing. Exhibits B, C, C1, C2, and D, are various letters from the Plaintiffs to the 1st Defendant requesting for the sharing of the properties. Their letters were written after the Plaintiffs’ father’s death.
Under cross-examination, the 1st Defendant when asked if he had transferred the property in Exhibit U to the Plaintiff’s father or the Plaintiffs had this to say.
ANSWER “No because the Plaintiffs did not allow me to do so”.
This depicts that neither the Plaintiffs’/Respondents’ father nor the Plaintiffs themselves accepted the sharing of 1976. The sharing of the land properties had remained an issue between the parties before and after the Plaintiffs’/Respondents’ father’s death.
The Appellant submits that the inaction of the predecessor-in-title in the computation of the period is relevant. That the provision for Statutes of Limitation relate to the period of accrual of the right not only to the person exercising the right, but also to that of the predecessor-in-title of the
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person exercising the right of action. Refers to Section 22(2) of the Action Law of Anambra State, Cap 3, the Revised Laws of Anambra State of Nigeria 1991.
Decidedly, the death of Plaintiffs predecessor-in-title cannot revive an action that is statute barred. – IBRAHIM VS OSUNDE (2003) FWLR (part – 142) Page 65 at 84.
The Plaintiffs at the Court below filed no reply to Paragraph 10 of the statement of Defence where Limitation Law was pleaded. The facts in Paragraph 10 are deemed admitted.
I hold that the Suit, the subject matter of this Appeal is Statute barred, having been commenced in 2011. The reason is because it was in the year 1976 up to 1996 when the Plaintiffs’ father died, that he sought the sharing of the Landed properties mentioned in 1976. The 1st and 2nd Respondents should have commenced their Suit, but they did not institute same until 2011, which made the suit statute barred by effluxion of time.
This renders the entire Suit in the Court below null and void. The Court below lacked the jurisdiction to entertain it ab initio and I so hold. Issue No. 2 of the Appellants issue for determination is
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resolved in favour of the Appellant, and against the 1st and 2nd Respondents.
I find it unnecessary to consider the other issues proffered by the Appellant as that would amount to embarking on academic exercise.
Regarding the Preliminary objection, I find no merit in same as the processes before this Court bear Appeal No. CA/E/375/2014, even though the Record of Appeal did not indicate same. There is no other Appeal before this Court so that the issue of two separate appeals before this Court is misconceived and amounts to overruling the Preliminary objection and same is hereby overruled.
The Result is that the Appeal succeeds and same is allowed.
The judgment of the High Court of Anambra State, holden in Onitsha, delivered on the 28th of March 2014 in Suit NO. O/186/2011 is hereby set aside.
N100,000 costs to the Appellant.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, R. N. PEMU, JCA.
I agree with the reasons therein advanced to arrive at the final conclusion that the appeal should be allowed. The reason being that the subject matter of this appeal is
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statute barred and rendered the Suit at the Court below null and void.
I abide by the order as to costs made by PEMU, JCA in the lead judgment.
BITRUS GYARAZAMA SANGA, J.C.A.: I agree.
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Appearances:
HON.OBI ANIZOBA, ESQ. (JP) For Appellant(s)
J.U. OKOYE, ESQ., with him, O.L. UDEMEZUE, ESQ. for the 1st and 2nd Respondents
EPHRAIM N. AGUBALU, ESQ., with him, P. B. IBUZOR, ESQ., E.E. NWANKWO, ESQ., and C.C. OBINWUNNE, ESQ. for the 3rd and 4th Respondents For Respondent(s)
