KEVES GLOBAL LEASING LTD v. BASSEY (2020)

KEVES GLOBAL LEASING LTD v. BASSEY

(2020)LCN/14270(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, June 26, 2020

CA/C/121/2019

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

KEVES GLOBAL LEASING LIMITED APPELANT(S)

And

CHIEF PATRICK ARCHIBONG BASSEY RESPONDENT(S)

RATIO

DEFINITION OF A “CAUSE OF ACTION”

A cause of action has been defined by Courts to mean a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It thus includes all those things which are necessary to give a right to action and every material fact which is material to be proved to entitle plaintiff to succeed. See P. N. UDOH TRADING COMPANY LTD V. ABERE (2001) 11 NWLR (prt 723) 114.
When determining issue of cause of action, it is totally irrelevant to consider the merit of the claim. What is important at that stage is to critically examine the pleadings to see if they disclose any reasonable cause of action or raise some questions fit enough to be decided by a judge. PER SHUAIBU, J.C.A.

WHETHER OR NOT THE PERIOD OF LIMITATION IS DETERMINED BY THE WRIT OF SUMMONS AND STATEMENT OF CLAIM

The period of limitation is determined by looking at the writ of summons and the statement of claim only; to ascertain the alleged date the wrong in question which gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred. In other words, the determining factor is the averments in the plaintiff’s writ of summons and the statement of claim. However, where at the end of settlement or after the plaintiff has filed his statement of claim, the defendant raises preliminary objection in limine to contend that the plaintiff’s action is statute barred and ought to be struck out. The position become different where an issue is joined by the parties in their pleadings as to the date the cause of action arose. In that case, such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the Court. See SAVANNAH BANK OF NIGERIA LTD V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (1987)1 NWLR (prt 49) 212. In NASIR V. CSC KANO STATE (supra), the apex Court has restated the legal position that an objection to the jurisdiction of a Court can be raised at the beginning or the end of the proceedings, even just before judgment stage. And that statute of limitation is a matter of jurisdiction which can be raised at any stage of litigation, even in the Supreme Court. PER SHUAIBU, J.C.A.

WHETHER OR NOT A CERTIFICATE OF OCCUPANCY PROPERLY ISSUED BY A COMPETENT AUTHORITY RAISES THE PRESUMPTION THAT THE HOLDER IS THE OWNER

A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner thereof in exclusive possession of the land. The Certificate also raises presumption that at the time it was issued there was not in existence a Customary Owner whose title has been revoked. The presumption is only rebuttable if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of Occupancy in which case the certificate occupancy will stand revoked by the Court. See Section 5 (2) of the Land Use Act and the cases of OSAZUWA V. OJO (1999) 13 NWLR (prt 634) 286, SHOGO V. ADEBAYO (2000)14 NWLR (prt 686)127 and MADU V MADU (Supra). PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of Honourable Justice S. M. Anjor of the High Court of Cross River Calabar delivered on 24th August, 2017 overruling the appellant’s preliminary objection and assuming jurisdiction to hear the suit instituted by the claimant (now Respondent).

The respondent as claimant at the Court below took out a writ of summons and statement of claim both filed on 22nd February, 2017. In paragraph 14 of the statement of claim, the respondent as claimant claimed from the appellant/defendant thereat as follows:
I. A declaration of title to all that pieces of land measuring appropriately 231.05 square metres at Ikot Eka Edem village, Calabar Municipality with Beacon Stones No. SEG 6169, SEG 6170, SEG 6172, SEL 28702, SEG 6173, SEG 6174.
II. An order for payment of N50,000,000 (Fifty Million Naira) damages for trespass.
III. An order of perpetual injunction restraining the defendant and his privies from further acts of trespass on the claimant’s property.
IV. An order for payment of N5,000,000.00 (Five Million Naira) being cost of

prosecuting this suit.

Pleadings were filed and exchanged but before the matter proceeded to trial, the respondent filed a motion on notice on 5th June, 2017 seeking for the followings:-
1. An order setting down for hearing the issue of law raised in paragraph 15 (c) of the statement of Defence namely: that this suit is statute barred having regard to the Certificate of Occupancy issued to the defendant’s predecessor in title in 1987 by the Cross River State Government.
2. An order striking out this suit for want of jurisdiction as the suit is statute barred or in the alternative.
3. That the claimant has no locus standi to bring this suit and this Honourable Court has no jurisdiction to hear this suit having regard to the provisions of Section 5 (2) of the Land Use Act.

After considering the various affidavit evidence as well as the address of learned counsel on both sides, learned trial judge dismissed the preliminary objection at pages 65 and 66 of the record of appeal as follows:-
“I have perused the written address of both counsel vis-a-vis the affidavit evidence and statute as well as the legal authorities cited,

and in my view the issue for determination is whether there is any merit in the objection. As submitted by respondent counsel, for a Court to determine when a cause of action arose, the law enjoins it to look at W/S and S/C. The 2nd issue is on the legal implication of issuance of C of O. Here I am at one with claimant’s counsel submission that C of O merely raises a rebuttable presumption of ownership of same land by the holder. Authorities cited by the respondent’s counsel are apt. On the whole, I hold that defendant’s objection lacks merit and it is accordingly dismissed.”

Dissatisfied, appellant filed this appeal through a notice of appeal filed on 7th September, 2017. The said notice of appeal contains a lone ground of appeal which the learned counsel for the appellant has distilled two issues for the determination of this appeal.

On the 1st of June, 2020 when this appeal was argued, learned counsel for the appellant, C. E. Onyebukwa Esq., identified and adopted the appellant’s brief of argument filed on 30/4/2019 in which the two issues are as follows:-
1. Whether the trial Court was right in assuming

jurisdiction to hear the suit that discloses no reasonable cause of action having regard to the provisions of Section 5 (2) of the Land Use Act. (Distilled from ground 1).
2. Whether the trial Court was right in holding that the suit is not statute barred having regard to the facts in this suit.

In the respondent’s brief of argument filed on 7/2/2020 but deemed as properly filed on 1/6/2020, learned counsel for the respondent, M. B. Irem Esq., filed and adopted the respondent’s brief of argument in urging this Court to dismiss the appeal. He adopts the two issues formulated by the appellant.

Arguing the first issue, learned counsel for the appellant referred to paragraph 4 of the statement of defence and paragraph 8 of the reply and the defence to counter claim in submitting that having acknowledged that the claimant’s predecessor in title was issued with a Certificate of Occupancy by the Cross River State Government, the appellant must be taken to have impliedly admitted the ownership of the land in dispute by the respondent. And also having failed to join the Governor of Cross River State who issued the said certificate of

occupancy as a party to the suit, there was therefore no cause of action for the trial Court to determine.

He submits further that whatever rights the appellant might have had over the land in disputes such right has been extinguished by the operation of the law. He referred to Section 5 (2) of the Land Use Act to contend that in the absence of any challenge to the Governor’s issuance of the C of O over the land to the respondent’s predecessor in title, the legal presumption stand in favour of the respondent.

On the second issue, learned counsel contend that by virtue of Section 1 of the Limitation Law of Cross River State, every action to recover land in Cross River State must be filed within 10 years of the accrual of cause of action. He submits that the action giving birth to this appeal having been instituted more than 10 years since its predecessor in title was issued with a Certificate of Occupancy over the land in dispute; the action is statute barred. He referred to JOINT KOMPUTER KOMPANY LTD V. GOVERNOR OF LAGOS STATE (2014) 5 NWLR (prt. 1399)152 at 167 – 168 to the effect that it is immaterial whether the appellant is aware

of the accrual of the cause of action.

In determining whether an action is statute barred, learned counsel submits that the duty of the Court is to consider the application before it vis-à-vis the statement of claim. It was thus, wrong for the trial Court to close its eyes to the evidence disclose in the respondent’s motion on notice on the pretence that only the statement of claim and the writ of summons that should be considered. He referred to EGBE V. ADEFARASIN (1987)1 NWLR (prt 47), ALHAJI BELLO NASIR V. CIVIL SERVICE COMMISSION, KANO STATE (2010) 1-2 SC 65 and WILLIAMS V. WILLIAMS (2009) ALL FWLR (prt 433) 1245.

In response to the first and second issues, learned counsel to the respondent submits that what a Court ought to consider in determining when a cause of action arose is the claimant’s writ of summon and the statement of claim, also relying on the authority in the case of EGBE V. ADEFARASIN (supra) and ADEYEMI V. OPEYORI (1976) 9 – 10 SC 31.

Still in argument, learned counsel submits that a perusal of the writ of summons and the statement of claim of the claimant at the lower Court shows that the cause of

action arose in 2015, when the appellant trespassed on the respondent’s land. Thus, the period between 2015 when the cause of action arose and 2017 when this suit was filed is only 2 years, a period well within the 10 years permitted by law.

On the operation of Section 5 (2) of the Land Use Act, learned counsel submits that the grant or issuance of Certificate of Occupancy simpliciter does not validate a hitherto unwholesome root of title. Thus, for a party to prove title, he must do more than placing before the Court a single deed of conveyance that established his root of title to enable the Court makes a proper evaluation. He referred to MADU V. MADU (2008)6 NWLR (prt 1083) and IDUNDUN V. OKUMAGBA (1976) 1 NMLR 200.

On the appellant’s contention regarding the respondent’s failure to join the Government of Cross River State in the suit before the lower Court, learned counsel submits that where there is no compliant against a party, the non-joinder of that party will not affect the proper determination of the issues joined. He maintained that there is no complaint made against the Government of Cross River and their absence in the

suit will not affect the proper determination of the issues joined by the parties. He referred to APC V. PDP (2015)15 NWLR (prt 1481) 1 at 11.

Assuming without conceding the fact that the Government of Cross River State ought to have been joined, learned counsel submit that failure to join necessary parties in a suit does not rob the Court of its jurisdiction to deal with the matter in controversy so far as regards the rights and interest of the parties before it. He referred to ONEH V. OBI (1999) 7 NWLR (prt 611) 487 at 489 – 490.

It was also submitted on behalf of the respondent that no cause or matter can become defective by reason of the misjoinder or non-joinder of a party and no proceedings shall be rendered null and void for lack of competence or jurisdiction simply because a plaintiff joins a party who ought not to have been joined. He referred to WR & PC LTD V. ONWO (1999)12 NWLR (prt 630) 312 at 319.

The appellant has also filed a reply brief on 29/5/2020 but deemed as properly filed on 1/6/20. By virtue of Order 19 Rule 5 of the Court of Appeal Rules 2016, the appellant may if necessary within fourteen days of the service

on him of the respondent’s brief filed and served or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief. Thus, the rules which provides for a reply brief does not envisage a situation where the appellant as in the instant case will re-argue or re-open the appeal and or re-emphasize the argument already contained in the appellant’s brief. The reply brief in the instance case is unnecessary and I have no difficulty in discountening same.

Before proceeding to determine the appeal on the basis of the two issues formulated by the appellant and adopted by the respondent, it is pertinent to restate that the appellant in the instant case filed a lone ground from which he distilled two issues for determination. Issues for determination must necessarily be distilled from grounds of appeal, which grounds must attack the “ratio decidendi” of the judgment, not anything said by the way or obitar – dicta or be formulated in vacuum. The argument of the learned counsel for the respondent was also predicated upon the said two issues distilled from the lone ground of

appeal. In the absence of any challenge to the competence of these issues, I will nonetheless go ahead to determine the appeal on its merit. However, counsel should always bear in mind the elementary principles of law governing appeals, such as formulation of grounds of appeal and issues arising therefrom.

Now turning back to the two issues canvassed by the appellant, same questioned the ruling of the lower Court which dismissed the appellant’s preliminary objection and assumed jurisdiction to try the suit on its merits. The appellant has argued that the respondent’s action did not disclose a cause of action and that same was caught up by the limitation law.

merit of the claim. What is important at that stage is to critically examine the pleadings to see if they disclose any reasonable cause of action or raise some questions fit enough to be decided by a judge.
In the instant case, the appellant challenges the respondent’s cause of action on the bases of the motion on notice wherein he averred that the action is statute barred by exhibiting a Certificate of Occupancy showing that in 1987 the respondent’s predecessor in title was issued with the said certificate over the land in dispute whereas the action was instituted at the lower Court after the expiration of 10 years allowed by the limitation law of Cross River State. The respondent has strenuously argued that in determining when a cause of action arose, a Court must not look beyond the claimant’s writ of summons and statement of claim which later view was accepted by the lower Court.
I have stated that the respondent’s cause of action was challenged on the bases of the fact that the action was filed outside the 10 years period allowed by the relevant limitation law. The period of limitation is determined by looking at the

writ of summons and the statement of claim only; to ascertain the alleged date the wrong in question which gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred. In other words, the determining factor is the averments in the plaintiff’s writ of summons and the statement of claim. However, where at the end of settlement or after the plaintiff has filed his statement of claim, the defendant raises preliminary objection in limine to contend that the plaintiff’s action is statute barred and ought to be struck out. The position become different where an issue is joined by the parties in their pleadings as to the date the cause of action arose. In that case, such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the Court. See SAVANNAH BANK OF NIGERIA LTD V. PAN ATLANTIC SHIPPING AND TRANSPORT AGENCIES LTD (1987)1 NWLR (prt 49) 212.

In NASIR V. CSC KANO STATE (supra), the apex Court has restated the legal position that an objection to the jurisdiction of a Court can be raised at the beginning or the end of the proceedings, even just before judgment stage. And that statute of limitation is a matter of jurisdiction which can be raised at any stage of litigation, even in the Supreme Court.
I have stated right from the onset that parties in this case had exchanged pleadings at the lower Court and in paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of the statement of claim and paragraphs 3, 4, 5, 6, and 7 of the statement of defence/counter claim the issue pertaining to the date of accrual of the cause of action was joined by the parties. The fact that the respondent did not admit the date fixed by the appellant as when the cause of action arose, the lower Court was right in insisting on the averments in the respondents writ of summons and statement of claim because at that point the issue was yet to be determined by credible evidence at the hearing of the suit. In WOHEREM V. EMEREUWA (2004) 13 NWLR (prt 890) 398 at 416, the Supreme Court has held that it is not permissible, indeed it would be wrong, for a

defendant relying on the defence of limitation of action to compute time of accrual of cause of action from the date pleaded in his statement of defence as the date the cause of action arose, unless such date is admitted by the plaintiff in his reply to the statement of defence. In the lead judgment at page 418 paras E – H, Iguh, JSC said:
“In my view, what emerged at the close of pleadings was a triable issue on question of the date the cause of action in respect of title to the property in dispute and the trespass complained of by the appellant arose. Without doubt, the date averred in the statement of claim as to when the cause of action accrued was at variance, with the respondent’s statement of defence and the affidavit in support of the application to dismiss the suit. It seems to me that, the trial Court ought in the circumstances, to have tried the cause on the merits rather than to embark on a voyage of discovery with a view to ascertaining which date is correct in the absence of vivia voce evidence on the point.”…
I totally endorse the above view and also agree with the position taken by the learned trial

judge in assuming jurisdiction to hear the matter on its merits.

The next germane issue relates to the failure of the respondent to join the Cross River State Government that issued the Certificate of Occupancy in question. A Certificate of Occupancy properly issued by a competent authority raises the presumption that the holder is the owner thereof in exclusive possession of the land. The Certificate also raises presumption that at the time it was issued there was not in existence a Customary Owner whose title has been revoked. The presumption is only rebuttable if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of Occupancy in which case the certificate occupancy will stand revoked by the Court. See Section 5 (2) of the Land Use Act and the cases of OSAZUWA V. OJO (1999) 13 NWLR (prt 634) 286, SHOGO V. ADEBAYO (2000)14 NWLR (prt 686)127 and MADU V MADU (Supra). The main contention here is not whether the presumption of ownership by issuance of certificate of occupancy rebutted by the respondent but on whether the failure to join the issuing authority that is, Government – Cross River

State has negatively affected the case of the respondent.
Learned counsel for the respondent has argued that in so far as there is no specific claim against Cross River State Government their non-joinder will not affect the proper determination of the issue joined. I agree with the respondent’s submission that failure on the part of a plaintiff to join the necessary parties in a suit does not rob the Court of its jurisdiction to deal with the matter in controversy so far as regards the rights and interests of the parties before it. Failure to join as a party who ought to have been so joined gives rise to mistake of non joinder of party. The fact that a necessary party to the action has not been joined will not render the action a nullity. Thus, the proceedings of a Court of law will not be a nullity on the ground of lack of competence of the Court or lack of jurisdiction merely because a plaintiff fails to join a party who ought to have been joined. In other words, the Court cannot dismiss a suit because a party who ought to have been joined was left out. See BELLO V. INEC (2010)8 NWLR (prt. 1196) 342 and AP.G.A V. UBAH (2019)15 NWLR (prt 1694) 25 at 38 – 39.

In the result, the inevitable effect of all that I have stated above is that I find no merit in this appeal. It is accordingly dismissed.
Parties shall bear their respective costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother Muhammed L. Shuaibu, JCA. I agree with the reasoning and conclusion reached in the judgment.
I also find no merit in the appeal which is accordingly dismissed.

HAMMA AKAWU BARKA, J.C.A.: My learned brother MUHAMMED L. SHUAIBU, JCA, give me a copy of the Judgment just delivered in draft.

I totally agree with the reasoning and the conclusion arrived at. I also dismiss the appeal as lacking in merit.

Appearances:

Ifedma Ilodibia (Holding the brief of C. E. Onyebukwa, Esq.) – for Appellant For Appellant(s)

B. Irem – for Respondent For Respondent(s)