MADAM ABIBAT AMOPE v. MALLAM SALIU GAMBARI
(2013)LCN/6535(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 26th day of November, 2013
CA/IL/6/2013
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
ISAIAH O. AKEJU Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
MADAM ABIBAT AMOPE (Suing for herself and on behalf of the Heirs of the late Mustapha Kuranga) Appellant(s)
AND
MALLAM SALIU GAMBARI Respondent(s)
RATIO
DEFINITION OF A CAUSE OF ACTION
Cause of action has been defined by the Supreme Court to mean facts which if proved will entitle the plaintiff to a remedy against the defendant. See Taiye Oshoboja v. Alh Surakatu Amuda & Ors. (1992) LPELR 2804 (SC). The Supreme Court per Obaseki, JSC in the case of Afolayan v. Ogunrinde (1990) LPELR – 198 (SC) held thus:
“1. A cause of complaint;
2. a civil right or obligation fit for determination by a court of law;
3. a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.
It consists of every fact which it would be necessary for the plaintiff to prove, if traverse, in order to support his right to judgment” PER MUKHTAR, J.C.A.
DISTINCTION BETWEEN “CAUSE OF ACTION” AND “RIGHT OF ACTION”
In the case of Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) LPELR – 1032 (SC) the Supreme Court per Oputa, JSC held thus:
“A cause of action is to be distinguished from a right of action. A right 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) which give rise to a right of action which itself is remedial right.” PER MUKHTAR, J.C.A.
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This appeal challenges the decision of the High Court of Kwara State delivered by T.S. Umar, J on 18th April, 2012.
The appellant’s claim before the lower court was for ownership of landed property situate at No. 89 AbdulAzeez Attah Road, Boboko, Ilorin, the sum of N500,000,00 damages for trespass and perpetual injunction restraining the respondent from committing further trespass upon the said property.
The respondent filed and successfully moved a notice of preliminary objection following which the lower court held that the appellant’s action was statute barred and dismissed same in its reserved and considered ruling delivered on 18th April, 2012, which is the subject of the instant appeal.
One singular issue was raised from the two grounds of appeal by both parties and that is whether, from the materials placed before the lower Court, the appellant’s action was statute barred.
The learned counsel for the appellant B.R. Gold, Esq. argued that in determining whether an action is statute barred, the statement of claim and writ of summons have to be examined. See D.A.M. & Co. Ltd. v. J.M.I. Ltd. (2007) ALL FWLR (Pt.390) P.1530 at 1543 paras C – D; Williams v. Williams (2008) ALL FWLR (Pt.433) P.1245 at 1257 paras B – C.
The learned counsel for the appellant argued that the averment in paragraph 33 of the statement of claim show that the respondent had removed the roof of the property in dispute and threatened to demolish same instead of paying the rents, collected from tenants occupying the property to the appellant as he has been doing. It was contended for the appellant that previously the dispute between the parties was only in respect of rents collected by the respondent and repossession of the property by the Appellant, which took the parties to Upper Area Court in 1999.
The learned counsel for the Appellant further argued that the respondent’s attitude as deposed in para. 33 of the statement of claim tantamount to igniting the instant dispute regarding the property in dispute, which made the Appellant to file the suit at the lower Court front-loaded with the writ of summons, a 37 paragraph statement of claim and three witnesses’ written statements on oath. The relevant paragraph 33 states thus.
“33 The Claimant avers that to their surprise on 14th October, 2011 the Defendant came to the premises in dispute with some people who are suspected to the thugs brandishing cutlass, and gun to remove the roof and the roofing sheets of the shops and attempted to demolish the shops.”
The claim earlier made in 1999 before the Upper Area Court for collection of rent by Respondent on behalf of the Appellant is completely irrelevant to the instant appeal. The relevant facts relate to the claim before the High Court of Kwara State in suit No. KWS/331/2011. All arguments premised on the claim before the Upper Area Court will be discountenanced being irrelevant to this appeal. The only common denominator between the claim before the Upper Area Court and the one before the High Court of Kwara State is the property in question but the claims are founded on different causes of action.
The learned counsel for the Appellant argued that the Respondent’s rebellious attitude tantamount to betrayed of his authority as an agent for the collection of rent as he has been doing over the years. It does not, in anyway, entitle him to any right to the property in question. It was further argued that the appellant’s claim for declaration of title and ownership of the property situate at No. 89, Abdul-Azeez Attah Road Baboko, Ilorin and damages for trespass could not have been defeated by the Respondent’s assertion of Limitation of action see Obueke v. Nnamchi (2012) All FWLR (Pt.633) 1840 at 1860 paras. F – H; Monkom v. Odili (2010) All FWLR (Pt.536) 542 at 571 paras C – H.
The learned counsel for the Appellant further argued that the cause of action arose in 14th October, 2011 and not in 1999 as contended by the Respondent and is therefore not statute barred. See Ukiri v. Federal Civil Service Commission (2011) All FWLR (Pt.577) 783 at 793 paras D – E; Adekola v. Federal Housing Authoring (2008) All FWLR (Pt.434) 1452 at 1464 paras A -B. The averment in paragraph 33 of the statement of claim clearly shows that the cause of action arose on the 14th October, 2011 when the Respondent removed the roof of the property in question, which was perceived by the Appellant as challenge to her title.
The cause of action for trespass that arose on 14th October, 2011 was fresh and recent when the Appellant filed the suit at the lower Court on 23rd December, 2011 barely 70 days after the cause of action accrued. The Appellant’s action as constituted before the lower Court was therefore competent. See Ukiri vs. FCSC (2011) All FWLR (Pt.577) 783 at 793 paras D – E; Adekoya v. FHA (2008) All FWLR (Pt.434) 1452 at 1464 paras A – B; Williams v. Williams; Obueke v. Nnamchi (2012) All FWLR (Pt.633) 1840 at 1860.
It was further submitted that section 4 of the Limitation Law of Kwara State, Cap. L. 30 2006 which requires an action for recovery of land to be instituted within ten years from the date of accrual of cause of action is not applicable to this case. The cause of action accrued on the 14th October 2011 when the Respondent removed the roof of the property in question. From 14th October 2011 when the cause of action arose to 23rd December 2011 when the Appellant filed the suit at the Court below was a little over two months and far less than the 10 years limitation imposed by section 4 of the Limitation Law of Kwara State.
The Court was urged to set aside the decision of the lower Court and sustain the Appellant’s submission that the case is not statute barred.
The lone issue raised by the learned counsel for the Respondent Ismail Abdul-Azeez Esq. is on all fours with that of the Appellant. He argued that the cause of action accrued as soon as there exists a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. The time which has commenced to run will as a rule continue to do so even though subsequent events occur which makes it impossible that an action should be brought. This rule holds good with respect to all limitation laws. See P.A.S. & T.A. Ltd. v. Babatunde (2008) 8 NWLR PT.1089 Pg. 267 at Pg. 293. See also Elabanjo v. Dawodu (2006) 6 S.C.N.J. Pg. 204 at 225. Sanda v. Kukawa Local Govt. (1991) 2 NWLR Pt. 174 – 379.
It was argued for the Respondent that the cause of action arose in 1999 but without specifying any particular date nor the fact or facts constituting the cause of action. It was further argued that the suit was filed 12 years after the cause of action arose. The Respondent’s counsel referred to paragraphs 28 of the statement of claim to buttress this point, which states thus:
“The claimant avers that sometime in 1999 when Babatunde came back from Lagos, he and the claimed went to enquire from Madam Bilikisu about the rent so far received from the Defendant and the aid Madam Bilikisu informed the Claimant that the defendant did not hand over any money to her”.
See Elabanjo v. Dawodu (supra). Without much ado, the Respondent’s counsel urged the court to dismiss the appeal.
In the Reply brief, the learned counsel for the Appellant further argued that the Court’s jurisdiction is determined by the claim before it. See Elabanjo v. Dawodu (2006) 27 NSCQR 376 para. F; Abubakar v. Bebeji Oil and Allied Products Ltd. (2007) All FWLR (Pt.362) 1855 at 1888 – 1889 paras C – D.
Cause of action has been defined by the Supreme Court to mean facts which if proved will entitle the plaintiff to a remedy against the defendant. See Taiye Oshoboja v. Alh Surakatu Amuda & Ors. (1992) LPELR 2804 (SC). The Supreme Court per Obaseki, JSC in the case of Afolayan v. Ogunrinde (1990) LPELR – 198 (SC) held thus:
“1. A cause of complaint;
2. a civil right or obligation fit for determination by a court of law;
3. a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.
It consists of every fact which it would be necessary for the plaintiff to prove, if traverse, in order to support his right to judgment”
The learned counsel on both sides were on common ground that the cause of action is determined from the writ of summons and the statement of claim. However, while the Appellant’s counsel on the one hand, referred to paragraph 33 of the statement of claim as disclosing the cause of action, the Respondent’s counsel on the other referred to paragraph 28. The said paragraph 28 avers that one Babatunde asked one madam Bilikisu about rent received from the defendant but was informed that the defendant did not hand over the money. This statement per se does not and cannot constitute a cause of action in an action for trespass as erroneously misconceived by the Respondent. Even on the rent issue, there is no averment showing that the Respondent has ever denied the Appellant’s right to the accruing rents from the property in question. Paragraph 28 of the statement of claim may at best disclose only a right of action which is different from a cause of action. In the case of Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) LPELR – 1032 (SC) the Supreme Court per Oputa, JSC held thus:
“A cause of action is to be distinguished from a right of action. A right 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) which give rise to a right of action which itself is remedial right.”
Cause of action entails the fact or combination of facts from which the right to sue accrues. In the instant case the right of the Appellant to sue the Respondent is very glaring in the statement of claim, which accompanies the writ of summons. Paragraph 33 of the statement of claim aptly state thus:
“33. The Claimant avers that to their surprise on 14th October, 2011 the Defendant came to the premises in dispute with some people who are suspected to the thugs brandishing cutlass and gun to remove the roof and the roofing sheets of the shops and attempted to demolish the shops.”
34. The Claimant avers that when other remembers of the Claimant’s family who were living in the family house saw what was happening, they demanded from the Defendant the authority he has to demolish the shops.
35. The Claimant avers that when the Defendant could not show any court order authorizing the demolition, he was forthwith prevented from further carrying out any demolition of the property but all this while, the Defendant together with the people he brought has succeeded in removing the roof and rooting sheets of the building.
36. The Claimant avers that the land or/and the shops has been the property of the Claimant after they inherited it from their father.
37. The Claimant avers that the land or/and the shops was not sold, donated, alienated or given out to the Defendant at any time.
38. The Claimant avers that the Claimant also has other property behind the shop wherein the Claimant’s mother and father live till their death.
39. The Claimant avers that the land over which the shops were built is within the family house of the Claimant.
It is clear from the foregoing averments that the hostilities between the parties was ignited by the Respondent’s cantankerous act of entering the property in question with some suspected thug carrying weapons and forcefully removed the roofing sheets and threatened to demolish the shops. The Appellant who claims that she has not sold the said property nor alienated it in any way to the Respondent did not fold her arms to allow the Respondent to continue with that rebellious activity which took place on 14th October, 2011, exactly 70 days from the date of the nefarious activity by the Respondent. This period falls short of the time limitation envisaged by Section 4 of the Limitation Law of Kwara State, Cap. L.30 2006 which limits the right of action for recovery of land within Kwara State to ten years from the time when the cause of action accrues. For the avoidance of doubt the law provides thus:
“4. No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.
From the nature of the Appellant’s claim before the lower Court the cause of action was completed on 14th October, 2011. In the case of Aliu Bello v. Attorney General of Oyo State (1988) LPELR – 764 (SC) aptly observed thus:
I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the Plaintiff relies to uproot his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words, the factual situation relief upon must constitute the essential ingredient of an enforceable right or claim – see Trower & Son Ltd. v. Ripstein (1944) A.C. 254 at p. 263; Read v. Brown 22 Q.B.D. 128, Cooke v. Gill (1873) L.R. 8 C.A. 107. Sugden v. Sugden (1957) All ER 300; Jackson v. Spinal (1R70) L.R. 5 C.P. 542. Concisely state, any act on the part of the defendant which gives to the Plaintiff his cause of complaint is a cause of action.”
Similarly Oputa, JSC in the case of Adimora v. Ajufo (1988) LPELR – 182 (SC) concisely observed thus:
“What is meant by cause of action? In its best definition it consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right t judgment”.
The Supreme Court in the case of Military Administrator of Ekiti State v. Aladeyelu (2007) 4 – 5 S.C. 201 similarly held thus:
“The provisions of Section 4 of the Limitation Law of Ondo State which provides that: “The following actions shall not be brought after the expiration of six years the cause of action accrued, that is to say – (a) actions founded on simple contract or tort….”
A scrutiny of the provisions of section 4 of the Limitation Law of Kwara State and the foregoing authorities considered conjunctively with the facts of the instant case reveal that the Appellant’s action before the lower Court was competent. This answers the singular poser in the negative and in favour of the Appellant.
The appeal is clearly meritorious and succeeds per force. It is hereby allowed. The decision of the lower Court delivered on the 18th April, 2012 by Umar, J is hereby set aside. In its stead, this case shall be is herby remitted back to the Chief Judge of Kwara State for trial de novo by another judge of the High Court of Kwara State.
The appellant is entitled to costs assessed at N50,000.00 against the Respondent.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Hussein Mukhtar JCA gave me the privilege of reading before now the judgment just delivered. I am of the view that his Lordship comprehensively considered the lone issue raised in the appeal and has come to the right conclusion that the appeal is resoundingly meritorious. I agree totally with his reasoning and conclusion. I allow the appeal and abide by the consequential order remitting the case for trial de novo by another judge within jurisdiction as well as award of N50,000.00 costs against the Respondent.
UCHECHUKWU ONYEMENAM, J.C.A.: By Section 4 of the Limitation Law of Kwara State CAP 30 of 2006 which provides:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to some person through whom he claims, to that person.”
After 10 years of inaction or indolence from when a cause of action had accrued, any person whose right to land has been taken away cannot recover the land. In other words his right or title to the land becomes extinguished after 10 years from the date of accrual of the right of action.
Mohammed J.S.C. in Elabanjo v. Dawodu (2006) 27 NSCQR 376 defined cause of action thus:
“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 remedy. It includes all those things necessary to give a right of action and every material fact which is material to be proved to entitle the plaintiff to succeed.”
By section 4 of the Limitation Law (supra) the remedy which a person cannot seek after 10 years of accrual of cause of action is recovery of land or put differently title to land. Therefore, the cause of action in the circumstance will be said to have accrued when all those things necessary to give the Appellant a right of action and every material fact which is relevant to be proved to entitle the Appellant succeed in an action for recovery of land from the Respondent or declaration of title against the Respondent exist.
Both parties though citing different authorities were in consensus that in determining the period of limitation in a limitation statute, the court looks at the writ of summons and the statement of claim discover when the wrong was committed. It then compares the date with the date on which the writ of summons was filed. If by the time on the writ from calculations, the period is beyond that allowed by the Limitation Law, then the action is statute barred.
The question herein is from the writ of summons and statement of claim when did the cause of action in the instant matter accrue. Again both parties made reference to paragraphs 28 and 33 of the statement of claim. While the Respondent relied on paragraph 28 to submit that the cause of action arose in 1999 and accordingly the actual commenced on 23rd December, 2011 was statute barred. The Appellant on his own argued that the cause of action accrued on 14th October, 2011.
By paragraph 28 of the statement of claim, the Appellant averred that:
The Claimant avers that sometime in 1999 when Babatunde came back from Lagos he and the Claimant went to enquire from Madam Bilikisu about the rent so far received from the Defendant and the said Madam Bilikisu informed the Claimant that the Defendant did not hand over any money to her”.
The relevant paragraph 33 states thus:
“The Claimant avers that to their surprise on 14th October, 2011 the Defendant came to the premises in dispute with some people who are suspected to be thus brandishing cutlass and gun to remove the roof and the roofing sheets of the shops and attempted to demolish the shops.
Implicit in these paragraphs is the fact that some facts and circumstances existed as 1999 that gave rise to the right of the Appellant to file a claim in court for remedy. The remedy that could be available to the Appellant from the facts and circumstances of paragraph 28 was such that he could claim and recover the alleged rent that the Respondent collected on his behalf but failed to account for. The facts and circumstances as averred at paragraph 28 did not disclose the right to recovery of land.
All those things which were necessary to give a right of action to recovery of land to the Appellant and every material fact which will be necessary for the Appellant to prove in order to succeed in an action for recovery of land or declaration of title against the Respondent were not present by the facts and circumstances as disclosed at paragraph 28 of the statement of claim. What I am struggling to say is that although an action could be maintained by the Appellant against the Respondent owing to the facts and circumstances as averred in paragraph 28 of the statement of claim, the facts and circumstances therein could only entitle the Appellant to prove and succeed in an action for recovery of the rent collected by the Respondent. To entitle the Appellant to succeed in an action for recovery of land or declaration of title against the Respondent, the Appellant needs the materials and facts averred in paragraph 33 of the statement of claim. It was the removal of the roof and attempted demolition of the shops that challenged the Appellant’s title to the land as against withholding the rent collected on Appellant’s behalf.
Section 4 of the Limitation of Act does not relate just to any accrual of cause of action but the accrual of cause of action for the recovery of land. I am therefore of the view that the cause of action for the recovery of land by the Appellant against the Appellant did not accrue in 1999 but on 14th October, 2011.
Accordingly, the action filed on 23rd December, 2011 is not statute barred.
It is for this and the more fuller reasons adduced in the lead judgment that I agree with my learned brother, Hussein Mukhtar, JCA that the appeal has merits. I also allow the appeal and abide by the consequential orders.
Appearances
T.A. Hammed with F.F. Salman Mrs.For Appellant
AND
Ismail Abdul-AzeezFor Respondent