MR. HILARY UCHECHUKWU & ANOR v. MRS. ELIZABETH BINCAN
(2019)LCN/13050(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of April, 2019
CA/A/190/2015
RATIO
CAUSE OF ACTION: THE COURT MUST LOOK AT THE STATEMENT OF CLAIM TO DETERMINE WHETHER THERE IS A CAUSE OF ACTION
It is trite law that for a Court to determine what the cause of action is in a suit, it must look only at the statement of claim. In the case of YARE VS. NATIONAL SALARIES INCOME AND WAGES COMMISSION (2006) 2 NWLR PART 965 PAGE 546, it was held:
“in determining when a cause of action is said to have accrued, the Courts are enjoined to consider the plaintiff’s statement of claim or the factual situation on which the plaintiff relies to support his claim.”PER MOHAMMED BABA IDRIS, J.C.A.
CAUSE OF ACTION: DEFINITION
The Straud’s Judicial Dictionary 4th Edition defined cause of action as “the entire set of facts that gives rise to an enforceable claim.” In the case of OGBIMI VS. OLOLO (1993) 7 NWLR (PT. 304) PAGE 128 AT 136, it was held:
“A cause of action, is, in effect the fact or combination of facts which give rise to a right to sue and it consists of two elements; the wrongful act of the defendant which gives the plaintiff his cause of complaints and the consequent damage.”
In the case of AFOLAYAN VS. OGUNRINDE (1990) 1 NWLR (PT. 127) PAGE 369 AT 382 – 383,
“when facts establishing a civil right or obligation and facts establishing infraction of or trespass on those rights and obligation exists side by side, a cause of action is said to have accrued”
Finally, in the recent Court of Appeal case of OBIKA VS. OBIKA (2018) LPELR – 43965, it was defined as:
“a cause of action generally refers to every fact which is necessary for the plaintiff to prove in order to support his right or entitlement to judgment. Put differently, it is constituted by the bundle or aggregate of facts which the law recognizes as giving the plaintiff a substantive and recognized right to make the claim against the relief or remedy being sought. Thus, the verifiable factual situation on which the plaintiff relies to support 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 eventual factual situation relied upon by the plaintiff must engender the essential factors or ingredients of an enforceable right or claim. Thus, concisely stated, an act on the part of the defendant that gives to the plaintiff his cause of complaints is a cause of action.”PER MOHAMMED BABA IDRIS, J.C.A.
WHETHER AN ACTION IN TRESPASS CAN ALWAYS BE STATUTE BARRED
Thus, the arguments and submissions of both counsel to the Appellants and Respondent on whether the cause of action was statute barred and caught up by limitation law or not cannot hold water at all as it is irrelevant in respect to this issue. In the case of DOSUMU & ORS VS. NIGERIAN NATIONAL PETROLEUM CORPORATION & ANOR (2013) LPELR – 20655, it was held per Saulawa JCA that:
“the term continuing trespass connotes a permanent invasion or encroachment on another’s land. Invariably, the principle of continuing trespass refers to cases where the alleged wrongful act remains unabated to the detriment of the complainant. It is the law that in continuing trespass, successive action can be filed in Court from time to time regarding the continuance thereof.”PER MOHAMMED BABA IDRIS, J.C.A.
AS LONG AS TRESPASS CONTINUES, A FRESH CAUSE OF ACTION ACCRUES
From the above cited case, it is evident that as long as trespass continues, a fresh cause of action accrues. This brings us to the next question that must be answered: Can an action for continuing trespass be defeated by limitation of time? In the case ofHAPPY LAND HAPPY WORLD LIMITED VS. UNION BANK & ORS (2017) LPELR – 43564, it was held:
“so long as the trespass continues, it negates the application of any limitation law.”
In the Supreme Court’s case of OBUEKE VS. NNAMCHI (2012) 12 NWLR (PT. 1314) PAGE 327 AT 351 per Onnoghen JSC, it was held:
“Also settled is the principle of continuity of trespass or successive acts of trespass constituting separate and independent actionable wrongs in trespass. It follows that where there is continuity of acts of trespass, successive actions can be maintained by a plaintiff from time to time in respect of the continuance of trespass…it is a combination of the above principles that emerged the doctrine of continuing trespass giving rise to actions from day to day as long as the wrong lasts. In such a situation/circumstance an action for trespass cannot be defeated by a plea of limitation of time…”PER MOHAMMED BABA IDRIS, J.C.A.
A PARTY WISHING TO LEAD EVIDENCE IN SUPPORT OF HIS CASE MUST PLEAD ALL RELEVANT MATERIAL FACTS IN SUPPORT
It is an elementary, although fundamental principle of law that a party wishing to lead evidence in support of his case must plead all relevant and material facts in support thereof since evidence led must be in line with pleadings; and evidence led on facts not pleaded shall go to no issue.ABIMBOLA VS. ABATAN (2001) ALL FWLR (PT. 49) PAGE 989.PER MOHAMMED BABA IDRIS, J.C.A.
FACTS ON WHICH NO EVIDENCE IS PLEADED IS DEEMED ABANDONED
it is trite law that facts on which no evidence is led is deemed abandoned. In the case of OJEKAN VS. OYEWALE (2011) LPELR – 4517, it was held:
it is the law that facts pleaded but not supported with evidence are deemed to have been abandoned.”
In the case OGBEIDE VS. OSULA (2004)12 NWLR (PT. 886), it was held that:
it is trite that mere pleading which is not proved or supported by evidence goes to nothing or no issue and is deemed abandoned as pleadings do not take the place of evidence.”PER MOHAMMED BABA IDRIS, J.C.A.
A COURT OF LAW SHOULD NOT INDULGE IN SPECULTIONS
In the case of IKEMEFUNA & ORS VS. ILONDIOR & ORS (2018) LPELR – 44840, it was held that:
“The law is settled that a Court of law, including this Court, should not indulge in speculating on anything. Put simply, the Court has a duty not to speculate.”PER MOHAMMED BABA IDRIS, J.C.A.
See also the cases of IKENTA BEST (NIG.) LTD VS. A.G. RIVERS STATE (2008) 8 NWLR (PT. 1084) 612; ORHUE VS. NEPA (1998) 7 NWLR (PT. 557) PAGE 187; ANIMASHAUN VS. UCH (1996) 10 NWLR (PT. 476) PAGE 65.
5 WAYS OF PROVING TITLE TO LAND
In the case of IDUNDUN VS. OKUMAGBA (1976) 9 – 10 S. C. 227, the 5 (five) ways of proving ownership in land was listed as follows:
1. Traditional evidence.
2. Production of title documents.
3. Acts of selling, leasing or renting out all or part of the land.
4. Acts of long possession and enjoyment.
5. Proof of possession of connected or adjacent land.
See also the case of NKADO VS. OBIANO (1997) 5 NWLR (PT. 503) PAGE 31.PER MOHAMMED BABA IDRIS, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. MR HILARY UCHECHUKWU
2. MRS UCHECHUKWU – Appellant(s)
AND
MRS. ELIZABETH BINCAN – Respondent(s)
MOHAMMED BABA IDRIS, J.C.A. (Delivering the Leading Judgment): This appeal is sequel to the Judgment of the High Court of Justice of the Federal Capital Territory (FCT) in Suit No. FCT/HC/CV/855/2012 presided over by the Honourable Justice A. 0. Otaluka delivered on the 11th day of February, 2015 by which the Honourable trial judge granted in part the reliefs sought by the Respondent who was then Plaintiff. The Appellants were dissatisfied with the judgment and decided to challenge same by filing an appeal.
The Respondent as Plaintiff instituted the action giving rise to this appeal wherein, she claimed the following reliefs against the Appellants:
1 A DECLARATION that the Plaintiff is entitled to the Right of Occupancy NO: MZTP/LA/PL/96/552 over Plot No: 279, Cadastral Zone 07-07 with new file No. PL41167 situate and being at Lugbe 1 Layout, Lugbe Extension 1, Lugbe, Abuja and measuring about 1200 square meters and with property beacon numbers PB2 170, 2171,2159, and 2160 to the starting point.
2 A DECLARATION that the Defendants entry into the said plot of land amounts to trespass into the plot and a breach of
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the Plaintiff’s Right to undisturbed possession and use of the land.
3 AN ORDER declaring as null and void any offer of the terms of grant/conveyance of approval subsequent to that of the Plaintiff or any other document(s) of title obtained by the defendants over the Plot of land on the grounds that her title over the plot of land subsists.
4 AN ORDER of demolition of any illegal structure(s) erected on the said Plot 279 Lugbe 1 Layout Cadastral Zone 07-07 Lugbe, Abuja.
5 The sum of #100,000,000 (One Hundred Million Naira only) being the sum of damages for trespass.
Before delving into the appeal, here is a summary of the facts involved in this appeal.
?The Respondent instituted an action, claiming to have been granted a Conveyance of provisional approval over Plot No. 279, Cadastral Zone 07-07 with Reference number MZTP/LA/PL/552 of about 1,200 square meters at Lugbe 1 Layout, Lugbe by the Abuja Municipal Area Council on behalf of the Minister of the FCT. The Respondent pleaded all the necessary documents, forms and payment receipts of all sum paid in respect of the grant which include a Conveyance of Provisional Approval dated 30th March,
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1995 and the Certificate of Occupancy (Customary) with No: MZTP/LA/PL/96/552 dated 18th July, 1995. The Respondent further averred that she had been in quiet possession of the said plot and only noticed an encroachment on the land in April, 2011. The alleged trespassers who are the Appellants had commenced erecting a building on the said plot of land. The Respondent immediately caused a petition to be written to the Director of Lands, Abuja Geographic Information Systems (AGIS), Area 11, Garki, Abuja. In response to the petition, the Abuja Geographic Information Systems (AGIS), the Abuja Development Control went and marked the wall being erected, ordering the trespassers to stop work on the said plot. However, the Appellants refused to obey the order and continued building on the land. The respondent left with no choice, approached the High Court of the FCT to enable her legally throw the Appellants out of the land.
The Appellants who were Defendants at the trial Court, filed a Notice of Preliminary Objection challenging the jurisdiction of the Court to hear the suit as it was incompetent without the joining of Abuja Municipal Area
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Council as a Necessary Party to the suit. The Respondent filed a counter affidavit in opposition to the Notice of Preliminary objection, stating that it amounted to a demurrer and a ploy to waste the time of the Court. It was further argued that the Respondent had no claims against the Abuja Municipal Area Council and thus, it was not a necessary party. The trial Court dismissed the Notice of Preliminary objection, regarding it as baseless and frivolous, Cost of #10,000 was awarded against the Appellants in favour of the Respondent and the Court ordered the Appellants to file their Statement of Defence.
The Appellants who are husband and wife, with the leave of Court filed their joint Statement of Defence out of tim
