MR. KANAYO EBENEZER UDECHUKWU & ANOR. V. MR. TUBOTEIN ORLANDO GEORGE (2012)

MR. KANAYO EBENEZER UDECHUKWU & ANOR. V. MR. TUBOTEIN ORLANDO GEORGE

(2012)LCN/5133(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 7th day of February, 2012

CA/PH/84/2009

RATIO

DETERMINATION OF THE DATE THE POSSESSION OR ADVERSE POSSESSION OF THE PREMISES COMMENCED AS RIGHT OF ACTION TO RECOVER LAND

It is significant to determine the date the possession or adverse possession of the premises commenced as right of action to recover land only accrues on the day adverse possession of the land commences. This is in line with section 7(i) of the Limitation Law of Rivers State which read:- “7(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as “adverse possession’) and where under the foregoing provisions of this Law any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”By virtue of section 1 of the Limitation Law an action 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. If the defendants/appellants assumed possession in 1976 and 1983 respectively and the action suit NO. PHC/966/96 was instituted to recover the land from them in 1996, more than 10 years after the cause of action accrued then in my humble view, the action of the respondent is statute barred. It is pertinent at this juncture to consider the case of S.B.N. LTD. V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD and one other relied upon by the learned trial judge in holding that the fact that the appellant did not specifically determine the precise date upon which the cause of action arose in their statement of defence was fatal to the contention of the appellants that the action was statute barred. PER T.O. AWOTOYE, J.C.A.

MEANING OF A TENANT AT SUFFERANCE

A tenant at sufferance is explained in Blacks Law Dictionary with pronunciations Sixth Edition thus: Such tenancy arises when one comes into the possession of property by lawful title but wrongfully holds over after the termination of his interest” PER. T.O. AWOTOYE, J.C.A.

THE PRINCIPLE OF ESTOPPEL

JUSTICES

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

1. MR. KANAYO EBENEZER UDECHUKWU

2. MR. EBENEZER AMALACHUKWU UDECHUKWU – Appellant(s)

AND

MR. TUBOTEIN ORLANDO GEORGE (Suing by his lawful Attorney Barrister Chinwendu Nwogu) – Respondent(s)

T.O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the final appeal by the appellants against the judgment of the Rivers state High court Port Harcourt, Division delivered on 16/12/2008.

The claimant had instituted on action at the court below claiming as follows:

“8. WHEREFORE THE PLAINTIFF claims against the defendant as follows:

i) Immediate Vacant possession of the four (4) rooms and appurtenances situate at No. 4 New Market Road, Port Harcourt now detained by the defendant.

ii) PERPETUAL INJUNCTION to restrain the defendant either by himself or through his agents servants or privies from continuing to occupy, interfere with plaintiff right over No. 4 New Market Road, Port Harcourt.

iii) The sum of N72,000.00 (Seventy Two Thousand Naira) only as damages for the use and occupation of four (4) rooms and appurtenances at No. 4 New Market Road, Port Harcourt from 1st December, 1994 to 31st August, 1996.

iv) The sum of N4,000.00 (Four Thousand Naira) per month as damages for the use and occupation of four (4) rooms and premises at No. 4 New Market Road, Port Harcourt from 1st September, 1996 until possession is given up.”

The learned trial judge after listening to the parties and their respective witnesses entered judgment in favour of the claimant but against the defendants jointly and severally as follows:

“1. It is declared that the claimant is the registered legal owner or the holder of the Statutory Right of Occupancy over No. 4 New Market Road, Port Harcourt also known as Plot D Block 198 Township Layout, Port Harcourt.

2. The 1st defendant shall immediately give vacant possession of four rooms and appurtenances situate at No. 4 New Market Road, Port Harcourt to the claimant.

3. The defendants by themselves, their servants, agents or privies are hereby restrained by an order of perpetual injunction from continuing to occupy or interfere with the claimant’s right of ownership over No. 4 New Market Road, Port Harcourt.

4. The claimant is awarded the sum of N30,000.00 as nominal damages.

5. I award N10,000 cost in favour of the claimant.”

It is against this judgment the appellant filed 6 grounds of appeal which are reproduced hereunder (excluding the particulars)”

“i. ERROR IN LAW The learned trial judge erred in law when he failed to hold that the Claimants’ action which was commenced fourteen (14) years after the right of action accrued in 1982, was statute barred.

ii. ERROR IN LAW The learned trial judge erred in law when he held that the defendants were caught by estoppel of standing by for failing to join as a co-defendants in suits No. PMC/284, 286 – 288/96.

iii. MISDIRECTION The learned trial judge misdirected himself on the facts when he held “this absolutely necessary condition of determining the precise date when the cause of action arose therefore not satisfied by the defendants. It was only in his address, not even in evidence, that a date was mentioned.”

iv. ERROR IN LAW The learned trial judge erred in law when he held that the on the authority of SBN Ltd v. Pan Atlantic Shipping & Transport Agencies Ltd & Anor (1987) 1 NSCC Pg 67 at 111 the defendants did not discharge the onus on them to determine the precise date upon which the cause of action arose and to establish that the cause of action accrued to the claimant on that date.

v. ERROR IN LAW The learned trial judge erred in law when he held that having ceased to be in possession by leaving the properly only to come and re-occupy the property, such tenant would not be a tenant at sufferance within the contemplation of the case Ude v. Nwara (1993) Part 278 page 638, possession of the leased property having been broken before a later re-possession.

vi. ERROR IN LAW The learned trial judge erred in law in giving judgment for the claimant who failed to discharge the burden of proof placed upon him.

vii. The judgment is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence before the Court.”

After transmission of the record of appeal to this court each of the parties filed and exchanged briefs of argument.

S.O. Wogu, learned counsel for the appellants formulated 4 issues for determination. They are:

“1. Whether having regard to the pleadings and the evidence before him, the learned trial judge was right in failing to hold that the respondent’s suit was statute barred.

2. Whether from the totality of the evidence before the trial court, the appellants were caught by the doctrine of estoppels by standing by.

3. Whether the respondent proved his case before the trial court to entitle him to judgment.

4. Whether the learned trial judge was right in holding that the appellants do not qualify as tenants at sufferance within the contemplation of the case of Ude v. Nwara (1993) 2 NWLR Part 278 Page 638.”

In summary he submitted that having regard to the pleadings and evidence before the lower court the learned trial judge should have held that the respondent action was statute barred.

He submitted further that the appellants were not caught by the doctrine of estoppel by standing by. He added that from the material facts and circumstances of the case the appellants qualified as tenants at sufferance within the contemplation of the case of Ude v. Nwara (1993) 2 NWLR Part 278 Page 638.

He urged the court to allow the appeal, reverse the judgment of the lower court delivered on 16/12/2008 and enter judgment in favour of the appellants.

By his Respondent’s brief of argument settled by A.R. George and deemed filed on 12-1-2010, learned counsel formulated two issues for determination as follows:

“(i) Whether Honourable Court was right in holding that the Appellants did not prove that the Respondents’ case was statute barred.

(ii) Whether the Honourable trial Court was wrong in holding that the case of Ude v. Nwara (1993) 2 NWLR part 278 page 638 is distinguishable from the instant case.”

Learned counsel briefly put, submitted that appellants issue 2 was not a live issue and should be discountenanced. He submitted that the Respondent case was not statute barred. He added further that the case of Ude v Nwara (supra) was distinguishable from this case in that:

(i) the appellants did not qualify as tenants at sufferance as there was no instrument of transfer in their favour.

(ii) the appellants were not in possession of the property when it was sold in 1982.

(iii) the quantum of interest in Ude v Nwara was for fee simple whilst in the case at hand it was the issuance of occupancy:

He finally urged the court to dismiss the appeal.

I have carefully considered the contents of the record of appeal transmitted to this court on 17-2-2009 and the submissions of learned counsel on both sides.

I have gone through the issues formulated by learned counsel on both sides. I am convinced that the issues as formulated by the appellants are adequate for the purpose of this appeal.

The issues are again reproduced for clarity’s case.

“1. Whether having regard to the pleadings and the evidence before him, the learned trial judge was right in failing to hold that the respondent’s suit was statute barred.

2. Whether from the totality of the evidence before the trial court, the appellants were caught by the doctrine of estoppel by standing by.

3. Whether the respondent proved his case before the trial court to entitle him to judgment.

4. Whether the learned trial judge was right in holding that the appellants do not qualify as tenants at sufferance within the ‘contemplation of the case of Ude V. Nwara (1993) 2 NWLR Part 278 Page 638.”

Before going further, it is necessary to state the settled principles of law that are necessary to be considered for the proper determination of this appeal.

1) An action instituted after the expiration of the prescribed period is statute barred.

See OSUN STATE GOVERNMENT V. DALANI NIGERIA LTD. (2003) ALL FWLR (PT. 365) 438 and time begins to run for the purpose of limitation law from the date the cause of action arises. See JALLICO LTD. V. OWONIBOYS TECH. SERVICE LTD (1995) 4 NWLR (PT.391) 534 Cause of action is the entire set of circumstances giving rise to an enforceable claim. See ADESOKAN V. ADEGOROLU (1997) 3 NWLR (PT. 493) 261; ODUNTAN V. AKIBO (2000) 7 SC PART II 106.

It is a factual situation which enables one person to obtain a remedy from another in court in respect of injury. See S.D.P.C. V. X.M. FEDEML LTD (2006) ALL FWLR (PT. 339) 822.

2) Time of accrual of cause of action is an issue of fact which must be proved and not just, pleaded. See SAVANNAH BANK OF NIGERIA LTD V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD (1987) 1 NWLR (PT. 49) 212; ODUBEKO V. FOWLER (1993) 7 NWLR 637 at 660.

3) The Rivers State Government under the State Lands Law of Eastern Nigeria as applicable in Rivers State had no statutory power to reconvert state lands into private land. See UDE V NWAM (1993) 2 NWLR 638 at 644.

4) Section 10 of the State Lands Law (Cap 122) cannot be interpreted to mean that the lessee’s building on State Land on expiration of the lease passes to the State Government without any compensation to the lessee – UDE V NWARA (supra) at 661.

I shall view the facts of this appeal in the light of the above principles of law.

When did the cause of action accrue in this case now an appeal?

The claimant now the respondent filed his further Amended Statement of claim on 26/10/2006. I shall quote it for clarity’s sake.

“1. The Claimant is the owner and holder of the statutory right of occupancy over the property known as plot D Block 198 Township Layout, Port Harcourt (also called No. 4 New Market Road – Port Harcourt). Plaintiff has a Deed of assignment duly registered in his favour over the above property. The Deed of assignment duly registered as No. 95 at page 95 in volume 21 in the lands Registry, Port Harcourt and dated 16/12/04, is hereby pleaded.

2. Claimant sues by his Lawful Attorney, Chiwendu Nwogu Esq Power of Attorney dated 4/12/95 is hereby pleaded.

3. The 1st defendant occupies four (4) rooms as tenant at sufferance in Claimant’s above property since 1st day of December, 1994.

4. The rent chargeable by the Claimant on the property is N2,000.00 per room monthly.

5. Claimant requires the four (4) rooms occupied by the 1st defendant for personal use i.e. as business and residential accommodation.

6. Claimant through the court served the 1st defendant with notice of owner’s intention to apply to recover possession (7 days notice), Seven (7) Days Notice dated 29/3/96 is hereby pleaded.

7. Notwithstanding the above notice, 1st Defendant has refused and or neglected to deliver up possession of the four (4) rooms and appurtenances and still detains the same.

8. WHEREFORE THE CLAIMANT claims against the Defendants jointly and severally as follows:-

a. A declaration that claimant is the registered legal owner or the holder of the Statutory Right of Occupancy over No. 4 New Market Road, Port Harcourt also knows as plot D Block 198 Township Layout, Port Harocurt.

b(i) Immediate vacant possession of the four (4) rooms and appurtenances situate at No. 4 New Market Road, Port Harcourt and now detained by the 1st defendant.

(ii) PERPETUAL INJUNCTION to restrain the defendants either by themselves or through their agents, servants or privies from continuing to occupy or interfere with claimant’s right of ownership over No. 4 New Market Road, Port Harcourt.

(iii) The sum of N72,000.00 (Seven Two Thousand Naira) only as damages for the use and occupation of four (4) rooms and appurtenances at No. 4 New market Road, Port Harcourt from 1st December 1994 to 31st August, 1996

(iv) The sum of N8,000.00 (Eight Thousand Naira) per month as damages for the use and occupation of four (4) rooms and premises at No. 4 New Market Road, Port Harcourt from 1st September 1999 until possession is given up.

c. General Damaged in the sum of N50,000.00 (Fifty Million Naira).”

It is clear from the above that the averment of the respondent in the court below is that the appellants had occupied the building in question since 1/12/94.

However on 11/5/2007 on page 138 of record of appeal when the lawful attorney of the respondent was cross-examined, he said:-

“Question: When did the defendants start to occupy the property?

Subject matter of this suit?

Answer: I don’t really know.

The, appellants on the other hand in his pleading and in evidence vehemently asserted that 2nd defendant returned to Port Harcourt and resumed possession of the premises in 1976 while in 1983 the 1st defendant returned to Port Harcourt and resumed possession. See paragraph 9(c) of their joint amended statement of defence and counterclaim on page 64 of record and paragraph 8 of the written statement of oath of Kanayo Udechukwu the 2nd appellant. Surprisingly, he was not cross-examined on this by the claimant/Respondent’s counsel. Since the claimant did not give evidence in support of his averment as to the date the appellants got possession of the premises and the evidence of the appellant to the effect that possession was resumed in 1976 and 1983 respectively was not challenged I am of the firm but respectful view that the learned trial judge ought to have accepted, the dates given by the appellants/defendants as proved. see APROFIM ENGINEERING CONSTRUCTION LTD V. SIDA LTD. (2006) 13 NWLR (PT.996) 73; SANNAR & ANOR V. NORDWIND & ANOR (1988) 2 NSCC 28.

“7(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as “adverse possession’) and where under the foregoing provisions of this Law any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

By virtue of section 1 of the Limitation Law an action 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. If the defendants/appellants assumed possession in 1976 and 1983 respectively and the action suit NO. PHC/966/96 was instituted to recover the land from them in 1996, more than 10 years after the cause of action accrued then in my humble view, the action of the respondent is statute barred. It is pertinent at this juncture to consider the case of S.B.N. LTD. V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD and one other relied upon by the learned trial judge in holding that the fact that the appellant did not specifically determine the precise date upon which the cause of action arose in their statement of defence was fatal to the contention of the appellants that the action was statute barred.

With due respect I am unable to agree with his lordship on this. It appears to me that the Supreme Court held in that case that pleading the date the cause of action accrued was not sufficient unless admitted by the other party as the date of accrual of cause of action was a fact to be proved. According to Karibi Whyte JSC on page 111 of the Report, …….. It is the defendant who ought to plead and prove that the action is statute barred …….since the defendant is the party relying on the “defence of limitation.” The onus is on him to establish when the cause of action accrued to the plaintiff… It is not permissible and it would be wrong for a court to compute time from a date pleaded in the statement of defence which is not admitted in the reply and not proved by credible evidence” I am convinced that the defendants discharged their duty under the law to prove that the action was statute barred and I so hold. Issue one is accordingly resolved in favour of the appellants.

I shall consider the remaining issues together.

Were the appellants tenants at sufferance within the contemplation of the case of UDE V. NWARA (supra)?

There is no doubt that the building constructed by the father of the appellants remained on the state land leased for the purpose. There is no doubt that the state Government had not recovered possession of the land in accordance with section 26 of the State Lands Law which reads;

‘When any person without right title or license or whose right, title or license has expired or been forfeited or cancelled, is in occupation of State occupied land, the Attorney General or the Commissioner of Lands, or some persons appointed by the Attorney-General in writing, may enter a suit in the High Court to recover possession thereof.”

It seems to me that the presence of the building on the state land as in the case on appeal is one kind of occupation within the*con of section 26 of the State Lands Law. This is because the building cannot be said to have passed to the State Government, compensation not having been paid to the lessees in respect thereof and the state Government could also not validly transfer State Land to private individuals as purportedly done in respect of Atonye Pepple in 1993 by the Rivers State Government. See UDE V. NWARA (supra). It seems clear to me that the building belonging to the Estate of the Appellants’ father occupies the State Land even though the land belongs to the state. This distinction is clearly highlighted by the Supreme Court in UDE v. NWARA (supra). The presence of the building on the said land makes the beneficiaries of the Estate of the appellants’ father tenants on the land. It is not the occupation of the building that is relevant in this regard but occupation of the land. Possession consists of two elements; intention to possess the land and the exercise of control over it to the exclusion of other persons. See Halsbury’s Laws of England Fourth Edition Vol. 45(2) at paragraph 516 at page 336. The occupation of the land by the building is an exercise of control over the land to the exclusion of other persons. See Jewish Maternity Society’s Trustees V. Garfinkle (1926) 95 L.J.K.B. 766; Manchester Airport Plc v. Dutton (2000) QB 133. It is an act of possession which can even be used to sustain an action in trespass. See Adele V. Fanaki (1990) 2 NWLR (Pt.131) 137; Anayo V. Erinmwingboro (2006) 11 NWLR (Pt.992) page 669.

True, the appellants left the house and resumed possession of the building in 1976 and 1983 respectively, the building remained on the land while they were away. They ipso facto remained in possession of the land. It needs be stated again that purported sale of State Land to a private individual by Rivers State is of no effect and invalid. See UDF V. NWARA (supra).

One more point to consider were the defendants/appellants caught by estoppel of standing by for failing to join as co-defendants in suit NO. PMC/284, 286 – 288/96? What happened in suit No. PMC 284, 286 – 288/96? This is explained by the claimant in his adopted statement on oath as contained on page 86 of record of appeal thus.

“Before the institution of this suit, Claimant had earlier sued four tenants in the property to the Magistrate Court for recovery of, possession and obtained judgment against them in suit Nos. PMC/284, 286 – 288/96. The tenants were Austin Siobise, Nze Eric Okafor, Timothy Uzoho and Cyril Oduenyi Defendants were aware of these suits but they never applied to join, proffer evidence that they were owners of the property of did anything to challenge claimant’s rights. The judgment is still subsisting and the records of proceedings are hereby relied upon.”

The principle of estoppel by standing by” is that a person is bound by the result and should not be allowed to re-open the case if he is content to stand by and see his battle fought by somebody else in the same interest. See WILSON V. OSHIN (2000) 6 SC (PT.111) 1. It is important however that for such a plea to succeed the court that gave the previous decision must be a court of competent jurisdiction. See BALOGUN V. ODE (2007) 4 NWLR (PT. 1023) 1; DOKUBO V. ORMANI (1999) 1 NWLR (PT. 616) 64 In view of the provision of section 26 of the State Lands Law it is clear that only the High Court has jurisdiction to recover possession of State Lands. The meaning is the Magistrate’s Court lacked jurisdiction to entertain the claims in PMC/284, 286 – 288/96. This also means the principle of estoppel by standing by is inapplicable and the ‘court below was wrong, with due respect to have invoked the principles as it did.

I resolve this issue in favour of the appellants.

I hold that there are sufficient facts before the court to support the dismissal of the claimant/respondent’s case.

I therefore resolve all the issues in favour of the appellants. This appeal succeeds and it is accordingly allowed. The judgment of Rivers State High Court delivered on 16/12/2008 in suit No. PHC/966/96 is hereby set aside. In its place. I hereby order that the plaintiffs case is dismissed with cost assessed as N30,000 in favour of the appellants.

M. DATTIJO MUHAMMAD, J.C.A.: My learned brother AWOTOYE JCA did oblige me the draft of the lead judgment he prepared and on perusal. I agree that the appeal, for the reasons articulated by his lordship, is meritorious. I allow it as well and abide by the consequential orders decreed in the lead judgment including the order on costs.

PAUL GALINJE. J.C.A.: I agree entirely with the reasoning contained in the judgment and the conclusion arrived thereat. The appeal is meritorious and it is allowed. I endorse all the consequential orders including order as to cost.

Appearances

Sonny O. Wogu with O. E. Olumekun (Mrs) and A.O. AdeniyiFor Appellant

AND

A. R. George

N. EremaFor Respondent