PASTOR LUKA ABIMIKU & ORS V. PASTOR ABIMIKU ANZAKU
(2013)LCN/6350(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of June, 2013
CA/J/37/2003
JUSTICES:
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
1. PASTOR LUKA ABIMIKU
2. JAMES ATTAH (FOR THEMSELVES) AND ON BEHALF OF THE EVANGELICAL REFORMED CHURCH OF CHRIST, KEFFIN WAMBAI, LAFIA LGA.A
3. REV. YAKUBU EMBUGU
4. REGISTERED TRUSTEE OF EVANGELICAL REFORMED CHURCH OF CHRIST, ALUSHI, AKWANGA LGA. – Appellant(s)
AND
PASTOR ABIMIKU ANZAKU – Respondent(s)
RATIO
DEFINITION OF A CAUSE OF ACTION
Now, what is a cause of action? A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which give rise to sue and it consists of two elements, viz: the wrongful act of the defendant which gives the plaintiff his cause of complaint, and the consequent damage. See Okenwa V. Mil Gov. Imo State (1997) 6 NWLR (Pt. 507) 136 at 153; Savannah V. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212 at 259; Alhaji V. Egbe (1986) 1 NWLR (Pt. 16) 361; Asagoro V. Pan Odean Oil (Nig) Ltd. (2006) 4 NWLR (Pt. 971) 595. Where a statue of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or solidly instituted after the expiration of the prescribed period. Consequently an action instituted after the expiration of the period prescribed by law is said to be statute-barred. In other words, time begins to run for the purpose of the limitation law from the date the cause of action accrues.
In Woherem V. Enereuwa (2004) All FWLR (Pt. 221) 1570 it was held by the Supreme Court per Iguh JSC at page 1581 that:
“it cannot be disputed that a cause of action matures or arises on a date from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached.” In ascertaining the time when the cause of action accrued for the purpose of limitation law, the court only looks at the writ of summons and the statement of claim which contains averments as to when the wrong committed by the defendant took place and place it side by side with the date when the writ issued. See Aji V. Adetola (2004) All FWLR (pt. 236) 232 at 244.I PER MSHELIA, J.C.A.
WHETHER OR NOT PREVIOUS JUDGEMENT IN A CASE CAN OPERATE AS ESTOPPEL PER REM JUDICATAM
The issue of whether previous judgments in previous case between parties could operate as estoppel per rem judicatam is an issue that must be specifically pleaded or deposed in supporting affidavit raising the defence by the party who want to invoke it. Otherwise it goes to no issue. See Chukwurah V. Ofochebe (1972) 12 SC 189 and Imisi Awolona V. Nigerian Deposit Insurance Corporation (2007) LPELR- 8444 (CA). In Amawo & anor V. A. G. North – Central State & ors (1973) 6 SC 34 it was held thus:-
“We think it is well established that where there should be pleadings res judicata should be properly set up as a plea in defence, and particulars of such a plea should also be included in such a way as should, be sufficient to apprise the plaintiff of the matters relied upon as estopping him from litigating or relitigating a particular issue or cause.”
See also Odutola V. Oderinde & ors (2004) 12 NWLR (Pt. 888) 574. PER MSHELIA, J.C.A.
PARTY THAT CAN PLEAD RES JUDICATA
As to who can plead res judicata it is well settled law that only a defendant or plaintiff in reply to a defendant’s pleading in defence to an issue raised therein can plead res judicata. See Ikotun V. Oyekanmi & anor (2008) 10 NWLR (Pt. 1094) 100.The previous judgment referred to was not placed before the lower court as exhibit. It is material because the court would examine it to see whether the conditions required for a successful plea of re-judicata have been satisfied. To sustain a plea of res-judicata a party pleading it must satisfy amongst others not only that the parties are the same in the present suit as in the previous suit but also that issue and subject matter are same in the previous suit as in the present suit. See Ojiako & anor V. Ewum & ors (1995) 9 NWLR (Pt. 420) 460. PER MSHELIA, J.C.A.
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Nasarawa State High Court of Justice delivered on 15.01.2002 by Ramadan J. wherein he dismissed the Notice of preliminary objection filed by the defendants/appellants.
The plaintiff/respondent commenced an action against the Defendants/Appellants at the Nasarawa State High Court of Justice. In his writ of summons dated 18th day of August 1999 and the Amended statement of claim dated 26th day of July 2008, the plaintiff/respondent claimed against the defendants/appellants as follows: –
(a) A Declaration that the plaintiff is the owner and entitled to the statutory right of Occupancy of all that piece or parcel of land lying and being situate along the Lafia-BAD Road in Keffin Wambai and more particularly shown, described, delineated and verged RED in the survey plan to be filed in this suit by the plaintiff. The annual rental value of the said land in dispute is N100.00.
(b) AN ORDER to the defendants to vacate or leave the said land in dispute for the plaintiff.
(c) GENERAL DAMAGE of the sum of N30,000.00 for trespass.
(d) A PERPETUAL INJUNCTION restraining the defendants by themselves, their servants, agents and/or privies from committing further acts of trespass to the said land in dispute.”
The defendants filed a joint statement of Defence and a counterclaim dated 18th day of March, 2001. See pages 17-21 of the record. Plaintiff in response filed a reply to the statement of defence and counter-claim, dated the 26th day of July, 2001.
Before the commencement of hearing of the suit, the appellants raised a preliminary objection to the effect that the action is caught by the limitation law, 1987 and therefore statute barred. After considering the submission of both counsel the learned trial judge in his ruling delivered on the 15th day of January 2002 dismissed the preliminary objection as lacking in merit.
Being dissatisfied with the said Ruling Defendants/Appellants lodged an appeal to this court vide Notice of Appeal dated 21st day of October, 2002 and filed same date. Pursuant to order of court made on 27.11.12, appellants filed an amended Notice of Appeal on 3/2/12 containing three Grounds of appeal.
In compliance with the rules of court parties exchanged briefs of argument. Appellants’ brief of argument settled by Bawa Dakup esq was filed on 13.02.2003. Respondent’s brief of argument settled by E. E Officha esq was filed on 5.05.2003. A reply brief was filed by the appellants on 6.02.2013, when the appeal came up for hearing each counsel adapted their respective briefs of argument. Appellants formulated three issues for determination as follows:
(a) From pleadings, when does the cause of action arose in this matter and is it not caught by the limitation Edict of Nasarawa State and Limitation Decree?
(b) Whether or not this suit offences (sic) S. 54 of E. Act therefore abuse of courts process
(c) Whether or not the trial court made specific findings on every issue raised in the preliminary objection.
Respondent formulated four issues for determination thus:-
1. Whether, from the pleadings filed by the parties to the action in the lower court, the appellants are in actual, exclusive and adverse possession of the land in dispute for the statutorily prescribed period as to make the Limitation Law (Edict) operate against the title of the plaintiff over the land in dispute.
2. Having regard to the state of the pleadings, when did the cause of action that gave rise to this suit arise?
3. Whether there were previous cases in which the subject matter, the parties and issues are the same as present suit as to raise the issue of estoppel per rem judicatam in favour of the defendants/appellants and render or make the present suit No NSD/LF. 65/99 an abuse of the process of court.
4. Whether the lower court, having regard to the pleadings and submissions of counsel before it,
(i) Appreciated the purport of preliminary objection raised by the defendants/appellants
(ii) Made findings of fact regarding the issues raised in the preliminary objection
(iii) Predicated its Ruling (decision) on the findings of fact.
Before I proceed to resolve the issues raised I wish to note that respondent formulated more issues then the grounds of appeal filed by the appellants. A total of four issues were formulated from the three grounds of appeal. It is settled law that though a counsel can formulate two or more issues from one ground of appeal, he is not allowed to formulate two or more issues out of a ground of appeal. Where more than one issue is formulated out of a ground of appeal the issues are incompetent. It is known as the rule or principle against proliferation of issues in an appeal. See Labiyi V. Anetola (1992) 10 SCNJ 1 at 2; Agu V. Ikewibe (1991) 3 NWLR (Pt. 180) 385; Ugo V. Obiekwe (1989) 1 NWLR (Pt. 99) 566 and Okwuagbala & ors V. Ikwueme & 2 ors (2010) 12 SC (Pt. iv) 1 at 9. Also respondent who did not cross-appeal or file respondent’s notice cannot formulate more issues than filed by the appellant in the circumstance.
In the circumstance I hold that issue 2 which is a duplication of issue 1 is incompetent and same discountenanced.
This appeal will be determined based on the issues raised by the appellants.
Issue No 1
The complaint of the appellants under this issue is whether the action is statute barred. The contention of learned counsel is that the cause of action arose in 1976 when the appellants took possession of the land in dispute.
Cause of action simply means cause of complaint. See Chief Afolayan V. Oba Joshua (1990) 2 SCNJ 62. Reference was also made to paragraph 36 of the amended statement of claim. Learned counsel submitted that the cause of action arose in 1976 when the appellants took possession of the land; harvest economic trees, deny him of the land and made provocative utterances against him. That there were criminal cases in court in 1976 and 1979 all because of the cause of action. It was contended that the plaintiff/respondent filed this suit on 23/9/99 a gap of over twenty three years (1976-1999) which is over and above the period imposed by S. 3 of Limitation Edict 1988 and S. 15 (2a) Limitation Decree. Counsel is of view that the court’s jurisdiction has been ousted. Reliance placed on Nwosu V. Imo State Inv. Sanitation Authority (1990) 2 NWLR (Pt. 135) 688. He urged court to set aside the ruling of trial court and dismiss it. That there must be an end to litigation.
In reply learned counsel for the respondent submitted that for the defendants/appellants to be entitled to the land in dispute by way of adverse possession, the defendants/appellants must show that they are in actual, exclusive and adverse possession of the land in dispute. For the Limitation Edict (now law) 1987 of Plateau State of Nigeria as applicable to Nassarawa State to apply in the instant case, it must be shown by the defendants/appellants:
(a) That their possession of the land in dispute is actual, exclusive and adverse.
(b) That their actual, exclusive and adverse possession of the land in dispute has been for a period of ten (10) years from the date on which the right of action accrued to the plaintiff/respondent. Learned counsel submitted that since the plaintiff/respondent is still living on the land in dispute and farming same, the defendants/appellants cannot be said to be in actual, exclusive and adverse possession of the land in dispute.
It was contended that two actions of the defendants/appellants, namely, the mounting of a signboard bearing the name of the defendants/appellants’ church on the land in dispute for the first time in December, 1990 and the sending of message to the plaintiff/respondent by the defendants/appellants in August, 1991 to vacate and leave the land in dispute for the defendants/appellants, gave rise to the present suit. Thus the cause of action arose in 1991 when the Defendants/Appellants challenged the title of the Plaintiff/Respondent to the land in dispute by sending message to him to vacate/leave the land in dispute for the Defendants/Appellants as averred in paragraph 39 of the statement of claim, now amended statement of claim at pages 13 and 34 of the record. That the cause of action in this suit arose in 1990/1991 and by 1999 when this suit was filed, the period between the date of the cause of action and the date this suit was filed in court was only 8 or 9 years. Thus this action is not caught by the limitation Law aforesaid. (See S. 3 of the Lamination Law 1988 aforesaid).
It was further contended that even assuming that the cause of action arose in 1976 (which is hereby vehemently denied), the Defendants/Appellants cannot be said to be in actual, exclusive and adverse possession of the land in dispute since the Plaintiff/Respondent has been the owner and in actual and physical possession of the land in dispute wherein he built his residence and lived therein with his family since 1952 and he formed part of the land, planted economic trees thereon, buried his sister and built other houses thereon. That if the Plaintiff/Respondent was not living on the land in dispute as per August, 1991 the Defendants/Appellants would not have sent a message to the Plaintiff/Respondent to pack away from the land in dispute. That since the Plaintiff/Respondent has not been dispossessed till date the Defendants/Appellants claim of title to the land in dispute based on exclusive and adverse possession does not avail the Defendants/Appellants as such S. 3 of the limitation land does not come to the assistance of the Defendants/Appellants, See Alhaja Wulemotu Ajibona V. Alhaji Surajudeen Kolawale & Anor (1996) 12 Kings Law Report (KLR) 2048 and 2061 and S. 4 Limitation Law.
Learned counsel referred to paragraphs 12 and 13 of the Amended statement of claim as well as paragraphs 17, 19, 20, 21, 22, 23, 24 and 39 and contended that as at 1991 both parties were in possession of the land in dispute. That where two parties claim to be in possession of land, the law ascribes possession to the one with better title. See Jimoh Adekoya Odubeko V. Victor O. Fowler & Anor (1993) 9 SCNJ (Pt. 11) 185 at 198. Counsel submitted that in view of the decision in Olubeko’s case (supra), it will be in the interest of justice if Lafia High Court of Justice would be ordered to hear this suit and determine which of the land disputants has better title. That the lower court noted the only issue raised by the defendants/appellants in their Notice of Preliminary objection is whether this action is caught up by the limitation law. Counsel submitted that the decision of the lower court is impeccable and this court is urged to hold likewise.
I wish to first of all note the preliminary Objection filed by the Defendants/Appellants. It reads thus:
“NOTICE OF PRELIMINARY OBJECTION”
TAKE NOTICE that counsel on behalf of the defendants shall on the … day of … 2001 at the hour of 9 o’clock in the forenoon shall be raised the understated objection.
The suit is very incompetent, in that it is statute barred.
Particulars
(a) The plaintiff claim that he acquired the land in dispute in 1991 (see paragraph 7 of the statement of claim)
(b) In the 1970’s the defendants started challenging the claim of plaintiff to title to the land (see paragraph 32).
(c) In 1976 the defendants openly and categorically made fretting efforts to dispossess him of the land but in vain. This led to meeting at the instance of plaintiff calculated to amicably settle the matter but in vain. (See paragraph 34 of statement of claim)
(d) The cause of action therefore arose as far back as 1976 by virtue of Section 3 of Plateau State Limitation Edict.
(e) The plaintiff filed this suit on 18-8-1999, a time gap of 23 years.
(f) This is over and above 10 years time limit prescribed by Limitation Decree 1966 AND Sect. 3 of Limitation Edict 1988 of Plateau State which is applicable to Nasarawa State by virtue of Sect. 9 of State (Creation and Transitional Provisions) Decree 1991 Decree No 37).
Reliefs Sought
(a) This suit be out rightly dismissed in its entirety as it is grossly incompetent and incurable detective.
(b) The counter-claim be heard alone.”
The issue raised for determination by the preliminary objection as identified by the learned trial judge is whether this action is caught up by the Limitation Law.
Now, what is a cause of action? A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which give rise to sue and it consists of two elements, viz: the wrongful act of the defendant which gives the plaintiff his cause of complaint, and the consequent damage. See Okenwa V. Mil Gov. Imo State (1997) 6 NWLR (Pt. 507) 136 at 153; Savannah V. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212 at 259; Alhaji V. Egbe (1986) 1 NWLR (Pt. 16) 361; Asagoro V. Pan Odean Oil (Nig) Ltd. (2006) 4 NWLR (Pt. 971) 595.
Where a statue of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or solidly instituted after the expiration of the prescribed period. Consequently an action instituted after the expiration of the period prescribed by law is said to be statute-barred. In other words, time begins to run for the purpose of the limitation law from the date the cause of action accrues.
In Woherem V. Enereuwa (2004) All FWLR (Pt. 221) 1570 it was held by the Supreme Court per Iguh JSC at page 1581 that:
“it cannot be disputed that a cause of action matures or arises on a date from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached.”
In ascertaining the time when the cause of action accrued for the purpose of limitation law, the court only looks at the writ of summons and the statement of claim which contains averments as to when the wrong committed by the defendant took place and place it side by side with the date when the writ issued. See Aji V. Adetola (2004) All FWLR (pt. 236) 232 at 244.In the instant case the writ of summons was filed in the lower court by the respondent on the 18-8-1999. It was accompanied with his statement of claim. The said statement of claim was further amended. According to the defendants/appellants the cause of action arose as far back as 1976. The particulars of the Notice of preliminary objection referred to paragraphs 32 and 34 of the statement of claim. For clarity paragraphs 32 and 34 read thus:
“32. However, as time went on, the defendants became unnecessarily destructive of the plaintiff’s economic trees and crops and started to harvest them and they also involved in other acts and utterances calculated to provoke and annoy the plaintiff in his land in dispute and deny him of his property.
34. The Lafia Divisional Office intervened in 1976 in the matter by calling a meeting consisting of the representatives of the Ekan Church (i.e., the defendant, the plaintiff the representative of the Emmanuel Church of Nigeria and the representatives of Elders of Keffin Wambai.
(a) Representatives of the Lafia Divisional Office included the president of the Lafia Division Mr. P. D. Fomwul, the Administration Secretary Mr. Musa Hassan Mohammed and the Land Officer/Secretary, Adanu Hassaini.
(b) representatives of the Ekan Church (i.e. the defendants) were Rev. Umaru Akwani Mr. M. Nasara Ute, Dr. Russel the Medical Director of the defendant, Rev, Karni. Chairman of the Ekan Church, Mallam Katsa etc.
(c) Representatives of the Emmanuel Church were Mr. Ayiwulu Arjugu, Mallam Saje, Mr. Alogekho Akpu etc.
(d) Representatives of the Elders of Keffin Wambai were Sarkin Keffin Wambai, Sarkin Hausawa, Sarkin Mada, Muhammadu Sidi, Danladi Sidi, Adamu Sidi etc.
The plaintiff himself was also present at the said meeting. The plaintiff shall found on the letter of invitation for the meeting Ref LD/OFF/26/S.1/S 4 signed by the president, Mr. P. D Fomwul, and the same is hereby pleaded. See pages 30 and 31 of the record.”
For the plaintiff/respondent the cause of action arose in 1990/1991. Appellant referred to the averments in paragraphs 38 and 39 of the amended statement of claim appearing at page 33 of the record. For clarity and emphasis paragraphs 38 and 39 are set out as follows:-
“38. In December, 1990 the defendants, for the first time, mounted a signboard bearing the name of their church the Evangelical Reformed Church of Christ. Formerly no signboard of any kind was put up there.
39. In August, 1991, the defendant sent a message to the plaintiff via Pastor Shama Gye Rev. Anche Maidawa and others asking the plaintiff to vacate and leave the land in dispute for the defendants as it belonged to the defendants and saying that the plaintiff was a trespasser thereon. The defendants threatened that if the plaintiff failed to vacate the land in dispute he would have himself to blame for whatever might happen to him thereon.”
I have carefully and painstakingly read through the entire averments contained in paragraphs 1-49 of the amended statement of claim. As earlier stated cause of action means the fact or combination of facts which give rise to a right to sue. This right to sue consists of the wrongful act of the defendant which gives the plaintiff the right to complain. As could be gleaned from the pleadings i.e. the statement of claim, there are other provocative acts that made the respondent to file this action. I, however agree with respondent’s counsel that the cause of action arose in 1991. The defendants/appellants challenged the title of the respondent by sending a message to him to vacate/leave the land in dispute for the defendants/appellants. See paragraph 39 of the amended statement of claim. By 18.8.1999 when this suit was filed, the period between the date of the cause of action and the date this suit was filed in court was only 8 years. The period prescribed by the Limitation Law is 10 years. Section 3 of the Limitation Law 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 him, if it first accrued to some person through whom he claims, to that person.”
I hold that this action is not caught by the Limitation Law relied upon by the appellants. Accordingly, issue 1 is resolved in favour of the respondent.
The complaint of the appellants under issue 2 is that the present suit No NSD/LF 65/99 is an abuse of the process of court relying on estoppel per rem judicatam. Reference was made to the averment of the respondent in paragraph 37 of the amended statement of claim. I agree with respondent’s counsel that the appellants only raised one issue in their Notice of Preliminary Objection dated 18th day of March 2001. The said issue raised was that “This suit is very incompetent, in that it is statute barred”. The issue of Res judicata was raised during address. The question now is whether the plea of Res Judicata has been properly raised to enable this court resolve same on merit. The issue of whether previous judgments in previous case between parties could operate as estoppel per rem judicatam is an issue that must be specifically pleaded or deposed in supporting affidavit raising the defence by the party who want to invoke it. Otherwise it goes to no issue. See Chukwurah V. Ofochebe (1972) 12 SC 189 and Imisi Awolona V. Nigerian Deposit Insurance Corporation (2007) LPELR- 8444 (CA). In Amawo & anor V. A. G. North – Central State & ors (1973) 6 SC 34 it was held thus:-
“We think it is well established that where there should be pleadings res judicata should be properly set up as a plea in defence, and particulars of such a plea should also be included in such a way as should, be sufficient to apprise the plaintiff of the matters relied upon as estopping him from litigating or relitigating a particular issue or cause.”
See also Odutola V. Oderinde & ors (2004) 12 NWLR (Pt. 888) 574. It was contended by appellant’s counsel that the issue was raised by respondent in paragraph 37 of his amended statement of claim. It has to be noted that a plaintiff may plead previous judgment in his favour not as re judicata but as a relevant fact to the issue in his present action. See Igwego & ors V. Ezeugo & anor (1992) 6 NWLR (Pt. 249) 561; 1992 7 SCNJ 284. As to who can plead res judicata it is well settled law that only a defendant or plaintiff in reply to a defendant’s pleading in defence to an issue raised therein can plead res judicata. See Ikotun V. Oyekanmi & anor (2008) 10 NWLR (Pt. 1094) 100.The previous judgment referred to was not placed before the lower court as exhibit. It is material because the court would examine it to see whether the conditions required for a successful plea of re-judicata have been satisfied. To sustain a plea of res-judicata a party pleading it must satisfy amongst others not only that the parties are the same in the present suit as in the previous suit but also that issue and subject matter are same in the previous suit as in the present suit. See Ojiako & anor V. Ewum & ors (1995) 9 NWLR (Pt. 420) 460.Appellants, having failed to properly raise the plea of res-judicata same cannot be resolved on merit without sufficient materials. Since the action is not caught by Limitation Law, appellants have the option to properly raise the issue at the hearing of the case. For the reasons stated this issue will also be resolved against the appellants.
Issue three is whether or not the trial court made specific findings on every issue raised in the preliminary objection. Learned counsel for the appellants submitted that appellants filed their notice of preliminary objection on the 19/3/2001. Counsel to the appellants argued the preliminary objection. That the trial court was after submissions duty bound to consider the merit or otherwise of counsel’s submissions. It was submitted that the trial judge ought to make pronouncement on when the cause of action arose and is it caught by Limitation Law or not AND whether it is caught by Law of estoppel by record or not counsel referred to the ruling of the trial court at page 54 of the record.
The conclusion complained of, read thus:-
“Therefore this averments and counter averments are not sufficient to resolve the controversy. This could only be done by establishing who is entitled to the land.” (See page 54 record).
That the decision of the trial judge lacks completely the ingredients of a just judgment, in that, the trial judge never appreciated:
a. The claim and cause of action
b. Issues in controversy.
c. His finding was never supported by evidence/submissions. That the decision must fail. Reliance was placed on Otulata V. Awosanya (2001) 1 SCNJ 75. Counsel contended that the trial judge’s failure to make specific finding on issues raised is a clear indication of failure of adjudicatory processes. See Agbanelo. V. U.B.N (2001) 22 LRCN 1144. That the trial court completely missed the points in controversy. He urged the court on this point to set aside the ruling.
The response of the respondent is as presented under issue 4. Learned counsel submitted that the Ruling of the lower court was based on the following issues, namely:-
(a) The issue raised in the Notice of Preliminary Objection,
(b) The issues raised in the pleadings of the parties and,
(c) The submissions of counsel to the parties.
Learned counsel submitted that the defendants/appellants raised only one issue in their Notice of Preliminary Objection, namely:-
“This suit is very incompetent in that it is statute-barred.”
Counsel contended that the record showed that the lower court demonstrated that it appreciated the purport of the preliminary objection raised by the defendants/appellants. That the lower court reviewed the submissions of the counsel for the plaintiff/respondent as well as the reply of counsel to the defendants/appellants. The lower court found that the only issue for determination in the Notice of Preliminary Objection was whether the action was statute barred. See page 52 lines 24-25 of the record. Learned counsel contended that the conclusion complained of is in order since the learned trial judge gave reasons to support the decision. He argued that the decision of the lower court vis-‘E0-vis the alleged incompetence of the suit for being statute barred is impeccable and urged the court to so hold.
As regards the issue of previous judgments in previous case which was not raised in the Notice of Preliminary Objection, counsel contended that it was premature at the stage the preliminary objection was raised to decide on the issue of estoppel per rem judicatam.
I have gone through the record. I agree with respondent’s counsel to the extent that the lower court demonstrated that it appreciated the purport of the preliminary objection raised by the defendants/appellants. But as rightly submitted by appellant’s counsel the learned trial judge did not make specific finding as to when the cause of action arose and whether the action is caught by Limitation Law referred to the appellants. The reasoning of the learned trial judge showed that he relied on both the statement of claim and statement of defence in coming to the conclusion he reached. As earlier stated the writ of summons and the statement of claim are the only center of attention by the court for the purpose of ascertainment of the time when the cause of action accrued. See Aji V. Adetola (2004) All FWLR (Pt. 236) 232. The learned trial judge rightly dismissed the preliminary objection but the reasoning was wrong. This court is entitled to examine the writ of summons and the statement of claim with a view to resolving the issue raised regarding the cause of action. This has been done under issue 1. It is now settled that an appellate court, looks and bases its decision, at the correctness of the decision and not necessarily, at the reason for the decision. In other words, an appellate court will not set aside the decision of a lower court which is right and not, merely because the trial judge or the court below, gave wrong reasons for the decision. The paramount consideration for the appellate court is whether the decision is right and not necessarily whether the reasons are right. See L.T.P.P Ltd. v. U.B.N Plc (2007) 1 WRN 117; Odukwe V. Ogunbiyi (1998) 8 NWLR (pt. 561) 339 at 350; AG Leventis Nig. Plc. V. Akpu (2007) 46 WRN 1 at 27 and Jikantono & 6 ors V. Dantoro & 6 ors (2004) All FWLR 390.
For the reasons stated I will similarly resolve issue 3 against the appellants.
Having resolved all the issues against the appellants, I will hold that this appeal is devoid of merit and same fails.
The preliminary objection having been overruled, the substantive suit should be determined on merit. It is unfortunate that this interlocutory appeal lingered on in court from 2003 to 2013 before it could be disposed off. The substantive matter should therefore be given accelerated hearing by the lower court. Appeal dismissed.
Parties to bear own costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: My learned Brother, Adzira Gana Mshelia, JCA made available to me, an advanced copy of the judgment just delivered. I have perused it and I find that the issues raised in the appeal have been exhaustively treated and as such I have nothing extra to add.
I too order that the appeal be dismissed for being unmeritorious. I equally abide by the consequential order made in the lead judgment including that of costs.
MOHAMMED A. DANJUMA, J.C.A.: I have been privileged to read in draft the lead judgment by my Lord A.G. Mshelia, JCA in this appeal.
I agree that the appeal has no merit and should fail. The plea of res judicata was not properly raised at the trial as thought by the Appellants herein. The trial Court had however come to the correct decision that the action was not statute barred.
As noted in the lead judgment, it is unfortunate that this interlocutory appeal lingered in Court from 2003 to 2013 before it could be disposed off.
That is the reason for the need to take up the hearing of the substantive case along the interlocutory application when a trial Court believes that the interlocutory application may not succeed. In this way, the substantive case would have been adjudicated upon thus obviating such prolongation as has now been occasioned in the instant appeal.
Appeal dismissed and the substantive suit to proceed on its merit expeditiously at the trial Court.
Appearances
Bawa DakupF or Appellant
AND
E. E Officha For Respondent
