ROSEMARY NKESE NAKANDA v. LADY THERESA EKEI NYA & ORS
(2019)LCN/12516(CA)
In The Court of Appeal of Nigeria
On Friday, the 11th day of January, 2019
CA/C/211/2016
RATIO
COURT AND PROCEDURE:WHERE AN ACTION IS INSTITUTED AFTER THE EXPIRATION PERIOD
“It is trite that where a statute of Limitation as in the instant case prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute – barred. See OGUNKO V SHELLE [2004] 6 NWLR [Pt. 868] 17; OSUN STATE GOVT. V DALAMI NIG. LTD. [2007] ALL FWLR [Pt. 365] 438. Time begins to run for the purposes of the Limitation Law from the date the cause of action accrues. See BRITISH AIRWAYS PLC V AKINYOSOYE [1995] 1 NWLR [Pt. 374] 722 @ 724; SHELL PET. DEV. CO (NIG.) LTD. V FARAH [1995] 3 NWLR [Pt. 382] 148 @ 156; JALLCO LTD. V OWONIBOYS TECH. SERV. LTD. [1995] 4 NWLR [Pt. 391] @ 538 SC; ASABORO V PAN OCEAN OIL (NIG.) LTD. [2006] 4 NWLR [Pt. 971] 595.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
COURT AND PROCEDURE: WHERE AN ACTION IS STATUTE-BARRED
“The issue of whether or not an action has been statute barred is one touching on jurisdiction of Court for once an action has been found to be statute-barred, although a plaintiff may still have his cause of action, that is legal right to prosecute that action has been taken away by statute. In that circumstance, no Court has the jurisdiction to entertain the action. See also MILITARY ADMIN., EKITI STATE V ALADEYELU [2007] 14 NWLR [Pt.1055] 619; IBETO CEMENT CO. LTD. V A-G., FED. [2008] 1 NWLR [Pt, 1069] 470; OFILI V C.S.C. [2008] NWLR [Pt. 1071] 238; OMAYE V OMAGU [2008] 7 NWLR [Pt. 1097] 477; ANOZIE V A-G, FRN [2008] 10 NWLR [Pt. 1095] 278; OWNERS OF THE MV ‘ARABELLA’ V NAIC [2008] 11 NWLR [Pt. 1097] 182.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
ROSEMARY NKESE NAKANDA Appellant(s)
AND
LADY THERESA EKEI NYA & ORS Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment):
This appeal stems from the judgment of the High Court of Cross River State in the Calabar Judicial Division of 9th November, 2015 presided over by Hon. Justice B. J. Ebuta. The Respondent as claimant took out a writ of summons accompanied by a statement of claim on 14/1/2013. Paragraph 12 of the said statement of claim seeks declaration, injunction and damages for trespass in these terms:
i) A declaration that a property situate, lying at and known as No. 8 Shanahan Street, Calabar, Calabar South Local Government Area of Cross River State, more particularly delineated and verged red in the Survey Plan No. EPS/132 made by E. Eyo [Licensed Surveyor] on 25th March, 1969 and counter-signed by the then Ag. Surveyor-General, Calabar on 22:4:69 is by virtue of the Deed of Conveyance made on 8th day of Nov., 1972 between Mrs. Affiong Bassey Nakanda and Mr. Peter Nya and registered as No.16, at page 16, in volume 31 in the Register of Deeds kept in the Lands Registry in the office at Calabar, the bonafide property of the Late Hon. Engr. (Sir) Peter Essien Nya (deceased) and now part of the deceased intestate estate under the administration of the claimant.
ii) A declaration that the act of the defendant in demolishing part of the building in the premises and developing or renovating same or doing any other act or thing in the premises without the consent and authority of the claimant as the Administratrix of the estate Late Hon. Engr. (Sir) Peter Essien Nya amount to acts of trespass and a challenge to the title/authority of the claimant to the estate.
iii) An order of perpetual injunction restraining the defendant, her agents, assigns and workmen from doing anything in the premises at No. 8 Shanahan Street, Calabar, in Calabar South Local Government Area of Cross River State without express permission of the claimant first sought and obtained.
iv) The sum of Ten Million (N10,000,000.00) only, as damages from the defendant’s acts of trespass on the premises situate, lying and known as No. 85 Shanahan St., Calabar, Calabar South Local Government Area.
The appellant and the Respondent are sisters, both of them children of the late Mrs. Affiong Bassey Nakanda. The claimant Respondent, senior sister to the Appellant got married to Late Hon. Engr. (Sir) Peter Essien Nya who was an in-law to the late Mrs. Affiong Bassey Nakanda. The case of the Respondent as claimant was/is hinged on her being the administratrix of the estate of late Hon. Engr. (Sir) Peter Essien Nya in respect of the real property of No. 8 Shanahan Street, Calabar which property the deceased had from his mother-in-law, Mrs. Affiong Bassey Nakanda by a deed of conveyance of 8/11/1972.
It was not in dispute that the property in dispute was originally purchased in 1969 by Mrs. Affiong Bassey Nakanda who according to the Respondent claimant donated same as a gift inter-vivos by the Deed of Conveyance executed in 1972.
The Appellant as defendant on her part contends that the entire property at No. 8 Shanahan Street, Calabar is the personal property of her late mother, Mrs. Affiong Bassey Nakanda, who acquired the land in 1969 and first built 20 rooms, then built one storey building of 4 flats, and shared one flat each to her 4 children including the claimant who had been administering her own personally and not as administratrix of her late husband’s estate.
It was stated that the NEPA Bills came in her name for her flat only and the suit for ejection of Madam Nkoyo Ekpenyong Nakanda in suit No. MC/129/2009 came in her personal name even when her husband was alive without any protest from him.
Appellant as defendant contends further that the Respondent claimant appealed to the Ndidem to share their late mother’s property for the two of the surviving children. The panel set up by the Ndidem shared the 20 single rooms for the two sisters. 10 each, after which the Respondent claimant entertained with food and drinks and her husband participated happily in the entertainment. Further, the building permit and building agreement show that the said property was owned by late Affiong Bassey Nakanda while the Respondent claimant did not tender any building permit or building plan in her husband’s name.
Also, it was contended that Respondent did not include the subject matter of this suit in the list of inventory of her late husband’s property sought to be administered. That Respondent refused to tender the list of inventory even when challenged to produce same.
In appraising the facts of the case, the learned trial judge held at pages 176 – 177 of the Records as follows:
First, at page 176 that:
The claimant has proved the title document Exhibit 5, the defendant having also failed to prove forgery by the claimant. The said Exhibits 1 and 5 are documents made in 1969 and 1972, more than 20 years old. By Section 155 of the Evidence Act, 2011 they are presumed to be accurate as regards the signature, execution, recitals, statement, etc.
The said Exhibit 5 also came from proper custody by the Principal Deed Registrar of the Lands Registry, Calabar, and duly certified and tendered in Court.
These are official acts of the officials of the Land Registry. The allegation of fraud has therefore failed. In Sections 146 and 168 Evidence Act, 2011. The defendant failed to prove same under Section 135(1) Evidence Act, 2011 as she did not plead or prove the crime beyond reasonable.[sic]
Second, at pages 176 – 177 that:
Moreover, I agree that he who asserts must prove. The defendant admitted in her pleadings that the claimant had letters of administration – Exhibit 4. She did not challenge the said letters of administration in her defence or as regards the property in dispute. Neither did she apply for the said inventory. It was therefore not an issue and could not be enlisted under cross examination.
There was the issue that the solicitors letters Exhibits D1 and D2 annexed to conferment of title on the defendant. That is not the case. It is my view and I so hold that a solicitor?s letter per se cannot supersede the documents of title duly filed in the Lands Registry. Neither can the said letter amount to a document of title.
The alleged admission in Exhibits D1 and D2 cannot be as basis for conferment of title as title cannot even be granted by mere admission in pleadings. See UBA PLC V EFFIONG [supra].
And, concluded finally that:
I also grant relief 2 that the acts of the defendant in demolishing part of the building in the premises and developing or renovating same or taking other act or thing in the premises without the consent and authority of claimant as the administratrix of the said estate amount to acts of trespass and a challenge to the title/authority of the claimant to the estate.
I order perpetual injunction restraining the defendant, her agents and assigns and workman from doing anything in the said premises at No. 8 Shanahan Street, Calabr without the express permission of the claimant first sought and obtained.
I award damages against the defendant in the sum of N100,000.00 as damages for the defendant’s act of trespass on the said premises.
I make no order as to costs.
Dissatisfied with the above judgment, the Defendant Appellant filed a Notice of Appeal containing three (3) grounds of Appeal in this Court on 22/12/2015. The relevant briefs of argument are:
1. Appellant’s brief of Argument filed on 22/9/2016 but deemed filed on 17/10/2017. It is settled by Chief Ekpenyong Ndiyo.
2. Respondent’s brief of Argument dated 28/11/2017 and filed on the same day but deemed filed on 29/11/2017. It is settled by Mrs. E.O. Onah.
3. Appellant’s Reply brief dated 12/12/2016 was filed on the same day. It is settled by Chief Ekpenyong Ndiyo.
Learned counsel for the Appellant nominated two issues for determination. They are:
1. Whether the suit is not statute barred [Ground 1 of the Grounds of Appeal].
2. Whether the judgment is not against the weight of evidence [Grounds 2 and 3 if the Grounds of Appeal].
Learned counsel for the Respondent adopted the two issues formulated by the Appellant.
On issue One, learned counsel for the Appellant submitted that the suit as constituted before the trial Court is statute barred. He referred to the provision of Section 1 of the Limitation Law of Cross River State, 2004 which dictates that ‘no action . . . to recover land . . . shall be brought after the expiration of ten years …’. He submitted that from the facts of the case, the right of action over No. 8 Shanahan St., Calabar arose in 1979 when Mrs. Affiong Bassey Nakanda, the mother of the Appellant and the Respondent moved in and lived at No.8 Shanahan Street, Calabar the subject matter of this suit. He reasoned that the suit was filed in 2013, a period of 34 years after the right of action arose. The said woman, said counsel lived with the Appellant and died in 1987. However, that soon after the death of the said Mrs. Affiong Bassey Nakanda, the respondent immediately filed suit Nos. CRT/155/87 and CRT/150/87 at the Rent Tribunal of Cross River State to eject the Appellant and their brother- Mr. Anthony Nakanda, now deceased.
He submitted, that those cases however gave birth to High Court Suit No. C/185/87 which never saw the light of day till today. That even from 1987 when suit No. C/185/87 was instituted to the date of the institution of the current case in 2013 is a period of 26 years. More so, said counsel, as this case cannot be an appeal on suit No. C/185/87 which was abandoned. He repeated that the cause of action in this case will not be from when the Respondent obtained the Letters of Administration in 2013 but dates back to when their mother moved into the premises after building same in 1979. He added that even in 1987 it was the present Respondent who sued as an Attorney of her late husband.
On the rationale for Limitation Law, he referred to the decision of the Supreme Court in ADEJUMO V OLAWAIYE [2014] [58] 2 NSCQR 765 @ 798 – 799 and explained that a party claiming a legal right must act quickly to avoid a situation where the other party would have acted in the belief that no one was offended or hurt by his act. The Respondent in this case is simply stepping into the shoes of Late Engr. Peter Nya as the administrative of his Estate. That if late Engr. Peter Nya was complacent and acted in the belief that he was neither offended nor hurt, the Respondent is incompetent to now complain. He submitted that if the late Eng. Peter Nya had any right whatsoever over the subject matter of this suit, he slept over such right and the limitation law operates to deprive him of such right.
Appellant’s counsel further submitted that the issue of Limitation Law borders on jurisdiction or competence of a Court to entertain or deal with a matter before it and it is very fundamental. That being fundamental and a threshold issue, jurisdiction can be raised at any stage of proceedings in any Court even for the first time in the Supreme Court. On this, counsel referred to the cases of NASIR V. C.S.C. [2010] 41 NSCQR 267; ORKEEK JEV V IYORTYOM [2014] [58] 2 NSCQR 113 and concluded that by virtue of Section 1 of the Limitation Law Cap. L. 14 of Cross River State of Nigeria, 2004, this suit is statute barred and the trial Court lacked jurisdiction to entertain same. He urged us to allow the appeal on this ground.
Learned counsel for the Respondent submitted on issue One that the claimant/Respondent filed her suit in the High Court in 2013. Respondent?s mother died in 1987. The Respondent’s husband died in 2010 intestate. He submitted that it is only recently that the Appellant started working on the land to make some permanent changes that warranted the institution of this suit by the Respondent in the High Court. That the Respondent explained this clearly in paragraph 8 of her statement of claim:
” the Defendant has recently began laying claim to the land now in dispute and has gone ahead to pull down the dilapidated section of the mud house originally built by their late mother and moulded blocks to convert it into a permanent concrete building in spite of the protest of the claimant and without the consent and authority of the claimant …”
He submitted that it is the action of the Appellant as stated above that gave rise to this suit. He referred to the cases of OGBA V B.D.U.J.B [2001] 8 WRN 84, and FADARE V ATTORNEY-GENERAL, OYO STATE [1982] 4 SC 1 to say that:
A cause of action arises the moment a wrong is done to the plaintiff by defendant.
He summed up his thoughts and concluded on the issue of ’cause of action’ at page 9 of the Respondent’s brief of Argument thus:
The cause of action in this suit arose after the demise of the respondent and appellant’s mother in 1987. It was after their mother’s death that the appellant stated [sic] started carrying out changes on the land, different from what the respondent intended to do with her land that gave rise to this suit. Therefore Section 1 of the Limitation Law of Cross River State does not apply to this case and should be discountenance [sic] and struck out.
Based on the above, learned counsel for the Appellant in his Reply brief submitted that from 1987 to 2013 when this suit was filed in the High Court of Cross River State is a period of 26 years, much more than the 10 years limitation period stated in the Limitation Law of Cross River State. Consequently, the case was caught up by the Limitation Law, therefore rubbing the lower Court of jurisdiction to entertain the case in the first place.
Appellant’s issue one has turned out to be an issue of jurisdiction and we are not called upon to determine when the Respondent’s cause of action in the suit arose. Suffice to say that the clear admission of the learned counsel for the Respondent on page 9 of his brief of argument is indeed corroborated perhaps foreran by paragraph 19 amongst others of the Additional Statement on Oath of Lady Theresa Ekei Nya [Respondent] thus:
1.9. I do not dispute the existence of letters written by the law firm of Innocent Ovat & Co., but it is not correct that the defendant had been in undisturbed possession without ‘a whimper’ sometime in 1987, when my late husband and I got wind of the fact that the defendant and my late brother, Anthony were laying claim, adverse to ours in respect of the property in dispute, we took action in the Rent Tribunal to evict them from the premises in Suit No.CRT/55/87 and CRT/56/87. The defendant and my late brother got to that Court and claimed ownership of the property. Since the Rent Tribunal had no jurisdiction to entertain dispute relating to title the Tribunal, Presided over by His Worship Ignatius I. Agube, Esq., [as he then was] transferred the two [2] cases which were consolidated to the High Court for hearing and determination.
By the above and the Respondent’s counsel concession that the cause of action in the suit arose in 1987, it is settled that the Respondent’s claimant’s action indeed arose in the year 1987. It is of course not in dispute that the Respondent claimant instituted this action in year 2013, which truly is 26 years after the cause of action arose.
Section 1 of the Limitation Law of Cross River State 2004 provides as follows:
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.
The instant suit which was instituted in year 2013 when the cause of action arose in year 1987 is caught by the Limitation Law of Cross River State and the trial Court lacked the necessary vires/jurisdiction to have entertained the suit.
It is trite that where a statute of Limitation as in the instant case prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute – barred. See OGUNKO V SHELLE [2004] 6 NWLR [Pt. 868] 17; OSUN STATE GOVT. V DALAMI NIG. LTD. [2007] ALL FWLR [Pt. 365] 438.
Time begins to run for the purposes of the Limitation Law from the date the cause of action accrues. See BRITISH AIRWAYS PLC V AKINYOSOYE [1995] 1 NWLR [Pt. 374] 722 @ 724; SHELL PET. DEV. CO (NIG.) LTD. V FARAH [1995] 3 NWLR [Pt. 382] 148 @ 156; JALLCO LTD. V OWONIBOYS TECH. SERV. LTD. [1995] 4 NWLR [Pt. 391] @ 538 SC; ASABORO V PAN OCEAN OIL (NIG.) LTD. [2006] 4 NWLR [Pt. 971] 595.
The rationale for Limitation Law was stated by the Supreme Court in the case of ADEJUMO V OLAWAIYE [2014] [58] 2 NSCQR 765 @ 798 ? 799 [Per Rhodes-Vivour, JSC] thus:
Once a legal right is established, there must be a remedy. A party claiming a legal right must act quickly it would be difficult or inequitable to request the adverse party to revert to his previous position. It is for this reason that the right of action is limited by statute – a statute of limitation. Furthermore, Limitation periods protects a defendant from the injustice of having to face a stale claim.
Earlier on, the Supreme Court per Eso, JSC meant as much when it stated in the case of AJAYI V MILITARY ADMINISTRATOR OF ONDO STATE [1997] 5 NWLR [Pt. 504] 237 @ 254, that:
The issue of whether or not an action has been statute barred is one touching on jurisdiction of Court for once an action has been found to be statute-barred, although a plaintiff may still have his cause of action, that is legal right to prosecute that action has been taken away by statute. In that circumstance, no Court has the jurisdiction to entertain the action.
See also MILITARY ADMIN., EKITI STATE V ALADEYELU [2007] 14 NWLR [Pt.1055] 619; IBETO CEMENT CO. LTD. V A-G., FED. [2008] 1 NWLR [Pt, 1069] 470; OFILI V C.S.C. [2008] NWLR [Pt. 1071] 238; OMAYE V OMAGU [2008] 7 NWLR [Pt. 1097] 477; ANOZIE V A-G, FRN [2008] 10 NWLR [Pt. 1095] 278; OWNERS OF THE MV ‘ARABELLA’ V NAIC [2008] 11 NWLR [Pt. 1097] 182.
Based on the above, issue one is resolved in favour of the Appellant. Having resolved a threshold issue of jurisdiction in favour of the Appellant, I do not find it any longer necessary to consider any other issue(s) in this appeal. This appeal is meritorious and it is allowed.
The judgment and orders of B.J. Ebuta, J. in suit No. HC/412/2013 sitting in the High Court of Cross River State and delivered on 9/11/2015 are hereby set aside.
Suit No. HC/412/2013 is accordingly struck out. Parties to this appeal shall bear their respective costs.
YARGATA BYENCHIT NIMPAR, J.C.A.: My brother, MOJEED ADEKUNLE OWOADE, JCA availed me an advanced copy of the judgment just delivered. I am in total agreement with the incisive way the issues for determination were resolved and I have nothing more to add. I too set aside the judgment of the trial Court and strike out the suit. I also abide by the other orders made therein the leading judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: My noble Lord, Mojeed A. Owoade, JCA has afforded me the opportunity of previewing the judgment just delivered. I agree entirely with the reasoning and conclusion thereby reached. The appeal is meritorious and it is accordingly allowed. I subscribe to all the consequential orders.
Appearances:
EKPENYONG NDIYO For Appellant(s)
MRS. E. O. ONAH For Respondent(s)
