SEVEN-UP BOTTLING COMPANY V. MR. OLUMUYIWA PETER AKINWARE
(2011)LCN/4507(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of April, 2011
CA/AE/10/2010
RATIO
CAUSE OF ACTION: MEANING OF THE PHRASE “CAUSE OF ACTION”
It is not out of place to remind ourselves of what the phrase “cause of action” means. The phrase ’cause of action’ has been defined before this court and the Apex court in a plethora of cases as facts or fact which establishes or gives rise to a right of action. It is the factual situation which gives a person a right to judicial relief, or which if sustained entitled the plaintiff to a remedy against the defendant. SEE EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) 1: YUSUFF V. CO-OPERATIVE BANK LTD. (1994) 7 NWLR (PT.359) 676: UNION BANK OF NIGERIA LTD. V. OKI (1999) 8 NWLR (PT.614) 244. PER UWANI MUSA ABBA AJI J.C.A.
CAUSE OF ACTION: POSITION OF THE LAW ON THE CONTENT OF A CAUSE OF ACTION
A cause of action therefore consists of every fact which would be necessary for the plaintiff to prove, if transversed in order to support his right to judgment. In other words, it is the bundle of aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. Thus, the factuation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforce against the defendant. See AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR) (PT.504) 237: AMUSAN V. OBIDEYI (2001) 6 NWLR (PT 710) 647: SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT.174) 379. PER UWANI MUSA ABBA AJI J.C.A.
CAUSE OF ACTION: WHAT THE COURT WILL CONSIDER IN DETERMINING WHEN THE CAUSE OF ACTION ACCRUED
The poser here is what is the determinant of a cause of action? In other words, when does a cause of action said to accrue? In determining whether a cause of action arises or not, the court will look at the Writ of Summons, the averments of the plaintiff in his statement of claim, as well as the facts and other circumstances of the case. Thus, a cause of action accrues when the event giving rise to the Plaintiff’s grouse occurs. See MATANMI V. GOVERNOR. OGUN STATE (2004) 5 NWLR (PT.866) 255: NNPC, V. SELE (2005) 5 NWLR (pr.866) 379. The court does not look at the statement of Defence to determine when the cause of action accrued. See MOSOJO V. OYETAYO (2003) 13 NWLR (pr.837) 340. PER UWANI MUSA ABBA AJI J.C.A.
COMPETENCE OF THE COURT: CIRCUMSTANCES WHEN A COURT WILL BE SAID TO BE COMPETENT
A court is said to be competent when:- (a) It is property constituted as regards qualifications of the members of the bench, and no members is disqualified for one reason or another, and (b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and (c) Court initiated by due process of law, and upon a fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the jurisdiction. See MADUKOLU V. NKEDILIM (1962) 2 SCNLR 341; HIFLOW FARM INDUSTRIES NIG. LTD. V. UNIVERSITY OF IBADAN (1993) 4 NWLR (PT.290) 719; BARCLAYS BANMK OF (NIG.) LTD. V. C.B.N. (1976) 1 ALL NLR 401. PER UWANI MUSA ABBA AJI J.C.A.
WRITTEN AGREEMENT: WHETHER WHERE AN AGREEMENT BETWEEN PARTIES HAS BEEN REDUCED IN TO WRITING , IT IS THE WRITTEN AGREEMENT THAT THE COURT WILL CONSIDER WHERE THERE IS A CLAIM THAT THE AGREEMENT HAS BEEN BREACHED
Where an agreement between the parties is in writing, it is that agreement that the court will look into whether or not the agreement has been breached. See U.B.N (NIG) v. OZISI (1994) 3 NWLR (PT.333) 395 @ 400. PER UWANI MUSA ABBA AJI J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA MOH’D TSAMMANI Justice of The Court of Appeal of Nigeria
Between
SEVEN-UP BOTTLING COMPANY Appellant(s)
AND
MR. OLUMUYIWA PETER AKINWARE Respondent(s)
UWANI MUSA ABBA AJI J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Justice, Ekiti State presided over by Hon. Justice M.O. Bodunde delivered on the 25th January, 2007 granting the reliefs sought by the Respondent save for the relief for special damages which he found not proved and also an order repossession of the demised properties with immediate effect.
The Respondent as the Plaintiff at the Lower court filed this suit against the Defendant now Appellant in the present appeal. By paragraph 25 of the 4th Amended Statement of Claim filed on the 20th July, 2006, Respondent claims the following reliefs against the Appellant as follows:-
(a) Declaration that having been abandoned by the Defendant’ the plaintiff is entitled to possession of the demised premises known and referred to as 127 Ajilosun street Ado-Ekiti in so far as the Defendant has thereby breached the covenant to use and maintain the demised premised (sic) in good tenantable repair and condition.
(b) An order for immediate possession of the demised premised (sic) situate and being at 127 Ajilosun Street, Ado-Ekiti.
(c) The sum of Six Million Naira (N6, 000,000:00) being special and general damages for breach of covenant of repairing the demised Premises.
PARTICULARS:
(i)Special damages: Cost of affecting (sic) repairs to the damaged parts of the demised premises-N3, 127,487
(ii) General damages: -N2, 872,513
Total = 6, 000,000.00
The facts given rise to the present claim is that by a lease agreement entered into on the 1st June, 1989 between the Respondent as the lessor and the Appellant as the lessee’ the lessor leased to the lessee his property known as 127, Ajilosun street, Ado-Ekiti for a period of 10 years at an annual rent of N8, 000 per annum.
The Appellant paid the rent on the property up to 31st May, 1999.
The terms and conditions governing the lease are set out in the lease agreement tendered before the trial court as Exhibit ‘A’. In 1999, a supplementary agreement was executed by the parties which conferred some other benefits on the Respondent. The supplementary agreement was admitted by the trial court as Exhibit ‘D’.
The demised premises was at all times preceding the making of Exhibit ‘A’ a warehouse while the Appellant took its lease for the purpose of its being used as its depot in Ado-Ekiti- Before the expiration of the lease, the Respondent instituted this action specifically on the 12th December, 1996 when there was more than two years left on the lease agreement.
Pleadings were filed and exchanged and issues joined. The matter went to trial. Two witnesses testified for the Respondent and several documentary exhibits were tendered. The Assistant Legal services/property Manager of the Appellant, Obinna N. Chima testified for the Appellant. At the conclusion of evidence and addresses, the learned trial judge in a considered judgment found for the Respondent and granted all the reliefs save for relief of special damages.
The Appellant is not satisfied with the said decision of the learned trial judge and hence appealed to this court vide a Notice of Appeal filed on the 31st of January, 2007 upon five (5) grounds of appeal. Leave was granted to amend the said Notice of Appeal filed on the 13th November, 2007 and was deemed properly filed on the 7th April, 2008 ten (10) grounds of Appeal. They are hereby reproduced without their Particulars:-
1. The learned trial judge erred in law in awarding the sum of N1.5 million to the plaintiff/respondent as general damages when the award is unsupported by law.
2. The learned trial judge erred in law when she awarded the sum of Fifty-six Thousand, Nine Hundred and Fifty-one Naira, Forty Kobo (N56, 951:40k) for electricity and water rates.
3. The learned trial judge erred in law when she held that the plaintiff was entitled to ten crates of seven-up drinks or its value from 1994 to 1999 when the plaintiff instituted the action in 1996 thereby making the award contrary to the case presented and accepted.
4. The Learned trial judge erred in law in entertaining the case and in awarding the reliefs granted to the plaintiff when the plaintiff’s cause of action had not accrued and the court lacked jurisdiction to entertain the case.
5. The learned trial judge misdirected himself in law in holding.
“On whether the court can hold that the defendant breached the terms of exhibit A, I am of the firm view and fully persuaded that the defendant is in breach of exhibit A.
No doubt the agreement was for a fixed, term of 10 years, however some of the acts of defendant e.g. removal of security men from the premises, clear abandonment of the entire building – see exhibit B4 letter of the plaintiff counsel to the defendant dated 31-1-95
I am of the humble view that the whole and holistic interpretation to be given to exhibit A is that the property has meant to be used for the business operations of the defendant and not to be left unused and uncared for, for any undisclosed reason as was the case in the instant case.
In my humble view any reasonable man will infer abrupt termination to exhibit ‘A’ going by the conduct of the defendant who clearly willfully abandoned the property without disclosing a valid reason for same whether expressly or orally. In my view, it was logical and natural for the plaintiff to envisage abandonment and to display anxiety about the deplorable condition of his property. According to DW1, the property was left unused for 5 years; as a result of the company’s scaling down of operations this is worrisome especially when cognizance is taken of the fact that the defendant never came back to upscale operations.
Any reasonable man will naturally have cause to be apprehensive.
The subsequent briefing of a counsel to cause exhibits B1, B2, B3, B , B5, B6, B7, B8, B9 and 810 to he Written to the defendant in my view is most appropriate given the totality of the inference that can be drawn from the conduct of the defendant.”
6. The learned trial judge erred in law in holding:
“As a clear indication that the defendant intended to yield possession of the demised premises before the expiration the 10 years, it was stated very clearly in their letter of 77-8-95 i.e. exhibit C2 in paragraph (b) thereof that the company will yield possession of an hand over of the property back to the plaintiff on or before 30th November 1995, this speaks volumes, since it is expressly stated here that the defendant intended to yield possession before the expiration of 1999 as initially stated in exhibit A. so in my view, the submission of the learned counsel to the defendant that despite the fact that defendant abandoned the property that they were still in possession is of no consequence. The defendant clearly breached the initial agreement.
Exhibit C3 even expressly stated that the early determination of the tenancy was due to economic conditions.
In my humble view, when the security men of the defendant were removed, the defendant no longer placed any significant value on their own property and or the building/property of the plaintiff at that point the plaintiff had every right to protect its property by instigating the writing of exhibit B1 – B10, up until the time this action was instituted,”
7. The learned trial judge erred in law when he held that:
‘According to the evidence of DW1 , exhibit F seems highly exaggerated not that there is no need for repairs and that exhibit F is showing a value that is sufficient to build another deport, this in my view is admitting liability in part. Infact exhibit G and exhibit C4 is an admission of liability of a breach of contract. Exhibit 4 revealed that a joint inspection of the property to identify and agree on the extent of the repairs to be carried out was to be arranged with the plaintiff this was contained in a letter dated 21st February, 1996 when it was well over 2 years after the defendant had abandoned the property and well before this action was instituted in court.”
8. The judgment is against the weight of evidence.
9. The learned trial judge erred in law when after having held that the defendant/appellant has been in breach of the contract since October, 1994 still went ahead to make award by way of special damages pose 1994 thereby prejudicing the defendant/appellant.
10. The learned trial judge erred in law in relying on exhibit ‘A’, and ‘D’ unregistered land instrument in determining the rights and obligations of the parties before her when the said exhibit was neither registered nor stamped as required by law.
(i) Exhibit A’ was a land instrument which requires Governor’s consent, registration and stamping for its validity.
(ii) The said exhibit was made without the requisite Governor’s consent and was not stamped nor registered as required by law.
(iii) Parties cannot by consent make admissible a document like exhibit 7′ which is intrinsically inadmissible.
The Respondent also was not happy with the decision of the trial court and therefore cross-appealed against that part of the decision of the trial court that refused to award him special damages for breach of contract vide a notice of cross appeal dated 20th February, 2007 upon two grounds of appeal. The two grounds of appeal are hereby reproduced without their particulars:-
(1) The lower court erred in law by holding as follows:-
“In the instant case, I am satisfied that Exhibit F was prepared by a professional who estimated damaged that the defendant is responsible for in Exhibit A and Exhibit D,.
However, I am unable to descend to the arena of extracting the relevant parts. Evidence ought to have been led during trial as to the part of Exhibit F which is to be considered for special damages, with specific reference to Exhibit A and Exhibit D…”
“1 am therefore unable to award special damages as provided for in Exhibit F.”
(2) The decision to award of N1.5 million instead of awarding the special amount claimed in Exhibit F is against the weight of evidence.
As it is the practice in this court, parties filed and exchanged briefs of a argument. In the Appellant’s brief of argument settled by K.K. Eleja, Esq, the following three issues were distilled for the determination of the appeal, namely;
1. Whether the trial court was not in error in holding that the Appellant was in breach of the lease agreement and in relying on exhibit ‘A’ to reach its conclusion.
2. Whether the learned trial judge was not in error in awarding general damages of N1.5 million and special damages having regard the paucity of evidence on same.
3. Whether the trial court was not in error in refusing to dismiss the Respondent’s case when his cause of action had not accrued and he has palpably failed to proof his case as required by law.
In the Respondent’s brief of argument settled by Ayenakin Olabanio Esq, four (4) issues were formulated for determination of the appeal, to wit:-
1. Whether the trial the trial court was not right in view of the evidence before it when it held that the Appellant was in breach of the lease agreement.
2. Whether any miscarriage of justice was occasioned by the trial court’s gesture of granting general and special damages in favour of the Respondent.
3. Whether the trial court was right in admitting Exhibit ‘A. and thereby occasioning any miscarriage of justice.”
4. Whether the cause of action had accrued at the time the Respondent instituted his case.
The Respondent also distilled two issues for determination of the cross appeal:
(i) Whether the trial court was not in error when it failed to award special damages when the same was proved.
(ii) Whether the decision of the trial court in not awarding special damages was not against the weight of evidence.
In the Appellant/Cross Respondent’s brief of argument, settled by K.K. Eleja, Esq, learned counsel formulated a single issue for determination from the two grounds of appeal of the Cross Appellant. The issue is:-
Whether the learned trial judge was not justified in law in refusing to award the special damages of N3, 127,484.00 having regard to the failure of the Cross Appellant to establish the entitlement to the same and whether the refusal has occasioned any miscarriage of justice.
At the hearing of the appeal on the 14th February, 2011, learned counsel for the Appellant, Yakuh Dauda, Esq, adopted and relied on the Appellant’s brief of argument dated 17/4/2009 and filed on the
18th/4/2008, the Appellant’s reply brief filed on the 27th/5/2010 and the Cross Respondent’s brief of argument filed on 27th/5/2010 and urged the court to allow the appeal and to dismiss the cross appeal.
Mr. Ayenakin Olabanjo, Esq, adopted and relied on the Respondent’s brief of argument filed on 12th/3/2009 but deemed properly filed on the 17th/5/2010 and urged the court to dismiss the appeal. He adopted and relied on the Cross Appellant’s brief of argument filed on the 12/3/2009 but deemed properly filed on the 17th/5/2010 and the reply brief filed on the 18th/10/2010 and urged the court to allow the cross appeal.
I will first deal with the main appeal before coming to the cross appeal- The Appellant formulated three (3) issues for the determination of the appeal. I will start with the issue No. 3 for determination as ii is my view that a determination of this issue will determine this appeal one way or the other. The issue is:-
3. Whether the trial court was not in error in refusing to dismiss the Respondent’s case when his cause of action had not accrued and he had palpably failed to proof his case as required by law.
This issue queries the propriety of the trial court’s refusal to dismiss the Respondent’s claim when the cause of action had not accrued at the time it was instituted and his failure to demonstrate his entitlement to the reliefs sought as required by law.
K.K- Eleja, Esq, in arguing this issue submitted that it is a common ground that the lease the subject matter of the case was for a period of ten years expiring May, 1999 and referred to paragraph 5 of the 4th Amended Statement of Claim. He also submitted that it is also not in dispute that the Respondent filed his action on the 12th December, 1996. He submitted that the Respondent under cross examination at page 73 lines 26-27 of the record stated that he instituted the action before the expiration of the lease. He submitted that the Appellant in its statement of Defence at paragraph 18 thereof at page 15 of the record challenged the action on the ground that it was premature. Learned counsel further submitted that he contended in his address at the trial court that the action was premature in that the cause of action had not accrued when the case was filed.
Learned counsel further submitted that in his reaction to this issue, the Respondent’s counsel never contended that the cause of action had accrued which he submitted constituted a concession of the fact that at the time the action was instituted the cause of action had not accrued. Learned counsel expressed surprise that the trial court never pronounced expressly on this all important issue which was validly raised by the Appellant. It is his view that by going ahead to consider the Respondent’s case on its merit, the trial court had overruled that leg of his objection.
Learned counsel contended that at the time the Respondent approached the trial court, his cause of action had not accrued, because:-
(i) The term of ten years created by Lease Exhibit ‘A’ had not expired.
(ii) By clause D of Exhibit ‘A’, the Appellant obligation to repair and restore the premises had not accrued until after 31st May, 1999.
(iii) The substratum of the case of the Respondent was an attempt to enforce Appellant’s obligation to repair the premises before its expiration.
(iv) The Appellant had been consistent in informing the Respondent that it approached its obligation of restoration and repairs which will become effective only after the expiration of the Lease. This is evidence from the letters tendered by the Respondent.
(v) The Appellant notified the Respondent unequivocally in very certain and unambiguous terms that it will carry out its obligation pertaining to repair and restoration after the expiration of the lease. He referred to Exhibits C4 and C5 where this position was conveyed.
Mr. K.K. Eleja, Esq, therefore submitted that premised on the above, the cause of action, of the Respondent had not accrued before he hastily filed this action in court and the trial court was therefore wrong to have refused to dismiss the case for want of cause of action.
He cited and relied on the following cases; THOMAS V. OLUFOSOYE (1986) 1 NWLR (PT.18) 669 @ 682 – 682: BRITISH AIRWAYS PLC V. AKTNYOSOYE (1995) 1 NWLR (PT.3 740-722 @ 730. Learned counsel urged the court to dismiss this appeal on this ground since there was no cause of action.
In his response, learned counsel for the Respondent Ayenakin Olabanjo, Esq submitted that the cause of action had accrued at the time the Respondent instituted the case. He submitted that the case of the Respondent before the trial court is that by reason of the Appellant’s breach of the covenant to repair the demised premises regularly, continually and continuously during the tenancy and the abandonment of the premises which has exposed the premises to destruction by termites, windstorm and other devastating causes, the Respondent is entitled to possession of the premises. He referred to paragraphs 19, 20, 21, 22 and 23 of the 4th Amended Statement of Claim which he submitted the Appellant did not deny, but only stated that she is not in breach. It is his submission that a lessor has the competence to apply for repossession of the demised premises if it is apparent that the lessee is in breach of the terms of the lease or has abandoned the demised premises. He also submitted that it is interesting that the Appellant’s counsel can still be arguing that the Respondent ought to wait till the expiration of ten years when the Appellant has admitted that it had scaled down production, left the premises and refused to give her products to the Respondent.
In the instant case, the Respondent i.e. the lessor covenanted with the Appellant, as the lessee to take all that warehouse and compound appurtaining thereto situated and living at No. 127 Ajilosun Street, Ado-Ekiti; hereinafter referred to as the demised property. This agreement is as contained in Exhibit ‘A’. It is agreed inter alia as follows:-
“The Demised premises shall he held by the lessee for a term of ten (10) years from the 1st day of June, 1989 at an annual rent of Eight Thousand Naira (8, 000) per annum net of withholding Tax and any other taxes imposed by Government. The sum of Twenty Four Thousand Naira, (24, 000) being three (3) years rent in advance having been paid prior to the execution of these present (The receipt whereof, THEE SUB-LESSEE HEREBY CONVENANTS:
a. to pay the rent hereby reserved on the day above mentioned.
b. to pay for all township and water rates levied now or in the future on the demised premises.
c. To pay for all electricity consumed on the premises.
d. To maintain the interior of the demised premises including all fixtures and fittings. Whether sub-lessor’s or sub-lessee’s in condition (fair wear and tear excepted) and to redecorate the interior of the demised premises at the termination of the lease.
e. Not to assign or let the premises without the consent of the sub-lessor in writing such consent not to be unreasonably withheld in the case of a reasonable, firm or person.
f. To be responsible for the maintenance and cleaning of the septic tanks and soak away pits serving the demised premises provided that any maintenance or cleaning arising through faulty construction or structural wear and tear shall be the responsibility of the sub-lessor.
g. To pay the cost involved in preparing the lease and for stamping and registration of the lease.
h. To permit the sub-lessor or his agents during the tenancy on giving 7 days written notice to view the said premises to ascertain their condition and to allow access at reasonable hours for any structural repairs or decoration that may be necessary.
SUB-LESSOR HEREBY COVENANTS:
a. To keep the structure in good repair including boundary fences and roadways and to be responsible for external decoration.
b. To ensure the property against fire, tornado, wind, storm and earthquake, and to refund the rent already paid for the unexpired period of the tenancy in the event that the house becomes unfit for habitation by reason of fire, tornado, wind, storm, earthquake or other fault or defect.
c. To pay any rents reserved under the Head lease, and to observe any covenants contained in the Head Lease if any and in the event of his default to indemnify the lessee against any loss or damage arising there from.
d. That the sub-lessee paying the rent hereby reserved and performing and observing the several covenants on its part therein contained shall peacefully hold and enjoy the demised property throughout the term hereby created without any interruption by the sub-lessor or any person rightfully claiming under or in trust for him.
e. To keep the sub-lessee indemnified against any claimant to the Demised Property.
f. To renew the lease for a further period of Ten (10) years on an application by the sub-lessee made three month before the expiration of the existing term and subject to the like covenants herein contained.
g. That the sub-lessee should be able to terminate this agreement by giving six months notice of his intention to terminate subject to all rents being paid in full to end of the notice period.
The Respondent took out a writ of summons against the Appellant on the 12th/12/1996 for breach of the agreement and recovery of the premises and for special and general damages.
The Respondent testified as PW1 and stated inter alia as follows:-
“…….the company rented a warehouse from me. The house is located at No.127 Ajilosun Street, Ado-Ekiti. This house was rented for ten years and it is stated in the written sub lease agreement between the Plaintiff and the defendant dated 1/6/89 admitted as Exhibit A.”
He went further to state that, part of the condition was that the company will see to the maintenance of the warehouse building. That the septic tank will be taken care of as at when it becomes full and needs cleaning. Also the Appellant were responsible for the settlement of water and electricity rates but other taxes as may from time to time be demanded by the council. That on leaving, the house will be painted and restored to its initial neat form. The Respondent alleged that the defendant failed to abide by the conditions of the agreement.
The septic was not cleaned. Electricity charges were paid up until 1994 i.e. paid for 5 years. That water rate was never paid at all during their tenancy. That he was responsible for the payment of the water rates and the house was not improved at all. It was left in a very deplorable condition. That the defendant left the premises in 1994 and the house was left in a very bad and untenantable state. That was part of the testimony of the Respondent before the trial court.
There were several correspondences between the Respondent’s counsel and the Appellant on the state and condition of the premises dated back to 1993 to 1996. From Exhibits B1, B10 and C1 – C5.
See pages 71 -73 of the record of appeal. He admitted under cross examination that the agreement was meant to lapse in 1999. That the rent was paid for 10 years. That he instituted the action against Appellant in 1996. See page71 of the agreement.
I have taken the pains to go this far for a better understanding and appreciation of the matter in controversy between the parties. The main complaint of the Respondent before the trial court was the abandonment of the demised premises and the failure of Appellant to effect same repairs as greed upon between them.
The interesting aspect of this proceeding as observed is the failure of the trial judge to pronounce on the issue of cause of action copiously raised by the learned counsel for the Appellant in their statement of Defence, the evidence of DW1 and the address of learned counsel. The Appellant averred in paragraph 18 of their Statement of Defence as follows:-
18. In the alternative the defendant shall contend that the action is premature since the claim will have to wait the expiration of the lease agreement in 1999″
In his evidence in chief DWI stated that there was a sub agreement between the plaintiff and their Company when he agreed to sublet his property in Ajilosun. That Seven-Up was the lessee to the Respondent and there was a sub lease agreement to that effect dated 1st June, 1989 for a period of 10 years. He identified Exhibit ‘A’ as the sub-lease agreement. He stated that it is not true that they left before the expiration of the lease. He stated, “We were still in possession”.
That it is not true that the company defaults in paying bills i.e. water, electricity, tenement rate e.t.c. He stated that there was no place in the agreement where it was stated that the plaintiff will repair the premises at his own cost. That it is the duty of the company to carry out the repairs of the premises at the expiration of the lease. He also stated that as at 1996 when the action was instituted, the sub-lease was still running and we saw ourselves as the sub-lessees. The court was asked to discountenance the prayers because they were unfounded.
The Respondent too, testified that the company i.e. Seven-Up Bottling Company rented ‘a warehouse from him located at 127, Ajilosun street, Ado-Ekiti, in 1989, precisely on June 1st 1989….That the agreement was for 10 years. It means it will expire in 1999. (See Exhibit ‘A’).
In his address before the Court, learned counsel formulated this issue as one of the issues for determination in the matter before him, that is, whether the cause of action of the plaintiff had accrued as at the time the action was filed. Indeed, the issue was not at all considered by the trial court in the determination of the issues before it. There was therefore no pronouncement by the court on the issue throughout the length and breadth of the judgment of the trial court.
The learned trial judge clearly closed its eyes to all this important issue and proceeded to consider only the other issues formulated for the determination of the matter before it. In the appeal, learned Appellant’s counsel formulated this issue for determination, viz.-
“Whether the learned trial judge was not in error in refusing to dismiss the Respondent’s case when his cause of action had not accrued….”
Having being armed with the full facts of the case and evidence before us, this is a clear case where this court can invoke its power under Section 16 of the Court of Appeal Act to determine this issue raised by the Appellant.
It is not out of place to remind ourselves of what the phrase “cause of action” means. The phrase ’cause of action’ has been defined before this court and the Apex court in a plethora of cases as facts or fact which establishes or gives rise to a right of action. It is the factual situation which gives a person a right to judicial relief, or which if sustained entitled the plaintiff to a remedy against the defendant. SEE EGBE V. ADEFARASIN (1987) 1 NWLR (PT.47) 1: YUSUFF V. CO-OPERATIVE BANK LTD. (1994) 7 NWLR (PT.359) 676: UNION BANK OF NIGERIA LTD. V. OKI (1999) 8 NWLR (PT.614) 244.
A cause of action therefore consists of every fact which would be necessary for the plaintiff to prove, if transversed in order to support his right to judgment. In other words, it is the bundle of aggregate of facts which the law will recognize as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. Thus, the factuation on which the plaintiff relies to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforce against the defendant. See AJAYI V. MILITARY ADMINISTRATOR ONDO STATE (1997) 5 NWLR) (PT.504) 237: AMUSAN V. OBIDEYI (2001) 6 NWLR (PT 710) 647: SANDA V. KUKAWA LOCAL GOVERNMENT (1991) 2 NWLR (PT.174) 379.
The poser here is what is the determinant of a cause of action?
In other words, when does a cause of action said to accrue? In determining whether a cause of action arises or not, the court will look at the Writ of Summons, the averments of the plaintiff in his statement of claim, as well as the facts and other circumstances of the case. Thus, a cause of action accrues when the event giving rise to the Plaintiff’s grouse occurs. See MATANMI V. GOVERNOR. OGUN STATE (2004) 5 NWLR (PT.866) 255: NNPC, V. SELE (2005) 5 NWLR (pr.866) 379. The court does not look at the statement of Defence to determine when the cause of action accrued. See MOSOJO V. OYETAYO (2003) 13 NWLR (pr.837) 340.
In the instant case, the Respondent pleaded in paragraphs 4 and 5 of his Statement of Claim as follows:-
4. By a Lease dated 1st June, 1989 the Plaintiff demised to the defendant the premises known as 127, Ajilosun Street, Ado-Ekiti, Ekiti State (then part of Ondo State).
5. The lease was for a term of ten (10) years from the 1st June, 1989 at an annual rent of Eight Thousand Naira (8, 000).
The Respondent gave evidence in respect of the above and stated further under cross examination that the agreement was meant to lapse in 1999. Exhibit ‘A’, the lease agreement stated inter-alia as follows:-
2. The Demised premises shall be held by the sub-lessee for a term of Ten (10) years from the 1st day of June, 1989 at an annual rent of Eight Thousand Naira (8,000) per annum net of withholding Tax and any other faxes imposed by Government………”
Further paragraph (d) thereof provides:-
(d) To maintain the interior of the demised premises including all fixtures and fittings, whether sub-lessor’s or sub-lessee’s in good repair and condition (fair wear and tear accepted) and to redecorate the interior of the demised premises at the termination of the lease.
The Writ of Summons in the instant case was filed by the Respondent on the 12th December, 1996. Clearly within the 10 year lease agreement between the lessor and the lessee. The lease agreement expires on the 31st May, 1999. Therefore at the time this action was instituted, the Respondent had no cause of action. He has no right upon which he can make a claim; therefore, the suit was fifed prematurely and the court is without jurisdiction to entertain it.
A court is said to be competent when:-
(a) It is property constituted as regards qualifications of the members of the bench, and no members is disqualified for one reason or another, and
(b) The subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) Court initiated by due process of law, and upon a fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the jurisdiction. See MADUKOLU V. NKEDILIM (1962) 2 SCNLR 341; HIFLOW FARM INDUSTRIES NIG. LTD. V. UNIVERSITY OF IBADAN (1993) 4 NWLR (PT.290) 719; BARCLAYS BANMK OF (NIG.) LTD. V. C.B.N. (1976) 1 ALL NLR 401.
The Respondent in the instant case, made heavy weather on the repairs of the demised premises which he alleged the Appellant failed to do and left the premises in a deplorable state in breach of the lease agreement. There is nowhere in exhibit ‘A’ the lease agreement that states as a condition to the agreement that the company will see to the maintenance of the warehouse building continually and continuously. However, at the expiration of the lease agreement the Appellant is to redecorate the interior of the demised premises. It is not part of the agreement as contained in Exhibit ‘A’ that failure to pay water, electricity bills and other rates or abandonment of the demised premises will tantamount to a breach of the agreement that will entitle the Respondent to recover the possession of the premises and claim damages for the breach of contract. By the agreement, the responsibility of the Appellant to restore the interior of the demised premises to a tenantable condition will only come into force after the expiration of the tenancy agreement on the 31st May, 1999.
Under the circumstances therefore, would the failure by the Appellant to pay water and electricity bills as alleged a breach that will entitle the Respondent to sue the Appellant for a claim for damages and repossession of the dismissed premises? I think not. What then is the effect of the unexpired term of the tenancy agreement? Exhibit A sets out the conditions for the agreement and it was not stated anywhere that the sublease will come to an end upon breach by the Appellant to pay water and electricity bills, or upon suspension of activities by the Appellant. By Exhibits C4 and C5 the Appellant reiterated the fact the Sub-lease agreement has not come to an end and will only come to an end in 1999. There is also nowhere in the agreement that the Appellant should not expose the demised premises to natural disasters.
Where an agreement between the parties is in writing, it is that agreement that the court will look into whether or not the agreement has been breached. See U.B.N (NIG) v. OZISI (1994) 3 NWLR (PT.333) 395 @ 400.
From the above discussion, and as found by the court that, the suit of the Respondent as constituted is incompetent having been commenced before the accrual date of the cause of action. It was incompetent. This appeal therefore has merit and it is hereby allowed on this sole issue 3.
A consideration of other issues will be unnecessary as it and exercise in futility and academie. This appeal therefore succeeds and it is hereby allowed. The judgment of the learned trial judge delivered on the 25th day of January, 2007 is hereby set aside. The consequence of this is that the cross Appeal of the cross Appellant is equally incompetent and it is hereby dismissed. The Appellant is entitled to cost assessed at N30, 000.00 only against the Respondent.
CHIDI NWAOMA UWA J.C.A.: I had the advantage of having a preview of the judgment delivered by my learned brother Uwani Musa Abba Aji, J.C.A.
His Lordship has dealt with the issues raised in this appeal comprehensively and adequately resolved same, I adopt same as mine. I also hold that the appeal has merit and I allow same. I abide by the consequential orders made therein including the order as to costs in the leading judgment.
HARUNA MOH’D TSAMMANI, J.C.A.: I had a preview of the judgment delivered by my learned brother, Uwani M. Abba Aji, J.C.A. The issues that arose in this appeal were adequately considered and resolved by my learned brother. I have nothing to add.
I therefore agree with the reasoning and conclusion arrived at that the suit of the Respondent at the lower court is incompetent having been commenced before the accrual date of the cause of action. I therefore allow the appeal on that score.
Having allowed the appeal, I also agree that it will be a futile exercise to embark on a consideration of other issues arising in the appeal and the Cross-Appeal. I also agree that the Cross-Appeal be and is hereby dismissed by me. I abide by the order as to cost.
Appearances
Yakubu Dauda, Esq,For Appellant
AND
Olabanjo Ayenakin, esq, with Lola Adewumi, EsqFor Respondent
