Mrs. Comfort Olufunmilayo Asaboro & Anor V. Pan Ocean Oil Corporation (Nig) Ltd & Anor (2005)
LawGlobal-Hub Lead Judgment Report
NWALI SYLVESTER NGWUTA, J.C.A.
This appeal is against the judgment of Umukoro J. of the Delta State High Court, then of Oghara Judicial Division.
The appellants were the Plaintiffs and the Respondents the Defendants in the Court below.
Endorsed on the Writ of Summons dated 7th July, 1994, are the following claims:
“(1) A declaration that the Plaintiffs are entitled to the Certificate of Occupancy/Customary right of Occupancy over those pieces or parcels of land lying and situate at Oghara along Benin/Sapele Road, Ethiope West Local Government Area within the Jurisdiction of this Honourable Court, the dimension and abuttal of which are more particularly described and delineated in Pink in the Survey Plan to be filed in this action.
(2) The sum of N200,000,000.00 (Two Hundred Million Naira) damages and/or compensation for trespass, destruction of Plaintiffs rubber trees in the Plantation on the said land and extensive damage of the land by oil spillage arising from Defendants’ drilling operations on the said land.
(3) Perpetual injunction restraining the Defendants their servants, agents and/or privies from further entering into the said land or doing anything thereon which is inconsistence (sic) with the plaintiffs’ exclusive right to the land.”
Pleadings were duly filed and exchanged. The operative pleadings on which the matter was tried were the further amended Statement of claim and the amended Statement of Defence.
Concluding its reserved judgment dated 20/8/98, the Court below held, inter alia:
“Accordingly, this suit instituted by Writ of Summons on 7/7/94 and amplified by further amended Statement of Claim on 20/1/97 and deemed properly filed and served on 24/1/97 by order of Court against the defendants jointly and severally shall stand dismissed.”
Aggrieved by the judgment, the Plaintiff now appellant, appealed against same on five grounds.
In view of the issues supposedly distilled from them, I deem it appropriate to reproduce the grounds of appeal, though without particulars where applicable.
“GROUNDS OF APPEAL
- The learned trial Judge misdirected himself in law, in holding that the period for bringing action to claim for fair and adequate compensation for damage of surface rights under the Petroleum Act Cap 350 Laws of the Federation, 1990 is twelve years as provided under the Limitation Laws of Delta State.
- The Learned trial Judge erred in holding that the action is statute barred when the injury complained of is a continuous one.
- The learned trial Judge erred in Law, in dismissing the action after holding that the Plaintiffs/Appellants have no locus to institute the action.
- The learned trial Judge erred in rejecting the Valuation Report (Exhibit D) as sufficient proof of the amount stated therein as loss sustained by the Plaintiffs.
- The judgment is against the weight of evidence.”
In compliance with the Rules of the Court, the parties by their respective Counsel, filed and exchanged briefs of argument with the appellants filing an appellant’s Reply Brief.
In their briefs, the appellants framed five issues for determination but in substance and even in form the said issues are mere reproduction of the fire grounds of appeal. They are hereunder reproduced:
“(a) Whether the learned trial Judge was right to hold that the period for bringing an action to claim for fair and adequate compensation for damages to surface rights under the Petroleum Act Cap 350 Laws of the Federation, 1990 is twelve years as provided under the Limitation Laws applicable in Delta State.
(b) Whether the learned trial Judge was right in holding that the action is statute barred when the injury complained about was a continuous one.
(c) Whether the learned trial Judge was right in holding that the Plaintiffs/ Appellants in this case lacked the Locus standi to prosecute the action.
(d) Whether the learned trial Judge was right in rejecting the valuation Report (Exhibit D) as insufficient proof of the amount stated therein as loss sustained by the Plaintiffs.
(e) Whether the judgment is not against the weight of evidence.”
In the Respondents’ brief, the following three issues were raised for the Court to resolve:
“ISSUE 1:
Whether the learned trial Judge was right in holding that the action is statute barred having been commenced after twelve years as required by Law Ground 1 & 2.
ISSUE II:
Whether the learned trial Judge was right in holding that the appellants in this case lacked the requisite locus standi to prosecute this action.
GROUNDS 3.
ISSUE III
Whether the learned trial Judge was right in rejecting the Valuation Report
(i.e. Exhibit ‘D’).
GROUNDS 4.
At the hearing of the appeal, learned Counsel for the appellant adopted and relied on the appellant’s brief dated 14/4/03 and deemed filed on 1/7/03 as well as the reply brief dated 12/1/05 and deemed filed on 18/05/05. Learned Counsel highlighted some issues in his briefs and based on the argument therein contained, he urged us to allow the appeal.
Learned Counsel for the Respondents adopted the Respondent’s Brief dated 27/2/04 and deemed filed on 22/9/04. After emphasizing some points in the brief, he urged us to dismiss the appeal based on the argument in his brief.
In his brief of argument, learned Counsel for the appellant, dealing with issues 1 and 2 together, conceded that the findings of the lower Court with regards to the date of entry into the land by the Respondent and the date of institution of the action are based on the evidence before the Court. He however impugned the lower Court’s conclusion that the suit is statute – barred and said the conclusion was reached without consideration of the main claim before the trial Court. He contended that the appellants did not seek to recover land and submitted that the limitation law did not apply.
It was submitted that the conclusion that the suit was statute -barred based on section 4, 5 and 12 of the Limitation Law was erroneous as none of the said provisions of the Law deals with claims for compensation especially if such compensation is payable by virtue of mandatory provision of a statute. Counsel referred to Shell Petroleum Development Company v. Farah & 7 Ors (1995) 3 NWLR (Pt.382) 148 at 186, and argued that in the absence of such provision it was wrong for the Court below to import a period of limitation into the provision of the Petroleum Act or regulation there under made. It was further argued for the appellant that while the date of initial entry was not in dispute pleadings and evidence indicate a gradual and systematic periodic expansion by the Respondents into areas not previously affected by the initial entry.
Learned Counsel argued that even if the limitation Law is applicable, it could not be applicable to the acts of the respondent committed in 1994.
According to learned Counsel, the claim is for mandatory compensation based on damage to the surface right of the land and not for entry to the land, which is synonymous with trespass. It was contended for the appellant that the acts complained of by the appellants were continuous and that until there had been entry, the subsequent damage and a refusal to pay fair and adequate compensation the cause of action did not accrue and that the cause of action in respect of the 1994 license did not accrue until after April, 1994 and the action commenced in July, 1994 can not be said to be statute-barred.
On a determination of whether or not an action is statute-barred, Counsel referred us to the following cases:
Julius Berger (Nig) Plc & Anor v. Omogui (2001) 15 NWLR (Pt.736) 401 art (sic) 417-9.
Mohammed v. Military Admin. Of Plateau State (2001) 16 NWLR (Pt.740) 524 at 545.16 (sic).
Learned Counsel urged us to resolve issues 1 & 2 in favour of the appellants.
In issue 3 on Locus standi, it was submitted for the appellant that the case has nothing to do with the administration of the estate of Late Joseph Asaboro and that the Writ of Summons was not specially endorsed to the effect that the 1st appellant was prosecuting the case as an administratrix of the said estate.
It was argued that regardless of pleadings the 1st appellant instituted and conducted the case in her personal capacity, as also is the case with the 2nd appellant.
Counsel argued that the case of Jeddo v. Imiko (1972) 1 All NLR 260 relied on by the trial Court is inapplicable as the 1st appellant did not endorse the Writ as administratrix. He relied on Stebbings v. Hoist And Co. Ltd (1953) 1 WLR 603 where a widow endorsed the Writ as “Widow and administratrix” when she had not obtained letters of administration and the Court held the Writ valid as the endorsement described only the Plaintiff’s personal status and not the capacity in which she bought the action. He relied on Bowler v. John Mowlem & Co (1954) 1 WLR 1445.
Learned Counsel referred to paragraphs 8 and 9 of his pleading and argued that the claim that the 1st appellant was appointed as administratrix of the estate of her late husband and that she would rely on the letter of administration is not the sole ground on which she instituted the action as she also pleaded that she is a widow of late Joseph Asaboro. Counsel cited Alao v. Kure & Anor (2000) 9 NWLR (Pt.672) 523 and said that averment on which no evidence is led is deemed abandoned or in the alternative and as held by the Court below the 1st appellant failed to prove her claimed status by not tendering the letters of administration.
Counsel however, argued that the case did not rest on the abandoned averments in the pleading, and that the conclusion of the trial Court that the case would fail for lack of evidence on that averment is perverse. He submitted that the 1st appellant, as a widow of a man who died intestate, can maintain an action in her capacity as a widow to protect the estate of her deceased husband.
He relied on Elendu v. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 740 for a liberal interpretation of the expression “locus standi”. Counsel referred to Lawal v. Sulami & Anor (2002) NWLR (Pt.752) 687 at 713 to buttress his contention that all a litigant has to do to establish locus standi is to show that he has sufficient legal interest in seeking redress in Court and with reference to Ovie- Whysky v. Olawoyin (1983) 6 NWLR 156 at 171 – he stated that sufficiency of interest is a matter to be determined on the facts and circumstances of each case. The cases of T. Sufanu & Sons v. Animashilan & 3 Ors (2000) 14 NWLR (Pt.688) 650 at 664 and United Nigeria Company Limited v. Nahaman & 3 Ors (2000) 9 NWLR (Pt.611) 177 at 189 were relied on for the submissions that a member of the land owing family can bring an action to protect the property from waste and that an individual who has a vested interest in a property can institute an action to preserve the property.
Ogbuchi v. governor of Imo State (1995) 9 NWLR (Pt. 417) 53 at 82-84- 89 and Guda & 2 Ors v. Kitta (1999) 12 NWLR (Pt.629) 21 at 47 were cited as authorities for the distinction between two Judicially recognized classes of right – primary right and secondary rights, the latter existing to protect the former. Still on the issue of locus standi, Counsel argued that the 2nd appellant being the owner in possession of the rubber trees on the area affected by the operation of the Respondents has sufficient standing to initiate this action for even squatters and trespassers in possession can successfully maintain action in trespass. He relied on the case of Oyakonghan v. Amadi (2000) 5 NWLR (Pt.658) 625. It was further argued for the appellants that the 2nd appellants never acted or claimed to act as executor or administrator of the estate, and if the 1st appellant and Chief Owolabi are regarded as executors de son tort for failure to produce the letters of administration the contract between them and the 2nd appellant would not be adversely affected unless the same is tainted in illegality as was decided in Bank of West Africa v. Rickett (1959) NRNLR 125 at 132- 134, nor does one who knowingly receives a chattel from an executor de son tort become one, for which he relied on Paul v. Simpson (1846) 9 QB 365. Counsel urged the Court to resolve the issue of locus standi in favour of the appellants.
In issue 4, learned Counsel referred to the finding of the trial Court that the loss of profit for 22 years and the loss for unexpired term calculated to be N39,319.35, was not proved and contended that the Court should have awarded the sum of N49, 296,022.00 which was established in evidence of PW4.
He relied on NBC Plc v. Borgundu (1999) 2 NWLR (Pt.591) 408 at 430. On the claim for N300,000,000.00 damages in the pleading and the sum of N44.4 as per the summary of the appellants’ claims at page 9 of exhibit D. He said the PW5 gave evidence that the compensation payable as at 6/1/95 was N49,296,022. He referred to NBC Plc v. Borgundu (supra) and Akanni v. Makanju (1978) 11 & 12 SC 1 for the contention that a Court may award less but not more than what is claimed as damages claimed were at large.
On the sum of N4,481,450.00 claimed as the valuer’s professional fees, Counsel submitted the fees are payable as damages because they arose from avoidable acts of the Respondents. He urged the Court to assess and award damages in favour of the appellant.
Issue 5 is said to encompass ground 1-5 and in respect of the issue, Counsel adopted and relied on his argument in support of issues Nos 1 & 2, 3 and 4. Learned Counsel referred to the evidence of DW, and said the contradiction as to the existence of rubber plantation on the land was enough for the Court to award punitive damages against the Respondents. He urged the Court to resolve issue 5 in favour of the appellant. He urged the Court to allow the appeal.
In issue one on the statute of limitation, learned Counsel for the Respondents referred to sections 4, 6 and 12 of the Limitation Law, Cap 89 vol. IV Laws of Bendel State 1976 as applicable in Delta State and argued that the action is statute-barred as the cause of action accrued in 1971 and the action was commenced 23 years later (on 7/7/94). On the authority of Egbe v. Adefarasin (1987) 1 NWLR (Pt.47) 1 he said the Court should look at the writ of summons and the statement of claim to determine the period of limitation. He referred to Eboigbe vs. NNPC for his argument that time started to run for the appellants when the cause of action accrued in 1971; and cited Odedekun Vs. Hassan (1997) 12 NWLR (Pt.531) 56 and submitted that any right that accrued to the Appellants were completely extinguished at the expiration of 12 years from the accrual of such rights. Counsel submitted that the period of limitation is designed to avoid a situation where a plaintiff can commence an action long after human memory had faded. He relied on National Universities Commission Vs. Olapade Olatunji Oluwo & 5 Ors (2001) 3 NWLR (Pt.699) 90 at 108. He urged the Court to resolve the issue in favour of the Respondents.
In issue II on the locus standi, Counsel said that a statement of claim supercedes the writ of summons. He referred to the further amended statement of claim and said the capacity in which the 1st appellant prosecuted the case was endorsed thereon as “Mrs. Comfort Olafunmilayo Asaboro (sole surviving Administratrix of the estate of Late Joseph Asaboro)”. He referred to Jeddo v. Imiko (1972) 1 All NLR 260 and argued that the 1st Appellant who had no letters of administration lacked the capacity to institute the action.
In reference to Adeyemi v. Olajunmi (1994) 2 NWLR (Pt.327) 500. Counsel said the 1st appellant has not proved her claimed source of right to sue.
Counsel referred to the appellants counsel’s argument that a widow can institute an action to protect the property of her deceased husband, but submitted that a party must be consistent in his case before the lower Court and in appeal, both in the pleadings and evidence.
He relied on Oredoyin v. Arowolo (1984) 4 NWLR (Pt.114) 172, Edebiri v. Edebiri (1997) 4 NWLR (Pt.498) 165 at 174. Learned contended that the 1st appellant fought the case not in her personal capacity nor as a family representative but as the Administratrix of the estate of Late Joseph Asaboro and as the lower Court held “on averment in pleading is not tantamount to evidence and cannot be so construed as such. It has to be proved or established by evidence subject, however, to any admission made by the other party in his own pleadings in respect thereof”. It was submitted on behalf of the Respondents that having lost the motion in this Court to admit further evidence consisting of letter of Administration granted in 9/5/74 and Document dated 1/7/99 with reference No PDT/163/98 issued by the probate Registrar High Court of Justice, Asaba, Delta State, the appellants cannot now reopen the issue. The case of John Andoy Sons & Co. Ltd v. NCR 1 (1997) 3 NWLR (Pt.491) 1 in which the Supreme Court per Wali JSC held “Once an issue or issues have been raised and determined by the Court between the litigating parties, the Court becomes functus officio to either direct or allow the parties to reopen the same issue before it for re-litigation” was cited and relied on by counsel for the Respondents.
Based on the above, it was contended for the Respondent that findings of the learned trial Judge to the effect that the 1st Appellant’s reliance on the said Letters of Administration has not been proved and that failure to prove same was fatal cannot be faulted.
In issue III on the rejection of the Valuation Report exhibit “D” counsel for the Respondents submitted that the alleged expert evidence of PW4 is not in support of the Appellants’ case as same was at variance with it. Though unchallenged and uncontroverted the evidence of PW4 does not became inevitably acceptable merely because it is an expert evidence, which has not been controverted or challenged. Counsel relied on A-G of Oyo State Vs. Fairlakes Hotels (1989) 5 NWLR (Pt.121) 255 and said the expert evidence could be rejected if there is reason to do so. Counsel relied also on Ogiale Vs. Shell Petroleum Development Company Nigerian Limited (1979) 1 NWLR (Pt.430) 148 on opinion evidence by an expert. Counsel referred to the finding of the Court below that the 22 years in Exhibit D had no relation to any specific period from which it was determined, and said the Court was right when it held that the loss of profit for 22 years and loss of profit for unexpired term calculated to be N39,319,351.00 was not proved.
It was further argued for the Respondent that exhibit D was based on a survey plan, which was not tendered before the trial Court.
The plan before the Court exhibits A was, as found by the trial Court, produced on 18/9/93 whereas the valuation report was produced on 6/1/95. It was further argued that there is a variation between the survey plan tendered by the Plaintiff and the survey plan shown to the PW4. The cases of Rotimi Vs. Maguire (1974) 11 SC 133 at 152 and Oseyimo Vs. Benin Rubber Production Market (1997) 7 SCNJ 365 at 381 lines 20-30 were relied on and the Court urged to hold that exh. D has no probative value in the case. We were urged to dismiss the appeal on the grounds that the trial Court held that the Appellants’ case had no merit that the action was statute barred, that the Appellants’ had no locus standi to prosecute the case and that Exh. D was fraught with defects and was rightly rejected.
In the Appellants’ Reply Brief deemed filed on 18/5/05, it was contended that the claim is not limited to 1971, but covers the period between 1971 and the date of issue of the writ of summons, as the entry and occupation of the Appellants’ land by the Respondents occurred at different times from 1971 to 1997. Counsel referred to paragraph 20 (d) of the further amended statement of claim and said the claim in paragraph 20 (d) was for entry and occupation. The N300m claimed in paragraph 20 (b) and (c) was compensation for damages to or destruction of rubber trees.
He referred to paragraph 20 of the Respondents extant pleadings and the evidence of PW5 and DW1 (See pages 4 and 5 of the Appellants’ brief) and said the destruction of the rubber trees was not predicated on the date of entry and that the destruction occurred at various times between 1994 and 1997.
On the capacity in which the 1st Appellant commenced and prosecuted the case counsel argued that the unauthorized insertion of the endorsement tending to show that the 1st Appellant was suing as an administratrix on some of the processes filed cannot validly change her status as shown on the writ of summons which was never amended. He argued that Jeddo v. Imiko (supra) is not applicable. On the issue of estoppel, it was contended that since no appeal was filed against the ruling of the Court rejecting the letters of administration and the issues for determination did not relate to letters of administration, there was no valid reason to include the issue relating to letters of administration in the Respondents’ brief. Counsel argued that the finding of the lower Court that the 1st Appellant sued as an administratrix is argued that the finding of the lower Court that the 1st Appellant sued as an administratrix is in conflict with the finding that the cause of the Plaintiffs’ action is for monetary compensation.
Counsel argued that the argument of a party at the trial Court need not necessarily be the same with the argument on appeal as was held in Jadesimi v. Okotie-Eboh & Ors (19996) 2 NWLR (Pt.429) 128 at 144; Ogunsola v NICON (1996) 1 NWLR (Pt.423) 126 at 138. It was argued for the appellants that proffering new argument on issues that had been raised in the lower Court is permissible and did not require leave and does not amount to raising new issues on appeal.
On Exhs D and A, learned Counsel said the survey plan referred to in the Valuation Report Exh. D was tendered on the application of Counsel for the Respondents and marked Exh. E. On the other hand, Exh. A is the litigation survey plan made and filed along with the appellants’ pleading. It is not the same as Exh. E dated 13/12/94. He said Exh. A was dated 18/9/95 and not 18/9/93. He said the Court never made a finding that Exh A was produced on 18/9/93. The Court found that Exh. A was produced on 18/9/95 whereas the Valuation Report was produced on 6/1/95. Counsel argued that the Court did not appreciate that Exh. E prepared on 13/2/94 was the plan mentioned in Exh. D and the Valuation Report prepared on 6/1/95. He argued that there is no conflict between the Valuation Report and the survey plan mentioned therein. He urged us to hold that the arguments in the Respondents’ brief lack merit and to allow the appeal.
Grounds of appeal are not the same as issues arising there from for determination. In an appeal, the issues to be determined are not the same as the grounds of Appeal. Whereas the grounds of appeal accentuate the defects in the judgment sought to be set aside, the issues for determination accentuate the crux of the reasons encompassing one or more ground of appeal. See Oniah v. Onyia (1989) 1 NWLR (Pt.99) 514 at 516.
Learned Counsel for the appellants filed five grounds of appeal. The five grounds are in form of statements. In formulating his five issues for determination, learned Counsel simply repeated his five grounds of appeal though not as statements, but as questions.
For instance in ground one, the complaint is that “the learned trial Judge misdirected himself in law in holding that the period for bringing action to claim for fair and adequate compensation for damages to surface rights under the Petroleum Act Cap 350 Laws of the Federation, 1990 is twelve years as provided under the Limitation Law of Delta State.”
Issue I supposedly framed from ground 1 above questions “whether the learned trial Judge was right to hold that the period for bringing an action to claim for fair and adequate compensation for damages to surface right under the Petroluem Act Cap 350 Laws of the Federation 1990 is twelve years as provided under the Limitation Laws applicable in delta State.” In ground 5 the appellant complained that “the judgment is against the weight of evidence.” In issue 5 distilled from the above ground the appellant queried “whether the judgment is not against the weight of evidence.” In humble view, the grounds of appeal and the issues framed therefrom are the same notwithstanding the fact that one are in form of statements and the other in form of questions. An issue for determination is a short question raised against one or more grounds of appeal and are meant to be a guide to the arguments and submissions to be advanced in support of the grounds of appeal.
See Angyu & Anor v. Alhaji Malami & Anor (1992) 9 NWLR (Pt.264) 240; Chief Imonikhe & Anor Vs. A-G Bendel State & Ors (1992) 6 NWLR (Pt.248) 396; Adejumo & Ors Vs. Ayantegbe (1989) 3 NWLR (Pt.110) 417.
The issues as formulated, being merely a re-cast of the grounds of appeal cannot be a guide to the arguments and submission to be advanced in support of the grounds of appeal, for the grounds of appeal per se cannot support themselves. They stand or full on the argument and submission on issues raised from them. Issue 5 said to arise from grounds 1 – 5 constitutes a proliferation of issues as issues had been frame of each of those grounds.
In effect the appellant framed no issues and his argument is directed at his grounds of appeal, which should never be the case.
I have considered the three issues distilled by the Respondents from the grounds of appeal. It is my view that issues 1 & 2 can dispose of the appeal and I will rely on them to determine this appeal.
With regards to issue 1 on whether or not the statute of limitation applies to the appellants’ claim I have scrutinized the further amended statement of claim. Paragraph 12 thereof offers a guide as to when the cause of action accrued. It states “12 sometime in 1971, the 1st defendant and without the consent and authority of the 1st Plaintiff and in total disregard of the terms upon which an oil company may enter private land under an oil Mining lease or license, unlawfully entered the Plaintiff’s rubber estate, feeling, bulldozing and clearing the plaintiffs’ rubber trees in the estate.
…Subsequently, the 2nd Defendant was engaged by the 1st Defendant to come upon the land and together they carried on drilling operation therein also without the authority and consent of the plaintiffs and also without paying and or tendering any compensation to plaintiff.”
The claims in paragraph 20 (c) (d) and (e) of the further amended statement of claim arose, without doubt, from the Respondents alleged unlawful entry “sometime in 1971” Though the N200M in paragraph 20 (d) relates to the defendants refusal to comply with the mandatory requirements of the Petroleum Drilling and Production Regulations “from 1971 to date,” the right to the claim accrued in 1971 and this is not affected by the Respondents’ alleged refusal to pay compensation from 1971 to date.
A cause of action is a fact or set of facts which gives a person a right to judicial relief. It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. See Adogom Vs. Aina (1964) 1 All ULR 127, Adimora Vs. Ajufo (1988) 3 NWLR (Pt.8) 1; Thomas Vs. Olufosoye (1996) 5 NWLR (Pt.18) 669. From the further amended pleading the alleged unlawful entry and the consequent destruction for which the respondents refused to pay fair and adequate compensation occurred in 1971. In other words, the appellants right to institute the action accrued in 1971.
There can be no dispute as to the date the appellant commenced the action. The Writ of Summons on page 1 of the Records of Appeal is dated 7th July, 1994, so the action was commenced on 7/7/94 whereas the cause of action accrued “sometime in 1971” a period of 23 years before the action was instituted.
Against the above back ground the appellants argued with heat that their claim was one made and persecuted under the common law or for the recovery of a specific sum fixed by statute. It was emphasized that the appellants did not seek to recover any land from the respondents. It was argued that none of sections 4, 5, 6 and 12 of the limitation Law Cap 89 Vol. IV Laws of Bendel State 1976 as applicable in Delta State prescribing a period of 12 for an acting relating to land is applicable to the appellants case.
The question is what is the basis of the appellants claim? Is it not a claim relating to land? There was an alleged unlawful entry into the estate of the appellants and the estate can be no place other than land. The entery was into the land and the destruction or damage was done to the rubber plantation in the estate on the land. I hold the view that claim of the appellants for compensation and damages for destruction of their rubber plants as a result of the respondents unlawful entry into their estate is an action relating to land.
For the appellant it was argued that “Neither the Petroleum Act nor the Regulation made thereunder prescribed any period within which a claimant may commence an action against the holder of an Oil Mining Lease claiming fair and reasonable compensation. In the absence of such an express provision in the law, it will be erroneous for such to be presumed or imported unto the appellants case.”
With due respect to learned Counsel, if it is intended to exclude claims arising from the Petroleum Act and the Regulation made thereunder there would have been express provision to that effect either in the Act or in the Regulation made pursuant to same. It cannot be correct or the intention of the law that a claimant, as learned Counsel’s argument would imply, could wait for an indefinite period of time after the accrual of his right to seek redress. See the reasons for the statutes of limitation in National Universities Commission Vs. Olapade Olatunji Oluwo and 5 Ors. (2001) 3 NWLR (Pt.699) 90 at 109. Cited by the respondents. For the purposes of limitation law time begins to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See Jallco Ltd Vs. Owoniboys Technical Service Ltd (1995) 4 NWLR (Pt.391) 534. On the facts before the court below, there was in existence a person who could sue in 1971 and there was a person who could be sued and the unlawful entry and the consequent destruction for which the respondent refused to pay compensation and the refusal to pay compensation had also occurred sometime in 1971. The 1st appellant testified that “it was in 1971 that I met the 1st defendant first in the rubber estate. Ever since 1971, the 1st defendant has refused to pay us compensation” See page 192 of the records.
Appellant should have commenced the action within 12 years from the accrual of the cause of action in 1971. The action commenced in 1994, 23 years after the accrual of right to action is statute-barred. I resolve issue 1 in favour of the respondents.
Issue 2 is the question whether or not, the appellants have the requisite locus standi to commence and prosecute the action. I agree with learned Counsel for the appellants that the Writ of Summons was not amended and that it was not specially endorsed to the effect that the case was being prosecuted by the 1st appellant in her capacity as an administratrix of the estate of late Joseph Asaboro. Further more, any such endorsement where required will be on the Writs of Summons and not endorsed on the statement of claim. Be that as it may the appellant pleaded in paragraph 8 of the further amended statement of claim “Joseph Asaboro died on 2nd January, 1968, and his widow (the 1st plaintiff herein) and one Chief Sale Owolabi, the Elemo of Ikare were appointed the administratrix and administrator respectively of the estates of the deceased. The plaintiffs should found and rely upon the letters of administration issued to the 1st plaintiff and Chief Sale Owolabi.” In paragraph 10, the appellants averred that “the plaintiffs aver that in 1985, the administrators of the Estate of late Joseph Oritseyiosor Asaboro leased the said rubber estate to the 2nd plaintiff … ” By term “administrators” I believe the appellants mean the 1st appellant as an administratrix and Chief Sule Owolabi as an administrator of the estate of the deceased. Also, in the heading of the further amended statement of claim the 1st appellant was described as “sole surviving administratrix of the estate of late Joseph Asaboro. Though in appropriate cases endorsement of the status of the plaintiff should appear on the Writ of Summons, not on the statement of claim the above description of the 1st appellant and paragraphs 8 and 10 of the further amended statement of claim leaves little doubt as to the capacity in which the 1st appellant commenced and prosecuted the case. The averments as to the status of the 1st appellant having been denied by the respondent the burden of proof of same was cast on the appellants. It should be noted that to endorsement on the Writ of Summons is not the same as averment in the pleading, which also requires proof. Did the appellants or either of them discharge the burden of proving the averments relating to the capacity of the 1st appellant? The nearest the 1st appellant came to proving her claimed capacity was her testimony that” In reaction, I came with Chief Sule Owolabi a co-administrator to see the rubber plantation” Nor-was the letters of administration pleaded produced or tendered at the trial. Their being no evidence on the issue, the status claimed by the 1st appellant in the pleadings was not proved or was abandoned. What is the effect of the abandonment of the status claimed by the 1st appellant in the pleadings?
Learned Counsel for the appellant argued that the failure to prove the averred status of the 1st appellant was immaterial as the said status was not the sole ground on which the suit was initiated. He argued that the 1st appellant as the widow of the deceased has sufficient legal interest in ensuring that the estate of her deceased husband is protected. On the other hand, the respondents would hold the 1st appellant to the status or capacity attributed to her in the pleadings and argued that failure to prove some is fatal to the appellant’s case.
I have considered the pleadings, the evidence led and the judgment of the trial Court and well as the argument of learned Counsel for the parties on this point. It is my view that the averment that the 1st appellant was appointed administratrix of her husband estate is material and this was the capacity in which she prosecuted the suit and in which she dealt with the 2nd appellant over her husband’s estate in 1985. I agree that a widow can sue in respect of her late husband’s estate, but a widow per se has not the same right over the estate of her husband as a widow who has been appointed an administratrix of the estate. The latter can administer the estate, but the former cannot do so. The 1st appellant’s claimed status as an administratrix of her late husband’s estate is the legal capacity in which she instituted the proceedings and if that foundation is abandoned it collapses and the case goes down with it.
See Owodunni v. Reg. Trustees of C.C.C. (2000) 6 SC (Pt.111) 60.
The 1st appellant and Chief Owolabi contracted with the 2nd appellant in relation to the estate of Joseph Asaboro in their alleged capacities as administratrix and administrator respectively of the estate. In view of the fact that the capacity in which the appellant and Chief Owolabi contracted with 2nd appellant was pleaded but not proved, it fellows that any transaction entered into in that capacity is null and void as the capacity which is the basis of the transaction was not proved.
The 1st appellant has no legal right to administer the estate of Joseph Asaboro and any dealing with the estate, as an administratrix is void. The 2nd appellant who claims through the 1st appellant cannot fare better than the 1st appellant. I hold therefore that the appellants had no locus to commence or prosecute the action.
In conclusion, I hold that the appeal is devoid of merit and accordingly it is hereby dismissed. I make no order as to costs.
Other Citations: (2005)LCN/1777(CA)
