Ntoe Andrew O Ansa & Ors V. Chief E.H. Etim & Anor (2009)

LawGlobal-Hub Lead Judgment Report

MOJEED A. OWOADE, J.C.A.

This is an appeal from the Judgment of O.I. Itam, J. delivered on 26th day of July, 2007 in Suit No. HC/219/2009 at the Calabar Judicial Division of the High Court of Cross River State. By a writ of summons and statement of claim filed on 8th August, 2006, the Appellants as Plaintiffs claimed against the Defendants/Respondents jointly and severally as follows.

1. An order that the Plaintiffs are entitled to the certificate of Occupancy over the land in dispute described in Plan No. DAACO/CR/18/1, dated 29/11/77 and made by Dien Aniyom, Licensed surveyor.
2. An order of perpetual injunction restraining the Defendants by themselves, their agents, servants or assigns from further interfering, entering upon or dealing, with the land in dispute in any way without the consent and authority of the Plaintiffs.
3. An order for Account and return of all monies/proceeds collected over the land in dispute by the Defendants.
4. N15 Million Naira damages for trespass.

On 14th August, 2006, the Defendants/Respondents entered a conditional appearance to the Suit and followed up on 20th August, 2006 with a statement of defence and counterclaim.

The Defendants/Respondents’ also filed what he termed ‘Rejoinder’ on 19/1/07.

On 6/11/06, the Plaintiffs/Appellants filed a Reply to statement of defence and defence to counter claim.

Meanwhile, by paragraphs 21 – 23 of the Defendants/Respondents statement of defence and counter claim, they contend that.

21. Defendants intend at the trial of the Suit to challenge the competence of this suit and shall urge the court to strike out their claims and dismiss the suit.
22. Defendants aver that they intend to rely on all legal and equitable options open to them in the prosecution of this action.
23. Defendants aver that they are not liable at all to the Plaintiffs claim and shall urge the court to dismiss the entire action as frivolous and vexatious and with substantial cost.

On 12/2/07, the Defendants/Respondents filed a motion on notice praying the court to dismiss the Plaintiffs claim for being statute barred. The learned trial Judge entertained arguments on the Defendants/Respondents motion and on the 26/7/07 delivered his Judgment, which is contained at pages 167-177 of the record of appeal. Therein, he held first at page 175 that:

“From the totality of the averments in the statement of claim but especially paragraphs 3-10, as well as arguments of both counsel, it seems to me, and I so find and hold, that it is a common ground that it was in 1976 that is about 30 years before this action was brought in 2006. For the avoidance of doubts both the statement of claim and the writ complain of what the plaintiffs describe as an illegal survey plan dated 29th November, 1977 made by the defendants after they allegedly broke Into the Plaintiff’s land. It is sheer common sense to presume that the alleged acts of trespass preceded the alleged illegal survey.”

And at page 176, that:

“It is now trite that the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed that gave rise to the cause of action and by comparing the two dates. If the time on the writ is beyond the period allowed by the limitation law, then the action Is statute barred, meaning that it has become extinguished, by law and can no longer be maintained in the court. ……………….

It is now trite that where a defendant raises a defence that the Plaintiff’s action is statute barred and the defence is sustained by the trial court (as In the Instant case), the proper order for the trial court to make is an order of dismissal of the Plaintiff’s action and not merely strike it out……………………..

For the foregoing reasons, the defence raised by the defendants to the plaintiffs action is hereby sustained and the Plaintiffs action is hereby dismissed with N2,000 cost to the defendants”

Dissatisfied with this judgment, the Plaintiffs/Appellants filed a Notice and Grounds of Appeal containing four (4) grounds of appeal before this court on 7/9/07.

Appellant’s brief of argument dated 25/2/09 was filed on 27/2/09. Respondent’s brief of argument dated 2/4/09 was filed on 3/4/09. Appellants formulated one issue for determination, that is, Whether the trial Court was right to hold that this action founded on trespass was statute barred.

Similarly the Respondents only issue for determination is, whether the trial court was right that the action was defeated by reasons of the provisions of section 1 of cap. L.14 Limitation Law of Cross River State, 2004.

In arguing the sole issue for determination, learned counsel for the Appellants defined “cause of action” by reference to the cases of Dada Vs. Aina (2008) 6 NWLR (Pt 1084) 544 and UNITED BANK FOR AFRICA PLC vs BTL INDUSTRIES LTD (2006) 19 NWLR (Pt 1013) 61 and said that the plan of the land which was wrongfully and fraudulently made was concealed from the Plaintiffs and came to the Plaintiffs knowledge at the time the tenants they put on their land were being harassed and intimidated as averred in paragraph 6 of the statement of claim. Appellants counsel added, had the lower Court adverted to what cause of action is, it would have found paragraph 6, of the statement of claim relevant and crucial even though the paragraph did not state any particular date, it was clear that the cause of action arose when the Plaintiff’s became aware of the Trespass and had somebody to sue.

Appellants counsel referred to the case of Kasandubu vs. Ultimate Petroleum Ltd (2008) 7 NWLR (pt 1086) 274 to say that where as in this case, when there is a dispute as to when the cause of action arose, the learned trial Judge would have allowed hearing on the merit as to when the cause of action arose. Secondly, said counsel, pleadings had been completed and the trial court would also have found that paragraphs 16 and 17 of the statement of defence at page 21 of the record specifically mentioned April, 2006, with reference to their letter to a certain Mr. Takon, whom the Appellants In paragraph 14 of their Reply to statement of defence and defence to counter claim at page 55 of the record, admitted was their tenant. In addition to these, said counsel was the Respondents letters at pp. 153 to 154 attached to the counter affidavit against the motion to dismiss, which were not contradicted and yet clearly ignored by the lower Court.

Learned counsel for the Appellants submitted that paragraph 21 of the statement of defence, relied upon by the lower court at page 164 of the record – 1st paragraph, as giving notice to the Appellants, does not meet the required standard and upon proper Interpretation referred to a challenge during trial on merit, and not a preliminary objection as was considered by the court. Appellants counsel furthered that in the same judgment, the lower court at pages 174-175 descended Into the arena and assumed or presumed the testimony of the Appellants and concluded based on the testimony conceived by It that the Appellants meant that the cause of action arose over 30 years ago. This, said counsel is quite novel and surprising to the Appellants and relying on the case of Onuoha vs. State (1989) 2 NWLR (pt 101) 23, that a Judge should not appear to be a participant, otherwise, he will not be holding the scales of justice fairly evenly and impartially.

The trespass, said counsel was continuing and will continue unless stopped. Relying on the case of Oyebamiji vs. Lawanson (2008) 15 NWLR (Pt 1109) 122, Appellants said such continuing trespass cannot be time barred.

Learned Counsel for the Appellants concluded that the lower court denied the Appellants, the opportunity for a fair hearing guaranteed by section 36 of the Constitution of the Federal Republic of Nigeria 1999.

In contending that the Plaintiffs/Appellants action was caught by the provision of section 1 of Limitation Law of Cross River State, Respondents Counsel referred to paragraphs 3, 5 and 7 of the Appellants Statement of Claim and said that the suit was filed outside ten years of the limitation period.

Respondents contend that paragraphs 3, 5 and 7 of the Plaintiffs/Appellants statement of Claim are clear and unequivocal as to when cause of action or dispute arose between the parties, which was when C/88/76 was pending.

In response to the suggestion by the Appellants that the lower court ignored paragraph 6 of the statement of Claim, Respondents Counsel submitted that arising from Plaintiffs averment in paragraphs 3, 5 and 7 that they were in existence and known to the Plaintiffs as those who allegedly committed acts of trespass against the Plaintiffs land in 1976, but who were not sued by the Plaintiffs until when this suit was filed in August 2006. Further, that cause of action arises the moment a wrong is done to the Plaintiff by the defendant. And the wrong which is the basis of the dispute, represent a factual situation, which entitles the Plaintiff to seek a remedy in a Court of law.

Learned Counsel for the Respondents relied on the cases of Fred Egbe vs. Hon. Justice J.A. Adefarasin (1987) 1 NWLR (Pt 47) 1 at 20, Ebolgbe vs. Nigeria National Corporation (1994) 5 NWLR (Pt 347) 649 at 659 Ports Authority Plc vs Lotus Plastics Ltd & Anor 2005 24 NSCOR 566 at 583, Elebanjo vs. Dawodu 2006 27 NSCQR 318 at 353 and said that to determine the period of limitation one has to look at the Writ of Summons and Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.

Respondents Counsel submitted that the facts and circumstance of case of Kasandubu vs. Ultimate Petroleum Limited (supra) cited by the Appellants are distinguishable from the Instant case. And furthered, that Appellant’s contention that Respondents Plan of the land was fraudulently made and concealed from them, which they had only become aware, is not supported by their own averments in paragraph 3, 5 and 7 of their statement of claim as to when they became aware of the alleged trespass when Suit No CA/88/76 was pending.

Respondents submitted that Appellants were required by Order 25 Rule 5(1) of the High Court (Civil Procedure) Rules, 1987, to plead fraud before they can rely on it. That, Appellants did not plead fraud nor supply particulars of fraud in their pleadings. And, that the law is that where fraud Is in Issue in an action, It must be specifically pleaded otherwise, the party who failed to plead fraud cannot take the benefit of it. On this, Respondents counsel referred to the cases of Nishi Zawa Limited vs. Jethawani 1984 12 SC 234 at 260, Akpunonu vs. Beakart 2000 3 NSCOR 184 at 191. On Appellant’s submission that the Respondents did not plead statute of limitation, Counsel to the Respondents referred to paragraphs 21-23 of the Statement of Defence and counter claim, paragraph 7 of their Rejoinder and the memorandum of conditional appearance to submit that the trial court rightly held that the Plaintiffs/appellants were put on notice, that the suit was incompetent. He added, that assuming without conceding that the Respondents did In fact raise the issue of the action being statute barred in their defence or rejoinder, they could still have properly raised It by motion on notice relying on the materials available In the writ of summons and statement of claim.

On this, he referred to the case of Elebanjo vs. Dawodu (2006) 27 NSCOR 318. On appellants contention that the trespass was continuous and actionable in the same way as initial trespass and reliance on the case of Oyebamiji vs. Lawanson (Supra). Respondents counsel submitted that the case of Oyebamiji vs. Lawanson (supra) is distinguishable from the instant case by reason that in Oyebamiji ys. Lawanson (supra) the defendants did not plead nor raise the defence of the action being statute barred until on appeal. Whereas in the instant case, the defendants pleaded that the action was statute barred and it was so considered by the learned trial Judge.

Finally, learned counsel for the Respondents submitted that by Order 25 Rule 4(1) of Cross River State High Court (Civil Procedure) Rules, 1987, defendants were not permitted to plead law or evidence which they intend to use to support facts so pleaded. Therefore, it was superfluous to have pleaded Limitation Law of Cross River State 2004, which was evidence to be used In support of the facts that the action was statute barred. He referred to the cases of Odunsi vs. Bamgbala 1995 27 CRCN 187 at 209 & Ojo vs. Kamalu (2005) 24 NSCQR 256 at 289.

In deciding the sole Issue In this appeal, reference must be made to the averments in the statement of claim of the Plaintiffs/Appellants on which the learned trial Judge held in limine that the Plaintiffs/Appellants action was statute barred.

In this respect, both the lower Court and the learned counsel for the Respondents before us placed a lot more emphasis on paragraphs 3, 5 and 7 of the Plaintiffs/Appellants statement of claim, I think however, that as pleadings must be considered as a whole and for this purpose holistically, paragraphs 3 – 10, Inclusive of 3, 5 and 7 seem to me altogether relevant In the determination of the question of whether the Issue of Limitation was rightly considered in limine. The sections are reproduced as follows:

3. The Plaintiffs own vast areas of land which they have occupied from time immemorial and even leasing part to tenants like Ikot Efa (Akai Efa) Ikot Uduak and Ikot Effiong Ita, to mention a few. The Plaintiffs right of occupancy cover land comprised in survey plan No. DAACO/CR/18/1, dated 29/11/77, and made by Dien Aniyom, Licensed Surveyor. Their lands also cover Plan No. DAACO/SE/455.LD used In Suit No. C/88/76, wherein judgment was In favour of the Plaintiffs at the High Court but on appeal No. CA/E/210/96, and SC/92/2002, the Supreme Court held that Plaintiffs had not established the areas of trespass.
4. The 1st and 2nd Defendants to the best of the knowledge of the Plaintiffs are siblings and settlers within Ikot Ishie upon land granted under native law and custom to one itchi. That area is now Akani Ebiet Ishie. The statement of defence filed by Ikot Ishie as 1st defendant in C/88/76, is hereby pleaded. The defendants were originally known and addressed as Onwuka but have now changed their name to Etim.
5. The Defendants acting in concert have constituted themselves into families like Mkpakan and Chief Henry Etim Ishie families, and have invaded the Plaintiffs lands and surveyed same in Plan No. DAACO/CR/18/1, before mentioned. They wrongly made the plan claiming entitlements to the land therein.
6. The Plaintiffs became aware of this when some of Plaintiffs tenants began to complain of incessant harassments, intimidation and threat from the defendants which also included letters and circulars to them. Some of these letters and circulars shall be founded upon at the trial there at.
7. The acts of trespass of the defendants In this area began when C/88/76, was pending in court which showed why these areas of trespass could not be established and are outside and not concerned with suit No. C/88/76.
8. Believing that these acts were “by parties in the said suit No. C/88/76, the Plaintiffs pasted and distributed notices which are hereby pleaded. And when the Supreme Court granted Interlocutory Injunction, this was widely published In the media including on the television NTA receipt and other evidence on this are hereby pleaded.
9. The Defendants use their massive wealth, might and clout to use the Police to constantly harass, Intimidate and sometimes prosecute wrongfully, the Plaintiffs and/or their representatives. Some Police Invitations, letters, charge sheets will be founded upon at the trial hereof.
10. During testimony In C/88/76, the Ikot Ishie sole witness Chief Bassey alias Beebobsco, testified and tendered judgments of 1918 as exhibit “R” and judgment of 1925, as exhibit “S”, in defence of their acts of trespass.

In the Instant case, both the learned trial Judge in the Court below and counsel for both parties were right In their restatement of the law, first as to cause of action that:

“A cause of action arises 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.” Dada vs. Aina (2008) 6 NWLR (Pt 1084) 549 CA.

OR

“Cause of action has been defined by Courts to mean a combination of facts and circumstance giving rise to the right to file a claim in Court for a remedy. It includes all those things which are necessary to give a right to action and every material fact which Is material to be proved to entitle Plaintiff to succeed.” P.N. Udoh Trading Company Limited vs. Sunday Abere 2001 6 NSCOR (Pt 1) 579 at 590.

Second, the lower Court and the Respondents counsel were equally right to state that it Is now trite that the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed that gave rise to the cause of action and by comparing the two dates. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred, meaning that it has become extinguished, by law and can no longer be maintained in the Court. NPA Plc vs. Locus Plastics Limited & Anor (2005) 24 NSCQR 556 at 583, Eloigbe vs. N.N.P.C. (1994) 5 NWLR (Pt 347) 649 at 654 and Elabanjo vs. Dawodu (supra).

The problem in the Instant case however, does not lie In the state of the law but in the application of the law to the facts as presented by the parties. The insistence by the learned counsel for the Defendants/Respondents that the Plaintiffs/Appellants became aware of the act of trespass in 1976, almost 30 years before the institution of the Plaintiffs suit based on paragraph 7 of the Plaintiffs statement of claim and the consequent finding by the learned trial Judge of the same fact based on the same paragraph 7 Is not factually borne out by the Plaintiffs averment In the said paragraph 7 of the statement of claim.

Plaintiffs/Appellants, paragraph 7 averred that the acts of trespass of the defendants in this area began when C/88/76 was pending In Court………”

From the above, and contrary to the conjecture of the learned trial Judge which fixed the act of trespass and time which the cause of action arose at 1976, the word “pending” as used in paragraph 7 of the Appellants statement of claim is a continuing verb and therefore makes indeterminate the actual time when the action arose, The word “pending” is explained in the 6th Edition of the Black’s Law Dictionary at page 1134 as follows:

“Begun but not yet completed, during before the conclusion of prior to the completion of, unsettled; undetermined, In process of settlement or adjustment…..”

The averment in the said paragraph 7 of the statement of claim, taken together with other paragraphs of the Plaintiffs/Appellants pleadings might not have been elegantly drafted, but they seem to suggest to me that the Plaintiffs/Appellants have some explanations to make as to the time when the cause of action arose.

In other words, it is the duty of the trial Court where the date when cause of action arose Is disputed not to determine it as a question of fact until evidence has been called on the issue.

In the Instant case, it is my considered opinion that the learned trial Judge would have called evidence to determine when the cause of action arose. In similar circumstances, the Court of Appeal (Ilorin Division) in the case of Alhaji Ibrahim Shuaib Kasandubu & 1 or vs. Ultimate Petroleum Ltd & 1 or (2008) 7 NWLR (pt 1086) 274 at 302 per Ogunwumiju JCA had this to say.

“Since there was no clear Indication of when the cause of action arose or when possession was lost by the appellants in their statement of claim, the issue of time frame on which issues are joined in the pleadings must go to trial and a proper finding of fact made by the trial court after considering evidence before him. With respect, the learned trial Judge ought not to have upheld the plea of limitation when there was no clear evidence of when the cause of action arose from the writ of summons and statement of claim- the only process he was obliged to consider”

Similarly, in the instant case, the learned trial Judge was in error to have fixed the time the cause of action arose as 1976, when in fact, it was not clear from the averments in the Appellants pleadings that the cause of action actually arose on that date.

From the above, the sole issue for determination in this appeal is resolved in favour of the Appellants. The appeal is meritorious and it succeeds. The Judgment of Okoi Itam, J. on the Plaintiffs claims in Suit No HC/219/2006 delivered on 26th July, 2007 is hereby set aside. The Plaintiffs claims in Suit No. HC/219/2006 is accordingly remitted to the Honourable the Chief Judge of Cross River State for assignment to another Judge other than Okoi Itam, J. for trial de novo.

For the avoidance of doubt, as there was no appeal on the learned trial Judge’s dismissal of the counter claim of the Defendants/Respondents, the order of dismissal of the Defendants/Respondents counter-claim remains.

There shall be cost of N10,000.00 in favour of the Appellants as against the Respondents.

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Other Citations: (2009)LCN/3370(CA)