P.N. Udoh Trading Co. Ltd. V. Sunday Abere & Anor (2001)
LAWGLOBAL HUB Lead Judgment Report
KALGO, J.S.C.
The appellant who was the plaintiff at the trial court (Rivers State High Court, Port Harcourt) claimed against the respondents jointly and severally the following reliefs:
- A declaration that the reacquisition by the Government of the Rivers State of Nigeria of which the 2nd defendant is the legal Representative, and resale to the 1st defendant of the plaintiff’s property known as plot 3 within Station Road Layout otherwise and called Number 3 Station Road, Port Harcourt the subject-matter of the Deed dated the 8th day of September, 1958 and registered as No. 56 at page 56 in volume 181 of the Deeds Registry in the office at Enugu flow at Port Harcourt is illegal, null and void and of no effect whatsoever.
- N100,000.00 (One hundred thousand Naira) damages for trespass in that in March 1986 and all diverse other dates, the defendants by themselves, their servants and/or agents forcibly broke and entered the plaintiff’s said property called Number 3 Station Road, PortHarcourt and disturbed the plaintiffs possession thereof against its wish.
- A perpetual injunction restraining the defendants, their servants and/or agents from further trespass to the plaintiffs property known as plot 3 within Station Road layout otherwise called Number 3 Station Road, PortHarcourt.
- An Order setting aside and/or bringing forward for cancellation the Deed dated the 17th day of July, 1978 registered as No. 78 at page 78 in volume 72 of the Deeds Registry in the office at Port Harcourt by which the Government of Rivers, State of Nigeria purported to have sold number 3 Station Road to the 1st defendant.
- A declaration that the plaintiff is entitled to Statutory Certificate of Occupancy ill respect of the property known as plot 3 within Station Road Layout otherwise called number 3 Station Road, PortHarcourt the subject -matter of a Deed dated the 8th day of September, 1958 registered as No. 56 at page 56 in Volume 181 of the Deeds Registry now at Port Harcourt.
- As against the 1st defendant only: an account of all rents and monies collected by the 1st defendant from the plaintiff’s tenants living in the property Number 3 Station Road, Port Harcourt without the plaintiff’s consent and payment of such rents and monies to the plaintiff.
- As against the 2nd defendant: all order of the honourable Court compelling the Government a/Rivers State of Nigeria to execute all relevant Title Deeds and/or Statutory Certificate of Occupancy in respect of or touching Number 3 Station Road, Port Harcourt.
Pleadings were ordered, filed and exchanged between the parties. Parties then called witnesses at the trial to prove their respective cases in accordance with their pleadings. At the end of the trial, counsel for the parties addressed the Court and the case was adjourned for judgment. On the 20th of July 1992, the learned trial Judge Ichoku J. delivered a considered judgment in which he dismissed the whole claim of the plaintiff/appellant. Dissatisfied with this decision, he appealed to the Court of Appeal, which after hearing the appeal also dismissed it. He now appealed to this court.
In this court, the appellant formulated the following issues for determination:
(i) Whether having regard to the state of the pleadings and the evidence adduced at the trial, the Court of Appeal was right when it affirmed the judgment of the Court of first instance to the effect that the appellant’s suit was statute-barred.
(ii) Whether the Court(of Appeal) below was right when it affirmed the decision of the court of first instance to the effect that the property in question was an abandoned property within the con and intendment of section 2 of the Abandoned Property (Custody and Management) Edict No.8 of 1969 of Rivers State of Nigeria.
(iii) Whether, even if the property in question was an abandoned property there was a valid sale of it to the first respondent under the provisions of the Abandoned Property Decree No. 90 of 1970 so as to invoke the ouster clause contained in the said Decree.
(iv) Whether the Court of Appeal was right when it held that the Supreme Court’s decision in Peenok Investment Ltd. v. Hotel Presidential Ltd. (1982) 12 SC 1, (1983) 4 NCLR 122 notwithstanding, the purported cancellation of the appellant’s Deed of Lease under the provisions of the State lands (Cancellation of Lease) Edict No. 15 of 1972, as Amended, was in the circumstance of this case valid.
(v) Whether the Court (of Appeal) below was right when it held that the appellant, as Plaintiff at the Court of first instance, did not challenge cancellation of its Lease at the trial and did not appeal against the finding of the Court of first instance on the question of such non-challenge.
(vi) Assuming the purported sale of the property in question and the purported cancellation of the appellant’s Lease to be valid, whether the Court of Appeal was right in holding that the appellant had a duty to apply to a court to set aside the sale or the cancellation.
The 1st respondent also raised 6 issues which read:
Issue I
WHETHER THE ACTION IS STATUTE BARRED
Issue II
WHETHER THE SALE OF AN ABANDONED PROPERTY I.E. THE LAND IN DISPUTE BY THE ABANDONED PROPERTY IMPLEMENTATION COMMITTEE PURSUANT TO DECREE NO. 90 OF 1979 NOW CAP. 1 LAWS OF THE FEDERATION OF NIGERIA 1990, CAN BE INQUIRED INTO AND I OR IMPUGNED BY ANY COURT OF LAW.
Issue III
WHETHER THE COURT OF APPEAL WAS RIGHT IN HOLDING THAT THE PROPERTY IN QUESTION WAS AN ABANDONED PROPERTY WITHIN THE CON AND MEANING OF THE ABANDONED PROPERTY (CUSTODY AND MANAGEMENT) EDICT NO.8 OF 1969, RIVERS STATE OF NIGERIA.
Issue IV
WHETHER THE COURT OF APPEAL WAS RIGHT IN NOT AFFIRMING THE DECISION OF THE TRIAL COURT THAT THE APPELLANT DID NOT CHALLENGE THE CANCELLATION OF ITS LEASE IN 1972 AND THAT THE APPELLANT FAILED TO APPEAL AGAINST SAME.
Issue V
WHETHER THE COURT OF APPEAL WAS RIGHT IN NOT APPLYING THE DECISION OF THIS HONOURABLE COURT IN PEENOK INVESTMENTS LIMITED V HOTEL PRESIDENTIAL LIMITED, (1982) 12 SC.1 TO THIS PRESENT ACTION.
Issue VI
WHETHER THE COURT OF APPEAL WAS RIGHT IN HOLDING THAT THE APPELLANT OUGHT TO HAVE APPLIED TO THE TRIAL COURT TO SET ASIDE THE CANCELLATION OF THE APPELLANT’S LEASE IN 1972 AND SUBSEQUENT SALE THEREOF TO THE RESPONDENT.
The 2nd respondent’s issues for determination also read thus:
(i) Whether the Court of Appeal was right in affirming the decision of the Trial Court that the action is statute Barred.
(ii) Whether the Trial Court and the Court of Appeal were Right in holding that the property in question was an abandoned property within the intendment and con of the Abandoned Property (Custody and Management) Edict No.8 of 1969 of Rivers State of Nigeria.
(iii) Whether the Court of Appeal was right in affirming the decision of the Trial Court that the appellant did not challenge the validity of the State Lands (Cancellation of Leases) Edict No. 15 of 1972 of the Rivers State as amended by Edict No. 17 of 1972.
(iv) Whether the Court of Appeal was right in not applying the decision of this honourable Court in the case of PEENOK INVESTMENT LIMITED V. HOTEL PRESIDENTIAL LIMITED (1982 12 SC.1 ) to this present action.
I have carefully examined all the issues for determination set out by the Counsel for the parties enumerated above and I find that the appellant’s issues are more in line with the grounds of appeal. I adopt them for the purpose of this appeal.
Before discussing the appellant’s issues, I shall first of all deal with the preliminary objection of the 2nd respondent to the effect that the appeal is incompetent and should be struck out.
The learned Counsel for the 2nd respondent submitted both in her brief and orally in this court that since the appeal was on the concurrent findings of the 2 Courts below, the appeal should only be valid if leave to file it was obtained prior to filing it. Learned Counsel pointed out that there was no such leave in this case as required by section 213 of the 1979 Constitution, now s.232 of the 1999 Constitution. Counsel therefore submitted that the appeal is incurably defective and incompetent and should be struck out. Learned Counsel for the 1st respondent also adopted the submissions of the counsel for the 2nd respondent.
The learned Counsel for the appellant did not file a reply brief in an attempt to answer the preliminary objection raised in the 2nd respondent’s brief. However, in his oral reply in court, he submitted that all the 6 grounds of appeal filed on 16/8/96 which were more or less repeated in notice of appeal filed on 22 – 8 – 96 are all grounds of law and so his appeal was competent.
This court has in many decided cases classified the category of grounds of law or fact and although the line of distinction between law simpliciter and mixed law and fact is very thin, an appellant cannot convert a ground of mixed law and fact into one of law by christening it as such. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 729; Ojeme v. Momodu II (1983) 1 SCNLR 188 AT 211. However in determining whether a ground of appeal alleges an error of law or fact, it is always relevant and crucial to construe the ground of appeal together with the particulars of error alleged. See Metal Construction (WA.) Ltd. v. Migliore (1990) 1 NWLR (pt.126) 299; NNSC v. Establishment Sima of Vaduz (1990) 7 NWLR (pt.164) 526.
In the light of the principles enunciated in the above decided cases of this court, I have examined the grounds of appeal filed by the appellant in this case and find that grounds 2, 5 and 6 cannot be classified as grounds of law. This is so, because in my respectful view, all of them, read with their respective particulars, cannot properly be determined on the construction of any statutory provisions. But grounds 1, 3, and 4 can all be answered by relevant law or rule of law and they are in my view, pure grounds of law. Therefore grounds 2, 5 and 6 which were filed without leave are hereby struck out together with issues 5 and 6 which related to them. The appeal is competent as no leave is required to file grounds 1,3 and 4. I so hold.
I shall now consider the remaining 4 issues set out by the appellant in his brief. I start with issue (i) which reads: –
“Whether having regard to the state of the pleadings and the evidence at the trial, the Court of Appeal was right when it affirmed the judgment of the Court of first instance to the effect that the appellant’s suit was statute – barred. ”
The 2nd defendant/respondent in his amended Statement of Defence paragraph 9 averred: –
“9. In further answer to the matters denied in paragraph 8 above, the 2nd defendant avers as follows:
(a) ……………………………….
(b) ……………………………….
(c) The plaintiffs claim is statute-barred, having regard to the Provisions of statute of limitation.”
Therefore it is not correct to say as submitted orally by learned appellant’s Counsel that statute of limitation was not pleaded. It is not necessary in my view, to plead any particular law in the pleading, though it may be desirable. It is sufficient if evidence was given of the particular law relied upon during the trial.
In the trial court, one Rowland Okujiagwu, a principal land officer of the Ministry of Lands and Housing, Port Harcourt as DW2, testified that in 1972 the lease of the property to the appellant was cancelled by the Rivers State Government under the State Lands (Cancellation of Leases) Edict 1972 and this was published in the State Gazette No. 56 Vol. 4 of 1972. It was admitted in evidence as Exhibit “N”. Also the 1st respondent as DW1, testified at the trial, that he bought the property in dispute from the Abandoned Property Implementation Committee in 1978 and paid the price in the Central Bank of Nigeria, Port Harcourt, where he collected his receipts Exhibits H and HI. He was subsequently given the deed of lease of the property in dispute Exhibit ‘L’ as the owner thereof. The learned Counsel for the 2nd respondent addressed the trial court on the action being statute barred on pages 123 and 124 of the record.
These pieces of evidence have shown that the possession or ownership of the property in dispute has been completely and substantially interfered with in 1972 when the appellant’s lease on the property was cancelled and in 1978 when the property itself was sold to the 1st respondent. The cancellation was even published in the Rivers State Official Gazette (Exhibit ‘N’) which took effect from the 1st of November 1972 and which was notice to the whole world. The appellant’s cause of action must therefore have arisen in 1972 or at the letter in 1978.
What then is the cause of action and when does it arise. Cause of action has been defined by courts to mean a combination of facts and circumstances 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 of action and every material fact which is material to be proved to entitle the plaintiff to succeed. See Patkun Industries Ltd. v. Niger Shoes Ltd. (1988) 5 NWLR (Pt. 93) 138; Ibrahim v. Osim (1987) 4 NWLR (pt. 67) 965; Bello v. A.-G., Oyo State (1986) 5 NWLR (pt. 45) 828. The cause of action arises as soon as the combination of the circumstances mentioned above accrued or happened, and it is the act on the part of the defendant which gives the plaintiff his cause of complaint.
In this case, the cancellation of the lease by the Rivers State Government in 1972, was in my respectful view, the act which gives the appellant his cause of action since by such act the deed of lease of the appellant ceased to be effective and the appellant’s interest in the property was terminated. This means that his cause of action arose in 1972, and he was presumed to know this by virtue of the Gazette notice Exhibit ‘N’.
The learned trial Judge in reviewing the evidence before him had this to say on p. 161 of the record: –
“Thus I accept the unchallenged evidence of DW2 that the lease of the plaintiff was cancelled in 1972 by Rivers State Government. This cancellation was published in the Official Gazette ie Exhibit “N”. Under Section 117 (a) (sic) 87 of the Evidence Act, the Gazette is a notice of its publication to the whole world and the plaintiff is inclusive. With the cancellation of the lease in 1972 and the action taken out in 1988 it has taken the plaintiff 16 years after whatever action that was accrued to them to take this action.
Then Section 15 (2) (a) of the Limitation Act of 1966 the plaintiff has 12 years within which to bring this action … This action is thus statute-barred. ”
And the Court of Appeal per Katsina – Alu JCA (as he then was) on pages 160 & 161 of the record said.-
“When the lease of the property in question was cancelled in 1972, the property reverted to the State Government. The plaintiff’s interest in the property was taken away from that date, that is to say, 1972. 1n other words the cause of action arose in 1972. The Government of Rivers State was for upwards of 16 years in possession of the land when the Plaintiff commenced this action in the Port Harcourt High Court. ”
I entirely agree with these observations and findings and adopt them for the purpose of this appeal. I therefore find that the appellant’s cause of action must have arisen in 1972 for the purpose of limitation of action. See Egbe v. Adefarasin (1987) 1 NWLR (pt.47) 1 SC; Adimora v. Ajufo (1988) 3 NWLR (pt. 80) 1; Jallco Ltd. v. Owoniboys Technical Services Ltd. (1995) 4 NWLR (pt.391) 534.
It is on record that the appellant took out his writ of summons in the trial court and filed his statement of claim in this case on the 10th of November 1988. According to Section 15(2) of the Limitation Act 1966 which applied to the Rivers State, the appellant had 12 years within which to file his action from 1972 when the cause of action arose. And 12 years from 1972 is 1984; but the appellant filed the action in 1988. This means that the action was filed 4 years after the period limited by law had expired. The appellant’s action is therefore statute-barred and I find accordingly. I answer issue 1 in the affirmative.
What then is the position or effect of finding that an action is statute-barred In the case of Eboigbe v. N.N.P.C. (1994) 5 NWLR (Pt.347) 649 at p. 659 this court held that.-
“Where an action is statute-barred a Plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such an action has elapsed. See Odubeko v. Fowler (1993) 7 NWLR (pt.308) 637. An action commenced after the expiration of the period, within which an action must be brought, stipulated in statute of limitation is not maintainable. See Ekeogu v. Aliri (1991) 3 NWLR (Pt.179) 258. In short when the statute of limitation in question prescribes a period, within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See Sanda v. Kukawa Local Govt. (1991) 2 NWLR (Pt. 174) 379. “(Italics mine)
I wholly agree with the legal principles enunciated above. It appears to me therefore that if an action which is statute-barred cannot be maintained, and cannot be properly and validly instituted, then it must be struck out as not being properly before the court. This should have been the fate of this action from the trial court. In the result, I find that there is no need at all for me to consider any more issues in the appellant’s brief, issue 1 having determined the appeal as indicated above.
In the light of my findings that the appellant’s action in the trial court was statute-barred, this appeal lacks merit and I dismiss it. The action in the trial court is hereby struck out. I award to each respondent N10,000.00 costs against the appellant.
SC.13/1997
