Mr. Joab Arum V. Mrs. Florence C. Egbo (2016)

LawGlobal-Hub Lead Judgment Report

RITA NOSAKHARE PEMU, J.C.A. 

This is an appeal against the Judgment of the High Court of Agbani, Enugu, presided over by Hon. Justice A. O. Anidi and delivered on the 25th day of June 2013 in Suit No. HAGB/4/2011.

SYNOPSIS OF FACTS
The Suit, the subject matter of this Appeal was instituted by Writ of Summons filed on the 17th of May 2011. – Pages 2-3 of the Record of Appeal.

In Paragraph 6, the Plaintiff (Appellant in this Appeal) claims against the Defendant (Respondent in the present appeal) the following ?
(a) An order restraining the defendant or her agents from further use of the plaintiff residential land to conduct church services.
(b) A declaration that the plaintiff being the owner of the land is entitled to the enjoyment of his land without trespass and nuisance from the defendant and her Church True Light of God Mission.
(c) The sum of Ten Million Naira (N10,000,000.00) being damages of trespass on the land.
(d) Five Million Naira (N5,000,000.00) for the damage occasioned by the Nuisance caused by the Church services on the plaintiff and his family in

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their residential home where the Church is built and used forcefully against the will of the plaintiff. – Pages 2-3 of the Record of Appeal.

The Plaintiff is the owner of a space of land in his village, and the Defendant had approached him for a place therein, where he can erect a temporary structure for a church building, pending when she purchases a piece of land in the village. Both of them belong to the same Church.

The Plaintiff (Appellant) obliged the defendant (Respondent), by giving him a temporary space to erect her church outreach in the landed property purchased for his residential home. The Plaintiff had told the defendant that he can remain on the land for one year, after which time she must leave because he needs to use the property for his residential home.

While the Appellant was away in the North for a business, he began to erect permanent structures on the land.

The Appellant told the Respondent to remove the structure but she refused and continued the trespass on the land.
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The Respondent asked the Appellant to sell the land to her but he refused, but told the Respondent to vacate the

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property.

When she refused, the Plaintiff instituted the action, the subject matter of this Appeal.

The Defendant/Respondent filed a Statement of Defence and Counter claimed thus in its Paragraph 18 –
PARAGRAPH 18
“(a) A declaration that the presence of the defendant and/or the church in the land in dispute does not in any way amount to trespass.
(b) A declaration that the defendant and/or the Church are entitled to the right of occupancy of the land in dispute.
(c) A perpetual injunction restraining the Plaintiff with his privies, agents, heirs, successors, administrators from parading himself as the owner of the land in dispute.
(d) A perpetual injunction restraining the plaintiff with his privies, agents, heirs, successors, administrators, from further entering into the land in dispute.
(e) An order directing the plaintiff to pay to the defendant the sum of N10,000.000 (Ten Million Naira as cost of litigation). – Pages 19-22 of the Record of Appeal.
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The matter went to trial, where the Appellant tendered the plan of the landed property, the conveyance, and some pictures showing the permanent structure of

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the Church which was built on the land. Also some blocks.

The Respondent had alleged that the Appellant, at a church service, donated part of the land where he built on, to the church. That there was no document showing the portion of land.

At the end of the trial, the lower Court delivered two Judgments on same date, where in one of the Judgments, he dismissed the Plaintiff/Appellants’ claim, and in the other Judgment, granted the defendant’s (Respondent’s) counter claim.

The lower Court also ordered that the land in dispute be demarcated. That the Defendant/Respondent should clearly demarcate the portion given to them by the Plaintiff.

As a result of this decision, the Appellant filed a Notice of Appeal on the 3rd of July 2013 encapsulating 4 (four) Grounds of Appeal. – Pages 185-187 of the Record of Appeal.

The Appellant filed his brief of Argument on the 30th of June 2014. It is settled by Ujam H. Ujam, Esq.

The Respondent filed her brief of Argument on the 30th of September 2014. It is settled by C. C. Abonyi, Esq.

?The Appellant filed a Reply brief on the 9th July 2015, but same was deemed filed on

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the 28th of April 2016.

On the 28th of April 2016, the parties adopted their respective briefs of argument.

The Appellant had distilled two (2) issues for determination from the Grounds of Appeal. They are –
1) “WHETHER THE OWNERSHIP AND POSSESSION OF THE LAND BY THE PLAINTIFF ARE ESTABLISHED.
2) WHETHER THE DEFENDANT HAS ESTABLISHED THAT THE PLAINTIFF GAVE HER ANY PARCEL LAND AS GIFT/OR DONATION TO HER CHURCH”.

The Respondent distilled two (2) Issues for determination from the Ground of Appeal. They are –
1) “WHETHER THE OWNERSHIP AND POSSESSION OF THE LAND BY THE PLAINTIFF ARE ESTABLISHED.
2) WHETHER THE DEFENDANT HAS ESTABLISHED THAT THE PLAINTIFF GAVE HER ANY PARCEL OF LAND AS GIFT/OR DONATION TO HER CHURCH.”

These issues for determination are an adoption of the Issues for determination proffered by the Appellants.

I shall consider this appeal based on the two Issues for determination proffered by the Appellants.

ISSUE NO 1
It is the Appellants contention that he is the owner of the land, and in establishing this fact, he tendered Exhibits. Exhibit 1 is the deed of Conveyance while

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Exhibit B is the Survey Plan. Exhibit 1 shows that the Appellant purchased the land in dispute on the 7th of July 1977. – Paragraph 2 of the Statement of claim.

This fact was admitted by the Respondent in Paragraph 2 of his Statement of Defence.

He submits that what is admitted need no further proof citing – NWANKWERE v. UGORJI (1956-84) 10 SCNJ 38. ALHAJI M. LAWAN v. ALHAJI SHETTIMA (2001) FWLR (Pt. 91) 1869 @ 1880 C.A.

That in Paragraph 4 of the Statement of Defence and Paragraph 4 of the Defendants (Respondents) Statement of Oath, she agreed to the fact that the Appellant acquired the land in dispute.

He submits that the Respondent had filed nothing to show the portion of the land being given to her by the Appellant for the use of a Church.

The Appellant says that the land was purchased specifically for his residential building. Some blocks which he moulded on the land for that purpose were damaged by the Respondent.

It is his contention that the Respondent showed no proof of land being given to him by the Appellant, by way of a donation. She led no evidence as to the extent of the land being given to the

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church. No survey plan showing the extent of the donated land was produced by the Respondent.

He submits that where two people claim title to land the law ascribes possession to the person who has better title. That there is nothing like concurrent possession over land – AWOYOOLU v. ARO (2006) 4 NWLR (Pt. 97) 481 SC.

The Appellant did not deny giving part of the land to the Respondent to build a TEMPORARY STRUCTURE thereon for a year for church purposes, but that when he left for the North, the Respondent built thereon a permanent structure.

The Respondent had said that the land was donated to the church during a church service in 1995, as a gift but could not corroborate this piece of evidence.

ISSUE NO 2
The Appellant submits that there is nothing to show that he gave the Respondent any parcel of land as a gift, or donated same to the church.

That, even from words from the Respondents lips, she was not there when the land was purportedly donated to the church. No witnesses testified that they were there when the donation was made.
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He submits that the defendant (Respondent in this Appeal) is a tenant at

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sufferance. Therefore no notice is required before a landlord can eject – BAGHO v. COLE (1957) 5 WRNLR. That the claim of the Plaintiff who has a better title to the land has to be sustained.

RESOLUTION OF ISSUES
I shall begin at the premise of the assertion of the Respondents, that this action at the lower Court was statute barred because the cause of action arose in the year 1996.

The Writ of Summons instituted the action in the year 2011 ? A period of 15 years.

If there is merit in this very assertion, then this renders the entire proceedings at the lower Court null and void and of no effect whatsoever.

But when can it be said that a cause of action has arisen. In AJIBONA v. KOLAWOLE (1996) 12 SCNJ 270 it was held inter alia, that a right accrues once possession has been lost to the other party. What is needed for the limitation period to commence is absence of possession by the plaintiff, and possession by the defendant.
The provisions of the limitation law completely extinguish an existing right at the expiration of twelve years from the accrual of the right of action.

No right of action to

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recover land shall be deemed to accrue, unless the land is in possession of some persons, in whose favour the period of limitation runs.

In determining the period of limitation, regard must be had first to the cause of action, and secondly, one must go further to look at the law which prescribes the period within which action may be brought, upon certain claims, or within which certain rights may be enforced.

A defendant in his defence must specifically plead any relevant statute of limitation. It must be clear and distinctly pleaded, and the fact or act on which it is grounded should be stated separately from other defences.

First and foremost, I must say that the defendant (Respondent in his appeal) did not comply with this requirement. All she pleaded in Paragraph 14 of the Statement of Defence and Counter claim is ?
“The defendant pleads that this suit is statute barred or frustrated by or caught up with the statute of limitation.”

A settled principle of law on statute of limitation is that the period of limitation begins to run from the date on which the right or cause of action accrues to the person entitled to

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it.

What is cause of action? Simply put, it is decidedly every fact that is necessary to be proved to support a claim by one person against another and it accrues or enures to a person on the date when it occurs, or happens, resulting in the breach which entitled him to seek redress in a Court of law – AKIBU v. ODUTAN (2000) 13 NWLR (Pt. 685) 446; EMIATOR v. NIGERIAN ARMY (1959) 12 NWLR (Pt. 631) 362.

For the purpose of determining where an action is statute barred or not, or whether an action was initiated or commenced outside or after the expiration of the prescribed period by statute of limitation, the relevant documents to peruse and fully consider are the Writ of Summons and the Statement of claim, as these set out the facts giving rise to the right or cause of action.

The Writ of Summons in respect of the suit, the subject matter of this Appeal was instituted on the 17th of May 2011. ? Pages 2 – 3 of the Record of Appeal. Same with the Statement of claim – Pages 4 – 5 of the Record of Appeal. A painstaking perusal of the Statement of claim of the Plaintiffs at the lower Court – no where does it state when the

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Defendant defaulted. No date was given.

A cursory look at the plaintiff’s statement on oath shows no date either. The Defendants (Respondent in this Appeal) at is that pleaded statute bar. But it was bereft of particulars, in support of same.

Moreso in her counter-claim which is akin to a Plaintiff’s Statement of claim, no date was provided as to when the Cause of Action arose. The result is that the plea of statute bar lacks merit as same has not been established in the pleading. Same is hereby accordingly discountenanced by me. Ipso facto, I am of the view that the Plaintiffs (Appellants) claim as it is, in the absence of dates, is baseless.

It is no gainsaying and indeed it is an elementary principle of law that parties are bound by their pleadings. Issues are settled on those pleadings. Therefore Judges cannot raise issues for the parties, if they are not raised in their pleadings. Therefore matters not pleaded, go to no issue, and evidence of such matters must be discountenanced, as a matter of law. This Court does not from the pleadings (not admitted exhibits) know the date the Respondent

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entered Plaintiffs land; it does not know when she flouted the Appellants directives about how long she should stay on the land with her church; this Court does not know when the trespass began, that is if there was any trespass for that matter.

Exhibits tendered by the Appellants are of no moment, as they cannot support facts not pleaded.
This Court does not know when the cause of action arose to the person entitled to it. The Appellant had decided to hide dates from the Court, and this Court cannot consider this matter without data.

The lower Court curiously did not observe this lacuna in the pleadings of both parties i.e. the Statement of Claim and Counter claim. The Court is only seized of the date on which this action was initiated.

In all the Plaintiff’s claim is bereft of merit and I so hold.

The Appeal fails and the Judgment of the lower Court delivered on the 25th of June 2013 should have made an order dismissing the claim and the plea of statute bar, as they were not established by the Appellant and Respondent respectively. The Judgment is affirmed.
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Accordingly, I hereby dismiss the

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Appeal and hold that the plea of statute bar is misconceived.

Parties to bear their respective costs.

Other Citations: (2016)LCN/8789(CA)