⦿ CASE SUMMARY OF:
JOHN EHANIRE v. PATRICK ERHUNMWUSE (2007) – CA
by PipAr Chima
⦿ LITE HOLDING
⦿AREA OF LAW
– Administrative law.
– statute barred.
– limitation statute.
– landlord & tenant.
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
ALI ABUBAKAR BABANDI GUMEL, J.C.A.
* FOR THE APPELLANT
– Chief D.O. Okoh.
* FOR THE RESPONDENT
– Mr. K.E. Mozia.
– Mr. J. I. Odibeli.
⦿ FACT (as relating to the issues)
The claim of this appellant is founded on a purported sale to him by the respondent his house at No.3, Osagie Street, Benin City. The purported sale was alleged by the appellant to have been executed in 1986. After the said sale, the appellant claims that the respondent refused to hand over the sold house to him. In consequence of the refusal of the respondent to vacate and hand over the sold premises to the appellant, the appellant commenced an action in suit No.OR/ACC/86R/87 before the Oredo Area Customary Court, Benin City. The claim of the appellant against the respondent before that court was for possession and order for the respondent to quit the building known as No. 3, Osagie Street, Benin City, etc. The appellant succeeded in his claim. On an appeal to the High Court by the respondent, the appellant continued with his winning streak. A further appeal to the Court of Appeal, the appellant remained on top, until an appeal to the Supreme Court turned the table against the appellant, when the apex Court held that the Customary Court lacked jurisdiction to entertain the claim of the appellant. The Supreme Court struck out the claim of the appellant. This decision of the Supreme Court was on 30/5/2003. This suit upon which this appeal is now predicated (Suit No.B/360/2003) was filed on 20/6/03 by the appellant as the plaintiff. Before the claim could be considered in full, this action was dismissed in limine for being statute-barred. It is against this dismissal that the appellant filed this appeal.
By an Amended Statement of Claim dated 3rd May, 2004, the appellant, as plaintiff before the lower Court, claimed the following reliefs, namely:
1. A declaration that the continuous detention of the building and premises known as No.3 Osagie Street, Off St. Saviour Road, Benin City within the Benin City Judicial Division from the plaintiff by the Defendant is wrongful;
2. An order directing the defendant to quit the building and premises known as No.3 Osagie Street, Off St. Saviour road, Benin City, forthwith;
3. An order directing the defendant to put the building and premises in a good state of tenantable repairs before vacating same;
4. N10,000,000.00 (Ten Million Naira) being general damages for unlawful detention and/or usage; and
5. Perpetual injunction restraining the defendant from parading himself as the owner of the building known as No.3 Osagie Street, Off St. Saviour Road, Benin City, having divested himself of the title therein.
By paragraph 22 of the Statement of Defence dated 15/3/04, the defendant averred as follows:- 22. “The defendant shall contend before or during the hearing of this case that this Honourable Court lacks the requisite jurisdiction to entertain this suit as it is statute-barred since the cause of action (if any) arose since 1986 when the defendant allegedly refused to hand over the property to the plaintiff.”
Further to the statement of defence, the defendant filed a motion on notice dated 30/4/04. It was filed on 3/5/04. This application inter alia was for an order setting down the points of law in paragraph 22 of the statement of defence for hearing and determination before trial. It was supported by a 5 paragraph affidavit.
The Plaintiff/Respondent/Appellant filed a 10 paragraph Counter-Affidavit to oppose the application. By an order dated 31/5/04 and after hearing respective learned counsel, the learned trial Judge granted the defendant’s application for a proceeding in lieu of demurrer to determine whether or not suit No. B/360/2003 was statute-barred.
The motion was heard on 29/7/04 and ruling was reserved for 18th October, 2004. In his ruling of 18/10/04, the learned trial Judge held as follows: – “I find and I hold that this suit was filed outside the statutory period of 12 years allowed by the Limitation Law; it is therefore statute barred and not maintainable in law. This suit is accordingly dismissed.” See page 47 lines 6 -10 of record of appeal.
The plaintiff was dissatisfied with this ruling of the lower Court. He appealed to this’ Court in a notice of appeal dated 28/10/04 and filed on 8th November, 2004.
In the opinion of learned Counsel ground 4 of the grounds of appeal appears to him to have been abandoned by the appellant. He argued that the 1st issue was no longer apposite as it did not arise from the remaining grounds of appeal. According to learned Counsel, it is only ground 4 that specifically complain about the finding of the lower Court that this action is statute-barred. He also maintained that all the other grounds of appeal raise collateral but independent issues for consideration. He urged the court to discountenance all the arguments of the appellant on the 1st issue. Still arguing the preliminary objection, learned Counsel submitted that ground 4 being the main ground upon which this appeal could have been determined and same having been abandoned and upon which no issue could be formulated should result in the dismissal of the appeal.
1. Whether the appellant’s claim is statute-barred having regards to the nature of damage which is in continuance and lingering in nature and/or whether the claim does not come within the exceptions of the Law of Limitation;
2. Whether time runs during the pendency of an action.
⦿ RESOLUTION OF ISSUE(S)
[PRELIMINARY OBJECTION: DISMISSED
Even if this ground of appeal was abandoned by the appellant, and in my view rightly so, it is pertinent to understand that the 1st issue could be formulated from within grounds 1 and 2. I therefore refuse to agree with learned Counsel to the Respondent that the 1st issue is incompetent. I am of the view that it is competent for having been – distilled from grounds 1 and 2 of the grounds of appeal. In view of the special and peculiar facts and circumstances of this case, the 2nd issue is collateral to the 1st issue and the 2 cannot be separated without leading to an absurdity. I therefore find no merit in the preliminary objection and same is hereby dismissed.
[APPEAL: ALLOWED, with N10,000 cost against the respondent]
1 & 2: ISSUE 1 & 2 WERE RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. From the state of the pleadings and the circumstances of this case it could be seen that the Plaintiff/appellant had all along been determined to seek judicial intervention and redress in the dispute between him and the respondent. He relied on the professional competence of his counsel. Learned Counsel to the appellant seemingly did his best up to a point. If there was any problem beyond that point, that is any problem with the procedure or steps employed by counsel, it was not the making of the appellant but must remain at the doorsteps of his counsel. It was a mistake to institute this action at the Area Customary Court in 1987 and it remained a mistake to continue to pursue it along the same line up to 2003 when the Supreme Court set aside all the previous decisions of the previous Courts. The judgment of the Supreme Court is extant and binding on the parties and the Courts. I have carefully considered the provisions of S.25 limitation law Bendel State and I am of the view that the type of “mistake” envisaged by the section is the type defined ‘in Black’s Law Dictionary and referred to above when a person does something under some erroneous conviction of Law or fact which, but for the erroneous conviction he would not have done or omitted. It is because of the incapacitating and debilitating effect of a mistake as a human attribute, that the courts in this country have always been most reluctant to punish a litigant for the mistake of his counsel. It is so much a cliche to say that the sins of counsel should not be visited on the litigant. The object of the courts is to decide the rights of the parties and not to punish them for mistakes they made in the conduct of their cases. See COPPER v. SMITH (1884) 26 Ch. D. 700. It has been held in a number of decided cases that it is not right to visit the parties with punishment arising out of mistakes, inadvertence or even negligence of counsel. In cases where such mistakes, inadvertence or negligence of counsel are revealed and shown to have caused the non-performance of certain act the court is enjoined to show flexibility by not visiting the sins or mistake of counsel on the litigant. See AKINYEDE V. THE APPRAISER (1971) 1 ALL NLR 162 as discussed, approved and applied by the Supreme Court in BOW AJE V. ADEDIWURA – (1976) 6 SC 143; IBODO V. ENOROFIA (1980) 5 – 7 SC 42 at 57 and BELLO & ORS V. ATTORNEY GENERAL OF OYO STATE (1986) 12 SC 1. In my view this is a proper situation when this well known attitude and approach of the courts should be employed to give a remedy where a right exists. Ubi jus ibi remedium and also because there is no wrong without a remedy. See BELLO V. A. G. OYO STATE (supra) as per Bello, JSC (as he then was).
Upon the foregoing observation, I am of the view that because of the unprecedented circumstances of this matter that this appellant is entitled to have this matter fully litigated without any fetter because of his dogged determination to have the dispute between him and the respondent to be settled by judicial process. The implicit confidence of the appellant in the judicial process should not be misplaced by a hasty dismissal of his suit before the High Court for no apparent fault of his. The confidence of the people of this country on the ability of our courts to do substantial justice devoid of technicalities must be sustained and nourished by giving remedy where a right exists. To do otherwise, is a positive and giant step towards chaos and anarchy.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
Section 6(2) Limitation Law Bendel State provides: – “No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
S.25 of the Limitation Law of Bendel State provides for situations when the period of limitation could be extended. The Section provides thus: – “Where, in the case of any action, for which a period of limitation is prescribed by this Law, either – a) The action is based upon the fraud of the Defendant or his agent or of any person through whom the claims or his agent; or b) The right of action is concealed by the fraud of any such person as aforesaid; or c) The action is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it.
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
⦿ NOTABLE DICTA
Every effort must painstakingly be made to do justice. A snappy short cut decision bereft of an examination of the merits of the case settles nothing. – Gumel, JCA. Ehanire v. Erhunmwuse (2007)
It is also of paramount importance to always have it as a central theme that each case must be examined and decided on its own facts and circumstances as no two cases are alike in all particulars. – Gumel, JCA. Ehanire v. Erhunmwuse (2007)
The object of the courts is to decide the rights of the parties and not to punish them for mistakes they made in the conduct of their cases. – Gumel, JCA. Ehanire v. Erhunmwuse (2007)