SHUAIBU & ANOR v. KOLEOSHO
(2021)LCN/15569(CA)
In The Court of Appeal
(BENIN JUDICIAL DIVISION)
On Thursday, March 25, 2021
CA/B/199/2014
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Frederick Oziakpono Oho Justice of the Court of Appeal
Between
1. GENERAL A.A. SHUAIBU (RTD) 2. ALL SEASONS OIL (NIG) LTD APPELANT(S)
And
OTUNBA (MRS) FELICIA KOLEOSHO RESPONDENT(S)
BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Edo State, Okada Judicial Division, Coram: A. N. Ehigiamusoe J, in Suit No. HCOK/17/2008: Otunba Mrs. Felicia Koleosho V. General A. A. Shuaibu & Anor delivered on 11/12/2013, in which some of the claims of the Respondent as Claimant against the Appellants as Defendants were granted.
The Appellants were peeved with the said Judgment and had appealed against it vide their Joint Notice of Appeal filed on 24/2/2014 on five grounds of appeal at pages 130 – 133 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 21/4/2014. Subsequently, with the leave of Court an Amended Joint Notice of Appeal was filed on 4/7/2018 on five grounds of appeal. The Amended Joint Appellants’ brief was filed on 4/7/2018. The Consequential Amended Respondent’s brief was filed on 16/7/2018. The Amended Appellants’ Joint reply brief was filed on 4/7/2018.
At the hearing of this appeal on 23/2/2021, P. Y. Musa Esq., learned counsel for the Appellants, appearing with O. Omoigui Esq., adopted the Amended Joint Appellants’ brief and the Amended Appellants’ Joint reply brief as their arguments and urged the Court to allow the appeal and set aside the Judgment of the Court below and dismiss the claims of the Respondent. On their part, Dr. O. O. Obayuwana learned counsel for the Respondent appearing with E. M. Obayuwana Esq., adopted the Consequential Amended Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the Judgment of the Court below.
By a Writ of Summons filed before the Court below on 26/3/2008 and by paragraph 22 of the Amended Statement of Claim, the Respondent as Claimant claimed against the Appellants as Defendants the following reliefs, to wit:
1. A Declaration that the Plaintiff is the owner and rightful person to apply for and be granted a Certificate of Occupancy over the parcel of land measuring 600ft by 600ft situated at Evbomore Village in present day, Ovia North East Local Government Area, bounded by beacon Nos, MA 6890, MA6891, MA6892, MA6893, MA6894, MA6887, MA6888, by virtue of an application for building plot dated 16/2/1968, graciously approved by His Royal Majesty Oba Akenzua II, the Oba of Benin on the 18/4/68, and further confirmed by a Deed of Conveyance executed by His Royal Majesty, Oba Akenzua II, the Oba of Benin on 9th November 1971 Registered as No, 3 at page 3 in volume 139 or the Land Registry in Benin City.
2. The application of the legal principle of quid quid plantatur solo solo cedit to whatever structure or structures the Defendants have caused to have erected on the Plaintiffs parcel of land herein made the subject matter of this Suit.
3. The sum of N250,000,000.00 as general and exemplary damages jointly and severally against the Defendants for their trespass unto the Plaintiffs land.
4. An Order of Perpetual Injunction restraining the Defendants whether by themselves, their successors, agents or privies from further trespass onto or interference with Plaintiffs ownership rights in and over the parcel of land herein made the subject matter of this Suit. See pages 57 – 60 of the Record of Appeal.
BRIEF STATEMENT OF FACTS
At the Court below, as can be gleaned from the averments of the parties as well as the evidence, both oral and documentary led as in the Record of Appeal, the Respondent as Claimant had averred that she acquired the parcel of land in dispute in 1968 from the Custodian of all lands in Benin Kingdom, the Oba of Benin through the traditional mode of land acquisition by applying through the Elders of Evbomore Village Iyekuselu District, Benin Division whose members unanimously recommended her application which was duly approved by the Oba of Benin, Oba Akenzua the II on 18/4/1968. Subsequently, a Deed of Conveyance was executed on 8/11/1971 between the Oba and her and was duly registered as No.3 at page 3 in volume 139 of the Lands Registry in Benin City and she authorized some farmers to use the land for farming purposes. However, sometimes towards the end of the 1970s, she met some soldiers on her land who expressed an interest in acquiring the land. The soldiers thereafter placed a mast on the land but which they removed after a while. The Respondent took the matter to the Army Authorities to ascertain the true intent of the Army, concerning her land but this did not bear any fruit. The Army neither served her any notice nor formally acquired her land or paid her any compensation. Sometimes between 2007 and 2009 she found the Appellants building on her land and when she protested they rebuffed her and she had to take the matter to the Court below to seek redress. See pages 57 – 60 and 70 – 77 of the Record of Appeal.
The Appellants, of which the 1st Appellant is a retired Major General in the Nigerian Army and was the 2nd Defendant before the Court below, denied the allegations of the Respondent and joined issues with her on their pleadings. The 1st Defendant before the Court below did not defend the Respondent’s Suit. They averred that the land in dispute belonged to the Nigerian Army School of Signal which subsequently allocated part of it to the 1st Appellant, who in 1994 applied for and obtained a Certificate of Occupancy over the portion of the land allocated to him by the Nigerian Army. They maintained that the land in dispute has been in continuous possession of the Nigeria Army since the 1970s without any hindrance from the Respondent or any other persons at all. They denied knowing and or having anything to do with the Respondent over the land in dispute which has been in their possession without any interference by any person, including the Respondent. See pages 21 – 24 and 77 – 80 of the Record of Appeal.
The parties filed, exchanged and amended their pleadings and upon the closure of pleadings the matter proceeded to trial. The Respondent in proof of her claim testified for herself and called three witnesses and tendered several documents which were admitted in evidence as Exhibits and closed her case. In their defense, the Appellants called one witness while the 1st Appellant also testified as DW2 and tendered some documents which were admitted in evidence as Exhibits and closed their defense. Subsequently, the parties filed and exchanged written addresses which were duly adopted by their respective counsel and on 11/12/2013, the Court below delivered its judgment in which it granted some of the claims of the Respondent as Claimant against the Appellants as Defendants, hence the appeal. See pages 114 – 128 and 130 – 133 of the Record of Appeal.
ISSUES FOR DETERMINATION
In the Appellants’ brief, five issues were distilled as arising for determination from the five grounds of appeal, namely:
1. Whether the cause of action was still available to the Respondent at the time of the commencement of this action? (Distilled from Ground one)
2. Whether the Respondent had any locus standi to maintain this action at the time of commencement of this action? (Distilled from Ground three)
3. Whether from the state of pleadings and the evidence before the Court below the Appellants can be said to be the proper and necessary parties to the Respondent’s Suit? (Distilled from Ground two).
4. Whether the award of damages by the Court below of N100,000,000.00 in favor of the Respondent was correct in law without proper assessment and credible evidence placed before it? (Distilled from Ground four)
5. Whether the Court below properly evaluated the evidence and pleadings before it? (Distilled from Ground five).
In the Respondent’s brief, five issues were also distilled as arising for determination in this appeal, namely:
1. Whether the Appellants proved before the Court below that the Respondent’s Suit was statute barred when it was begun?
2. Whether the Respondent possessed the locus standi to bring the action?
3. Whether the Appellants were proper and necessary parties to the Respondent’s Suit.
4. Whether the award of N100, 000, 000. 00 as damages by the Court below was proper?
5. Whether the Court below properly evaluated the evidence before it?
I have taken time to consider the averments in the pleadings of the parties and the evidence, both oral and documentary led by them as in the Record of Appeal. I have also considered the submissions of learned counsel to the parties in the light of the findings of facts and decisions reached in the judgment appealed against and I am of the view that since the parties are ad idem on the five issues arising for determination, the five issues as distilled in the Respondent’s brief appear to be more elegantly and precisely drafted and I hereby adopt them as the issues for determination in this appeal. However, I shall consider these issues in the following order, namely: issue one on its own, issues two, three, four and five together to be resolved in fell swoop.
ISSUE ONE
Whether the Appellants proved before the Court below that the Respondent’s Suit was statute barred when it was begun?
APPELLANTS’ COUNSEL SUBMISSIONS
On his issue one, whether the cause of action was still available to the Respondent at the time of the commencement of her action, learned counsel for the Appellants had submitted that the Respondent’s cause of action arose, going by the averments of the Respondent in her Amended Statement of Claim, when the Nigerian Army went into adverse possession of the land in dispute in the 1970s and contended that in law time begins to run in land cases when the alleged trespass was committed or possession was lost and urged the Court to hold that at the time the Respondent’s Suit was filed on 26/3/2008 her cause of action had become statute barred and thereby rendered her Suit incompetent contrary to the perverse finding of the Court below and to allow the appeal and set aside the judgment of the Court below and dismiss the Respondent’s Suit for being statute barred. Counsel relied on Alhaji Madi Mohammed Abubakar V. Bebeji Oil And Allied Products Ltd & Ors (2007) All FWLR (Pt. 362) 1855 @ p. 1887; Dayo Adeleye Mining & Consulting Co. Ltd V. Jakura Marble Ind Ltd & Anor (2007) All FWLR (Pt. 390) 1531 @ p. 1549. It was also submitted that in law where the date as to when the cause of action of a Claimant arose is disputed by the parties then the trial Court should not determine the issue of limitation, if raised, until evidence has been called on the issue by the parties and contended that the Respondent and her witness gave evidence at the trial before the Court below clearly showing that the cause of action arose in the 1970s when the Nigerian Army entered the land in dispute without the consent and or authority of the Respondent and urged the Court to hold that from the 1970s to the filing of the Respondent’s Suit in 2008, was 30 years and way outside the 12 years limitation period, the claims of the Respondent against the Appellants, who derived their title to the land in dispute from the Nigerian Army, had become statute barred and was thus liable to be dismissed. Counsel referred to Section 6(2) of the Limitation Law Cap 89 Laws of Bendel State 1976 as applicable to Edo State and relied on Olorunkunle V. Adigun (2012) All FWLR (Pt. 614) 139 @ p. 153; Nigerian Ports Authority Plc V. Lotus Plastics Ltd & Anor (2006) ALL FWLR (Pt. 297) 1023 @ pp. 1037-1038; Adebanjo V. Ogun State Sports Council (2005) All FWLR (Pt. 279) 1319 @ p. 1337; Agaka V. Ayilara (2012) All FWLR (Pt. 608) 899 @ pp. 922-923; Lasisi Fadare & Ors V. Attorney General of Oyo State(1982) 1 FNR 98 @ p.109; Shell Petroleum Development Company Of Nig. Ltd V. Chief G.B.A Tiebo (2005) All FWLR (Pt. 265) 990 @ p. 1007.
RESPONDENT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Respondent had submitted that the question of whether or not the Court below erred when it held that the Respondent’s cause of action was not statute barred would not arise and cannot be answered unless and until the Appellants first meet the burden of showing that from the facts pleaded and evidence led by the parties, as a matter of facts and law, the statute of limitation has caught up with the Respondent’s Suit, which the Appellants failed to prove and contended that whilst it is true that in land matters, a cause of action arises when trespass is committed or possession is lost, the question that arises is when precisely was the trespass committed by the Appellants and urged the Court to hold that, on the clear averments in paragraphs 13 – 15 of the Respondent’s Amended Statement of Claim, the trespass took place in 2007 and thus rendered the Respondent’s Suit filed in 2008 competent and to dismiss the appeal and affirm the sound judgment of the Court below. Counsel relied on Dayo Adeleye Mining & Consulting Co. Ltd V. Jakura Marble Ind Ltd & Anor (2007) All FWLR (Pt. 390) 1531 @ p. 1549; Obi V. Onyemelukive (2011) 1 NWLR (Pt. 1228) 400 @ p. 427; Nduka V. Ogbonna (2011) 1 NWLR (Pt. 1227)153 @ p. 168.
It was also submitted that the issue of continued possession of the land in dispute raised only in the evidence of the 1st Appellant as DW2 was nowhere pleaded in the Appellants’ Statement of Claim and therefore, goes to no issue in law and contended that in the circumstances the Court below was left with only the un-contradicted pleadings and evidence of the Respondent that her cause of action arose only in 2007 and urged the Court to hold that with her cause of action arising only in 2007, the Writ of Summons filed by her in 2008 was not in law statute barred as rightly held by the Court below and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on Otukpo V. John (2012) 7 NWLR (Pt. 1299) 357 @ p. 383; Anyanwu V. Iwuchukwu (2000) 15 NWLR (Pt. 692) 721 @ pp. 727 -729.
It was further submitted that in law the forcible occupation of the land in dispute by the Nigerian Army in the late 1970s, no matter for how long, does not ripen to title capable of being transferred to the Appellants and contended that since the Nigerian Army had no title to the land in dispute by the mere placing of their mast on the land in dispute which did not confer any title on the Nigerian Army and thus there was nothing in law that they can transfer to the Appellants over the land in dispute and urged the Court to hold that the issue of forfeiture of the land in dispute does not arise on the pleadings of the parties and thus goes to no issue as the Respondent is not a customary tenant to the Nigerian Army but a free citizen of Nigeria imbued with the constitutional right to own property and to dismiss the appeal for lacking in merit and affirm the judgment of the Court below. Counsel relied on Oseni V. Bajulu (2009) 18 NWLR (Pt. 1172) 164 @ p. 184; Mohammed V. Mohammed (2012) 11 NWLR (Pt. 1310) 1 @ pp. 44 – 45; Mohammed V. Klargester (Nig.) Ltd (2002) 1 NWLR (Pt. 787) 335 @ p. 360; Longe V. FBN Plc.(2010) 6 NWLR (Pt. 1189) 1 @ pp. 24 – 25; Chami V. UBA Plc. (2010) 6 NWLR (Pt. 1191) 475 @ p. 492; Savannah Bank V. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212.
APPELLANTS’ COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellant merely rehashed and reiterated his earlier submissions in the Appellant’s brief, which is not the purpose and purport of a reply brief. The reply brief, which must be succinct and respond to new points or fresh issues raised in the Respondent’s brief, is not and cannot be an avenue for the Appellant to re – argue his appeal or merely to have second bite at the cherry.
The reply brief is for the serious business of answering to new points or fresh issues raised in the Respondent’s brief which were not covered by the submissions in the Appellant’s brief. It need not and ought not to be filed as just a matter of course even where there is nothing new or fresh in the Respondent’s brief to respond to by the Appellant.
The thinking that unless a reply brief is filed, even where it is completely unnecessary, it would mean that the Respondent has had the last word is not true and must therefore, be discouraged. The appeal process is not just about who had the last word but in whose favor is the evidence and the law relevant to the issues in contention between the parties in the Appeal. See Order 19 Rules 5 (1) of the Court of Appeal Rules 2016, where it is provided thus:
“The Appellant may also, if necessary, within fourteen days of service on him of the Respondent’s brief, file and serve or cause to be served on the Respondent a reply brief which shall deal with all new points arising from the Respondent’s brief.”
See Olafisoye V. FRN 2004 1SC Pt. 11 27; Ikine V. Edjerode (2001) 12 SC (Pt. 11) 94; Longe V. FBN (2010) 2 – 3 SC 61; Okpala V. Ibeme (1989) 2 NWLR (Pt. 102) 208; Ajileye V. Fakayode (1998) 4 NWLR (Pt. 545) 184; Agwasim V. Ejivumerwerhaye (2001) 9 NWLR (Pt. 718) 395; Registered Trustees, Ikoyi Club 1938 V. Mr. Timothy Ikujuni (2019) LPELR – 47373 (CA)
I have gone through the gamut of the reply brief of the Appellant and I find that it failed to meet the requirements of a reply brief. Indeed, it brought nothing worth anything to the table in this Appeal that has not already been submitted upon in the Appellant’s brief. In the circumstances therefore, I hereby un – hesitantly discountenance the Appellant’s reply brief in its entirety as going to no issue in this Appeal.
RESOLUTION OF ISSUE ONE
My lords, issue one raises frontally the vexed issue of when in law can an action be said to be statute barred? The issue of limitation of action is a threshold question of jurisdiction and jurisdiction is fundamental to adjudication because it goes to the foundational competence of any cause or matter or action before the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It is thus the law that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding if need be to determining the substantive claim. This is so because jurisdiction is radical and sine qua non to adjudication of any matter or action or cause in a Court of law and thus, without jurisdiction there can be no competence in the Court to exercise its adjudicatory powers. See Madukolu V. Nkemdilim (1962) SCNLR 341. See also Elugbe V. Omokhafe (2004) 18 NWLR (Pt. 905) 319 @ p. 334; Ansa V. RTPCN (2008) 7 NWLR (Pt. 1086) 421 @ p. 448; Gaji V. Paye (2003) 8 NWLR (Pt. 823) 583 @ pp. 599 – 600; Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Adeyemi V. Opeyori (1976) 9 – 10 SC 31.
The law on limitation of action is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation, it extinguishes the right to action but not the cause of action itself, which is rendered bare and unenforceable in a Court of law. The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or due to unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law.
The issue of limitation of action having evolved over the years into a jurisdictional issue can be raised nowadays even where it was not duly pleaded by a party. It can be raised by the party so contending or even suo motu by the Court and interestingly it can be determined even on the face of only the Writ of Summons even before the other party delivers his defense or pleadings. In other words, the issue whether a claim is statute barred or not can be determined on the pleadings of the Claimant even without taking evidence of the parties. See William O. Olagunju & Anor V. NIG Plc (2011) 46 NSCQR 583 @ p. 597. See also Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195.
In 1987 in Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court had considered and simplified the duty of the Court when faced with the resolution of the issue whether or not a suit is statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the 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. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”
Later in 2004, the Supreme Court had revisited this issue and reiterated in Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416, inter alia thus:
“The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiffs cause of action was committed and by computing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred”.
See also Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA)@ pp. 35 – 40, per Garba JCA, (as he then was but now JSC); P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900; Williams V. Williams (2008) All FWLR (Pt. 433) 1245; Obiefuna V. Okoye (1961) All NLR 357; Anwu V. Aniboye (2001) FWLR (Pt. 4 ) 845; Eboigbe V. NNPC (1994) 5 NWLR (Pt. 346) 649; Akilu V. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122.
In ascertaining whether or not a Claimant’s Suit is statute barred, the principal document or process to be scrutinized by the Court is the Writ of Summons and or the Statement of claim where it has been filed and this is so because it is in the Writ of Summons and or statement of claim that the date or period of accrual of the cause of action of the Claimant can be found and or ascertained. Thus, the Statement of defense even where filed is really of no moment in the determination of the date of accrual of the cause of action of the Claimant. This is understandably so because if it were otherwise then Defendants would develop the penchant for pleading the Claimant’s cause of action outside the limitation period so as to render the Suit statute barred and thus incompetent. However, where the date cannot be ascertained and if evidence has been led by the parties, the Court can ascertain the date of the accrual of the cause of action from the evidence of the Claimant. There is therefore no law that unless the date of accrual of the cause of action is disclosed in the averments in the pleadings of the Claimant the issue of limitation of action cannot be raised and or if raised must fail. See Olorunkunle V. Adigun (2012) All FWLR (Pt. 614) 139 @ p. 153.
It is therefore, to the endorsement on the Respondent’s Writ of Summons, the averments in the Amended Statement of Claim and if necessary the evidence of the Respondent that I shall now turn my attention to scrutinize to see when the Respondent’s cause of action arose and to determine the contention by the Appellants that at the time the Writ of Summons of the Respondent was filed on 26/3/2008, her cause of action had become statute barred by reason of the fact that it arose in the 1970s and thus was incompetent, which contention was vehemently countered by the Respondent who had contended that her cause of action arose only in 2007 and had remained alive when her Writ of Summons was filed on 26/3/2008 and thus was competent. It is true in law that it is the pleadings of a party that defines both his cause of action and the case he intends to put forward against his adversary before the Court. SeeThe Registered Trustees of the Apostolic Church V. Mrs. Olowoleni (1990) SCNJ 69, where the Supreme Court per Nnaemeka-Agu, JSC, had succinctly stated inter alia thus:
“A party’s case is defined, circumscribed and limited by its pleadings. This is why pleading demands so much care and skill to draft. For where a plaintiff’s pleadings is defective or bereft of essential averments, it could constitute a definite guarantee for his failure, as he cannot lead evidence on any fact which he did not aver in his pleading, unless of course, the issue was raised in the opponent’s pleadings. Any evidence on a fact not pleaded goes to no issue and ought to be disregard.”
See also Amaechi V. INEC (2007) 8 NWLR (Pt. 1065) 9 @ p. 100.
Now, in the Amended Statement of Claim it was averred inter alia thus:
10. The Plaintiff avers that when she was about to commence work on the land with the building of a work house for her workers to stay while the school building is on, she met some heavily armed Soldiers thereon claiming the Nigerian Army was interested in acquiring the land.
11. The Army at this time without her consent and authority mounted a signal on the land even though no compulsory acquisition of any kind had been done by the Nigerian Army nor compensation paid to Plaintiff in connection with the land now in dispute.
12. The Plaintiff made several visits to the Nigerian Army office at difficult places and also wrote letters to them, to leave her land for her but the Army treated her protest with ignominy. The letter shall be relied upon at the trial and are hereby pleaded.
13. That after a while the Nigerian Army removed its signal from the land and left the land completely until recently when the Defendants entered thereon forcefully and started building on same against her warnings. See pages 57 -60 of the Record of Appeal.
At the trial before the Court below, in addition to the three other witnesses she called, the Respondent also testified for herself on 7/4/2011 and stated inter alia that when she intended to build on the land in dispute, she met heavily armed Soldiers who said the Nigerian Army was intending to acquire the place and put the Nigerian Army School of Signal but which they did without her consent. However, when she saw the armed Soldiers on her land she went to the Army School opposite the land in dispute where she was directed to meet with one Col. Adeloju who assured her that he will look into it and she returned to Lagos but did not hear from them until she returned to them and found out that Colonel Adeloju had left Benin. She then went to Nigerian Army headquarters at Lagos, where one Colonel David Mark was at that time the Head of Army Signal and showed him her papers on the land in dispute. She made several efforts to see various Army Officials but all to no avail, but later she saw that the mast erected on the land had been removed and so she thought it was due to her protests.
The Respondent was thoroughly cross examined and she stated inter alia that there were people farming on the land in dispute with her consent though she cannot remember the time they were farming on the land in dispute but she admitted that she met the armed Soldiers on the land in dispute in the 1970s when she was to commence work on the land in dispute and that towards the end of the 1970s a mast was built on the land in dispute by the Nigerian Army but she cannot remember when the mast or signal was eventually removed from the land in dispute by the Nigerian Army since they did not tell her when they mounted the mast, they also did not tell her when they removed the mast. However, when she saw the armed Soldiers and the mast on the land in dispute, she could not do anything but to report the matter to the Nigerian Army as she did not take the Nigerian Army to Court but she protested against their actions severally and she was not aware of any acquisition of her land now in dispute and did not also ask for any compensation from the Nigerian Army. See pages 75 – 77 of the Record of Appeal.
It was on the strength of the pleadings of the parties and in the face of the above evidence by the Respondent that the Appellants had contended in their final written address before the Court below that the Respondent’s Suit was statute barred but were overruled by the Court below in its judgment delivered on 11/12/2013, in which it held inter alia thus:
“Now in determining issue one of the 2nd and 3rd Defendants as to when the cause of action arose, their contention is that it arose about two decades before the Claimant came to Court thereby making her action statute barred. I read all the decided cases cited and relied upon, I agree intoto with the cases cited and relied upon by him but I am afraid to differ in some arrears of his address. From the evidence of the Claimant she acquired the land as per the Oba’s approval tendered by her in the year 1968. She was in peaceful possession of the land until sometime when the Army entered and mounted their mast on the said land. She tried to no avail to get them of the land and later found they have removed the mast. She said further that it was between the years 2007 – 2009 that she observed building on the land and on inquiring found they belonged to the 1st – 3rd Defendants. This piece of evidence was not controverted. It is clear that the Statute of Limitation does not any way apply in this instance based on this piece of evidence here.” See page 121 of the Record of Appeal.
My lords, it would appear that although the Respondent’s pleading was silent as to when the Nigerian Army, from whom the Appellants alleged that they acquired their title vide allocation to the 1st Appellant, first entered into the land in dispute to erect the ‘mast’ which the Respondent was told was later removed by them, yet in her evidence under oath she unequivocally admitted that the first unauthorized and adverse entry by the Nigerian Army into the land in dispute was in the 1970s when they erected a ‘mast’ on the land in dispute towards the end of the 1970s.
In law, a cause of action constitutes a bundle of facts and circumstances giving rise to the Claimant’s enforceable claims against the Defendant. It is the factual situation which gives a person a right to judicial relief and is constituted of the following elements, namely: (a) a cause of complaint; (b) a civil right or obligation fit for determination by the Court; and (c) a justiciable issue. See Jowitts dictionary of English law. See also Nigerian Ports Authority Plc. V. Lotus Plastics Ltd & Anor (2006) ALL FWLR (Pt. 297) 1023 @ pp. 1037-1038; Chevron Nig. Ltd V. LD (Nig) Ltd. (2007) 16 NWLR (Pt.1059) 168 @ p. 193; Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ pp. 20 – 21; Uwazuruonye V. Gov. Imo State (2013) 8 NWLR (Pt. 1355) 28 @ p. 50.
The Respondent had in her pleadings and evidence left no one in doubt as to her cause of action or complaint in respect of the land in dispute. It is that she had in 1968 lawfully acquired the land in dispute from the then Oba of Benin, the custodian of all lands in Benin and had taken possession of same and permitted persons to farm thereon but in the 1970s, the Nigerian Army, whom it must be noted, the Appellants claimed to have derived their title to the land in dispute and not considering at this stage whether their alleged claim is right or wrong and or whether the Nigerian Army in fact and in law even had any valid title over the land in dispute to validly transfer to transfer to the Appellants, entered into the land in dispute without her authority and or consent to erect a mast thereon and for which she protested severally to several authorities of the Nigerian Army here in Benin and in Lagos but all to no avail.
Now, from the above and by reason of the totality of the averments in the Respondent’s Amended Writ of Summons her claim, in my finding and I so hold, is one simply founded on the alleged trespass to the land in dispute by the Nigerian Army through whom the Appellant claimed, whether wrongly or rightly, to have derived their title to the land in dispute. In law, trespass, on which the claim to title and damages by the Respondent against the Appellants was founded, is constituted by the slightest unauthorized entry into land in peaceable possession of another. It would therefore, appear and I so find, that despite the ingenuity to ‘mask’ the date or time or period of the first unauthorized entry of the Nigerian Army into the land in dispute in the Respondent’s Amended Statement of Claim, the date or period of the accrual of the Respondent’s cause of action was brought out under her cross examination evidence to be, and I so find as fact, in the 1970s when the Nigerian Army entered into the land in dispute to erect a ‘mast’ thereon without any authorization and or consent of the Respondent, who alleges that she has been in peaceable possession of the land in dispute since 1968.
There is no dispute whatsoever, that the Respondent’s Writ of Summons was filed on 26/3/2008. I have already found as fact that her cause of action arose in the 1970s as admitted even by her under her cross examination evidence when the Nigerian Army first entered into the land in dispute without her authorization and or consent. In the circumstances therefore, the task of determining whether or not the Respondent’s Suit was statute barred when it was commenced on 26/3/2008 had become a simple mathematical issue to be resolved by comparing the date on which the Writ of Summons was filed by the Respondent and the date or period when her cause of action against the Appellants, and their alleged predecessor in title, the Nigerian Army, arose. In Edo State, at the time the Respondent’s Suit was filed on 26/3/2008, the limitation period under the applicable limitation law in land matters was 12 years from the date the cause of action arose. See Section 6(2) of the Limitation Law Cap 89 Laws of Bendel State 1976 as applicable to Edo State. My lords, by simple arithmetic calculation from the 1970s, whichever year in the 1970s, that is from 1971 – 1979, and the date of 26/3/2008 on which the Respondent’s Suit was filed was about 28 years and thus way beyond the 12 years limitation period for the valid commencement of an action relating to land in Edo State. Thus, it is crystal clear to me and I so hold that the claim of the Respondent filed on 26/3/2008 to enforce her cause of action, which arose in the 1970s was undoubtedly and irredeemably statute barred by virtue of and the operation of the limitation law which prescribes a limitation period of 12 years for the valid and competent commencement of the claim of the Respondent in a Court of law. See Section 6(2) of the Limitation Law Cap 89 Laws of Bendel State 1976 as applicable to Edo State. See also Egbe V. Adefarasin (1987) 1 NWLR (Pt. 47) 1 @ pp. 20 – 21; Olorunkunle V. Adigun (2012) All FWLR (Pt. 614) 139 @ p. 153; Nigerian Ports Authority Plc V. Lotus Plastics Ltd & Anor (2006) ALL FWLR (Pt. 297) 1023 @ pp. 1037-1038.
In the light of all the findings above, I hold that the Respondent’s Suit filed on 26/3/2008 was clearly statute barred. I find that the claim of the Respondent at the time it was filed on 26/3/2008 against the Respondents for a cause of action that arose since in the 1970s suffered a ‘still birth’ and had thus become stale and therefore, in law incapable of any enforcement by an action in a Court of law. See Hung V. E.C. Investment C. Nig. Ltd. (2016) LPELR – 42125 (CA). See also Onokomma V. Union Bank of Nigeria Plc (2017) LPELR – 42748 (CA).
My lords, I had earlier alluded to the position of the law that the issue of limitation of action has become a jurisdictional issue. I have also found that the Respondent’s Suit was statute barred. In law, once there is absence of jurisdiction there can be no competence in the Respondent’s claim to be heard and determined on the merit, since jurisdiction is the life blood of every cause or action. Thus, where the requisite jurisdiction is found to be lacking, that is indeed the end of the matter. See AG. Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, where the Supreme Court per Kayode Eso JSC, (God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.”
See also Madukolu V. Nkemdilim (1962) 2 All NLR 581; P. Enterprise Ltd. v. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 693; Petro Jessica Ent. Ltd V. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 132; Okereke V. Yar’Adua (2008) All FWLR (Pt. 430) 25.
Having therefore arrived at the inescapable conclusion that the Respondent’s Suit filed on 26/3/2008 before the Court below was filed out of time and thus, statute barred, that ought to be and is indeed the end of the matter. It is a closed chapter. In the circumstances therefore, issue one is hereby resolved in favor of the Appellants against the Respondent. It follows therefore, and I so hold that the decision by the Court below that the Respondent’s Suit was not statute barred was perverse and thus liable to be set aside while the Respondent’s Suit is liable to be dismissed. In law, a finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties. See CSS Book Shop Ltd V. The Regd. Trustees of Muslim Community in Rivers State (2006) 4 SCM 310, where it was pointed out succinctly thus:
“A decision of a Court is perverse when it ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside.”
See also Obajimi V. Adediji (2008) 3 NWLR (Pt. 1073) 1 @ p. 19.
My lords, once a Suit is found to be statute barred, as in the Respondent’s Suit, the proper order to make is one of dismissal. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258. Consequently, the appeal is hereby allowed and the Respondent’s Suit is hereby dismissed.
ISSUES TWO, THREE, FOUR AND FIVE TAKEN TOGETHER
Having resolved issue one in favour of the Appellants against the Respondent and holding firmly that the Respondent’s Suit was statute barred and thus rendered incompetent and liable to be dismissed and having already dismissed same, I think that should be the end of the matter as there is nothing to be considered on the merit in a matter that has turned out to be incompetent and thus robbing the Court below of its jurisdiction to hear and determine the matter on the merit. In law, a Court that lacks the jurisdiction to hear and determine a matter would definitely lack the power to make any pronouncements on the merit or otherwise of the matter over which it lacks the jurisdiction, in the first place to entertain since there can be no adjudication on the merits where there is no jurisdiction or competence to adjudicate.
Be that as it may, and in case my decision above is wrong, and I am sometimes wrong as no Court manned by man is infallible, only God Almighty is infallible, I have calmly considered, albeit briefly, issues two, three, four and five on the merit of the claims of the Respondent as it relates to the locus standi, necessary parties, title to the land in dispute and award of damages. I have reviewed the averments in the pleadings of the parties and evaluated the evidence of the parties led through their witnesses. I have also scrutinized the documentary Exhibits relied upon by them in support of their respective claims to title to the land in dispute. I have thoroughly gone through and reviewed the entirety of submissions of counsel to the parties as in their respective appellate briefs
It is settled law that in a claim for declaration of title to land, in order to succeed, the party seeking the declaration of title to land must prove by credible evidence one or more of the five methods of proving title to land, namely: a. Evidence of traditional history of title; b. Production of genuine and valid documents of title; c. Numerous acts of ownership; d. Acts of possession over a long period of time and or e. Acts of possession of adjacent land long enough to make it probable that the owner of the adjacent land is also the owner of the land in dispute. Thus, both the Respondents as Claimants and the Appellants, as Defendants, had open to them one or more of these five methods to prove their title to the land in dispute and the law is that proof of any one of these methods by credible evidence would be sufficient to ground an action for declaration of title to land. See Idundun V. Okumagba (1976) 6 – 10 SC 48. See also Arum V. Nwobodo (2013) ALL FWLR (Pt. 688) 870 @p. 893; Nruamah V. Ebuzoeme (2013) ALL FWLR (Pt. 681) 1426; Kano V. Maikaji (2013) ALL FWLR (Pt. 673) 1856 @ pp. 1868 – 1869; Ojah V. Eviawure (2000) FWLR (Pt. 57) 163; Okorie V. Onyejewu (2001) FWLR (Pt. 41) 1820; Morenikeji V. Adegbosin (2003) 8 NWLR (Pt. 825) 612; Egbo V. Agbara (1997) 1 NWLR (Pt. 481) 293 @ p.303; Ani V. Ewo (2004) 1 SC (Pt. 11) 115 @ p. 133; Romaine V. Romaine (1992) NWLR (Pt. 235) 650.
In Ezukwu v. Ukachukwu (2000) 1 NWLR (Pt. 642) 657 @ p. 679 it was reiterated inter alia thus:
“A claimant of title to land, of course, need not rely on more than one of the five methods. No. Where, however, he relies on a pleaded method or way as a root of his title, then, if the pleaded root fails the alleged acts of ownership or possession derivative of the root necessarily ought to fail. Why? Because the title or the root of title needs must be, firstly established before the exercise of the rights of ownership may be exercisable.”
So as between the Appellants and the Respondent who is the owner of the land in dispute on the pleadings and evidence led before the Court below as in the Record of Appeal? Was the Court below right when it held that it was the Respondent that proved and was thus entitled to a grant of a declaration of title to the land in dispute? Does this finding by the Court below flow from the issues as joined by the parties in their pleadings and the evidence led thereon?
The Respondent in proof of her claim testified for herself and called three witnesses and tendered several documents which were admitted in evidence as Exhibits and closed her case. In their defense, the 1st Appellant who was the 2nd Defendant testified on behalf of himself and the 2nd Appellant, which was the 3rd Defendant, as DW2 and tendered some documents which were admitted as Exhibits and closed their defense. The 1st Defendant before the Court below did not defend the Respondent’s Suit. PW1 was one Isehen Aihoyare, her mother. She also testified for herself and called two more witnesses. PW2 was one Johnson Oviawe the Secretary to the Community, while PW3 was one Henry Ediagbonya, a Registered Surveyor. On the other hand, DW1 was one Captain Uchechukwu Onyenanna, while the 1st Appellant testified as DW2. The Exhibits tendered by the parties were marked as Exhibits A – Oba Approval dated 16/2/1968, A1 – Deed of Conveyance dated 8/11/1971, A2 – Survey Plan No. OM2649, B – Payment receipt for Rubber Trees dated 15/8/1978, C, C1, C2 & C3 – Four Photographs, D1, D1, D2, D3, &D4 – Five Negatives, E – Litigation Survey Plan No. SEA/ED/D114/2009, F – CTC of Certificate of Occupancy dated 26/4/1994, G – Allocation of plots at NA Housing Scheme at Ugbowo, Benin City dated 18/7/2005. See pages 70 – 91 of the Record of Appeal.
It was on the above state of the pleadings, evidence both oral and documentary as well as the applicable principles of law that the Court below had in its judgment delivered on 11/12/2013, whilst granting some of the claims of the Respondent against the Appellants, stated and held inter alia thus:
“Besides and most fundamentally, the Claimant has exhibited her root of title emanating from the Oba’s palace in the year 1968. She has exhibited the method required in law as proof of ownership or root of title which stands strong, superior and undisputed before this Court. The certificate of occupancy exhibited goes to no substance. Even if it is to be regarded, though not conceding so, the mere fact that the land now in dispute has been passed for private use will automatically render the entire acquisition null and void. To me, with a deep sense of consideration of all that is before me, the evidence of the Claimant is quite straight forward and reliable having been discharged as required by law as the root of title of the Claimant is clear.” See pages 114 – 128 of the Record of Appeal
My lords, both parties had relied on production of documents of title in proof of their respective claims to the title to the land in dispute. I have taken time to review the evidence led by their witnesses and considered the averments in the pleadings of the parties as it relates to the title to the land in dispute. On the evidence led, the case of the Appellants falls far below that of the Respondent and when put on the imaginary scale of justice along with the case of the Respondent, the case of the Respondent far preponderates and weighs much more and solid than the case of the Appellants founded on mere arrogance of military might and nothing else to enter into the land in dispute owned by another citizen of this country and by force of arms lay claim to it and daring the unarmed citizen to resist at the pain of likely harm. It is a clear case of abuse of power. On both the pleadings and evidence led, the Respondent is not only the legal owner but was also in possession long before the Appellants through the Nigerian Army had by the use of force through armed soldiers and erection of Nigerian Army mast commenced their incursion into the land in the peaceable possession of the Respondent with a view to dispossessing her. The Respondent’s title derived from the Oba of Benin, the generally accepted custodian and owner of all lands in the Benin Kingdom was not only earlier and first in time but was also far more superior than that of the Certificate of Occupancy purportedly obtained by the Appellants over the land in dispute belonging to another citizen of this country.
It is the law, and there is no dispute about it, that although a party is not required to prove more than one of the five ways of proof of title to land, where he fails to satisfy the Court on any one or more of the five ways he relies on, then his claim to title to land must fail.
Thus, in law the mere fact that a party produces a document of title does not automatically entitle such a party to a declaration that the property which the instrument purports to grant is his own. It is also of importance to note, and pertinently too, that although the production of documents of title as relied upon by the Appellants as well as the Respondent, is one of the recognized methods of proof of title to land, in law the documents of title so produced must however be admissible in evidence and be of such a character as to be capable of conferring title on the party relying on it in proof of his title. In Agboola V. UBA Plc. (2011) 11 NWLR (Pt. 1288) 307 @ p. 413, the Supreme Court had opined inter alia thus:
“Mere production of a deed of conveyance or document of title does not automatically entitle a party to a claim in declaration, before the production of document of title is admitted as sufficient proof of ownership, the Court must satisfy itself that:- a. The document is genuine or valid. b. It has been duly executed, stamped and registered. c. The grantor has the authority and capacity to make the grant. d. That the grantor has in fact what he proposes to grant, e. That the grant has the effect claimed by the holder of the instrument.
See also Romaine V. Romaine (1992) 4 NWLR (Pt. 238)65; Kyari V. Alkali (2001) FWLR (Pt 60) 1481; Dabo V. Abdullahi (2005) 7 NWLR (Pt. 923) 181.
The Court below had, in my view, after a meticulous evaluation of the evidence led in line with the averments in the pleadings and having borne in mind the requirement of the law on the standard of proof required of a Claimant to title to land in dispute, come to the inescapable as well as unimpeachable conclusion, in my finding, that the Respondent proved her title to the land in dispute as against the Appellants and was thus the one entitled to a declaration of title to the land in dispute. I affirm this finding as true and correct. Thus, this Court cannot interfere here. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC, had pronounced with finality on this vexed issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere….”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46; The Registered Trustees of People Club of Nigeria V. The Registered Trustees of Ansar-Ud-Deen Society of Nigeria (2019) LPELR – 47523 (CA) per Georgewill JCA.
We, who sit here in appeal over the decisions of the Court below whenever brought before us, do not make it an habit unnecessarily interfering with and disturbing findings and conclusions reached by the Court below which are correct as that is not part of the legal reasons why we sit here in appeal over their decisions. Our duty, as established long ago by enabling laws and countless decisions of this Court and the Apex Court, is to see if decisions reached by the Court below, when all the facts and circumstances and evidence in a given case is considered in the light of applicable principles of law, are correct or wrong, If correct we do nothing more than to affirm it as correct but if wrong, then and only then, we would re – evaluate the evidence and make correct findings and decisions justified by the evidence led by the parties and as the justice of the case demands. That is indeed the whole core duty of this Court. See Alhaji Ndayako & Ors. V. Alhaji Dantoro & Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198.
My lords, no wonder it had been said so many times that in law a certificate of occupancy is merely a prima facie proof of title to land in Nigeria and may be rebutted neatly and effectively with evidence to the contrary of better title by the other party. Therefore, in law a certificate of occupancy does not cure any prior defects in the title of its holder. It is not a panacea to all issues of title to land in Nigeria. In the instant case, it was both useless and worthless and thus conferred no title to the land in dispute on the Appellants. I therefore hereby resolve issue five against the Appellants in favour of the Respondent and hold firmly that as between the Appellants and the Respondent, it is the Respondent that has the better title to the land in dispute and therefore, with a better right to its ownership and possession against the Appellants as correctly found by the Court below, which saw and believed, with clear reasons, the overwhelming evidence adduced in support of the claim to title to the land in dispute by the Respondent in contradistinction to the improbable as well as weightless and worthless evidence led in the defense and support of the claim to ownership of the title to the land in dispute by the Appellants.
On issue two relating to locus standi of the Respondent, the law on locus standi has been well settled and it is that since the locus standi of a Claimant must be stated in his pleadings and can easily and readily be found in his Writ of Summons and Statement of Claim, it is to these most vital processes that a Court of law would critically look at and scrutinize to see if indeed it discloses his locus standi and this would even obviate the need for a Defendant to first file his pleadings, in which he may by way of his defense make strenuous efforts at pleading the Claimant out of his locus standi. See Taiwo V. Adegboro (2011) 11 NWLR (Pt. 1259) 562 @ p. 580, where the Supreme Court had, in respect of the issue of locus standi, reiterated inter alia thus:
“Locus standi is determined by examining only the statement of claim. Furthermore, in determining whether a party has locus standi the chances that the action may not succeed is an irrelevant consideration.”
In law the term locus standi, though expressed in Latin, simply refers to the legal capacity of a party to institute proceedings in a Court of law. Thus, all that a Claimant or a Counter Claimant as the case may be, need to do to establish his locus standi is to succinctly plead in his pleadings the entire or sufficient facts establishing his rights and obligations, including or showing all the key elements of locus standi, namely: violation of civil rights and obligations, sufficient interest in the matter and how the interest arose; justiciable enforceable action, all culminating into showing the existence of dispute between the parties. Once, these facts are evident or apparent in the pleadings of a Claimant against a Defendant, the issue of locus standi is settled in favour of such a Claimant. In B.B. Apugo & Sons Ltd V. Orthopaedic Hospitals Management Board (2016) 13 NWLR (Pt. 1529) 206 @ p. 269, the Supreme Court had reiterated inter alia thus:
“A person has locus standi to sue in an action if he is able to show to the satisfaction of the Court that his civil rights and obligations have been or are in danger of being infringed. There are two tests for determining if a person has locus standi. They are: 1. The action must be justiciable, and, 2. There must be a dispute between the parties… To have locus standi the Plaintiff’s Statement of Claim must disclose sufficient legal interest, and show how such interest arose in the subject matter of the action…”
See also Orogan V. Soremekun (1986) 5 NWLR (Pt. 44) 688; Pacers Multi-Dynamics Ltd V. “M.V. Dancing Sister” (2012) 4 NWLR (Pt. 1289) 169 @ p. 189.
My lords, even a cursory look at the averments of the Respondent in paragraphs 1 – 15 of the Amended Statement of Claim would readily reveal that the Respondent has the requisite and plenitude of locus standi to not only institute but also to maintain the claims against the Appellants. This issue is clearly a no brainer at all. It is dead on arrival. The Court below had found and quite rightly too, that the Respondent has the locus standi. There is no justification whatsoever made out by the Appellants for us to interfere with this correct finding by the Court below. I therefore resolve issue two in favour of the Respondent against the Appellants.
On issue three relating to necessary parties, I have taken time to scrutinize the pleadings and claims of the Respondent and the issues as joined by the parties and I have no difficulty holding almost immediately that the Nigerian Army, which had allegedly trespassed into the land in dispute in the 1970s and also alleged to have been the predecessor in title to the Appellants, was a very necessary party to the Respondent’s Suit. However, the law now is that the failure or non-joinder of parties including even a necessary party, neither renders the Suit incompetent nor vitiates the resultant judgment as between the parties to the Suit. In Ayorinde & Ors V. Oni & Anor (2000) LPELR – 684 (SC), the Supreme Court had with finality held per Karibi-Whyte JSC (God bless his soul) @ p. 30 inter alia thus:
“….where a necessary party to an action, for one reason or the other was not joined, the non-joinder will not render the judgment a nullity. It is a correct proposition of the law that where an action is properly constituted, with a plaintiff with legal capacity to bring the action, a defendant with capacity to defend, and a claim with cause of action against the defendants, and the action has satisfied all pre-condition for instituting the action, the fact that a necessary party to the action has not been joined, is not fatal to the action and will not render the action a nullity.”
See also Green V. Green (1987) LPELR – 1338(SC). See also Azuh V. Union Bank (2014) LPELR – 22913(SC) per Kekere – Ekun JSC; Garuba V. Omokhodion (2011) LPELR – 1309 (SC).
In the circumstances therefore, though the Nigerian Army is undoubtedly and indisputably a necessary party to the Respondent’s Suit but the failure to join the Nigerian Army to the Respondent’s Suit was not fatal. I therefore resolve issue three against the Appellants in favor of the Respondent.
On issue four relating to the award of damages, let me quickly refer to the judgment of the Court below on how it arrived at the award of N100, 000, 000. 00 as damages in favor of the Respondent against the Appellants, wherein regrettably not a word was said on the claim for damages in the entire judgment save where it was granted in favour of the Respondent against the Appellants, simply thus:
“I have no hesitation in entering judgment in her favor as follows;… 2: The Defendants shall jointly and severally pay the sum of N100, 000, 000. 00 as damages to the Claimant.” See pages 127 – 128 of the Record of Appeal.
My lords, I truly and honestly felt aghast going through the entirety of the judgment of the Court below and finding not even a word on the claim for damages save the granting of it as a relief. The Court below made no assessment not even to merely state any entitlement to damages as being made out by the Respondent against the Appellants and yet ended up granting the humongous sum of N100, 000, 000. 00 as damages against the Appellants in favor of the Respondent.
I have combed through all the strands of the judgment of the Court below to see what measures or principles of law relating to the award of damages, whether general or special or exemplary, it used in its assessment to arrive at the measure and amount of damages it awarded to the Respondent against the Appellants and alas, and incredibly too, none I can find or see. Thus, neither was any single assessment nor any relevant principles of award of damages taken into consideration by the Court below to arrive at the humongous award of N100, 000, 000.00 as perhaps, general damages since the Respondent neither pleaded nor proved any special damages claim against the Appellants.
In my finding therefore, the award of damages in the amount of N100, 000, 000. 00 against the Appellants in favour of the Respondent without any iota or form of assessment and application of any known principles of law on award of damages was wrong, unjustifiable and grossly perverse and is thus liable to be set aside so that proper assessment of damages would be done in this judgment in line with applicable principles on award of damages to award a reasonable amount as damages to the Respondent to assuage her of the affront and unauthorized and forceful entry into her land by the Appellants through the Nigerian Army without any color of right to the land in dispute. I have taken note of the size of the land and the brazen display of rude force to station armed personnel of the Nigerian Army on a landed property belonging to a private citizen of this Country with constitutional guaranteed right to acquire and own property, both movable and or immovable and the manner of its seizure.
My lords, I am aware that in law, as a matter of general principle, an appellate Court would not interfere with an award of damages by a trial Court simply because if faced with a similar situation and circumstance, it would have awarded a different amount, but would readily interfere where the trial Court had failed to take into consideration relevant principles of law on the award of damages, regrettably none of which was even considered by the Court below in the award of damages made in favour of the Respondent against the Appellants. See Guardian Newspapers Ltd V. Ajeh (2011) 10 NWLR (Pt. 1256) 574.
My lords, having considered the totality of the facts and circumstances of this case and the pleadings and evidence of the parties as revealed in the printed record of appeal and having considered the applicable principles of law on award of general and exemplary damages and bearing in mind the long period of time the Respondent had unjustifiably been deprived of the use of her land through the force of arm by the Appellants, and their alleged predecessor in title, the Nigerian Army, I assess damages, as in general and exemplary damages, in the amount of N10, 000, 000. 00 in favour of the Respondent against the Appellants.
However, after all is said and done, I had already held firmly that the Respondent’s Suit was statute barred and thus rendered unenforceable in a Court of law. Therefore, her cause of action, though not in any way defeated on the merit, had become bare by reason of the fact that in law her claims had become stale. The proper order to make therefore when a Court finds that an action or matter or Suit before it is statute barred is an order of dismissal. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258.
On the whole therefore, having resolved issue one, dealing with the competence of the Respondent’s Suit in favor of the Appellants against the Respondent and having also resolved issue four dealing with quantum of damages in favor of the Appellants against the Respondent, notwithstanding the resolution of issues two, three and five in favor of the Respondent against the Appellants, I hold that the Appeal succeeds and ought to be allowed. Accordingly, the appeal is hereby allowed.
In the result, the Judgment of the High Court of Edo State, Okada Judicial Division, Coram: A. N. Ehigiamusoe J, in Suit No. HCOK/17/2008 B/375/OS/2009: Otunba Mrs. Felicia Koleosho V. General A. A. Shuaibu & Anor delivered on 11/12/2013, in which some of the claims of the Respondent as Claimant against the Appellants as Defendants were granted is hereby set aside.
In its stead, the Respondent’s Suit No. HCOK/17/2008 B/375/OS/2009: Otunba Mrs. Felicia Koleosho V. General A. A. Shuaibu & Anor is hereby dismissed having been statute barred.
There shall be no order as to cost.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by learned Brother, B.A. Georgewill, JCA.
I am at one with His Lordship’s line of reasoning and the conclusion reached by him in the first instance that, the suit of the Respondent filed before the trial Court was filed out of time and thus statute barred. The said suit is liable to be dismissed. It is on this note that with the resolution of this issue in favour of the Appellant, the appeal is hereby adjudged a success and I accordingly allow it.
Consequentially, I also dismiss the Respondent’s Suit No. HCOK/17/2008/B/375/OS/2009.
FREDERICK OZIAKPONO OHO, J.C.A.: I read the draft of the judgment of my learned Brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA which he has just delivered and I am in agreement with the reasons and conclusions in allowing the appeal as meritorious. I have nothing else to add to a well written judgment and also subscribe to the consequential orders made thereto.
Appearances:
P. Y. Musa Esq., with him, O. Omoigui, Esq. For Appellant(s)
Dr. O. O. Obayuwana with him, E. M. Obayuwana, Esq. For Respondent(s)
