PA. JAMES ARIAVBEHE-ADOLOR EREGBOWA & ORS V. PA. EHIGIAMUSOE OBANOR & ORS.
(2010)LCN/4199(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 4th day of May, 2010
CA/B/51/2007
RATIO
DUTY OF COURT: DUTY OF THE COURT NOT TO DETERMINE ANY SUBSTANTIVE ISSUE RAISED AT THE INTERLOCUTORY STAGE
This is because the law is settled that, parties as well as the Courts are not permitted to delve into substantive issues raised as complaint to be dealt with in the main action at the interlocutory stage. PER OYEBISI F. OMOLEYE, J.C.A.
JURISDICTION: ESSENCE OF JURISDICTION
The law is steel solid that jurisdiction is fundamental and crucial because if there is want of jurisdiction, the proceedings of a court will be afflicted by a fundamental and deadly virus which will result in fatality. In legal parlance the proceedings will be null, void and of no effect no matter how brilliantly they might have otherwise been conducted. PER OYEBISI F. OMOLEYE, J.C.A.
JURISDICTION: MEANING OF THE WORD “JURISDICTION”
The definition of jurisdiction has been long pronounced upon by a long line of cases of this Court and most importantly, the Supreme Court. See the case of: Drexel E. & N. Res. v. Trans. Int’l Bank Ltd. (009) 15 W.R.N. p. 1 at p. 52, lines 26 – 39, per Adererni JSC (Rtd.): And by jurisdiction it is meant the authority which a court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Such authority of the court is controlled circumscribed by the statute creating the court itself. Or it may even be circumscribed by a condition precedent, created by legislation which must be fulfilled before the court can entertain the suit. All of the above, touch on the legal authority of the court to adjudicate in the matter. PER OYEBISI F. OMOLEYE, J.C.A.
JURISDICTION: CIRCUMSTANCES UNDER WHICH A COURT CAN EXERCISE JURISDICTION
It was settled in the case of: Madukolu v. Nkemdilim (1962) 1 All N.L.R. p. 587 and a plethoral of authorities that a court has and can only exercise jurisdiction when: (1) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another, and (2) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and (3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. PER OYEBISI F. OMOLEYE, J.C.A.
REFRAMING ISSUES: WHETHER A COURT CAN ADOPT OR REFRAME ISSUES FORMULATED BY PARTIES
A court can adopt or reframe issues formulated by the parties’ counselor formulate its own issues which it considers will properly and adequately resolve an appeal before it. See the cases of: (1) Okoro v. The Sate (988) 12 S.C. p. 191; (2) Latunde & Anor. v Bella Laiinfin (989) 5 S.C. p. 59; and (3) Oleeve Ltd. v. Dormath Trading Co. Ltd. (2000) Vol. 47. WRN p. 56. PER OYEBISI F. OMOLEYE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
1. PA. JAMES ARIAVBEHE-ADOLOR EREGBOWA
2. MR. OSAHENI UWUIGBE
3. MR. ONIWU IDUROBO
4. PA. ENOWAMAGBE OMOZE Appellant(s)
AND
1. PA. EHIGIAMUSOE OBANOR
2. MR. LUCKY EFESE OBANOR
3. MR. JONATHAN UMWENI
4. ELDER JOHN UGIAGBE ILEKHUOBA Respondent(s)
OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment) This is an appeal against the ruling of the High Court of Edo State holden at Benin City delivered on 1st of November, 2006 per P.I. Imoedemhe J.
At the lower Court, the Respondents herein were plaintiffs and they claimed against the Appellants as defendants, a declaration that they, the Respondents were owners of a certain parcel of land in Ugiokhuen village in Oredo Local Government of Edo State. The Respondents further sought an order of perpetual injunction and damages for trespass against the Appellants.
By the order of the lower Court, pleadings were filed and exchanged by parties. The 1st Amended Statement of Claim and the Defendants’ Joint Statement of Defence are contained in pages 8 to 13 and 19 to 22 respectively. However, prior to the commencement of trial, the Appellants by a motion on notice dated and filed on 20th March, 2006, sought the order of the lower Court for determination of the points of law raised in paragraph 22 of their joint statement of defence which states as follows:
The Defendants shall raise as a preliminary point of law before trial that this Honourable Court lacks jurisdiction to entertain this suit predicated on the fact that the suit is fundamentally defective, for want of jurisdiction and abuse of process of court..
The above points of law were hinged on the following grounds:
20(i) The cause of action arose from alleged trespass against (sic) the land of various persons not parties to the suit;
(ii) The Plaintiffs are not the persons in possession of the land in dispute;
(iii) That the Plaintiffs have no locus standi to institute this action;
(iv) That the present Suit is an abuse of process of court or discloses no reasonable cause of action since part of the land is the subject of a judgment in Austin O. Erebor v. Friday Ovienseri: Suit No. B/581/96 in which the land was adjudged Ugbor land;
(v) The Plaintiffs have no interest in the land in dispute since they have allotted same;
(vi) The Plaintiffs have no title to the land in dispute or any legal rights;
(vii) In part of the land in dispute, judgment was decreed in favour of the Defendants and Ugbor;
village (Erebor’s land), thereby subject to the principle of Estoppel per Rem judicata. (Austin O. Erebor v. Friday Ovienseyi: Suit No. B/581/96 – the land was adjudged Ugbor land). That Chief Aigbuhenze Uzama testified as DW2, Mr. John Ilekhuoba (DW3), Mr. Jonathan Umweni (DW4), Mr. Christopher Obanor (DW5) all, gave evidence for and In favour of the fact that part of the land in dispute is Ugiokhuen land in: Austin O. Erebor v. Friday Ovienseri: Suit No. B/581/96. The 3rd and 4th Defendants in this suit were privies and witnesses to the plaintiffs in the above suit. That part of the land in dispute has been adjudged Ugbor land in Suit No. B/581/96.
(viii) The Plaintiffs have no vested rights in the land in dispute or possession of same;
(ix) The Plaintiffs’ claim is statute barred and the Defendants shall rely on Sections 4 (1) and 6 (2) of the Limitation Law, Laws of Bendel State 1976,Cap 8, (Applicable in Edo State);
(x) The Defendants aver that the Plaintiffs’ claim emanates from different causes of action by different and divergent persons listed in paragraph 20 of the 1sf Amended Statement of Claim. The entire claim constitutes misjoinder of causes of action and therefore incompetent and should be struck out. The Defendants shall urge this Honourable Court to dismiss or strike out this suit on the aforesaid grounds.
In support of the application, the Appellants filed an affidavit of seven paragraphs. Attached to the affidavit is the judgment in Suit No.; B/581/96, marked Exhibit A. All of these are contained in pages 25 to 26 and 27 to 80 of the record of appeal respectively. The relevant paragraphs (4) – (6) of the supporting affidavit are hereunder reproduced for easy reference:
(4) That I am informed by E. Imade, Esq and I verily believe him that:
(i) The Defendants/Applicants have been served with the writ of summons and the Plaintiffs’ 1st amended statement of claim;
(ii) The Defendants/Applicants have filed their joint statement of. defence raising points of law for determination in paragraph 22 thereof;
(iii) That this honourable Court lacks jurisdiction to entertain this Suit on the ground that the Plaintiffs, having divested themselves of interest in the subject matter of this suit by transferring same to other persons who are in actual possession but not parties to this suit, they hare no locus-standi to institute the Suit;
(iv) The institution of this Suit by the Plaintiffs constitutes abuse of the process of court or discloses no reasonable cause of action since part of the land is the subject of a judgment in AUSTIN O. EREBOR OVIENSERI: Suit No. B/581/96 wherein the land was adjudged Ugbor
land. The judgment is herein attached and marked as Exhibit “A”
(v) That based on sub-paragraphs (iii) and (iv) above the Plaintiff have no title to the land in dispute or any legal right;
(vi) This honourable court also lacks jurisdiction to entertain this Suit having been caught by S. 4(1) and S. 6(2) of the LIMITATION LAW OF BENDEL STATE, 1976 CAP 8, applicable in Edo State since the Plaintiffs alleged that the trespass occurred in 1979 and 1886 respectively; (vii) Since the Plaintiffs’ claim emanates from different causes of action by different and divergent persons in paragraph 20 of the 1st Amended Statement of Claim of the Plaintiffs, constitutes misjoinder of causes of action.
(5) That the point of I am raised in paragraph 22 of the Defendants’ Joint Statement of Defence be set down for hearing as a preliminary point of law before trial.
(6) That I am informed by Mr. E. Imade and I verily believe same that this preliminary point of law if it succeeds will determine all issues raised in this suit.
The Respondents in opposing the application filed a counter-affidavit of seven paragraphs. The counter-affidavit is contained in pages 81 to 82 of the record of appeal. For easy reference; I hereunder reproduce the relevant paragraphs (1) to (6) of the said counter-affidavit as follows:
.(1) That I am the 4th Plaintiff/Respondent in this application and the Secretary of Ugiokhuen Village Community by virtue of which I am quite conversant with the facts to which I now depose.
(2) That I have the consent and authority of the other Plaintiffs/Respondents and the entire Ugiokhuen Village Community to depose to this affidavit.
(3) That Messrs Friday Ovenseri and .Moses Airiagbonkpa the defendant in the judgment, Exhibit A attached to defendants/applicants’ affidavit in support of this application have since appealed against the said judgment to the Court of Appeal, Benin Division and the appeal is still pending.
(4) That I was informed by my solicitors Eghobamien & Eghobamien and I verily believed them that they applied for the relevant processes at the Court of Appeal to show that the appeal is pending there:
(a) Attached hereto as Exhibit AA is a copy of the Notice of Appeal.
(b) Attached hereto as Exhibit BB is a copy of Civil Form 9 from the High Court, Benin City to the Court of Appeal, Benin stating that the appellants have duly complied with the conditions of appeal.
(5) That the record of appeal is in the process of being transmitted to the Court of Appeal by the High Court and for appellants to obtain a copy to prepare their brief of argument.
(6) That this application is to delay the hearing of this Suit to enable Defendants continue in their trespassory acts of allocating our land without our knowledge, consent and or authority.
However, at the hearing of the application, by the order of court, issues were narrowed down to paragraph 20 (iii), (v), (vi), (viii), (ix) and (x) of the grounds upon which the application was predicated. I have already set out and highlighted those grounds, above. The arguments proferred in support and against the application are contained in pages 84 to 89 of the record of appeal. On the 1st of November, 2006, the lower Court delivered its considered ruling, dismissed the Appellants’ application in its entirety with costs, held that the Respondents have locus standi to institute the suit and declared that it has jurisdiction to adjudicate thereupon. The Appellants dissatisfied with the ruling filed this appeal to this court. The notice and grounds of appeal of the Appellant is dated and was filed on 14th November, 2006. It contains seven grounds of appeal, these and their particulars are contained in pages 97 to 101 of the record of appeal.
In the brief of argument of the Appellants, three issues were identified for the determination of this appeal, they state thus:
i. Whether or not in view of Section 1of the Land Use Act, 1978 the radical title to the reversionary interest in the Land in dispute between the parties vests in the Governor or the Respondents?
ii. Whether or not the learned trial judge was wrong in refusing to dismiss the action of the Respondents who have divested their interest in the Land in dispute to persons not parties in the suit?
iii. Whether or not the action of the Respondents is statute barred by virtue of Sections 4(1) and 6(2) of the Limitation Law, Cap. 29, Laws of Bendel State, 1976 as applicable in Edo State?
The Respondents in their brief of argument also distilled three issues for determination. These are a split bean of those formulated by the Appellants, which I have reproduced above.
On 4th February, 2010 when this appeal was heard, the learned senior counsel for the Appellants, Mr. I.E. Imadegbelo SAN, identified both the Appellants’ brief of argument dated 18th April, which was 2008 deemed properly filed and served on 23rd September, 2008 and the Appellants’ reply brief of argument which was filed on 7th November, 2008. He adopted, relied upon the said briefs and urged that this appeal be allowed. By way of emphasis, the learned senior counsel referred in particular to the matter of statute of limitation which is encapsulated under issue three of the Appellants’ brief of argument. He submitted that the learned trial Judge relied only on paragraphs 18 to 20 but overlooked the averments contained in paragraphs 11 to 17, all of the Amended Statement of Claim which caused the learned trial Judge to come to a wrong conclusion in determining when the cause of action accrued in the action under of action arose in 1979 and not in 1976. The learned senior counsel referred to Section 21 of the Limitation Law, Cap. 89, Laws of Bendel State, 1976 as applicable in Edo State (hereinafter referred to as the Law) and submitted thereon that, the settlement at the palace of the Oba of Benin would not count for extension and limitation of time. He urged that this appeal be allowed.
On the other part, the learned counsel for the Respondents adopted and relied upon the Respondents’ brief of argument which was filed on 22nd October, 2008. He urged that the appeal be refused and dismissed accordingly for being unmeritorious:-
I have carefully perused the portions of the record of appeal relevant to the application, the subject-matter of this appeal viz, the Respondents’ writ of summons and statement of claim, the Appellants’ joint statement of defence, the motion on notice filed by the Appellants with its accompaniments and also the ruling of the lower Court on the application. Without much ado, it appears to me that, in the lower Court, the learned counsel for both parties delved so much into issues which are meant to be tackled in the substantive action and which indeed, the lower Court rightly refrained from doing in its ruling, the subject-matter of this appeal. This is because the law is settled that, parties as well as the Courts are not permitted to delve into substantive issues raised as complaint to be dealt with in the main action at the interlocutory stage. It can be seen that both counsel had presented their arguments in this appeal as if they were making submissions on an appeal from the judgment of the lower Court in the substantive action. To put it in other words, learned counsel for both parties in this matter have presented their arguments on a much wider area than the subject-matter calls for. On the contrary, because a Judge does not have such latitude, he must confine himself within the ambits of the enquiry before the court and he should not be seen to have prejudiced a legal point which is yet to come before him in related proceedings otherwise he will not be competent to sit on the latter aspect of the case, so that the fair hearing of the main action is not prejudiced. This is the reason an interlocutory matter should be treated as an interlocutory matter, while a substantive matter should be dealt with as a substantive matter. The learned trial Judge in the instant matter appeared to have appreciated the need for this cautious approach, hence, his ruling was very brief.
Now, in my candid view, the thrust of this appeal is that of jurisdiction, that is, whether the lower Court possesses the requisite jurisdiction to adjudicate upon the suit instituted before it by the Respondents? This is because the entire arguments of the parties are hinged on the issue of jurisdiction.. The suit of the Respondents before the lower Court is being attacked on the ground of want of jurisdiction. The law is steel solid that jurisdiction is fundamental and crucial because if there is want of jurisdiction, the proceedings of a court will be afflicted by a fundamental and deadly virus which will result in fatality. In legal parlance the proceedings will be null, void and of no effect no matter how brilliantly they might have otherwise been conducted.
The definition of jurisdiction has been long pronounced upon by a long line of cases of this Court and most importantly, the Supreme Court. See the case of: Drexel E. & N. Res. v. Trans. Int’l Bank Ltd. (2009) 15 W.R.N. p. 1 at p. 52, lines 26 – 39, per Adererni JSC (Rtd.):
And by jurisdiction it is meant the authority which a court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Such authority of the court is controlled circumscribed by the statute creating the court itself. Or it may even be circumscribed by a condition precedent, created by legislation which must be fulfilled before the court can entertain the suit. All of the above, touch on the legal authority of the court to adjudicate in the matter.
It was settled in the case of: Madukolu v. Nkemdilim (1962) 1 All N.L.R. p. 587 and a plethoral of authorities that a court has and can only exercise jurisdiction when:
(1) it is properly constituted as regards number and qualification of members of the bench, and no member is disqualified for one reason or another, and
(2) the subject-matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
(3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction.
The above poser in the given circumstances of this matter is two pronged. Firstly, whether the Respondents have’ locus standi’ to institute the said suit.
And secondly, whether or not the suit is statute barred? I intend for the determination of this appeal to use the two issues. My resolve is based on the legal principle that a court can adopt or reframe issues formulated by the parties’ counselor formulate its own issues which it considers will properly and adequately resolve an appeal before it. See the cases of:
(1) Okoro v. The Sate (988) 12 S.C. p. 191;
(2) Latunde & Anor. v Bella Laiinfin (989) 5 S.C. p. 59; and
(3) Oleeve Ltd. v. Dormath Trading Co. Ltd. (2000) Vol. 47. WRN p. 56.
The arguments of both counsel under issues one and two relate to the question of ‘locus standi ” while issue three deals with the subject of statute of limitation. The two issues for determination will now read:
ISSUE ONE: Do the Respondents have “Locus standi” to institute the action before the lower Court against the Appellants?
ISSUE TWO: Is the suit of the Respondents before the lower. Court statute barred?
ISSUE ONE
Do the Respondents have “locus standi’ to institute the action before the lower Court against the Appellants?
The learned counsel for the Appellants submitted that Section 1 of the Land Use Act, 1978, (hereinafter referred to as the Act), without any doubt removed the radical title in land from Communities/individuals and vested same in the Governor of each State in trust for the use and benefit of all Nigerians. On this legal position, he relied on the case of: Abioye v. Yakubu (1991) 5 NWLR (Pt. 190) p. 130 at p. 223 paras. D – F. Hence, the alleged radical title of the Respondents to the reversionary interest in the land in dispute has been extinguished by the Act, and becomes vested in the Governor of Edo State. The words of Section 1 of the Act, being clear and unambiguous, must in law be given their plain and grammatical meaning. Therefore, upon the allotment or divestment of the Respondents’ community interest in the land, they cannot maintain any claim to the reversion. To buttress the position of the Appellants; reference was made to the book, Practical Approach to Law of Real Property in Nigeria by I.O. Smith, Chapter 13, page 301 at p. 305, wherein it was stated on the purport of the Act that:
… Since the Governor has the radical title to the land, no person can claim unlimited interest on land since the commencement of the Land Use Act because whatever interest claimed on land is subject to the superior title on the Governor … (underlined is for emphasis)
It was further submitted that the learned trial Judge erred in law in failing to hold that the Respondents have no locus standi to institute the action having divested their interest in the land in dispute. Reference was made to the averments in paragraph 20 of the Respondent 1st Amended
Statement of Claim, that, the alleged consistent acts of trespass by the Appellants which gave rise to this action were on the land already allotted to eight allottees.
The Respondents instituted the action at the lower Court to protect the alleged interests of the allottees in the land in dispute from further trespass by the Appellants. The Respondents do not have the legal capacity to institute the action over the land that they have no interest in or over land they had allotted or allocated to the said allottees. Having alienated their interest in the land in dispute, the Respondents no longer have possessory right to the land. The proper persons who could have brought this action are the allottees, because the interest of the Respondents in the land has been transferred to them.
It was argued in favour of the Appellant that if the learned trial Judge had agreed that the Respondents have no locus standi to institute the action, it would have become clear to the trial Court that it does not have the jurisdiction to adjudicate upon the matter. On this standpoint, he referred to the cases of:
(1) Yusuf v Kode (2002) 6 NWLR (Pt. 762) p. 231 at p. 262 para. E; and
(2) Sanvaolu v. Coker (1983) ANLR p. 157 at p. 158.
In essence, the Respondents are not proper parties before the lower Court He restated the legal principle that when proper parties are not before the court, the Court is bound to strike out this suit for want of jurisdiction. He referred in this regard to the cases of:
(1) Amuda v. Ajobo (1995) 7 NWLR (Pt. 406) p. 170 at p. 182 para B;
(2) Onwunalu v. Osadume (1971) 1 ANLR p. 17;
(3) Ekpere v. Aforije (1972) ANLR p. 229; and
(4) Oloriode & Ors. v. Ovebi & Ors. (1984) N.S.C.C. p. 286 at p. 287.
In response to the position taken by the Appellant, the learned counsel ; for the Respondents submitted that by virtue of Section I of the Act, all lands in Edo State are vested in the State Government only as a trustee for and on the behalf of all the people of Edo State. Accordingly” Section I being a general provision of the Act is subject to other relevant and specific provisions of the Act. For it is trite that general provisions of a statute do not override their specific provisions. The Act recognizes existing rights and protects same accordingly. The powers of the Governor as a trustee of lands in the State is further enunciated succinctly in Section 28 of the Act The purport of those provisions is not to extinguish existing rights when the Governor has not formally revoked the said rights in accordance with the provisions of the law. On this legal position, he relied on the cases of:
(l) Alhaji Dantsoho v. Alhaji Abubakar Mohammed (2003) 6 NWLR (Pt. 817) p. 457 at p. 467; and
(2) Ibrahim v. Mohammed (2003) 6 NWLR (Pt. 817) p. 615 at p. 619.
Therefore, until all the existing rights are lawfully revoked according to the provisions of the Act, all the existing rights and interests still hold sway.
It was argued further that the reversionary title contemplated by the said Section I of the Act has to do with other interests that come with statutory right of occupancy or customary right of occupancy granted by the Act. Existing rights like communal lands tenure system like in the instant case is subject to the overriding powers of the Governor. However, since the latter has not exercised the option to revoke such interest according to the provisions of the Act, the reversionary interest in the land in dispute still resides in the community. And not until the deemed right of the Respondents’ community over their homeland is extinguished by the Governor of Edo State for overriding public interest or for any of the other reasons specified in Section 28 of the Act, the Appellants cannot be heard to use the radical reversionary interests of the Governor under Section 1 of the Act as an anchor to perpetuate their acts of trespass on the Respondents’ land. On this position, reliance was placed on the cases of:
(1) Ololunde v. Adeyoju (2000) 10 NWLR (Pt. 676) p. 562 at p. 597;
(2) Dantsoho v. Mohammed (supra) at p. 468;
(3) Osho v. Foreign Finance Corporation (1991) 4 NWLR (Pt.184) p. 157; and
(4) Salami v. Chairman, L.E.D.B. (1989) 5 NWLR (Pt.123) P. 539.
It was contended in favour of the Respondents that since the Governor of Edo State has not extinguished the Respondents’ deemed right of occupancy over their land by any legal means, the radical reversionary interest of the Governor is not an issue in this matter, and so the interest of the Respondents including that of the allottees over their community land remains intact and unshaken. What is more, the action, the subject matter of this appeal is brought in a representative capacity. The issue before the lower Court has nothing to do with whether Section 1 of the Act has extinguished the Respondents’ reversionary interest, but whether the Respondents have an interest to protect in the matter, in view of the whole pleadings. The issue touching on Section 1 of the Act has not arisen since the authority of the Governor of Edo State revoking the interest of the community in their own land is not in contention. In fact what was canvassed in the lower Court was whether the Respondents have disclosed in their pleadings sufficient interest to give them locus standi to sue on the matter having allocated or allotted some parts of the land in dispute to some persons who are members of the Respondents’ community. And whether by allocating some part of the land, they divested themselves of their whole interest in their community land and whether the meaning of the word “allotment” or “allocation” does not suggest the possibility of reversion to the community. This is because the Supreme Court has indeed held in the case of: Adole v. Gwar (2008) 11 NWLR (PI. 1099) p. 562 at pgs. 572 – 573, that the Act has not done away with all incidents of land ownership known to the people prior to its promulgation. And that land is very much being held under customary tenure even though dominion is in the Governor.
The learned counsel for the Respondents urged this Court to jettison the contention of the Appellants and consider the question, whether the Respondents have locus standi to sue in this matter or’ whether the Respondents have in’ their pleadings disclosed any interest in the land in dispute to give them requisite locus standi to sue thereon, thereby giving the lower Court the jurisdiction to entertain the suit.
The learned counsel for the Respondents restated the principle of law that the issue of locus standi is fundamental to institution of any action and relates to the jurisdiction of court to entertain same. He reiterated that the Respondents never sold or transferred the entirety of their land to anybody as alleged by the Appellants. The Respondents merely allotted part of the land in dispute verged blue in the litigation survey plan to some persons who are members of the Respondents’ community. And that the community is properly represented in the suit. Of a fact, the Appellants’ acts of trespass are not only on the portion of land allocated but also on a substantial portion of the Respondents’ land. He referred to Paragraphs 18 and 20, especially Paragraph 20 of their 15th amended statement of claim wherein it is averred that all the persons stated therein are before the lower Court and so the Court is conferred with the jurisdiction to adjudicate upon the matter. Hence, the case of: Yusuf v. Kode supra relied upon by the Appellants does not apply to the circumstances of the instant case, since the Respondents have not divested themselves of or sold the land in dispute to anybody.
Having reviewed the submissions of counsel under this issue, the clear position of the law on this subject matter ought to and will now be reiterated. The phrase, “locus standi” is’ the capacity or standing of a person to institute an action calling upon the court or tribunal to determine his civil rights or obligations. Therefore, a person who has no civil right or obligation to protect or whose right is not affected or infringed upon is said to have no “locus standi”‘ to institute an action. See the case of:
Amodu v. Obayomi (1992) 5 NWLR (Pt. 242) p. 503. It seems clear that in the instant matter, parties’ learned counsels are ‘ad idem’ that, in determining whether the lower Court lacks jurisdiction to hear and determine the case of the Respondents before it, only the claim of the Respondents as plaintiffs should be scrutinized. That stance is hinged on the barrage of cases relied upon by them. This legal position has been laid down in the case of: Adeyemi v. Opeyori (1976) 9 -10 S.C. p. 31 where the Supreme Court held that:
It is a fundamental principle of law that, it is the claim of the plaintiff that determines the jurisdiction of the court which entertains the claim.
And in doing this, the lower Court ought to hinge its opinion on any one or more fact(s) averred in the statement of claim. In the case of: 7 Up Bottling Co. v. Abiola & Sons Bottling Co. Ltd. (2001) 13 NWLR (Pt. 730) p. 469, it was held by Onu J.S.C. thus:
In necessarily restricting itself to the statement of claim, the court is not obliged to consider seriatim all the averments in the statement of claim. It is sufficient that the court looks at same as a whole and/or refer to few averments that form the gravamen of the claim.
In the instant matter, the claim that is before the lower Court is inter alia, a declaration that the Respondents who sued for themselves and on behalf of Ugiokhuen village community are vested with all existing rights to the use and occupation of all the parcel of land in the said community under Bini Customary Law and Tradition before the Act, came into force in 1978. There is no doubt from the pleadings of both parties herein that on analysis, the facts of the case concern competing claims to the ownership of the same land. The Respondents have expressed in the writ of summons issued by them and their statement of claim that, the action was brought in a representative capacity against the Appellants also in a representative capacity. The law is settled that it is the statement of claim that has to be examined to ascertain whether there is a reasonable cause of action at the instance of a person who has a right of action that is a right that can be remedied before and by the court. The lower Court in its ruling under fire – stated as follows:
I have perused the plaintiffs’ 1st Amended Statement of claim especially paragraphs 1, 2, 3, 11, 13, 17, 18, 19, 20 and 21 thereof. In these paragraphs the plaintiffs aver that they brought this suit in a representative capacity against the Defendants claiming ownership of the land in dispute. They plead facts showing how they came to be the owners of the land…the facts pleaded in these paragraphs show that the plaintiffs’ suit is in respect not only of the land already allocated or allotted by the plaintiffs but also in respect of the Defendants’ perimeter survey which is largely on the plaintiffs’ land.
The ruling of the learned lower Judge quite explicitly followed, in my firm view, the practice of the courts over the years. From the above reproduced finding of the lower Court, it is pretty obvious that it truly perused the statement of claim of the Respondents. All it was expected to do at that stage of the proceedings, was a cursory examination of the plaintiffs’ statement of claim and not the determination of the authenticity of the rights and claims of the parties as it appears the Appellants wanted it and indeed this Court to do. The lower Court took the right course. As I stated earlier on, since the Respondents’ action in a representative capacity is for a declaration of right, they must be parties to the right. Their legal right is affected or in jeopardy of being infringed. There is a complaint all through the statement of claim where a certain community named by the Respondents have asked them to fight a battle on their behalf. The totality of the said statement of claim portrays the Respondents as interested parties and not busy-bodies or intruders or meddlers or interlopers. Their action can not be described as speculative.
It is my humble but solid view from what I have said above, that the lower Court rightly held and I agree with it and also hold that, it has the necessary competence to hear and determine the claim of the Respondents. Consequently, issue one is resolved against the Appellants and in favour of the Respondents.
ISSUE TWO
Is the suit of the Respondents before the lower Court statute barred?
For the Appellants, it was submitted that under the Limitation Law, the cause of action generally accrues on the date on which the incident, giving rise to the cause of action occurred and when there exist a person who can sue or be sued. On this position, reference Was made to the case of: Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) p. 649 at p. 664 para. H. and Sections 4(1) and 6(2) of the Limitation Law, 1976. The Appellants’ learned counsel canvassed that the cause of action in this matter arose by the alleged acts of trespass of the Appellants in 1979 as stated by the Respondents in Paragraphs 11 and 19 of their 1st Amended Statement of Claim. Therein the alleged acts of trespass of the Appellants begun in 1979 when the agent of the Appellants, that is, Osaheni Uwuigbe reallocated the land in dispute to oilier people. Therefore, from 1979 to 2004, the Respondents instituted their action twenty-five years after the alleged cause of an action arose contrary to the provisions of Section 6(2) and Section 4(1) of the Law, which prescribe twelve years and six years respectively for the institution of claims for a declaration of title to land, order of injunction and damages for trespass as in the instant case. Hence, failure of the Respondents to bring their action within the aforesaid prescribed period rendered the Respondents’ action within the aforesaid prescribed period rendered the Respondents’ action statute barred. He rested his argument on the cases of:
(1) Elebanjo v. Dawodu (2006) 15 NWLR (Pt.1001) p. 76 at p. 132 para. F and p. 133 paras. F-H;
(2) Odubeko v. Fowler (1993) 3 NWLR (Pt.308) p. 637 at p. 661 paras. F-G;
(3) Fadare v. A.G. of Oyo State (1984) Vol. 13 NSCC P. 60 paraas. 35 – 40.
The Respondents’ learned counsel also restated the legal principle that actions founded on simple contracts or torts cannot be brought at the expiration of six years after the cause of action had arisen in tune with the provisions of Sections 4(1) and 6(2) of the Law. And that where an action is statute barred a plaintiff who might have had a cause of action becomes dispossessed of the right to enforce the cause of action by judicial process.
For the purpose of the law of limitation, a cause of action matures or arises on a date or from the time when a breach of any duty or act occurred of action arose contrary to the provisions of Section 6(2) and Section 4(1) of the Law, which prescribe twelve years and six years respectively for the institution of claims for a declaration of title to land, order of injunction and damages for trespass as in the instant case. Hence, failure of the Respondents to bring their action within the aforesaid prescribed period rendered the Respondents’ action statute barred. He rested his argument on the cases of:
(1) Elebanjo v. Dawodu (2006) 15 NWLR (Pt.1001) P. 76 at P. 132 para. F and p. 133 paras. F-H;
(2) Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) p. 637 at p. 661 paras. F – G;
(3) Fadare v. A. G. of Oyo State (1984) Vol. 13 NSCC p. 60 paras. 35 – 40.
The Respondents’ learned counsel also restated the legal principle that actions founded on simple contracts or torts can not be brought at the expiration of six years after the cause of action had arisen in tune with the provisions of Sections 4 (1) and 6 (2) of the Law. And that where an action is statute barred a plaintiff who might have had a cause of action becomes dispossessed of the right to enforce the cause of action by judicial process.
For the purpose of the law of limitation, a cause of action matures or arises on a date or from the time when a breach of any duty or act occurred which warrants injury to the person or victim who is adversely affected by such breach to take action in assertion or protection of his legal right that has been breached. Therefore, the purport of the Law is to debar a plaintiff who has slept over his right. In support of the position he relied on the cases of:
(1) United Bank for Africa Ltd. v. Michael O’ Abimbolu & Co. (1995) 9 NWLR (Pt. 419) p. 373;
(1) Woherem v. Emeruwa (2004) 13NWLR (Pt. 890) p. 398 at p. 402; and
(2) Ehoighe v. NNPC (1994) 5 NWLR (Pt.. 347) p. 649.
It was further submitted that in order to determine when a cause of action arose, it is necessary to consider the pleadings of the plaintiffs especially his writ of summons and the statement of claim. He relied in this wise on the cases of:
(1) Co-operative Bank Ltd. v. Lawal (2007) 1 NWLR (Pt. 1015 p. 287 at p. 289;
(2) Elebanjo v. Dawodu supra at p. 88;
(3) Eiimofor v. NITEL (2007) 1 NWLR (Pt. 1014) p. 153 at p. 159; and
(4) Oyebanjo v. Lawanson (2004) 13 NWLR (Pt. 889) p. 62 at p. 66.
The Respondent’s learned counsel contended that in the instant case, the Appellants trespassed on the Respondents’ land sometime in 1979. This action was reported to the Oba of Benin, who took action and settled the matter in favour of the Respondents. The settlement culminated in the in Paragraph 15 of the 1st amended statement of claim of the Respondents.
Following the re-establishment of their boundaries by both parties in 1982 in parties reestablishing their respective boundaries in 1982. This is contained compliance with the Oba’s order, there was peace in the area between the Respondents’ and Appellants’ communities, until the Appellants’ started transferring the Respondents’ land to some members of the Appellants’ community causing a perimeter survey plan to be made on the Respondents’ land in 1999. In this regard, reference was made to Paragraphs 15, 18 and 19 of the 1st amended statement of claim of the Respondents. It was further stated that the Respondents would not had brought the action the subject-matter of this appeal, if the Appellants have maintained the status quo in line with the Oba’s order.
I have held under the preceding issue that, there is a cause of action at the instance of the Respondents. However, under this present issue, the contention of the Appellants yet is that, the Respondents’ action was not commenced timeously pursuant to the provisions of Sections 4(1) and 6(2) of the Limitation Law. Those provisions prohibit the commencement of actions for torts and actions to recover land after six and twelve years respectively. For easy reference and clarity, I hereunder reproduce the said Sections as follows:
4(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say-
(a) actions founded on simple contract or on tort;
(b) actions to enforce a recognisance;
(c) actions to enforce an award, where the submission is not by an instrument under seal;
(d) actions to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture.
6.(2) No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom the State claims, to that person:
Provided that, if the right of action first accrued to the State through which the person bringing the action claims, the action may be brought at any time before the expiration of the period during which the action could have been brought by the State, or of twelve years from the date on which the right of action accrued to some person other than the State, whichever period first expires.
The law is settled that, time in relation to cause of action, begins to run when there is in existence a person who can sue another who can be sued, and when all facts have happened which are material to be proved to enable a plaintiff succeed. Hence, where there exists a law on limitation of time within which all actions and matters should be taken, or where a law exists prescribing a period of time within which an action may be instituted, time begins to run automatically from the date of the accrual of the cause of action. See the cases of:
(1) Yusuf v. Cooperative Bank Ltd. (1994) 7 NWLR (Pt. 359) p. 676;
(2) LUTH & M.B. v. Adewole (1998) 5 NWLR (Pt. 550) p. 406; and
(3) Aloa v. N.I.D.B. (1999) 9 NWLR (Pt. 617) p.103.
There are laid down ways and means of determining the period of limitation. On this subject, I refer to one of the locus classicus cases, that is, the case of: Egbe v. Adefarasin (No.2) (1987) 1 NWLR (Pt. 47) p. 1 at p. 40, Oputa J.S.C, (Rtd) had the following to say:
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.
I shall now relate the facts of this matter as contained in the statement of claim of the Respondents to the contention of the Appellants and the findings of the lower Court,
The Appellants are relying on paragraph 15 of the Respondents’ statement of claim in their contention that the claim in contention is statute barred. While the lower Court rested its findings on paragraph 19 that the action of the Respondents was instituted within the period prescribed by the Limitation Law supra. I hereunder for good understanding and easy reference reproduce the two paragraphs as follows:
15. In 1982 in compliance with the Oba’s decision, the plaintiffs and defendants jointly re-cleared the boundaries between them. As they were doing this, the defendants led by Uwuigbe Osaheni and Idurobo Onaiwu attacked one of the elders of the community, assaulted and damaged his car. This was reported to the Police and those involved in the community were dealt with by the Police.
19. In 1996, the defendants through Uwuigbe and Onaiwu caused a perimeter survey to be made on plaintiffs’ land. When. Plaintiffs noticed this trespass, this perimeter survey plan by the defendants as charted into the plaintiffs’ perimeter survey plan by the Ministry of Land and it was discovered that the defendants’ perimeter survey was largely on the land of the plaintiffs.
From the words of the above paragraphs, I disagree with the contention of the Appellants that the cause of action accrued in 1982. This is because the averment in the paragraph 15 is a product of the intervention and directives of the Oba of Bini which led to the settlement of the grievances between the warring parties prior to 1982. However, I am at one with the learned Judge of the lower Court when he found that the date averred in paragraph 19 of the Respondents’ statement of claim, that is 1996, was the date the actual trespass which culminated in the action, the subject matter of this appeal was allegedly committed by the Appellants. It is crystal clear ex facie the record of appeal at pages 1 to 3 that, the writ of summons which was at the instance of the Respondents was issued in 2004, a period of eight years after the cause of action accrued, in 1996. I can not agree more with the lower Court’s finding that, the Respondents’ claim as set out above was brought within the limitation period of twelve years and is not statute-barred. Issue two is also resolved against the Appellants and in favour of the Respondents.
Having resolved both issues against the Appellants, I hold that this appeal is without merit. It is hereby dismissed accordingly. Based on my foregoing line of reasoning and conclusions, I uphold the ruling of the lower Court delivered on 1st November, 2006, that, it is competent to adjudicate upon the action of the Respondents before it in Suit No. B/66812004. This matter is hereby remitted to the Chief Judge of Edo State to be re-assigned to another Judge of the High Court of Edo State other than Hon. Justice P.I. Imoedemhe, to be heard on its merits.
The Respondents are entitled to the costs of this appeal which I assess at the sum of Twenty Thousand Naira:
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment delivered by my learned brother, ” Omoleye, JCA, and I agree with him that the appeal clearly lacks merit. It is well settled that in determining whether a cause of action is statute barred or not, the most crucial consideration is when the cause of action arose, and the period of limitation is determined by looking at the Writ of Summons and Statement of Claim alleging when the wrong was committed that gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. See Adekoya V. F.H.A. (2008) 11 NWLR (Pt 1099) 539S( and Omomeji V. Kolawole (2008) 14 NWLR (Pt, 1106) 18.0 SC. In this case, paragraph 19 of the Respondents’ Statement of Claim at the lower Court states clearly that they only instituted the action in 1996, when they noticed that the Appellants had caused a perimeter survey to be made on their land, obviously, the action they filed was not statute-barred and the lower Court was right to so hold, It is for this and the other reasons in the lead Judgment that I also dismiss the appeal as lacking in merit, and I also abide by the consequential orders in the said lead Judgment.
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.: I agree entirely with the lead Judgment delivered by my learned brother, OYEBISI F. OMOLEYE, JCA. There is therefore no need to dwell further on the said Judgment. I also abide by the order as to costs.
Appearances
Imadegbelo SAN with him E. Imade, A. Alofoje and Miss V. AkhereFor Appellant
AND
G. E. Ezomo with him E. O. Edigue, D. O. Aigbekaen, C. P. Agbaeze and S. MartinsFor Respondent
