SABO ZANGYE v. AYIMABA TUKURA
(2018)LCN/12120(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of November, 2018
CA/MK/175/2017
RATIO
STATUTE OF LIMITATION: WHETHER STATUTE OF LIMITATION APPLY TO LAND
“On the question of whether or not the Limitation Law applies to land-holdings under native law and custom, it is apparent from the above Limitation Law of 1988 applicable to Nasarawa State that it does. The law makes no distinction on the nature of land-holdings. In this regard, I have read the decision of this Court referred to by the Appellant in Ogunlana V Dada (supra) at pages 559-560, paras G-A per Rhodes-Vivour JCA (as he then was), wherein it was held as follows: ‘Statutes of limitation are not applicable to land tenures held under native law and custom. Accordingly, the provision of Section 12(2), Limitation Law of Lagos State or any statute of limitation cannot be invoked to stop execution of judgment where the land is held under native law and custom…'” PER JUMMAI HANNATU SANKEY, J.C.A.
INTERPRETATION OF STATUTE: WHETHER THE COURT CAN INTERPRET STATUTE
“In the matter of the interpretation of statutes, Courts have been well guided over the years with the clear boundary beyond which Courts cannot enter. Thus, while Courts have the power to interpret the law, it has no licence to veer into the legislative arena or constitute itself into the legislator, however harsh or distasteful the piece of legislation may be. Once the words are plain and unambiguous, the Court is duty bound to give effect to it. In other words, in the interpretation of statutes, words should always be given their ordinary meaning. Where the words are clear, unambiguous and to the point, any addition or subtraction will be sequel to introducing an illegal backdoor amendment. See Setraco Nig Ltd V Kpaji (2017) LPELR-41560(SC) 25-26, paras D-A, per Peter-Odili, JSC; & Skye Bank Plc V Iwu (2017) LPELR-42595(SC) 118 paras B-C, per Ogunbiyi, JSC.” PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES:
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
SABO ZANGYE – Appellant(s)
AND
AYIMABA TUKURA – Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment):
This Appeal is against the Judgment of the High Court of Justice, Nasarawa State sitting in its appellate jurisdiction delivered on 17th February, 2017, Coram: Abundaga, J. and Oyigbenu, J. Therein, Judgment was issued in favour of the Respondent as Appellant.
The Judgment of the lower Court was predicated on an interlocutory Appeal brought by Respondent herein challenging the jurisdiction of the trial Grade 1 Area Court, New Karshi on two grounds, to wit:
(i) that suit instant was statute-barred; and
(ii) that the suit constitutes abuse of Court processes as contained in their Notice of Appeal dated 6th November, 2015.
Briefly put, the facts leading to the Appeal are thus: Sometime in the year 2002, the Appellant (as Plaintiff) commenced an action seeking title to land at the Grade 1 Area Court Karshi in Nasarawa State vide suit no CV/37/2002. At the trial, the trial Grade 1 Area Court entered Judgment for the Respondent (as Defendant). Dissatisfied with the Judgment of the trial Court, the Appellant herein appealed to the High Court of Nasarawa State sitting in its appellate jurisdiction still in 2002 complaining of a lack of fair hearing. The Appeal succeeded and the Judgment of the trial Area Court was consequently set aside and an order for re-trial of the suit was made.
Thirteen years thereafter i.e. sometime in 2015, the Appellant filed another suit before the same trial Grade 1 Area Court, to wit: suit no CV/05/2015. Therein and attached to the particulars of claim was Annexure A being the printed Record of the said High Court sitting in its appellate jurisdiction wherein the order for retrial was contained. Before the matter proceeded to hearing, the Respondent (as Defendant) filed a motion on notice raising an objection to the hearing of the suit on two grounds namely: that suit no. CV/05/2015 was statute-barred, the cause of action having accrued in 2002; and was also an abuse of Court process in view of the existence of suit no CV/37/2002 earlier sent back to the same Area Court for retrial in 2002.
The trial Grade 1 Area Court heard arguments on the objection and dismissed same. Aggrieved by the Ruling of the trial Court, the Respondent appealed to the Court below sitting in its appellate jurisdiction.
From the Record of Appeal transmitted to the Court below by the Respondent herein (then Appellant), the suit leading to the second Appeal was commenced in compliance with the earlier order for re-trial made in 2002 by the same High Court sitting in its appellate jurisdiction. The date reflected on the heading of the printed Record indicated that the Judgment therein was issued on 16-10-12. However, the date at the signature page duly signed by the appellate Court Judge was 16-10-02.
In considering the Appeal on the issue of whether or not the fresh suit, number CV/052015 was statute-barred based on the documents before it, the Court below found as a fact that the order for retrial of suit no CV/37/2002 made by the High Court was made on 16-10-02, and not on 16-10-12. It therefore held that the suit was indeed statute-barred. The Court below also held that in view of suit no CV/37/2002 sent back to the trial Area Court for retrial, the fresh suit, number CV/05/2015, amounted to an abuse of Court process. Consequently, the Appeal was allowed and the claim of the Appellant (as Plaintiff) at the trial Area Court was dismissed. Being dissatisfied, the Appellant appealed to this Court vide a Notice of Appeal filed on 12th May, 2017 wherein he complained on three grounds.
It is noted that this Appeal was argued based on the main Record of Appeal transmitted to this Court on 6th June, 2017 on the initiation of the Appellant, and the Supplementary Record of Appeal transmitted on 23rd June, 2017 at the instance of the Respondent.
At the hearing of the Appeal on 24-09-18, G.H. Mohammed Esq. holding the brief of I.M. Zubairu Esq., adopted the Appellant Brief of argument filed on 05-03-18 and deemed filed on 06-03-18 as well as the Appellants Reply Brief of argument filed on 18-09-18 and deemed filed on 24-09-18, both Briefs settled by I.M. Zubairu Esq. He prayed the Court to allow the Appeal. In like manner, Yohanna Z.P. Agyere Esq. adopted the Respondent?s brief of argument filed on 29-03-18 in urging the Court to dismiss the Appeal.
From the three grounds of appeal, the Appellant framed two issues for the determination of the Appeal and these were adopted by the Respondent. The issues are set out hereunder:
1. Whether the lower Court was right in holding that the suit instant is statute-barred? (Grounds one and two)
2. Whether the lower Court was right in holding that the suit instant constitutes abuse of Court process? (Ground three)
Both parties having agreed on these issues, they will be used in the determination of the Appeal, but will be considered in the reverse order, with issue two being considered first.
Issue two – Whether the lower Court was right in holding that the suit instant constitutes an abuse of Court process?
In his Brief of argument, the Appellant argued that the finding of the Court below stating that suit no CV/05/2015 constitutes an abuse of Court process in view of the earlier suit no CV/37/2002 sent down for retrial, was anchored on the Courts erroneous conclusion that the Appellant adopted the wrong procedure in commencing of the re-trial process. He therefore argued that by Order 2 Rule 5 of the Area Courts Civil Procedure Rules, 1971 and Order 9 Rule 1(3) of the Civil Procedure Rules of the Nasarawa State High Court (2010), where a party adopts a wrong procedure in commencing an action, such an error shall only be treated as an irregularity; and the Judge is empowered to give directives with a view to regularizing the defect. Based on this, he urged the Court to allow the Appeal and set aside the decision of the Court below.
In response, the Respondent rehashed the facts leading to the Appeal before the Court below. He submits that the Appellant sued him (Respondent) at the Grade 1 Area Court Karshi in 2002 vide suit no CV/37/2002. The suit was decided in favour of the Respondent and so dissatisfied, the Appellant appealed against the Judgment in the same year, i.e. 2002. Consequent upon the hearing of the Appeal, the High Court in its Judgment of 16th October, 2002 set aside the trial Area Court’s decision and ordered for a re-trial. Subsequently however, the Appellant filed a fresh suit against the Respondent in 2015 vide suit no. CV/05/2015, without complying with the order for a re-trial of suit no CV/37/2002.
The Respondent submits that in the two suits, id est suit no CV/37/2002 between Sabo Zangye V Ayimaba Tukura and suit no CV/05/2015 again between Sabo Zangye V Ayimaba Tukura, the parties are the same, the subject matter which is land, is the same and the reliefs are the same except for some added consequential reliefs. Also, both actions were instituted by the Appellant against the Respondent. It was therefore based on these facts that the Court below rightly dismissed suit no CV/05/2015 for being an abuse of Court process and for being statute-barred. The Court below held that suit no. CV/05/2015 which led to this Appeal is an abuse of Court process having recourse to suit no. CV/37/2002 filed by the Appellant herein.
In respect of the contention of the Appellant that the filing of suit no. CV/05/2015 was a procedural slip that could be regularized, it is submitted the only way to regularize the irregularity is to dismiss the later case i.e. suit no. CV/05/2015, and that is what the Court below did. It is however argued that an abuse of Court process is not a mere irregularity but a fundamental vice punishable with a dismissal of the offending process. Ukachukwu V PDP (2014) 4 NWLR 65 at 81, paras G-H (SC) is relied on.
The Respondent, in response to the Appellants contention that his intention in filing the later suit, i.e. number CV/05/2015, was to give life to the order for retrial of the earlier suit no CV/37/2002 made on 16th October, 2002, submits that what the Appellant ought to have done was to furnish the trial Court with the order for re-trial and to commence suit no CV/37/2002 remitted for re-trial with the same suit number; and not to file a fresh case, suit no CV/05/2015, as he did.
He however further submits that even to now embark on a re-trial was no longer feasible since by Section 15(1) of the Limitation Law (supra), the Appellant is barred from complying with the order for re-trial thirteen years after the said order had been made on 16-10-02. Reliance is placed on Osuma V J.C. & Moulding (Nig) Ltd (2014) 6 NWLR (Pt. 1402) 17 at 37, paras G-H & 38 paras A-D wherein the Appellant tried to enforce a Judgment fifteen years after the Judgment became enforceable. However, the case was dismissed for being statute-barred. The Court is therefore urged to affirm the Judgment of the Court below and to dismiss the Appeal as the Appellants legal right had been extinguished by operation of the law.
In a reply on points of law in respect of the submission that the Appellant cannot give life to the order for re-trial made on 16th October, 2002 in view of Section 15(1) of the Limitation Law (supra), it is submitted that the provision is not applicable because the case at the trial Area Court is a continuing process since the act of the Respondent is also a continuing act. However, the Appellant copiously conceded that the case, suit no CV/05/2015, constitutes an abuse of Court process. However, that the proper order to make is to strike out the case and not to dismiss it. The Court is therefore urged to strike out the suit and allow the appeal on the issue of statute-bar only.
Findings –
On this issue of whether the lower Court was right in holding that the suit instant constitutes an abuse of Court process, the Appellant with proper introspection has conceded that suit no CV/05/2015 filed in 2015 was indeed an abuse of process. This was the right thing to do. It is evident from the processes of the trial Area Court contained in the printed Record that suit no CV/37/2002 and suit no CV/05/2015 are virtually identical in content. They are between the same parties, in respect of the same subject matter and seeking essentially the same reliefs, except for a few consequential orders. The latter suit, i.e. CV/05/2015 was filed ostensibly in compliance with the order for retrial of suit no CV/05/2002 made on 16th October, 2002 by the High Court. As rightly held by the Court below, the order for retrial resuscitated the case which was decided by the trial Area Court on 12th July, 2002. Thus, filing suit no CV/05/2015 has led to a multiplicity of Court processes between the same parties on the same subject matter and seeking the same reliefs, in addition to being before the same Court. Such an act has been described as an improper use of the judicial process to the irritation, annoyance and harassment of the other party. See Comm. of Education V Amadi (2013) 2 SCNJ 120 at 140, per Onnoghen, JSC (as he then was).
The proper order to make is to strike out the fresh suit filed in 2015 in purported compliance with the retrial order, instead of proceeding with the earlier case, to wit: suit no CV/37/2002 sent back to be retried by the trial Area Court. The Appellant having already conceded that suit no. CV/052015 is an abuse of process, issue two is, without further ado, resolved in favour of the Respondent.
Issue one – Whether the lower Court was right in holding that the suit instant was statute-barred?
Relying on KLM Royal Dutch Airlines V Kumzhi (2004) 46 WRN 59 at 64, the Appellant submits that in determining the jurisdiction of a Court, the Plaintiffs claim is the paramount determinant. He contends that Annexure A attached to the Plaintiff/Appellants particulars of claim before the trial Area Court was before the Court below. It comprises of a certified true copy (CTC) of the Judgment of the Nasarawa State High Court sitting in its appellate jurisdiction in the earlier appeal no NSD/K9A/2002 wherein an order for re-trial was made. The date on the typed copy of the Judgment at pages 6 and 9 of the Record of Appeal is 16-10-12 and not 16-12-2002, as wrongly held by the Court below.
It is further submitted that none of the parties to this Appeal had in their submissions at the Court below stated that the retrial order was made in 2002. Instead, it was agreed that the suit was first instituted in 2002. The Appellant therefore submits that the lower Court misdirected itself when it held that the retrial order was dated 16-12-2002 (page 88 of the Record).
However, it is submitted that even assuming that the order for re-trial was dated 16-10-02, the Court below erred in holding that the decision of this Court in Ogunlana V Dada (2010)1 NWLR (Pt. 1176) 534 at 559-560, para G-A, was inapplicable to the facts of this case. The Court below distinguished the applicability of the decision based on the nature of the Judgment as against the nature of land tenures, which he contends was the rationale behind the decision. It is submitted that by this decision, statutes of limitations are not applicable to land tenures held under native law and custom, irrespective of whether the Judgment is final or interlocutory; the reason being that the common feature in all customary practices in Nigeria is the perpetuity of land ownership. The Court is therefore urged to set aside the decision of the Court below and to allow the Appeal.
In response, the Respondent submits that contrary to the argument of the Appellant, the re-trial order was made on the 16-10-02 and not 16-10-12. He contends that it was an error of the Registry staff/typist who typed 16-10-12 on the heading of the proceedings. He referred to page 9 of the main Record of Appeal which discloses that the date below the signature of the Judge is 16-10-02, and not 16-10-12. Reliance for this is further placed on the Supplementary Record of Appeal which is a copy of the hand-written manuscript of the proceedings of the appellate High Court. He therefore contends that the Supplementary Record as well as the proceedings of 2015 confirms that the date, id est 16-10-12, written at page 6 of the typed Record of Appeal was an error of the Registry and/or typist. In addition, that page 1 of the Supplementary Record (which is the CTC of the file cover) as well as page 2 containing the heading of the proceedings and page 4 thereof disclose that Judgment was entered and the order for re-trial made by the appellate High Court on 16-10-02 and not on 16-10-12. The Court is therefore urged to hold that the date of the re-trial order was 2002 and not 2012.
It is further submitted that, contrary to the submission of the Appellant, right from the trial Area Court both parties maintained that the re-trial order was made in 2002 and not 2012. Reference is made to:
(a)pages 34 and 35 of the Record (being the Applicant/Defendants submission at the trial Area Court);
(b) page 36 line 2 of the Record (being the Applicant/defendants submission at the trial Area Court);
(c) page 57 paragraph 3.2.14 (being the Appellant (now Respondents) submission at the Court below);
(d) page 57 paragraph 3.2.15 (being the Appellant (now Respondents) submission at the Court below);
(e) page 70 paragraph 1.7 (being Appellants Reply Brief at the Court below);
(f) page 71 paragraph 1.13 (being the Appellant’s Reply Brief at the Court below); and
(g) (page 61 paragraph 3.1.4 (being the Respondent now Appellant’s submission at the Court below).
Furthermore, it is submitted that the submission of the Appellant that the statute of limitation does not apply to land held under native law and custom is false and misconceived. Reliance is placed on Sections 2 and 3 of the Limitation Law (Edict No. 16) 1988 of Plateau State applicable to Nasarawa State. It is argued that the cause of action accrued to the Appellant from his particulars of claim at the trial Area Court in 2002, while the Appellant filed the suit that gave rise to this Appeal in 2015 vide suit no CV/05/2015. By paragraph 8 of the particulars of claim and paragraph 2 of the counter affidavit challenging the application at the trial Court, the cause of action arose in 2002 (pages 5 and 19 of the main Record) while the instant suit was filed in May, 2015. Thus, the Appellant filed suit no. CV/05/2015 thirteen years after the cause of action first arose. It is therefore submitted that the Court below rightly held that the action was statute-barred.
It is further submitted that by Sections 2 and 3 of the Limitation Law (supra), the limitation law applies to all lands, irrespective of the system of the land-holding to wit: whether the land is held under native law or statutory tenure-ship. Counsel argues that the decision in Ogunlana V Dada (supra) is a departure from the statute, as the applicable Limitation Law did not distinguish between the systems of land-holding. Therefore, that the legislation should be given its literal meaning which if done, would make the suit statute-barred. Reliance is placed on Nwiboeke V Nwokpuru (2016) LPELR-41524(CA) 13. The Court is therefore urged to affirm the decision of the Court below by dismissing the Appeal.
In a reply on point of law, the Appellant argues that the re-trial order made on 16-10-02 in the case between the Appellant and Respondent in suit no CV37/2002 is it still valid and subsisting until it is set aside by an appellate Court. It is therefore submitted that whether the order for a re-trial was made in 2002 or 2012 it is immaterial as it subsists having not been set aside. For that reason, that the conflict as to the date on which the order was given is not material.
Furthermore, that the statute of limitation does not apply to the case giving rise to this Appeal, to wit: suit no CV/05/2015, because the Appellant (Plaintiff at the trial Court) set the machinery of law in motion when the cause of action arose. Thus, the question of whether or not the statute of limitation applies to land under native law and custom is also not material. Instead, that the issue is whether the order of re-trial of 2002 can be adjudged to be statute-barred.
Referring to Sections 2 and 3 of the Limitation Law (Edict No. 16) 1988 of Plateau State applicable to Nasarawa State, Counsel submits that it is not in doubt that the cause of action arose in 2002. Thereafter, the Appellant immediately took action by filing suit no. CV/37/2002 against the Respondent at the trial Area Court and Judgment was entered in favour of the Respondent. Dissatisfied, the Appellant proceeded to file an appeal against the decision to the High Court in order to recover the land. As a result, the Judgment was set aside and an order for re-trial was made.
The Appellant submits that Sections 2 and 3 of the Limitation Law is only applicable to a situation where a cause of action arose but the party to whom it accrues fails to take action in respect of the land in question until after the expiration of ten years from the date of its accrual. In that situation, his action will be adjudged statute-barred. It is contended that in the present case, the dispute arose in 2002 and the Appellant filed the action seeking to recover the land (the subject matter of the earlier Appeal) in 2002. The case is still pending before the trial Area Court in line with the order for re-trial made by the High Court in its appellate jurisdiction in 2002. Thus, it is submitted that the Limitation Law does not apply.
Therefore, Counsel submits that since suit no. CV37/2002 is still pending before the trial Area Court by virtue of the re-trial order of 2002, the Appellant can only be punished for filing the later case, id est suit no CV/05/2015, for being an abuse of the process of Court. This is because two cases are now pending before the trial Area Court. Therefore, that the case later filed in 2015 can be adjudged an abuse of Court process and not statute-barred. Hence, it is submitted that the proper order the lower Court should have made is one striking out the later suit filed in 2015, to wit: suit no CV/05/2015 which amounts to an abuse of Court process and not to dismiss it for being statute-barred. Reliance is placed on Dingyadi V INEC (2010) 4-7 SC (Pt 1) 76.
It is finally submitted that the statute of limitation only applies when a party does not act timeously. In the instant case, the Appellant did not sleep on his rights but instituted suit no CV37/2002 when the cause of action arose, and same is still pending before the trial Area Court. The Court is therefore urged to set aside the Judgment of the Court below dismissing the Appeal on the ground that the suit is statute-barred and instead, to hold that the suit is only an abuse of Court process. The Court is urged to resolve this issue in favour of the Appellant.
Findings –
In the first place, it is imperative to make a finding of fact on the contentious issue of whether the order for retrial made in the first Appeal before the High Court sitting in its appellate jurisdiction was made in 2002 or 2012. Based on the extensive submissions of learned Counsel for both parties, I have closely scrutinized the proceedings of that Court reproduced both in the main Record of Appeal and the Supplementary Record of Appeal. While the typed proceedings at page 6 of the main Record (which is the title page) bears the date 16/12/2012, at the end of the proceedings for the day, the Judgment was signed by the learned Judges on 16/10/2002. In view of the disparity of the dates in the typed proceedings, the Supplementary Record of Appeal was compiled and transmitted to this Court. Therein contained is a photocopy of the hand-written manuscripts of the proceedings of the High Court sitting on appeal from which the proceedings and Judgment in the main Record had been typed. It is clear and indisputable that both the date at the commencement of the proceedings and the date on the signature page immediately after the delivery of the Judgment were 16/10/2002. Consequently, I find that the date on which the order for retrial was made in respect of suit no CV/37/2002 was 16th October, 2002.
The next issue to be resolved is whether or not the order for retrial, having been made in 2002, the filing of suit no CV/05/2015 thirteen years thereafter, violated Sections 2 and 3 of the Limitation Law, 1988 (Edict No. 16) of Plateau State applicable to Nasarawa State, thereby rendering the suit statute-barred. This was the finding of the Court below.
The Appellant has argued that the original suit number CV/37/2002 sent back for retrial, having been duly filed within time, it cannot be said that suit no. CV/05/2015 subsequently filed by him in pursuance of that same order for retrial, was statute-barred even though it was filed thirteen years after the cause of action. In addition to this, reliance was placed on the decision of this Court in Ogunlana V Dada (supra) to submit that statutes of limitation are not applicable in respect of lands under native law and custom.
The Respondent however argues per contra that the Appellant having filed the suit giving rise to the appeal before the Court below in 2015, thirteen years after the cause of action had accrued in 2002, in view of the applicable Limitation Law which provides a limit of ten years after the accrual of the cause of action, had lost the right of action.
Upon a close examination of the facts giving rise to this Appeal, the applicable laws and precedents relied upon, I am of the humble view that both parties have been chasing shadows and not substance. This is so firstly in view of the concession upfront by the Appellant that the later suit he filed in pursuance of the order for retrial, to wit: suit no CV/05/2015, was wrongly filed and should rightly be struck as an abuse of the process of Court. The Appellant has readily agreed that since suit no CV/37/2002 was still alive due to the valid and subsisting order for retrial made by a competent appellate Court in 2002, the filing of suit no CV/05/2015 was both unnecessary and amounted to an abuse of the process of Court.
Secondly, the arguments of the Respondent have all been centered squarely on the fact that suit no CV/05/2015 which gave rise to the appeal at the Court below from which this Appeal emanated, was statute-barred having been filed thirteen years after the accrual of the cause of action. With these facts, the consideration of whether or not suit no CV/05/2015 was statute-barred has been rendered academic because, come what may, it is liable to be struck out as its institution at the trial Court when suit no CV/37/2002 was still pending for retrial led to a multiplicity of actions, which is an abuse. Striking it out will make way for the Appellant to comply with the valid and subsisting order of the Nasarawa State High Court made in its appellate jurisdiction way back in 2002 in respect of the earlier suit no CV/37/2002. Since the viability or otherwise of that suit, to wit: CV/37/2002 is not an issue before this Court, I decline to venture into whether or not that initial case is statute-barred. The issue before the Court below and now before this Court is the status of suit no CV/05/2015 and whether or not it is statute-barred. The Appellant has since conceded that he should not have filed it in the first place and that it constitutes an abuse.
However, as an intermediate Court and in the event that I am overruled in finding that the issue has been rendered academic having already ruled that latter case filed in 2015 is an abuse, I will proceed to consider the issue of statute-bar. The law is trite that it is the claim of the Plaintiff that should be examined to determine the date on which the cause of action in a given case accrued. In respect of suit no CV/05/2015, from the statement of claim filed by the Appellant, particularly paragraph 8 thereof (at pages 4-5 of the main Record of Appeal), the cause of action arose in 2002. Now even though there were intervening factors in the form of the Appeal from the decision of the Area Court and the subsequent order for retrial in the same year, the date of the accrual of the cause of action remains constant, to wit: 2002. Thus, purporting to file a fresh suit in 2015 based on a cause of action that accrued in 2002 renders the suit statute-barred by virtue of the express provisions of Sections 2 and 3 of the Limitation Law of Plateau State (Edict No. 16) 1988 applicable to Nasarawa State (supra). For ease of reference, the relevant provisions read:
2.”Land’ includes land held under a right of occupancy or any other tenure.
3.No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.” (Emphasis supplied)
On the question of whether or not the Limitation Law applies to land-holdings under native law and custom, it is apparent from the above Limitation Law of 1988 applicable to Nasarawa State that it does. The law makes no distinction on the nature of land-holdings. In this regard, I have read the decision of this Court referred to by the Appellant in Ogunlana V Dada (supra) at pages 559-560, paras G-A per Rhodes-Vivour JCA (as he then was), wherein it was held as follows:
“Statutes of limitation are not applicable to land tenures held under native law and custom. Accordingly, the provision of Section 12(2), Limitation Law of Lagos State or any statute of limitation cannot be invoked to stop execution of judgment where the land is held under native law and custom…”
The rationale behind this holding is that land possession and ownership is a customary practice which is jealously guarded in different forms by different communities in Nigeria. One common denominator is the perpetuity of land ownership by its original owners. It is however evident that the Limitation Law under consideration in that case was Section 12(2) of the Limitation Law of Lagos State. It reads:
An action shall not be brought upon a judgment after the expiration of twelve years from the date on which the Judgment became enforceable.
The Limitation Law under consideration in the instant case was however framed by the lawmaker in more absolute terms. It specifically states that it applies across board to land held under a right of occupancy or any other tenure or any land.
Thus, in the more recent case of Nwiboeke V Nwokpuru (2016) LPELR-41524(CA) 13, this Court drew an important distinction as follows:
“The argument by learned Counsel for the respondent that limitation laws are not applicable to customary law or actions to recover land held under Customary Law cannot be accommodated by the clear words of S. 3 of the limitation law. Such argument is contrary to that provision. It is clear from the opening words of that provision thusly; ‘No action shall be brought by any person to recover any land’, that its legislative intention is that it should apply to actions by all persons in respect of lands without exception. This is supported by the definition of land in S. 2 of the same limitation law as including land held under a right of occupancy or any other tenure.”
In the matter of the interpretation of statutes, Courts have been well guided over the years with the clear boundary beyond which Courts cannot enter. Thus, while Courts have the power to interpret the law, it has no licence to veer into the legislative arena or constitute itself into the legislator, however harsh or distasteful the piece of legislation may be. Once the words are plain and unambiguous, the Court is duty bound to give effect to it. In other words, in the interpretation of statutes, words should always be given their ordinary meaning. Where the words are clear, unambiguous and to the point, any addition or subtraction will be sequel to introducing an illegal backdoor amendment. See Setraco Nig Ltd V Kpaji (2017) LPELR-41560(SC) 25-26, paras D-A, per Peter-Odili, JSC; & Skye Bank Plc V Iwu (2017) LPELR-42595(SC) 118 paras B-C, per Ogunbiyi, JSC.
Consequently, the case of Ogunlana V Dada (supra) cannot be forced on the facts of this case where it is contrary to the express provisions of the applicable law governing the land in dispute. It is distinguishable from the facts of the instant case since a Limitation Law, such as the one now under consideration, was not a factor in that case. It cannot therefore serve as an authority for the proposition made by the Appellant. I find that the Court below came to a right decision that by virtue of Sections 2 and 3 of the Limitation Law of Plateau State (Edict No. 16) 1988 applicable to Nasarawa State, suit no CV/05/2015 was statute-barred.
Nonetheless for the avoidance of doubt, since the issue of the propriety or otherwise of the resuscitation of suit no CV/37/2002 by way of a retrial is not an issue to be resolved in this Appeal, I decline to make any pronouncement thereon. Suffice to say that suit no CV/05/2015 filed when suit no CV/37/2002 was still subsisting for retrial, led to a multiplicity of actions and therefore constituted an abuse of the process of Court. I therefore resolve issue two also in favour of the Respondent.
Having resolved both issues in favour of the Respondent, the Appeal fails. It is accordingly dismissed. However, the final order made by the Court below is varied accordingly. Since I have found that suit number CV/05/2015 filed on 25th May, 2015 between Sabo Zangye And Ayimaba Tukura before the Grade 1 Area Court, Karshi was filed in abuse of the Courts process, the proper order to make in the overall circumstances of the case is one striking out the suit, and not an order of dismissal.
Consequently, the order of dismissal made by the Court below is set aside. In its stead, an order striking out the said suit number CV/05/2015 is hereby made.
I award costs assessed at N100, 000.00 to the Respondent against the Appellant.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my learned Brother, Jummai Hannatu Sankey, JCA, dismissing this appeal. All the issues arising for determination have been comprehensively addressed in the lead Judgment. I agree and adopt as mine the said resolution of the issues. I also dismiss the appeal and abide by the orders made in the lead Judgment, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of a preview of the lead judgment of my learned brother, Sankey, JCA. I agree with the reasoning and conclusion therein.
For the reasons stated in the lead judgment, I also dismiss the appeal and abide by the consequential orders made in the lead judgment.
Appearances:
G.H. Mohammed Esq. holding the brief of I.M. Zubairu, Esq. For Appellant(s)
Yohanna Z.P. Agyere, Esq.For Respondent(s)
