AGINA & ORS v. UGWUNAGBO LOCAL GOVT & ORS
(2022)LCN/16108(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/OW/322/2019
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
1. OGUEJIOFOR AGINA 2. BONIFACE EWENIKE 3. GINS ENTERPRISES LIMITED 4. F. A. EZE 5. OFOKA EZEKA 6. MESSRS MOOSONS NIGERIA LIMITED 7. RAPHAEL OGHARAHA 8. IHEDIGBO OGUEJIOFOR 9. B. S. OKONKWO APPELANT(S)
And
1. UGWUNAGBO LOCAL GOVERNMENT 2. EZE NWANGAGA 3. ALLOYSIUS ODUBAM 4. ELEKWACHI ELEKWACHI (ALIAS ALHAJI) RESPONDENT(S)
RATIO
THE POSITION OF LAW ON HOW TO DETERMINE A PERIOD OF LIMITATION
Now, as aptly explained in the cases, particularly the often cited case of EGBE VS ADEFARASIN (1987) 1 NWLR (PT. 47) 1 AT 21 (per Oputa, JSC) it was stated thus:
“How does one determine the period of limitation. The answer is simple – 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 the 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.” PER JAURO, J.C.A.
WHETHER OR NOT LIMITATION LAWS ARE ROOTED IN PUBLIC POLICY
In the case of ATTIOGBEY VS UBA PLC & ORS (2013) LPELR 20326 (CA), it was explained that limitation laws are rooted in public policy that there should be an end to litigation and that stale demands should be suppressed. In ODUBEKO VS FOWLER (1993) 7 NWLR (PT. 308) 637, it was stated that where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. PER JAURO, J.C.A.
FACTOR TO DETERMINE WHEN A CAUSE OF ACTION IS STATUTE BARRED
As resolved by my learned brother and which I agree with, in determining whether a case is statute-barred, the Court examines the Writ and the Statement of Claim, to determine when the cause of action accrued and compares it with the date the originating process was filed in Court in line with the time within which the barring statute allows for the action to be brought – Statoil (Nig) Ltd v Inducon (Nig) Ltd (2021) 7 NWLR Part 1774 Page 1 at 58 Para B-C per M.D Muhammad JSC, Idachaba v University of Agriculture, Markurdi (2021) 11 NWLR Part 1787 page 209 at 225 Para G-H per Abba Aji JSC, Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd (2017) 7 NWLR pan 1563 Page 42 at 68 Para A per Peter-Odili JSC. PER ADEFOPE-OKOJIE, J.C.A.:
IBRAHIM WAKILI JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Abia State High Court (hereinafter referred to as the ‘Lower Court’) delivered by Hon. Justice C. H. Ahuchaogu (hereinafter referred to as the ‘trial judge’) in Suit No. HOS/98/2005 delivered on 27th day of October, 2017.
FACTS OF THE CASE:
The Claimants (Appellants) before the lower Court instituted suit against the Defendants (Respondents) claiming the following reliefs:-
“a. A DECLARATION by the Honourable Court that the Claimants are entitled to the Statutory Right of Occupancy of the various parcels of land in dispute situate at Asa Nnetu Village, along Port Harcourt Road, Aba.
b. THE SUM OF SEVEN HUNDRED & FIFTY MILLION NAIRA (N750,000,000.00) being damages for trespass on the Claimants’ parcels of land and the subsequent illegal destruction, loss and theft of their properties thereon.
c. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants by themselves and/or through their Agents, Servants, Vendees and/or workmen from any further entry into and/or causing any further damage or acts of waste on the said parcels of land in dispute.”
ISSUES FOR DETERMINATION
Learned Counsel for the Appellant’s K. C. Nwufo (SAN) who settled the Appellants brief filed on 10/2/21 and deemed on 1/3/21 formulated three issues for determination from the grounds of appeal namely:-
i. Whether there is any evidence before the trial Court to demonstrate that the cause of action in the suit that gave rise to this appeal arose between 1988 to 1993? (Ground One).
ii. Whether the learned trial Judge was right when he heavily relied on a document which was not before him to hold that this suit was statute barred? (Ground Two).
iii. Whether the judgment is not against the weight of evidence before the trial Court? (Ground Three).
The Respondents who apparently did not put in any paper in reaction to the appeal were served with hearing notice on 7th February, 2022 vide one M. I. Njoku Esq., but did not come up when the matter was heard on the 9th day of February, 2022. The Court therefore invoked the provision of Order 19 Rule 10 (3) of the Court of Appeal Rules 2021 and entertained the appeal. We shall consider the appeal based on the Appellants’ issues for determination.
SUBMISSION OF THE APPELLANT
ISSUE ONE
i. Whether there is any evidence before the trial Court to demonstrate that the cause of action in the suit that gave rise to this appeal arose between 1988 to 1993? (Ground One).
Learned Counsel for the Appellant placed reliance on the relevant paragraphs in the Claimants/Appellants 2nd further amended statement of claim on the strength of which the learned trial judge dismissed the action that it was statute barred. He referred to pages 24-31 and pages 29-30 of the Record of Appeal. Counsel added that the Defendants in their amended statement of defence and evidence in Chief of DW1-Mr. Emelike Orji admitted that no white paper existed in respect of the suit and as such the cause of action could not have arisen between 1988-1993. Counsel cited Section 123 of the Evidence Act 2011 to buttress their position and also the cases of Aromolaran V. Oladele (1990) 7 NWLR Pt. 162 pg. 262 at 368 para. E. F, Biezen Exclusive Guest House Ltd Vs. Union Homes Saving & Loans Ltd (2011) 7 NWLR pt. 1246 pg. 246 at 285 para C -D. submitted that for the Respondents having admitted it should be admissible against them.
On purpose of limitation law, Counsel cited the dictum of Rhodes-Vivour, JSC, in MULIMA vs. USMAN (2014) 16 NWLR Pt. 1432 pg. 160 at 207 paras. C – D. He added that there are abundant documentary evidence to show that the lease of action Grouse in 2005. Learned silk referring to paragraph 14 of the 2nd further amended statement of claim which stated –
“The plaintiffs aver that the subject matter of this suit/dispute has been a matter of inquiry set up by the Abia State Government, to look into acquisition in Asa-Nnetu by the Obioma Ngwa Local Area of Abia State, between 1988-1993”, is clearly and purely mistake of Counsel.”
See pages 26 of the Record of Appeal. And that a mistake of Counsel should not be visited on the litigant relying on Ndika V. Chiejina (2003) 1 NWLR pt. 802 pg. 451 at 460, Unilag v. Aigoro (1985) 1 NWLR pt. 1 pg. 143. Counsel referred to series of documents tendered before the Court and admitted as EXHIBITS in support of the fact that this cause of action did not occur between 1988-1993. He therefore urged the Court to resolve issue 1 in favour of the Appellants.
ISSUE TWO
ii. Whether the learned trial Judge was right when he heavily relied on a document which was not before him to hold that this suit was statute barred? (Ground Two).
On the reliance of the trial finding on a document not before the Court. Learned Counsel submitted that the learned trial judge speculated the existence of a white pages and that speculation is not a function of the Court. He cited Biyu V. Ibrahim (2006) 8 NWLR Pt. 981 pg. 1 at pg. 60 paras. C – D. He urged the Court to resolve this issue against the Respondent in favour of the Appellant.
ISSUE THREE
iii. Whether the judgment is not against the weight of evidence before the trial Court? (Ground Three).
On judgment being against the weight of evidence, learned senior Counsel aptly cited the case of Balogun vs. E. O. C. B. (NIG) LTD. (2007) All FWLR pt. 382 pg. 1952 at 1959 where this Court held-
“Whenever it is alleged that a Judgment is against the weight of evidence, what it means is that the judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the trial Court either wrongly accepted or that the inference drawn or the conclusion reached by the trial Judge based on the accepted evidence cannot be justified. It can also mean that there is no evidence which if accepted would support the findings of the trial Judge. Furthermore, it could mean that when the evidence adduced by the Appellant is weighed against that adduced by the Respondent, the judgment given in favour of the Respondent is against the whole gamut of evidence adduced before the Judge.”
Counsel submitted that nothing other than the mistake of Counsel in paragraph 14 of the 2nd Further Amended Statement of Claim there was nothing before the Court that supported this averment. He urged the Court to resolve issue three in favour of the Appellant.
RESOLUTION
On issue one, I am fortified by the finding of the trial judge particularly at pages 196-197 of the Record of Appeal where he found –
“I will consider the allegation that claimants’ claim is statute barred first. In arguing this point, Max Njoku Esq., referred to the pleading in paragraphs 15, 16 and 17 of the claimants’ further amended statement of claim to state that the cause of action accrued to the claimants between 1992 and 1993 whereas the action was filed on 5/10/2005 after 13 years contrary to Section 3 and 118 of Abia State Limitation Law, 2005, which stipulates that this class of action shall be brought within ten years from the date on which the right of action accrued. The cases of EGBE VS ADEFARASIN (1987) 1 NMLR (PT. 47) 1 AT 20 and IBRAHIM VS OSIM (1988) 3 NWLR (PT. 82) 1 AT 267 were cited and relied upon.”
In his reply to the issue of statute bar, learned claimants’ counsel stated that paragraphs 15, 16 and 17 of the statement of claim do not refer to the land in dispute but instead to neighbouring lands to the land in dispute. Learned counsel stated that paragraph 20 of the statement of claim situates the cause of action in this suit and not otherwise.
Now, as aptly explained in the cases, particularly the often cited case of EGBE VS ADEFARASIN (1987) 1 NWLR (PT. 47) 1 AT 21 (per Oputa, JSC) it was stated thus:
“How does one determine the period of limitation. The answer is simple – 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 the 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.”
The learned trial judge contained still at page 197 of the record of appeal viz-
17: The claimants aver that the Government also accepted the following recommendations among others at Pages 27, 28 and 29. Paragraphs 101, 102, 103, 104, 108, 109, 110, 111, 112, 113, 114, 117 and 121 of the Panel of Inquiry contained in the white paper issued by the Abia State Government as it pertains to Messrs G. E. Atuenyi & Sons Co. Ltd. (from whom the claimants acquired title to their various parcels of land) at Pages 21 and 22 thus….”
Further by paragraph 18 of their said pleading, the claimants pleaded that:
“18: The claimants aver that in reaction to the foregoing comment as in paragraph 69 above, the 15 plots of land allocated to the Mechanics by the Obioma-Ngwa Local Government is only but a small fraction of the totality of the said land in dispute.”
By the above stated paragraphs of their pleadings, the claimants referred to the land in dispute as subject matter of the inquiry instituted between 1988 – 1993 by the Abia State Government following Obioma-Ngwa Local Government Area’s alleged forceful entry into many parcels of land within Asa Nnentu and its illegal acquisition without due process. The claimants who are aggrieved by the facts or set of circumstances pleaded in paragraphs 14 – 18 of their pleading aforesaid recognized the present 1st defendant namely Ugwunagbo Local Government Area as successor to Obioma-Ngwa Local Government Council. See paragraph 19 of the 2nd Further Amended Statement of claim.
At paragraph 3.16 of his written address, claimants’ learned counsel in addressing the question whether this suit is statute or not stated as follows:
“The implication of the said paragraph 14 of CW4’s written statement on oath is that the subject matter of this suit was not part of the inquiry set up by Abia State Government.”
I pause here to observe that paragraph 14 of CW4’s written statement on oath is expressed in similar terms with that of other Claimants’ witnesses. The words “neighbourhood and the adjoining parcels of land” never featured in paragraph 14 of the 2nd Further Amended Statement of Claim. The claimants in paragraph 14 of their pleading unequivocally pleaded that “the subject matter of this suit/dispute has been a matter of inquiry set up by the Abia State Government to look into acquisition of land in Asa-Nnentu by the Obioma-Ngwa Local Government Area of Abia State between 1988 and 1993.” The words “neighbourhood” and “adjoining” were tactfully and surreptitiously imported into the witnesses statement to wool the eyes of the Court. They constitute evidence that is at variance with the pleadings. The law is that parties are bound by their pleadings. See WOLUCHEM VS GUDI & ORS (1981) 5 SC 291. Again, where evidence led is at variance with pleadings, such goes to no issue and should be disregarded. See UMUKORO & ORS VS N.P.A. & ANOR (1997) 4 NWLR (PT. 502) 22.
The submission by claimants’ counsel at paragraph 4.02 of his written address to the effect that paragraphs 15, 116 and 17 of the claimants’ pleadings does not refer to the land in dispute but rather to neighbouring lands is of no moment. The word “neighbouring” was never used in those listed paragraphs. It is settled that submission of counsel cannot take the place of admissible evidence. See UBN PLC. & ANOR VS AYODARE & SONS (NIG) LTD & ANORN (2007) 13 NWLR (PT. 1052) 567.
The claimants upon their own showing have revealed that the cause of action that gave rise to their claim was donated to them by the set of facts and a combination of facts and circumstances that took place from 1998 – 1993. The claimants took out this action in the year 2005, well outside the ten years limitation period as stipulated in Section 3 and 18 of Abia State Limitation Law. It is not true as stated by learned counsel for the claimants that it was the alleged trespass by the defendants on 31/7/2005 that gave rise to this suit, rather I find and hold based on the pleading in the 2nd Further Amended Statement of Claim that the facts and set of facts/circumstances complained against were observed since 1988 – 1993.
The claimants slept on their rights and failed to take action promptly even when Obioma-Ngwa Local Government Area as stated predecessor in title to Ugwunagbo Local Government Area allegedly failed and/or neglected to comply with the directives/recommendations contained in the white paper.
In the case of ATTIOGBEY VS UBA PLC & ORS (2013) LPELR 20326 (CA), it was explained that limitation laws are rooted in public policy that there should be an end to litigation and that stale demands should be suppressed. In ODUBEKO VS FOWLER (1993) 7 NWLR (PT. 308) 637, it was stated that where a statute of limitation prescribes a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period.
The period of limitation prescribed under Abia State Limitation Law Section18 thereof is ten years with respect to actions founded on land. The claimants who became aware of the alleged trespassory acts on their land between 1988 – 1993 but decided to keep quiet have lost their right of action. The right has become unenforceable by operation of law.
A finding that a claim is statute-barred means that the claimants’ suit has become stale as the claimant is taken to be an indolent party who has slept on his alleged violated right. The Court has lost the jurisdiction to entertain claimants’ claim. In the final analysis, I find and hold that the claimants’ action is statute-barred not having been filed within the period allowed by Section 13 of Abia State Limitation Law, 2005, which fixed the period within which an action can be brought to recover land at ten years from the date of accrued of the right of action. This action/suit therefore stands dismissed.
In my considered view, the finding of the learned trial judge in this regard cannot be faulted. Issue One is therefore resolved against the Appellants.
Issue Two
On speculation, I find the position of the trial judge succinct when he observed amongst others at pages 197-198 thus –
The claimants pleaded copiously and clearly in paragraph 14 of the “2nd Further Amended Statement of Claim” dated 12/11/2010 and filed on 7/3/2011 as follows:
“14. The plaintiffs aver that the subject matter of this suit/dispute has been a matter of inquiry set up by the Abia State Government, to look into acquisition of land in Asa-Nnentu by the Obioma-Ngwa Local Government Area of Abia State between 1988 and 1993.”
From the above, it is glaring that the Claimants said it all by themselves that the cause of action arouse from 1988 – 1993. And by taking out the action in 2005, they were caught up by Sections 3 and 18 of the Abia State limitation law. Issue two must also be resolved against the Appellants.
Issue Three
The argument of learned senior Counsel that the judgment is against the weight of evidence cannot stand as he has not shown how this occurred. The only point he hammered on is with regards to mistake of counsel. In my considered view, the claimants pleaded this fact and cannot thereafter turn to say it is a mistake. The learned trial judge was therefore right to have relied on this piece of evidence presented before him and acted on same. Issue three equally is resolved against the Appellants.
On the strength of the evidence before the lower Court, the findings of the learned trial judge in this case cannot be faulted. The issues raised by the Appellants having been resolved against them, the appeal is without any merit and must fail. It is hereby dismissed. Costs of N100,000.00 (One Hundred Thousand Naira only) are awarded against the Appellants.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the leading judgment just read by my brother, IBRAHIM W. JAURO, JCA.
I agree with his reasoning and conclusions.
I dismiss the appeal and abide by the consequential order made as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, IBRAHIM W. JAURO, JCA, where the facts and contentions of Counsel to the parties have set out and determined.
As resolved by my learned brother and which I agree with, in determining whether a case is statute-barred, the Court examines the Writ and the Statement of Claim, to determine when the cause of action accrued and compares it with the date the originating process was filed in Court in line with the time within which the barring statute allows for the action to be brought – Statoil (Nig) Ltd v Inducon (Nig) Ltd (2021) 7 NWLR Part 1774 Page 1 at 58 Para B-C per M.D Muhammad JSC, Idachaba v University of Agriculture, Markurdi (2021) 11 NWLR Part 1787 page 209 at 225 Para G-H per Abba Aji JSC, Asaboro v Pan Ocean Oil Corporation (Nigeria) Ltd (2017) 7 NWLR pan 1563 Page 42 at 68 Para A per Peter-Odili JSC.
Any action filed after the period allowed by a statute, as was the case in this matter, is statute-barred. The resultant effect is that such an action is not maintainable and the operation of the limitation law leaves Plaintiff (the Appellant herein) with a right of action that is dead in law. Accordingly, no Court will have to entertain the action. See Liverpool & London Steamship Protection & Indemnity Association Ltd. V M. T Tuma (2021) 10 NWLR part 1784 page 347 at 384 Para C-D per Oseji JSC, Sylva v Independent National Electoral Commission (2015) 16 NWLR Part 1486 page 576 at 630 para A-C per Okoro JSC.
Learned Counsel to the Appellants has challenged the evaluation of the evidence by the lower Court, stating that the judgment given is against the weight of evidence. Judgment is said to be against weight of evidence when:
1. The judgment of the trial Court cannot be supported by the weight of evidence adduced by the successful party which the trial Court wrongly accepted.
2. The inference drawn on conclusion reached cannot be justified.
3. There is no acceptable evidence to support the findings of the trial Court and
4. When the evidence adduced by the Appellant is weighed on the imaginary scale against that adduced by the Respondent, the evidence in favour of the Appellant outweighs that adduced on behalf of the Respondent, to the extent that the judgment given in favour of the Respondent can be said to be against the totality of the evidence adduced before the trial Court. See Multitan Ltd v. A.S. Hide Skin General Merchant Ltd (2020) 6 NWLR Part 1719 page 180 at 193 Para 193 para B-E per Husaini JCA.
None of the foregoing was established by the Appellant, I hold. The judgment of the lower Court cannot thus be said to be against the weight of the evidence, I hold.
For these and the fuller reasons given by my learned brother, I also find this appeal without merit and dismiss it. The judgment of the lower Court per C. H. Ahuchaogu J. in HOS/98/2005 is accordingly affirmed. I subscribe to the orders for costs made by my learned brother.
Appearances:
K. C. NWUFO, SAN For Appellant(s)
M. I. Njoku, Esq, For Respondent(s)