ALHAJI MOMODU ALABI & ORS. V. KWARA STATE POLYTECHNIC & ANOR.
(2012)LCN/5160(CA)
In The Court of Appeal of Nigeria
On Monday, the 20th day of February, 2012
CA/IL/M.9/2007
RATIO
THE POSITION OF THE LAW ON THE DETERMINATION OF A CAUSE OF ACTION IN A SUIT
The law is trite on this’ that to determine when the cause of action arose in suit, recourse must be had to the processes filed by the plaintiff, only to originate the suit. See Adekoya vs. F.H.A. (2008) ALL FWLR (Pt.434) 1466, ratios 5 and 6; Ethiopian Airline vs. Afribank Plc (2006) 17 NWLR (Pt.1008) 245; IFF vs. NRC (2007) 3 NWLR (Pt.1020) 28; FRIN VS. GOLD (2007) 11 NWLR (Pt. 1044) 1, ratios 3 and 4. See also the recent decision of this Court in the case of ISIAK O. MOYOSORE VS. THE GOVERNOR OF KWARA STATE (an unreported decision) Appeal No. CA/IL/M.12/2007, delivered on 3/11/201, pages 31 and 32 thereof, where we said, relying on the case of Ethiopian Airline vs. Afribank Plc (supra): “That decision of the Apex Court is very clear on the point that once a party alleges that an action is statute barred, the Court must consider only the processes filed by the plaintiff to originate the case, namely the writ and the statement of claim, where evidence has not yet been led in the case. Adekoya vs. F.H.A. (supra) held 5 and 6. A close study of the writ of summons and the statement of claim in this case shows that the claimant never mentioned 17/6/2005 as a date of any consequence to the case”. PER. ITA G. MBABA J.C.A.
THE DETERMINATION OF A CASE WHEN IT IS STATUTE BARRED
By the authority of the case of Ethiopian Airlins vs. Afribank (supra), the determination of when a case is statute barred is very clear: “A cause of action is thus said to be statute barred if in respect of it proceeding cannot be brought because the period laid down by the limitation law or Act had elapsed. How does one determine the period of limitation? The answer is simple – by looking at the writ of summons and 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. if the time on the writ is beyond the period allowed by the limitation law, the action is statute barred.” PER. ITA G. MBABA J.C.A.
THE POSITION OF THE LAW WHERE A STATUTE PRESCRIBES INTERNAL REMEDIES TO BE ACCOMPLISHED BY A PARTY BEFORE INSTITUTING AN ACTION
In law, “A condition-precedent is defined as one which delays the vesting of a right until the happening of an event,” see Nigercare Dev. Co. Ltd. v. A.S.W.B. (2008) 9 NWLR (Pt. 1093) 498 at 520, Per Ogbuagu, JSC. Incontestably, where a statute prescribes internal remedies to be accomplished by a party before instituting an action, that party must exhaust those remedies, to the letter, before approaching a court for redress otherwise the jurisdiction of the court will be put in abeyance for want of completion of those local remedies, See Eguamwense v. Amaghizemwem (1993) 9 NWLR (Pt.315) 1; Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212; Ogologo v. Uche (2005) 14 NWLR (Pt. 945) 226; Owoseni v. Faloye (2005) 14 NWLR (Pt. 946) 719; Okomalu v. Akinbode (2006) 9 NWLR (Pt. 985) 338. PER. OBANDE OGBUINYA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA G. MBABA Justice of The Court of Appeal of Nigeria
OBANDE F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. ALHAJI MOMODU ALABI ALANGUA OF ARA
2. ALHAJI MUSTAPHA AREMU MAGAJI AKURO
3. MALL. KARIMU MAGAJI MEGUN
4. ALFA ABDULKAREEM MAGAJI GAATA
5. ALABI MOGBON MAGAJI SHAO OJULOGBON & KOKERE
For themselves and on behalf of their respective villages Appellant(s)
AND
1. KWARA STATE POLYTECHNIC
2. ALHAJI IDIRISU SANNI MAGAJI OKE-APON Respondent(s)
ITA G. MBABA J.C.A. (Delivering the Leading Judgment): Appellants applied as per motion filed on 1/7/2008 for extension of time to assemble and/or compile the Record of Proceedings to be used in this appeal and to deem as property compiled and assembled the Exhibit ‘A’ which they had assembled and/or compiled for the hearing and determination of their appeal in this case. The application was granted on 18/11/2008 and so the Record of Appeal filed by the Appellants was deemed duly filed on the said 18/11/2008, wherein Appellants’ notice and grounds of appeal dated 29/6/2006, were disclosed. Appellants thereafter obtained leave to amend their Notice of Grounds of Appeal, and to raise fresh issue, that was on 9/2/2009 and thereafter, they filed their Abandoned Notice and grounds of Appeal as well as their Brief of arguments on 10/2/2009.
The appeal is against the Ruling of Kwara State High Court in Suit No. KWS/95/2005, delivered on 19/6/2007, by Honourable Justice H.O. Ayayi. In the Ruling, the learned trial judge had dismissed the motion challenging her jurisdiction to adjudicate upon the matter – a land case. By a motion filed on 9/11/2005 at the lower Court, the 1st, 3rd, 5th, 6th and 10th Defendants (1st to 5th Appellants, respectively herein) had prayed the lower Court for an Order dismissing the entire suit, because (according to them) or its incompetence and invalidity. They had listed the following as the particulars:
“(1) The claimant/respondent has no locus standi, pursuant to the Polytechnic Law of Kwara State, 1994, to institute this action.
(2) The claimant/respondent neither attach nor plead or give any evidence of any gazette or Governor’s order or any, instrument whatsoever, pursuant to the Polytechnic Law showing that all the defendants/applicants’ land in their respective communities had been vested on the claimant/respondent.
(3) The pleaded survey plan on which the claimant/respondent premised this action that is, Exhibit A attached to the Motion paper, not being a registrable instrument, is merely a proposal of intent5 and not a survey plan pursuant to the provisions of the survey Law of then Northern Nigeria, 1963, applicable in Kwara State in 1973 when the proposed survey was made.
(4) This action cannot be competently instituted without prior compliance with the conditions precedent, and as provided for in the Polytechnic Law of Kwara State.”
The main case before the trial Court in the Suit No. KWS/95/2005, filed by Kwara State Polytechnic as claimant on 20/7/2005, had sought the following reliefs.
“(a) A declaration that the claimant has an unfettered title to the piece of land measuring 21 square miles along Jebba Road, Ilorin, where the Kwara State Polytechnic permanent site is located.
(b) A declaration that all the customary land holders/occupiers have been adequately compensated for by the Kwara State Government, since 1974.
(c) A permanent injunction restraining the Defendants, their servants, agents privies and all these claiming through them from carrying out any further development on the said land belonging to the claimant.
(d) A permanent injunction restraining the defendants, their servants, agents, privies and all those claiming through them from any longer tampering with claimant’s use of their said land or preventing them from erecting structures of her own on the said land covered by 21 square miles.
(e) An Order of the Honourable Court directing the defendants, their servants, agents, privies and all those claiming through them to immediately vacate all the illegal structures developed or undergoing construction on the claimant’s land covered by 21 square miles.
(f) An Order declaring as illegal, null and void all the previous sale, alienation of the land/part of the land belonging to the claimant to any person claiming through the defendants which is covered by the 21 square miles.”
In their Amended Notice of Appeal Appellants formulated four (4) grounds of Appeal, as follows, alleging each to be error in law: – (pages 2 to 4)
(1) ERROR IN LAW
The learned trial judge erred in law when she held while interpreting section 37 of Kwara State Polytechnic law, thus;
“There is no compulsion on the Governor to publish in a State Gazette all the lands vested in the Kwara State Polytechnic, the claimant. Thus the claimant is not required to show, attach or plead any evidence of any gazette or Governor’s order showing that the defendants/applicants land have been vested on the claimants/respondents.”
PARTICULARS
(i) Section 37 of the Kwara State Polytechnic law, 1994 provides thus:
“The Governor may by order in the state Gazette transfer all or any of the properties, whether movable or immovable for the time being held in use by or being applied for the purposes of the Polytechnic to the said Polytechnic and so from the date of such order, any property so transferred under the said order shall, without further assurance, vest in the Polytechnic and shall be sued for the purpose of the Polytechnic.”
(ii) The Governor made no order of transfer and none was pleaded in the claimant’s pleading and no evidence of its existence before the lower court.
(iii) Transfer of Land, under the law, must be in writing and oral evidence of such land transaction is not allowable in law.
2. ERROR IN LAW
The learned trial judge erred in law when she held that the provision of Section 42 of the Kwara State Polytechnic law, does not relate or talk about dispute arising or relating to the property or immovable of the Polytechnic as submitted whether movable or immovable of the Polytechnic as submitted by the learned counsel to the defendants/appellants.
PARTICULARS
(i) Section 42 provides;
“in the event of any doubt or dispute arising at any time regarding the meaning of the provision of this edict, the matter shall be referred to the Governor, who may take such advice and make such decision therein as he deems fit and such decisions shall be binding upon the authorities, staff and students of the Polytechnic.”
(ii) Compliance with Section 42 is a condition precedent to a valid action before a court of law.
(iii) There was no compliance at all with provision of Section 42 before the claimant instituted this action.
3. ERROR IN LAW
The learned trial judge erred in law when she held that once the parties involved are properly presented before the court, the court has jurisdiction, as the issue of title to the disputed land, does not affect jurisdiction but only meant to be decided upon in course of trial.
PARTICULARS
(i) The claimant did not plead any document or tender any pursuant to the principle in IDUNDUN V. OKUMAGBA (1976) 9 – 10 S.C. 227 to show a prima facie case of ownership to the disputed villages’ lands, since possessory right had been on the villagers for the past 32 years.
(ii) The claimant’s absence of title documents either in their pleading or evidence in support in a case of this nature, show that there is no justiceable cause of action.
(iii) Where there is no justiceable cause of action, the court lacks jurisdiction and the case is liable to be dismissed.
4. ERROR IN LAW
The learned trial judge erred in law (sic) he did not raise suo motu for resolution, the issue of incompetence of the action under Kwara State limitation law.
PARTICULARS
(i) Section 4 of the Kwara State Limitation Law, 1994 provides as follows:
“No action shall be brought by any person to recover any land after the expiration of 10 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.”
(ii) In their statement of claim before the lower court, the claimant/1st respondent avers that she is the owner of the land measuring 21sq. miles with all the appurtenances which land was compulsorily acquired for the citing of the Claimant’s permanent site by the Kwara State Government sometimes in 1974 and all the customary land holders/Occupiers numbering 122 (One Hundred and Twenty Two names were adequately compensated for by the Kwara State Government in 1974.
(iii) The appellants have been in peaceful possession of the land in dispute before 1973.
(iv) The respondents failed and/or neglected to institute this action until 19th July, 2005 when the time prescribed for commencement of action for recovery of land under Section 4 of the Kwara State Limitation Law, 1994 has expired.
(v) The question whether an action is instituted within the time laid down by the limitation law is a condition precedent which must be met before a court can assume jurisdiction in any matter. It is therefore, an issue that touches the jurisdiction of the court.”
The Relief the sought was for us to
(1) Allow the appeal and
(2) Dismiss the Claimant/1st Respondent’s claims both in the writ of summons and the statement of claim before the lower Court.
In their Brief, filed on 10/2/2009, the Appellants distilled four (4) issues for determination as follows:
“(1) whether the claimant/1st Respondent’s suit as constituted before the trial court is statute barred.
(2) Whether the trial judge was right in holding that there is no compulsion on the Governor to publish in the Kwara State gazette all the lands vested in the Kwara State Polytechnic, the Claimant/1st Respondent, contrary to the mandatory provisions in the Kwara State Polytechnic Law of Kwara State 1994.
(3) Whether compliance with provision of Section 42 of the Kwara State Polytechnic Law is a condition precedent, and if so, whether non-compliance is fatal to the validity of the action before the lower Court.
(4) Whether absence of title documents in a land dispute of this nature invalidates this action or makes it non-justiceable (sic) and in effect robs this court of is much desired jurisdiction.”
The 1st Respondent filed its brief of argument on 2/4/2009 and the same was deemed duly filed on 24/1/2012, the day the appeal was heard. The 1st Respondent distilled three issues for determination as follows:
“(1) whether the trial Court was right by not importing extraneous matters in the interpretation given to Sections 37, and 42 of the Kwara State Polytechnic Law (Grounds 1 and 2).
(2) Whether this case is caught by statute of Limitations so as to rob the Lower Court from assuming jurisdiction – (Ground 4).
(3) Whether the trial Court was right in concluding that she had jurisdiction to entertain the suit as it were – (Ground 3).
The 1st Respondent also raised a preliminary objection in the Respondent’s brief and argued the objection in the Respondents’ Brief but did not, however, argue the Preliminary objection at the hearing formerly.
Appellants did not relate their grounds of appeal to their issues for determination in the Brief of argument, but did so at the hearing upon the Appellants Counsel’s attention being called to the defect, by the Court. They related their issue 1 to ground 1, issue 2 to ground 3; issue 3 to ground 2 and issue 4 ground 4.
Appellant’s Counsel, in his reply, at the hearing of the appeal, urged us to ignore the 1st Respondent’s preliminary objection that the same was incompetent, having not been filed as required by Order 10 Rule 1 of the Court of Appeal Rules, 2011. He relied on the case of Ogbimi vs. NC Ltd. (2006) 4 SC (Pt.1) 110 at 114; Oforkire v. Maduike (2003) 1 SC (Pt. 3) 66 at 80.
It was also disclosed at the hearing that the appeal had since been withdrawn against the 3rd to 5th Respondents by the Appellants, as per their motion filed on 10/3/2011 and the same was granted on 13/4/2011, and 3rd to 5th Respondents’ names struck out. The 2nd Respondent, however, remained a party, but chose not to file any Brief, despite being served with all the processes, including the hearing notice for the day’s hearing of the appeal.
Arguing the Appeal, learned Counsel for the Appellants, T.O.S. Gbadeyan Esq., (with him Mathew Obaro Esq., A.S. Oshonibare Esq., and Ibrahim Kareem Ojo Esq.,) on issue 1, submitted that the case of the Claimant/Respondent was statute barred, that the statute of Limitation prescribes the period within which an action must be commenced and legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. He relied on the case of Ebiogbe vs. NNPC (1994) 5 NWLR (Pt. 347) 649 at 653 and Shell Petroleum Dev. Co. vs. Farab (1995) 3 NWLR (PT.382) 148 AT 156/157.
Counsel said the applicable law in this case is Section 4 of the Kwara State Limitation Law, 1994 which says:
“No action shall be brought by any person to recover any land after the expiration of 10 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.”
In respect of land matters, Counsel said, the effect of limitation law is that the right of action is completely extinguished after the expiration of the prescribed period. He relied on the case of Ajibona vs. Kolawole (1996) 10 NWLR (Pt.478) 22 at 24, founded on the Lagos State Law, which Counsel said, is impair material with that of Kwara State, and it held:
“The limitation law of Lagos State on land matters does not merely deny the right of action, it completely extinguishes an existing right at the expiration of 12 (twelve) years from the date of the accrual of the right of action.”
Counsel also relied on the case of Ogoja L.G. vs. Offoboche (1996) 7 NWLR (Pt.458) 48 at 57 on when time begins to run:
“It is trite law that cause of action accrued from the date on which the incident giving rise to the cause of action accrued.” (Sanda vs. Kukawa Local Government (1991) 2 NWLR (Pt.174) 379 referred to).
Counsel added that what is needed for limitation period to commence is the absence of possession by the plaintiff and possession by the defendant and he relied on Davies vs. Ajibona (1994) 5 NWLR (Pt.343) 237 at 238.
Counsel submitted that in the instant case all the facts necessary for instituting this action against the Appellants herein have been available to the 1st respondent since 1974; that in paragraphs 4 and 5 of the 1st Respondent’s statement of claim (page 4 of the Record of Appeal) it can be noted that the Appellants have been in peaceful possession of the land in dispute before 1973, and until the institution of this action, without the respondents taking any step. He relied on paragraph 8 of the Appellant’s affidavit in support of their preliminary objection; wherein they averred:
“That the defendants/applicants had been in undisturbed procession (sic) of their respective community land before 1973 and until the institution of this action; and so there was no need to ask for Governor’s intervention as there was no dispute between the claimant and the appellants’ communities in between 1973 and the institution of this action.”
Counsel submitted that, that fact remained unchallenged as the respondent did not file any counter-affidavit against the preliminary objection; that the effect was that of admission of the Appellant’s averment. He relied on the case of Honda Palace Ltd. vs. Globe Motors Holding Ltd. (2005) 7 SC (Pt. 111) 182 at 189/190 and Haston Nig. Ltd. vs. ACB Plc. (2002) 7 SC (Pt. 11) 54.
Counsel therefore queried whether the 1st Respondent can be allowed to suddenly wake up in 2005 and claim right over the land. He proceeded to answer this in the negative, relying on the Section 4 of the Kwara State Limitation Law; saying that the 1st Respondent should have taken the action latest 1984. He relied on P.N. Udoh Trad. Co. Ltd. vs. Abore (1998) 8 NWLR (Pt. 467); that this is a pre-condition to instituting the action, and robs the Court of jurisdiction. He relied on Ita vs. Archibong (1995) 4 NWLR (Pt.387) 83 at 86.
On Issue 2 – whether the judge was right in holding that there was no compulsion on the Governor to publish in the State gazette all the lands vested in the Kwara State Polytechnic, counsel cited and relied on Section 37 of the Kwara State Polytechnic Law, 1994, which says:
“The Governor may by order in the State Gazette transfer all or any of the properties whether moveable or immoveable for the time being held in use by or being applied for the purposes of the Polytechnic to the said Polytechnic and so from the date of such order, any property so transferred under the said order shall, without further assurance, vest in the Polytechnic and shall be used for the purpose of the Polytechnic.”
Counsel however argued that the word ‘may’ in the above provision gave the Governor discretion either to transfer, or not, when interpreted literally, but added that where the governor transferred all or any of the properties held in use by or being applied for the purposes of the Polytechnic to the said Polytechnic, such transfer must be by an order published in the state gazette, that the ‘may’ has been interpreted as mandatory by our courts whenever it is used in a statute, and so should be construed as mandatory in this case, since it imposed a duty on the Governor. He relied on the case of OBOHA VS. DAFE (1994) 2 NWLR (Pt. 325) at 174, Chief J.O. Edewor vs. Chief M. Unvega & Ors. (1987) 1 NWLR (Pt. 50) 313 at 339; Mokelu vs. Fed. Commissioner of Works & Housing (1976) 1 ALL NLR (Pt.1) 276 at 282; Aluminium Manufacturing Co. (Nig.) Ltd. vs. Nigerian Ports Authority (1987) 1 NWLR (Pt.51) 475 at 487; Kotoye vs. CBN (1989) 1 NWLR (Pt. 98) 419.
Counsel submitted that the trial judge did not interpret the Section 37 of the Polytechnic law correctly. He relied on the case of Bamaiyi vs. A.G. FCD (2001) 12 NWLR (Pt. 727) 468 at 497, on the interpretation of words in a statute, where the Supreme Court (per Karibi-Whyte JSC) said:
“It is true that the word shall in the ordinary meaning of the word, connote a command, and that which must be given a compulsory meaning which is generally imperative and mandatory. It has the significance of excluding the idea of discretion to impose a duty. Where a provision provides that a thing shall be done, the natural meaning is that a pre-mandate is enjoined. Achineku vs. Ishagha (1988) 4 NWLR (Pt. 89) 411.”
On Issue 3 – Whether compliance with Section 42 of the Kwara State Polytechnic Law is a condition precedent and non-compliance fatal to the validity of the action – counsel submitted that the issue of compliance with the condition precedent is fundamental in the determination of a court’s jurisdiction. He relied on the case of A.G. Lagos State vs. Dosunmu (1989) 3 NWLR (Pt. 111) 552 at 556 to 567; A.G. Anambra State vs. A.G. Fed., (1993) 6 NWLR (Pt.302) 692 at 700; Madukolu vs. Nkemdilim (1962) 2 SCNLR 342; Ajao vs. Popoola (1986) 5 NWLR (Pt. 45) 802.
Counsel submitted that under the Law which established the 1st Respondent, all disputes which arise in respect of the property of the institution, whether moveable or immoveable must first of all be referred to the Governor of Kwara State, and it is when the Governor had tried and failed to settle the dispute that the 1st Respondent can seek remedy in Court, that pre-trial settlement by or before the Governor is a conduction precedent to a valid and well constituted action by the 1st Respondent. He relied on the case of Equamwense vs. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at 35 (per Belgore JSC):
“Where a statute prescribes a legal line of action for determination of an issue be that an administrative matter, chieftaincy matter or a matter of taxation, the aggrieved party must exhaust all the remedies in that law before going to court….. the plaintiff seemed to have jumped the stile as he avoided all avenues that availed – and went to the High Court. I am of the view that he did a wrong thing indeed. The provisions of Section 236 of the 1979 Constitution is not an open gate for all High Courts to assume jurisdiction in all subjects. All the local remedies in the Statute on every subject must be exhausted before embarking on actual Litigation in Court.”
Counsel also relied on the case of Aina vs. Jinadu (1992) 4 NWLR (Pt.233) 91 at 109 – (per Tobi JSC)-
1. “If a law requires the fulfillment of pre-condition before a particular act or substantive or main act or action is to be done, non-fulfilment of the pre-condition will be prejudicial to the party in default. By the requirements of the law he must take first things first. He cannot jump the initial hurdle set by the law itself.”
Thus, counsel submitted that by the combined provisions of Sections 37, 42 and 43 of the Polytechnic Law, 1994, it appears the mechanism set down has not been exhausted, that the 1st Respondent has jumped the stile as she avoided the Governor’s intervention dispute resolution mechanism that availed the institution, by coming straight to the court to ventilate her grievances; that that it is a wrong procedure that denies the court the most needed jurisdiction to hear and adjudicate on the matter, that the suit is not well constituted and therefore null and void.
On issue 4 – whether absence of title documents, in a land dispute of this nature, invalidates this action or makes it non-justiceable and in effect, robs this court of its much desired jurisdiction – Counsel relied on the case of Idundun vs. Okumagba (1976) 7 – 10 SC. 227, by which the Supreme Court spelt out the 5 different ways of proving ownership of land in Nigeria, Counsel submitted that throughout the statement of claim the 1st Respondent did not plead any registrable instrument as her source of title to the villages lands, that is the land in dispute; that rather the 1st Respondent placed heavy reliance on a purported survey plan made in 1973 under the Survey Law of Northern Nigeria, 1963.
Counsel urged us to resolve all the issues in favour of the Appellants and allow the Appeal.
The 1st Respondent’s counsel, Abdulrazaq Akorede Esq., on the Respondent’s issue 1 – whether the trial court was right in not importing extraneous matters in the interpretation given to Section 37 and 42 of the Kwara State Polytechnic Law, submitted that the trial judge was right as the provisions (which he reproduced) left the Governor with some discretion to act going by the use of the word ‘may’ (not ‘shall’). He relied on the case of Union Bank of Nigeria Ltd. vs. Prof. Albert Ojo Ozigi (1994) 3 SCNJ 42. He added that the court is enjoined to shun absurdity and not introduce new words where the words of a statute are clear and unambiguous (Kotoye vs. Saraki (1994) 7 – 8 SCNJ 542; Mike Omenke Obomhense vs. Richard Erhahon (1993) 7 SCNJ 479.
Counsel said that the Appellants had admitted in their Brief (paragraph 5.02) that the word ‘may’ in Section 37 of the Polytechnic Law, if interpreted literally, gave the Governor discretion as to whether or not transfer all or any of the said properties, that what is admitted needs no proof; that the cases cited and relied upon by the Appellants are irrelevant to the case of Appellants, but rather strengthen the case of the 1st Respondent.
Counsel submitted that Section 42 of the law, in particular, relates only to situation where there is dispute as regards the meaning or interpretation to be given to a particular provision; that same shall be referred to the Governor, who even has the discretionary power to accept or reject advice, and his decision shall be final; that the said Section 42 is not a condition precedent to filing an action; rather it relates to doubts or disputes regarding the meaning of any of the provisions of the Polytechnic Law.
Counsel concedes that a court must have jurisdiction to entertain a matter, but said that that is not the situation in this case; that Sections 37, 42 and 43 of the Kwara State Polytechnic law have not laid down any condition to be fulfilled by the 1st Respondent before maintaining an action; that Appellant’s arguments on the issue were mere academic exercise.
On issue 2 – whether this case is caught by statute of limitation so as to stop the lower court from assuming jurisdiction – Counsel submitted that the case was not caught by statute of limitation, that the Appellants did not have correct appraisal of the law that to determine whether statute of limitation applies in a case, the court has to determine, among other things; when the cause of action arose in order to determine whether same is caught by statute. Counsel argued that the Appellants had admitted and stated the law in paragraph 4.06 of their Brief, that the Court is only to examine the plaintiff’s claims as expressed in the writ of summons and statement of claim to determine what the cause of action is, and when it accrued; that paragraphs 4 and 5 of the statement of claim, which Appellants were even economical in reproducing, cannot be read in isolation of paragraphs 6, 7, 8, 9 and 10 of the statement of claim (page 4 of the Record, which he reproduced); that those paragraphs are explicit enough as to when the cause of action arose; that was sometime in May, 2005 – that is, two months before the filing of the writ of summons, when the peaceable possession of the 1st Respondent was challenged or interfered with by the Appellants.
Counsel further submitted that, at the stage of the Appellants’ application challenging the court’s jurisdiction, all the averments in the statement of claim were deemed correct and admitted by the defendants; that the court cannot indulge the Appellants, to-determine when the cause of action arose by reference to Appellants’ affidavit; that the Court should confine itself to the writ of summons and the statement of claim, when faced with the question of determining cause of action. He relied on the case of Dr (Mrs) Esther Aye Idachaba vs. Mr. Emmanuel Ocholia Ilona (2007) 6 NWLR (Pt.1030) 277 at 298; Prince Aye v. Buomwan Oyameda vs. The Governor of Edo State (2005) 23 WRN 34.
Counsel added that the issue of not challenging the affidavit evidence of the Appellant does not arise in this case, as the issue could not be fought by affidavit evidence. Accordingly he said the cases relied upon therein by the Appellants are not applicable.
On Issue 3 – whether the trial court was right in holding that she had jurisdiction to entertain the suit – counsel submitted in the affirmative and adopted their arguments under Issues 1 and II. Counsel added that the cases of AG Lagos State vs. Dosumu (supra) and Idundun vs. Okumagba (supra; cannot be invoked at this stage’ as the issue of title cannot be taken when hearing of the substantive matter has not commenced. Thus, talking about non production of the title documents was premature and the trial judge had to limit herself to the issues in the preliminary objection and not to delve into the substantive matter. He urged us to resolve the issues against the Appellants and dismiss the Appeal.
I shall consider this appeal on the issues as raised by the Appellants, and shall take the issues 2 and 4 together and the 1st and 3rd issues separately.
Appellants’ issue one, is that the suit was time barred as it was not brought 10 years after the cause of action accrued; that by Section 4 of the Kwara State Limitation Law, 1994, the cause of action is extinguished.
The question to settle to come to lawful conclusion on this issue is when the cause of action accrued in this case and how do we determine it?
The law is trite on this’ that to determine when the cause of action arose in suit, recourse must be had to the processes filed by the plaintiff, only to originate the suit. See Adekoya vs. F.H.A. (2008) ALL FWLR (Pt.434) 1466, ratios 5 and 6; Ethiopian Airline vs. Afribank Plc (2006) 17 NWLR (Pt.1008) 245; IFF vs. NRC (2007) 3 NWLR (Pt.1020) 28; FRIN VS. GOLD (2007) 11 NWLR (Pt. 1044) 1, ratios 3 and 4. See also the recent decision of this Court in the case of ISIAK O. MOYOSORE VS. THE GOVERNOR OF KWARA STATE (an unreported decision) Appeal No. CA/IL/M.12/2007, delivered on 3/11/201, pages 31 and 32 thereof, where we said, relying on the case of Ethiopian Airline vs. Afribank Plc (supra):
“That decision of the Apex Court is very clear on the point that once a party alleges that an action is statute barred, the Court must consider only the processes filed by the plaintiff to originate the case, namely the writ and the statement of claim, where evidence has not yet been led in the case. Adekoya vs. F.H.A. (supra) held 5 and 6. A close study of the writ of summons and the statement of claim in this case shows that the claimant never mentioned 17/6/2005 as a date of any consequence to the case”
The name situation in the above case is repeated in the instant case, where the Appellants relied on the date they speculated in their affidavit as the date the cause of action accrued, that is, 1973, to abort the trial. They had averred in paragraph 8 thereof:
“That the defendants/applicants had been in undisturbed procession (sic) of their respective community land before 1973 and until the institution of this action, and so there was no need to ask for Governor’s intervention as there was no dispute between the claimant and the appellant’s communities in between 1973 and the institution of this action.”
Appellants even urged us to hold that their said averments in the affidavit were admitted, because the 1st Respondent did not file any counter-affidavit.
That is not the circumstance the contents of an unreplied affidavit can be deemed admitted by an opponent’ as the Appellants’ affidavit and what it sought to achieve were on the wrong side of the law and completely uncalled for in the circumstances of the case of the 1st Respondent. In other words, the affidavit was completely irrelevant to the case of the 1st Respondent and did not require or deserve the honour of a reply. This is because it did not require Appellants’ affidavit to determine when the cause of action accrued.
Meanwhile, the 1st Respondent had pleaded in paragraphs 6 to 10 of its statement of claim that the Defendants (Appellants herein and others) started to challenge the 1st Respondent’s peaceable possession over the land about 2 months to the institution of the suit Paragraphs 7 and 8, in particular, averred as follows:
“(7) The claimant avers that since inception, there has been no challenges as to her title and ownership of the piece and parcel of land covering 21 square miles, until 2 (two) months ago when the claimant’s interest to expand her terrains to certain areas within the 21 square miles acquired for the claimant was challenged and restricted by the defendants, their servants, Agents, privies and all other persons claiming through them.
(8) The claimant avers that the defendants, their servants, privies and all those claiming through them flagrantly trespassed/and still trespassing unto the claimant’s land by way of selling, alienating and carrying on or further allowing to be carried on sale and construction and development of any kind or in any way, thus altering the character of the piece and parcel of land on which the claimant’s permanent site is located.”
The suit was filed on 20/7/2005, as per the writ of summons on page 2 of the Record of Appeal. Of course, when the 1st Respondent averred that “since inception there has been no challenges as to her title and ownership until two (2) months ago it should be clear that the 1st Respondent was pleading two months prior to the filing of the writ of summons, as the time the cause of action accrued.
If the Appellants had any conception with that they were to state same in their statement of defence and wait for the issue to be determined at the hearing. By filing a preliminary objection and an affidavit to state their perceived time the cause of action accrued, they were stating a case different from that of the 1st Respondent and the law cannot consider their alleged date, smuggled into the case, to construe and determine when the cause of action accrued. See again the case of ISIAK O. OMOSORE VS. GOVERNOR OF KWARA STATE (supra), page 32, where we held:
“I believe that in a civil claim relating to land, that the date which would be relevant to construe the date the cause of action accrued would be the date of alleged trespass that is 15/2/2006. Appellant filed his case on 12/5/2006 against the Respondents over the trespass and damages he alleged against them in paragraphs 12, 13, 14 and 15 of the statement of claim. He also hinted that the Respondents reacted by claiming that his land was re-allocated to the 4th and 6th Respondents, an act which the Appellants questioned. If the re-allocation of the claimant’s 4th to 6th Respondents was, in fact, done by the 1st Respondent, that becomes a ground of defence, which the Respondents must plead and lead credible evidence to prove and justify”
The issue in that case was on all fours with the instant case and cannot be decided differently. The Appellants cannot rely on the date they suggested in their affidavit to decide when the cause of action accrued.
By the authority of the case of Ethiopian Airlins vs. Afribank (supra), the determination of when a case is statute barred is very clear:
“A cause of action is thus said to be statute barred if in respect of it proceeding cannot be brought because the period laid down by the limitation law or Act had elapsed. How does one determine the period of limitation? The answer is simple – by looking at the writ of summons and 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. if the time on the writ is beyond the period allowed by the limitation law, the action is statute barred.”
The case of the claimant (the instant case) cannot therefore be statute barred, if the Appellants started their affront to the 1st Respondent’s peaceable possession of the land by 2 months to the filing of the action, that is, May, 2005.
The learned trial Judge was therefore right when he overruled the Appellant. I resolve the issue 1 against the Appellants.
Issues 2 and 4:
Issue 2 was whether the trial judge was right in holding that there was no compulsion on the Governor to publish in the Kwara State gazette all the lands vested in the Kwara state Polytechnic (the 1st Respondent) contrary to the mandatory provisions of the Kwara state Polytechnic Lay, 1994. Issue 4, was whether absence of title documents in a land dispute of this statute, invalidates this action or makes it non-justiceable (sic) and in effect robs the court of its much desired jurisdiction.
The Section 37 of the Kwara State Polytechnic Law, 1994, which the Appellants relied on to sustain the issue 2 says:
“The Governor may by order in the state Gazette transfer all or any of the properties, whether moveable or immoveable for the time being held in use by or being applied for the purpo.ses of the polytechnic to the said Polytechnic and so from the date of such order, any property also transferred under the said order shall; without further assurance, vest in the Polytechnic and shall be use d for the purpose of the Polytechnic.”
Of course, counsel on both sides had agreed that because of the use of the word ‘may’ and not ‘shall’ “there was no compulsion on the Governor to publish in a state gazette all the lands vested in the Kwara State Polytechnic – the Claimant.” (See paragraph 5.04 of the Appellants’ Brief and paragraph 7.02 of the Respondent’s Brief).
“By this section, the Governor is not mandated to transfer the moveable and immoveable properties of the
Polytechnic to it for its use through the publication of a gazette. The word used is ‘may’ and not shall and so there is no compulsion on the Governor to publish in the State gazette all the lands vested in the Kwara State Polytechnic, the claimant.”
It is strange that the Appellants still raised this issue after conceding that “there was no compulsion on the Governor to publish in a State gazette all the lands vested in the Kwara State Polytechnic – the claimant.”
By law, a ground of appeal and issue distilled therefrom must be properly located in the judgment appealed against and must challenge the validity of the ratio of the decision and form a strong and valid point of complaint against it, before an appellate court can assume jurisdiction to consider the issue. See the case of Honourable Maryati Audu Dogari vs. AG. Taraba State CA/J/243/2010 (an unreported decision of this court (Yola Division), delivered 26/5/2011; Vicito fixed Odds Ltd vs. Joseph Ojo (2010) 185 LRCN 166, ratio 1.In the light of the above, this issue was completely unnecessary, as the Appellants’ argument, referred above, did not raise any complaint against the decision but rather conceded that the Governor had discretion to publish or not to publish, in a state gazette, the properties of the 1st Respondent.
Apart from that concession by the Appellants, it can also be seen that the said issues 2 and 4 could not have validly arisen at that stage of the case, when the trial was yet to commence. It should be expected that issues relating to ascertaining and publishing of the properties of the 1st Respondent in a gazette, and of absence of documents relating to the title of the land in dispute could only arise at the point of hearing or final address by counsel, after the trial of the case on the merits!
In paragraph 9 of the statement of claim, the 1st Respondent had pleaded that the claimant “shall lead both oral and documentary evidence to support her claim to the effect that all the customary land holders/occupiers were adequately compensated for. In paragraph 4, the 1st Respondent pleaded the Survey plan evidencing the acquisition of the land for the school. In paragraph 5, it pleaded all the correspondences – payment of compensation to the Defendants, including certificates of indemnity etc. Appellants’ preliminary objection came to stop the case from being heard. At what point then did the Appellants expect the production of the title documents by the 1st Respondent?
I think this is an example of such instances that a defendant hides under the cover of challenging jurisdiction of court to, dishonestly, plot the frustration of the hearing/trial of a suit, just to buy time, by raising preliminary issues on matters that are better taken at the trial of the suit, on merit Such mischief and ambush by defendant, I believe, was what the law sought to out -law, by abolishing the demurrer proceeding. See Order 26 Rule 1 of the High Court (Civil Procedure) Rule of Kwara State, 2005; See also Okafor vs. AG Anambra State (2005) 14 NWLR (Pt.945) 210, and the case of Isiak O. Ompshore vs. Governor of Kwara State (supra), Page 26, where we said:
“I believe this (abolition of demurrer proceeding) was to check or curtail the usual tendency by the defence to resort to bubby traps and ambushing to abort trial of matters, on the merit’91E2’9180’a6”
I therefore resolve issues 2 and 4 against the Appellants, as they touched on matters that were premature and unnecessary at that stage of trial of the case
Issue 3:
“Whether compliance with provision of Section 42 of the Kwara State Polytechnic Law is a condition precedent, and if so, whether non-compliance is fatal to the validity of the action before the lower court.” Appellants had placed reliance on the case of Attorney-General of Lagos State vs. Dosumu (1989) 3 NWLR (Pt.111) 552 at 566 – 567, to show the 6 requirements a court must satisfy or be satisfied with to assume jurisdiction in a case, as follows:
“(1) That 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.
(2) Proper parties being in court
(3) The court has cognizance of the class of the case involved.
(4) The point to be decided is within its powers
(5) The court is property constituted as regards the number and qualification(s) of member(s) sitting and number and qualification(s) of member(s) sitting and
(6) The case was initiated by dug process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Counsel cited and relied on other authorities to say that “where a statute prescribes a legal line of action for determination of an issue, be that an administrative matter, chieftaincy matter, or a matter of taxation, the aggrieved party must exhaust all the remedies in that law, before going to court. Equamwense vs. Amaghizemwen (1993) 9 NWLR (Pt. 315) 1 at 35, and Aina vs. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 109.
“If a law requires the fulfillment of a pre-condition, before a particular act or substantive or main act or action is to be done, non-fulfilment of the pre-condition will be prejudicial to the party in default. By the requirement of the law he must take first things first. He cannot jump the initial hurdle set by the law itself.” (Tobi JSC).
Did Section 42 of the Kwara State Polytechnic law, 1994, stipulates pre-condition for the 1st Respondent (or Appellants) to fulfil before seeking remedy in court? The answer is No!
The section says:
“In the event of any doubt or dispute arising at any time regarding the meaning of any of the provisions of this edict, the matter shall be referred to the Governor, who may take such advice and make such decision thereon as he thinks fit and such decision shall be binding upon the authorities, staff and students of the Polytechnic.”
I noticed that the Appellants had reproduced that provision of the law in their argument on the issue, but surprisingly, refused to be properly guided and to see that what the legislation talked about was what should be done “in the event of any doubt or dispute arising, regarding the meaning of any of the provisions of this Edict, (that) the matter shall be referred to the Governor,” to give or take a decision thereon.
That certainly, cannot apply to this case, which is not one to settle doubt or dispute regarding the meaning of any of the provisions of the law establishing the 1st Respondent, but dispute over land, to ward off trespassers to the land claimed by the 1st Respondent.
Section 42 of the Kwara State Polytechnic Law, 1994, is not and cannot therefore be a condition precedent to exercising of right/power by the 1st Respondent to sue the Appellants. Appellants were therefore in grave error of misconception of that provision of the law.
The learned trial judge was accordingly, correct when she held that the provision was not a pre-condition tot eh filing of the suit.
This issue is also resolved against the Appellants.
In all, I hold that the Appellants did not appear honest in their reasons advanced to abort the trial of this case. They rather desperately wanted to frustrate or delay the trial of the substantive matter, and appear to have achieved their motive, since June, 2005, when they brought the motion to stall the case. Such unwholesome use of the legal process, for sinister motive, must be stoutly deprecated, and I so do.
This Appeal therefore fails and is, accordingly, dismissed, as I am affirm the Ruling of the learned trial judge in the Suit No. KWS/95/2005.
The Appellants shall pay the cost of this Appeal, assessed at Fifty Thousand (N50,000.00).
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
OBANDE OGBUINYA, J.C.A.: I have had a preview of the leading judgment delivered by learned brother, Ita. G. Mbaba, JCA, and I am in complete agreement with his reasons and conclusions.
It was the appellants’ contention, under issue three, that the provision of section 42 of the Kwara State Polytechnic Law created a condition-precedent the non-fulfilment of which eroded the jurisdiction of the lower court to entertain the first respondent’s action. The provision of Section 42 of the Kwara State Polytechnic Law, 1994 reads:
42. In the event of any doubt or dispute arising at any time regarding the meaning of any of the provisions of this edict, the matter shall be referred to the Governor who may take such advice and make such decision thereon as he thinks fit and such decision shall be binding upon the authorities, staff and students of the binding upon the authorities, staff and students of the polytechnic.
I have given an intimate leading to this provision, which is a semblance of arbitration role, and I cannot concern any condition precedent that must be satisfied before a party can exercise his constitutional right of access to court to ventilate his grievances. In law, “A condition-precedent is defined as one which delays the vesting of a right until the happening of an event,” see Nigercare Dev. Co. Ltd. v. A.S.W.B. (2008) 9 NWLR (Pt. 1093) 498 at 520, Per Ogbuagu, JSC.
Incontestably, where a statute prescribes internal remedies to be accomplished by a party before instituting an action, that party must exhaust those remedies, to the letter, before approaching a court for redress otherwise the jurisdiction of the court will be put in abeyance for want of completion of those local remedies, See Eguamwense v. Amaghizemwem (1993) 9 NWLR (Pt.315) 1; Aribisala v. Ogunyemi (2005) 6 NWLR (Pt. 921) 212; Ogologo v. Uche (2005) 14 NWLR (Pt. 945) 226; Owoseni v. Faloye (2005) 14 NWLR (Pt. 946) 719; Okomalu v. Akinbode (2006) 9 NWLR (Pt. 985) 338.Be that as it may, this cardinal jurisdiction point cannot be employed or invoked here, as canvassed by the appellants, in the sense that there are no such steps or procedure which the provision mandates or compels a party, the first respondent, to accomplish before proceeding to court. There is no event stipulated in that provision aimed at postponing the first respondent’s right to sue the appellants until its occurrence. On account of that void of event, the first respondent’s case, is not caught by the third ingredient of jurisdiction – “the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction” as enunciated in the case of Madukolu v. Nkemdilim (1961) 2 NSCC 474 at 379 Or (1962) 2 SCNLR 342. The provision merely assigns to the Governor, albeit an usurpation of judicial function and an infraction of the constitutional doctrine of separation of governmental powers, the power to interpret the provisions of that law in circumstances of disputations in their meanings. In effect, the alluring submissions of the appellants on this issue flies in the face of the law. I, therefore, resolve it against appellants.
In the light of the above reason, coupled with fuller reasons advanced in the leading judgment, I find the appeal drained of any merit. Consequently, I dismiss it. I abide by the orders made in the leading judgment.
Appearances
T.O.S. Gbadeyan Esq., (Mn),
Mathew Obaro Esq.,
A.S. Oshonibare Esq., and
Ibrahim Kareem – Ojo Esq.,For Appellant
AND
Abdulrazaq Akorede Esq.For Respondent
