ATTAG & ANOR v. OTEBE & ANOR (2021)

ATTAG & ANOR v. OTEBE & ANOR

(2021)LCN/15147(CA)

In The Court Of Appeal

(MAKURDI JUDICIAL DIVISION)

On Wednesday, March 31, 2021

CA/MK/151/2018

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

1. OGBE ATTAG 2. REVEREND MESHACK EJE APPELANT(S)

And

1. MR. OTEBE J.S. 2. FEDERAL MINISTRY OF WATER RESOURCES RESPONDENT(S)

RATIO

INTERPRETATION OF SECTIONS 241(1) AND 242(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) REGARDING WHEN APPEAL SHALL LIE TO THE COURT OF APPEAL AS OF RIGHT OR REQUIRE THE LEAVE OF THE COURT

To begin with, Sections 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides that, when an Appeal is as of right and when it is with leave, stipulate as follows for purposes of this case:- “241(1) An Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: (a) final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first instance; (b) where the Ground of Appeal involves questions of law alone, decisions in any civil or criminal proceedings: (c) …(d) … (e) … (f) …242(1) Subject to the provisions of Section 241 of this Constitution, an Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”In the instant case, the first Ground of the Respondents’ Preliminary Objection is that the Appellants’ Appeal is interlocutory in nature, in other words, it is not a final decision and accordingly, the leave of the Court ought to have been and must be sought before the Appeal could be commenced since the Appeal is not as of right. The controversy surrounding the distinction between an interlocutory and final Judgments/Rulings or decisions had been the subject of an avalanche of decided cases from the Supreme Court, the Court of Appeal and indeed the Courts in England from where we inherited our judicial system. For instance, in the recent Supreme Court case of Ekemezie vs. Ifeanacho & Ors. (2019) LPELR-46518 (SC) at pp.14-28 paras. B-F per C.C. Nweze, JSC; in determining a similar question as has arisen in this Appeal posited thus:- “For the resolution of the question, I refer to Omonuwa vs. Oshodin and Anor. (1985) 2 NWLR (Pt.10) 924. In that case, Karibi-Whyte, JSC, in dealing with the question, whether a decision of a Court is interlocutory or final, so extensively reviewed the authorities on the matter. His Lordship presented those principles that can aid the Court in determining whether a decision is final or interlocutory. At pages 932 et seq, His Lordship intoned thus: “The question whether a decision of a Court is interlocutory or final, has been one of perennial difficulty for the Courts. This difficulty stems from the lack of precision or certainty in the definition of the words, or the uncertainty in the judicial decisions on the issue. This has prompted Lord Denning, M.R., to suggest ‘it is impossible to lay down any principles about what is final or what is interlocutory’ – Salter Rex and Co. vs. Gbosh (1971) 2 All E.R. 565, 566; Technistudy Ltd. vs. Kelland (1976) 3 All E.R. 865. Indeed, it was suggested in the last mentioned case that, ‘the only thing to do is to go to the practice books and see what has been done in the past.’Whilst this approach may provide a useful guide, the problem marches on. I think that in a matter of this nature, despite the elusive imprecision of decided cases, the ideal is to provide a workable test for the determination of the issue, when it arises, instead of relying on examples. It is admitted that so far, the authorities on the issue are not uniform. I shall however, classify them and endeavour to suggest a test which in my opinion is acceptable in principle and workable in practice. Although, Section 277 defines the word ‘decision’ in relation to Court, as any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation, there is no definition of the words ‘final’ or ‘interlocutory’ either in the Rules of Court, Supreme Court Act, Court of Appeal Act or in the Constitution. In the circumstances, resort ought to be had to the judicial decisions.” In Gilbert vs. Endean (1878) 9 Ch. 259, 268, 269, Cotton, L.J. said: “Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted as to what is to be done in the progress of the cause, for the purpose of enabling the Court ultimately to decide upon the right of the parties.” Again, in Blakey vs. Latham (1890) 43 Ch. D at p. 25, Cotton, L.J. said: “Any order, which in my opinion, does not deal with the final rights of the parties, but merely directs how the declarations of rights already given in the final judgments are to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed in order to obtain that final decision. I do not think there is any dispute as to the correctness of the above dicta with regard to the definition of an interlocutory application and the resulting order or judgment. I accept it as the correct definition. There are also judicial definitions of what is a final judgment. In re Faithful, Ex parte Moore (1885) 14 Q.B.D. 67, Cotton, L.J., at p.629, explained what he said in Ex parte Chinery 12 Q.B.D. 342 as to what is a final judgment. He said: I think we ought to give to the words ‘final judgment’ in this subsection, their strict and proper meaning i.e. a judgment obtained in an action by what a previously existing liability of the Defendant to the Plaintiff is ascertained or established ‘unless there is something to show the use of the words in an extended sense.’ I think the definition of Lopes, L.J. in Salaman and Ors. vs. Warner (1891) 1 QB 734 at p.736, would seem to me, the same but is more precise. His Lordship said: “I think a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties.”This case followed the earlier decision of Standard Discount Co. vs. La Grange (1877) 3 CPD.67. In Blakey vs. Latham (1890) 43 Ch. D 23 C.A., Cotton, L.J., construing the Rules of the Supreme Court, 1883, Order LVIII R.15 said: “No order, judgment or other proceeding can be final, which does not at once affect the status of the parties, for whichever side the decision may be given, so that if it is given for the Plaintiff it is conclusive against the Defendant, and if it is given for the Defendant, it is conclusive against the Plaintiff.” His Lordship went on to add at p.25: “I cannot help thinking that no order in an action will be final unless a decision upon the Application out of which it arises, but given in favour of the other party to the action would have determined the matter in dispute.” The erudite Law Lord of the Supreme Court of Nigeria continuing in his analysis cited the locus classicus of Bozson vs. Altrincham Urban District Council (1903) 1 K.B. 547 where Lord Alverstone, C.J., agreeing with the Earl of Halsbury, L.C., said at pp.549 at 550: “It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order: but if it does not, it is then in my opinion an interlocutory order.” See, also, Egerton and Ors. vs. Shiley (1949) 1 KB. 107. It would seem clear from the cases and the dicta cited that two tests for determining what is interlocutory or what is final have emerged from the cases. There are the cases which adopt the nature of the application to the Court as the determining factor whether the judgment or order is interlocutory or final, and there are others which consider the nature of the order made. Whereas Gilbert vs. Endean; Blakey vs. Latham (supra); Salter Rex and Co. vs. Gbosh (supra); The Technistudy Ltd. vs. Kelland (1976) 3 All E.R. 632 represent the first view, Salaman vs. Warner (supra); Bozson vs. Altrincham UDC (supra); Blay and Ors. vs. Solomon (1947) 12 WACA 175, represent the second view. It seems clear to me from the cases in this jurisdiction, that the test in the second class of cases has been adopted and applied. The test laid down by Lord Alverstone in Bozson vs. Altrincham U.D.C. (supra) has been consistently applied.” Guided by the above dicta of my Lord, C.C. Nweze, JSC; which I adopt as mine in-toto, the Ruling or Order of the learned W.I. Kpochi, J., delivered on the 19th of January, 2018, wherein he held that, the Court below had no jurisdiction to entertain the Appellants’ suit thereby striking out the suit, had finally disposed of the rights of the parties as this is not a situation where a suit is struck out for non-compliance with procedural requirement(s) in which case, the suit is preserved in the bosom of the Court until such requirement is fulfilled before resuscitating or re-listing same. In the instant case, since the Court terminated the suit of the Appellants in limine the rights of the Parties have been determined finally and accordingly this Appeal is not interlocutory but final in nature. From the authorities above cited, it is clear and indubitable that the Appellants’ Appeal is as of right as provided under Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the Appellants did not need the leave of the lower Court or the Court of Appeal to appeal against that Ruling. In Metuh vs. FRN (2018) 10 NWLR (Pt.1628) 399 at 412-413 paras. F-B; the Supreme Court per Kekere-Ekun, JSC in his concurring judgment citing Moses & Anor. vs. Ogunlabi (1975) LPELR-1914 (SC) at 5D, Ekunola vs. C.B.N. & Anor. (2013) 15 NWLR (Pt.1377) 224 and Bukoye & Ors. vs. Adeyemo & Ors. (2016) LPELR-40852 (SC) at 10-11 B-A, (2017) 1 NWLR (Pt.1546) 173; intoned that: “In order to competently exercise the right of appeal, the Appellant must come within the provisions of the statute creating that right.” In so holding, she quoted from Sections 241(1) and 242(2) of the 1999 Constitution, as amended, which provide for appeals as of right and with leave and held that the consolidated Appeals from the Court of Appeal to the Supreme Court under consideration were interlocutory in nature having arisen from a Ruling of the trial Court on a no case submission. The rationale in so deciding is clear, in that, if the no case submission had succeeded, the Accused would be discharged, whereas, if a no case submission failed, the Accused person shall lead evidence in his defence in which case the trial is kept in abeyance until the no case submission is ruled upon one way or the other. PER IGNATIUS IGWE AGUBE, J.C.A.

POSITION OF THE LAW REGARDING HOW TO DISTINGUISH BETWEEN A GROUND OF LAW AND A GROUND OF MIXED LAW AND FACT

… the controversy surrounding the determination or distinction between grounds of law per se, grounds of mixed law and facts and those of facts alone as was explained in Nwadike vs. Ibekwe (1987) 18 NSCC (Pt.II) 1219 at 1223 and earlier cases have since been laid to rest by recent decisions of the Apex Court. For instance, in the recent Supreme Court case of Alex Nzei & Anor. vs. University of Nigeria & Ors. (2016) LPELR-42826 (SC) at pages 56-61 paragraphs D-A per Kekere-Ekun, JSC quoted with approval, the dictum of Adekeye, JSC in General Electric Co. vs. Harry Akande & Ors. (2010) 18 NWLR (Pt.1225) 596 at 623-624 paragraphs E-A; thus:- “…It has been observed on several occasions by this Court that it is often difficult to draw a distinction between a Ground of Law and a Ground of Mixed Law and fact, as the distinction is a narrow one. However, certain principles have been laid down in numerous decisions of this Court to serve as a guide. On what constitutes a Ground of Law, this Court, per Adekeye, JSC in General Electric Company vs. Harry Akande & Ors. (2010) 18 NWLR (Pt.1225) 596 at 623-624 E-A held: “The Supreme Court in their numerous decisions laid down the general principles for determining whether a Ground of Appeal is that of Law, Fact or Mixed Law and Facts. A question of law is given three distinct meanings as follows: (1) A question the Court is bound to answer in accordance with a rule of law. The question is already determined and answered by the laws. (2) That which explains what the law is. An Appeal on a question of law in which the sense means an appeal in which the question for argument and determination is what the true law is on a certain matter for example, a question relating to the construction of a statutory provision. (3) All questions within the judicial powers of a Judge to determine and not that of a jury for instance, the interpretation of documents. Any Ground of Appeal alleging misunderstanding of the lower Court of the law or misapplication of the law to the facts already proved, undisputed or admitted, or a misdirection, is a ground of law. Similarly, where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found and the Appeal Court will assume that there has been a misconception of the law – it is a ground of law.” See also: Jim-Jaja vs. C.O.P. Rivers State & Ors. (2012) LPELR-SC.97/2010; Ehinlanwo vs. Oke & Ors. (2008) 6-7 SC (Pt.II) 123; Ajuwa & Anor. Vs. SPDC Nig. Ltd. (2011) LPELR-SC.290/2007. It settled that, in order to determine whether the Grounds of Appeal are of law alone or of mixed law and facts, the Grounds of Appeal must be read together with particulars. Where the particulars are based on facts or where the Grounds of Appeal question the evaluation of evidence before the application of the law, it is a Ground of mixed law and fact. See Metal Construction (W.A.) Ltd. vs. Migliore (1990) 1 NWLR (Pt.126) 299; Odunukwe vs. Ofomata & Anor. (2010) LPELR –SC.294/2003. It was held in Metal Construction (W.A.) Ltd. vs. Migliore (supra) at 320 G that: “An Appeal in matters of fact allows investigation at the hearing of the Appeal of the evidence and the proper inferences from it whereas an Appeal on a point of law limits consideration of the Appeal to such questions as to whether facts admitted or held proved justify or permit by the rules of law a particular decision or disposal of the case before the Court…” In Shittu vs. P.A.N. Ltd. (2018) 15 NWLR (Pt.1642) 195; the Supreme Court held per Rhodes-Vivour, JSC at page 207 paras. D-G as follows:- “The Court should examine the Grounds and their particulars and identify the substance of the complaint. In that way, the Issue of whether a Ground or Appeal is of law or mixed law and fact would be resolved. Identifying a Ground of Appeal on facts is easier. Where facts warrant a determination either way it is a question of fact. It is a question of law where the Grounds show a misunderstanding of the Court below of the law or a misapplication of the law to the facts already established or admitted. Appeals on Grounds of law alone is as of right. See Section 233(2) of the Constitution. See Chief (Dr.) Pere Ajuwa & Anor. vs. The Shell Petrol Development Co. of Nig. Ltd. (2011) 12 SC (Pt.IV) p.118, (2011) 18 NWLR (Pt.1279) 797; Alhaji Atiku Abubakar & 2 Ors. vs. Alhaji Umaru Musa Yar’Adua & 5 Ors. (2008) 1 SCNJ p.549; (2008) 4 NWLR (Pt.1078) 465. It is a question of mixed law and facts where the Grounds question the evaluation of facts by the Court below before the application of the law. See Section 233(3) of the Constitution. Where the Grounds of Appeal is on facts or mixed law and fact, leave of Appeal is mandatory. It must be applied for and obtained. If no leave is applied for the Supreme Court would have no jurisdiction to hear the Appeal. See Ault & Wiborg (Nig.) Ltd. vs. Nibel Industries Ltd. (2010) 6-7 SC p.1; (2010) 16 NWLR (Pt.1220) 486; Akwiwu Motors Ltd. & Anor. vs. Dr. B.O. Songonuga (1984) 5 SC p.184; Irhabor vs. Ogaiamien (1999) 6 SCNJ p.22, (1999) 8 NWLR (Pt.616) 517.” Again, the Supreme held in Shittu vs. P.A.N. Ltd. (supra) per Peter-Odili, JSC at page 212 paras. D-F thus:- “The two scenarios have been explained or expatiated by this Court in various judicial renditions including how a Ground of Appeal is said to be of law or mixed law and facts or of facts. See Anukam vs. Anukam (2008) 1-2 SC 34 at 41-42; Tabai, JSC stated as follows: “A Ground of mixed law and facts or facts simpliciter does not necessarily become a Ground of law simply because such an appellation has been accorded it by the Appellant’s Counsel.” See also Ogbechie vs. Onochie (No.1) (1986) 2 NWLR (Pt.23) 484 at 493; Amuda vs. Adelodun (1994) 8 NWLR (Pt.360) 23 at 30. In determining into what category a Ground of Appeal falls, it has been enjoined again and again by this Court that the Court must look closely at the main Ground with the particulars thereof to see whether it is a Ground of law or mixed law and fact or fact simpliciter. This consideration stems from the fact that it is not sufficient that Counsel of the appealing litigant has branded a Ground of Appeal, a Ground of law for the Court to accept it to be so or for it to be taken as Ground of law. See Ugboaja vs. Akitoye-Sowemimo (2008) 7 SC 1 at 18; (2008) 16 NWLR (Pt.1113) 278 per Onnoghen, JSC (as he then was); Nyambi vs. Osadim (1997) 2 NWLR (Pt.485) 1 at 8; Maigoro vs. Garba (1999) 7 SC (Pt.III) 11; (1999) 10 NWLR (Pt.624) 555 at 557-561.” PER IGNATIUS IGWE AGUBE, J.C.A.

CIRCUMSTANCES UNDER WHICH A COURT WILL BE COMPETENT TO ENTERTAIN OVER A MATTER

As far as the jurisdiction of a Court is concerned, the learned Counsel to the Respondents has rightly cited the case of Madukolu vs. Nkemdilim & Ors. (1962) 2 SCNLR 341; where the Supreme Court had established the circumstances under which a Court of law, be it of first instance or appellate can be seised of the jurisdiction to entertain any suit before it, one which is 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. For the purpose of the submissions of learned Counsel on both sides, particularly that of the learned Counsel to the Respondents, the full rendition of the oft-quoted dictum of Bairamian F.J; in that landmark Supreme Court case of yore also reported in (1962) 1 All NLR 587 on the circumstances under which a Court like the Court below can exercise jurisdiction to entertain a matter is necessary. His Lordship had posited thus:- “Put briefly, a Court is competent when:- (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and (3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication. If the Court is competent, the proceedings are not a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the Appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.” As I said elsewhere, jurisdiction has been held to be the life blood to the adjudication of any action before a Court of law without which, like an animal, that has been drained of its blood and will cease to live and any attempt to resuscitate it without infusing blood into it, will be tantamount to an exercise in futility, such adjudication will be rendered null and void and of no legal consequence. See Utih vs. Onoyivwe (1991) All NWLR (Pt.166) 166; Mobil Producing (Nig.) Unltd. vs. L.A.S.E.P.A. (2002) 18 NWLR (Pt.798) 1. PER IGNATIUS IGWE AGUBE, J.C.A

POSITION OF THE LAW REGARDING THE IMPORTANCE, NATURE AND SOURCE OF JURISDICTION

Owing to the fundamental and threshold nature of jurisdiction, it can be raised as an issue at any time and even on Appeal before the Supreme Court or Court of Appeal for the first time. On the nature and source of jurisdiction, there are authorities galore from both the Supreme Court and this Court to the effect that jurisdiction is generally a creature of statute, Constitution or otherwise and that since the jurisdiction to entertain and determine a case either at the trial Court or Appellate Court are donated by statute, failure to comply with any statutory or constitutional provisions or the required prescription that the relevant laws by which a suit or claim or an Appeal may be brought, may render such a claim or Appeal incompetent and deprive such a Court of its jurisdiction to adjudicate upon the matter. Accordingly, it has also been held that, no Court has the power to confer or donate jurisdiction to itself. In the same vein, jurisdiction cannot be conferred or donated to the Court or by the parties or by their consent, for jurisdiction cannot be circumvented as it is always conferred by either statute or the Constitution. See Osi vs. Accord Party (2017) 3 NWLR (Pt.1553) 387 at 403 paras. D-F per Sanusi, JSC citing Dangana & Anor. vs. Usman & 4 Ors. (2013) 6 NWLR (Pt.1349) 50; NURTW & Anor. vs. R.T.E.A.N (2012) 1 SC (Pt.1) 119; A-G. Lagos vs. A-G. Federation (2014) 9 NWLR (Pt.1412) 217 at 254. On the types of jurisdiction, the Supreme Court again in Achonu vs. Okuwobi (2017) 14 NWLR (Pt.1584) 142 at 171 paras. B-F per Galumje, JSC; speaking in the same vein as his colleagues above, reasoned that jurisdiction of a Court simply means the power and authority conferred on it by law to adjudicate over a controversy and that there two types of jurisdiction namely (a) jurisdiction as a matter of procedural law; and (b) jurisdiction as a matter of substantive law. However, where the jurisdiction of a Court is a matter of procedural law, failure to comply with certain aspect of the procedure is a mere irregularity, which does not render the action incompetent. PER IGNATIUS IGWE AGUBE, J.C.A

WHETHER THE PUBLIC OFFICERS PROTECTION ACT APPLIES TO CASES OF RECOVERY OF LAND

… authorities abound from the Apex Court on the vexed issue whether the Public Officers Protection Act applies to recovery of land which is the main claim of the Appellants in this case. As far back as 1969 in the case of Agboola vs. Abimbola (1969) 1 All NLR 287 which was cited in Ogunlana vs. Dada (2010) 1 NWLR (Pt.1176) 534; that point was established. See again Mulima vs. Usman (2014) 16 NWLR (Pt.1432) 160; where it was held that Section 2 of the Public Officers Protection Act does not apply in cases of recovery of land. An action for recovery of land can become statute barred only if it is caught by Section 15(2)(a) of the Limitation Act which stipulates that no action by a person to recover land shall be brought after the expiration of twelve years from the date on which the rights of action occurred to the person bringing it or if it first occurred to some person whom he claims, to that person. The above provision of Limitation Act is anchored to Section 18 of the Benue State Limitation Law, even though the limitation period is given as 5 years. To nail the coffin of the Respondents’ case, in the recent Supreme Court case of Hajia Yinusa Bakari vs. Deaconess (Mrs) Felicia Arinola Ogundipe & Ors. b(2020) LPELR-49571 (SC); the Apex Court held at pp.21-22, paras. F-B per Rhodes-Vivour, JSC thus:- “It is without dispute that this is an action for recovery of land/House occupied by the 1st Respondent from which she was thrown out. She wants her house back and for her house to be given to her in accordance with the Monetization Policy. It is now settled that Section 2 of the Public Officers (Protection) Act does not apply to cases of recovery of land. See Salako vs. LEDB 20 NLR p.169. The submission of learned Counsel for the 1st Respondent was therefore well taken. This suit is not statute barred since Section 2 of the Public Officers (Protection) Act does not apply to it.” See also CIL Risk & Asset Management Ltd. vs. Ekiti State Government & Ors. (2020) LPELR-49565 (SC) at pp.6-9 paras. E-C per Eko, JSC; NPA vs. Construzioni Genrali F.C.S (1974) 9 NSCC 622; (1969) 1 All NLR (Pt.2) 463 and Bankole vs. NBL (1969) NCLR 385 at 390. PER IGNATIUS IGWE AGUBE, J.C.A

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgment): By a Writ of Summons dated 21st February, 2014 and filed same date and the accompanying Statement of Claim dated the 30th of January, 2014 and filed on 21st February, 2014, the Appellants as Plaintiffs sought for the following Reliefs at paragraph 35 thus:-
“35. WHEREOF the Plaintiffs claim against the Defendants as follows:-
(a) A declaration that the Plaintiffs are the Customary owners of all that parcel of farmland and its economic trees situate and lying to the Western part of Otobi-Akpa Village measuring about 14-15 hectares with boundaries as follows:
North: – with the farmland of Uga Dan.
South: – with the farmland of Oko Kanta.
West: – with the farmland of Agome Arisa.
East: – with the farmland of Odeh Onu.
(b) A declaration that the Plaintiffs are deemed holders of a Right of Occupancy over the said portion of the farmland and its economic tress to the exclusion of the Defendants and thus, entitled to peaceful and quiet enjoyment of same.
(c) A declaration that the unilateral trespass into the farmland of the

Plaintiffs by the Defendants to destroy their economic trees (i.e. 402 stands of palm trees and other farm produce) without a prior notice of acquisition or any acquisition is a breach of the fundamental right of the Plaintiffs to own and hold lands in Nigeria and thus, null and void abi nitio.
(d) A declaration that the entry of the Defendants into the farmland of the Plaintiffs without their consent and authority first sought and had to destroy their economic trees is a trespass, illegal, unconstitutional, null and void.
(e) A declaration that no proper acquisition of the farmland of the Plaintiffs was done in compliance with the provisions of the 1999 Constitution of the Federal Republic of Nigeria and the Land Use Act and hence, null and void.
(f) An Order directing the Defendants to pay the sum of N5,628,000.00 being the earning of the Plaintiffs for the year 2012 and 2013 due to the destruction of the 402 palm trees.
(g) An Order directing the Defendants to pay to the Plaintiffs the sum of N80,000,000.00 for depriving them of the benefit of using the farmland in perpetuity.
(h) An Order directing the Defendants to pay to the

Plaintiffs the sum of N84,420,000.00 being the amount the Plaintiffs would have earned for the next 30 years from the sale of the fruits of the 402 palm trees.
(i) The sum of N100,000,000.00 as general damages for the pains, psychological trauma, embarrassment and hardship caused the Plaintiffs by the act of the Defendants.
(j) Cost of this action.”
See pages 2 and 3 and pages 4-9 of the Records.

Accompanying the Writ of Summons and Statement of Claim were the Statements on Oath of Ogbe Attag, Reverend Meshack Eje; Emmanuel Attah and Mr. Anoibi Odee even though the first two were mistakenly listed as 1st and 2nd Defendants at pages 10-16 and 17-23 of the Records. Also accompanying the Originating processes were the Lists of Witnesses and Exhibits sought to be called and relied upon at the Trial. See altogether at pages 10-45 of the Records.

Upon receipt of the Originating Processes of the Plaintiffs, the learned Counsel to the Defendants – P.C. Mbam, Esq. of the Federal Ministry of Water Resources, Headquarters, Area 1 (One), Garki-Abuja filed a Memorandum of Conditional Appearance on the 23rd day of April, 2014. On

that same date the learned Counsel to the Defendants filed a Motion on Notice praying the Court for:
“(1) An Order of the Honourable Court dismissing/striking out the Suit for lack of jurisdiction.
(2) And for such further Order or Orders as the Honourable Court may deem fit to make.”

The said Motion was supported by an Affidavit of 4 paragraphs deposed to by one Mustapha Mohammed of the Legal Unit of the Federal Ministry of Water Resources, Abuja and accompanied by a Written Address. See pages 76-84 of the Supplementary Record of Appeal transmitted to this Court on the 19th of August, 2019. In spite of the Notice of Preliminary Objection, the Defendants never the less filed their Joint Statement of Defence on the same 23rd April, 2014 with Defendants’ Witnesses Statement on Oath of Mr. Otebe J.S. and Chief Emmanuel Odaba. Also accompanying the Joint Statement of Defence, were the Lists of Witnesses and Exhibits sought to be called and relied upon at the Trial of the case. See pages 85 to 131 of the Additional/Supplementary Records.

All the processes above mentioned were filed in the Federal High Court, Makurdi Division

where the suit was initially commenced by the Plaintiffs.

I have searched through the Records but cannot find where the Plaintiffs filed their Counter-Affidavit and Written Address in response to the Motion filed by the learned Counsel to the Defendants seeking for the dismissal or striking out the suit then pending before the Federal High Court for want of jurisdiction. I can also not find where the said Motion was heard before the Federal High Court, Makurdi.

However, upon a perusal of pages 115-121 of the Records, the Ruling in that Motion was delivered on the 26th day of June, 2014 by Honourable Justice Binta F.M. Nyako in Suit No. FHC/MKD/CS/10/2014. At pages 6/120 lines 15-19 to 7/121 lines 1-10 of the Ruling/Records, the learned Trial Judge held thus:-
“It is obvious from the Plaintiffs’ Claim that the principal Claims are declaration to title to land. The alleged breach of Fundamental Rights is ancillary to the title to land.
On the authority of Adetayo and Ademola (supra), the Federal High Court has no jurisdiction over the subject-matter of land; so, even where the parties are the agency of the Federal Government,

the Federal High Court will not have jurisdiction over the Claim.
Consequently, upon this, I find that Federal High Court has no jurisdiction over land matter which is the principal claim. By the provisions of Section 22(2) of the Federal High Court Act, where the Federal High Court finds that it has no jurisdiction over a case, the order to make is one transferring the case to the Court best vested with jurisdiction which in this case is the High Court of Benue State.
Consequently, I hereby transfer this case to the High Court of Benue State vested with jurisdiction.”

The enrolled order of transfer is at pages 122 to 124 of the “Substantive Record of Appeal” and subsequently upon the transfer from the Federal High Court, the Chief Judge of Benue State (then the Honourable Justice Iorhemen Hwande) also made an Order of Transfer of the suit which was assigned to the Honourable Justice M.A. Abounu (see page 68 of the main Record of Appeal) and then to Hon. Justice W.I. Kpochi (see page 151 of the Records). Subsequently, the Plaintiffs’ Reply to the Statement of Defence and the Further 1st Plaintiff’s, 2nd

Plaintiff’s and Emmanuel Attah’s Witnesses Statements the clean copies which can be found at pages 95 to 114 of the Original Record of Appeal were filed.

In respect of the Appeal before this Court, it would be recalled that the Defendants pursuant to Orders 44 Rule 4 and 39 Rule 4 of the Benue State High Court (Civil Procedure) Rules, 2007 and under the inherent jurisdiction of the Court below on the 24th day of July, 2015 brought/filed a Notice of Preliminary Objection to the effect that, before or at the hearing of the Plaintiffs’ suit, they (1st and 2nd Defendants) shall be asking that the suit be struck out and be dismissed in its entirety for incompetence.

The grounds upon which the Notice was predicated were stated as follows:-
“(i) The Court lacks jurisdiction to hear and entertain this suit against the 1st Defendant same having commenced more than 3 months after the cause of action arose, thereby becoming statute barred.
(ii) The Court lacks jurisdiction to hear and entertain this suit against the 2nd Defendant same not being a juristic person.
AND TAKE NOTICE that at the hearing of this Objection, the

1st and 2nd Defendants shall rely on all the processes filed in this action.” See pages 152 and 153 of the Records.

The Notice of Preliminary Objection was supported by a Written Address as can be found at pages 154-161 of the Records and upon service of same on the Plaintiffs, they filed their Response to Notice of Preliminary Objection dated the 22nd day of July, 2015 on the 24th of July, 2015. See pages 162-169 of the Records.

By a Motion dated the 13th of November, 2015 but filed on the 16th day of November, 2015 the Defendants sought for leave of the Court to file and serve their Reply on Points of Law to the Response of the Plaintiffs to the Preliminary Objection on the Plaintiffs which was out of time. The Motion, Affidavit in Support and a Written Address can be found at pages 125-133 while the Reply on Points of Law (Clean Copy thereof is at pages 134-136 of the Records).

On the 14th day of September, 2016, the substantive case had come before the Honourable Justice W.I. Kpochi but same was adjourned to 6th December, 2016, 6th April, 2017, and it was not until the 25th day of May, 2017 that the respective Addresses for and against the

Preliminary Objection were adopted and Ruling on it adjourned to the 19th of July, 2017. However, from what can be seen at pages 175 to 180 of the Records (particularly at page 179 of the Records), the Ruling was subsequently delivered on the 19th day of January, 2018 by the Honourable Justice W.I. Kpochi. In his said Ruling, the learned trial Judge on the first Ground of the Objection held at page 177 lines 18-25 to 178 lines 1-15 of the Records (pages 8 and 9 of the Ruling) that:-
“By the combined effect of paragraphs 11 and 17 of the Statement of Claim, these acts of trespass and destruction of the Plaintiffs’ claimed property on the land started in 2011. No specific date is stated but by paragraph 17 of the Statement of Claim it was by 15th December, 2011 that the 1st Defendant brought a cheque for the sum of N61,400.00 to the Plaintiffs as part of compensation for the land containing the 402 stands of palm trees destroyed on the land which the Plaintiffs considered as inadequate.
For all intents and purposes at this point, the cause of action actually accrued and it was no use for the Plaintiffs to go back to slumber to belatedly sue

the 1st and 2nd Defendants in 2014. Clearly, the main grouse of the Plaintiffs in the purported unlawful entry upon their land and the destruction of their 402 stands of palm trees as far back as 2011. This is the bedrock of their suit and it cannot be gainsaid that the cause of action accrued later than 2011, let alone 2014 as meekly contended by the Plaintiffs. Since the parties are in agreement that 1st Defendant is a public officer and I have resolved that the cause of action accrued in 2011, it goes without saying that the suit commenced was against the 1st Defendant in 2014 is clearly incompetent since it commenced more than three (3) months after the accrual of the cause of action. The Court therefore lacks jurisdiction to entertain same and I accordingly strike out the suit as it relates to the 1st Defendant.”

On the second Ground of the Objection which was that the 2nd Defendant (the Federal Ministry of Water Resources) is not a juristic person such that the Court lacked the jurisdiction to proceed and hear the case against the 2nd Defendant, the learned trial Judge placed reliance on the case of S.D. Agboola & 2 Ors. vs. Gabriel Saibu & Anor.

(1991) 2 NWLR (Pt.175) 576 to the effect that:- “The Federal Ministry of Science and Technology is not a juristic person that can sue and be sued….” and held that as a corollary, the Federal Ministry of Water Resources being a sister Ministry of the Federal Government of Nigeria could not be otherwise (that is a juristic person capable of suing and be sued). According to the learned trial Judge, the basis for this reasoning appears not farfetched since the Federal Ministry of Water Resources is not created by Statute (Law) nor registered under the Corporate Affairs Commission so it is not a body Corporate with perpetual succession. In his further view:-
“At best, it is a creation of an executive fiat so same can be merged with any other Ministry at the discretion of the executive. The decision in S.D. Agboola’s case (supra) has settled the matter and I shall not look elsewhere.
Following from the above, it is my candid view that this Court has no jurisdiction to entertain this suit against the 2nd Defendant. The foregoing leads me inexorably to an Order striking out this suit in it entirety. It is so ordered.”

The Plaintiffs being dissatisfied with the Ruling of the learned trial Judge, have appealed by a Notice of Appeal dated the 2nd of February, 2018 and filed on the 5th day of February, 2018 anchored on three (3) grounds as set out hereunder albeit without their respective particulars to wit:-
“GROUNDS OF APPEAL:
GROUND ONE:
The Ruling of the learned trial Judge in respect of the 1st Respondent is unreasonable, unwarranted and against the weight of evidence.
GROUND TWO:
The trial Judge erred in law when he said: “By the combined effect of paragraphs 11 and 17 of the Statement of Claim, these acts of trespass and destruction of the Plaintiffs’ claimed property on the land started in 2011.”
GROUND THREE:
The trial Judge erred in law when he held that: “For all intents and purpose, at this point the cause of action actually accrued and it was no use for the Plaintiffs to go back to slumber to belatedly sue the 1st and 2nd Defendants in 2014. Clearly, the grouse of the Plaintiffs is the purported unlawful entry upon their land and the destruction of their 402 stands of palm trees

as far back as 2011. This is the bedrock of their suit and it cannot be gainsaid that the cause of action accrued later than 2011, let alone in 2014 as meekly contended by the Plaintiffs. Since the parties are in agreement that the 1st Defendant is a Public Officer and I have resolved that the cause of action accrued in 2011, it goes without saying that the suit commenced against the 1st Defendant in 2011 is clearly incompetent since it was commenced more than three (3) months after the accrual of cause of action.”

RELIEFS SOUGH FROM THE COURT OF APPEAL:
“Allowing the Appeal and setting aside the Ruling of the High Court 1, Otukpo in Benue State presided over by Hon. Justice W.I. Kpochi and delivered on the 19th January, 2018, in Suit No.OHC/61/2014.”

Upon transmission of the Records and entry of the Appeal, Briefs of Argument were filed and exchanged by the respective learned Counsel to the Parties. In the Brief of Argument dated the 14th of May, 2019 but filed on the 17th day of May, 2019 as settled A.A. Sule, Esq. a sole issue was distilled for determination from the 3 (three) Grounds of Appeal couched as reproduced

hereunder thus:-
“WHETHER THE LOWER TRIAL COURT MADE A PROPER APPROACH TO THE APPLICABLE RULES OF LAW AND EVIDENCE ON FACTS, BEFORE ITS JUDGMENT?”

Having received the Appellants’ Brief of Argument, the Respondents’ Notice of Preliminary Objection together with their Respondents’ Brief of Argument dated 19th of November, 2020 were filed same date. Upon the receipt of the Respondents’ Brief of Argument and Notice of Preliminary Objection, the Appellants Reply Brief dated 29th January, 2021 was filed on the 1st of February, 2021. In the Argument in Support of the Preliminary Objection as can be gleaned from pages 3-6 of their Brief of Argument, the learned Counsel to the Respondents – P.C. Mbam, Esq. who settled same distilled a single issue while at page 1 of the said Respondents’ Brief of Argument, the sole issue nominated by the learned Counsel to the Appellants was adopted. For purposes of emphasis, issue for determination on the Notice of Preliminary Objection states thus:-
“WHETHER THIS APPEAL IS INCOMPETENT IN VIEW OF THE OBVIOUS BREACH OF THE PROVISIONS OF THE CONSTITUTION OF THE FEDERAL

REPUBLIC OF Nigeria, 1999 (AS AMENDED) AND COURT OF APPEAL ACT, 2004?”

ARGUMENTS OF LEARNED COUNSEL ON THE ISSUES DISTILLED FOR DETERMINATION:
ARGUMENTS OF THE LEARNED COUNSEL TO THE APPELLANTS ON THEIR SOLE ISSUE:
“WHETHER THE LOWER TRIAL COURT MADE A PROPER APPROACH TO THE RULES OF LAW AND EVIDENCE ON FACTS BEFORE ITS JUDGMENT? (DISTILLED FROM GROUNDS 1, 2 AND 3 OF THE NOTICE OF APPEAL).”

Arguing the issue, the learned Counsel to the Appellants prefaced his submissions by answering the question posed above in the negative. Firstly, it was submitted that Limitation Laws are part of the adjectival procedural Rules of a particular State; the implication according to him, being that the applicable Rules of procedure relating to Statutes of Limitation to cause of action in a State are the State’s Laws of Limitation and not that of others. For this submission he cited and relied on Raleigh Industries (Nig.) Ltd. vs. Paul Okwu Nwaiwu (1994) 4 NWLR (Pt.341) p.760 at pp.771-772; to further assert that it follows that the Public Officers’ Protection Act, Cap. P41, LFN, 2004; does not apply in this matter as was wrongly

applied by the Court below.

In his view, the applicable law to the cause now on Appeal, is the Benue State Limitation Law, Cap.96, Laws of Benue State, 2004; by Sections 18 and 24 thereof, which provisions he reproduced in paragraphs 2 and 3, page 4 of the Appellants’ Brief of Argument as being applicable to the facts and circumstances of this case. The learned Counsel then maintained that if the lower Court found at page 177 of the Records that the cause action arose in 2011, then by Section 18 of the Limitation Law as quoted which says that the limitation period for the cause of action before him is 5 (five) years, then the action of the Appellants had not become statute barred.

He further argued that the learned trial Judge confirmed the issuance of N61,400.00 cheque as part of compensation but was very quiet about the controversy generated by the issued cheque in that from the Appellant’s, they were convinced that a fraud was perpetuated on them (the Appellants) which clearance of that issue is central and key to the application of any Statute of Limitation for the protection of the 1st Respondent for without clearing the issue, the

Court could/cannot be in a position to determine whether or not 1st Defendant/Respondent is protected by the Limitation Law.National Revenue Mobilization and 2 Ors. vs. Ajibola Johnson & 10 Ors. (2019) 2 NWLR (Pt.1656) 247 at pp.269-270 paras. H-A (SC); the dictum of the Apex Court which quoted at page 5 paragraph 1 of the Appellants’ Brief of Argument. He maintained that, without clearing the haze of fraud around the 1st Respondent it became hasty on the part of the lower Court to have struck out the Appellants’ suit.

On the second ground of the Preliminary Objection upon which the Court below came to the conclusion that the 2nd Respondent is not a juristic person to be sued such that the Appellants’ suit could not be sustained against it, the learned Counsel was surprised that the Court below instead of merely striking out the name of the 2nd Respondent from the suit proceeded to strike out the entire suit.

He therefore submitted that there is no legal basis for striking out the suit, for the striking out of the case against the 2nd Respondent in no way affected the 1st Respondent where there is evidence before the Honourable

Court that the 1st Respondent was given a cheque by the 2nd Respondent or its principal for payment to the Appellants which cheque was in some very irregular manner stinted away along with its value suggestive of some fraudulent dealings which required some answers from the 1st Respondent but was eventually stultified by the premature striking out of the Appellants’ suit in the Court below.

In the circumstances, we were urged on all the arguments canvassed, to hold that the striking out of the Appellants’ case is unlawful, allow this Appeal and set aside the Ruling of the lower Court or in the alternative enter judgment for the Appellants or yet alternatively make an Order for retrial of the matter in the lower Court before a different Judge.

ARGUMENTS OF THE LEARNED COUNSEL TO THE RESPONDENTS ON THE PRELIMINARY OBJECTION AND THE SUBSTANTIVE SOLE ISSUE FOR DETERMINATION OF THE PRELIMINARY OBJECTION:
“WHETHER THIS APPEAL IS INCOMPETENT IN VIEW OF THE OBVIOUS BREACH OF THE PROVISIONS OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF Nigeria, 1999 (AS AMENDED) AND COURT OF APPEAL ACT, 2004?”

On this sole issue for

determination of the Preliminary Objection, the learned Counsel to the Respondents/Objectors submitted that this Appeal is incompetent because, it is an obvious breach of Sections 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as a perusal of the Notice of Appeal filed by the Appellants (vide pages 181 and 184 of the Records), would reveal that this Appeal is against an Interlocutory Ruling delivered by the learned trial Judge in the course of resolving the Preliminary Objection filed by the Respondents (pages 175 to 180 refer) and that being the case, leave of the lower Court or the Court of Appeal is a condition precedent for the Appeal to be competent.

Arguing on the second ground for the Preliminary Objection which is that the Appeal is on mixed Law and facts, he pointed to Grounds 2 and 3 of the Notice of Appeal which are also clear that they need the leave of the lower Court or this Honourable Court as a pre-condition before commencing the Appeal and having failed to obtain such leave, the Appeal is incompetent. For the above submissions, reliance was placed on Nigercare Development Company Ltd. vs.Adamawa State Water Board

(2008) LPELR-1997 (SC); where the Supreme Court on deciding on the effect of non-competence with condition-precedent, held as quoted in paragraph 16.0 at page 4 of the Respondents’ Brief of Argument.

The learned Counsel also quoted from the decision in Shugaba vs. UBN Plc (1999) LPELR-3068 (SC); on the same principle and relied further on the authorities of Saude vs. Abdullahi (1989) 4 NWLR (Pt.116) 387; Raymond Obeta & Anor. vs. Josephat Maduabuchi Okpe (1996) NWLR (Pt.473) 401 at 445; to re-emphasize that the Appellants having failed to fulfill the condition precedent have rendered their Appeal incompetent. He re-emphasized that failure of the Appellants to obtain leave before filing the Grounds of Appeal on mixed Law and Facts is fatal to their Appeal before this Court. Citing again, from the decisions in Zakawawu I. Garuba & Ors. vs. Hon. Ehi Bright Omokhodion & Ors. (2010) LPELR-9088 (CA); Deros Maritime Ltd. vs. M.V. MSC “Apapa” & Ors. (2014) LPELR-22720 (CA) and Onigbenden & Anor. vs. Balogun (1975) 1 All NLR 233; on the effect of failure to seek leave when leave is required by an

enactment before launching the litigation and the effect of failure to comply with the provisions of the Constitution above cited as was decided in Kalu vs. Victor Odili (1992) LPELR-1653 (SC) and Bronik Motors Ltd. vs. Wema Bank Ltd. (1983) 1 SCNLR 296; on the trite position of the law that a Court must have jurisdiction in order to be able to exercise judicial powers over an issue, he insisted that this Court has been robbed of the jurisdiction to hear the Appellants’ Appeal.

In conclusion, the learned Counsel to the Respondents urged us to resolve the sole issue on the Preliminary Objection in favour of the Respondents for non-compliance with Sections 241(1) and 242(1) of the Constitution and the Court of Appeal Act, 2004. He finally prayed us to strike out the Appeal for lack of jurisdiction to hear and determine same and for being incompetent.

ARGUMENT ON THE SOLE SUBSTANTIVE ISSUE:
“WHETHER THE LOWER COURT MADE A PROPER APPROACH TO THE APPLICABLE RULES OF LAW AND EVIDENCE ON THE FACTS, BEFORE ITS JUDGMENT?”
The learned Counsel to the Respondents contended prefatorily that the sole issue distilled from the three

Grounds of Appeal arose from the learned Counsel to the Appellants, misunderstanding of the role of the Court below where a Preliminary Objection is raised challenging the competence of the Court to hear and determine a case against the two parties before it. He commended the case of Madukolu & Ors. vs. Nkemdilim & Ors. (1962) 2 SCNLR 341; where the Supreme Court established the conditions under which Court can validly assume jurisdiction to hear a matter and that for the Honourable Trial Judge to assume jurisdiction, he must ensure that there is no element of the case that robs the Court of jurisdiction.

The learned Counsel noted that one of the elements estopped by the Supreme Court that must be present before a Court can validly assume jurisdiction is that the subject-matter of the case must be within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction. In his view, the Public Officers Protection Act, Cap. P.41, LFN, 2004, which was relied upon based on the fact that the cause of action arose in 2011 while the suit was filed in 2014, rightly prevented the Court below from exercising its

jurisdiction over the 1st Appellant at the lower Court as the action against him was statute-barred.

It was also the learned Counsel to the Respondents’ submission that, the sole issue raised by the learned Counsel to the Appellants is misconceived and baseless in that, on the face of the cheque issued by the 1st Respondent as part of compensation to the Appellants, there is no indication of any personal mark of the 1st Respondent on the cheque to warrant the imputation of fraud on the 1st Respondent or that the cheque was not a personal cheque. He maintained that the Appellants did not exhibit any document to impute fraud on the 1st Respondent to warrant the learned trial Judge to resolve the first issue in Appellants’ favour and deny the 1st Respondent of the Protection of the Public Officers Protection Act.

The land acquired by the Respondents for the Dam Project according to the learned Counsel to the Respondents, was duly acquired as Notices were issued to the Benue State Government and Otukpo Local Government Area as well as Akpa District Heads and Traditional Council. The learned Counsel insisted that the land is owned by the Community as

Communal land and that individuals are only farmers on the land who received compensation for their economic trees and cash crops.

On the submission by the learned Counsel to the Appellants that it is the Benue State Limitation Law that should be applied to an Officer in the employment of the Federal Government working on a Federal Project, the learned Counsel to the Respondents submitted that Section 42 of the Benue State Public Officers Protection Law is meant to protect Officers of the State Government. Accordingly, it was submitted that the case of National Revenue Mobilization and Fiscal Commission & 2 Ors. vs. Ajibola Johnson & 10 Ors. (supra), cited by the learned Counsel to the Appellants is not applicable to the facts of the instant case as the above cited case relates to contract of employment where in the Appellants after being offered employment were denied resumption and upon the Claim of statute of Limitation by the Officers who denied the employees the opportunity to resume work, the Supreme Court held amongst others that the Law is designed to protect only an Officer who acts in good faith and does not apply to acts done in abuse

of office and without semblance of legal justification.

He reiterated that the giving of a cheque of N61,400.00 by the 1st Respondent to the Appellants meant for compensation is not illegal act or abuse of duties or Office as protect Manager. Furthermore, the learned Counsel to the Respondents argued that the learned Counsel to the Appellants failed to mention Ratio 9 of the same case where the Court held that “Where a statute provides for the institution of an action within a prescribed period, proceedings shall not be commenced after the time prescribed by such statute. Any action that is brought after the prescribed period is said to be statute-barred.”

Finally, on which of the Limitation Laws (the Federal or State Government) is applicable to the 1st Respondent, he cited the case of Nasarawa State University & Anor. vs. Nekere (2018) LPELR-44550 (CA); to submit that a State cannot make laws to be applied to Federal Institutions or agents, except in matters within the Exclusive Legislative List.

APPELLANTS’ REPLY TO THE RESPONDENTS’ PRELIMINARY OBJECTION:
In response to the arguments in Support of the Notice

of Preliminary Objection, the learned Counsel to the Appellants noted that, contrary to the Rules of this Court, argument in support of the same was canvassed on the face of the same Notice of Preliminary Objection, arguments in support thereof were canvassed but however, in the paragraph 10.0 to 19.0 are other arguments in support of the Preliminary Objection thus, making it difficult to decipher what to respond to between the two sets of argument.

Accordingly, he took the view that the best approach is to marry both arguments and ask whether the Appeal is one of mixed law and facts or one that is interlocutory so as to require leave of Court?

The learned Counsel then submitted that the Preliminary Objection is misconceived on the grounds upon which it is raised. Reference was made to page 179 lines 17-21 of the Records/Ruling which pronouncement of the learned trial Judge, he reproduced at page 2 paragraph 2.0 lines 6-10 of the Appellants’ Reply to the Preliminary Objection to submit that, it is clear that the Appeal is complaining against the holding of the learned trial Judge that it lacks jurisdiction is total and conclusive of the case in

the Court below.

According to the learned Counsel to the Appellants, it is a misnomer on the part of the Preliminary Objection to ascribe mixed law and facts and/or Interlocutory Appeal to the said Appellants’ Appeal herein. To buttress his contention he cited and relied on the case of Akinsanya vs. UBA Ltd. (1986) 4 NWLR (Pt.273) also reported in (1986) LPELR-355 (SC) and the text CIVIL PROCEEDURE IN NIGERIA, 2ND EDITION (LAGOS; UNIVERSITY OF LAGOS PRESS, 2000) PP.792-793 BY FIDELIS NWADIALO, SAN.

He further argued that, it is beyond civil limitation of action is no doubt a matter of jurisdiction and comes into play in the matter of limitation, if and when the defence of limitation is properly and successfully raised and that there can be no question of jurisdiction when limitation is not properly raised. Agbai vs. Ukpabi & Ors. (2013) LPELR-21263 (CA); (2014) 16 NWLR (Pt.1434) 524 (CA); was relied upon in so submitting and urged that it is clear that the Preliminary Objection is clearly on a very weak ground.

In the light of the above canvassed argument, we were urged to allow the Appeal and set aside the Ruling of the learned trial

Judge and in its place enter judgment for the Appellants or in the alternative order for retrial of the matter before another Judge.

RESOLUTION OF ISSUES:
Before the resolution of the sole issue distilled by the learned Counsel to the respective Parties in their Briefs of Argument, it is necessary to determine the propriety vel non of the Preliminary Objection raised by the learned Counsel to the Respondents. As the learned Counsel to the Appellants has rightly observed, in the Appellants’ Reply to the Respondents Preliminary Objection, it would appear that the learned Counsel to the Respondents had argued the Preliminary Objection in the Respondents’ Brief before filing the Notice of Objection. This fact, the learned Counsel to the Respondents confirmed in the introductory part of their unpaged Notice of Preliminary Objection particularly where it is stated that the Appellants should “FURTHER TAKE NOTICE that the Objection shall be founded on the following grounds which have already been canvassed in the Brief of Argument of the Respondents in the Appeal.”

A perusal of the Notice of Preliminary Objection would also reveal

prima facie that the learned Counsel canvassed arguments under the two Grounds upon which the objection was predicated such that, as the learned Counsel to the Appellants also aptly observed, “very contrary to the Rules of this Court, arguments in support of the same were canvassed on the face of the same Notice of Preliminary Objection. However, in the Respondents’ Brief of Argument at paragraph 10.0 to 19.0 is another argument in support of the Preliminary Objection. Now, this raised the difficult position of what to respond to between the two set of arguments.”

It is gratifying that the learned Counsel to the Appellants married both the Arguments in the Notice of Preliminary Objection and in the Respondents’ Brief and replied to them uno flatu which is very commendable for, in my humble view, the approach of the learned Counsel to the Respondents even though not in strict compliance with the Rules of this Court can be explained away as mere inelegance or to say the least, an overkill.

However, to put the Record straight, the learned Counsel to the Respondents needs not argue the Preliminary Objection as he did. The normal

practice is to file the Notice and accompany it with the Arguments in support on separate sheets of paper. In the alternative, the Respondents/Objectors may give notice of the Objection in the Respondents’ Brief and argue same as a Preliminary Point or Issue(s) before proceeding to argue the substantive issues in the Appeal. Since the learned Counsel to the Appellants did not pray for the striking out of the Notice of Preliminary Objection as argued both in the Notice and Respondents’ Brief of Argument, we shall allow the sleeping dog to lie and proceed to resolve the issue formulated for the determination of the Notice of Preliminary Objection.

RESOLUTION OF THE PRELIMINARY OBJECTION OF THE RESPONDENTS ON THE INCOMPETENCE OF APPELLANTS’ NOTICE OF APPEAL AND LACK OF JURISDICTION OF THIS HONOURABLE COURT:
Since the grouse of the Respondents is the non-compliance of the Appellants’ Notice of Appeal with Sections 241(1) and 242(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the resolution of the Preliminary Objection, will turn on the interpretation of the above mentioned constitutional provisions

by the Apex Court as followed by this Court and other Superior Courts of Record. In the same vein we shall also consider what constitutes an interlocutory and final Ruling or judgment and the effect thereof in determining whether the Ruling of the lower Court and indeed this Appeal are interlocutory or final in nature.

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242(1) Subject to the provisions of Section 241 of this Constitution, an Appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.”

In the instant case, the first Ground of the Respondents’ Preliminary Objection is that the Appellants’ Appeal is interlocutory in nature, in other words, it is not a final decision and accordingly, the leave of the Court ought to have been and must be sought before the Appeal could be commenced since the Appeal is not as of right. The controversy surrounding the distinction between an interlocutory and final Judgments/Rulings or decisions had been the subject of an avalanche of decided cases from the Supreme Court, the Court of Appeal and indeed the Courts in England from where we inherited our judicial system.
For instance, in the recent Supreme Court case of Ekemezie vs. Ifeanacho & Ors. (2019) LPELR-46518 (SC) at pp.14-28 paras. B-F per C.C. Nweze, JSC; in determining a similar question as has arisen in this Appeal posited thus:-
“For the

resolution of the question, I refer to Omonuwa vs. Oshodin and Anor. (1985) 2 NWLR (Pt.10) 924. In that case, Karibi-Whyte, JSC, in dealing with the question, whether a decision of a Court is interlocutory or final, so extensively reviewed the authorities on the matter. His Lordship presented those principles that can aid the Court in determining whether a decision is final or interlocutory.
At pages 932 et seq, His Lordship intoned thus: “The question whether a decision of a Court is interlocutory or final, has been one of perennial difficulty for the Courts. This difficulty stems from the lack of precision or certainty in the definition of the words, or the uncertainty in the judicial decisions on the issue. This has prompted Lord Denning, M.R., to suggest ‘it is impossible to lay down any principles about what is final or what is interlocutory’ – Salter Rex and Co. vs. Gbosh (1971) 2 All E.R. 565, 566; Technistudy Ltd. vs. Kelland (1976) 3 All E.R. 865. Indeed, it was suggested in the last mentioned case that, ‘the only thing to do is to go to the practice books and see what has been done in the past.’
Whilst

this approach may provide a useful guide, the problem marches on. I think that in a matter of this nature, despite the elusive imprecision of decided cases, the ideal is to provide a workable test for the determination of the issue, when it arises, instead of relying on examples. It is admitted that so far, the authorities on the issue are not uniform. I shall however, classify them and endeavour to suggest a test which in my opinion is acceptable in principle and workable in practice.
Although, Section 277 defines the word ‘decision’ in relation to Court, as any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation, there is no definition of the words ‘final’ or ‘interlocutory’ either in the Rules of Court, Supreme Court Act, Court of Appeal Act or in the Constitution. In the circumstances, resort ought to be had to the judicial decisions.”
In Gilbert vs. Endean (1878) 9 Ch. 259, 268, 269, Cotton, L.J. said: “Those applications only are considered interlocutory which do not decide the rights of the parties, but are made for the purpose of keeping

things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the Court as to how the cause is to be conducted as to what is to be done in the progress of the cause, for the purpose of enabling the Court ultimately to decide upon the right of the parties.”
Again, in Blakey vs. Latham (1890) 43 Ch. D at p. 25, Cotton, L.J. said: “Any order, which in my opinion, does not deal with the final rights of the parties, but merely directs how the declarations of rights already given in the final judgments are to be worked out is interlocutory, just as an order made before judgment is interlocutory where it gives no final decision on the matters in dispute, but merely directs how the parties are to proceed in order to obtain that final decision.
I do not think there is any dispute as to the correctness of the above dicta with regard to the definition of an interlocutory application and the resulting order or judgment. I accept it as the correct definition.
There are also judicial definitions of what is a final judgment. In re Faithful, Ex parte Moore (1885) 14 Q.B.D. 67, Cotton, L.J., at p.629,

explained what he said in Ex parte Chinery 12 Q.B.D. 342 as to what is a final judgment. He said: I think we ought to give to the words ‘final judgment’ in this subsection, their strict and proper meaning i.e. a judgment obtained in an action by what a previously existing liability of the Defendant to the Plaintiff is ascertained or established ‘unless there is something to show the use of the words in an extended sense.’
I think the definition of Lopes, L.J. in Salaman and Ors. vs. Warner (1891) 1 QB 734 at p.736, would seem to me, the same but is more precise. His Lordship said: “I think a judgment or order would be final within the meaning of the rules, when, whichever way it went, it would finally determine the rights of the parties.”
This case followed the earlier decision of Standard Discount Co. vs. La Grange (1877) 3 CPD.67. In Blakey vs. Latham (1890) 43 Ch. D 23 C.A., Cotton, L.J., construing the Rules of the Supreme Court, 1883, Order LVIII R.15 said: “No order, judgment or other proceeding can be final, which does not at once affect the status of the parties, for whichever side the decision may be

given, so that if it is given for the Plaintiff it is conclusive against the Defendant, and if it is given for the Defendant, it is conclusive against the Plaintiff.”
His Lordship went on to add at p.25: “I cannot help thinking that no order in an action will be final unless a decision upon the Application out of which it arises, but given in favour of the other party to the action would have determined the matter in dispute.”
The erudite Law Lord of the Supreme Court of Nigeria continuing in his analysis cited the locus classicus of Bozson vs. Altrincham Urban District Council (1903) 1 K.B. 547 where Lord Alverstone, C.J., agreeing with the Earl of Halsbury, L.C., said at pp.549 at 550:
“It seems to me that the real test for determining this question ought to be this. Does the judgment or order as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order: but if it does not, it is then in my opinion an interlocutory order.” See, also, Egerton and Ors. vs. Shiley (1949) 1 KB. 107.
It would seem clear from the cases and the dicta cited that two tests for

determining what is interlocutory or what is final have emerged from the cases. There are the cases which adopt the nature of the application to the Court as the determining factor whether the judgment or order is interlocutory or final, and there are others which consider the nature of the order made. Whereas Gilbert vs. Endean; Blakey vs. Latham (supra); Salter Rex and Co. vs. Gbosh (supra); The Technistudy Ltd. vs. Kelland (1976) 3 All E.R. 632 represent the first view, Salaman vs. Warner (supra); Bozson vs. Altrincham UDC (supra); Blay and Ors. vs. Solomon (1947) 12 WACA 175, represent the second view. It seems clear to me from the cases in this jurisdiction, that the test in the second class of cases has been adopted and applied. The test laid down by Lord Alverstone in Bozson vs. Altrincham U.D.C. (supra) has been consistently applied.”
Guided by the above dicta of my Lord, C.C. Nweze, JSC; which I adopt as mine in-toto, the Ruling or Order of the learned W.I. Kpochi, J., delivered on the 19th of January, 2018, wherein he held that, the Court below had no jurisdiction to entertain the Appellants’ suit thereby striking out the suit, had

finally disposed of the rights of the parties as this is not a situation where a suit is struck out for non-compliance with procedural requirement(s) in which case, the suit is preserved in the bosom of the Court until such requirement is fulfilled before resuscitating or re-listing same. In the instant case, since the Court terminated the suit of the Appellants in limine the rights of the Parties have been determined finally and accordingly this Appeal is not interlocutory but final in nature.
From the authorities above cited, it is clear and indubitable that the Appellants’ Appeal is as of right as provided under Section 241(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the Appellants did not need the leave of the lower Court or the Court of Appeal to appeal against that Ruling. In Metuh vs. FRN (2018) 10 NWLR (Pt.1628) 399 at 412-413 paras. F-B; the Supreme Court per Kekere-Ekun, JSC in his concurring judgment citing Moses & Anor. vs. Ogunlabi (1975) LPELR-1914 (SC) at 5D, Ekunola vs. C.B.N. & Anor. (2013) 15 NWLR (Pt.1377) 224 and Bukoye & Ors. vs. Adeyemo & Ors. (2016) LPELR-40852 (SC) at 10-11 B-A,

(2017) 1 NWLR (Pt.1546) 173; intoned that: “In order to competently exercise the right of appeal, the Appellant must come within the provisions of the statute creating that right.” In so holding, she quoted from Sections 241(1) and 242(2) of the 1999 Constitution, as amended, which provide for appeals as of right and with leave and held that the consolidated Appeals from the Court of Appeal to the Supreme Court under consideration were interlocutory in nature having arisen from a Ruling of the trial Court on a no case submission.
The rationale in so deciding is clear, in that, if the no case submission had succeeded, the Accused would be discharged, whereas, if a no case submission failed, the Accused person shall lead evidence in his defence in which case the trial is kept in abeyance until the no case submission is ruled upon one way or the other.

Taking the facts and circumstances of this case into consideration and the Supreme Court authorities above cited, I resolve the first arm of the Preliminary Objection against the Respondents as the authorities of Nigercare Development Company Ltd. vs. Adamawa State Water Board (2008) LPELR-1997

(SC); Shugaba vs. UBN Plc (1999) LPELR-3068 (SC); Saude vs. Abdullahi (1989) 4 NWLR (Pt.116) 387 and Raymond Obeta & Attorney-General, Enugu State vs. Josephat Maduabuchi Okpe (1996) NWLR (Pt.473) 401 at 445; cited by the learned Counsel to the Respondents on the effect of non-compliance with the condition precedent as entrenched in the provisions of Section 241(1)(a) of the 1999 Constitution (as amended), are not applicable to the first arm of the Preliminary Objection but cited out of context.

On the second arm of the objection which complains that grounds 2 and 3 of the Appellants’ Grounds of Appeal raise issues of mixed law and facts for which the leave of the trial Court or this Court must be sought before the Appeal can be competently initiated, the controversy surrounding the determination or distinction between grounds of law per se, grounds of mixed law and facts and those of facts alone as was explained in Nwadike vs. Ibekwe (1987) 18 NSCC (Pt.II) 1219 at 1223 and earlier cases have since been laid to rest by recent decisions of the Apex Court. For instance, in the recent Supreme Court case of Alex Nzei & Anor. vs. University of Nigeria & Ors.

(2016) LPELR-42826 (SC) at pages 56-61 paragraphs D-A per Kekere-Ekun, JSC quoted with approval, the dictum of Adekeye, JSC in General Electric Co. vs. Harry Akande & Ors. (2010) 18 NWLR (Pt.1225) 596 at 623-624 paragraphs E-A; thus:-
“…It has been observed on several occasions by this Court that it is often difficult to draw a distinction between a Ground of Law and a Ground of Mixed Law and fact, as the distinction is a narrow one. However, certain principles have been laid down in numerous decisions of this Court to serve as a guide. On what constitutes a Ground of Law, this Court, per Adekeye, JSC in General Electric Company vs. Harry Akande & Ors. (2010) 18 NWLR (Pt.1225) 596 at 623-624 E-A held: “The Supreme Court in their numerous decisions laid down the general principles for determining whether a Ground of Appeal is that of Law, Fact or Mixed Law and Facts.
A question of law is given three distinct meanings as follows: (1) A question the Court is bound to answer in accordance with a rule of law. The question is already determined and answered by the laws. (2) That which explains what the law is.

An Appeal on a question of law in which the sense means an appeal in which the question for argument and determination is what the true law is on a certain matter for example, a question relating to the construction of a statutory provision. (3) All questions within the judicial powers of a Judge to determine and not that of a jury for instance, the interpretation of documents. Any Ground of Appeal alleging misunderstanding of the lower Court of the law or misapplication of the law to the facts already proved, undisputed or admitted, or a misdirection, is a ground of law. Similarly, where the lower Court reaches a conclusion which cannot reasonably be drawn from the facts as found and the Appeal Court will assume that there has been a misconception of the law – it is a ground of law.” See also: Jim-Jaja vs. C.O.P. Rivers State & Ors. (2012) LPELR-SC.97/2010; Ehinlanwo vs. Oke & Ors. (2008) 6-7 SC (Pt.II) 123; Ajuwa & Anor. Vs. SPDC Nig. Ltd. (2011) LPELR-SC.290/2007. It settled that, in order to determine whether the Grounds of Appeal are of law alone or of mixed law and facts, the Grounds of Appeal must be read together with particulars.

Where the particulars are based on facts or where the Grounds of Appeal question the evaluation of evidence before the application of the law, it is a Ground of mixed law and fact. See Metal Construction (W.A.) Ltd. vs. Migliore (1990) 1 NWLR (Pt.126) 299; Odunukwe vs. Ofomata & Anor. (2010) LPELR –SC.294/2003. It was held in Metal Construction (W.A.) Ltd. vs. Migliore (supra) at 320 G that: “An Appeal in matters of fact allows investigation at the hearing of the Appeal of the evidence and the proper inferences from it whereas an Appeal on a point of law limits consideration of the Appeal to such questions as to whether facts admitted or held proved justify or permit by the rules of law a particular decision or disposal of the case before the Court…”
In Shittu vs. P.A.N. Ltd. (2018) 15 NWLR (Pt.1642) 195; the Supreme Court held per Rhodes-Vivour, JSC at page 207 paras. D-G as follows:-
“The Court should examine the Grounds and their particulars and identify the substance of the complaint. In that way, the Issue of whether a Ground or Appeal is of law or mixed law and fact would be resolved.
Identifying a Ground

of Appeal on facts is easier. Where facts warrant a determination either way it is a question of fact.
It is a question of law where the Grounds show a misunderstanding of the Court below of the law or a misapplication of the law to the facts already established or admitted. Appeals on Grounds of law alone is as of right. See Section 233(2) of the Constitution. See Chief (Dr.) Pere Ajuwa & Anor. vs. The Shell Petrol Development Co. of Nig. Ltd. (2011) 12 SC (Pt.IV) p.118, (2011) 18 NWLR (Pt.1279) 797; Alhaji Atiku Abubakar & 2 Ors. vs. Alhaji Umaru Musa Yar’Adua & 5 Ors. (2008) 1 SCNJ p.549; (2008) 4 NWLR (Pt.1078) 465.
It is a question of mixed law and facts where the Grounds question the evaluation of facts by the Court below before the application of the law. See Section 233(3) of the Constitution. Where the Grounds of Appeal is on facts or mixed law and fact, leave of Appeal is mandatory. It must be applied for and obtained. If no leave is applied for the Supreme Court would have no jurisdiction to hear the Appeal. See Ault & Wiborg (Nig.) Ltd. vs. Nibel Industries Ltd. (2010) 6-7 SC p.1; (2010) 16 NWLR (Pt.1220) 486;

Akwiwu Motors Ltd. & Anor. vs. Dr. B.O. Songonuga (1984) 5 SC p.184; Irhabor vs. Ogaiamien (1999) 6 SCNJ p.22, (1999) 8 NWLR (Pt.616) 517.”
Again, the Supreme held in Shittu vs. P.A.N. Ltd. (supra) per Peter-Odili, JSC at page 212 paras. D-F thus:-
“The two scenarios have been explained or expatiated by this Court in various judicial renditions including how a Ground of Appeal is said to be of law or mixed law and facts or of facts. See Anukam vs. Anukam (2008) 1-2 SC 34 at 41-42; Tabai, JSC stated as follows:
“A Ground of mixed law and facts or facts simpliciter does not necessarily become a Ground of law simply because such an appellation has been accorded it by the Appellant’s Counsel.”
See also Ogbechie vs. Onochie (No.1) (1986) 2 NWLR (Pt.23) 484 at 493; Amuda vs. Adelodun (1994) 8 NWLR (Pt.360) 23 at 30.
In determining into what category a Ground of Appeal falls, it has been enjoined again and again by this Court that the Court must look closely at the main Ground with the particulars thereof to see whether it is a Ground of law or mixed law and fact or fact simpliciter. This consideration stems

from the fact that it is not sufficient that Counsel of the appealing litigant has branded a Ground of Appeal, a Ground of law for the Court to accept it to be so or for it to be taken as Ground of law. See Ugboaja vs. Akitoye-Sowemimo (2008) 7 SC 1 at 18; (2008) 16 NWLR (Pt.1113) 278 per Onnoghen, JSC (as he then was); Nyambi vs. Osadim (1997) 2 NWLR (Pt.485) 1 at 8; Maigoro vs. Garba (1999) 7 SC (Pt.III) 11; (1999) 10 NWLR (Pt.624) 555 at 557-561.”

In the light of the above dicta of the Apex Court, it is necessary therefore to carry out a critical examination of the two Grounds of Appeal pilloried by the learned Counsel to the Respondents as being incompetent for raising issues of mixed law and facts without seeking leave of the lower Court or this Court. For the avoidance of doubt, Grounds 2 and 3 and their respective particulars aver as hereunder reproduced:
“GROUND TWO:
The trial Judge erred in law when he said: “By the combined effect of paragraphs 11 and 17 of the Statement of Claim, these acts of trespass and destruction of the Plaintiffs’ claimed property on the land started in 2011.
No specific date is

stated by paragraph 17 of the Statement of Claim, it was by 15th December, 2011 that the 1st Defendant brought a cheque for the sum of N61,400.00 to the Plaintiffs as part of compensation of the land containing the 402 stands of palm trees destroyed on the land which the Plaintiffs considered as inadequate.
PARTICULARS OF ERRORS:
(a) Paragraph 17 of the claim did not say N61,400.00 was given to the Plaintiffs as part of compensation but that the 1st Defendant brought a cheque of N61,400.00 only to the Plaintiffs claiming to be a part of the compensation of the land.
(b) That the cheque was issued personally by the 1st Defendant and not by the Ministry of Water Resources or the Federal Government for whom he works.
(c) That by paragraph 17, the trial Judge failed to appreciate that issuing of personal cheque by the 1st Defendant was not part of his official duties which crimes subsists as at 2014 and up to date.
(d) That where the step taken above is a crime as the instant case, the 1st Defendant cannot be protected by Section 2(a) of the Public Officers Act, Cap. P41 Laws of the Federal of Nigeria, 2004.
GROUND THREE:
The

trial Judge erred in Law when he held that: “For all intents and purpose, at this point the cause of action actually accrued and it was no use for the Plaintiffs to go back to slumber to belatedly sue the 1st and 2nd Defendants in 2014. Clearly, the grouse of the Plaintiffs is the purported unlawful entry upon their land and the destruction of their 402 stands of palm trees as far back as 2011. This is the bedrock of their suit and it cannot be gainsaid that the cause of action accrued later than 2011, let alone in 2014 as meekly contended by the Plaintiffs. Since the parties are in agreement that the 1st Defendant is a Public Officer and I have resolved that the cause of action accrued in 2011, it goes without saying that the suit commenced against the 1st Defendant in 2011 is clearly incompetent since it was commenced more than three (3) months after the accrual of cause of action.
PARTICULARS OF ERRORS:
(a) Paragraphs abound in the pleadings that the 1st Defendant issued his personal cheque for the purported payment of a part of compensation which is outside his duties as a Public Officer.
(b) That the 1st Defendant did not deny issuing

his personal cheque instead of a cheque for the purported acquisition from the Federal Government or its agency, Federal Ministry of Water Resources.
(c) That the 1st Defendant did not acquire any portion of the Appellants’ land in his personal capacity or cause the 402 stands of palm trees to be destroyed and structures started in his personal capacity as a Public Officer.
(d) The Respondents filed their Statement of Defence and never denied the claim.”

Having carefully perused the above Grounds 2 and 3 of the Grounds of Appeal and their respective particulars as contained in pages 182-183 of the Records against the background of the decisions of the Supreme Court as cited earlier, it is clear in my humble view, that those grounds raise pure issues of law by reason of the fact that they question the misunderstanding of the lower Court of the law or misapplication of the law to the facts as pleaded by the Appellants which facts were undisputed or admitted, or the misdirection by the Court below as to the date of the accrual of cause of action of the Appellants which was purported to be 2011 thereby erroneously invoking the Public

Officers Protection Act in favour of the 1st Respondent. Similarly, it is also indubitable that the learned trial Judge reached the conclusion which cannot reasonably be drawn from the facts as found in the pleadings and indeed the law applicable to the facts and circumstances of the Appellants’ suit before the lower Court. This Court in its Appellate jurisdiction has therefore assumed and indeed concluded that there has been a misconception of the law by learned trial Judge when he held that the 1st Defendant (now 1st Respondent) was protected by the Public Officers Protection Act thereby striking out the Appellants’ suit for incompetence and lack of jurisdiction.

Accordingly, without mincing words, Grounds 2 and 3 of the Appellants’ Grounds of Appeal clearly question the misunderstanding by the learned trial Judge in the Court below of the law or his misapplication of the law to the facts as established or admitted in the pleadings of the Appellants when he declared the Appellants’ suit as statute barred and thereby purportedly struck out the suit for being incompetent and for want of jurisdiction of the lower Court.

In the light

of the foregoing, the second arm of the Preliminary Objection is also resolved against the Respondents and in favour of the Appellants. The Respondents’ Preliminary Objection on the incompetence and want of jurisdiction of this Court is therefore dismissed.

RESOLUTION OF THE SUBSTANTIVE ISSUE:
“WHETHER THE LOWER TRIAL COURT MADE A PROPER APPROACH TO THE APPLICABLE RULES OF LAW AND EVIDENCE ON FACTS, BEFORE ITS JUDGMENT?”
In resolving this sole substantive issue for determination, the learned Counsel to the Appellants has given us a gist of their case and from their pleadings that 1st Appellant is a farmer and reside at Otobi-Akpa Village in Otukpo Local Government within the jurisdiction of the Court below while the 2nd Appellant is a Minister of God and a Resident Pastor of Framing Revivalist Mission, Otobi Village, Otukpo Local Government Area, also within the jurisdiction of the lower Court.

The 1st Respondent is a staff of the 2nd Respondent who was posted to Otobi Village as a site Engineer handling the Otukpo Multi-purpose Dam Project within the jurisdiction of the Court below while the 2nd Respondent is a Federal

Ministry of Water Resources with Head Office within the Old Federal Secretariat, Area 1, Abuja. It was the case of the Appellants in the lower Court that they hold a Customary Title over all that parcel of farmland lying and being to the Western part of Otobi Village, Otukpo, L.G.A. with boundaries as follows:
North – with the farmland of Uga Dan
South- with the farmland of Oko Kanta
West – with the farmland of Agome Arisa
East – with the farmland of Odeh Onu

The Appellants traced genealogy of the land a subject matter to their maternal grandfather Achika who gave the farmland to the Plaintiffs before his death and how their said ancestor occupied and exercised maximum use of the land by farming, by planting economic trees like palm trees and mangoes as well as yams, rice, cassava in between the palm trees which he reaped the benefits without let or challenge from anyone whosoever. They further traced how the land and the economic trees and food crops devolved on them and they continued to reap the benefits of those crops and planted more palm trees on the land until 2011 when the Respondents arrived

and without their permission or consent, trespassed into the farmland and caused massive and colossal destructions of the palm trees thereby leaving the Plaintiffs without their source of livelihood.

The Plaintiffs (now Appellants) also aver that their palm trees numbering 402 stands were felled down and destroyed by the Respondents and construction work started on the farmland by the Respondents. The Appellants pleaded in paragraphs 11 and 17 of their Statement Claim at page 6 of the Records thus: “11. The Plaintiffs aver that after the death of their grandfather, they inherited the farmland, its economic trees and continued to farm and reap the benefit of the economic trees up to the arrival of the Defendants in 2011.; 17. The Plaintiffs aver that after the destruction of the 402 palm trees, the 1st Defendant on the 15th December, 2011, brought a cheque of N61,400.00 only to the Plaintiffs claiming to be a part of the compensation of the land containing the 402 stands of the palm trees. A copy of the cheque issued to the Plaintiffs by the 1st Defendant in his personal cheque is pleaded.”

It was upon the facts pleaded in paragraphs 7 to

34 of the Statement of Claim that the Appellants sought for the Reliefs as contained paragraph 35(a)-(j). As said earlier, the Defendants apart from filing their Joint Statement of Defence raised the Preliminary Objection on the grounds that the lower Court lacked the jurisdiction to entertain the suit against the 1st Defendant (now 1st Respondent) because the suit was commenced 3 months after the cause of action arose contrary to Section and also that the lower Court lacked jurisdiction to hear and entertain the suit against the 2nd Defendant (now 2nd Respondent) because, the 2nd Defendant is not a juristic person.

purpose of the submissions of learned Counsel on both sides, particularly that of the learned Counsel to the Respondents, the full rendition of the oft-quoted dictum of Bairamian F.J; in that landmark Supreme Court case of yore also reported in (1962) 1 All NLR 587 on the circumstances under which a Court like the Court below can exercise jurisdiction to entertain a matter is necessary. His Lordship had posited thus:-
“Put briefly, a Court is competent when:-
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
(2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.
If the Court is competent, the proceedings are not

a nullity; but they may be attacked on the ground of irregularity in the conduct of the trial; the argument will be that the irregularity was so grave as to affect the fairness of the trial and the soundness of the adjudication. It may turn out that the party complaining was to blame, or had acquiesced in the irregularity; or that it was trivial; in which case the Appeal Court may not think fit to set aside the judgment. A defect in procedure is not always fatal.”

As I said elsewhere, jurisdiction has been held to be the life blood to the adjudication of any action before a Court of law without which, like an animal, that has been drained of its blood and will cease to live and any attempt to resuscitate it without infusing blood into it, will be tantamount to an exercise in futility, such adjudication will be rendered null and void and of no legal consequence. See Utih vs. Onoyivwe (1991) All NWLR (Pt.166) 166; Mobil Producing (Nig.) Unltd. vs. L.A.S.E.P.A. (2002) 18 NWLR (Pt.798) 1.

Owing to the fundamental and threshold nature of jurisdiction, it can be raised as an issue at any time and even on Appeal before the Supreme Court or Court of Appeal

for the first time.

On the nature and source of jurisdiction, there are authorities galore from both the Supreme Court and this Court to the effect that jurisdiction is generally a creature of statute, Constitution or otherwise and that since the jurisdiction to entertain and determine a case either at the trial Court or Appellate Court are donated by statute, failure to comply with any statutory or constitutional provisions or the required prescription that the relevant laws by which a suit or claim or an Appeal may be brought, may render such a claim or Appeal incompetent and deprive such a Court of its jurisdiction to adjudicate upon the matter. Accordingly, it has also been held that, no Court has the power to confer or donate jurisdiction to itself.
In the same vein, jurisdiction cannot be conferred or donated to the Court or by the parties or by their consent, for jurisdiction cannot be circumvented as it is always conferred by either statute or the Constitution. See Osi vs. Accord Party (2017) 3 NWLR (Pt.1553) 387 at 403 paras. D-F per Sanusi, JSC citing Dangana & Anor. vs. Usman & 4 Ors. (2013) 6 NWLR (Pt.1349) 50; NURTW & Anor. vs. R.T.E.A.N

(2012) 1 SC (Pt.1) 119; A-G. Lagos vs. A-G. Federation (2014) 9 NWLR (Pt.1412) 217 at 254.

On the types of jurisdiction, the Supreme Court again in Achonu vs. Okuwobi (2017) 14 NWLR (Pt.1584) 142 at 171 paras. B-F per Galumje, JSC; speaking in the same vein as his colleagues above, reasoned that jurisdiction of a Court simply means the power and authority conferred on it by law to adjudicate over a controversy and that there two types of jurisdiction namely (a) jurisdiction as a matter of procedural law; and (b) jurisdiction as a matter of substantive law. However, where the jurisdiction of a Court is a matter of procedural law, failure to comply with certain aspect of the procedure is a mere irregularity, which does not render the action incompetent.

In the instant case, the complaint of the Respondents is the non-compliance of the Appellants with the Public Officers Protection Act Cap. P41, Laws of the Federal Republic of Nigeria, 2004 which stipulates in Section 2(a) thus:-
“2. Actions against Public Officers:
Where any action, prosecution, or other proceeding is commenced against any person for any act done in pursuance

or execution or intended execution of any Act or Law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such Act, Law, duty or authority, the following provisions shall have effect-
(a) Limitation of Time:
The action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof:
Provided that if the action, prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner, it may be commenced within three months after the discharge of such person from prison.”

On the other hand, the learned Counsel to the Appellants had contended that the lower Court did not make a right approach to the applicable principles and Rules of law on the subject matter before it. According to him, contrary to the position of the learned Counsel to the Respondents, the Limitation Laws are part of adjectival and procedural Rules of a particular State and

that accordingly, it is the States’ Statutes of Limitation that are applicable to causes of action in a State and not those of other States not to talk of the Public Officers’ Protection Act, Cap. P41, LFN, 2004 which was erroneously invoked in favour of the Respondents by the learned trial Judge. For this position, he has cited Raleigh Industries (Nig.) Ltd. vs. Paul Okwu Nwaiwu (1994) 4 NWLR (Pt.341) 760; in contending that it is the Benue State Limitation Law Cap.96, Laws of Benue State, 2004 that ought to be applicable to the facts and circumstances of this case. For the avoidance of doubt, Section 42 of the Benue State Limitation Law reads:-
“42. All actions which this Law applies howsoever arising against the State or against any State Public authority, or Officer or any person acting instead of such Public Authority, for anything done or intended or omitted to be done in pursuance or execution of any duty or authority shall be commenced within the same period of time after the cause of action arose as if such action were brought by or against a private individual.”
Sections 18 and 19 of the Limitation Law of Benue State also read

as follows:
“18. No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.
19(1) This Section applies, notwithstanding, anything contained in any other enactment to the contrary, to actions for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of provisions made by or under an enactment or independently or any contract or any such provision) where the damages claimed by the person for negligence, nuisance or breach of the duty consist of or include damages in respect of personal injuries to the Plaintiff or any other person.
(2) Except where Subsection (3) applies, the period of limitation applicable under Section 16 in respect of actions to which this Section applies shall be reckoned from:
(a) the date on which the cause of action accrued; or
(b) the date of knowledge (if later) of the person injured.
(3) If the person injured dies before the expiration of the period mentioned in Subsection (2), the period

applicable as respects the cause of action surviving for the benefit of his estate shall be five years from:
(a) the date of death; or
(b) the date of the personal representative’s knowledge; whichever is the later.”
I was not able to lay hands on the above authority but in the course of my research, I was privileged to come across the illuminating judgment of our noble and learned colleague, Orji-Abadua, JCA in Horsfall vs. Rivers State Polytechnic, Bori & Anor. (2018) LPELR-45954 (CA), at pp.20-30 paras. E-C, where in a similar scenario as we have found ourselves, the crux of the Appeal was whether Section 2(a) of the Public Officers Protection Act, was applicable to the suit commenced by the Appellant on the 29th November, 2012 against the Respondents, particularly the 1st Respondent, a creation of the Rivers State Law, and he reasoned that:-
“There is no doubt that Section 2(a) of Public Officers Protection Act, Laws of the Federation, 2004 is a Federal enactment, which provides the statutory period within which an action can be commenced against a public officer of the Federation or any of its Public Institution,

but whether it extends to State Public Officers or State Agencies calls for a thorough scrutiny.”
After copious and thorough analysis of the background facts of the case as to whether it was the State Limitation Law Cap.80 of the Rivers State, 1999, or the Public Officers Protection Act Cap. P41, LFN, 2004 that was applicable to the case and having also taken into consideration the provisions of Section 4(1)-(7)(a)-(c) of the Constitution of the Federal Republic of Nigeria, 1999; he reasoned that:-
“It is discernible from the above provisions that the National Assembly is bequeathed with the power to make laws as it concerns the Government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part 1 of the Second Schedule to the Constitution. The operative criteria here is any matter included in the Exclusive Legislative List. It also possesses power to enact laws pertaining to matters contained in the Concurrent List.
To accentuate the 1st Respondent’s contention herein, its learned Counsel referred to item 35 of the Exclusive Legislative List which reads: Legal

proceedings between Governments of State or between the Government of Federation and Government of any State or any other authority or person. It is succinct in the said item 35 by applying the Ejusdem Generis Rule that it pertains only to legal proceedings between the Governments of States and between the Government of the Federation and Government of any State which were specifically mentioned therein. As defined by Black’s Law Dictionary 2011, 9th Edition, legal proceeding means any proceeding authorized and instituted in a Court or Tribunal to acquire a right or to enforce a remedy. Also in Oxford Advance Learners Dictionary, the word proceeding (against somebody) (for something) is defined as the process of using a Court to settle a disagreement or to deal with a complaint.
Therefore, the legal proceedings envisaged in the said item 35 relates to the bodies or institutions specifically mentioned therein. The limitation of action was not under any guise or by any implication mentioned in Part 1 of the Second Schedule to the 1999 Constitution that listed the items under the Exclusive List. Also perceptible in Part II of the Second Schedule to the 1999 Constitution

is the absence of any issue relating to Limitation Law or Public Officers Protection Act. I, wholly agree with the submissions of the Appellant’s Counsel that neither the Public Officers’ Protection Act nor the Limitation Law of Rivers State was listed in the Exclusive List nor the Concurrent Legislative List as prescribed by Section 4 and the 2nd Schedule, Parts 1 and 2 of the 1999 Constitution of the Federal Republic of Nigeria as amended, therefore, legislating on the subject (Limitation of Actions), is the exclusive preserve of the Rivers State Legislative arm, and as such, the principle of inconsistency does not or will not even apply in the instant case.”
Our learned brother in the light of the above reasoning cited and relied on the case of ETEIDUNG ANIETIMFON UDOH & ORS VS. AKWA IBOM STATE GOVERNMENT & ANOR (2013) LPELR-21121(CA); where it was considered whether legislating on limitation of actions is within the exclusive legislative list of the National Assembly and it was answered in the negative. He also alluded to Emiator vs. Nigerian Army (1999) 12 NWLR Part 631 page 362; where in the determination of the Appeal, the

Supreme Court considered Section 4(a) of the Limitation Law Cap 89, Laws of Bendel State, 1976, which provides that, actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say- (a) Actions founded on simple contract or on tort and most importantly it was noteworthy that most of the persons involved in that suit were Federal Public Officers and Federal Institution, yet, the Limitation Law of Bendel State was the law considered by the Supreme Court.
Still in the same Horsfall vs. Rivers State Polytechnic, Bori & Anor. (supra), His Lordship further placed reliance on the decision in The Shell Petroleum Development Company (Nig.) Ltd vs. Amadi (2011) ALL FWLR Part 604, 80 at 99 paragraphs E-H & paragraph A; and Godson Dike Esq., vs. Rivers State Polytechnic (unreported) but delivered on 19/6/2014 (supra) cited by the Appellants Counsel. Particular reference was also made to A. Ibegbu vs. Lagos City Council Caretaker Committee (1974) 2 SC (REPRINT) 70, also cited by the learned Counsel to the Appellants, wherein the Supreme Court expressed thus:
“In as much as the ruling,

the subject of this appeal is apparently based on the provisions of the Public Officers Protection Act, Cap. 168 – Laws of the Federation of Nigeria – 1958, we are of the view that the learned Judge was in error. This is so because, in the Lagos State, the above Federal Statute is no longer in force; having been replaced by the Public Officers Protection Law – Cap. 106 Laws of Western Nigeria – 1959 by virtue of the Lagos State (Applicable Laws) Edict No. 2 of 1968 which came into force on 1st May, 1968.
In Ibegbus case, the Supreme Court took cognisance of the applicable Limitation Law in Lagos State, depicting that Lagos State has the power to enact its own Limitation Law just as the Rivers State did in the enactment of the Limitation Law of Rivers State Cap. 80, Laws of Rivers State of Nigeria. Section 40 of the said enactment says in a nutshell that despite what is contained in any other law depicting the opposite, all actions to which the Limitation Law applies that is against the State or any State Public Authority or Officer of the State or any person acting in the place of such Public Authority or Officer, must be instituted

within the same period of time after the cause of action arose as if such action were brought by or against a private individual. Section 43 of the Law stopped the application of any other enactments relating to limitation of action that were in force in the State immediately before the commencement of the Limitation Law.
Then, Section 16 of the said Law limited the period within which an action founded on contract, tort or any other action not specifically mentioned in Parts I and II of the Law to five years from the date on which the cause of action arose. The summation being that, both Rivers State Government and its Public Officers are subject to the provisions of the Rivers State Limitation Law, and any action in contract, tort or any other action not specifically provided for as aforesaid that is not brought before the expiration of five years from the date of accrual of the cause of action is not statute barred.
Learned Counsel contended that by the admission of the Respondents Counsel, the cause of action arose on 31/10/2007, and the action was filed on 5/10/2007 meaning that the action was filed before the expiration of five years from the

31st October, 2006. In the case of Executive Governor of Osun State vs. Folorunsho (2014) LPELR-23088 (CA), this Court in deciding whether a Federal enactment can at the same time operate where there is a State Limitation Law in operation, opined per Denton-West, J.C.A., thus “…There is in operation in Osun State a Limitation Law of Osun State, 2003. Therefore, a Federal Enactment i.e. Public Officers Protection Act cannot at the same time operate in Osun State. The learned trial Judge was right to have held that it is the Limitation Law of Osun State 2003 and not Public Officers Protection Act that apply to the employment of the Respondent herein.”
It is crystal clear that since limitation of action is not one of the items listed in both the Executive Legislative List and the Concurrent Legislative List as prescribed by Section 4 and the 2nd Schedule, Parts 1 and 2 of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and Rivers State of Nigeria having enacted its own Limitation Law Cap. 80 Laws of Rivers State, 1999, the Public Officers Protection Act, 2004 is not applicable to the 1st Respondent, a creation of

Rivers State Law. On this premise issue No. 1 is hereby resolved in favour of the Appellant.”
Borrowing a leaf from the dicta of my learned brother, Orji-Abadua, JCA which I adopt completely as mine, and although in this case, the Public Officer of which the Public Officers Protection Act, Cap. P41 was invoked in his favour was/is a Federal Public Servant, the situation is not different since this matter now on Appeal emanated from Benue State and it was the Respondents themselves who sought for and were granted the prayers transferring the suit from the Federal High Court where it was initially commenced by the Appellants to the State High Court, Otukpo Division.
On the assumption that, it is the Federal Law that is Public Officers Protection Act, Cap. P41, LFN, 2004 that is applicable in this case, the learned trial Judge would have been right to have held that the cause of action arose in 2011 in which case Section 2(a) thereof which is replicated in Section 2(a) of the Public Officers (Protection) Law, Cap.140, Laws of Benue State, 2004 and which stipulate that the limitation period for the commencement of the action, prosecution, or

proceeding shall not lie or be instituted unless it is within three months next after the act, neglect or default complained of, or in case of a continuance of damage or injury, within three months next after the ceasing thereof.
In this case, the cause of action has not ceased and it was/is still continuous even in 2014 when the Appellants commenced their suit and till date. Their suit therefore cannot or could not have been caught by the Limitation period as stipulated in the Public Officers Protection Act or Law. On another score, the learned Counsel to the Appellants has alluded to the allegations of fraud committed by the 1st Respondents as pleaded in paragraphs 17 and 18 of their Statement of Claim and relied on the case of National Revenue Mobilization and Fiscal Commission & 2 Ors. vs. Ajibola Johnson & 10 Ors. (2019) NWLR (Pt.1656) 247 at 269-270 paras. H-A; where the Supreme Court held thus:-
“The purport of the Public Officers Protection Law is to protect officers in civil liability for any wrongdoing that occasions damages to any citizens, if the action is not instituted within three months, after the act, default or neglect

complained of. The law is designed to protect only the officer, who acts in good faith and does not apply to acts done in abuse of office and without semblance of legal justification. Yabugbe vs. COP (1992) 2 NWLR (Pt.234) 152; Offoboche vs. Ogoja L.G. (2001) 16 NWLR (Pt.739) 458 referred to (pp.269-270 paras. H-A).”
See also per Agube, JCA in the case of Unibadan vs. Gov. Kwara State (2013) 14 WRN 108 at 172-173 lines 45-15 citing Ibrahim vs. JSC of Kaduna State (2001) 37 WRN 14; Ekeogu vs. Aliri (1990) NWLR (Pt.126) 345 as well as Nwankwere vs. Joseph Adewunmi (1966) 1 All NLR 129 at 134; ably cited by the learned Counsel to the Respondents. I agree therefore to the learned Counsel to the Respondents that the haze surrounding the allegation of fraud by the Appellants ought to have been cleared in the course of full trial of the matter, rather than the hasty striking out of the Appellants’ case on the purported reason that it was statute barred. There is no doubt that where a statute provides for the institution of an action within a prescribed period, proceedings shall not be commenced after the time prescribed by such statute. Any action

that is brought after the prescribed period is said to be statute barred as ably submitted by the learned Counsel to the Respondents.
As for the decision in Nasarawa State University & Anor. vs. Nekere (2018) LPELR-44550 (CA); that the State cannot make law to be applied to Federal Institutions or its agents, except in matters within the Exclusive Legislative Lists, opinions are divided on this principle but I take my stand with the position of Orji-Abadua, JCA in the case of Horsfall vs. Rivers State Polytechnic, Bori & Anor. (supra), which is supported by the authorities she cited.

Be that as it may, authorities abound from the Apex Court on the vexed issue whether the Public Officers Protection Act applies to recovery of land which is the main claim of the Appellants in this case. As far back as 1969 in the case of Agboola vs. Abimbola (1969) 1 All NLR 287 which was cited in Ogunlana vs. Dada (2010) 1 NWLR (Pt.1176) 534; that point was established. See again Mulima vs. Usman (2014) 16 NWLR (Pt.1432) 160; where it was held that Section 2 of the Public Officers Protection Act does not apply in cases of recovery of land. An action for

recovery of land can become statute barred only if it is caught by Section 15(2)(a) of the Limitation Act which stipulates that no action by a person to recover land shall be brought after the expiration of twelve years from the date on which the rights of action occurred to the person bringing it or if it first occurred to some person whom he claims, to that person. The above provision of Limitation Act is anchored to Section 18 of the Benue State Limitation Law, even though the limitation period is given as 5 years.
To nail the coffin of the Respondents’ case, in the recent Supreme Court case of Hajia Yinusa Bakari vs. Deaconess (Mrs) Felicia Arinola Ogundipe & Ors. (2020) LPELR-49571 (SC); the Apex Court held at pp.21-22, paras. F-B per Rhodes-Vivour, JSC thus:-
“It is without dispute that this is an action for recovery of land/House occupied by the 1st Respondent from which she was thrown out. She wants her house back and for her house to be given to her in accordance with the Monetization Policy. It is now settled that Section 2 of the Public Officers (Protection) Act does not apply to cases of recovery of land. See Salako vs. LEDB

20 NLR p.169. The submission of learned Counsel for the 1st Respondent was therefore well taken. This suit is not statute barred since Section 2 of the Public Officers (Protection) Act does not apply to it.”
See also CIL Risk & Asset Management Ltd. vs. Ekiti State Government & Ors. (2020) LPELR-49565 (SC) at pp.6-9 paras. E-C per Eko, JSC; NPA vs. Construzioni Genrali F.C.S (1974) 9 NSCC 622; (1969) 1 All NLR (Pt.2) 463 and Bankole vs. NBL (1969) NCLR 385 at 390.

On whole, the sole issue in the substantive Appeal is resolved in favour of the Appellants. The Appellants’ Appeal is therefore meritorious and hereby succeeds and accordingly allowed. The Ruling of the learned trial Judge, Hon. Justice W.I. Kpochi delivered on the 19th day of January, 2017 at the Benue State High Court No.1, Otukpo Judicial Division whereby, he struck out the Plaintiffs/Appellants’ suit for being statute barred and for want of jurisdiction is hereby set aside. In consequence, the Plaintiffs/Appellants’ Suit No. OHC/61/2014 is remitted to the Hon. Chief Judge of Benue State for reassignment to another Judge.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in advance a copy of the lead judgment just delivered by my learned brother Ignatius Igwe Agube, PJCA.

I totally agree with the reasoning and conclusion reached therein. I too shall resolve the sole issue and it is so resolved in favour of the appellants and against the respondents.
The appeal has merit and it therefore succeeds. I adopt the consequential order made in the lead judgment as mine.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, IGNATIUS IGWE AGUBE, JCA and I agree with his reasoning and resolution arrived at in the lead judgment.

My learned brother dealt with the preliminary objection and the issue crafted for determination in an elaborate manner, leaving no room for any useful contribution. I therefore, adopt the judgment as mine in allowing the appeal. I also abide by the other orders made therein.

Appearances:

M.O. Adegene, Esq. For Appellant(s)

N.E. Tobaza, Esq. holding the brief of P.C. Mbam, Esq. For Respondent(s)