CHIEF GABRIEL IWUOHA & ANOR v. CHIEF JONATHAN KEZIE & ANOR (2016)

CHIEF GABRIEL IWUOHA & ANOR v. CHIEF JONATHAN KEZIE & ANOR

(2016)LCN/8202(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of February, 2016

CA/OW/152/2010

RATIO

DEMURRER: THE DEFINITION OF THE WORD ‘DEMURRER’

Now the word “demurrer” has been defined in the BLACKS LAW DICTIONARY Page 498 to mean: To wait or stay pleading stating that although the facts alleged in a complaint may be true, they are insufficient for the Plaintiff to state a Claim for relief and for the defendant to frame an answer. In most Jurisdictions, such a pleading is now termed a Motion to dismiss, but demurrer is still used in few States, including California. The Apex Court in Nigeria has also defined and examined it. In the Case of TIJANI BAMBE & ORS. V. ALHAJI A. ADERINOLA & ORS. (1977) 1 SC 56 THE Supreme Court per MADARIKAN J. S. C. said: The word demurrer came from the Latin word dimorari meaning to wait or stay.
Before demurrer was abolished, one of the methods of fighting opponent’s pleading was by demurrer. The party who demurred would not proceed with his pleading but having raised point of Law as to whether any case had been made out in his opponent’s pleading for him to answer, awaited the decision on that point.
In the Case of MOBIL OIL NIG. PLC. V. IAL 36 INC. (2000) 6 NWLR (Part 659) 146 at 167 G H KARIBI ? WHYTE J. S. C. said of demurrer as follows:- A demurrer is a known and well accepted common Law procedure which enables a Defendant who contends that even if the allegations of facts as stated in the pleading to which objection is taken are true, yet their legal consequences are not such as to put the Defendant (the demurring party) to the necessity or answering them or proceeding further with the cause. This concisely stated is the concept of the rules as formulated. As has often been pointed out in several decided cases including those decided by this Court, ?the whole basis of a demurrer is in effect to short circuit the action and by a preliminary point of law to show that the action founded on the Writ and Statement of Claim cannot be maintained. See LEWIS J.S.C. IN AINA V. TRUSTEES OF RAILWAY CORPORATION PENSIONS FUND (1970) 1 ALL NWLR 281 at P. 283, Mayor, etc. of Manchester V. Williams (891) 1 QB. 94. In any jurisdiction where demurrer is allowed and the Defendant or party demurring can file a Motion or Application in that behalf to demurrer. Such a Defendant is not expected to file his Statement of Defence before taking such a steps. Such a Defendant is taken for the purposes of the application to have admitted all facts pleaded and relied upon in the Statement of Claim and all that Defendant is saying at that stage of the proceedings is that even if all the allegations contained in the Statement of Claim are true, the Plaintiff?s Action is not Justiciable and that the Plaintiff cannot obtain any legal or equitable remedy from the Court.
And so recourse to demurrer by a Defendant must be taken before joining of issues with Claimant on the Suit. See MOBIL OIL NIG. PLC. V. IAL 36 INC. (2000) 6 NWLR (Part 659) 146 at 169 E ? H to 170 A ? B and the Case of BRAWAL SHIPPING LTD. V. F. I. & ONWADIKE CO. LTD. (2000) 11 NWLR (Part 678) 387 at 407 C ? G where UWAIFO J.S.C. said: In a demurrer proceeding a Defendant is neither permitted to file a Statement of Defence nor to rely on it, neither is he to tender evidence. He is taken to have accepted all the facts pleaded by the Plaintiff as established but rely on some point of Law a good legal or equitable defence to the action. per. PETER OLABISI IGE, J.C.A.

PRACTICE AND PROCEDURE: PRELIMINARY OBJECTION; HOW CAN A DEFENDANT RAISE THE POINT ON THE INCOMPETENCE OF A COURT TO ADJUDICATE ON A MATTER OR SUIT

Thus a defendant who conceived that he has a point of law concerning the Jurisdiction or incompetence of a Court to adjudicate on a matter or Suit can raise the Jurisdictional point vide a Motion on Notice or by Notice of Preliminary Objection without filing a Statement of Defence. See (1) N.D.I.C. VS. C.B.N. (2002) 7 NWLR (PART 766) 272 at 296 B ? H per UWAIFO, JSC.(2) HON. AHMED SALAWU OGEMBE VS. NURUDEEN ABAYEMI & ORS. (2011) 12 (PT. 2) SCM 363 at 375 B – F per GALADIMA JSC who said:
“In the light of all that has transpired in the Court, borne out of the records. I cannot fathom out what the Appellant could possibly mean when he is contending that the 1st Respondent had abandoned his Preliminary Objection. The point raised in the 1st Respondent Notice of Preliminary Objection was clearly brought to the Notice of the Appellant who responded and make a lengthy submission in his brief of argument. The Court below considered the Objection and ruled on it. Clearly the point raised in the Notice without being swayed to unnecessary technicality was a point challenging the jurisdiction of the Court of Appeal to entertain an incompetent appeal of the appellant. Challenging the jurisdiction of the Court is a threshold issue. It is a warning signal to the Court that it was about to embark on a matter which it has no jurisdiction and could lead to a nullity. Because of its importance a point of jurisdiction can be raised at any time and even viva voce for the first time during argument. The Court can suo motu raise it: Levenitis V. Petro Jessica (supra). And quite recently the Supreme Court of Nigeria, the Apex Court reiterated the firm position on jurisdictional issue or matter in the Case of BARRISTER ORKEK JEV & ANOR. VS. SEKAVADZUA IYOTYOM & ORS. (2014) 8 SCM 131 at 131 at 151 E where my Lord, OKORO JSC succinctly put it thus:
Let me quickly add here that a Preliminary Objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised, such issue, I must say can be raised for first time in this Court with or without leave. per. PETER OLABISI IGE, J.C.A.

COURT: JURISDICTION; THE IMPORTANCE OF JURISDICTION TO ADJUDICATION IN JUDICIAL PROCEEDINGS

Issue of jurisdiction of a Court cannot be glossed over because jurisdiction is pivotal to adjudication in judicial proceedings. Where a Court has no jurisdiction, whatever proceeding that may be conducted will be a complete nullity. See: (1) ALHAJI JIBRIN ISAH VS. INEC & ORS. (2014) 12SCM (Pt. 2) 297 at 328 G ? H per BODE RHODES -VIVOUR JSC who said:
Jurisdiction is the Legal Power that a Judge has to hear and determine a Case. It is usually conferred on the Court by the Constitution or Statute. It is a threshold issue, the heart-beat of a Case. Once a Court lacks jurisdiction to hear a matter and it proceeds to hear the matter no matter how well handled, the entire proceedings are a nullity no matter how well handled. That explains why the issue of jurisdiction can be raised at anytime, in the trial Court, the Court of Appeal or the Supreme Court for the first time.
(2) INEC V. OGBADIGBO LOCAL GOVERNMENT & ORS. (2015) 9 SCM 122 at 143 D per NGWUTA JSC who said:
Jurisdiction is the bedrock of any judicial proceedings and its absence or defect renders any proceedings a nullity notwithstanding that it was well conducted.
See: Further also;
1. ALHAJI (DR) ADO IBRAHIM VS. ALHAJI MAIGIDA U. LAWAL & ORS. (2015) 17 NWLR (PART 1489) 490 at 524 B – H to 525 A – F per OKORO, JSC.
2 R. T. HON. EMEKA IHEDIOHA & ANOR. VS. OWELLE ROCHAS ANAYO OKOROCHA & ORS. (2016) 1 NWLR (PART 1492) 147 at 183 C – D per FABIYI, JSC. per. PETER OLABISI IGE, J.C.A.

STATUTE OF LIMITATION; THE ESSENCE OF STATUTE OF LIMITATION

1. TIMIPRE SYLVA VS. INEC & ORS. (2015) 3 SCM 263 at 269 B E per NGWUTA JSC and at page 297 E – H per OKORO, JSC.
2. ALHAJI (DR.) ADO IBRAHIM VS. ALHAJI MAIGIDA U. LAWAL & ORS. (2015) 17 NWLR (PART 1489) 490 at 522 A – H to 523 A – F per OKORO JSC.
3. INEC VS. OGBADIBO LOCAL GOVERNMENT & ORS. (2015) 9 SCM 122 at 140 E – I to 141 a – E per GALADIMA, JSC who said: This Court, in the case of AJAYI v. ADEBIYI (Supra) on the essence of statute of limitation stated as follows:-
The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period, offends the provisions of the law and not give rise to a cause of action. The yardsticks to determine whether an action is statute-barred are:
(a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated in the Writ of Summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from, the date the cause of action accrues.
Also, see the Apex Court decision in Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Part 1329) 309, (2012) 12 SCM, (Pt. 2), 446 and MERCANTILE BANK (NIGERIA) LTD. V. FCTECO LTD. (1998) 3 NWLR (Pt. 540) 143 at 156.
It was Aniagolu JSC (of blessed memory) who in LASISI v. A. G. Oyo State (1982) 4SC at 56 who, when referring to the limitation provision in the Public Lands Acquisition Law, put the issue more succinctly thus:
The two Law Lords could not by their pronouncements quoted in the minority judgment be understood in all fairness to them to be advocating that the Courts should ride rough shod of statutory periods of limitations by reason only of otherwise arguable facts having been placed on Joinder of issues. What is there to try when the statute has provided that the period allowed for bringing an action in which those facts which have been in issue has expired? Absolutely nothing. per. PETER OLABISI IGE, J.C.A.

JUSTICES

IGNATUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

1. CHIEF GABRIEL IWUOHA
2. CHIEF GEOFFREY OBIOHA
(For themselves and on behalf of Umuelemai
Community Isiala Mbano L.G.A. of Imo State) Appellant(s)

AND

1. CHIEF JONATHAN KEZIE
(For himself and on behalf Of Umuduru
Community Isiala Mbano L.G.A. of Imo State)
2. THE HON. ATTORNEY-GENERAL IMO STATE Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The action leading to this appeal was instituted by the 1st Respondent as Claimant vide Writ of Summons issued out of IMO STATE HIGH COURT sitting at MBANO/ETITI JUDICIAL DIVISION on 18th day of August, 2009 wherein the said respondent claimed against the Appellants and the Attorney General of Imo State the following reliefs namely:
(a) A declaration that the land wherein the Isiala Mbano Local Government Headquarters is located is Umuduru Land, that it is the same land Umuduru gave to the British Colonial Administration in 1902 and that the name of the said headquarters is Umuduru from time immemorial and as decided by the Court of Appeal and affirmed by the Supreme Court in Suit No. SC 87/1999.
(b) An order of this Honourable Court directing the 3rd Defendant and all other necessary officers, servants or privies of the Government of Imo State of Nigeria to forthwith change the name of the aforesaid Isiala Mbano Local Government Area Headquarters to Umuduru and to do all things necessary to give effect thereto.
(c) A declaration that the entire land occupied by the

defendants is Umuduru Land and that the claimants are entitled to possession thereof.
(d) An order of forfeiture of the entire claimants land now occupied by the defendants by reason of their misconduct

The Appellants filed conditional Appearance on 23rd day of September, 2009 through their Learned Senior Counsel Chief Eze Duruiheoma SAN and followed it up with a MOTION ON NOTICE dated 12th day of October, 2009 and filed on 19th day of October, 2009 wherein the Appellants prayed the Lower Court for:
?(i) Order striking out or Dismissing this Suit for lack of jurisdiction.
(ii) AND such Further Orders as the Honourable Court may deem fit expedient (sic)

The grounds upon which the Motion was predicated was stated as follows:
The Honourable Court lacks the power or jurisdiction to grant the reliefs sought in this Suit because:
(i) To do so will have the effect of amending existing Laws including the Constitution of the Federal Republic of Nigeria.
(ii) The relief on forfeiture is statute barred.

The said Motion on Notice was heard by the learned Trial Judge HON. JUSTICE T. E. CHUKWUEMEKA CHIKEKA who delivered his Ruling on

26th day of April, 2010 and made the following findings:
The Counsel to the Claimant has urged me to hold that this application cannot succeed based on demurrer same having been abolished by the Rules. Order 22 aforesaid reproduced is very clear of the issue. I agree with the Claimants? Counsel, it would have been better for the defendant to comply with the said order and thereafter raised same being mindful of the fact that it is now trite that the issue of jurisdiction can be raised at any stage of the proceeding. See the case of NOKO Prise Intermark Company Limited & Anor. VsDobast Trading Corporation Inc. & Anor (1997) 9 NWLR (PT 520) P. 344 -345 G-A.That objection succeeds. I hold that objection is caught up with Order 22 aforestated. Apart from the above, it is trite that it is the claim of the Claimant that confers Jurisdiction to the Court, see the Case of Shell Petroleum Development Vs.Nwawka (2001) FWLR 1363 at 1377 para F Claim (a) of the Claimant was merely stating the decision of the Supreme Court Claim (b) following from Claim (a) request the Court to direct the 3rd defendant to do all things necessary to give effect

thereto. With respect to the learned SAN, the reliefs as couched did not request the Court to change the Law and that is where the doctrine of separation of powers would have come in, but to direct 3rd defendant… I am of the opinion and I so hold, that the Court has Jurisdiction to so direct the 3rd defendant. As regards the issue of statute barred. Section 15 (1) of the Limitation Laws of Imo State of the Federation of Nigeria Vol. 1 1994 settles the issue thus:
Action shall not be brought upon any Judgment or on the interest on any Judgment debt after which the Judgment become enforceable or the interest become due as the case may be.
The above shows that time will start counting on the date the Judgment becomes enforceable. Sic. The Judgment in this Suit became enforceable in 2003. Arising from the above, I hold that this action concerning reliefs (c) and (d) is not statute barred.
The present objection cannot succeed and it is hereby dismissed. Cost is assessed at N2,000 (Two Thousand Naira) in favour of Claimant

The Appellants were dissatisfied by the above findings or decision of the learned trial Judge and has now

appealed to this Court as per the Notice and Grounds of Appeal dated and filed on 7th day of May, 2010 containing three (3) grounds which with their particulars are as follows:
1. The learned trial Judge erred in Law when she held that “I agree with the Claimants Counsel. It would have been better for the Defendant to comply with the said order and thereafter raised (sic) (raise) same being mindful of the fact that it is now trite that the issue of Jurisdiction can be raised at any stage of the proceeding”? and thereby occasioned a miscarriage of Justice.
PARTICULARS OF ERROR
(a) The Application which the Trial Court was called upon to consider did not amount to a demurrer.
(b) The issue of jurisdiction being raised at any stage does not make it the same with a demurrer.
(c) The objection of the Applications is not caught by Order 22 Rule 1 and 2 of the High Court to (Civil Procedure) Rules 2008.
II. The learned Trial Judge erred in Law when she held that “relief’?s (sic) (reliefs) as couched did not request the Court to change the Law and that is where the doctrine of Separation of Power would have come in, but to direct the 3rd

Defendant I am of the opinion and I so hold that the Court has Jurisdiction to so direct the 3rd Defendant… and thereby occasioned a miscarriage of Justice.
PARTICULARS OF ERROR
(a) The case of the Applicants in the Lower Court is that the Court has no power to declare what a Statute has already declared. The declarations sought by the Claimants had already been declared by several statutes.
(b) The Court’?s Power or Jurisdiction is to declare invalid or unlawful what a statute has declared, or to interpret a Statute so as to the intention of the Lawmaker.
(c) The reliefs (a) and (b) claimed in this suit merely seek from the Court a declaration of what has already been declared by statutes.
(d) The Claimant conceded in his written address that the Trial Court has no power to grant relief “b” of his Claim.
(e) The power to grant the Relief “?b” was not a live issue at the time the Trial Court made its ruling.
III. MISDIRECTION IN LAW
The learned Trial Judge misdirected herself in Law when she applied the provision of Section 15 (1) of the Limitation Laws of Imo State to the facts and circumstances of the case before her and

thereby occasioned miscarriage of justice.
PARTICULARS OF ERROR
(a) The case of the Claimants was brought to enforce alleged forfeiture.
(b) The acts giving rise to forfeiture consisted in 1st and 2nd Defendants suing the Claimant in 1984.
(c) The Suit does not seek to enforce any Judgment or on the interest on any Judgment debt as to make Section 15 (1) of the aforesaid Law applicable.

The Appellants filed their Brief of Argument dated the 14th day of July, 2010 on 19th day of July, 2010 while the 1st Respondent’s Brief of Argument dated 21st day December, 2010 was filed on 22nd day of December, 2010. The appeal was heard on 19/10/2015.

It must be noted that the Appellant filed List of Additional Authority to support their Issue No. 3.02 paragraph 4.17 of their Brief of Argument. It is the Case of QUO VADIS LTD. HOTEL VS. COMMISSIONER FOR LANDS (MID-WEST STATE & ORS. (1973) NSCC Vol. 8 417 at 427 where according to Appellants proceedings for declaration to re-declare what the statute has declared is incompetent.

Appellants learned Senior Counsel formulated three issues for determination of the appeal viz:
1. Was the learned Trial Court

right when it considered the application before it as amounting to a demurrer.
2. Was the learned Trial Court correct when it held to the effect that some of the declarations sought in this matter did not amount to amending existing Laws.
3. Was the Trial Court correct in applying the provisions of Section 15 (1) of the Limitation Law of Imo State to the fact and circumstances of this matter?

No contrary issues were formulated or distilled by the 1st Respondent. The 2nd Respondent did not file Brief of Argument. The appeal will therefore be determined on the three issues nominated by the Appellants.

I must say that Judgment in this appeal was not delivered before now because I was on National Assignments in respect of Interlocutory appeals and appeals on Final Judgments of Election Petition Tribunals which ended early January, 2016 after which this Court was on recess for two weeks. Now the consideration of the Issues.?

ISSUE 1
WAS THE LEARNED TRIAL COURT RIGHT WHEN IT CONSIDERED THE APPLICATION BEFORE IT AS AMOUNTING TO A DEMURRER?
The learned Senior Counsel to the Appellants contended that the Appellants application was a simple challenge to the jurisdiction

of the trial Court which he said is different from a demurrer. He conceded that ORDER 22 Rule 1 of the High Court (Civil Procedure) Rules 2008 of Imo State abolished demurrer but that the application before the Court was not in form of demurrer. That the distinction between jurisdiction of a Court and a demurrer was dealt with by the Supreme Court in the Case of NDIC. VS. CBN (2002) 7 NWLR (PART 766) 272 at 29 – 297 F – A. That the learned Trial Judge was therefore in error when she held that Appellants Motion was a demurrer. He urged this Court to resolve Issue 1 against the Respondents.

In response to the above contention, the learned Counsel to the 1st Respondent opined that the Trial Judge complied with the Law by looking at the totality of the respondents? pleadings before arriving at his decision. That it is the Writ of Summons and the Statement of Claim that determines the Jurisdiction of the Court. He relied on the Case of AJA O. VS. OBELE (2005) 5 NWLR (Pt.918) 400 at 414-415 and WESTERN STEEL WORKS LTD. & OR V. IRON & STEEL WORKERS UNION OF NIGERIA & OR (NO. 2) (1987) 1 NWLR (PT. 49) 284.

That the learned trial

Judge did not consider Appellants Motion as amounting to a demurrer. That the Court considered the Objection as an Issue of Jurisdiction and rightly concluded that the Court was invested with sufficient Jurisdiction to hear the Respondents Case as constituted. That the trial Court only reviewed the provisions of the High Court Rules on demurrer and proceeded to consider the issue of Court?s Jurisdiction based on the pleadings. He urged the Court to discountenanced the Appellants complaint against the Ruling of the Lower Court.

?The Law needs no restatement that where it is shown that an action is incompetent, invalid or statute barred the Court has no Jurisdiction to entertain or adjudicate on it. The Appellants have challenged the Jurisdiction of the Court to countenance the Respondent?s Suit. The latter had among other contention stated before the Lower Court that the Motion filed by Appellants challenging the Jurisdiction of the Court tantamount to demurrer and that the Appellants ought first and foremost file their Statement of Defence and raised whatever point of Law perceived by them to be against 1st Respondent?s Suit. The learned trial

Judge agreed with the position of the 1st Respondent on pages 8 -9 of his Ruling (pages 118 – 119 of Record) where she said:
The Counsel to the Claimant has urged me to hold that this application cannot succeed based on demurrer same having been abolished by the Rules. Order 22 afore reproduced is very clear of the Issue (sic) I agree with the Claimants Counsel, it would have been better for defendant to comply with the said Order and thereafter raised same being mindful of the fact that it is now trite that the issue of Jurisdiction can be raised at any stage of the proceeding That Objection succeeds. I hold that, that Objection is caught up with Order 22 aforestated.

including California.?
The Apex Court in Nigeria has also defined and examined it.
In the Case of TIJANI BAMBE & ORS. V. ALHAJI A. ADERINOLA & ORS. (1977) 1 SC 5 ? 6 THE Supreme Court per MADARIKAN J. S. C. said:
?The word ?demurrer? came from the Latin word ?dimorari? meaning to ?wait? or ?stay?.
Before demurrer was abolished, one of the methods of fighting opponent?s pleading was by demurrer. The party who demurred would not proceed with his pleading but having raised point of Law as to whether any case had been made out in his opponent?s pleading for him to answer, awaited the decision on that point?
In the Case of MOBIL OIL NIG. PLC. V. IAL 36 INC. (2000) 6 NWLR (Part 659) 146 at 167 G ? H KARIBI ? WHYTE J. S. C. said of demurrer as follows:-
?A demurrer is a known and well accepted common Law procedure which enables a Defendant who contends that even if the allegations of facts as stated in the pleading to which objection is taken are true, yet their legal consequences are not such as to put the Defendant (the demurring party) to the necessity or

answering them or proceeding further with the cause. This concisely stated is the concept of the rules as formulated. As has often been pointed out in several decided cases including those decided by this Court, ?the whole basis of a demurrer is in effect to short circuit the action and by a preliminary point of law to show that the action founded on the Writ and Statement of Claim cannot be maintained?.
?See LEWIS J.S.C. IN AINA V. TRUSTEES OF RAILWAY CORPORATION PENSIONS FUND (1970) 1 ALL NWLR 281 at P. 283, Mayor, etc. of Manchester V. Williams (891) 1 QB. 94.? In any jurisdiction where demurrer is allowed and the Defendant or party demurring can file a Motion or Application in that behalf to demurrer. Such a Defendant is not expected to file his Statement of Defence before taking such a steps. Such a Defendant is taken for the purposes of the application to have admitted all facts pleaded and relied upon in the Statement of Claim and all that Defendant is saying at that stage of the proceedings is that even if all the allegations contained in the Statement of Claim are true, the Plaintiff?s Action is not Justiciable and that the

Plaintiff cannot obtain any legal or equitable remedy from the Court.
And so recourse to demurrer by a Defendant must be taken before joining of issues with Claimant on the Suit. See MOBIL OIL NIG. PLC. V. IAL 36 INC. (2000) 6 NWLR (Part 659) 146 at 169 E ? H to 170 A ? B and the Case of BRAWAL SHIPPING LTD. V. F. I. & ONWADIKE CO. LTD. (2000) 11 NWLR (Part 678) 387 at 407 C ? G where UWAIFO J.S.C. said:
?In a demurrer proceeding a Defendant is neither permitted to file a Statement of Defence nor to rely on it, neither is he to tender evidence. He is taken to have accepted all the facts pleaded by the Plaintiff as established but rely on some point of Law a good legal or equitable defence to the action?.

AHMED SALAWU OGEMBE VS. NURUDEEN ABAYEMI & ORS. (2011) 12 (PT. 2) SCM 363 at 375 B – F per GALADIMA JSC who said:
“In the light of all that has transpired in the Court, borne out of the records. I cannot fathom out what the Appellant could possibly mean when he is contending that the 1st Respondent had abandoned his Preliminary Objection. The point raised in the 1st Respondent Notice of Preliminary Objection was clearly brought to the Notice of the Appellant who responded and make a lengthy submission in his brief of argument. The Court below considered the Objection and ruled on it. Clearly the point raised in the Notice without being swayed to unnecessary technicality was a point challenging the jurisdiction of the Court of Appeal to entertain an incompetent appeal of the appellant. Challenging the jurisdiction of the Court is a threshold issue. It is a warning signal to the Court that it was about to embark on a matter which it has no jurisdiction and could lead to a nullity. Because of its importance a point of jurisdiction can be raised at any time and even viva voce for the first time during argument. The Court can suo motu raise it:

Levenitis V. Petro Jessica (supra).
And quite recently the Supreme Court of Nigeria, the Apex Court reiterated the firm position on jurisdictional issue or matter in the Case of BARRISTER ORKEK JEV & ANOR. VS. SEKAVADZUA IYOTYOM & ORS. (2014) 8 SCM 131 at 131 at 151 E where my Lord, OKORO JSC succinctly put it thus:
Let me quickly add here that a Preliminary Objection which borders on jurisdiction cannot be brushed aside by the Court but must be considered by the Court regardless of the manner in which it was raised, such issue, I must say can be raised for first time in this Court with or without leave.

The Lower Court was therefore wrong in holding that the Appellants Motion which challenged his jurisdiction was the same as demurrer. The two are not one and the same.
Issue 1 is resolved in favour of the Appellants.

ISSUE 2
WHETHER THE TRIAL COURT WAS RIGHT TO HOLD THAT SOME OF THE DECLARATIONS SOUGHT IN THIS MATTER WOULD NOT AMOUNT TO AMENDING EXISTING LAWS?
The Appellants made reference to reliefs (i) and (ii) on the Writ of Summons. The Appellants posited that the Lower Court lacks the jurisdiction to entertain or grant the said

reliefs in favour of the 1st Respondent. They found fault with the holding of the trial Court that the reliefs as couched did not request the trial Court to change the Law. Page 119 of the Record was relied upon. That what the 1st Responding is disputing is the naming of the Headquarters of ISIALA MBANO LOCAL GOVERNMENT as UMUELMAI and not Umuduru. That if the Lower Court was right in stating that the Supreme Court had decided it then the 1st Respondent has no right to relitigate the matter all over again as it would amount to an abuse of Court process. On what declaratory relief is, the Appellants relied on the following cases viz:
1. GOVERNMENT OF GONGOLA STATE V. TUKUR (1989) 4 NWLR (Pt. 117) 592.
2. ONYEAMA V. OBODOH (2008) 16 NWLR (PT. 1114) 576
and (3) KUTI V. ALASHE (2005) (PT. 955) 625.

That the following Legislations have already declared the status of the Council namely:
1. Law No. 20 1976 of Imo State which named UMUELEMAI as Headquarters of Isiala Mbano LG.A.
2. 1989 LOCAL GOVERNMENT BASIC CONSTITUTIONAL AND TRANS – 1 TIONAL PROVISIONS DECREE which also declared Umuelemai as Headquarters of ISIALA MBANO LOCAL GOVERNMENT.
(c) DECREE NO. 41 OF 1991 which

also declared UMUELEMAI as ISIALA MBANO LOCAL GOVERNMENT.
(d) LAW NO. 15 OR IMO STATE 2000.

That to now seek reliefs (a) and (b) before the Lower Court is the same as asking the Court to amend or repeal the existing Law or Laws. That the Lower Court was called upon to answer those questions but failed to answer them. That a Court cannot grant a relief which is at variance with the provisions of a State as it constitutes an affront to the doctrine of Separation of Powers. That that is within the domain of Legislature. He relied on the Case of BENDEL STATE VS. THE A. G. OF FEDERATION (1981) 10 SC 1. He urge the Court to resolve the Issue in favour of the Appellant.

?In answer to the above submissions, the 1st Respondent contended that the two Claims (a) & (b) are specific claims of ownership of Land and declaration to title over a specific Land in favour of Respondents. That relief (b) only requests the Court to give directive to 2nd Respondent to take steps to do so and that the 1st Respondent did not pray the Court to rename the Local Government Headquarters. That all the 1st Respondent asked for was for the 3rd Defendant to activate machinery to

correct the problem. That the trial Court has jurisdiction to entertain the two reliefs. That the 1st Respondent did not concede that their Claim (b) was outside the jurisdiction of the Court as claimed by the Appellants. That the said concession was very much equivocal and that the trial Court was right in assuming jurisdiction over Respondents Claim in its totality.

raised at anytime, in the trial Court, the Court of Appeal or the Supreme Court for the first time.
(2) INEC V. OGBADIGBO LOCAL GOVERNMENT & ORS. (2015) 9 SCM 122 at 143 D per NGWUTA JSC who said:
Jurisdiction is the bedrock of any judicial proceedings and its absence or defect renders any proceedings a nullity notwithstanding that it was well conducted.
See: Further also;
1. ALHAJI (DR) ADO IBRAHIM VS. ALHAJI MAIGIDA U. LAWAL & ORS. (2015) 17 NWLR (PART 1489) 490 at 524 B – H to 525 A – F per OKORO, JSC.
2 R. T. HON. EMEKA IHEDIOHA & ANOR. VS. OWELLE ROCHAS ANAYO OKOROCHA & ORS. (2016) 1 NWLR (PART 1492) 147 at 183 C – D per FABIYI, JSC.

The Appellants have contended in strong terms that the Lower Court did not possess the jurisdiction it claimed in this action while the 1st Respondent was vehement in contending that the reliefs claimed are well within jurisdiction of Lower Court.

Judging from the contending arguments one must take a cue and confine himself to scrupulous examination of the Writ of Summons and the Statement of Claim in this action as it is trite Law that it is the Claims of the Claimant

that determine the jurisdiction of the Court in which an action is initiated. See (1) P. D. P. VS. T. SYLVIA & ORS. (2012) 13 NWLR (PART 1316) 85 at 127 D ? F per BODE RHODES ? VIVOUR JSC.
(2) ALHAJI JIBRIN ISAH VS. INEC &ORS. (2014) 12 SCM (Pt. 2) 297 at 328 I to 329 A where BODO RHODES ? VIVOUR JSC had this to say:
?It is a fundamental principle that jurisdiction is determined by the Claims by the Claimant/Plaintiff?s Claim and not by the defence, and so the Writ of Summons and Statement of Claim which contains the Claims before the Court are the documents that must be examined in detail to ascertain whether it comes within the jurisdiction conferred on the Court.?

I have reproduced earlier in this Judgment the reliefs, four in all, being claimed by the 1st Respondent. Relief (a) Claims that the Land wherein the Headquarters of ISIALA MBANO L.G.A. is located is called UMUDURU Land when it was given to the British Colonial Administration in 1902. That the name of the said Headquarters is UMUDURU from time immemorial and as decided by the Court of Appeal and affirmed by the Supreme Court in Suit No. SC. 87/1999.

?What

appears to be ancillary relief to it is relief (b) which seeks:
An Order of this Honourable Court directing the 3rd defendant and all other necessary officers, servants or privies of the Government of Imo State of Nigeria to forthwith change the name of the aforesaid ISIALA MBANO LOCAL GOVERNMENT AREA HEADQUARTERS to UMUDURU and to do all things necessary to give effect thereto.

Judicial Notice can be taken in this Country pursuant to Section 74 of the Evidence Act 2004 CAP. E 14 and 122 of the Evidence Act 2011 that the Federal Government of Nigeria had since 1989 had the prerogative of creating Local Governments and determining their Headquarters.
See also Section 3 (6) of the Constitution of the Federal Republic of Nigeria 1999 as altered or amended. The only capable and competent Legislature that can alter the Local Governments and their Headquarters is the National Assembly and not Imo State Assembly. The Imo State High Court has no judicial powers to direct the Attorney General of Imo State to ensure a Law to change the Headquarter of any Local Government in Imo State.

A Court cannot compel the performance of impossibility. It is

equally worthy of note to mention that by the manner in which relief (a) was couched, the 1st Respondent had already got Judgment in his favour at the Court of Appeal and Supreme Court. It therefore amounts to judicial waste of time and an abuse of Court Process for the 1st Respondent to be seeking a Further Order or other declaration over a land in which two Appellate Courts have already adjudged in his favour. The Imo State High Court and indeed this Court cannot review, add or subtract from the effect of the decision already made in favour of 1st Respondent. One is left in no doubt that what the 1st Respondent wants from the Court is a change of the name of the Local Government Headquarters to ?UMUDURU?. This is discernible from reliefs (a) and (b) in particular.

I have no doubt in my mind that the Lower Court cannot grant reliefs (a) and the ancillary relief (b) in favour of the 1st Respondent. It has no jurisdiction so to do. See TERVER KAKIH VS. PDP & ORS. (2014) 12 SCM (Pt. 2) 367 at 413 G per BODE RHODES ? VIVIOUR JSC who said:
?A Court cannot hear and determine ancillary Claims if it has no jurisdiction to entertain the

main/principal claims. See PDP V. Sylva & 2 Ors. (Supra) Tukur Vs. Govt. of Gongola State 1989 4 NWLR (Pt. 117) P. 517.?
Issue 2 is resolved against the Respondents.

ISSUE 3
WHETHER THE TRIAL COURT WAS CORRECT IN APPLYING THE PROVISIONS OF SECTION 15 (1) OF THE LIMITATION LAW OF IMO STATE TO THE FACTS AND CIRCUMSTANCES OF THIS MATTER.
The Appellants are of the view that the reliefs tagged ?c? and ?d? in the indorsements on the 1st Respondent?s Writ of Summons were statute barred by virtue of Section 3 of the Limitation Law 1994 of Imo State. The 1st Respondent contended the contrary and relied on Section 15 (1) and (2) of the said Limitation Law. That the trial Judge according to the Appellants was wrong in placing reliance on Section 15 (1) of the Limitation Law without adverting to Section 15 (2) of the said Law. That Section 15 (1) of Limitation Law deals with monetary Judgment.

?The Appellants stated that the cause of action could be found in paragraph 29 and 33 of the Statement of Claim and that they related to reliefs ?c? and ?d?. That the cause of action arose when Suit No. HME/17/84 was filed.

That the present Suit was instituted 15 years after the 10 years stipulated in Section 3 on the Limitation 1984 (sic) of Imo State .

Appellants relied on the case of ELABANJO V. DAWODU (2006) 15 NWLR (PART 1001) 76 at 122 BC and EGBE V. ADEFARASIN (NO. 2) (1987) 1 NWLR (PT. 46) 1 .

In their reaction, the Respondent stated that the Suit was not caught by Limitation Law and that the Suit is not statute barred. The 1st Respondent submitted that contrary to the argument of Appellants, there is a continuing trespass on the Land by Appellants and that 1984 cannot be regarded as the time the cause of action accrued. That the Appellants sued them on the same land and the Suit was terminated in the Supreme Court in 2003. That the Appellants has not joined issues with the Respondent and cannot bring Objection to terminate the Case in Limine. He relied on the Case of EGE SHIPPING LTD. VS. TIGRIS INT. CORP. (1999) 14 NWLR (Pt. 637) 70 at 84. That it is for the Court to determine when the cause of action arose. That the Appellants cannot insist on 1984 instead of 2003 as the date of accrual of action. That the interpretation placed on Section 15 (1) of the Limitation Law of Imo

State by trial Judge was right. He relied by the Case of ONAKOYA VS. FRCN (2002) 1 NWLR (Pt. 779) 595 at 647 F ? G. That the Objection raised by Appellants cannot conclusively terminate the 1st Respondents action.

The central focus under Issue 3 is whether the 1st Respondent Suit is statute barred under Section 3 of the Imo State Limitation Law of (1974). The whole essence of Limitation Law is that where a person has a right to sue another in order to vindicate his or her rights against a person or authority, he or she must institute his or her action timeously within the space of time prescribed or limited in the Limitation Law otherwise his or her right to exercise his accrued rights or obligation against a defendant will be extinguished by effluxion of time.
1. TIMIPRE SYLVA VS. INEC & ORS. (2015) 3 SCM 263 at 269 B E per NGWUTA JSC and at page 297 E – H per OKORO, JSC.
2. ALHAJI (DR.) ADO IBRAHIM VS. ALHAJI MAIGIDA U. LAWAL & ORS. (2015) 17 NWLR (PART 1489) 490 at 522 A – H to 523 A – F per OKORO JSC.
3. INEC VS. OGBADIBO LOCAL GOVERNMENT & ORS. (2015) 9 SCM 122 at 140 E – I to 141 a – E per GALADIMA, JSC

who said:
This Court, in the case of AJAYI v. ADEBIYI (Supra) on the essence of statute of limitation stated as follows:-
The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period, offends the provisions of the law and not give rise to a cause of action. The yardsticks to determine whether an action is statute-barred are:
(a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated in the Writ of Summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from, the date the cause of action

accrues.
Also, see the Apex Court decision in Sulgrave Holdings Inc. v. FGN (2012) 17 NWLR (Part 1329) 309, (2012) 12 SCM, (Pt. 2), 446 and MERCANTILE BANK (NIGERIA) LTD. V. FCTECO LTD. (1998) 3 NWLR (Pt. 540) 143 at 156.
It was Aniagolu JSC (of blessed memory) who in LASISI v. A. G. Oyo State (1982) 4SC at 56 who, when referring to the limitation provision in the Public Lands Acquisition Law, put the issue more succinctly thus:
The two Law Lords could not by their pronouncements quoted in the minority judgment be understood in all fairness to them to be advocating that the Courts should ride rough shod of statutory periods of limitations by reason only of otherwise arguable facts having been placed on Joinder of issues. What is there to try when the statute has provided that the period allowed for bringing an action in which those facts which have been in issue has expired? Absolutely nothing.
It is clear from the above judicial views on the basis of limitation law once a defence of limitation of time is stated and grounded in the averments in support of the summons, (as in this case at hand) and it is established, this bars the plaintiffs,

remedy and extinguishes the right of his action; then the Court will wash off its hands and decline to entertain the action. This in effect means that there, is absolutely no basis for prying into the conduct of the Appellant howsoever which gave rise to the action even as being suggested here by the learned counsel for the Respondents.

A close perusal of reliefs “c” and “d”? reveals that the 1st Respondent as CLAIMANT for himself and on behalf of UMUDURU COMMUNITY, ISIALA MBANO LOCAL GOVERNMENT AREA is claiming the Land described in reliefs “c” and “d” as overlord of the Appellants. In other words, he is claiming that the Appellants are CUSTOMARY TENANTS to the Claimant but they have challenged on numerous occasions the right of the Claimants as their overlord. For ease of reference the reliefs are as follows:
(c) A declaration that the entire Land occupied by the defendants is Umuduru Land and that the Claimants are entitled to possession thereof:
(d) An Order forfeiture (sic) of the entire Land so occupied by the defendants by reason of their misconduct.

These have to be read along with

paragraphs 29, 33, 34, 35 and 36 of the Statement of Claim which read thus:
29. Furthermore, rather than respect the Claimants? radical proprietary rights over the land, the defendants have since challenged claimants said rights by several irritating and provocative acts including forcefully imposing defendants? name over claimants? land, selling parts of the claimants? land to unsuspecting third parties and openly denying the claimants title as overlords of the land. The final straw came when the defendants sued the claimants in the aforementioned Suit No. HME/17/84 claiming ownership of the claimants? land. The defendants admitted this fact in the previous suit and cannot deny it now.
33. The claimants contend that by reason of the aforesaid brazen challenge to the claimants rights by the defendants, the aforesaid acts of the defendants amount to such misconduct or misbehavior as should render the defendants liable to a forfeiture of claimants? land occupied by the defendants.
?34. The claimants contend that the defendants know that the claimants are their overlords but the defendants have persistently challenged the

claimants ownership rights over the land even in the face of the aforesaid judgments of the Court of Appeal and the Supreme Court, by brazenly and provocatively persisting in asserting baseless ownership rights over the claimants land.
35. The claimants contend that the defendants being strangers in the locality do not own any land near or around the headquarters of the said Local Government. All the land belongs to the claimants including the section occupied by the defendants.
?36. The claimants contends further that the renaming of the said headquarters by the defendants is unlawful, wrongful and should be nullified. Furthermore, by challenging the claimants? title the defendants have so misconducted themselves that the claimants are entitled to recover possession of the land occupied by the defendants due to the aforesaid misbehavior.?

I am of the view that if one reads the whole gamut of the 1st Respondent?s pleading inclusive of paragraphs 29, 33, 34, 35 and 36 of the Statement of Claim, the four reliefs endorsed on the Writ of Summons reveal an attempt to relitigate matters already decided in favour of the 1st Respondent (as pleaded by him)

by the Court of Appeal and the Supreme Court. I am of the firm opinion that the 1st Respondent having pleaded that they were the one who voluntarily gave their Land to British Colonial Administration in 1902, I do not see any cause of action that can give the 1st Respondent any justiciable rights to Litigate upon the said Land again. As I have said earlier in the resolution of Issue 2, the reliefs being pressed under reliefs c and d for adjudication by the Lower Court amount to abuse of the Court process, having regard to Suit No. HME/17/84 which the 1st Respondent pleaded was a matter fought to Supreme Court between the Appellants and the 1st Respondents Family.

The Learned Counsel to the 1st Respondent reiterated this fact when in the Course of his argument on behalf of 1st Respondent, he said that the Appellants sued them on the same Land in 1984 and the Suit terminated in the Supreme Court in 2003. There emerges the collapse of the 1st Respondents Case in limine. I also adopt my reasoning and conclusion under Issue 2 in also resolving Issue 3 in favour of the Appellants.

In the result, the Appellants appeal is

meritorious and it is hereby allowed. The Ruling of the Lower Court delivered on 26th day of April, 2010 dismissing the Appellants Motion dated 12th October, 2009 and filed on 19th day of October, 2009 for dismissal of the Suit herein in limine is hereby set aside.

The Suit of the 1st Respondent against the Appellants (HME/92/2009) is hereby struck out.
There will be no order as to costs.

IGNATIUS IGWE?AGUBE, J.C.A.:?I have had a preview of the judgment just delivered by my Learned brother Peter O. Ige, JCA. I agree with his reasoning and conclusion that this appeal is meritorious and it is hereby allowed.

?My Learned brother in his scholarly manner exhaustively considered all the issues raised for determination to the extent that I have nothing more to add. I accordingly also allow the appeal endorse the consequential order as to costs.

ITA GEORGE MBABA, J.C.A.:?I had the advantage of reading, in draft, the lead judgment just delivered by my learned brother, PETER OLABISI IGE JCA and I agree, completely, with his reasoning and conclusions. I too allow the appeal and abide by

the consequential orders in the lead judgment. ?

Appearances

JOE ONYENAKAZIFor Appellant

AND

No Appearance for the RespondentsFor Respondent