CHIEF OHIA CHUKWU & ORS. v. JOHN AMADI & ORS.
(2011)LCN/4434(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of March, 2011
CA/PH/177/2009
RATIO
REPLY BRIEF: THE ESSENCE AND PURPOSE OF A REPLY BRIEF
It has been repeatedly held that the essence of a reply brief in the appeal process is to enable the Appellant respond to those fresh issues the respondent raised in his brief which the Appellant did not or could not have contemplated let alone address in his main brief. The reply brief is not intended to provide for the Appellant another opportunity of rearguing all over the appeal he had argued earlier in his main brief. See Olafisoye v. FRN (2004) 4 NWLR (pt.864) 580 and Popoola v. Adeyemo (1992) 8 NWLR (Pt.257) 1. PER MUSA DATTIJO MUHAMMAD, J.C.A.
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION ONCE RAISED SHOULD BE DECIDED AT THE EARLIEST OPPORTUNITY
I agree with learned Appellants’ counsel that because of the fundamental and crucial nature of the jurisdiction of a court it is important for a party who perceives that a court lacks the jurisdiction to hear a matter to raise the issue at the earliest opportunity and once so raised the court is expected to decide the issue at the earliest opportunity. It must therefore be stressed that the issue of jurisdiction must be raised timeously and resolved first before the court embarks on further proceedings. see Ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527 SC, Nonye v. Anyichie (2005) 2 NWLR (Pt.910) 623. Lufthansa Airlines v. Odiese (2005) 7 NWLR (pt.978) 39 and AG. Lagos v. Dosunmu (1989) 3 NWLR (Pt.111) 552. The principle is so because any proceedings conducted by a court without the jurisdiction being a nullity is waste of the time of all the stake holders. PER MUSA DATTIJO MUHAMMAD, J.C.A.
STATUTE BARRED: THE EFFECT OF AN ACTION THAT IS STATUTE BARRED
In Sosan v. Ademuyiwi (1986) 3 NWLR (Pt.27) 241 at 243, the Supreme court stated as follows: “Where an action has become statute barred by operation of the Limitation Act (or Law) the effect is that the cause of action (or the plaintiffs title in an action of declaration of title as in this case) becomes extinguished by operation of Law and can no longer be maintained in courts” (Underlining for emphasis) See also Ajibona v. Kolawole (1996) 10 NWLR (PT.47) 1 and Akibu v. Ezeez (2003) 1 SC (Pt.111) 71 at 86.” Per MUHAMMAD, J.C.A. (Pp. 23-24, paras. G-B) PER MUSA DATTIJO MUHAMMAD, J.C.A.
JURISDICTION: WHETHER THE ISSUE OF JURISDICTION CAN BE TAKEN ALONG WITH ARGUMENTS ON THE MERIT OF A CASE
… the procedural requirement that a jurisdictional issue should be determined first does not mean that it must be treated separately. The issue can be taken along with arguments on the merits of the case as was done in the case at hand. The advantage of such a proceeding is that in the event of an appeal, by any of the parties, the appellate court is placed at the vantage position of being able to express its views on the lower court’s decision on the question of jurisdiction as well as to the merit of the case thereby saving time and costs. See Senate President v. Nzeribe (2004) 9 NWLR (Pt.878) 251 and Gombe v. PW (Nig.) Ltd (199s) 6 NWLR (Pt.402) 402. PER MUSA DATTIJO MUHAMMAD, J.C.A.
COUNTER CLAIM : WHETHER WHERE THE DEFENDANT HAS SET UP A COUNTER CLAIM AND THE PLAINTIFF’S CLAIM IS STAYED, DISCONTINUED OR DISMISSED, THE COURT CAN PROCEED TO HEAR THE COUNTER CLAIM
Where therefore, the plaintiffs claim is stayed, discontinued or dismissed for whatever reason the practice is for the court to continue and conclude hearing into the counter claim and/or cross action in the suit and/or consolidated matter. It is for this purpose that Order 17 rules 11 of the High court (civil procedure) Rules of Rivers state empowered the lower court thus: “If in any case in which the defendant sets up a counter claim, the action of the claimant is stayed, discontinued or dismissed, the counter claim may nevertheless be Proceeded with.” The foregoing provision is as plain and unambiguous as it possibly could be and the lower court is right having been so empowered to have proceeded with Respondents. counter-claim and cross action notwithstanding the fact that suit No. PHC/490.2000 to which the counter-claims are adjunct has been dismissed. See also this court’s decision on the point in Ogbonda v. eke (1998) 10 NWLR (Pt.568) 73 79, Dabup v. Kolo (1993)9 NWLR (Pt.317) 254 and Usman v. Garke (2003) 14 NWLR (pt.840) 261 at 284 cited and relied upon by learned Respondents counsel. PER MUSA DATTIJO MUHAMMAD, J.C.A.
JUSTICES:
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
CHIEF OHIA CHUKWU & ORS. – Appellant(s)
AND
JOHN AMADI & 5 ORS. – Respondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading judgment): This is an appeal against the judgment of the Rivers state High Court in a consolidated matter comprising suit No.PHC/490/2000 and suit No. PHC/707/2000, delivered on 19th November, 2007. Very briefly, the facts of the case that led to the appeal are:
The Appellants who were the plaintiffs in suit No. PHC/490/2000 claimed against the 1st and 2nd sets of Respondents being the defendants as follows:
“1. A Declaration that the customary right of occupancy over and in respect of all that piece and parcel of land comprised in the entire area of land known as and called Otuloro Wosu in Rumuodara, Obio/Akpor within the jurisdiction of this Honourable court, vests in the plaintiffs.
2. A declaration that the attempt by the 1st set of defendants at purchasing part of the piece or parcel of land from the plaintiffs in 1977 having failed, the 1st set of Defendants could nor acquire any title over the whole or any part thereof to pass to anybody including the 2nd and 3rd sets of defendants.
3. N50.000.00 damages for trespass.
4.Injunction restraining the defendants from further trespassing on the said piece of land.”
The 1st and 2nd sets of Defendants/Respondents filed their respective statements of Defence and counter claims.
suit No. PHC/709/2000 had also been commenced by the 2nd set of Respondents against the Appellants and the 1st set of Respondents claiming declaration to stay jointly against the two declaration of entitlement in respect of two parcels of land measuring 4078.87 and 2024.81 meters respectively and situate in Otuloro Wosu Land in Rumuodara community, Obio/Akpor Local Government Area of Rivers State within the jurisdiction of this Honourable court.
The Appellant neither filed any defence to the counter claim of the two sets of defendants nor the cross action of the 2nd set of Respondent.
Following the consolidation of both suits, the Appellants herein became the plaintiffs with the respondents as the 1st, 2nd and 3rd sets of defendants. The appeal against the 3rd set of respondents having been discontinued, their names were struck out from the appeal.
Plaintiffs’ case in the consolidated suit is that the land in dispute, Ohia Otuloro Wosu, is owned by the two family units who, from time immemorial, have been exercising maximum acts of ownership and possession over the land.
They farmed and harvested oil palm fruits on the land. Sometime in 1977, the 1st set of defendants being in need of farm land approached the plaintiff’s family elders. Unable to offer reasonable price for the purchase of the land, they made an advance payment of N1,400.00 pleading that they be allowed to rent the land for farming purposes on yearly basis. They were however issued with a purchase receipt dated 3rd April 1977. It is the claimant’s further case that the 1st set of defendant’s are neither members of their family nor own any part of the land in dispute. None of the two family units, Rumuchukwu and Rumuokeke, had any dealing separate from the transaction elders of the family had with the 1st set of defendants.
The first witness called by the Appellants stopped coming to count after he had partly testified. The witness was never cross-examined. His testimony was for that reason expunged. The only witness that testified fully for the plaintiffs did so in complete consonance with their pleadings. He told the court that the 1st set of defendants approached the plaintiffs’ family through one late Thompson Weli wanting to rent land for farming purposes. They paid N1,400 for which they were issued receipt on 3/4/1977. The land was neither sold to the 1st set of defendants by the elders nor was the meeting of the entire family ever held to discuss any sale to them. Plaintiffs were unable to produce more witnesses. They had their case foreclosed.
The 1st set of defendants in suit No. PHC/490/2000 denied the plaintiffs claim. They also counterclaimed. Their case is that they bought two parcels of land form the Rumuchukwu and Rumuokeke families for which they paid a deposit of N1,400 on 3/4/77 and a further payment of the sum of N4000 on 14/6/77. On each occasion they made the payments, they were issued a purchase receipt. Subsequently, having paid the agreed price, they signed two
deeds of conveyance and took possession of the parcels of land. They insist that the land was out rightly purchased from the plaintiffs and that they acquired the right to deal with the land as they wished. They urged the court to so declare and to award them two million naira damages against the plaintiffs who had portrayed them as fraudulent. They asked that the plaintiffs be restrained as well.
The 2nd set of defendants is the plaintiff in suit No. PHC/709/2000. His case is that on purchasing the land in dispute from the 1st set of respondents in 1978, he was introduced to the principal members of the Rumuchukwu and Rumuokeke families. He has remained in undisputed possession of the parcels of land since the purchase. It is his further case that in 1989 he fenced the land in dispute. He contends both his counter-claim and cross action, that plaintiffs’ suit is statute barred.
In a well considered judgment, the trial court held that the claim of the plaintiffs in suit No. PHC/490/2000 is statute barred and that the 2nd set of defendants in the consolidated suit having proved his claim and counter-claim, is entitled to the statutory right of occupancy in respect of the parcels of land. The court further awarded him damages for trespass.
Being dissatisfied with the lower court’s judgment, the plaintiffs in suit. No.PHC/490/2000 have appealed against same on six grounds. Parties have filed and exchanged their briefs of argument. They adopted and relied on same at the hearing of the appeal. The four issues distilled by the appellant from their six grounds of appeal at pages 3-4 of their brief read:
“1. Whether the Appellants’ action at the court below was statute barred, and if so, whether the trial court had the jurisdiction and competence to adjudicate in the action.
2. Whether the two unregistered deeds of conveyance (exhibits F & G) constitute “the instruments of transfer from the grantor families to the 1st set of defendants” of the two parcels of land in dispute and whether the survey plan exhibit H was “the original grant”.
3. Whether the trial High court properly evaluated the evidence led before it.
4. Whether having regard to the weight of evidence and the evidential burden of proof in civil cases, the 2nd set respondent as a counter-claimant and cross-action claimant proved his case and was therefore entitled to judgment in his favour.”
In the joint brief of the 1st and 2nd sets of respondents, four similar issues have been formulated as having arisen for the determination of the appeal. They read:
“(a) Whether the Appellants’ action at the lower court was statute barred, and if so, whether it stops the trial court from adjudicating on the counter-claims of the 1st and 2nd sets of Respondents at the lower court and the cross action filed by the 2nd set of Respondent also at the lower court. This is distilled from grounds 1 and 2 of the Notice and Grounds of Appeals.
(b) whether from the totality of the evidence before the court, the title of the 1st set of Respondents was duly established as to enable the trial court hold that the two Deeds of Conveyance (Exhibits F & G) constitute the instrument of transfer from the grantor families to the 1st set of Respondents for all the parcels of land comprised in EXHIBIT H. This is distilled from grounds 3 of the Notice and Ground of Appeal.
(c) Whether the learned trial Judge properly evaluated the facts and evidence before it properly before arriving at the several conclusions it drew. This is distilled from grounds 4 and 5 of the Notice and Grounds of Appeal.
(d) Whether, from the totality of the evidence before the court, the 1st set of Respondents as counter cum cross-action claimant proved their cases and entitled to judgment as was given by the lower court. This is distilled from ground 6 of the Notice and Grounds of Appeal.
On their first issue, Appellants harped on the paramountcy of the issue of jurisdiction in the litigation process. They argue that their suit is not statute-barred.
But assuming without conceding that the suit is statute-barred, the lower court, they contend, lacked the jurisdiction to adjudicate in the matter and the court s enquiry into the suit is a nullity. It is wrong, therefore, for the court to have dismissed their action that has not been competently enquired in to instead of striking it out. Once the court has decided that the matter is statute-barred, it is incumbent on it to strike same out. Learned Appellant counsel relies on Ita v. Archibong (1995) 4 NWLR (Pt.387) 83 at 97; Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, Chacharos v. Ekimpex Ltd. (1998) 1 NWLR (Pt.68) 88. Balonwu v. Chinyelu (1991) 4 NWLR (183) 30 and Muemue v. Gaji (2000) FWLR (Pt.16) 2754 and urges that the issue be resolved in their favour.
Under the second issue, learned Appellants’ counsel submits that the lower court has erred when it finds for the Respondents on the basis of Exhibits F,G and H. Exhibits F and G being unregistered documents that affect land could not be pleaded and remain inadmissible as evidence of title by virtue of Section 15 of the Lands Registrar Law. He supports his contention with Ibrahim v. Osunde (2003) FWLR (Pt.142) 65, Akinduro v. Alaya (2007) 15 NWLR (Pt.1057) 312. Learned counsel further argues that Exhibit H too cannot in itself be root of title or evidence grant of the land in favour of the party who tenders it. The lower court’s reliance on the Exhibits to grant title to the 2nd set of Respondents who has not proved that the 1st set of Respondents in fact have the authority and capacity of make the grant, is wrong in law. Learned counsel supports his submission with: OLORUNFEMI v. Ojo (1993) 8 NWLR (Pt.313) 542; Olusanmi v. Oshasona (1992) 6 NWLR (Pt.245) 22, Okere v. Nwoke (1991) 8 NWLR (Pt.209) 317, Ekpeyong v. Etim (1990) 3 NWLR (Pt.140) 594 and Ojo v. Phillips (1993) 5 NWLR (Pt.296) 751,
For their 3rd issue, learned Appellants’ counsel submits that the lower court that has the primary duty of evaluating the evidence before it has failed to. He submits that this court is in the face of the failure, empowered to evaluate the available evidence and draw correct inferences more so when the credibility of the witnesses is not in any way an issue. The lower court, it is further submitted, relied on the statement of Claim filed on 16/1/2004 instead of the amended statement of claim dated 25 -5- 2005. Also, the trial court’s refusal to grant the Appellants more time to prove their case and forcing them to foreclose their case is unfair. On the whole and going particularly by the finding of the court at page 310 of the record, the lower court’s judgment is not borne out by the pleadings of parties and the evidence led by them. Relying on Sule v. Hamidu (1988) 4 NWLR (pt.90) 516, AG Oyo State v. Fairlakes Hotels (No.2) (1989) 5 NWLR (Pt.121) 255, FHA v. Sommer (1986) 1 NWLR (Pt.17) 533 and Umar v. Bayero University (1988) 4 NWLR (pt.86) 85, learned counsel prays that this court sets aside the lower court’s perverse judgment.
The arguments advanced by the Appellants under their 4th issue merely repeat the submissions made pursuant to their 3rd issue but this time as the principles apply to the 2nd set of defendants/Respondents counter claim.
Appellants argue with equal force that 2nd set of Respondent /counter-Claimant who has not established his case through any of the five ways the courts held title could be proved is not entitled to judgment. Learned counsel re-emphasizes that Exhibits E, F as well as Exhibits E and F, are unregistered registrable instruments while Exhibit G a mere survey plan. Furthermore; Exhibit H and K share the same disability as Exhibits E and F. Learned counsel supports his contention with the principles propounded in Akinduro v. Alaya (2007) 15 FWLR (Pt.1057) 312; Olatunji v. Adisa (1995) 2 NWLR (pt.376) 167; Moses v. Okhuarobo v. Chief E. Aigbe (2002) FWLR (pt.116) 869 and Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616 SC at 628 and submits that the erroneous decision of the lower court in respect of the counter-claim be tempered with. On the whole, he urges that all their four issues be resolved in their favour and the appeal allowed.
Responding to the arguments of learned Appellants counsel under the first issue, learned Respondents counsel submits that the land in dispute was sold to the 1st set of Respondent in 1977 as evidenced by the two purchase receipts Exhibit E dated 3rd April and 14th June 1977 respectively and the resultant Deeds of conveyance Exhibits F and G dated the 6th and 7th February 1978 respectively.
The extent and dimensions of the land in dispute is as contained in Exhibit H.
Appellants commenced their action in February 2000 having stood by for twenty two years without such an action against the 1st set of Respondents. Appellant, it is further argued, also stood by for more than twenty years while the 2nd set of Respondents exercised full control and ownership over the land they acquired from the 1st set of Respondents. Having constructed access road on the land, and put some tenants and farmers on the land, the 2nd set of Respondents in 1989 fenced the land and erected a security house and gate Exhibit K shows that the 2nd set of Respondents purchased the one acre of the land in dispute on 17/2/78.
The half acre, by Exhibit L, was purchased in 1992. By virtue of the limitation Law of Rivers state cap. 80 Laws of Rivers state 1999 Appellants action is statute barred. This conclusion emanate from a perusal of Appellant’s amended statement of claim.
Learned Respondents’ counsel further posits that the issue of jurisdiction can be raised any time and does not require any procedure. Appellants insistence that their action should have been struck out rather than dismissed is hollow. Only such actions where the condition precedent to their being commenced is subsequently capable of being met are struck out. Where the action cannot for any reason be revived, it must be dismissed. Finally under the issue, learned Respondent counsel submits that the counter-claim and cross actions of the Respondents are separate and distinct from the Appellants action.
These, learned Respondents counsel argues, persist inspite of the misfortunes of the Appellants. Learned counsel cumulatively relies interalia on Wohrem v. Emereuwa (2004) All FWLR (pt.221) 1570; Dauda v. University of Agric Makurdi (2003) FWLR (pt.176) 687 at 704; chime v. Onyia (2009) 2 NWLR (Pt.1124) 1 at 72; Gowon v. Ike Okongwu (2003) 6 NWLR (Pt.815) 38; ogbonda v. Eke (1998) 10 NWLR (pt.568) 73; Elebanjo v. Dawudu (2006) 15 NWLR (Pt.1001) 76; NPA v. Lotus plastics Ltd. (2006) vol.2 MJSC 41 AND Inakoju v. Adeleke (2007) 4 NWLR (pt.1025) 433 and contends that the first issue should be resolved in their favour.
Under the 2nd issue, learned Respondents counsel submits that Appellants quarrel with the lower courts’ finding at page 310 of the record is baseless. Appellants contention that Exhibits F and G, in addition to the two purchase receipts and Exhibit H do not constitute instruments of transfer is not supported by law. The law, he submits, is that a purchaser of land who has paid the purchase money and is in possession by virtue of an unregistered instrument acquires an equitable interest in the land and the interest so acquired is as good as a legal estate. Relying on Etajata v. ologbo (2007) 16 NWLR (pt.1051) 554, Provost, Lagos State College of Education & ors. V. Edun (2004) 6 NWLR (pt.870) 476, Yaro v. Arewa Construction Ltd. (2007) 17 NWLR (Pt.1063) 333 at 373, Awaogbo v. Eze (1995) 1 NWLR (Pt.372) 393 and Hamidu v. Sahar Ventures Ltd. (2004) 7 NWLR (Pt.873) 618. Learned counsel prays that we so find. He stresses that it does no longer lie in the mouth of the Appellants to press the issue on non-registration of the Exhibits and it will be inequitable to deny the Respondents title. The Respondents, their counsel submits, are entitled to have the issue resolved in their favour learned counsel submits.
In arguing the 3rd issue by way of reply, learned Respondents counsel posits that in a claim for declaration of title to land the onus is on the plaintiff to establish the identity of the land to which the claim relates. The Appellants, he submits rely, on Exhibit A, survey plan No. DEO/RVOO4/2003 LD attached to and referred also to in paragraph 5 of their amended statement of claim. The Appellants claim is therefore limited to the land in dispute as described in Exhibit A. They cannot veer off from the descriptions contained in Exhibit A. The point, learned counsel submits has been well stated in Hashidu v. Goje (2003) 13 NWLR (Pt.843) 352. A perusal of Exhibits E, F and G, submits counsel, belies Appellants claim that 1st set of Respondent is yet to pay up the purchase price fully. Granted, that claim is correct, the law as propounded by the Supreme Court in Yaro v. Arewa Construction Ltd (2007) 17 NWLR (pt. 1063) 133, entitles the 1st set of Respondents to the grant of the land on the basis of the part payment they made to the Appellants.
Learned Respondents counsel contends under their 4th issue for the determination of the appeal that the appellants who did not file any defence and/or reply to the counter-claims of the 1st and 2nd sets of defendants/Respondents in suit No. PHC/709/2000 must in law be deemed to have admitted the counter-claims and cross actions. Both the counter-claims and cross action, learned counsel restates, are separate from Appellants original action and in the absence of any defence thereto, the court is empowered to give judgment to the deserving counter claimant. Counsel supports his submission with Dabup v. Kolo (1993) 9 NWLR (Pt.317) 254; Usman v. Garke (2003) 14 NWLR (pt. 840) 261 at 204, Nigerian Housing Development Society Ltd. V. Mumuni (1977) 2 SC 57 and Gowon v. Ike-Okongwu (supra)
The law, learned Respondents counsel further argues, allows the Respondents to prove their claim for declaration of title through one of the five ways listed in many cases. Learned counsel to this end cites idundun v. Okumagba (1976) 9/10 SC 227, Wuroma v. Gashua (2002) FWLR (Pt.106) 1030 at 1042, Uka v. Irola (2002) FWLR (pt.127) 1167 at 1191 – 1192 and submits that the Respondents have satisfied one of the requirements in these cases. The two sets of Respondents have, submits counsel, at pages 54-58 and 72 to 79 of the record both in their respective statement of defence and counter-claim to Appellants claim as well as in 2nd Respondents statement of claim in suit No. PHC/709/2000 pleaded their root of title. The three witnesses; including the 2nd set of Respondents DW2, testified to the effect that he bought the land in dispute from the 1st of defendants/Respondents. The latter, submits learned Respondents counsel, purchased the land in dispute that forms part of Ohia-Otuloro Wosu land from the Appellants family in 1977. DW2 had further testified that he fenced the land in dispute and also put farmers and other users onto the land since its purchase. The Appellants survey plan in respect of the land in dispute. Exhibit, Exhibit D, and Exhibit E, the two purchase receipts issued to the 1st set of Respondents, Exhibits F and G, the deeds of conveyance pursuant to Exhibits D and E evidence the 1st set of Respondents legal entitlement to the land in dispute. These documents transfer to the 1st set of Respondents the very title he transfers to the 2nd set of Respondent. Learned counsel again urges that we hold that on the basis of this prevailing evidence that Respondents have indeed proved their counterclaims.
He urges us to resolve all the issues in their favour and dismiss the appeal on being served with Respondents brief of argument, the Appellants filed their reply brief and have sought to rely on same to prosecute their appeal.
The reply brief wherein the Appellants clearly seek to reargue the appeal must outrightly be discountenanced.
It has been repeatedly held that the essence of a reply brief in the appeal process is to enable the Appellant respond to those fresh issues the respondent raised in his brief which the Appellant did not or could not have contemplated let alone address in his main brief. The reply brief is not intended to provide for the Appellant another opportunity of rearguing all over the appeal he had argued earlier in his main brief. See Olafisoye v. FRN (2004) 4 NWLR (pt.864) 580 and Popoola v. Adeyemo (1992) 8 NWLR (Pt.257) 1
The 1st and 2nd grounds of appeal from which the 1st issue for determination is distilled raise a complaint against the finding of the lower court at page 312 of the record of appeal. The finding reads:
“In the course of argument, counsel for the 2nd set defendant raised a legal defence of statute barred, which 2nd set defendant also had risen in his pleadings, contending that the claimants suit is statute barred. Under and by virtue of Exhibits F and G, title and possession of the land, subject of the original grant passed to the 1st set defendants herein and with that, beneficial ownership thereof the land as the 1st set defendants please. Exhibit F and G were made in 1978.
This suit commenced in the year 2000 with the sole objective by the claimants to recover possession 12 years(sic) after they surrendered possession, having sold parcels A and B in Exhibit to the 1st set of defendants. I find merit in the contention that the action of the claimant in suit No.PHC/490/2000, quite apart from being wholly unmeritorious, is statute barred.”
Appellants, argument under the first issue is that the lower court has erred in not determining the issue of its jurisdiction or competence first before assuming jurisdiction over the consolidated suits and determining the merits of the suits inspite of its finding that the substantive suit, No. PHC/490/2000 is statute barred. It is further suggested that the court’s entire proceedings including its eventual decision in respect of the Respondents counter claim and cross action in suit No PHC/707/2000 are a nullity. Learned Appellants counsel is not totally right.
I agree with learned Appellants’ counsel that because of the fundamental and crucial nature of the jurisdiction of a court it is important for a party who perceives that a court lacks the jurisdiction to hear a matter to raise the issue at the earliest opportunity and once so raised the court is expected to decide the issue at the earliest opportunity. It must therefore be stressed that the issue of jurisdiction must be raised timeously and resolved first before the court embarks on further proceedings. see ukwu v. Bunge (1997) 8 NWLR (Pt.518) 527 SC, Nonye v. Anyichie (2005) 2 NWLR (Pt.910) 623. Lufthansa Airlines v. Odiese (2005) 7 NWLR (pt.978) 39 and AG. Lagos v. Dosunmu (1989) 3 NWLR (Pt.111) 552. The principle is so because any proceedings conducted by a court without the jurisdiction being a nullity is waste of the time of all the stake holders.
In the instant case, the 2nd set defendant has raised in his statement of defence and counter claim, as required by rules of court, the legal defence that the Appellants suit is stature barred. The defence so raised is a jurisdictional issue the consequence of which, if sustained, is to take away Appellants’ right of action, enforcement and access to judicial relief leaving them with an empty cause of action no court is empowered to have same enforced.
In Sosan v. Ademuyiwi (1986) 3 NWLR (Pt.27) 241 at 243, the Supreme court stated as follows:
“Where an action has become statute barred by operation of the Limitation Act (or Law) the effect is that the cause of action (or the plaintiffs title in an action of declaration of title as in this case) becomes extinguished by operation of Law and can no longer be maintained in courts” (Underlining for emphasis) See also Ajibona v. Kolawole (1996) 10 NWLR (PT.47) 1 and Akibu v. Ezeez (2003) 1 SC (Pt.111) 71 at 86.
It is undeniable that the lower court has erred in not suo-motu ensuring a timeous resolution of the jurisdictional question raised in 2nd set of Respondents statement of defence and counter claim. It is however never late to decide such an issue for, after all, it is either that the court has or does not have the competence to hear a matter. Besides, the procedural requirement that a jurisdictional issue should be determined first does not mean that it must be treated separately. The issue can be taken along with arguments on the merits of the case as was done in the case at hand. The advantage of such a proceeding is that in the event of an appeal, by any of the parties, the appellate court is placed at the vantage position of being able to express its views on the lower court’s decision on the question of jurisdiction as well as to the merit of the case thereby saving time and costs. See Senate President v. Nzeribe (2004) 9 NWLR (Pt.878) 251 and Gombe v. PW (Nig.) Ltd (199s) 6 NWLR (Pt.402) 402
One must further agree with the learned Appellants counsel that the lower court is wrong in its dismissal of Appellants action having found same to be statute barred. Learned counsel is right in his insistence that the action should have been struck out instead. In Hassan v. Aliyu (2010) 17 NWLR (Pt.1223) 547 at 563 the supreme court has held that the proper order for a court that finds its jurisdiction to adjudicate on any matter ousted by virtue of such an ouster clause contained in a statute is to make an order striking out the suit and not an order dismissing the suit. In the instant case Appellants right of action and judicial relief is extinguished by the operation of the Limitation Law of Rivers State Cap.80 of 1999 which in Section 1 provides:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to the Person.”
The Appellants, cause of action as rightly found by the lower court arose more than ten years previously. Appellants cannot forever enforce such a cause of action by virtue of the foregoing clear and unambiguous provision of the Limitation Law of Rivers State.
Appellants, counsel cannot however be right in his submission that the lower court is in error to have proceeded, inspite of its lack of jurisdiction over Appellants action, on the 1st and 2nd set of Respondents counter claim as well as the cross action of the latter set of defendant/respondent. As submitted by learned Respondents, counsel, it is indeed beyond doubt that suit No. PHC/709/2000 is a separate action commenced by the 2nd set of defendants in the consolidated action. The counter-claims of the 1st and 2nd set of defendants in suit No.PHC/490/2000 commenced by the Appellants are also separate actions subjoined to the statements of defence of the two sets of defendants purely for convenience.
Where therefore, the plaintiffs claim is stayed, discontinued or dismissed for whatever reason the practice is for the court to continue and conclude hearing into the counter claim and/or cross action in the suit and/or consolidated matter. It is for this purpose that Order 17 rules 11 of the High court (civil procedure) Rules of Rivers state empowered the lower court thus:
“If in any case in which the defendant sets up a counter claim, the action of the claimant is stayed’ discontinued or dismissed, the counter claim may nevertheless be Proceeded with.”
The foregoing provision is as plain and unambiguous as it possibly could be and the lower court is right having been so empowered to have proceeded with Respondents’ counter-claim and cross action notwithstanding the fact that suit No. PHC/490.2000 to which the counter-claims are adjunct has been dismissed.
See also this court’s decision on the point in Ogbonda v. eke (1998) 10 NWLR (Pt.568) 73 79, Dabup v. Kolo (1993)9 NWLR (Pt.317) 254 and Usman v. Garke (2003) 14 NWLR (pt.840) 261 at 284 cited and relied upon by learned Respondents counsel.
Learned counsel to the Respondents has urged us not to resolve this issue and indeed the appeal against them because of the lower court’s error of not outrightly deciding the point of law raised by the 2nd set of Respondent and for dismissing appellants’ suit that is caught up by the limitation law of Rivers State. The court’s errors, it is argued, have not occasioned any miscarriage of justice. I agree with learned counsel that in considering an issue and/or the totality of an appeal the overriding factor an appellate court considers is whether the trial court is right in its decision and, where wrong, if the misdirection has occasioned miscarriage of justice. Where the trial court’s error has not been shown to occasioned injustice, thus being immaterial, the court’s decision is allowed to persist. Learned Respondents’ counsel is on a firm terrain to have so posited and relied in this regard on, inter alia, Agbaje v. Ajibola (2002) 2 NWLR (Pt.750) 127 and Yusuf v. Adegoke (2007) 11 NWLR (pt.1045) 332 at 358. I so hold.
For all that I tried to state so far, I resolve the first issue against the Appellants.
In my considered view the resolution of the 4th issue distilled by the Respondents would address squarely the outstanding controversy in this appeal.
By the grounds of appeal from which the issue is distilled, Appellants complaint is that had the lower court properly evaluated the totality of the evidence before it, the court would have arrived at a different conclusion from the one it has reached. This complaint must certainly be in relation to the counter-claims and cross action of the Respondents since the lower court has found, and I hasten to say correctly, that Appellants action is statute-barred. Having declined jurisdiction in the suit, no evidence is taken that is possibly evaluated.
The counter claim of the 1st set of defendants/respondents against the Appellants herein is for:
“1. A declaration that the land in dispute was completely purchased by the 1st set of defendants from the plaintiffs consequently the 1st set of defendants has every right to deal with the land the way and manner they liked and have so dealt with.
2.The sum of two million naira damages for the embarrassment caused the 1st set of defendants in that the plaintiffs by their action have portrayed the 1st set of defendants as fraudulent.
3 An order of preferential injunction restraining the Claimants by themselves, their agents, servants, privies or howsoever, from further trespassing into the land in dispute or any part thereof, including the parcels leased to the 2nd and 3rd sets of defendants.”
In addition to contending that plaintiffs/Appellants action is statute barred the 2nd set of defendant counter-claims thus:
(1) A declaration that the 2nd set defendant is the person entitled to the statutory right of occupancy over and in respect of the parcel of land measuring approximately 4078.87 square metres (one acre) and situate at Ohia Otuloro Wosu land in Rumuodara, Obio/Akpor Local Government Area of Rivers State.
(2) A declaration that the 2nd set of defendants is the person entitled to the statutory right of occupancy over and in respect of the parcel of land measuring approximately 2024.89 square metres (half an acre) and situate within the same Ohia Otuloro Wosu land in Rumuodara Obio/Akpor Local Government Area of Rivers State.
(3)The sum of two million (N2,000,000)as special damages for trespass committed by the plaintiffs on the 2nd set of defendant’s parcel of land on 17/2/2000 and for wanton destruction of 2nd set of defendant’s Property therein.
(4) An order of perpetual injunction restraining the plaintiffs, by themselves their agents, servants or privies or howsoever from further trespassing into the 2nd set of defendant’s said parcel of land situate at Otuloro wosu land Rumuodara.
In proof of their counter-claim, Prince Jeri Chinwo testified for the 1st set of defendants in the consolidated suits as DW1. In his sworn deposition which he adopted at the hearing of the matter as well as in his answer under cross examination, he maintained that himself and two others were approached by Thompson Weli who introduced them to the Rumuchukwu and Rumuokeke families of Rumuodara. The two families sold a parcel each to the three of them called Otula Otuwosu. The two parcels share a common boundary. As purchasers the 1st set of defendants, Dw1 further deposed, made a deposit payment of N1,400 on 3rd April 1977 followed by an additional payment of the sum of N4,000 on 14th June 1977. On settling the balance of the purchase price, after the heads and representatives of the two families had ascertained the area sold to them, 1st set of defendants had the parcel surveyed and two deeds of conveyance prepared and signed by the parties on the 6th and 7th of February 1978 respectively. The 1st set of defendants also went into possession of the two parcels of land sold to them. Each time they made deposit payment in respect of the two parcels of land, the 1st set of defendants were issued purchase receipt which on being admitted in evidence at lower court, are marked as Exhibit E. The two deeds of conveyance and the survey plan of the parcels of land bought from the vendor families are marked as Exhibits F, G and H respectively. It is on the basis of these Exhibits that the 1st set of Defendants counter claimed against the plaintiffs in the consolidated suit seeking “a declaration that the land in dispute was completely purchased” by them and that consequently they have acquired the right to deal with the land the way and manner they liked and did. They also claimed damages and perpetual injunction to restrain the plaintiffs by themselves and agents, servants etc from committing further trespass on the land.
As indicated earlier in this judgment, the 2nd set of defendant/respondent acquired the land to which their counter-claim relates from the 1st set of defendants/Respondents. The parcels of land acquired by the 2nd set of defendants/Respondents form part of the land purchased by the 1st set of defendants from the plaintiffs/Appellants. paragraphs 8 to 18 (both numbers inclusive) of the sworn deposition of the 2nd set of defendant himself being very revealing is hereunder reproduced for ease of reference:-
“8 The 1st set of Defendants thereafter partitioned the entire land into two large portions of land which they later began to resell to various purchasers including me.
9. That I know that among the people who purchased land from the 1st set of Defendants were the Living Christ Mission, St Matthews Anglican church and numerous other Persons.
10. The 1st set of Defendant also gave me photocopies of the land purchase receipts dated 3/4/77 and 14/6/77 respectively made between the said 1st set of Defendants of the one part and certain Fyneface Amadi Michael Amadi, Chief Obediah Chinwo, Clement Ogbuigo, John Wali and Lawrence Nwagwuagwu of the other part as being principal representatives of the two families of Rumuchukwu and Rumuokeke the owners of the entire Ohia Otuloro Wosu Land.
11. That I was also given photocopies of the two conveyances made between the 1st set of Defendants and the aforesaid representatives of the two families mentioned above. I have copies of all these documents mentioned with me.
12. That the aforesaid receipts and conveyances further assured me of the rights of the 1st set of defendants over the said land.
13. That I, upon the above confirmation of the title of the 1st of Defendants thereafter approached the 1st set of Defendants for the purpose of Purchasing a Portion of the land from them.
14. That 1st set of Defendants demanded from me the traditional requirements for the purchase of land under Ikwerre Native Law and custom including bush entry fee drinks, tubers of yams and a goat.
15. That I met the above traditional demands of the 1st set of Defendants in cash. Consequently the 1st of Defendant, took me to the land and clearly demarcated the ones they are selling to me by cutting its edges in my presence.
16. Thereafter, I entered upon the land and prepared a conveyance for the parties to sign and paid the agreed purchase price of N25,000.00 (twenty five thousand Naira) for the portion of land that was subsequently surveyed and measuring approximately. 4078.87 square meters which was demarcated out of the Rumuchukwu family portion of the Ohia Otuloro Wosu Land. The purchase price was paid in the presence of Edwin Amadi as witness for the Vendors (1st set of Defendants herein and Emeka Nwosu as witness for me and both parties signed the conveyance made in respect of the land on 17/2/78. The said payment was made in the house of Levi Chinwo, I have and can identify the Deed of conveyance dated 17/2/78 we signed which serves as the evidence of the money I paid for the said land.
17. In 1978, I made access road therein and put in certain tenants who are farmers on the land and they farmed thereon regularly without any disturbance from anybody including any of the plaintiff’s on record.
18. That I left the land that way until 1989, when I cleared the access road to the land a second time and erected a wall fence around the land. The wall was plastered on both surfaces and topped off with metal spikes. Also a security house and gate were erected in the land. All these were done without any let or hindrance from anybody particularly, the plaintiffs or any person claiming through them.” (underling for Emphasis)
At the end of the trial, the court dismissed the plaintiffs claim in suit No. PHC/490/2000 but upheld 1st set of defendants counter-claim having found that on the basis of Exhibits F and G, the land in dispute “was completely purchased” by them. The court found in relation to 2nd set of defendant’s cross action in suit No. PHC/709/2000 that the claimant therein is the person entitled to the statutory right of occupancy in respect of the land comprised in the two deeds of conveyance Exhibits K and L dated 17 -2-78 and 21- 6-92 respectively. It granted the successful claimant the consequential reliefs he prayed also.
The lower court’s finding at pages 310-312 of the record that is circumscribed and particularly attacked inter-alia reads: “Exhibits K and L form part of the original grant by the claimants families to the 1st set of defendants.
The root of title set out in Exhibits K and L incontrovertible. Since the original grant ceased to be owned by the claimants’ family under and by virtue of Exhibits E, H, F and G earlier referred to in this judgment, I do not see how the parcels derived from the same original grant could be said to belong to the claimants. When the claimants disposed of the whole land in 1878, they cannot turn around in 2000 to lay claim to a part of that whole. I have no hesitation or difficulty in holding that the land comprised in Exhibits K and L is indeed the property of the 2nd set of defendant herein, Francis Mbeledogu.”
The thrust in appellants’ argument under the 4th issue is that the lower court is wrong to have found for the 1st defendant/respondent on the basis of unregistered instruments which Exhibits E, H, F and G are. Since 1st set of defendants is in no position to grant to another a title better than the one it has, the 2nd defendant/respondent cannot therefore acquire from the former a title it does not have.
The submission of learned Appellants counsel and his reliance on Section 20 of the Land Instruments (Preparation and Registration) Law as of Rivers State interpreted in Akinduro v. Alaya (2007) 15 NWLR (Pt.1057) 312 at 339, argues the learned respondents’ counsel, is afterall not as threatening as it sounds. Learned Respondents counsel counter that a purchaser of land by virtue of an unregistered instrument having paid the price and gone into possession acquires an equitable interest in the land which is as good as a legal estate. I cannot agree more and rely on the dicta of this court as well as the Supreme Court in the very cases oppositely referred to by learned Respondents counsel.
In Hamidu v. sadar ventures Ltd. (2004) 7 NWLR (Pt.873) 618 the court of Appeal at page 649 stated that an unregistered registrable instrument is still admissible to prove equitable interest and payment of purchase price or rent. In Yaro v. Arewa Construction Ltd. (2007) 17 NWLR (Pt.1063) 333 at 373, the Supreme Court held as follows:
“An equitable interest in land is acquired when there is payment of money coupled with possession. In the instant case, the appellant paid part of the purchase price of N2,300,000.00 to the tune of N1,800,000.00K leaving a balance of N500,000.00K and was put in possession of the disputed property. The Appellant thereby acquired an equitable estate founded on the 1st Respondent’s equity of redemption. The court of Appeal was wrong to hold that the fact that Appellant was put in possession of the property did not validate the sale.”
I have had recourse to the pleadings and the evidence relied upon by both the 1st and 2nd sets of defendants/Respondents to show in very clear terms the case they set out and indeed establish at the lower court. I do not entertain the slightest doubt that the 1st set of defendants by their counter-claim are insisting that having purchased the parcels of land in dispute from the Appellants some right has accrued to them by virtue of the purchase. Exhibits E, F and G are pleaded and tendered as receipts of the purchase while Exhibit H circumscribes the parcels of land to which the sale relates. The fact that the 1st set of defendants/Respondents have been put in possession of the parcels they purchased from the Appellants, from available facts, cease to be in dispute. The lower court is justified in its inference that Exhibits E, F, G and H are not put up by the 1st set of defendants as their source of title. It is only when the 1st set of defendants tender the documents as the root of their title that the non registration of the documents becomes fatal to their claim for declaration of title.
By the land Preparation and Registration Law of River State, Exhibits E, F and G pleaded must not be and admitted as the source of the counter claimants title same being unregistered documents affecting land.
It has been repeatedly held that even where such unregistered documents have been mistakenly admitted in evidence the trial court upon application or even suo motu must expunge the documents which are lacking in evidential value. See Ogunbambi v. Abowab 13 WACA 222 Adesanya v. Aderonmu (2000) 9 NWLR (Pt. 6721) 37O and Akinduro v. Alaya (supra).
In the instant case the 1st set of defendants as purchasers of the land, in dispute who have paid and taken possession of the land by virtue of Exhibits E, F, G and H, registrable but unregistered instruments, can rely on same as evidence of purchase to establish the equitable interest they acquired by virtue of the purchase. Thus the possession of a receipt by a party for payment for the sale of land couple with the purchaser’s possession of the land creates equitable interest that can only be defeated by a purchaser of the same land for value without notice of the prior equity. By their counter claim, the 1st set of defendants/respondents here seek, and the law supports them, to convert their equitable interest into a legal estate by insisting on specific performance of the valid sale agreement between them and the Appellants. See Nsiegbe v. Mgbemena (2007) 10 NWLR (pt.1042) 364 Sc Kachalla v. Banki (2006) 8 NWLR (pt.982) 364 SC.
Appellants seem to suggest that because the 1st set of defendants have not paid the purchase price of the land fully, interest has not for that reason been transferred to them by the vendors.
The law here is that in a contract for sale of land where part payment has been effected, the contract has been concluded and is final leaving the payment of the balance of the purchase price outstanding to be paid. The contract for the sale being complete action can be levied against and of the parties thereto who falls in breach for specific performance. See Kachalla v. Banki (supra).
The 2nd set of defendant/respondent’s case, on the other hand, is that 1st set of defendants having bought the land in dispute from the Appellants sold part of same to them. The sale is under customary law.
To constitute a valid sale under customary law, three ingredients are required: (a) payment of purchase price (b) purchaser is let into possession by the vendor and (c) in the presence of witnesses. Conveyance or written agreement is not a sine in qua non for the validity of land acquisition under native law and custom. Once there is evidence that payment of purchase price has been made to the grantor by the buyer and possession delivered in the presence of witnesses, a valid sale would have come into being. See Adike v. Obiareri (2002) 4 NWLR (Pt.758) 537, Adesanya v. Aderounmu (supra) Ogundalo v. Macjob (2006)7 NWLR (Pt.978) 148 and Odusoga v. Rickets (1997) 7 NWLR (Pt.511)1 SC.
The 2nd set of defendants have from their pleading and evidence demonstrated such facts on the basis of which the lower court rightly inferred sale of the parcels of land contained in Exhibits K and L. There is evidence clearly showing that the land form part of the land purchased by the 1st set of defendants from the Appellants. The fact that 2nd set of defendant/respondent had paid the purchase price and is given the required possession over the purchased parcels is beyond doubt. The lower court’s decision finding for them in the face of the overwhelming evidence is unassailable. In so holding, I resolve against the Appellants, the 4th issue for the determination of the appeal which subsumes the 2nd and 3rd issues as distilled by the Respondents herein.
On the whole, I find no merit in the appeal. In dismissing it the judgment of the lower court is hereby affirmed. I assess costs of the appeal at N50,000 and award same against the Appellants and in favour of the Respondents.
EJEMBI EKO, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, M.D. MUHAMMAD (OFR) JCA, in this appeal. I have nothing substantial to add.
I wish only to emphasize that:
i. Exhibit ‘E’, the purchase receipts for the sums of N1,400.00 and N4000.00 respectively paid on 3rd April, 1977 and 14th June, 1977 makes it unconscionable for the appellants to deny that they intended to, and did infact, sell to the 1st set of respondent the piece of land described and delineated in Exhibit ‘H’.
ii. The Appellant are estopped by the totality of Exhibit ‘E’, ‘F’ and ‘G’ from denying and reneging on the sale of land transaction.
iii. Exhibit ‘F’ and ‘G’ though registrable instruments, which have not been registered in accordance with the provisions of Land Instruments (Preparation and Registration) Law of Rivers State, estop the Appellants from denying or setting up the contrary of their express intentions therein. Equity acts in personam and will step in to prevent a party from acting fraudulently or in any unconsioinable manner, as in the instant. Equity, after all follows the law.
iv. The totality of Exhibits ‘E’, ‘F’ and ‘G’ creates in favour of the 1st set of Respondent an equitable interest in the land described in Exhibit ‘H’.Such equitable interest is capable of alienation or further conveyance.
The court below had held that the Appellants’ action was statute barred by the operation of the Limitation Law Cap. 80 Laws of Rivers State, 1999 expressly sanctioned by section 44 (2) (i) of the 1999 Constitution. Where the statute forbids the bringing of an action, whoever brings such an action does so in defiance of the express letters of the statute. Accordingly, the appropriate order to make against such a party, in order to prevent him from further defying the statute by re-presenting the same suit, is an order of dismissal.
I have nothing further to add to the lead judgment, which I hereby adopt together with all the consequential orders, including order as to costs, therein.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I have had the advantage of reading the draft of the judgment just delivered by my learned brother M. D. MUHAMMAD JCA (OFR), I am in total agreement with the reasonings and conclusion.
I also find no merit in the appeal. The appeal is accordingly dismissed. I abide by the costs as assessed in the lead judgment.
Appearances
Chief C.A.B. Akparanta SAN With J. Nwadawa & J. Osia For Appellant
AND
C.I. Enweluzo (KSM) For Respondent
