CHUKWU MANG NDUKA & ORS v. DR. UGWA ONWUKA AGBAI & ORS
(2018)LCN/11167(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 27th day of March, 2018
CA/OW/47/2014
RATIO
HOW TO DETERMINE WHETHER AN ACTION IS STATUTE-BARRED
It is now well settled beyond any controversy that in order to determine whether or not a plaintiff’s action is statute-barred, the proper document to be examined is the plaintiffs statement of claim together with the other accompanying documents. Per MASSOUD ABDULRAHMAN OREDOLA, J.C.A
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
- CHUKWU MANG NDUKA
2. MBA MANG NDUKA
3. KALU MANG NDUKA
4. OGBONNA MANG NDUKA
5. MRS.NGOZI OKOCHA
(NEE NNENNA MANG NDUKA)
6. EFERE MANG NDUKA
7. NWANNEDIYA MANG NDUKA Appellant(s)
AND
- DR. UGWA ONWUKA AGBAI
(Formerly called Dr. Ugwa Mang Nduka)
2. ADING MBA (A.K.A. ADISON)
3. ELEANYA KALU
4. OMOGELE IJERE Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment)
This is an appeal against the decision of the High Court of Abia State (hereinafter referred to as the lower Court) Coram: Hon. Justice T. U. Uzokwe J, delivered on the 24th day of September, 2013.
The suit which led to this appeal was commenced by the claimants/appellants, wherein in their amended statement of claim, they sought for the grant of the following reliefs against the defendants/respondents:
1. A DECLARATION of this Honourable Court that the plaintiffs are the Administrators, Executors and Beneficiaries of the estate of LATE CHIEF MANG NDUKA of Amaogudu Village Abiriba, Ohafia Local Government and are entitled to the management and administration of the said LATE CHIEF MANG NDUKAS landed property known as and called No. 8 Warri Street, Umuahia, within the jurisdiction of this Court.
2. A DECLARATION of this Honourable Court that the children and wives of the LATE CHIEF MANG NDUKA are entitled in common to the enjoyment of the said property under the law.
3. AN ORDER compelling the defendants to stop their management and administration of the said property and deliver possession/management of same to the plaintiffs for the purpose of such management/administration by the plaintiffs.
4. AN ORDER for account for all monies, profits and rents since collected by the defendants from the tenants of the said landed property since the death of LATE CHIEF MANG NDUKA.
5. A DECLARATION that any document obtained and registered by the 1st defendant in respect of the property in dispute particularly the document registered as No. 3 in page 3 in Volume 26 of the lands registry office Umuahia, is illegal, and void same having been registered in error and without due process.
6. AN ORDER that fees of counsel engaged in this suit be paid from the Estates account.
On his own part, the 1st defendant/1st respondent counter-claimed for the ownership of the property in dispute in this case and sought for order of the Court restraining the plaintiffs/appellants from trespassing and/or interfering with the 1st defendant/1st respondents possession and management of the property in dispute among other reliefs. Henceforth in this judgment the claimants/appellants would be referred to as the appellants, while the defendants/respondents would be called the respondents.
The appellants case was that they are the children and wives of one Chief Mang Nduka who was the original owner of the building known and referred to as No. 8 Warri Street, Umuahia Abia State (hereinafter referred to as the property). The appellants averred that the said Chief Mang Nduka died intestate, and by family arrangement his eldest son Dr. Nduka Mang was saddled with the responsibility of managing the property and was using the proceeds gotten therefrom in form of rents to cater for the needs of the family. It was also the assertion of the appellants that the said Dr. Nduka Mang died some times in 1986 and the respondents exploited that opportunity to forcefully take over the management of the property. The appellants further averred that the respondents (especially the 1st respondent) neglected the appellants and their family members, and utilized the proceeds from the property solely for the 1st respondents benefit. Sometimes in 2005, the appellant wrote the respondents and demanded that the management of the property be returned to them and for the 1st respondent to give an account of his stewardship. The appellants asserted that to their surprise, the 1st respondent refused and claimed the ownership of the property. This now prompted them to file this action.
The 1st respondent on the other hand, countered and maintained that the property in dispute was gifted to him by Chief Mang Nduka and the said gift was evidenced by Power of Attorney executed in his favour and subsequently by a Deed of Assignment. The said gift was alleged to have been made in 1976 and he claimed that from that moment till when this case was commenced, he has been in control and management of the property.
At the close of pleadings, the matter progressed to hearing wherein both parties laid out their respective cases at the lower Court. The appellants called three witnesses and tendered ten exhibits. The respondents called one witness and tendered seven exhibits. Thereafter, the learned counsel for both parties addressed the lower Court and the case was adjourned for judgment. After due consideration of the state of pleadings, evidence led in support thereof and parties addresses, the learned trial judge held that the appellants suit was statute barred and consequently dismiss the same. He also held that the 1st respondent has proved his claim and entered judgment in his favour. The appellants were dissatisfied with the above decision of the lower Court and they have thereby appealed to this Court.
The appellants later obtained the leave of this Court to amend their notice of appeal. The leave to amend was granted on the 26th day of February, 2015 and the amended notice of appeal dated the 3rd day of March, 2015 was thereafter filed on the 6th day of March, 2015. The said amended notice of appeal contained eight grounds of appeal. The amended grounds of appeal, shorn of their particulars are reproduced as follows:
GROUND ONE
The learned trial judge erred in law when she upheld the defence of statute of limitation law raised by the 1st Respondent in his final written address and dismissed the Appellants claim.
GROUND TWO
The learned trial judge erred in law when she relied on EXHIBIT K and EXHIBIT M to grant the 1st Respondents counter-claim particularly reliefs (i) (iv) .
GROUND THREE
The learned trial judge erred in law when she held that the Appellants did not prove any of the five methods/ways of establishing ownership/title to property.
GROUND FOUR
The learned trial judge at the Court below erred in law, which error occasioned a miscarriage of justice when he held that the Appellants cannot inherit from their father by according judicial notice to matrilineal inheritance as Abriba custom, in these words:
Besides without a will it is a well known fact in Abriba custom of the parties that it is the matrilineal system that obtains with regard to inheritance and the appellants cannot therefore inherit from their father but from their mothers side. (Underlining ours).
GROUND FIVE
The learned trial judge at the Court below erred in law, which error occasioned a miscarriage of justice, when he misapprehend the issue and so discountenanced the appellants objection to the Respondents contention that statute bar is tenable, thus:
Again it is not necessary to plead any particular law in the pleading although it may be desirable. It is sufficient if evidence is given of the particular law relied on during trial.
GROUND SIX
The learned trial judge at the Court below erred in law, which error occasioned a miscarriage of justice when he found that Exhibit K, a Power of Attorney is a title vesting instrument and vested title of the land in dispute on the 1st Respondent, when he held thus:
The said Exhibit K authorized the 1st Defendant (sic), among other things to transfer, charge or mortgage any building which may be on the premises. I am of the view that this means that the 1st Defendant can sell the property in dispute as its bona-fide owner. (underlining ours).
GROUND SEVEN : ERROR IN LAW
The Learned Trial Judge at the Court below erred in law, which error occasioned a miscarriage of justice, when he failed to reckon with the fact that the Appellants were suing as beneficiaries to the Estate of the deceased owner of the property in dispute, and thus found that the cause of action arose in 1982 when the deceased died, or 1986 when the Respondents forced themselves on the property in dispute, thereby holding that the action is statute barred.
GROUND EIGHT : ERROR IN LAW
The Learned Trial Judge at the Court below erred in law, which error occasioned a miscarriage of justice, when he held that the 1st Respondent/Counter claimant has proved his counter-claim and awarded him the reliefs claimed.
In accordance with the rules of this Court, the appellants compiled and transmitted the record of appeal to this Court. They also filed their brief of argument. The appellants brief of argument dated the 1st day of August, 2016 was filed on the 21st day of October, 2016. The said appellants brief was by the order of this Court deemed as properly filed and served on the 2nd day of May, 2017. The brief was prepared by C. M. Ukpabio, Esq.
To determine this appeal, the appellants counsel distilled three issues. They are reproduced below as follows:
(1) Whether in the circumstances of this case, the Limitation Law applies, and defense of statute-bar is available to the Respondents, so that the plaintiffs/appellants suit is thereby caught and statute-barred. (Distilled from Grounds 1, 5 & 7 of the Amended Notice of Appeal).
(2) Whether the 1st Defendant/Respondent is entitled to judgment on his counter-claim for declaration of title to the property in dispute. (Distilled from Grounds 2, 6 & 8 of the Amended Notice of Appeal).
(3) Whether the Plaintiff/Appellants established their interest and entitlement to the property in dispute and are consequently entitled to judgment in their suit. (Distilled from Grounds 3, 4 & 9 (sic) of the Amended Notice of Appeal).
It is instructive to observe herein that the 2nd & 3rd respondents neither appeared before the lower Court to defend this case nor took any step in respect of this appeal. The above notwithstanding, they would be bound by the outcome of this case. Also, the 1st respondent did not appear before this Court nor file any brief but he would still be bound by the outcome of this appeal.
ISSUE NO. 1.
The learned counsel for the appellants contended that the 1st respondent neither pleaded that he would be relying on statute of limitation nor give particulars thereof in its amended statement of defence and counter-claim as required by Order 29 Rule 7(2) of the Abia State High Court (Civil Procedure) Rules, 2009 (hereinafter referred to as the lower Courts rules). The learned counsel further contended that paragraph 38 of the 1st respondent amended statement of defence and counter claim relied upon by the learned trial judge to hold that the 1st respondent pleaded that he would be relying on statute of limitation was vague and nebulous. Thus, he submitted that the learned trial judge misdirected himself in that regard. He relied on the case of Oyebamiji & Ors. V. Lawanson & Ors. (2008) 15 NWLR (Pt. 1109) 122. @ 133.
Also, the learned counsel for the appellants contended that the appellants action was not caught up by statute as they were not claiming for ownership of the property because same already belong to them and their action was not also founded in trespass. The learned counsel argued that the appellants action was essentially based on the refusal of the defendants to hand over the management of the property and account for all the rents collected from the property. He referred us to paragraphs 8, 9, 10, 11, 12, 13, and 29 of the amended statement of claim. He stated that the demand from the respondents to relinquish the management of the property was made in 2005 and the instant suit was filed in 2007 to legally retrieve the management of the property from the respondents. It was also the contention of the appellants that the issue as to ownership was raised and/or introduced by the 1st respondent as the basis for his refusal to relinquish the management of the property and render account. Thus, the learned counsel submitted, that the appellants cause of action began to run from the time the respondents refused to relinquish the management of the property and not when they took over the management of the property. He referred us to the case of Adekoya v. Federal Housing Authority (2008) 11 NWLR (Pt. 1099) 539 @ 557.
Finally on this issue, the learned counsel for the appellants submitted in the alternative that the respondents trespass was continuous, thus, the appellants cause of action arises for everyday the respondents remained in possession of the property in dispute. He referred us to the cases of Onagoruwa v. Akinremi (2001) 13 NWLR (Pt. 729) 38 and Adepoju v. Oke (1999) 3 NWLR (Pt. 594) 154.
It is now well settled beyond any controversy that in order to determine whether or not a plaintiffs action is statute-barred, the proper document to be examined is the plaintiffs statement of claim together with the other accompanying documents. See Egbe v. Adefarasin (No. 1) (1985) NWLR (Pt. 3) 549; Aremo II v. Adekanye (2000) 2 NWLR (Pt. 644) 259 and Abazie v. Nwachukwu & Anor. (2012) LPELR 7945. I have carefully examined the appellants reliefs endorsed on the writ of summons and those on the statement of claim and I do agree with the appellants counsel that the appellants claim was mainly to retrieve the management of the property which they claim the respondents were not rendering account of the rents collected therefrom. The appellants in paragraph 16 of their amended statement of claim averred that in 2005 they wrote to the respondents to relinquish the management of the property, but the respondents refused. I have also examined the appellants reliefs as claimed in their writ of summons and amended statement of claim, and I do not agree with the learned trial judge that the appellants suit is statute-barred.
On the issue of the 1st respondents failure to specifically plead the defence of statute of limitation, though it is desirable to specifically plead this defence and give its particulars, the above notwithstanding it is enough if the defendant pleaded the necessary facts to establish the defence, even though the defendant did not specifically dedicate an heading and provide particulars he intends to rely on to establish the defence under the said heading. In the instant case, the 1st respondent and indeed the respondents neither pleaded particulars of the defence nor gave any indication that they will be challenging the competence of the suit on the ground that the claim therein is stale or statute barred. Thus, I do not also agree with the learned trial judge that the respondents can validly raise this defence at the stage of address as they did. Based on the above, I do hereby resolve this issue in favour of the appellants.
ISSUE NO. 2.
The learned counsel for the appellants submitted, that the lower Court was wrong when he granted the 1st respondents counter-claim wherein there was no pleadings or evidence in support thereof. He submitted that a counter-claim is an independent action or suit and as such it requires pleadings and evidence in proof thereof to succeed. He referred us to the case of Opadere v. Odebunmi (2003) 16 NWLR (Pt. 845) 46. The learned counsel then argued that the 1st respondent failed to plead and/or adduce any evidence, give any facts in support of the counter-claim, thus, the counter-claim should have been dismissed by the lower Court.
In addition, the learned counsel for the appellants submitted, that the lower Court was wrong when it found that the title to the property in dispute resides in the 1st respondent based on the Power of Attorney (Exhibit K) and Deed of Assignment (Exhibit M). The learned counsel strongly maintained, that title to a landed property cannot be transferred vide a Power of Attorney. He argued that the donee to a power of attorney cannot claim benefit to the property which forms the subject matter of a power of attorney, unless he has exercised his right to transfer the power to himself or a third party. He referred us to the cases of Ude v. Nwara (1993) NWLR (Pt. 278) 638; Ezeigwe v. Awudu (2008) 11 NWLR (Pt. 1097)158 and Ndukauba v. Kolomo (2001) 12 NWLR (Pt. 726) 117. Also, the learned counsel argued that a power of attorney which was donated with consideration can be terminated at anytime and even if the said power of attorney was made irrevocable, it would be held to have been terminated on the death of the donor. He referred us to the case of Watson v. King (1815) 171 ER 87. Thus, he submitted that the power of attorney allegedly donated in favour of the 1st respondent did not transfer the title in the property to him and any right which the 1st respondent may have had in the property is deemed terminated in 1982, when the alleged donor, Chief Mang Nduka died.
In respect of the Deed of Assignment, Exhibit M, the learned appellants counsel submitted that the learned trial judge erred when he relied on the same in holding that the title to the property resides in the 1st respondent. The learned counsel argued that the said Exhibit M is a registrable instrument, but on the face of it, the document was not registered. Thus, he submitted that the exhibit can neither be admitted nor relied upon to prove that title to the property was transferred to the 1st respondent. He relied on Section 15 of the Land Instrument Registration Law, Law of Eastern Nigeria (applicable to Abia State); Ossai v. Nwajide & Anor (1975) 4 & 5 (Reprint Editions) 144 and Ogbimi v. Niger Construction Ltd. (2006) 9 NWLR (Pt. 986) 474. Thus, he urged this Court to expunge the said Exhibit M from the record of appeal for being an inadmissible piece of evidence that was wrongly admitted. He referred us to the cases of Chigbu v. Tonimas Nig. Ltd. & Anor. (1999) 3 NWLR (Pt. 593) 115 and Olukade v. Alade (1976) ALL NLR, 56. In conclusion, he urged this Court to resolve this issue in favour of the appellants.
It is trite law that a counter-claim is a separate and distinct action from the main claim, but for one reason or the other, (particularly where they are based on the same facts and inter-related) they are tried in a single proceeding. However, the fact that they are heard together does not make them one, they still retain their individual entity and identity. The question that now calls for an answer is: whether the defendant to an action who incorporates a counter-claim into his statement of defence ought to plead separate facts in support of his counter-claim My answer to this is a resoundingly in the positive. This is because a counter-claim is of the same status as the main claim and all principles and/or rules to which the main claim is subjected, is equally and similarly made applicable to the counter-claim. It is often seen that a defendant while responding to a claimants suit in his statement of defence usually employs the best expertise in his pleadings and carefully avers to facts and plead some documents he intends to rely upon. Most defendants while drafting their statement of defence usually do so with the intention of utilizing the pleaded facts in support of their counter-claim, which ordinarily is permissible provided there is a clear cut indication by the defendant in his counter-claim that he intends to rely on the pleaded facts of his statement of defence. But where no such indication is made or any fact pleaded by the defendant in respect of the counter claim, any piece of evidence adduced in support of the said counter-claim goes to no issue. See the cases of Okonkwo v. C. C. B. (2003) ALL FWLR (Pt. 154) 457; Adeniyi v. Oroja (2006) ALL FWLR (Pt. 324) 1834; Ali v. Salihu (2010) LPELR 3744, (2011) 1 NWLR (Pt. 1213) 227 and Friday & Ors. V. The Governor of Ondo State & Anor. (2012) LPELR 7886. In the instant case, I have examined the 1st respondents amended statement of defence and counter-claim, and I do agree with the learned counsel for the appellants that there was no pleadings in support of or to serve as the basis for the counter-claim and there was also no indication in the counter-claim that the counter-claimant (that is, 1st respondent) would rely on pleadings in respect of his statement of defence. Thus, I do hold that the counter-claim was neither pleaded nor proved as required by law.
Furthermore, I find merit in the contention of the appellants counsel that the learned trial judge was wrong to have relied on Exhibits K and M (Power of Attorney and Deed of Assignment, respectively) in holding that the 1st respondent is the owner of the property in dispute. A power of attorney whether granted for consideration or not and coupled with interest, cannot by itself be held to have conferred the donee with any proprietary right in a land or landed property (or subject matter of the transaction). A power of attorney is usually a medium by which proprietary interest in a property the subject matter of the transaction can be transferred, and until the donee has exercised his right of transfer, the absolute title to the property would still be held to reside in the donor. See the cases of Chime v. Chime (2001) 3 NWLR (Pt. 701) 527; Ude v. Nwara (1993) 2 NWLR (Pt. 277) 638 and Nwankwo v. Agwuna (2007) LPELR 8445. In the instant case, it was not shown or placed on record that the 1st respondent who is the beneficiary of the power of attorney exercised his right of transfer either to himself or any other person whomsoever, thus, the power donated therein is deemed terminated in 1982, when the donor, Chief Mang Nduka died.
As regards Exhibit M (Deed of Assignment), it is apparent on the face of the exhibit that it was intended to transfer title in the property in dispute to the 1st respondent. This much was also canvassed by the 1st respondent at the lower Court. Thus, the exhibit is duly regarded as a registrable instrument. It is not in dispute that the said exhibit was not registered, but the learned trial judge went ahead to admit and rely on the same to hold that the 1st respondent is the owner of the property and further held that the 1st respondent has proved his counter-claim. I agree with the learned counsel for the appellants that the said exhibit was wrongly admitted and do hereby expunge the same from the evidence on record. Without proper and due registration as required under the law of various States of the Federal Republic of Nigeria and in the instant case, Section 15 of the Land Instrument Registration Law, Eastern Nigeria (applicable to Abia State), renders a document seeking to transfer title to any person or upon which a party relies on in order to establish his title is rendered incompetent, inadmissible and of no consequence. When such document is admitted, whether after the protest by the other party or not; or with the consent of both parties, the document would be expunged and rendered impotent. See Esorae v. Omoregie (2013) LPELR 20315; West African Cotton Ltd. & Anor. V. Haruna (2007) LPELR 9044; Savannah Bank Plc. V. Ibrahim (2000) 6 NWLR (Pt. 662) 585; Akanbi v. Osset (2011) LPELR – 9102 and Ogbimi v. Niger Construction Ltd. (2006) 9 NWLR (Pt. 986) 474. It is thus firmly established that if a document was wrongly received in evidence before the trial Court, an appellate Court has the inherent jurisdiction to exclude it. See Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65. In view of all that have been said above, this issue is also hereby resolved in favour of the appellants.
ISSUE NO. 3
The learned counsel for the appellants argued that the appellants pleaded and led evidence to establish the fact that the property in dispute originally belonged to Chief Mang Nduka, their father and husband, and by inheritance, the said property passed on to them. He contended that the parties to this case were ad idem on the issue that the property was originally owned by Chief Mang Nduka, save for the fact that the 1st respondent claimed that the said Chief Mang Nduka has transferred his interest in the property to him, the 1st respondent, as a gift vide Exhibit K and Exhibit M. The learned counsel submitted that the burden was on the 1st respondent to prove that Chief Mang Nduka did infact parted with the property during his life time. He argued that the 1st respondent failed woefully to establish this fact. Thus, he submitted, that in the circumstance, the appellants are deemed to have established their case. He referred us to the cases of Onyejekwe & Anor. v. Atuanya (1975) ALL NLR, 60 and Odukwe v. Ogunbiyi (1998) 8 NWLR (Pt. 561) 339.
In addition, the learned counsel for the appellants contended that the respondents sought to rely on the custom of Abiriba people in order to establish that the children and wives of a deceased man does not inherit him, but his property on his demise would be transferred to his maternal family. The learned counsel contended that the respondents failed to adduce any shred of evidence to prove the said custom. Thus, he submitted that the learned trial judge made a case for the respondents when he purportedly held that according to the custom and practice of Abiriba, the property in dispute is deemed to have passed to the respondents being the maternal family members of the deceased Chief Mang Nduka. The learned counsel further submitted, that the respondents having not pleaded that the custom of the Abiriba people as it relates to inheritance has been judicially noticed or pleaded the said custom, with admissible evidence being led thereon, the learned trial judge erred when he applied the said custom in favour of the respondents. He referred us to the cases of Osadebe v. Osadebe (2013) 3 NWLR (Pt. 1342) 584 and Obanye v. Mbamalu (2012) 14 NWLR 143.
Finally, the learned appellants counsel submitted that even if the respondents pleaded and led evidence to prove the purported Abiriba custom that makes it impossible for the children and wives of a man from inheriting or sharing in his estate, the said custom would be deemed repugnant and inapplicable as no custom can prevent the children of a deceased father from inheriting from him. He referred us to the case of Ukeje & Anor. V. Ukeje (2014) 11 NWLR (Pt. 1418) 384 and Section 42(1) & (2) of the Constitution of Federal Republic of Nigeria, 1999 (as amended). He thereby urged this Court to resolve this issue in favour of the appellants.
It is a common ground between the parties that the property, the subject matter of this case originally belonged to Chief MangNduka. It is also not in dispute that the 1st and 5th appellants are the children of the said Chief Mang Nduka, while 6th 7th appellants are his wives (whether authentic as the 1st respondent referred to them or not). Having the above in mind, it would seem natural that the property in dispute should devolve on the appellants commonly. But the 1st respondent alleged that Chief Mang Nduka transferred his interest in the property to him in form of a gift. It is trite law and well settled now that he who alleges the existence of a fact; or who may lose if no evidence is called to prove an assertion, has the burden of establishing that fact. In the circumstances of this case, it is the 1st respondent that asserted that the title in the property was transferred to him vide Exhibits K & M. I have earlier in this judgment held that Exhibit K did not transfer title to the 1st respondent and in the same vein Exhibit M. Both documentary evidence ominously and resoundingly failed to meet the requirements of the law. I do not wish and I have not been persuaded to change my position herein. Thus, I am of the firm viewpoint, that the 1st respondent has failed to establish on credible evidence that Chief Mang Nduka made a gift of the property to him.
Before I progress and conclude, let me quickly make some observations. Ordinarily the burden of proof is placed on the appellants as the plaintiffs to establish their case on the strength of their evidence, and not simply rely on the weakness of the respondents who were the defendants at the lower Court. However, the law is trite, as the learned counsel for the appellants has stated, that once the title in a land originally resides with a party, the burden of proving otherwise lies on the other party who claims that the party has divested himself of the title, either by gift, pledge, mortgage or outright sale. See Onyejekwe & Anor. v. Atuanya (1975) 3 S.C. 115; (1975) LPELR 2729; Nwavu & Ors. V. Okoye & Ors. (2008) 18 NWLR (Pt.1118) 29 and Ojengbede v. Esan (2001) 18 NWLR (Pt. 746) 771. The 1st respondent in this case has failed to discharge this burden on the preponderance of evidence, thus, his claim is bound to fail and it has failed abysmally and woefully.
On the Abiriba culture and/or custom of inheritance. Custom and practice of the people of a particular Community is an issue of fact which must be pleaded and evidence led in proof thereof, except if it has become notorious and judicially noticed. See Agbai v. Okogbue (1991) 7 NWLR (Pt. 204) 391; Ogunleye v. Oni (1990) 2 NWLR (Pt. 135) 745; Okpowagha & Anor. v. Ewhedoma (1970) ALL NLR 208 and Sections 16, 17 & 18 of the Evidence Act, 2011. By virtue of Section 16 of the Evidence Act, (supra), the burden of proving the existence and applicability of the said Abiriba customary mode of inheritance is on the respondents. In the instant case, they have failed to discharge the said burden. Thus, I also agree with the contention of the learned counsel for the appellants, that the lower Court erred when it held that the property of the deceased, Chief Mang Nduka devolved on the respondents, his maternal relation in accordance with the Abiriba custom and tradition, when in fact the respondents failed to prove the said custom. Based on all that I have said above, this issue is also hereby resolved in favour of the appellants and against the respondents.
Having resolved the issues formulated for the determination of this appeal in the manner stated above, this appeal is hereby found by me to be meritorious and it is accordingly allowed. Thus, the decision of the lower Court together with all the orders made in respect of this case are hereby set aside by me. In its place, judgment is hereby entered for the appellants in respect of their reliefs 1, 2, 3, 5 and 6 earlier reproduced in this judgment. In respect of relief 4, it was brought to the notice of this Court vide a letter dated the 26th day of April, 2017 from the law firm of Obrota Chambers and signed by Chief (Dr.) Nally C.N. Ikeotuonye, KSJ I., that the 1st respondent who was claimed to have been the person managing the property from 1986 till when the same was taken over from him by Administrator-General of Abia State, when this case was initiated, is now deceased. In the circumstance, it has become impossible to compel a dead man to give account of his stewardship and it would be highly unfair and occasion gross miscarriage of justice if other respondents are made to suffer for the wrong or bear the burden in order to recompense for another mans actions or in actions. Thus, I am of the firm viewpoint that the said relief 4 has become unenforceable and this Court cannot be heard to make an order which in the main, would not be enforced or grant a relief already rendered academic. Therefore, the appellants relief 4 is hereby refused. Parties are to bear their respective costs.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment of my learned brother M.A. Oredola JCA and I agree completely with his reasoning and conclusions therein, which I herein adopt to allow the appeal
My Lord in the lead judgment has succintly and exhaustively resolved the issues for determination including the fact that the 1st Respondent did not plead or lead evidence to establish the alleged fact of statute bar, which 1st Respondents Counsel raised in his address at the trial Court.
As rightly Pointed out by my noble lord, Oredola JCA, in the lead judgment, that is not how to raise and rely on defence of statute bar, and so the trial Court was in grave error to have relied on the address of Counsel on the issue, smuggle into the case, to hold for the Respondent. The law is that a defence of statute bar, like other specialized defences, must be pleaded, and failure to do so will deprive a defendant opportunity to rely on it. See Omotosho Vs Bank of the North Ltd & Anor (2006) 9 NWLR (Pt. 986) 573; Bamigbade and Anor Vs Adeyeri & Ors (2012) LPELR – 9852 and Oyebamiji Vs Lawanson (2008) 15 NWLR (Pt. 1109) 122, where Niki Tobi JSC (of blessed memory) said the correct way of pleading the defence (statute of limitation) is to raise, distinctly, the particular statutory provision relied upon.
See also the case of Mekaowulu Vs Ukwa West Local Government Council (2018) LPELR – 43807 CA, delivered on 16/2/18, where the above position of the Supreme Court was applied. Also in a recent decision of this Court: CA/OW/274/2016: First Bank of Nigeria Plc Vs Standard PolyPlastic Industries Ltd., delivered on 23/3/2018, this Court held:
It should also be added that it would be immoral and legally offensive, in my opinion, for a party to seek to invoke the rule of statute bar, just to defeat a legitimate claim for refund of money and escape responsibility, after taking advantage of a contract and benefiting from the transaction for which he is called upon to account. He cannot hold on to the funds of Claimant and continue to trade with it and refused to render account, alleging that the Claimant is statutorily barred from taking action to recover his money and for damages/interest.
I too allow the appeal and abide by the consequential orders in the lead judgment.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I read the draft of the judgment just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA (JCA). I agree entirely with the reasoning and conclusion therein.
I also resolve donated issues in favour of the appellant.
This appeal is meritorious. It is hereby allowed.
I abide by the consequential orders made in the leading judgment.
Appearances
Mrs. L.D.C. Onyenwe holds the brief of C.M. Ukpabio, Esq.For Appellant
AND
Absent but servedFor Respondent
