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DEACON ISAAC IKWUKA OKO & ORS v. ABIRIBA COMMUNAL IMPROVEMENT UNION & ORS (2018)

DEACON ISAAC IKWUKA OKO & ORS v. ABIRIBA COMMUNAL IMPROVEMENT UNION & ORS

(2018)LCN/11923(CA)

In The Court of Appeal of Nigeria

On Thursday, the 12th day of July, 2018

CA/OW/266/2014

 

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

DEACON ISAAC IKWUKA OKO & ORS Appellant(s)

AND

ABIRIBA COMMUNAL IMPROVEMENT UNION (ACIU) & ORS Respondent(s)

RATIO

FACTOR TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED

In determining whether or not a suit is statute barred, it has become trite law that the trial Court limits itself to the content of the statement of claim. It is from the statement of claim that the Court determines the cause of action and its accrual. The period of limitation is calculated from the date of accrual of the cause of action to the date of the filing of the suit. PER AGBO, J.C.A.

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment):

The appellants were claimants in suit no. HOH/39/2013 which suit was instituted at the Abia State High Court sitting at Ohafia. In paragraph 58 of the statement of claim the Appellants as claimants claimed of the Respondents as defendants as follows: –
1. A declaration that the claimants are the owners by inheritance and therefore entitled to the Statutory Right of Occupancy over the large expanse of land situate, lying and being at Oruanta, Ebi Iko, Ububa and Isi Usumani in Amaogudu Abiriba of Ohafia Local Government Area of Abia State which their forebears leased to the 1st Defendant in 1948 for Secondary School purpose which are bounded as follows: –
i. On the East by Uzuakoli to Ohafia Road by Abiriba roundabout Ndi Ukoha.
ii. On the North by Ozara Ebi Iko, Ndi Ohuonu
iii. On the West by Usumani, Amaogudu
iv. On the South by Oruanta (rest house)

2. A declaration that the 1st Defendant being a lessee under 1948 lease Agreement has no power to sell, lease give or otherwise do with the leased lands which were not used for secondary school purpose or any part thereof without the consent and authority of the claimants.

3. A declaration that the claimants in the exercise of their reversionary right of ownership under the 1948 lease agreement between them and 1st Defendants were entitled in 2005 to retrieve their unused but undeveloped virgin lands.

4. A declaration that it is trespass in law for the 1st Defendant acting alone or with the 2nd to 4th Defendants to enter, sell, give, lease or other wise deal with the unused or retrieved lands or any part thereof without the consent and authority of the claimants for which the claimants are entitled to damages.

5. An order of Court compelling the 1st Defendant to pay the Claimants the arrears of annual rent of 15 shillings at its naira equivalent of N15 from 1960 to 2005 (both years inclusive) amounting to N765.

6. The sum of five hundred million naira (N500m) being general damages for trespass and compensation for change of the character of the unused Claimants’ lands as a result of the sales, leases and giving out of the lands by the 1st Defendant to individuals and organizations who built without the consent and the authority of the Claimants and thereby making it impossible or difficult for them to use their lands again.

OR Alternatively

An order voiding the purported sales, leases and giving out of the unused lands to individuals or organizations by the 1st Defendant without the consent or authority of the Claimants.

7. An order of perpetual injunction restraining the Defendants, their Agents, Privies, Servants from committing further acts of trespass on the Claimants’ lands.

Upon service on them of the statement of claim, the defendants by notice of motion raised a preliminary objection challenging the jurisdiction of the trial Court to entertain the suit on the ground that it was statute-barred as it was caught by S.3 of the Abia State Limitation Law which limits the right to sue on land matters to 10 years. In a considered ruling the trial judge agreed with the defendants that the action was statute-barred and struck out the suit. Dissatisfied with the judgment the Appellants filed this appeal.

The Appellant distilled two issues for determination to wit:-

1. Whether the learned trial Judge was right in holding that the cause of action arose in 1978 and not in 2005 or 2013 as canvassed by the Appellants.

2. Whether the learned trial Judge was right in holding that Appellants’ action is statute barred in view of Section 3 of the Limitation Law Cap 114 Laws of Abia State and so decline Jurisdiction

The Respondents issue for determination is ‘whether the trial judge was right when he held that suit no. HOH/39/2013 was statute barred and consequently struck it out.’ The difference in the issues set out by the parties is a matter of semantics.

In determining whether or not a suit is statute barred, it has become trite law that the trial Court limits itself to the content of the statement of claim. It is from the statement of claim that the Court determines the cause of action and its accrual. The period of limitation is calculated from the date of accrual of the cause of action to the date of the filing of the suit. In the present dispute the Respondents insist the cause of action accrued in 2005 while the suit was filed in 2013. It therefore becomes necessary to look at the relevant portions of the statement of claim.

13. The 1st Defendant does not own lands anywhere in Abiriba town. So when it wants to build a project like school, it would lease lands from the different compounds/families who are land owners subject to conditions and terms they give.

14. The Claimants’ forebears gave the 1st defendant conditions for the lease of their lands. These conditions were: –
i. Their lands would be used for secondary School purpose.
ii. Payment of an annual rent of 15 shillings by every December ending of the year, that of 1948 to be half, that is 7 shillings and 6 pence.
iii. The 1st Defendant to continue to use their lands on complying with these conditions

15. The 1st Defendant accepted these conditions upon which the Claimants’ forebears in 1948 agreed to lease their lands at Oruanta, Ebi, Iko, Ububa and Isi Usumani to 1st defendant.

16. This agreement of 1948 as was the practice then was reduced into writing which the claimants’ fore bears and 1st Defendant endorsed. Each party was given a copy. The lease Agreement of 1948 is hereby pleaded and will be relied upon at the hearing of this suit.

17. in 1954, the 1st Defendant used a part of the Ebi Iko land and built the Enuda High School, Abiriba while leaving the other parts unused.

18. On 15th June, 1948 with the consent and authority of the Claimants’ forebears, the 1st defendant gave a part of the leased lands at Oruanta to the Church of Scotland Mission School for rural science or School farm leaving the other parts unused. A copy of this Agreement is hereby pleaded and will be relied upon at the hearing of this suit.

19. In 1963, the 1st Defendant without the consent and authority of the Claimants used another part of the leased lands at Oruanta for water works.

20. Without the consent and authority of the Claimants, the 1st Defendant gave, leased or sold a part of the leased lands at Ububa to the Roman Catholic Church where it built a health Centre.

21. Without the consent and authority of the claimants, the 1st Defendant gave, leased or sold another part of the leased lands at Ebi Iko to the Abia State Government where it built the Magistrate residence leaving the remaining parts unused.

22. The lands in dispute between the Claimants and the 1st Defendant are the leased lands which were not used for secondary school purpose as agreed except the part given to the Charge of Scotland Mission School with their consent and authority.

23. The 1st Defendant began to sell, lease or give out some parts of the used lands to individuals before and after the Nigerian Civil War ended in 1970 without the consent and authority of the Claimants despite their protests and complaints until the 5th of March 1978 when the 1st Defendant wrote the Claimants inviting them to a meeting on 7th March 1978 at Erinma Hall, Abiriba. The said letter is hereby pleaded and will be relied upon at the hearing of this suit.

24. The Claimants attended the meeting on 7th March 1978 at Erinma Hall Abiriba where they raised these issues in addition to breach of the 1948 lease agreement as follows:
i. A reviews of the annual agreed rent of 15 shillings at its naira equivalent in view of the then economic reality.
ii. Payment of arrears of rent from 1960 to 1978.
iv. A stop to the further sale, lease or giving out of their lands to individuals and renegotiation with those who bought, leased or given some parts already.

25. The 1st Defendant was not forth coming and so the meeting was deadlocked.

26. Nonetheless, the 1st Defendant continued to sell, give or lease the unused part of the lands to individuals without the consent and authority of the Claimants and so after almost 21 years, the Claimants on 16th August 1999 wrote the 1st Defendant, drawing its attention to the breach of 1948 lease Agreement and its consequences. The said letter of 16th August 1999 is hereby pleaded and the 1st Defendant is given NOTICE TO PRODUCE the letter at the hearing of this suit.

27. The 1st Defendant ignored the letter of 16th August 1999 and never responded. So on 5th April 2004, the Claimants wrote the 1st Defendant another letter, giving it NOTICE OF THEIR INTENTION to retrieve their unused land not yet developed but virgin. The said letter is hereby pleaded and the 1st Defendant is hereby pleaded and the 1st Defendant is given NOTICE TO PRODUCE the letter at the hearing of this suit.

28. As usual, the 1st Defendant ignored the letter of 5th April 2004 and on 8th January 2005, the Claimants wrote the 1st defendant informing it of their formal take over of their unused but undeveloped virgin lands. The claimants will rely on this letter of 8th January 2005 and is hereby pleaded. The 1st Defendant is hereby given NOTICE TO PRODUCE the letter at the hearing of this suit.

29. The Claimants in the exercise of their rights of ownership and possession over the retrieved lands at Oruanta, Ebi Iko, Ububa and Isi Usumani in 2010 gave 61/2 plots of the retrieved lands at Ebi Iko to their maternal son or called in Igbo language Nwa, Nwa Ada, Hon. Nwabueze Nganwa who surveyed same.

30. The Claimants created a road unchallenged in 2010 at the retrieved Ebi Iko land.

31. On 3rd May 2013, Hon. Nwabueze Nganwa received a letter from 1st Defendant which was endorsed by the 3rd Defendant and one Elder Agbai O. Egbeogu notifying him of a purported used of 4 plots out of the 61/2 plots of lands as site for the proposed skills Acquisition Centre, Abiriba.

32. Hon. Nwabueze Nganwa promptly took the letter to the Claimants who replied the 1st Defendant on 9th May 2013 through their Counsel F. U. Kalu & Associates of No. 4 Court Road, Ebem Ohafia. Both letters are hereby pleaded and will be relied upon at the hearing of this suit. The 1st Defendant is given NOTICE TO PRODUCE the reply letter at the hearing of this Suit.

33. The Claimants’ reply was copied to Hon. Nwabueze Nganwa, 2nd and 4th Defendants. 1st Defendant’s letter was copies to 2nd and 4th defendants.

34. Despite the exchange of the letters, the Defendants took laws into their hands when on 22nd July 2013, they sent boys armed with dangerous instruments like machetes, knives, sticks etc. who entered Hon. Nwabueze Nganwa 4 plots out of his 61/2 plots, uprooted and destroyed his cassava crops.

It is clear from paragraph 22 of the statement of claim that the land in dispute was all that portion of land leased out to the 1st Respondent which were not used for secondary school purpose. That includes the land at Oruanta used for water works in 1963, the health centre built by the Roman Catholic Church, the land demised to individuals before and after the Nigerian Civil War. Arrears of rent claimed was for 46 years. These transactions are obviously statute-barred. The purported avoidance of the 1948 agreement in 2005 cannot constitute a cause of action nor can the destruction of the cassava farm of Hon. Nwabueze Nganwa found the prayers contained in paragraph 58 of the statement of claim. There is no merit in this appeal it is hereby dismissed with N50,000.00 costs to the Respondents.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I agree

ITA GEORGE MBABA, J.C.A.: I agree

 

 

Appearances:

Appellant served hearing notice through SMS on 13-3-18For Appellant(s)

Anaga KaluFor Respondent(s)