DIRECTOR GENERAL, BUREAU OF LANDS, KWARA STATE & ANOR v. MALLAM ATANDA ALABI & ANOR
(2018)LCN/12445(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 9th day of May, 2018
CA/IL/42/2016
RATIO
ACTION: WHERE AN ACTION IS STATUTE BARRED
“This is because, an action being statute barred, means that the plaintiff who would have had a cause of action by judicial process loses such right to approach the Court to ventilate his grievances. See Eboigbe vs. NNPC (1994) 5 NWLR (pt. 347) 649. Nweze JSC in the recent case of Asaboro vs. Pan Ocean Oil Corp. (Nig) Ltd (2017) 7 NWLR (pt. 1563) 42 @ 73, fully elaborated on the state of the law when he opined that:
‘…A plaintiffs right of action eventuates from the existence of a cause of action. Ikine vs. Edjerode (2001) 12 KLR (pt. 131) 3711. In the con of this distinction, what emerges is that, whereas the plaintiff’s cause of action remains intact, although in a vacuous or bare form, a statute of Limitation denudes him (the plaintiff) of his action, that is his right of enforcement, the right to judicial relief. Egbe vs. Adefarasin (2) (1987) 1 NWLR (pt. 47) 1. To be able therefore to enjoy the dividends which recourse to the judicial process affords, such a plaintiff must commence his action within the period stipulated by statute. In other words it is a mandatory requirement. Sidi Ali vs. Takwa (2004) 1 WRN 180. Thus legal proceedings cannot be validly instituted after the expiration of the prescribed period. Sanda vs. Kukawa Local Government (1991) 2NWLR (pt. 1740 379.'” PER HAMMA AKAWU BARKA, J.C.A.
JURISDICTION: WHERE THE ISSUE OF JURISDICTION ARISES
“The settled position of the law is that jurisdiction is the authority given to the Court by the Constitution, or legislation to decide matters before it. It is a thresh hold issue, which can be raised at any time and by any means, including the Court raising it suo motu. Once raised, it must be determined first in time, for no matter how well a case is determined, once it lacks jurisdiction, the proceedings and conclusions reached are a nullity. See Madukolu vs. Nkemdilim (1962) 2 NSCC 374, Usman Dan Fodio University vs. Kraus Thompson Organization Ltd. (2001) 15 NWLR (pt. 736) 305, AG Kwara State vs. Adeyemo (2017) ALL FWLR (pt. 868) 616 @ 642 per Rhodes Vivour JSC.
It flows also that where the issue of limitation of action is raised, the jurisdiction of the Court is being put to question, for where the case to be tried is stale, the Court is devoid of power to determine the case before it, and to grant the reliefs sought. In all these, it is the statement of claim read holistically that must be looked for, in determining whether the Court has jurisdiction or not.” PER HAMMA AKAWU BARKA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. DIRECTOR GENERAL, BUREAU OF LANDS, KWARA STATE
2. GOVERNOR OF KWARA STATE Appellant(s)
AND
1. MALLAM ATANDA ALABI
(Acting for and on behalf of Onitoki Family)
2. MRS. ATOLAGBE RAFAT AYOBAMI Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment):
The instant appeal is against the judgment of his Lordship S. M. Akanbi J, of the Kwara State High Court sitting in Ilorin; in Suit No. KWS/213/2011 between Mallam Atanda Alabi (Acting for and on behalf of Onitoki family) and Mrs. Atolagbe Rafat Ayobami and two others delivered on the 23rd of March, 2016. In the said judgment which can be found at pages 424-443 of the records, the lower Court concluded that:
‘The Court holds that what is required of a plaintiff in an action for declaration of title is at least to establish his claim by preponderance of evidence in support of his claim which the claimant has done see UTB NIGERIA LIMITED VS. AJAGBULE (2006) 2 NWLR (Part 965) 447 also AMALA VS. MADUKA 14 WAEN 580 EP 1; EPI & ANOR VS. AIGBEDION (1972) 1 NMLR 31. The certificate of occupancy issued in the name of the 1st defendant vesting title of portion of the claimant land did not rest on a solid foundation of title of the claimant and so it was wrongly issued in his favour see MR. ABIODUN FAGBURO AND ORS VS. ALHAJI SULYMAN AKINBAYO IA/EK/69/2013 PAGE 375 Paragraph B-D.
In all, I resolved all the issues in favour of the claimant, I noticed the 1st defendant did not file proper address but only raise objections on exhibits already rejected evidence in evidence did not object to all those exhibits initially but now somersaulted to resume those exhibits already rejected.’
Consequently, the Court ordered as follows:
(a) A declaration that the issuance of provisional allocation of statutory right of occupancy for plot within Ilorin urban area letter dated 30/03/2011 with reference number: Lan/Aro/37297/00L1 by the 2nd defendant in the name of 2nd or to the 1st defendant purportedly vesting title of a portion of the claimant land described as plot 4, Block 7 MIS 219 situate at Apata Yakuba, Elekoyangan via Kwara Polytechnic, Ilorin, Kwara State is Otiose, ineffective to transfer title to the said 1st defendant and contravenes the constitutional rights of the claimant.
(b) An order that the claimant is the owner/and/or the person entitled to the statutory right of occupancy over the portion of land situate at Apata Yakuba, Elekoyangan via Kwara Polytechnic, Ilorin, Kwara State purportedly granted to the 1st defendant by the 2nd and 3rd defendants in their letter dated 30/03/2011 titled ‘provisional allocation of statutory right of occupancy for plot within Ilorin Urban Area with Reference number Lan/Aro/Res/37297/vol.2.’
(c) An order setting aside the letter dated 30/03/2011 titled provisional allocation of statutory right of occupancy for plot within Ilorin urban area with reference number Lan/ARO/RES/372297/00L1 issued by the 2nd defendant in the name and/or to the 1st defendant.
(d) An order of perpetual injunction restraining the defendant each of them by themselves or through their agents, servants or privies of taking possession interfering or doing anything whatsoever inimical to the interest of the claimant on the land situate by Apata Yakuba, Elekoyangan via Kwara Polytechnic, Ilorin, Kwara State.
(e) 5 million as general damages for diverse of trespass submitted by the defendants in respect of the land. Diversion (9) is not given to the claimant as it has to be strictly proved and not dumping in Court as if the Court was a Father Christmas of a kind see OKUNZUA VS. AMOSU AND ORS (1992) 7 SCNJ 243 at 258 see also UBANI-UKOMA VS. NICOL (1962) ALL NLR (Part 1) 105. Judgment for the claimant parties are reminded of their right of appeal.
The 2nd and 3rd defendants, dissatisfied with the said judgment caused a Notice of Appeal challenging the said judgment filed on the 31/3/2016 and predicated on six grounds of appeal. The extant Notice of Appeal, is the amended Notice of Appeal filed on the 27th of April, 2017 predicated on 12 grounds of appeal.
The appellants’ extant brief of argument is the appellants’ amended brief of argument filed on the 8/6/2017 but deemed filed on the 4th July, 2017. There is the appellants’ amended reply brief filed on the 13/12/2017 in response to the 1st respondent’s brief of argument containing a preliminary objection.
Reacting to the appeal filed, 1st respondent filed 1st respondent’s amended brief of argument incorporating a preliminary objection on the 25/10/17, but deemed filed on the 7/12/17.
The 2nd respondent’s brief was filed on the 2/8/17.
On the 19/2/2018, being the scheduled hearing date for the appeal, parties adopted their respective briefs of argument.
In adopting his brief, Mr. Abaya learned counsel for the 1st respondent drew the Court’s attention to the preliminary objection incorporated in the brief and argued at pages 4-7 of the brief. He further drew the Court’s attention to the additional records filed on the 25th April, 2017 deemed filed on the 25th/4/2017, and the case of Zakari vs. Mohammed (2017) 17 NWLR (pt. 1594) 181 at 214, with regards to his arguments at paragraphs 2.08 of the brief and urged the Court to dismiss the appeal.
Mr. Ibrahim for the 2nd respondent in adopting his brief, argued that there is no rule of Court preventing the 2nd respondent to side with the appellant. He referred to Order 19 Rule 4(2) of the rules of this Court submitting that the rule allows the respondent to concede the appeal.
In the appellants? brief settled by kamaldeen Ajibade, the Honourable Attorney General Kwara State, leading H. A. Gegele Director Civil Litigation, I. G. Jibril Esq., M. A. Oniye Esq., A. M. Bello Esq., A. M. Jibril Esq., A. B. Nuhu Esq., and O. T. Adewara (Miss) all of the Ministry of Justice, Kwara State proposed six issues as follows:
i. Whether the action of the 1st respondent before the lower Court is statute barred under the provisions of Kwara State Limitation Law.
ii. Whether the appellant’s right to fair hearing was not violated by the failure of the learned trial judge to consider, appraise, refer to and evaluate all the Exhibits tendered and relied upon by the appellants before arriving at his decision.
iii. Whether the copious reliance of the learned trial judge on the provisions of the Land Use Act of 1978 in holding against the Government acquisition that affected the res in issue was right, when the acquisition of the res in dispute was done in 1973.
iv. Whether the lower Court was not in error in granting the reliefs of the 1st respondents when same was not proved as required by law.
v. Whether the learned trial judge was right in granting an order of perpetual injunction against the statutory powers of the 2nd appellant.
vi. Whether the award of N5,000,000.00 general damages against the appellants by the learned trial judge is justified.
S. I. Abaya with S. T. Awosode Esq., of learned counsel for the 1st respondent and without prejudice to the preliminary objection raised, proffered three issues for resolution as follows:
i. Whether the learned trial judge did not rightly consider an award 6 out of the 7 reliefs and downward variation of relief 7 relating to damages to the respondent upon requisite proof of same.
ii. Whether the lower Court did not consider oral and documentary evidence tendered in coming to her decision.
iii. Whether the cause of action as found by the lower Court is wrong and perverse.
The 2nd respondent on the other hand in the brief settled by Abdullahi Ibrahim, adopted the issues formulated by the appellant, and relied on same in arguing his appeal.
Evidently, the area in contention is plot 4 Block MIS 219 situate at Apata Yakuba, Elekoyanga via Kwara State Polytechnic, Ilorin.
The 1st respondent claimed that he is the owner of the said plot of land founded by one Mallam Jimoh Adisa the claimants’ grandfather who lived for over one hundred years enjoying peaceful and undisturbed possession of same up to his demise in the year 2010. The said land amongst others is said to have devolved on the claimant/1st respondent being the eldest member of the family.
Appellant on the other hand contended that the plot of land forms part of the government residential layout design technically called TPO 219 founded on a public acquisition carried out in 1973 with evidence of compensation paid and received in 1974 by the 1st respondent’s predecessor in title.
The case having proceeded to trial, evidence was taken, addresses filed and adopted leading to the vexed judgment of 23rd March, 2016.
The Preliminary Objection
The 1st respondent in the preliminary objection raised, listed the following grounds and relied upon same to contend that the appeal ought to be dismissed.
i. The 1st and 2nd respondents herein was the 1st defendant in the judgment of the lower Court delivered in suit No. KWS/213/2011.
ii. The success of this appeal ensures to the benefit of the said 2nd respondent who has been forced into a position of having to defend the judgment of the lower Court which is not to his benefit in any way whatsoever by being made a respondent, hence constituting an abuse of the processes of this honourable Court.iii. The 2nd respondent has been made a reluctant respondent in the appeal.
iv. The 2nd respondent has conceded the appeal, hence this appeal is liable to a dismissal for its gross abuse.
v. Failure of the 1st and 2nd appellants and the 2nd respondent to continue to fight the case together by filing a joint appeal renders this appeal to a dismissal.
vi. The record of appeal compiled by the 1st and 2nd appellants does not represent a complete record of all the names of the parties as the name of the 2nd respondent is omitted.
vii. The making of the 2nd respondent in this appeal, who was the 1st defendant at the lower Court has made her not to perform her traditional role of defending the judgment on appeal, hence rendering this appeal incompetent.
viii. All the grounds of appeal of the 1st and 2nd appellants as contained on the amended notice of appeal on facts or of mixed law and facts which required the 1st and 2nd appellants to seek leave of either this Court or the Court below.
ix. The 1st and 2nd appellants and the 2nd respondent have filed multiple appeals in suit KWS/213/2011 arising from the said judgment when the judgment of the lower Court remains the same as well as their final written address.
The arguments of the 1st respondent with respect to his preliminary objection, are centered mainly upon the complaint that the appellants’ action situating the 2nd respondent as a respondent is a gross abuse of the Court, that the 1st and 2nd appellant, as well as the 2nd respondent filed multiple suits, that the grounds of appeal of the 1st and 2nd respondents are grounds of mixed law and facts for which the leave of Court is required, and lastly, that the 2nd respondent’s brief was filed out of time.
The appellants’ response to the issues raised in the preliminary objection were responded to by the appellants’ in the amended reply brief, wherefore, it was argued that the case of Bukoye vs. Adeyemo (no. 3) (2016) 7 SC (pt. 11) 101 @ 134, cited and relied upon by the 1st respondent is inapplicable. He argued further on this that whereas in the case of Bukoye vs. Adeyemo (Supra), relied upon by the objectors, the 1st to 5th defendants/appellants were represented at the lower Court by a single team of lawyers, the appellants and the 2nd respondent did not file a joint defense at the Court of trial, and the appellant and the 2nd respondent were each represented by a different set of counsel, and were in that regard not co travellers. I see with the appellants that the ratio of the case in Adeyemo (supra) is completely at variance with the instant case, and going by the principle in Eke vs. FRN (2013) ALL FWLR (pt. 702)1748 @ 1796 cannot apply as judicial precedent to the case at hand. Indeed the case of AG Kwara State & Anor vs. Alhaji Saka Adeyemo & Ors (2017) ALL FWLR (pt. 868) 616, did not abort the practice of parties appealing their cases as prosecuted by them.
The other issue raised by the objectors, is that all the grounds of appeal are based on facts or mixed law and facts. I have in that regard examined carefully the grounds of appeal filed, vis a vis, the objection by the learned counsel for the 1st respondent, and fail to agree with him that the grounds are of facts and mixed law and facts. I agree with the respondent’s counsel’s reliance on the case of Ogbechie & Ors vs. Gabriel Onochie & Ors (1986) 2 NWLR (pt. 483) 490 – 492 that:
‘It is a self-evident fact that the law does not hang as it were in the air.
Facts are the fountain head of the law. Every proposition of the law in a case has a factual base. If the facts, including any particulars thereof, upon which a ground of appeal is based are disputed facts or those that requires further resolution by the Court, then such ground of appeal is one of fact. But if such are settled or admitted facts, then the grounds are grounds of law.”
The case of Chukwuma vs. Nwoye (2011) ALL FWLR (pt. 553) 1942 @ 1959 – 1960, settled the fact that a preliminary objection in an appeal is meant to scuttle the hearing of the appeal, and should therefore go to the root of the appeal, where however there subsists a ground upon which the appeal can be heard, the Court is enjoined to pursue the attainment of substantial justice. On whether the 2nd respondent’s brief was filed out of time, I prefer to consider the issue in the consideration of the appeal, the issue having been argued in the appeal. The consequence of all the deductions made is that there is no merit in the preliminary objection argued and same is discountenanced.
The appellant arguing the first issue formulated by him, i.e. whether the action of the 1st respondent before the lower Court is statute barred under the provision of Kwara State Limitation Law, sought to question the jurisdictional competence of the lower Court entertaining the case that led to the instant appeal. It is the contention of the Learned Attorney-General, that the action of the 1st respondent is stale and not justiciable as at 2011, when the action was filled. He argued that the trial judge at pages 438 of the record of appeal took a wrong position, when it observed that it is only the writ of summons and the statement of claim that determines the cause of action. He made reference to the observation of the lower Court at pages 438 of the record, and submits that the lower Court misconceived the date of the accrual of the cause of action in the case before it. Further alluding to the holding of the lower Court at page 438 of the records, learned counsel submits that though a claimant’s demand can ground a cause of action in relation to the limitation of the action, when evidence has been taken or on appeal, the jurisdictional issue is determined from the facts proved or ascertained from the evidence before the Court, and not the plaintiff?s demand alone. The cases of Kasikwa Farms Ltd vs. AG Bendel State (1986) 1 NWLR (pt. 19) 695 @ 704 amongst others.
It was also contended by the learned counsel for the appellants that, though the 1st respondent feigned ignorance of the Government acquisition which affected the 1st respondent’s family land in 1973, the testimony of the 1st respondent cannot stand the test of documentary evidence admitted in evidence, i.e. D1, D2 and D3. He argued that the combined effect of the exhibits mentioned, is that 1st respondent’s father was aware of the 1973 acquisition and duly compensated as evidenced by Exhibit D3. He posits that the cause of action accrued since 1973, and the action filed in 2011, a period of over 37 years. He states that by the stipulations of Section 4 of the Kwara State Limitation Law, and the decision of CBN vs. Ukpong (2006) 13 NWLR (pt. 998) 555, the rights of the 1st respondent if any was extinguished. He further referred to the case of Akibu vs. Azeez (2003) 5 NWLR (pt. 814) 643 @ 672-673, to the effect that ignorance, illiteracy or lack of knowledge does not prevent the running of time, and the action having been filed later than the 10 years allowed, the action was stale, and the lower Court wrong to have assumed jurisdiction.
The response of the 1st respondent to this issue is located at pages 25 to 28 of the 1st respondent?s brief, wherein, learned counsel referred to the case of Elabanjo & Anor vs. Dawodu (2006) 6 ? 7 SC 24 which gave meaning to the Limitation Law, Cap 118, Laws of Lagos State, 1994, which are in pari-materia with Section 4 of the Kwara State limitation Law, 2007, to the effect that:
“Where the person bringing an action to recover land or some person through whom he claims, has been in possession thereof and has while entitled thereto been disposed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”
He argued also that jurisdiction is determined on the plaintiff’s demand and not on the defendant’s answer, citing Elabanjo vs. Dawodu (supra). He maintains that the respondents paragraphs 15 – 26 of the statement of claim, and Exhibits 1, 2, 3, 4, 6, and 8 as well as Exhibit D4 pontificated when the cause of action arose.
In further argument, counsel submits that assuming, though not conceding that the cause of action arose in the year 1973, and caught by statute of limitation, the evidence in the area of the res including the contagious land and houses indicated the existence of continuing trespass in 2010 and 2011, which will affect the limitation of action. The case of Okutoye vs. Obioru (2007) 1 FWLR (pt. 352) 759 @ 772 was cited and relied upon. He concludes by stating that the lower Court was right to have held that the cause of action arose in the year 2010, when the 2nd and 3rd defendants seemed to have acquired the land with inscriptions on some part of the constructed building, and March, 2011, when the provisional issuance of right of occupancy was made.
The simple question arising for resolution is, whether the action of the 1st respondent before the lower Court is statute barred under the provisions of the Kwara State Limitation law. The question becomes crucial because, where it is determined that the action is statute barred, the lower Court would have labored in vain, and its proceedings and the resolution thereof rendered vain and a nullity. This is because, an action being statute barred, means that the plaintiff who would have had a cause of action by judicial process loses such right to approach the Court to ventilate his grievances. See Eboigbe vs. NNPC (1994) 5 NWLR (pt. 347) 649.
Nweze JSC in the recent case of Asaboro vs. Pan Ocean Oil Corp. (Nig) Ltd (2017) 7 NWLR (pt. 1563) 42 @ 73, fully elaborated on the state of the law when he opined that:
“…A plaintiffs right of action eventuates from the existence of a cause of action. Ikine vs. Edjerode (2001) 12 KLR (pt. 131) 3711. In the con of this distinction, what emerges is that, whereas the plaintiff’s cause of action remains intact, although in a vacuous or bare form, a statute of Limitation denudes him (the plaintiff) of his action, that is his right of enforcement, the right to judicial relief. Egbe vs. Adefarasin (2) (1987) 1 NWLR (pt. 47) 1. To be able therefore to enjoy the dividends which recourse to the judicial process affords, such a plaintiff must commence his action within the period stipulated by statute.
In other words it is a mandatory requirement. Sidi Ali vs. Takwa (2004) 1 WRN 180. Thus legal proceedings cannot be validly instituted after the expiration of the prescribed period. Sanda vs. Kukawa Local Government (1991) 2NWLR (pt. 1740 379.”
The contention of the appellants is that the cause of action can be determined from the claimant?s demand before the Court as well as the evidence taken or on appeal. That the jurisdictional issue is determined from the facts proved or ascertained from every evidence before the Court, contrary to the position taken by the respondents, and the holding of the lower Court, to the effect that:
‘Both counsel to the parties agreed that the period of limitation can be determined by looking at the writ of summons and statement of claim to determine the cause of action and time frame. The combined readings of the writ of summons and the statement of claim particularly paragraphs 16, 26, 33, and 35 of the statement of claim and particularly paragraph 35 showed clearly that the cause of action arose from 22/05/2011 and 30th of March, 2011
From the avalanche of case law on the issue, the respondent, and indeed the lower Court are not totally wrong on that score. This Court as well as the apex Court have reiterated that in determining whether an action is statute barred, the Court looks at the plaintiff’s writ of summons and the statement of claim alleging when the wrong was committed. See CBN vs. Harris (2017) 11 NWLR (pt. 1575) 54; INEC vs. Enasito (2018) 2 NWLR (pt. 1602) 63 @ 101; Okafor vs. BDU, Jos Branch (2017) 5 NWLR (pt. 1559) 385 @ 417; Egbe vs. Adefarasin (1987) 1 NWLR (pt. 47) 1, Woherem vs. Emereuwa (2004) 13 NWLR (pt. 890) 417; Esuwoye vs. Bosere (2017) 1 NWLR (pt. 1546) 256; Nweke vs. Unizik (2017) 18 NWLR (pt. 1598) 454 @ 475 amongst so many others.
From the 1st respondent’s statement of claim therefore it appears to me that while 1st respondent contended that his plots of land were allocated to the 1st defendant by the 2nd and 3rd defendants. It was further averred in paragraph 27 of the claim, that:
27. The claimant avers that to the best of his knowledge the family is not aware of any acquisition of her land by the Kwara State Government and has always exercised full acts of possession and ownership on the land.
28. The claimant further avers that neither he nor his grandfather is in receipt or aware of any notice of acquisition by Kwara State Government.
29. The claimant avers that the purported letter of allocation of the 1st defendant?s land was done in bad faith as same was unlawfully created by the 2nd defendant as a calculated attempt at depriving him of his constitutional right to continue the ownership of the land deemed granted to him.
30. The claimant shall content (sic) at the trial of this action that he remains the owner and the rightful holder of the interest in the land and the 1st defendant has proceeded to enter same unlawfully in violation of his deemed grant of right of occupancy.
The settled position of the law is that jurisdiction is the authority given to the Court by the Constitution, or legislation to decide matters before it. It is a thresh hold issue, which can be raised at any time and by any means, including the Court raising it suo motu. Once raised, it must be determined first in time, for no matter how well a case is determined, once it lacks jurisdiction, the proceedings and conclusions reached are a nullity. See Madukolu vs. Nkemdilim (1962) 2 NSCC 374, Usman Dan Fodio University vs. Kraus Thompson Organization Ltd. (2001) 15 NWLR (pt. 736) 305, AG Kwara State vs. Adeyemo (2017) ALL FWLR (pt. 868) 616 @ 642 per Rhodes Vivour JSC.
It flows also that where the issue of limitation of action is raised, the jurisdiction of the Court is being put to question, for where the case to be tried is stale, the Court is devoid of power to determine the case before it, and to grant the reliefs sought. In all these, it is the statement of claim read holistically that must be looked for, in determining whether the Court has jurisdiction or not.
In the instant case, the lower Court from pages 437 of the record tried to identify when the cause of action arose, and referred to certain paragraphs in the statement of claim in reaching the conclusion that the cause of action arose either in 2010 or on the 30th of March, 2011. Unfortunately, the lower Court failed to indicate how he arrived at the said conclusion in view of the other paragraphs of the statement of claim, imputing that the land might have been acquired by the Kwara State Government sometimes in the year 1973.
It has been held that a cause of action connotes that fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to a judicial redress or relief. See Afolayan vs. Ogunrinde (1990) 1 NWLR (pt. 127) 369.
In land cases as stated in the case of Elabanjo vs. Dawodu (supra), cited by the respondent, the cause of action is said to accrue from the date the claimant was dispossessed of the land. It seems to me from the statement of claim, the cause of action seems to be in dispute. For while appellants contended, which fact is to the knowledge of the respondents and referred to in the statement of claim, that the cause of action arose in the year 1973, when the Kwara State Government is said to have acquired the land in question, respondents and the lower Court held the view that the cause of action arose in the year 2010, when the 1st defendant was issued allocation letters to the land, subject of the instant appeal. In such a situation, evidence becomes necessary in determining the time of the accrual of the cause of action. The Apex Court speaking through the mouth of Onnoghen CJN, laid the issue to rest in the recent case of Asaboro vs. Pan Ocean Oil Corp. (NIG.) Ltd (supra) @ 68 , thus:
“Whether an action is statute barred, and in doing this the Court is expected to peruse the originating process, statement of claim together with the evidence on record where that has taken place to know when the wrong in question occurred and compare it with the date the originating process was filed in Court. I rely on the case of Ogundipe vs. NDIC (2008) ALL FWLR (pt. 432) 1220 @ 1239.”
Or as simply stated by Georgewill JCA:
“In determining whether a suit, either the claims of the claimant is statute barred or not, the law is well settled that the Court will have recourse to the endorsement on the writ of summons, where the statement of claim has not been filed to examine to ascertain when the cause of action arose and compare same with the date the writ was filed to see if it was filed within time or not. Thus it is only where the date of the accrual of the cause of action is not easily ascertainable from the pleadings of the claimant that the Court must resort, as a last resort to the evidence before it.”
The lower Court was therefore in error faced with the uncertainty as to when the cause of action in the instant case arose, determining same based solely on the writ of summons and statement of claim, in total disregard to the evidence adduced on the issue before it. I agree with the learned counsel for the appellant that where evidence has been taken as in the instant case, the jurisdictional issue is determined from the facts proved or ascertained from the evidence led before the Court and not from the writ and the statement of claim alone. The cases of Kasikwa Farms Ltd vs. AG Bendel State (supra), and NDIC vs. CBN & Anor (2002) FWLR (pt. 990) 102 cited by the appellants are apposite.
The question still remains, when did the cause of action accrue in the case at hand? It has been argued by the appellants, that by the combined effect of Exhibits D1, D2 and D3, it has been shown that the father of the 1st respondent was aware that the land in contention was acquired by the Kwara State Government in the year 1973, and compensated as shown by Exhibit D3, and therefore safe to conclude that the date the cause of action arose in the year 1973.
He contends that the suit filed by the 1st respondent against the appellant having been filed in the year 2011, a period of about 37 years, by virtue of Section 4 of the Kwara State Limitation law, the suit is stale and unenforceable and thereby incompetent. He argued further that the 1st respondent’s ignorance of the 1973 compulsory acquisition is of no moment, as stated in the case of Akibu vs. Azeez (supra) @ 672 – 673. Appellants’ counsel is of the view therefore that the lower Court erred in assuming jurisdiction, and determining the subject of the appeal. The 1st respondent on the other hand is of the view that the cause of action apart from being decided on the basis of the demand by the claimants, and even were it is to be assumed that the appellants contention that the cause of action arose in 1973, same is caught up by the existence of continuous trespass.
Apparently at the trial of the instant case, Exhibits D1, the notice of revocation of the right of occupancy dated the 20th of July, 1973, Exhibit D2, the list of people paid compensation in respect of the land acquired dated the 14th of November, 1974, and Exhibit D3, a letter from one J. A. Shittu, protesting the quantum of the amount paid dated the 19th of November, 1974, were tendered in evidence before the lower Court. The learned counsel for the appellants is therefore on a strong wicket, in asserting that by the combined effect of the above mentioned exhibits, the claimants through their father were aware of the acquisition of the land and the compensation paid, which was in the year 1973. The appellants are equally correct in stating the law, that the lack of knowledge or ignorance of the claimants to that fact does not prevent the running of the time in limitation actions, for as stated in the case of Akibu vs. Azeez (2003) 5 NWLR (pt. 814) 643 @ 672-673;
“A statute of limitation beginning to run from the moment the cause of action arose. It is immaterial that a party was absent from the jurisdiction to entertain the claim. Similarly, illiteracy will also not avail the plaintiff since ignorance of the law is no excuse.”
Exhibits D1, D2 and D3 are documentary evidence, which enjoy the presumption of authenticity, by virtue of Section 162 of the Evidence Act. It is therefore trite that, when a document is duly pleaded and admitted in evidence, that document becomes the best evidence of its contents and therefore speaks for itself, and the Court cannot disregard it. See Emeje vs. Positive (2010) 1 NWLR (pt. 1174) 48 @ 56, Atanda vs. Ifelagba (2003) 17 NWLR (pt. 849) 274, Agbareh vs. Mimra (2008) 2 NWLR (pt.1071) 378 @ 388, and AG Bendel State vs. UBA (1986) 4 NWLR (pt. 37) 547, amongst many others. I agree with the appellant, that from the facts proved in evidence, the cause of action as far as the case before the lower Court was concerned, was the acquisition of the land subject of the present dispute by the Kwara State Government sometimes in the year 1973, a period spanning more than the ten years stipulated in the limitation law.
In essence, the action filed by the claimants in the year 2011, when the cause of action arose in 1973, means that the action is caught up by and in violation of the stipulations of Section 4 of the Kwara State Limitation Law, and the lower Court in grave error when it held otherwise, and thus wrongly assumed jurisdiction. The consequence is that the lower Court having been divested of jurisdiction, by virtue of the aforesaid Limitation Law, the duty of this Court considering other issues raised, abates upon the finding that the case is statute barred.
The inevitable conclusion is that this appeal succeeds, and it is hereby allowed by me. The decision of Akanbi J., in suit No KWS/213/2011, between Mallam Atanda Alabi, acting for and on behalf of the Onitoki family, and Mrs Atolagbe Rafat Ayobami and 2 Ors, delivered on the 23rd of March, 2016 is hereby set aside.
There shall be costs of N50, 000.00 in favor of the appellants.
APPEAL ALLOWED.
CHIDI NWAOMA UWA, J.C.A.: I read before now, the judgment of my learned brother HAMMA AKAWU BARKA, JCA. My learned brother in his usual manner has comprehensively dealt with the issues that arose in the appeal, I adopt his reasoning and conclusion arrived at as mine in setting aside the judgment of the trial Court and allowing the appeal.
I abide by the order made as to costs in the leading judgment.
BOLOUKUROMO MOSES UGO, J.C.A.: I had read in draft the judgment of my learned brother HAMMA AKAWU BARKA, J.C.A., and I also agree that from the evidence before the lower Court, the respondents’ action was undoubtedly caught by the Limitation Law of Kwara State and the lower Court is wrong to enter judgment in their favour.
In the event, I also allow the appeal and set aside the judgment of the lower Court.
I abide by all the consequential orders of my learned brother BARKA J. C. A. including that as to costs.
Appearances:
H.A. Gegele (DCL) with him, M.A. Oniye, (CSC) A.M. Bello (CSC), O.T. David (SSC) and A.A. Akeukewe (PSC)For Appellant(s)
S.I Abaya -for 1st Respondent.
Abdullahi Ibrahim – for 2nd Respondent.
For Respondent(s)
