EMOKPAE v. PAN OCEAN OIL CORPORATION OF NIG LTD & ANOR
(2022)LCN/16477(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Monday, May 09, 2022
CA/B/223/2019
Before Our Lordships:
UchechukwuOnyemenam Justice of the Court of Appeal
James GamboAbundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
ABBORT EMOKPAE (For Himself And As Representing Members Of Aiyebomwan Family Of Ologbo In Ikpoba-Okha Local Government Area Of Edo State) APPELANT(S)
And
1. PAN OCEAN OIL CORPORATION OF NIGERIA LTD 2. ATTORNEY-GENERAL, EDO STATE RESPONDENT(S)
RATIO:
STATUTES OF LIMITATION ARE INAPPLICABLE TO LAND TENURES UNDER NATIVE LAW AND CUSTOM
The law seems settled that statutes of limitation are inapplicable to land tenures under native law and custom. See Olujobade& Anor v. Olalusi&Ors (2021) LPELR – 8908 (CA) pp. 17 – 18 paras. E- D.
The claims in the instant appeal are similar to the claims in the case of Chief AmoduAkanbi&Ors v. Attorney General of the Federation &Ors (2017) LPELR – 43121 (CA). In that case, the appellants alleged that sometime before the action was filed, the Federal Government of Nigeria, purportedly, acquired their large expanse of land, lying and being betweenKelebe area and Omu stream in Osogbo and Olorunda Local Government Area in Osun State. There was no notice of acquisition of the land in dispute served on the appellants. The land in dispute belonged to the appellants by inheritance under native law and custom and they exercised acts of possession and ownership thereon. Subsequently, the respondents let out the disputed land to private individuals for fees, who built structures, felled and destroyed economic trees on it. Sequel to that the appellants on 7th July, 2011, via a writ of summons beseeched the lower Court and sought for the nullification of the acquisition, a declaration that the occupation of the disputed land amounted to trespass, damages/mesne profits, and an order compelling the respondents, their servants, agents from further trespass on it and any other relief in the circumstance. JAMES GAMBO ABUNDAGA, J.C.A.
TITLE BY PRESCRIPTION IS COMPLETELY UNKNOWN TO LAND HELD UNDER CUSTOMARY TENURE
The lower Court allowed the preliminary objection and struck out the suit for being statute-barred. On appeal to this Court, it was held:
“…This averment is very crucial, itamply, demonstrates that the disputed land, a heritage of the appellants from their forebears, was/is subject of customary holding. In Odekilekun v. Hassan (1997) 54 LRCN 2819 (1997) 12 SCNJ 114 at 134-135, Iguh, JSC, speaking for the unanimous voice of the Supreme Court, held: I think it ought to be pointed out on this issue of adverse long possession that it is trite that title by prescription is completely unknown to land held under customary tenure. See Mogaji v. Cadbury(1985) 2 NWLR (Pt. 77) 383. In this connection, a distinction must be drawn between land held under customary tenure and land held under statutory law. Whereas there is nothing like prescriptive title over land held under customary tenure, that mode of title is certainly cognizable in respect of land held under statutory law…. Accordingly, it is indisputable that the provisions of the Limitation Law, Cap. 64; Laws of Western Nigeria, 1957…… which prescribe title by prescription, clearly do not affect actions in respect of title to or any interest in land held under customary tenure. JAMES GAMBO ABUNDAGA, J.C.A.
THE LAW IS SETTLED THAT A COURT SHOULD NOT ENGAGE IN ACADEMIC ISSUES/EXERCISE
This is because the law is settled that a Court should not engage in academic issues/exercise. See Oyeleke v. Oyediran (2020) LPELR -52098 (CA) P. 55 paras B – D, Biyi Co. Ltd V. Chief Registrar, High Court of the FCT & Anor (2021) PP. 10 – 21, paras 10 – 11, paras B – A, Alamu& Anor v. Rijau&Ors (2021) LPELR – 55639 (CA), PP. 29 – 30 para D. JAMES GAMBO ABUNDAGA, J.C.A.
THE SETTLED LAW ON THE ISSUE OF JURISDICTION
It is pertinent to point out that since the issue of jurisdiction has been settled via my resolution to the effect that the appellant’s suit is not statute-barred, the processes will be restricted to the aspect dealing with the merit of appellant’s claims. The consideration of the final written addresses will be similarly restricted to the aspects dealing with the merit of the claims, that is whether the appellant is entitled to his claims. JAMES GAMBO ABUNDAGA, J.C.A.
THE NEED FOR STRICT COMPLIANCE BEFORE LAND CAN BE LEGALLY ACQUIRED BY THE GOVERNMENT
The need for strict compliance with the above provision of the Constitution before land can be legally acquired by Government was brought to bear in the caseof Gold Mark (Nig) Ltd v. Ibafon Co. Ltd &Ors(2012) LPELR 9349 (SC) where it was held:
“One cannot but continue to emphasize that where a statute specifically provides for a particular way in which Government or any party can obtain title, the Government or the party can only acquire title by strict compliance with the statute, unless the statute or its wording is against the constitution of the Land. Another way of stating it is that there should be strict compliance with the issue of serving notice on land owners or interested persons in compulsory acquisition of land in accordance with the provisions of the law aforesaid. See Provost Lagos State College of Education &Ors. v Dr. Kolawole Edun&Ors (2004) 6 NWLR (Pt.870) 476 at 506; Okeowo v Attorney-General Ogun State (2010) 16 NWLR (Pt.1219) 327.”
Per PETER-ODILI, JSC (P. 97, paras C-F). JAMES GAMBO ABUNDAGA, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The High Court of Edo State sitting at Benin City, Coram: Hon. Justice E. O. Ahamioje, J., delivered judgment in Suit No. B/ 344/2016 on 13/12/16 in which the learned trial Judge struck out the claim of the claimant on the basis that the suit was statute-barred and therefore robbed the Court of jurisdiction to entertain the claims.
The instant appeal therefore represents the claimant’s expression of dissatisfaction with the judgment of the said trial Court. The judgment is predicated on the claims of the claimant as contained in his statement of claim of 15 paragraphs. The claims are as follows:
“(i) A declaration that claimant is entitled to the right of occupancy over the 3 acres of Aiyebomwan land situate at Ologbo in Ikpoba-Okha Local Government Area of Edo State.
(ii) N4,000,000.00 (Four Million Naira) only for forceful acquisition and trespass and for loss of farming rights from 2011 – 2015.
(iii) N1,000,000.00 (One Million Naira) only per year from 2011 till judgment and liquidation of judgment for continuous loss of farming rights.
(iv) A mandatory injunction ordering 1st defendant to remove its properties from claimant’s land and restore the land to its original state.
(v) A perpetual injunction restraining the defendants by themselves, servants and/or privies from further trespassing, defacing and/or constituting nuisance of any form on the claimant’s land aforesaid without following due legal process to acquire the land in accordance with the Land Use Act.
Alternatively,
Claimant claims the sum of N2b (Two Billion Naira) only as compensation for forceful acquisition of claimant’s land.
15. Claimant shall rely on all legal and equitable reliefs open to them at the hearing.”
The claims were denied by the 1st defendant in its 14 – paragraph amended statement of defence.
Pleadings fully exchanged, the claimant and 1st defendant each called one witness. Documentary evidence were also adduced. At the close of both the 1st defendant’s case, the 1st defendant and the claimant filed their counsel’s final written addresses which were duly adopted, sequel to which the learned trial Judge delivered the judgment culminating in the instant appeal.
The notice of appeal was filed on 6/2/19. It contains five (5) grounds of appeal.
The grounds of appeal shorn of their particulars as hereunder reproduced:
“GROUND 1
The learned trial judge erred when he held that the suit is statute-barred and dismissed it.
GROUND 2
The learned trial judge misconceived the law and erred when he held that: ‘from the state of pleadings of the claimant and the evidence led, it is indisputably dear that the cause of action accrued in 1995, wherein the claimant’s parent, Dora Aiyebomwan and others instituted the suit in 8/497/95 when the 1st defendant entered the claimant’s family farmland for oil exploration consequent upon the mining lease granted it by the Federal Government’.
GROUND 3
The learned trial judge erred when he hinged appellant’s loss of right to sue on a purported appellant’s knowledge in 1995, by holding that “It is, my view, that the issue of compulsory acquisition of the claimant’s land was a fact well known to claimants since 1995”.
GROUND 4
Learned trial judge erred when he held thus: “In other words, the claimant was quite aware that their right to compensation for the 1st defendant’s use of their land and the destruction of their economic crops accrued in 1995, but decided to sue the 1st defendant for improvement or destruction of economic crops on the land alone. The law does not allow a party, like the claimant who have several causes of action against an adverse party to ventilate their grievances or causes of action in piece meal or by installment hence the law allows joinder of causes of action”.
GROUND 5
The learned trial judge erred in law when he held that respondent’s entrance in appellant’s land cannot be trespass anymore and concluded thus: “The 1st defendant cannot be regarded as a trespasser on the claimant’s land for which act could constitute trespass not subject to limitation law” because they were granted oil prospecting license and oil mining lease by the Federal Government of Nigeria.”
On due compilation of the record of appeal, briefs of argument were filed. The appellant’s brief of argument, settled by his counsel D. O. Ezaga, SAN, was filed on 8/4/19. The 1st respondent’s brief of argument, settled by Prof. Amos Aigbe Utuama, SAN, was filed on 28/5/19. The appellant filed a reply brief of argument on 16/7/19 but deemed filed on 2/12/21. The briefs of argument were adopted on 9/2/22 at the hearing of the appeal whereat the appellant was represented by A. M. Ukwu, while 1st respondent was represented by E. F. Avbenagha. The 2nd respondent though served all the processes in the appeal and the hearing notice was not represented by counsel.
In the appellant’s brief of argument, two issues were distilled. However, it is unfortunate that the issues were not related to the grounds of appeal, contrary to the well settled principle of law that issues for determination ought to be tied to the grounds of appeal, See Chywhite (Nig.) Ltd & Anor v. Diamond Bank Ltd & Anor (2015) LPELR – 41695 (CA) pp. 9 – 10 paras F – D, Oduntan v. General Oil Ltd (1995) LPELR – 2249 (SC), pp. 17 -18 paras E – B, Ojegbe & Anor v. Omatsone & Anor. (1999) LPELR – 6555 (CA), p. 5 paras D – E.
However, not tying issues to the grounds of appeal is a mere negligence which cannot render the issue to be incompetent and struck out. This will be particularly so, where even though the issues are not so tied, on a careful consideration of the issues vis-a-vis, the grounds of appeal, the issues clearly emanate from the grounds of appeal and are not at large – See the case of Baba Gana Yellow v. Baba Ali Wakil (2020) LPELR – 51467 (CA) Pp. 8- 9, paras A – C.
The issues formulated by the appellant are:
“(1) Whether the appellant’s suit is statute-barred,
(2) Whether the appellant is not entitled to have judgment entered in his favour.”
ARGUMENT ON THE ISSUES
ISSUE ONE
It is submitted for the appellant that the suit is not statute-barred on the following grounds:-
(1) That this suit is founded on title to land and strongly rooted in customary traditional history vide evidence of customary evidence. Reliance is placed on the case of Muemue v. Gaji (2001) 2 NWLR (Pt. 697) 289 at 309 where it was held that a grant under customary law is a grant in perpetuity, and that the concept of limitation law does not apply as a defence in land held subject to customary inheritance. Reliance is also placed on the case of Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460.
(2) That the limitation law is also not applicable because the appellant merely gave up possession, as opposed to adverse possession, and referred to paragraphs 10 and 12 of the amended statement of claim. He also referred to the several letters the appellant wrote to the 1st respondent reiterating their ownership of the land and their petition to the National Assembly over the matter.
(3) That the alleged trespass commenced in 2011 when the appellant felt that a temporary possession since 1995 by the 1st respondent ought to have been extinguished by 2011 but appellant returned to the land to see fixed assets without the land having been completely and permanently acquired. That before this time the 1st respondent was not accused of trespass because they promised to follow due process and 1st respondent did not claim to be owners of the land.
It is contended that an occupier or one in possession would become a trespasser the moment he starts claiming the ownership over his landlord. That the 1st respondent’s adverse actions were perceived in 2011 and her open confession that fortified the suspicion was in 2015.
That even if it is contended (though not conceding) as held by the trial Court that trespass was in 1995, time would still not start to run then because the trespass would have been continuous even up till the time the suit was filed. Relies on the case of Onagoruwa v. Akinremi (2001) 13 NWLR (Pt. 729) 38 at 61 and the case of Asaboro v. Pan Ocean Oil corp. (Nig.) Ltd (2017) (Pt. 1563) 42.
4. That limitation law will not apply because fraud is pleaded in paragraph 8 of the statement of claim, and relies on the case of Arowolo v. Ifabiyi (2002) 4 NWLR (Pt. 757) 356 at 383.
5. That limitation will also not apply because of the proved fact that no notice of revocation of appellant’s title was served on the appellant’s family till date.
Counsel regards as a judicially recognized fraud the failure to serve the notice of revocation, It is submitted that this submission was made before the trial Court but that the learned trial Judge glossed over it and made no finding on it. Relies on the case of Admin/Executors of Estate, Abacha v. Eke-spiff (2009) 7 NWLR (Pt. 1139) 97 at 132 paras E- F, 132 – 133, paras G- B.
ISSUE TWO
Counsel draws the Court’s attention to the fact that the learned trial Judge failed to pronounce on this issue except to state that trespass was not proved. However, it is submitted that the Court can exercise its power under Section 15 of the Court of Appeal Act 2004 to consider and resolve the issue. Refers to the cases of Ajadi v. Okenihun (1985) 1 NWLR (Pt. 3) 484, Olanrewaju v. Gov. of Oyo State (1992) 9 NWLR (Pt.265) 335.
Submits that the appellant proved the root of title, and that he was not compensated. Counsel faulted the trial Court in its holding that “the law does not allow a party like the claimant who have several causes of action against an adverse party to ventilate their grievances or causes of action in piece meal or by installment hence the law allows joinder of causes of action.”
It is submitted that the trial Judge’s statement does not represent the law, and argues that a party can file several suits based on several causes of action from a single incident and that would not amount to abuse of Court process so long as the issues raised are not the same. Reliance is placed on the case of Ogoejeofo v. Ogoejeofo (2006) 3 NWLR (Pt.966) 205 at 223.
Submits that the appellant’s case herein is even more understanding because as at when the family sued for improvement on the land, 1st respondent have not claimed ownership since no notice was served. That the issue of ownership in contradistinction to improvement on land arose at two different times and appellant contends that he was in order.
It is further submitted for the appellant that the fact that the 1st respondent admitted paying for improvement on the land to appellant does not preclude them from paying for ownership of the land. That they are foreclosed from denying liability. Reliance is placed on the case of Elf Pet. (Nig.) Ltd v. Umah (2018) 10 NWLR (Pt. 1628) at 443 – 445.
It is therefore submitted that the 1st respondent’s defence is built on technicalities instead of substance.
The Court is therefore urged to allow the appeal, set aside the judgment of the trial Court and to grant the appellant’s reliefs.
The 1st respondent in its brief of argument donated the following lone issue for determination:-
“Whether the lower Court was right in striking out the suit filed by the appellant having held that the cause of action is statute-barred by virtue of the operation of the Limitation Law applicable to Edo State.”
ARGUMENT ON THE ISSUE
Learned counsel to the 1st respondent contended that the judgment of the lower Court is in tune with the public policy which underlines the statute of limitation as stated by the apex Court in the case of Comfort Asaboro v. Pan Ocean Oil Corporation (Nig.) Ltd. (2017) All FWLR (Pt. 884) 1696 at 1730 – 1731 paras B – D, which is to the effect that it is in the public interest that there shall be an end to litigation. The reason, the Court explained is to avoid a situation in which due to lapse of time, a defendant stands the chance of losing material pieces of evidence which hitherto formed part of his arsenal in his defence. Further submitted that in the determination of the application of Limitation Law to an action, what the Court looks at is the processes filed to know when the cause of action was said to have occured. Submits that in this case, there is evidence on pleaded facts that the cause of action arose from the acquisition of land by the 1st respondent in 1995, and the consequent alleged permanent destruction of economic crops and loss of farming rights. It is further submitted that since the cause of action arose in 1995 and the action filed or commenced on 28/5/2016, same was commenced over 21 years. It is submitted that for money claimed under a simple contract or tort, recovery of land or any sum recoverable by virtue of any enactment in Edo State, Section 4(1) (a), (b), (c) and (d) of the Limitation Law of Bendel State applicable to Edo State shall apply.
It is pointed out that between 1995 and 2016 is a period over and above 6 (six) or 12 (twelve) years. Therefore, it is further submitted that the lower Court was right when it held that the claimant’s suit is statute-barred, and the Court robbed of jurisdiction to entertain it.
With respect to the submissions of the learned senior Counsel for the appellant, it is submitted that his arguments that Limitation Law is not applicable on grounds of continuous trespass, customary tenants, possession and fraud are misconceived in law.
On trespass, counsel points out that the appellant was not in possession and therefore cannot sue for trespass. Counsel relies on the case of Ezekwesili & Ors v. Agbapuonwu & Ors (2003) LPELR – 1204 (SC).
And extending the above to appellant counsel’s submission that limitation law cannot apply in a case of continuous trespass, it is submitted for the 1st respondent that since 1995 the 1st respondent has been in possession. Therefore, counsel points out that it is the 1st respondent that can maintain an action for trespass to protect its possession.
In regard to continuous trespass as submitted by the appellant’s counsel, it is contended for the 1st respondent that for there to be continuous trespass there has to be trespass, and since there is no proof of trespass, an action for continuous trespass cannot be sustained. Also submits that there is unchallenged evidence that the 1st respondent’s entry on the land was authorized by the lease granted to it by the Federal Government as shown in Exhibit “E3”.
In response to the contention of the appellant that the appellant merely gave up possession but not adverse possession, it is contended for the 1st respondent that at all material times, the appellant was not in possession, and therefore his action in trespass and continuous trespass is not maintainable.
For the 1st respondent, it is further submitted that the appellant is caught up by estoppel by conduct. Expatiating, 1st respondent’s counsel contended that the 1st respondent having paid the appellant’s family compensation vide the judgment of the Court in respect of the same land, took possession in 1995, and carrying out its oil exploration without any hindrance from the appellant until 2016 when this suit was instituted, the appellant is estopped from maintaining the claims.
It is argued that the 1st respondent is not a tenant of the appellant but that of the Federal Government that can revoke its license or lease. On the other hand, it is argued that if for 21 years (without conceding) the appellant was expecting rent and it was not paid and he did nothing, then the respondent in law had since become a tenant at sufferance who could take advantage of the Limitation Law of Bendel State, applicable to Edo State. That referring to the defendant (1st defendant) trespasser further weakens the appellant’s case because, even as trespasser the 1st respondent is entitled to take advantage of the Limitation Law to acquire possessory title to the land which the appellant has no enforceable right of recovery.
Now, dealing with the contention that the statute of limitation does not apply to land held subject to Customary or Traditional Inheritance, it is submitted for the 1st respondent that the argument and authorities cited are misconceived; and in regard to the case of Muemue v. Gaji (supra), it is pointed out that the Court held in that case that the action was brought within 5 years and not outside 10 years allowed by the Benue State Limitation Edict No. 16 of 1988, that in Muemue v. Gaji (supra) the trespasser is a customary tenant. Counsel points out that the cases cited are not applicable to this case because of its peculiar circumstances, especially as regards the fact that herein compensation was paid to the appellant’s family, the 1st respondent not being a tenant and that entry on the land was on the basis of a mining lease.
Further submits that this case being one seeking for declaration to a right of occupancy, it does not seem that it touches on interest in land of a customary nature.
It is further submitted that Section 44(1) of the 1999 Constitution guarantees right to payment of compensation to a land owner, which right counsel further submits could be lost where there is effluxion of time under Limitation Law.
Addressing the appellant’s submission that Limitation Law cannot apply because the failure to give notice of acquisition was fraudulent, submitted that the argument lacks merit because the particulars of fraud alleged were not provided as required by Order 15 Rule 3(1) of the Edo State High Court (Civil Procedure) Rules, 2012. Counsel relies on the case of H.M.S. Ltd v. First Bank (1991) (Pt. 167) 290.
Submits that the case of Admin. of Estate Abacha v. Eke-Spiff (supra) is distinguishable from the facts in the present appeal.
On the appellant’s call to this Court to exercise its powers under Section 15 of the Court of Appeal Act to determine the case on its merit, the 1st respondent’s counsel submits that the instant appeal does not warrant the exercise of the Court’s power under the said section because of lack of jurisdiction to do so. The point is further reiterated that this case does not constitute any exception to the rule that a party who has multiple causes of action shall not pursue them in installments against the defendant, as it would amount to abuse of Court process.
The Court is therefore urged to dismiss the appeal with substantial costs for want of merit.
I have observed that the appellant except in a few instances devoted the appellant’s reply brief to further disagree with the 1st respondent on issues already argued by the appellant. In other words, the reply brief is substantially a re-argument or reinforcement of the appellant’s case, which really is not the purpose of reply brief. In law, a reply brief is to address extraneous issues where raised by the opposing counsel in his brief of argument. See Onwukwe v. The State (2018) LPELR – 45989 (CA), Okenwa v. Mil. Gov. Imo State & Ors (1996) LPELR – 2440 (SC), P. 31 paras D – E, Kalu v. Uzor & Ors (2005) LPELR – 7476 (CA) 47, paras B – C.
To the 1st respondent’s submission that the statute of limitation will apply where a tenant fails to pay his rent within the time prescribed by limitation law, it is submitted for the appellant that a prospective tenant cannot become owner just because the owner failed to receive rent for 21 years. Submits that at best, it is the claim of rent that will be statute-barred. He however points out that what is in issue herein is not claim of rent. Submits that the statute of Limitation is not applicable to a land acquired without notice of public acquisition and compensation having been paid. He relies on the case of Elf Pet. (Nig.) Ltd v. Umah (supra).
In reply to the 1st respondent’s submission, that a claim of right of occupancy does not sound as a claim of interest in customary tenure, appellant’s counsel submits to the contrary. Submits that a claim for entitlement to a right of occupancy does not take the claim from the purview of customary tenure. That it is the history that matters.
In reply to the 1st respondent’s argument that the fraud alleged is not supported by particulars, it is contended for the appellant that fraud could have been particularized if the 1st respondent had raised issue of limitation specifically in their defence. That it was merely raised as a general issue of jurisdiction without particulars, and was infact raised at address stage.
On a careful perusal of the grounds of appeal, the record of appeal and the issues distilled by the parties, I am of the view that the appeal can be more comprehensively determined on the following issues as distilled by the appellant but slightly modified by me:
(1) Whether the learned trial Judge did not err when he struck out the appellant’s suit on the ground that it is statute-barred.
(2) Whether the appellant is not entitled to have judgment entered in his favour.
ISSUE ONE
Prior to the learned trial Judge’s order striking out the appellant’s suit, he made several findings of facts, amongst which are:
“Now, the question here is whether the claimants initiated this action outside the limitation period of 12 years from the date on which the right of action accrued to them.
I have myself carefully examined or scrutinized the writ of summons, the statement of claim filed by the Claimants and the evidence adduced. It is remarkable to note that the Claimants in their statement of claim dated the 26/5/2016, particularly paragraph 8 copiously averred thus:
“Before 1995, Claimant’s family farmed on the land until 1st Defendant encroached in the guise of oil exploration and damaged Claimant’s economic trees and crops, whereupon Claimant’s family sued 1st Defendant. At the conclusion of trial, the family was awarded compensation for damaged crops vide the family representatives named in paragraph 2 of this statement of claim. Same was paid by defendant.”
It is demonstrably clear from the aforesaid averment and the evidence adduced by the claimant, that the 1st Defendant entered the land in dispute in 1995 in pursuance of its oil mining lease granted by the Federal Government vide Exhibit “E3″. It is also patently clear in the instant case, that the Claimant are claiming compensation for forceful acquisition, trespass, continuous loss of farming right and injunctive reliefs, all arising from 1995 acquisition from which their family representatives were awarded compensation by the Court and same paid by the 1st Defendant.
In the instant case, I find as a fact and so hold that the claimants’ cause of action arose in 1995. In other words, the Claimants became aware of their right in 1995. It is, my considered view, that in 1995, when the Claimants’ cause of action arose and on the 29/5/2016, when the writ of summons was filed, which by simple arithmetical calculation is a period of 21years. This is completely outside the 12 years period provided for in Section 6(2) of the Limitation Law of Bendel State, as applicable in Edo State.”
All these go to show that the learned trial Judge was convinced that the cause of action accrued in 1995. That the appellant if he must institute the action should have done so within 12 years from the date the action accrued, and therefore filing it out of the period of 12 years, specifically on 25th May, 2016, was outside the limitation period as provided by Section 6(2) of the Limitation Law of Bendel State applicable to Edo State.
The appellant has faulted the findings of the trial Court on a number of grounds.
The first is that the suit is founded on title to land and strongly rooted in customary traditional history vide evidence of customary inheritance and relied on the case of Muemue v. Gaji (2001) 2 NWLR (Pt. 697) 289 at 309, and the case of Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460.
The 1st respondent disagrees and says that the appellant’s arguments and authorities are misconceived.
The first question to be determined in the resolution of this question is, whether the appellant’s claims are rooted in customary tenure. When the question arises as to whether the Court has jurisdiction to determine a matter, what the Court considers is the statement of claim because it supersedes the writ of summons. See Omnia (Nig) Ltd v. Dyktrade Ltd (2007) LPELR – 2641 (SC), Pp. 35 – 36 paras E – B. In the case of Lado & Ors v. CPC &Ors. (2011) LPELR – 8254 (SC), it was held:
“While it is settled law that it is the claim of a plaintiff as evidenced in the writ of summons and statement of claim that determines the jurisdiction of the Court, where however, from the totality of the pleadings of both parties and the evidence adduced to establish same, it becomes obvious that the Court has no jurisdiction with regards to the subject matter of dispute or that the claim, in reality, cannot come within the statutory jurisdiction of the Court, the Court will take into account the totality of the facts pleaded by the parties and evidence adduced to establish same in determining whether the Court has jurisdiction or not.”
Per ONNOGHEN, JSC (P. 35, paras. B-E)
See also – Mustapha v. Gov. of Lagos State &Ors (1987) LPELR – 1931, P. 58, paras B – C, Utih & Ors v. Onoyivwe & Ors (1991) LPELR – 3436 (SC), P. 93 paras. D – E.
The appellant’s statement of claim is on pages 5 – 7 of the record of appeal. Paragraph 5 of the statement of claim states:
“Claimant’s family is the owner and entitled to the deemed right of occupancy over the large parcel of land of about 3 acres situate at Ologbo town, near Benin, having been in possession of same by disvirgining through their patriarch late Pa. Aiyevbomwan from time immemorial. Upon the death of Aiyevbomwan, the land devolved on his children, who now hold same jointly by inheritance.”
The entirety of the statement of claim particularly paragraph 5 leaves me in no doubt that the land upon which the claims of the appellant is predicated is a land subject to customary tenure. This is common ground between the appellant and the 1st respondent, because nowhere in the 1st respondent’s brief of argument was it denied either indirectly or directly that the land is not subject to customary tenure. And even in the judgment of the trial Court, even though the issue of limitation was raised, and argued the Court’s attention was seemingly not adverted to the issue of customary tenureship of the land and the fact that being a land subject to customary tenure the statute of limitation does not apply. What the trial Court considered is Section 6(2) of the Limitation Law of Bendel State applicable to Edo State which provides:
“No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person whom he claims to that person.”
The law seems settled that statutes of limitation are inapplicable to land tenures under native law and custom. See Olujobade& Anor v. Olalusi & Ors (2021) LPELR – 8908 (CA) pp. 17 – 18 paras. E- D.
The claims in the instant appeal are similar to the claims in the case of Chief Amodu Akanbi & Ors v. Attorney General of the Federation &Ors (2017) LPELR – 43121 (CA). In that case, the appellants alleged that sometime before the action was filed, the Federal Government of Nigeria, purportedly, acquired their large expanse of land, lying and being between Kelebe area and Omu stream in Osogbo and Olorunda Local Government Area in Osun State. There was no notice of acquisition of the land in dispute served on the appellants. The land in dispute belonged to the appellants by inheritance under native law and custom and they exercised acts of possession and ownership thereon. Subsequently, the respondents let out the disputed land to private individuals for fees, who built structures, felled and destroyed economic trees on it. Sequel to that the appellants on 7th July, 2011, via a writ of summons beseeched the lower Court and sought for the nullification of the acquisition, a declaration that the occupation of the disputed land amounted to trespass, damages/mesne profits, and an order compelling the respondents, their servants, agents from further trespass on it and any other relief in the circumstance. The respondents filed a notice of preliminary objection to the suit on ground that the action was statute-barred and same be struck out. The lower Court allowed the preliminary objection and struck out the suit for being statute-barred. On appeal to this Court, it was held:
“…This averment is very crucial, itamply, demonstrates that the disputed land, a heritage of the appellants from their forebears, was/is subject of customary holding. In Odekilekun v. Hassan (1997) 54 LRCN 2819 (1997) 12 SCNJ 114 at 134-135, Iguh, JSC, speaking for the unanimous voice of the Supreme Court, held: I think it ought to be pointed out on this issue of adverse long possession that it is trite that title by prescription is completely unknown to land held under customary tenure. See Mogaji v. Cadbury(1985) 2 NWLR (Pt. 77) 383. In this connection, a distinction must be drawn between land held under customary tenure and land held under statutory law. Whereas there is nothing like prescriptive title over land held under customary tenure, that mode of title is certainly cognizable in respect of land held under statutory law…. Accordingly, it is indisputable that the provisions of the Limitation Law, Cap. 64; Laws of Western Nigeria, 1957…… which prescribe title by prescription, clearly do not affect actions in respect of title to or any interest in land held under customary tenure. They, however, govern actions in respect of title to land held under statutory law. Recently, inAyorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460 at 501, the apex Court affirmed/re-echoed that “what is at play is a claim founded on customary land tenure to which Limitation Law does not apply.” The above magisterial pronouncements, cocooned in ex cathedra authorities, with respect, neutralize/demolish as well as expose the poverty of the respondents’ scintillating argument that the appellants’ action is mired in the intractable web of limitation law. It is crystal clear, that the land in dispute, the appellants’ inheritance from their progenitors, does not, in the least, bow to the vortex of statue-bar. Put differently, the law has duly, excused the appellants’ proprietary interest in the disputed land from the yoke of limitation law. It stems from these, that the provision of Section 10 (2) of the Public Lands Acquisition Law, which the lower Court employed to terminate the appellants’ action, at its infantry stage, is totally inapplicable to the case. It follows, that the action was filed within the tenet and spirit of the law. In effect, the lower Court’s finding that the action was statute barred, with due reverence to it, flies in face of the law. Itwill amount to a judicial sacrilege to allow such a finding, which runs foul of the law, to stand.”
Per OGBUINYA, JCA (Pp. 38-40, para B).
AmoduAkanbi&Ors v. A. G. of Federation (2017) LPELR – 43121.
See also Markus Shaba & Ors v. Luka Kpotun & Ors (2021) LPELR – 54766 (CA) p. 40 paras. A – E, Effiom & Ors v. Offiong & Ors (2019) LPELR – 47975 (CA) pp. 17 – 21, paras D- A.
In addition, the case of Muemue v. Gaji (2001) 2 NWLR (Pt.697) 289 at 309 also reported in (2000) LPELR – 6776 (CA), and the case of Ayorinde v. Sogunro (2012) 11 NWLR (Pt. 1312) 460, also reported in (2012) LPELR – 7808 (SC) cited and relied on by the appellant’s counsel are also apt.
All these authorities leave me in profound certainty that the appellant’s claims which are founded in customary tenure cannot be subject of statute of limitation. The lower Court no doubt erred when it struck out the suit on the basis that it is statute barred.
This in my view settles adequately the appellant’s dissatisfaction with the striking out of his suit on the erroneous and misconceived view of the learned trial Judge that it isstatute barred. This in my view also renders academic the other grounds upon which the learned appellant’s counsel impressed upon this Court to hold that the striking out of the suit based on statute of limitation was erroneous. This is because the determination of these other grounds whether in the appellant’s favour or not will neither add nor take away shine from my view that the statute of limitation does not apply in this case because the land is a subject of customary tenure.
This is because the law is settled that a Court should not engage in academic issues/exercise. See Oyeleke v. Oyediran (2020) LPELR -52098 (CA) P. 55 paras B – D, Biyi Co. Ltd V. Chief Registrar, High Court of the FCT & Anor (2021) PP. 10 – 21, paras 10 – 11, paras B – A, Alamu & Anor v. Rijau & Ors (2021) LPELR – 55639 (CA), PP. 29 – 30 para D.
ISSUE TWO
The Court is invited to invoke her power under Section 15 of the Court of Appeal Act, to assume the powers of the trial Court, and to determine the merits of the case since all the materials for such an exercise is before the Court.
I am of the view that this Court can do so sincethe merits of the case was fought at the trial Court. The parties called witnesses and tendered relevant documents which were admitted in evidence as Exhibits. At the close of trial Court, the respective counsel filed their final written addresses, beginning as it were with the 1st defendant. The 1st defendant’s counsel’s final written address is on pages 132 – 146 of the record of appeal. The final address of counsel to the claimant is on pages 168 – 175 of the record of appeal, while the 1st defendant’s reply on points of law to the claimant’s final written address is on pages 176 – 180 of the record of appeal.
The only reason the trial Judge did not consider the merits of the case is that he held that the appellant’s Suit is statute-barred. The learned trial Judge was in clear error in declining to consider the merit of the case which was an issue before it. As a trial Court, it is obliged to consider all issues submitted to it for determination even after finding that it lacked jurisdiction to entertain the case so that the appellate Court will have the benefit of the trial Court’s reasoning in the event that it does not agree with theposition of the trial Court on the competence, locus standi, etc. See the case of MTN Communication Ltd. v. Corporate Communication Investment Ltd (2019) LPELR – 47042 (SC) PP. 17 – 18 paras D – B. See also Minister of FCT & Anor. v. Fertile Acres Ltd & Anor (2018) LPELR – 45996 (CA), P.26 paras D – E, State v. Ajie (2000) LPELR – 3211 (SC), PP. 9 – 10 paras B-C, Okonji&Ors v. Njokanma&Ors (1991) LPELR – 2476 (SC) PP. 27 – 28 paras E – A.
Having disagreed with the trial Court on Jurisdiction to the effect that the appellant’s suit is not statute-barred, this is a proper situation in which this Court must step into the shoes of the trial Court to consider the merit of the case. This is expedient to save time and costs.
This will necessarily involve the Court considering the totality of the evidence adduced during the trial and the final addresses of counsel.
For avoidance of doubt, the extant pleadings before the trial Court are:
(1) Claimant’s Statement of Claim dated 26th May, 2016.
(2) 1st defendant’s amended statement of defence dated and filed 31st March, 2017, and
(3) Amendedreply to 1st defendant’s statement of defence dated and filed 15th November, 2017.
It is pertinent to point out that since the issue of jurisdiction has been settled via my resolution to the effect that the appellant’s suit is not statute-barred, the processes will be restricted to the aspect dealing with the merit of appellant’s claims. The consideration of the final written addresses will be similarly restricted to the aspects dealing with the merit of the claims, that is whether the appellant is entitled to his claims.
At the trial Court, the 1st respondent being the defendant addressed the Court first. The merit of the claims was made the 2nd issue in the written address of the 1st defendant. For ease of reference the issue is:
“In the unlikely event that this Honourable Court holds that the action is not statute-barred, then, whether having regard to the circumstances of this case, especially Exhibit “E3” (the Oil Mining Lease 98) and Exhibit “D3″ (the enrolment of Judgment in Suit No. B/497/95 between Dora Aiyevbomwan& 2 Ors vs. Pan Ocean Oil Corp (Nig.), the claimant is entitled to any of the reliefs sought in this case.”
In his submission, counsel pointed out that the following have been settled and no longer in dispute from the oral and documentary evidence before the Court:
“(i) Exhibit “E3” – the mining lease 98 is the basis upon which the 1st defendant entered the land in dispute.
(ii) Exhibit “E3” was granted to the 1st defendant by the Federal Government of Nigeria.
(iii) The right to oil minerals comprised in all land in the Federation is vested in the Federal Government of Nigeria.
(iv) That the ownership of all lands in Edo State is vested in the Governor of the State.
(v) The 1st defendant paid the sum awarded in Exhibit “D3″, the enrolment of Judgment in Suit No. B/497/95 between Dora Aiyevbomwan& 2 Ors. v. Pan Ocean Oil Corp. (Nig.).”
Counsel then submits that in view of the foregoing the claimant is not entitled to any of the reliefs sought. Submits that from the Petroleum Act, and the 1st Schedule, the 1st defendant is vested with the legal rights and subject to liability in relation to the area to which the lease relates.
The rights, counsel submits include:
“(a) The general right to entertain andremain in the subleased land and do such things as authorized by the lease. Refers to schedule, paragraph 36.”
That the liability on the other hand, on the 1st defendant is limited to payment of fair and adequate compensation for disturbance of surface or other rights to the person who owns or is in occupation of the leased land.
It is further submitted that the claimant’s allegations that the 1st defendant forcefully acquired his land is not tenable. It is further submitted that the 1st defendant having discharged her liability under the Petroleum Tax has a statutory defence to enter and remain in the land. Further submitted that the payment of the sum awarded to the claimant by virtue of the judgment in suit no. 8497/95 satisfied the 1st defendant’s liability. That any other payment will amount to double portion. The Court was then urged to dismiss the claimant’s claims with substantial costs.
The claimant (Now appellant herein) adopted the 1st respondent’s issues for determination.
In his submission, counsel to the claimant pointed out that the 1st defendant admitted that the claimant is entitled to compensation and otherrights. Submits that the ownership of the land can be subsumed in other rights. That nowhere in the statutes states that mere payment of compensation entitles the 1st defendant to the ownership of the land. That at least it entitles 1st defendant to source for oil as a tenant to the land owners for use of their land in the absence of royalty. That they became trespassers the moment they start disputing the landlord’s ownership right and could be liable to forfeiture. Referring to Section 44(1) of the 1999 Constitution of the FRN (as amended), counsel submits that compulsory acquisition of land must attract compensation not only for improvement on the land but also for ownership of the land. And there must be compliance with the procedure for compulsory acquisition of land spelt out in Section 28 of the Land Use Act. On strict adherence to the procedure for compulsory acquisition, the Court is referred to the case of Provost, Lagos State College of Education v. Edun (2004) 1 NWLR (Pt. 870) 476 at 509 – 510, Admin/Exec. of Estate of Abacha v. Eke – Spiff (supra), cited in the case of Stodie Ventures Ltd v. Alamieyeseigha (2016) 4 NWLR (Pt. 1502) 271.
That the procedure was not followed.
Counsel proceeded to fault the 1st defendant for solely relying on the Petroleum Act without reference to the Constitution which supersedes any other law including the Petroleum Act. Submits that since the 1st defendant failed to properly acquire the land, the purported acquisition is null and void. Counsel therefore submits that the claimant proved his claims.
In the reply address, 1st defendant’s counsel submits that the acceptance of compensation amounted to acquiescence as a defence to any action challenging the 1st defendant’s activities on the land.
As to the word “other rights”, counsel submits that the rights must pertain to the land. Further submits that an action to recover any payment for such rights is equally caught up by the Limitation Law on the land. That the 1st defendant cannot be a tenant of the claimant but a tenant of the Federal Government who may revoke the Licence issued in respect of the lease.
It is upon the evidence adduced at the trial Court and the submissions of counsel as contained in their final written addresses that the appellant’s counsel has urged me to assume theposition of the learned trial Judge to determine the merit of the appellant’s claims.
The first observation I have to make is the submission of the 1st respondent’s counsel in his reply on points of law that the monetary claims of the appellant is also caught up with the limitation law. I observed that the appellant (as claimant) in his written address did not deal with that issue. And the 1st respondent (as 1st defendant) did not make that an issue in its 1st defendant’s written address. Therefore, I do not see how that issue can resonate as an issue in a reply on point of law, which in law ought to address new issues raised in the claimant’s final written address which the 1st defendant did not deal with in its final written address. A reply address cannot in law be used as a forum to raise and canvass new issues, which is what the 1st defendant sought to do in its reply on points of law. See: – Access Bank Plc v. Ugwuh (2013) LPELR – 20735 (CA), Gwede v. Delta State House of Assembly & Anor(2019) LPELR – 47441 (SC), PP. 17 paras A – B, Njoemana v. Ugboma& Anor (2014) LPELR – 22494 (CA) PP. 29 – 30 paras G – A.Therefore, the submission that the monetary claims of the appellant is caught up by the limitation law is hereby discountenanced.
In any case, that issue went with the position already taken by the Court that the appellant’s claim is founded on a land subject to customary land tenure and cannot be subject to Limitation Law. The monetary claims are inextricably tied to the claim for title (or recovery of possession), and therefore cannot be separately considered.
The stage for me is set to launch into the crux of the appeal.
Now the following facts are not in dispute from the oral and documentary evidence before the Court:
“(1) On the strength of a mining lease (Exh. “E3”) granted the 1st respondent, the latter entered the appellant’s three (3) acres farmland and in the process of prospecting for oil, caused extensive damage to the crops and other economic trees on the said land. When the disagreement over compensation could not be amicably resolved between them the 1st respondent was sued to Court in Suit No. B/497/95. Judgment was entered against the 1st respondent. The enrolled order was tendered and admitted in evidence as Exhibit “D3”. The 1strespondent on its own showing paid the Judgment sum. There is no appeal against the said Judgment.
(2) There is no evidence of a formal acquisition of the land from the appellant by the Government of Edo State in whom all lands in the State are entrusted.
(3) The Attorney General of Edo State who was sued as 2nd defendant did not file a defence to the appellant’s action, and even in this appeal did not respond to the notice of appeal filed by the 1st respondent.”
The whole gamut of the 1st respondent’s defence to this action is the Mining lease (Exhibit “E3”), which it claims entitles them to enter any land for the purpose of mining. It is also their defence that the settlement of the judgment sum in Suit No. B/497/95 absolved them from any other liability to the appellant.
I shall take on the submission of the 1st respondent’s counsel that the Petroleum Act entitles them to go into any land for the purpose of oil exploration. I have read the Petroleum Act, it cannot be disputed that paragraphs 11 and 36 of the First Schedule to the Petroleum Act allows a person to whom a mining licence is issued to go into any land covered in thelicence for the purpose of exploration and prospecting activities. It is also provided in paragraph 37 of the said First schedule:
“The holder of an oil exploration licence, oil prospecting licence as mining lease shall in addition to any liability for compensation to which he may be subject under any other provision of this Act, be liable to pay fair and adequate compensation for disturbance of surface or other rights to any person who owns or is in lawful occupation of the licensed or leased lands.”
Paragraphs 36(a) of the First schedule gives the holder of the oil prospecting Licence or oil mining lease the right to enter and remain therein to do such things as are authorized by the licence or lease. This provision necessarily means a take over of the land from the land owner or the person in occupation, so to speak.
The question that arises therefore is whether there can be such take over without due compliance with the provision of the Constitution particularly 43 of the Constitution of the Federal Republic of Nigeria 1999(as amended). The Nigeria Constitution is supreme, and therefore every Act of Parliament must be read andinterpreted subject to it. See the case of Chief Adebiyi Olafisoye v. FRN (2004) LPELR – 2553 (SC), P. 87 paras B – C, Kalu v. Odili&Ors (1992) LPELR – 1653 (SC), P. 68 paras C – D, A. G. Abia State &Ors.v. A. G. Federation (2002) LPELR – 611 (SC), PP. 195 – 196, paras F- B.
Section 44(1) of the 1999 Constitution of the Federal Republic of Nigeria, (as amended) provides:
“No moveable property or any interest in an immovable property shall be taken possession of compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of Nigeria except in the manner and for the purposes prescribed by a law that, among other things –
(a) requires the prompt payment of compensation therefor; and
(b) gives to any person claiming such compensation a right of access for the determination of his interest in the property and the amount of compensation to a Court of law or tribunal or body having jurisdiction in that part of Nigeria.”
The need for strict compliance with the above provision of the Constitution before land can be legally acquired by Government was brought to bear in the caseof Gold Mark (Nig) Ltd v. Ibafon Co. Ltd &Ors(2012) LPELR 9349 (SC) where it was held:
“One cannot but continue to emphasize that where a statute specifically provides for a particular way in which Government or any party can obtain title, the Government or the party can only acquire title by strict compliance with the statute, unless the statute or its wording is against the constitution of the Land. Another way of stating it is that there should be strict compliance with the issue of serving notice on land owners or interested persons in compulsory acquisition of land in accordance with the provisions of the law aforesaid. See Provost Lagos State College of Education &Ors. v Dr. Kolawole Edun&Ors (2004) 6 NWLR (Pt.870) 476 at 506; Okeowo v Attorney-General Ogun State (2010) 16 NWLR (Pt.1219) 327.”
Per PETER-ODILI, JSC (P. 97, paras C-F).
All that the 1st respondent could produce in Court was the Mining lease (Exhibit “E”). It is therefore evident that due procedure was not followed to make the 1st respondent’s entry into the land lawful. No wonder the Edo State Government which is the only body through whichthe 1st respondent could lawfully gain entry into the land to prospect and explore for oil based on Exhibit “E” did not bother to file a defence to the appellant’s claims. This is a clear indication that the 2nd respondent is not a party to the 1st respondent’s presence on the appellant’s land.
The 1st respondent in its defence placed so much premium on the Mining Lease (Exhibit “E”). It was tendered in evidence through one Michael Odigie who testified as DWI. He was at the time he testified the Community Relations officer of the 1st respondent. He told the Court that he was employed by the 1st defendant in 2004, and got acquainted with the facts to which he testified during the course of his duties as Community relations officer. The mining lease (Exhibit “E”) was granted to the 1st respondent on 1st December, 1975. He is therefore not in a position to know first hand the processes that were undertaken before the lease was granted. He is not a staff of department of the Federal Government that issued the lease. His evidence on this aspect of the case is documentary hearsay, and is inadmissible. See PDP & Anor v. INEC &Ors (2019) LPELR – 48101(CA), P. 34 paras D – E, Orji & Anor v. Ugochukwu &Ors (2009) LPELR – 4798 (CA), PP. 84 – 85 paras F – A, Okereke v, Umahi&Ors (2016) LPELR – 40035 (SC), P.35 paras B – C.
Therefore, it has not been established that Exhibit “E3” was granted in respect of the appellant’s three acres of land. Like earlier stated, assuming even that Exhibit “E3” was granted in respect of the appellant’s three (3) acres; it was not lawfully acquired by the respondents. The only evidence that the 1st respondent can hold on to is that they were sued in Court in respect of the land, judgment entered against them and that they paid the judgment debt. The 1st defendant was sued in Suit No. B/497/95 for compensation for economic improvement on the appellant’s 3 acres farmland which the defendant compulsorily acquired. Was the appellant’s land really compulsorily acquired? Where is the evidence of the compulsory acquisition? The failure to follow due process to acquire the appellant’s land actually led to the institution of the suit that evolved to this appeal. Paragraphs 6 and 8 of the appellant’s statement of claim are reference points. The averments in the saidparagraphs are as follows:
“6. Before 1995, claimant’s family farmed on the land until 1st Defendant encroached in the guise of oil exploration and damaged Claimant’s economic trees and crops, whereupon Claimant’s family sued 1st Defendant. At the conclusion of trial, the family was awarded compensation for damaged crops vide the family representatives named in paragraph 2 of this statement of claim. Same was paid by defendant.’
“8. when Claimants insisted on their right to the land, 1st Defendant claimed that the 2nd Defendant has compulsorily acquired the land for 1st Defendant’s oil exploration activities and that a notice to that effect may soon be given by the 2nd defendant. However, having waited for the 2nd Defendant to follow the due process under the Land Use Act to no avail, Claimant proceeded to the Federal High Court in Suit No. FHC/B/CS/250/2015 to sue for continuous loss of right to farm on their said land but 1st Defendant surprisingly claimed that they have compulsorily acquired the land. Claimant has no other option but to discontinue the suit since title to land was now put in issue by 1st Defendant.”What 1st respondent was sued for, and which judgment was entered against them was for the appellant’s economic crops which were damaged by them when they entered the land. Thereafter, the 1st respondent should have taken steps to lawfully acquire the land. The appellant waited in vain for the 1st respondent to take steps to formally acquire the land but they failed to do so even after they were served demand letters by appellant’s solicitors (that is, Exhibits “A” and “B”).
The first demand letter (Exhibit “A”) was written on 2nd June, 2014. The demands therein were not met, and this caused the appellant’s Solicitors to write the second demand letter on 12th August, 2014 (Exhibit “B”) which gave the 1st respondent 14 days to comply with their demands or face appropriate legal steps. I believe, as pleaded by the appellant, it is the refusal to meet his demands once again that caused the appellant to institute the suit that evolved in this appeal. I am of the firm view that on the expiration of 14 days ultimatum given to the 1st defendant to do the needful, the said 1st defendant became trespasser on the appellant’s land notwithstanding the mining lease(Exhibit “E”) which I hold cannot give the 1st defendant unqualified right into the appellant’s land.
On the whole, I hold that the appellant is entitled to judgment as follows:
(i) A declaration that claimant is entitled to the right of occupancy over the 3 acres of Aiyevbomwan land situate at Ologbo in Ikpoba – Okha Local Government Area of Edo state.
(ii) N2,500,000.00 (Two million, five hundred thousand naira) only for forceful acquisition and trespass and for loss of farming rights from 2011 – 2015.
(iii) N400,000.00 (Four hundred thousand Naira) only per year from the commencement of this suit in May 2016 till judgment and liquidation for continuous loss of farming rights.
(iv) A mandatory injunction against the 1st defendant (1st respondent) to remove its properties from claimant (appellant’s) land and restore the land to its original state.
(v) A perpetual injunction restraining the defendants (respondents) by themselves, servants and/or privies from further trespassing, defacing and/or constituting nuisance of any form on the claimant’s land aforesaid without following due legal process to acquire the land inaccordance with the Land Use Act.
Costs of this appeal assessed at N200,000.00 is awarded in favour of the appellant.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the draft of the lead judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA.
I adopt the reasoning and conclusion reached in allowing the appeal. I also allow this appeal and dismiss the judgment of the High Court of Edo State delivered on 13th December, 2016 by E. O. Ahamioje, J. in Suit No. B/344/2016.
ADEMOLA SAMUEL BOLA, J.C.A.: I am privilege to have read in advance the draft of the judgment read by my brother, JAMES GAMBO ABUNDAGA, JCA. I adopt his lines of reasoning and conclusion in the decision as mine.
I abide by his conclusion and the consequential orders made.
Appearances:
A. M. Ukwu For Appellant(s)
E. F. Avbenagha – for 1st respondent. For Respondent(s)
