ETEIDUNG ANIETIMFON UDOH & ORS v. AKWA IBOM STATE GOVERNMENT & ANOR (2013)

ETEIDUNG ANIETIMFON UDOH & ORS v. AKWA IBOM STATE GOVERNMENT & ANOR

(2013)LCN/6279(CA)

In The Court of Appeal of Nigeria

On Monday, the 10th day of June, 2013

CA/C/160/2010

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. ETEIDUNG ANIETIMFON UDOH

(Village Head, Efiat Uffot)

2. EYO ASIKPO OROK

(Secretary, Efiat Uffot Village)

3. EFIOK EDEM UKPONG

(Nung Ebu, family Efiat Uffot)

4. EDET EFFANGA UDOH

(Nung Etok Ikpa family, Efiat Offot)

5. ANTHONY ETIM UDOH

(Nung Etefia family, Effiat Offot)

6. MFUN JOHN ETUK

(Nung Akpa Urua family, Efiat Offot)

7. PASTOR IME UMOREN

(Nung Abia Emem family, Efiat Offot)

8. CHIEF GEORGE UDO AKPA

(Nung Ubi Inyang family, Efiat Offot)

9. OKON JIMMY ETUK

(Nung Umana Uko family, Efiat Offot)

10. ARCHIBONG JACOB

(Nung Ekwere family, Efiat Offot)

11. IMEH JACOB

(Efiat Offot Village)

12. SUNDAY WILLIE AKPAN

(Efiat Offot Village)

13. JOHN JOHNSON UDOH

(Efiat Offot Village)

14. EPHRAIM EYO EKPENYONG

(Nung Obio Ekere Efiat Offot Village)

15. ETIM EDET AKPAIMO

(Nung Udo Etok family, Efiat Offot Village)

16. PRINCE DAVID O. ETUK

(Chairman Village Council, Afaha Offot Village)

17. JOHN S. EBONG

(Secretary ? Village Council, Afaha Offot Village)

18. CHIEF OKOKON SAM

(Family Head, Nung Obong Village, Afaha Offot)

19. PRIEST MICHAEL OKOKON SAM

(Efiat Offot Village)

20. EMA UDI

(Afaha Offot Village)

21. CHIEF JAMES TOM UDEH

(For themselves and as representing the entire people of Efiat Offot and Afaha Offot Villages, Uyo Local Government Area) – Appellant(s)

AND

1. AKWA IBOM STATE GOVERNMENT

2. AKWA SAVINGS AND LOANS LTD. – Respondent(s)

RATIO

FACTOR TO DETERMINE WHETHER AN ACTION IS STATUTE-BARRED

In order to determine whether an action is statute barred, all that is required is for the court to examine the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ is beyond the period allowed by the limitation law, then the action is statute barred: See the case of Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1 at Pg. 20-21: Aremo 11 v. Adekanye (2004) ALL FWLR (PT 224) 2113 at 2132 – 2133.

The Supreme Court in Aremo 11 v. Adekanye (supra) at 2132 – 2133 said:”Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be property or validly instituted after the expiration of the prescribed period. Where on action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation law for instituting such on action has elapsed: See the cases Ebogie v. N.N.P.C. (1994) 5 N. W.L.R. (Pt.347) 649: Odubeko v. Fowler (1993) 7 N.W.L.R. (Pt.308) 637, Sanda v. Kukawe Local Government (1991) 2 N.W.L.R. (Pt. 174) 379; Ekeogu v. Aliri (1991) 3 N.W.L.R. (Pt. 179) 258. PER OTISI, J.C.A.

THE RATIONALE OR JUSTIFICATION SUPPORTING THE EXISTENCE OF STATUTES OF LIMITATION

The rationale or justification supporting the existence of statutes of limitation includes the following:-

(1) that long dorminant claims have more of cruelty than justice in them: Lloyd v. Butler (1950) 1 K.B. 76 at 81-82, (2) that a defendant might hove lost the evidence to disprove a stale claim: Jones v. Bellgrove Properties Ltd. (1949) 2 K.B 700 at 704 and (3) that persons with good causes of action should pursue them with reasonable diligence: Board of Trade v. Cayzer Irvine & Co. (1927) A.C.610 at 628. The period of limitation begins to run from the date on which the cause of action accrued. To determine whether an action is statute barred, all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period of lowed by the limitation law, then the action is statute barred: See the case of Egbe v. Adefarasin (1987) 1 N.W.L.R. (Pt.47) 1 at 20-21.”

It is therefore always necessary when dealing with a limitation of statute, to ascertain the exact date on which the cause of action arose. The period of limitation begins to run from the date on which the cause of action accrued. By virtue of Section 22(b)(i) of the Limitation Law of Akwa Ibom State , reference to “a right of action” includes reference to ‘a cause of action’. The Supreme Court per Karibi-Whyte, JSC in Bello v. Attorney General, Oyo State (1986) 5 NWLR (Pt. 45) 828 of 876 said on what constitutes a ’cause of action’ thus: “I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the Plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.” PER OTISI, J.C.A.

WHETHER OR NOT LEGAL PROCEEDINGS CAN VALIDLY AND PROPERLY BE INSTITUTED AFTER THE EFFLUXION OR OUTSIDE THE PRESCRIBED PERIOD OF TIME.

Thus, legal proceedings cannot validly and properly be instituted after the effluxion or outside the prescribed period of time. See Sanda v. Kukawa Local Government (1991) 1 NWLR (174) 379; Obiefuna v. Okoya (1961) 1 SCN LR, 144; Fadare v. Attorney-General, Oyo State (1982) 4 S.C. 1 (82) NSCC 52 at 60; Owie v. Ighiwi (2005) 1 SC (Pt. II) 16 at 31; Aremo II v. Adekanye (2004) ALL FWLR (324) 2113 at 2131.

An action filed or instituted outside the limited period of time for so doing, is said to be statute barred because it contravenes the provisions and so barred by the statute from being instituted or filed in a court of law. The underlining effect of the application of the provisions of a statute of limitation to an action is not to take away the cause of the action from a party, but to extinguish the right to enforce the right of action through the judicial processes of a court of law. Limitation law therefore prompts and aids the vigilant while it snubs and buries the right to a judicial relief of the indolent, forever. A party either approaches a court of law for a relief against another within the period of time prescribed and limited by the provisions of a limitation law or statute, or keeps his peace forever. See Ogunke v. Shelle (2004) 6 NWLR (868) 17; Osun State Govt. v. Danlami Nig. Ltd. (2007) ALL FWLR (365) 438; Egbe v. Adefarasin (1982) 1 SCNJ 1; Adimora v. Ajufo (1986) 6 SCNJ, 18, (88) 1 NSCC, 1005 at 1006. PER OTISI, J.C.A.

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Akwa Ibom State High Court sitting of Uyo, Akwa Ibom State, delivered on 2nd July, 2010 in Suit No. HJ/117/2009.

The Appellants who were the original owners, communally and individually, of a large expanse of land situate in Effiat Offot and Afaha Offot Villages in Uyo Local Government Area of Akwa Ibom State, measuring over 7 hectares, had as plaintiffs instituted Suit No. HU/117/2009, against the Respondents, as Defendants. The said land was compulsorily acquired by the 1st Respondent. The said acquisition and revocation of Right of Occupancy were published in the Pioneer Newspaper editions of Monday, 25th December, 1995 and Monday, 6th May, 1996 respectively. In their Amended Statement of Claim, the Appellants claimed against the defendants, jointly and severally, as follows:

1. A Declaration that where the land of the Plaintiffs was compulsorily acquired by the Government for a particular purpose and where Government failed to utilize the said land for the said original purpose, as gazetted, then the said land should have reverted back to the original owners and/or their descendants.

2. A Declaration that where Government compulsorily acquired the plaintiffs’ land for a specified purpose, as gazetted, but failed to use the said land for the said original purpose and rather retained the said land and used same for an entirely different purpose then gazetted, without handing over the said land to the owners and/or their descendants, then the said owners and/or their descendants are entitled to compensation for the compulsory acquisition and use of their land by government.

3. An Order for the Defendants, jointly and/or severally, to pay compensation amounting to N5,000,000,000.00 (Five Billion Naira) to the plaintiffs for the compulsory acquisition of the plaintiffs large parcel of land measuring approximately 7 hectares since 1989 and thereby subjecting the plaintiffs to huge financial/economic loss as well as mental, social, psychological and physical pains/agonies on losing their highly valued land that once hostel their economic trees, temporary structures, buried loved ones, tombstones, shrines, sacred places etc. the said land and the structures therein having been duly valued and appropriate demand notices for compensation having been sent to the Defendants in 1995, 1997, 1999, 2000, 2005 and 2009 but without receiving any reply from the Defendants.

The 1st and 2nd Respondents filed their respective Statements of Defence on 2nd October, 2009 and 5th November, 2009. The 1st Respondent in their Statement of Defence pleaded the payment of compensation to the Appellants and the defence of Limitation. The 1st Respondent also filed a Notice of Preliminary Objection as follows:

TAKE NOTICE that the 1st Defendant in this Suit shall raise a preliminary objection to the competence of this Suit on ground that the Court has no Jurisdiction to entertain the Suit. The suit offends Section 1 and 16 of Limitation Law Cap. 78 Vol.4 of Akwa Ibom State.

Again, it violates Section 1(1) of Public Officers Protection Law of Cap Vol. 4 Laws of Akwa Ibom State. The 1st Defendant being juristic person is a Public Officer and deemed as a Public officer.

The trial court heard the Preliminary Objection and ruled that the action was statute barred and in consequence it had no jurisdiction to hear it. The action was dismissed.

The Appellants filed on Amended Notice of Appeal on 4/4/2012 in which they raised nine Grounds of Appeal, and, sought these Orders:

(a) That the judgment of the lower Court dated 02/07/10 be set aside and a confirmation made by the Court of Appeal that the said plaintiffs suit is neither statute barred by virtue of any limitation law nor offends the Public Officers Protection Act and that the Court has jurisdiction to entertain the said suit.

(b) That the said case be sent back to another court for continuation of trial to conclusion.

From the nine Grounds of Appeal, the Appellants in the Appellants’ Brief, dated 13/10/2010, distilled the following Issues for determination:

1. Whether the whole judgment as delivered by Hon. Justice Edet Ukana on 02/07/2010 was not a miscarriage of justice.

2. Whether the learned trial Judge did not err in law and/or misrepresented the law when he upheld the preliminary objection of the 1st Defendant and held that the Plaintiffs claims as per Reliefs Nos. 2 and 3 for payment of compensation for the compulsory acquisition of land is statute barred by virtue of sections 1 and 16 of Limitation Law, Cap 78, Vol. 4 Laws of Akwa Ibom State.

3. Whether the learned trial Judge did not err in law when he relied in support of the Preliminary Objection that the Plaintiffs action violates Section 1(1) of the Public Officers Protection Law, Cap 104 Vol.5, Laws of Akwa Ibom State.

4. Whether the learned trial Judge did not err in law when he failed to take into consideration the provisions of Section 31(1), (2) and (3) of the said Limitation laws of Akwa Ibom State Cap. 78 Vol. 4 and rule that the Defendants had committed a fraud on the Plaintiffs and so the said period of Limitation did not apply.

5. Whether the learned trial Judge did not err in law when he upheld the Preliminary Objection and ruled that he had no jurisdiction to entertain the case.

6. Whether the judgment as delivered by the learned trial Judge was not against the weight of Evidence.

7. Whether the learned trial Judge did not err in law when he failed to note and rule that the said Limitation Law, Cap.78. Vol.4, Laws of Akwa Ibom State is an invalid and incompetent law since a State Legislature does not have power to make any other law concerning any other matter, touching on Exclusive list meant for Federal Legislature only, and touching on procedure and/or Jurisdiction of Courts.

8. Whether the learned trial Judge did not err in law when he failed to note and rule that by virtue of Section 40(1) (f) of the said Limitation Law of Akwa Ibom State Cap. 78, Vol.4, the plaintiffs action was not affected by any period of Limitation.

9. Whether the learned trial Judge did not deny the Plaintiffs fair hearing when he ruled that he had no jurisdiction to entertain the case and thereby denied the plaintiffs the opportunity to be heard.

The 1st Respondent’s brief was filed on 15/3/2011, and deemed on 17/5/2012. The Appellants filed a Reply Brief to the 1st Respondent’s Brief on 1/4/2011. The 2nd Respondent’s brief was filed on 17/5/2012, and deemed on 16/1/2013. The Appellants filed a Reply Brief to the 2nd Respondent’s Brief on 30/7/2012. The Appellants also filed a Notice of Additional Authority on 10/10/12. These Briefs were all respectively adopted on 17/4/2013.

The 1st Respondent adopted the Issues raised by the Appellants for determination. The 2nd Respondent, from the nine Grounds of Appeal filed by the Appellants, distilled the following five Issues for determination:

1. Whether or not the learned trial Judge was right in law in upholding the preliminary objection and holding that the Plaintiffs’ action was statute barred thus robbing the lower Court of jurisdiction to entertain it (Grounds 1, 2, 4, 5 and 8).

2. Whether or not the ruling of the learned trial Judge was against the weight of evidence (Ground 6).

3. Whether or not the Limitation Law of Akwa Ibom State Cap. 78 is Ultra vires the powers of the Akwa Ibom State legislature (Ground 7).

4. Whether or not the Appellants were denied fair hearing in the lower Court (Ground 9).

5. Whether the learned trial Judge relied on the provisions of the Public Officers Protection Law Cap.104 Law of Akwa Ibom State in dismissing the Appellants Claim for being statute barred.

The Appellants were very prolix in their Grounds of Appeal as well as in the Issues raised for determination; and, some of these are repetitive. Akaahs J.C.A. (as he then was) in Udo v. Registered Trustees B.C. & Star (2011) 17 NWLR (PT 1276) 223 had said:

“Issues for determination may be those framed by either one or both of the parties. They may also comprise issues reframed by the court after consideration of those set out by the parties.”

Issues that arise for determination are intended to narrow the issues in controversy between the parties for clarity, accuracy and brevity. In this appeal, the Issues distilled by the 2nd Respondent from the nine Grounds of Appeal are concise and comprehensive. I shall therefore adopt the issues as articulated by the 2nd Respondent.

Issue Nos 1, 2, 4, 5 and 8.

The Appellants submitted that there had been a miscarriage of justice. The Appellants contend that they had sought, in the main, compensation for the compulsory acquisition of their land highlighted in their Reliefs 2 and 3, but that the trial court had relied on Relief No.1 to deny their claim for compensation. That the failure of the lower court to hold that the Appellants’ claims were not statute barred or frustrated by the Public Officers Protection Act, amounted to a serious error of judgment, occasioning a miscarriage of justice. It is submitted that the Appellants sought compensation for compulsory acquisition of land and not recovery of the land, as provided in Section 1 of the Limitation Law, Cap 78 Vol. 4 Laws of Akwa Ibom State. It is submitted that there are exceptions to the Limitation Law, such as where there has been continuance of damage, giving rise to a fresh cause of action. The case of Aremo v. Adekanya (2004) 121 LRCN 4853 at 4873 is relied upon. It is submitted that the Appellants had made repeated demands for payment of compensation to them, which had been refused. That there was in the circumstance, a continuation of damage, and giving rise to a fresh cause of action upon each refusal to pay. It is submitted that when the Limitation Law is applicable to cases related to tort and contract, there is an exception, relying on Araka v. Egeawagwu (2000) 82 LRCN 3406 of 3434, where the Supreme Court said:

“the Statute of Limitation is a defence that can be waived. To that extent, it cannot strictly be said that an action brought outside the Limitation period is incompetent for lack of jurisdiction of the court”

The provisions of Section 16 of the Limitation Law have also been relied upon. It is submitted that the Respondents were under a contractual obligation to pay compensation to the Appellants after the compulsory acquisition of their land, hence the defence of limitation of action had to be waived.

It is further submitted that by refusing to pay compensation to the Appellants as required by law, and by concealing the information from the Appellants, the Respondents committed a fraud which rendered the Limitation Law inoperative until the Appellants discovered the fraud and filed this action. The provisions of Section 31 of the Limitation Law are relied upon. It is also submitted that by virtue of the provisions of Section 40(1)(f) of the Limitation Law making the law inapplicable in proceedings in respect of easements and profit a prendre, the Appellants’ action was not affected by any period of limitation. It is submitted that the Limitation Law is inapplicable in this case.

In their Brief, the 1st Respondent submitted that the trial court had relied on the dates on which the land was acquired and the date on which the Writ of Summons was filed in arriving of its decision. The cases of Williams v. Williams (2008) 34.2 NSCQR 869 at 869; Adekoya v. Federal Housing Authority (2008) 34.2. NSCQR 869 at 869 were replied upon to submit that there been no miscarriage of justice as the facts and the reliefs sought by the Appellants were caught up by the provisions of Sections 1 and 16 of the Limitation Law, Akwa Ibom State.

It is further submitted that there was no continuation of damage as the land was acquired and effective possession taken. Compensation was also paid. That the Appellants failed to take court action within the period allowed by law despite being aware of the acquisition; and that non-payment of compensation or writing of reminders for payment of compensation does not shift the accrual date. It is also submitted that there was no acknowledgement of debt and that neither the issue of continuance of damage nor the issue of fraud was pleaded of the lower court. That the land acquisition and revocation of Right of Occupancy were made public; and, that the Appellants did not state the particulars of fraud allegedly committed by the Respondents. It is submitted that the trial Judge rightly ruled that he had no jurisdiction to entertain the case, since it was statute barred.

It is further submitted that the Appellants did not plead facts relating to easements and profit a prendre, and as such, Section 40(1)(f) of the Limitation Law was inapplicable.

For the 2nd Respondent, it is submitted that based on the pleadings of the Appellants, the 1st Respondent compulsorily acquired the land sometime in 1989. The use of the acquired land was changed in 1995 and notice of the change published in the Pioneer Newspapers in 1996. The Appellants through their solicitor wrote for the first time to demand for compensation on 17th May, 1999, and thereafter wrote other letters, to which the 1st Respondent never responded. It is submitted that from 1989 to 2009 when the Appellants’ filed action is a period of 20 years, while from 1995/96 when the changed use was publicized was 14 years. That these periods are in excess of 10 years, if recovery of fond is sought; or 5 years, if compensation is sought; relying on Sections 78 and 16 of the Limitation Law; and the case of Military Administration of Ekiti State v. Aladeyelu (2007) Vol. 40 WRN 159 at 183. It is submitted that the Appellants slept on their right to enforce the cause of action either for recovery of and, or for payment of compensation, from 1989: or 1995/96, to 2009: relying on Faroly Establishment v. NNPC (2011) 2 WRN 160.

It is also submitted that the issue of continuance of injury or damage is inapplicable, the Appellants’ action being based on declaration of right to repossess the land and claim made for injury or damages. It is also submitted that the issue of fraud was not pleaded and no particulars of fraud were given as required by order 15 Rule 3(1) of the Akwa Ibom State (High Court (Civil Procedure) Rules 2009. Having failed to plead fraud, the lower court could not have considered it. That the Appellants, who had admitted in their pleadings that the 1st Respondent acquired the fond in 1989 and had issued a Notice of Acquisition in 1995/96 had knowledge of the fact. There had been no concealment, and the provisions of Section 31 of the Limitation Low did not avail the Appellants.

On the issue of waiver of the Limitation law, it is submitted the Limitation Law does not extinguish the Appellants’ rights to his claims but bars the right to recover it through judicial process after lapse of the prescribed time, relying on NSITFMB v. Kilfco (Nig) Ltd. (2010) 42 WRN 17. That it is a defendant who acknowledges a debt or liability which is statute barred but revives the right of action that can be said to have waived the right; and a court to unilaterally waive the right.

It is submitted that Section 40(1)(f) of the Akwa Ibom Limitation Law is inapplicable because the claims of the Appellants before the lower court has no bearing to easements or profit a prendre. The Court is urged to resolve Issue Nos 1, 2, 4, 5 and 8 as condensed against the Appellants.

The Appellants had filed Reply Briefs in response to the 1st and 2nd Respondents’ respective Briefs. The Appellants submitted that the Respondents had acted maliciously by refusing to pay compensation to the Appellants despite repeated demands. That once malice is established on the part of the Respondents, the Appellants cannot be caught up by the limitation law, relying on Unilorin v. Adeniran (2007) 6 NWLR (PT 1031) 498 at 535-536. It is submitted that there was continuous damage giving rise to fresh cause of action by the failure to pay compensation in spite of repeated demands. Learned counsel for the Appellants submitted that the Appellants had asked for payment of compensation and not for recovery of land. It is submitted that the Respondents were under a contractual duty to pay compensation after the compulsory acquisition of their land by virtue of the Land Use Act and the Nigerian Constitution; and as such, the limitation had to be waived. The case of CBN v. Ambo (2011) ALL FWLR (PT 558) 806 at 827 is relied upon to submit that indebtedness is not affected by the Statute of Limitation because the cause of action arises every day the debt is unpaid.

On the issue of fraud which was not pleaded, it is submitted that the Appellants had been granted leave of court to file additional Grounds and raise new issues on appeal.

The Supreme Court in Aremo 11 v. Adekanye (supra) at 2132 – 2133 said:

“Sometimes, the legislature prescribes certain periods of limitation for instituting certain actions. The statutes that prescribe such periods and regulate the subsistence of causes of action are known as statutes of limitation. Where a statute of limitation prescribes period within which an action must be commenced, legal proceedings cannot be property or validly instituted after the expiration of the prescribed period. Where on action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation law for instituting such on action has elapsed: See the cases Ebogie v. N.N.P.C. (1994) 5 N. W.L.R. (Pt.347) 649: Odubeko v. Fowler (1993) 7 N.W.L.R. (Pt.308) 637, Sanda v. Kukawe Local Government (1991) 2 N.W.L.R. (Pt. 174) 379; Ekeogu v. Aliri (1991) 3 N.W.L.R. (Pt. 179) 258.

The rationale or justification supporting the existence of statutes of limitation includes the following:-

It is therefore always necessary when dealing with a limitation of statute, to ascertain the exact date on which the cause of action arose.

The period of limitation begins to run from the date on which the cause of action accrued. By virtue of Section 22(b)(i) of the Limitation Law of Akwa Ibom State , reference to “a right of action” includes reference to ‘a cause of action’. The Supreme Court per Karibi-Whyte, JSC in Bello v. Attorney General, Oyo State (1986) 5 NWLR (Pt. 45) 828 of 876 said on what constitutes a ’cause of action’ thus:

“I think a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving the Plaintiff a substantive right to make the claim against the relief or remedy being sought. Thus the factual situation on which the Plaintiff relies to support his claim must be recognized by the law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. In other words the factual situation relied upon must constitute the essential ingredients of an enforceable right or claim.”

In Egbe v. Adefarasin (supra), Oputa, JSC, explained “cause of action” as follows:

“Now let us look of the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the 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 judicial relief.

A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In order words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right.”

The statute of limitation does not take away the cause of action but it removes the right of action, the right of enforcement, the right to judicial relief and leaves the claimant with a bare and empty cause of action which he cannot enforce. See: Egbe v. Adefarasin (supra); Araka v. Ejeagwu (2000) 12 SC (Part 1) 99.

An action commenced after expiration of the period, within which an action must be brought, as stipulated in a statute of limitation, is not maintainable. The court would have no jurisdiction to entertain a statute barred claim. Therefore legal proceedings cannot be properly or validly instituted after the expiration of the prescribed limitation period. See: Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258.

It has been contended for the Appellants that the trial court had relied on their Relief No. 1 to deny their claim for compensation, while their main claims were Reliefs 2 and 3, hinging on compensation were not considered. It is pertinent to note, as indeed pointed out by the 1st and 2nd Respondents, that the Appellants did not withdraw any of their claims before the lower court.

The Appellants had pleaded that their land was originally compulsorily acquired by Government and their Right of Occupancy revoked. Notice was published in the Pioneer Newspaper edition of Monday, 23rd January, 1989. The original purpose of the acquisition was for the erection of a general post office. This purpose was changed and in the publications in the Pioneer Newspaper editions of Monday, December 25, 1995: and, Monday, May 6, 1996, the 2nd Respondent was named as the new user for the purpose of a residential estate. This purpose however changed again and the land was demarcated into plots and sold to top Government officials. See paragraphs 5, 5a, 6 and 7 of the Amended Statement of Claim. In other words, the Appellants became aware of the initial acquisition in January, 1989. They also became aware of a change of the original purpose of acquisition in December, 1995; reinforced in May, 1996. The Writ of Summons was filed on March 25, 2009.

Relief No. 1 sought by the Appellants is again reproduced below:

One principle guiding the grant of a declaratory relief is that the claim to which the declaratory relief relates must be substantial; the plaintiff must be entitled to the relief in the fullest meaning of the word. The relief claimed must not be something unlawful, unconstitutional or inequitable for the court to grant. See: Chukwumah v. Shell Petroleum Development Co. Nig. Ltd. (1993) 4 NWLR (PT 289) 512 at 553; CBN v. Amao (2011) ALL FWLR (PT 558) 806 at 830-831. The implication of this Relief is that if the declaration sought is made, the Appellants shall be entitled to have land in issue revert back to them, which in effect amounts to a recovery of the land. This relief cannot be considered without taking into account the competence of the claim.

Section 1 of the Limitation Law Cap 78 Laws of Akwa Ibom State Vol. 4 provides as follows:

“No action shall be brought by any Person to recover any land after the expiration of ten years from the date of which the right of action accrued to him of, if it first accrued to some person through whom he claims, to that person.”

By virtue of these unequivocal provisions, an action which culminates in recovery of land by any guise is not maintainable.

The pleadings of the Appellants clearly show that by 1995 when the original purpose of acquisition changed, the Appellants had a cause of action, which they failed to enforce. I therefore agree with the learned trial Judge that this claim is not maintainable at this stage.

It is contended for the Appellants that the alleged unpaid compensation amounts to a continuing injury for which cause of action arises daily until the compensation is paid. Learned Counsel relied on CBN v. Amao (2011) ALL FWLR (PT 558) 806. In that case, the Supreme Court per Onnoghen, JSC said of Page 827 as follows:

“Both parties have not disputed the fact that the issue concerns the monthly payment due to the respondents.

The appellant pays monthly pensions to the respondents less than what is provided in the whitepaper and the two circulars every month thereby leaving port of their entitled monthly pension unpaid. This clearly demonstrates the fact that the cause of action in the circumstance arises every month when the appellant pays less pension to the respondents than their full harmonized pensions, which appellant had agreed to pay. It is therefore clear that there is continuance of injury, cessation of which cannot be determined as long as the respondents live and are paid their monthly pensions other than as hormonized. There is therefore no way by which one can calculate the “three months next after the ceasing thereof …” It follows therefore that each month that the respondents are paid pensions less thon the hormonized pensions, a cause of action arises in respect of the balance or sum outstanding.”

This authority is clearly inapplicable in this appeal. A continuing damage or injury is not merely continuance of the injurious effects of a legal injury but the continuance of the legal injury itself. It is the continuance of the act which caused the damage. See: Olaosebikan v. Williams (1996) 5 N.W.L.R. (Pt. 449) 437 of 456: Gulf Oil Co. Ltd. v. Oluba (2002) 12 NWLR (PT 780) 92 at 112; Amachree v. Shell Petroleum Development C. Nig. Ltd (2011) LPELR-4474(CA).

In the instant case, the Appellants’ land was compulsorily acquired on a certain date. By virtue of Section 29 of the Land Use Act, the Appellants were entitled to compensation. The Appellants allege they have not been paid any compensation in spite of repeated demands for compensation. The land was initially acquired in 1989. They have pleaded that their initial letter demanding for compensation was written on February 18, 1992. See paragraph 8 of the Amended Statement of Claim.

These facts indicate clearly that there is no continuing damage or injury. Rather, there is the continued non-payment of compensation, arising from 1989 when the land was initially compulsorily acquired. That was when the cause of action arose.

Section 16 of the Limitation Law, Akwa Ibom State provides that:

16. No action founded on contract, tort or any other action not specifically provided for in Part I and II of this Law shall be brought after the expiration of five years from the date on which the cause of action accrued.

The cause of action here is not founded on contract; there is no contractual relationship between the parties. It is also not founded on tort. For purposes of these provisions, it falls under ‘any other action”. That is to say, the cause of action cannot be enforced after five years.

In Fadare and Ors v. Attorney General of Oyo State (1982) 4 S.C. (Reprint) 1, the Supreme Court per Nnamani, JSC (of blessed memory) said:

“As regards the claim for compensation by the appellants, there can be no argument that it was statute-barred. The appellants clearly slept on their rights, if any. It is conceded by the appellants that the lands in issue were included in Acquisition “F” vide Government Notice of 8th August, 1931 published in the Nigeria Gazette No. 60 of 5th November, 1931. Pursuant to the Acquisition Notice, a certificate of title was issued on the 28th June, 1937, in favour of the Government of Nigeria and in respect of the some pieces of land. Mr. Fasusi in the course of argument in this court conceded that the cause of action arose when the appellants knew of the acquisition of the lands in issue and this he said was in 1940. Time begins to run when the cause of action arises (see T. J. Solomon v. African Steamship Company Ltd. 9 NLR 99. Also Board of Trade v. Cayner, Irvine & Co. Ltd. (1927) AC 610. Time, therefore, begins to run when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. Cooke v. Gill (1873) LR 8 CP 107, 110. (See Letang v. Cooper (1965) 1 QB 222, 242. If one wished to be charitable, one could say that the cause of action in this suit arose in 1945 and time began to run then. The appellants could have had no doubts then about the acquisition of the lands they claim as theirs after the soldiers engaged in the Hitleric war and who were allegedly settled on the lands were removed. The lands were neither returned nor was compensation paid to them. In fact, in their claim they had stated that “Government offices in Ibadan are replete with both several and joint petitions from the claimants from the early 1930s calling for payment of compensation without success” (see Are v. Attorney General of Western Nigeria (1958) WRNLR 126). Yet this action was not filed until 1974. At the time of the acquisition of the lands in issue in 1931 the limitation law applicable in the old Western Region was the Statute of Limitations, 1623, a statute of general application in force in England on 1st January 1900. Under that statute, when the Crown takes land compulsorily without paying compensation for it, the period of limitation for a claim based on the taking being a land claim is twenty years (see Complete Statutes of England Vol. 10 at pp. 429 – 432). The claim is therefore clearly statute-barred. The appellants did not within time comply with Section 10 of the Public Lands Acquisition Ordinance Cop.88, Laws of Nigeria, Vol. 1 1923 (re-enacted by all subsequent public acquisition laws – See Section 10 of the Public Lands Acquisition Law Cap. 167, Laws of the Federation of Nigeria, 1958). This provides for issues to be settled by the High Court having jurisdiction in the area where the land acquired is situate if within 6 weeks after a notice of acquisition, no claim for compensation have been made by owners or alleged owners of the lands acquired, or where claims have been made, no agreement has been reached between such owners of the lands and the Government. But Mr. Fasusi in his argument before this court submitted that the limitation law applicable to the acquisition of the lands in issue was the Limitation Law, Cap. 64 Laws of Western Region of Nigeria, 1959. Even if this was conceded, it will not assist the appellants. Section 6 (2) of the Limitation Law, 1964, provides for a limitation period of 12 years from the time that the cause of action arose. Whether the cause of action arose in 1940 or 1945 the appellants were totally out since they filed their action in 1974.”

As in the case of this appeal, having regard to the provisions of section 16 of the Limitation Law cited above, the Appellants clearly slept on their rights. They had a cause of action, if compensation was not paid. But, at this stage, that cause of action is no longer enforceable by judicial process.

It is contended by the Appellants that the lower court ought to have waived the application of the Limitation Law, relying on Sections 31 and 40(1)(f) of the Limitation Law. I will start with Section 40(1)(f).

Section 40(1)(f) provides as follows:

40(1) This Law shall not apply to:

(f) any proceedings in respect of easements and profits a prendre.

The Land Use Act defines an ‘easement’ thus:

“easement” means a right annexed to land to utilize other land in different holding in a particular manner (not involving the taking of any part of the natural produce of that land or of any part of ifs soil) or to prevent the holder of the other land from utilizing his land in a particular manner.

In De Facto Bakeries & Catering Ltd v. Ajilore & Anor. (1974) 11 S.C. (Reprint) 120, the Supreme Court per Coker, JSC defined ‘easements’ thus:

“Easement is a jus in re aliena, i.e. a right enjoyed over the property of another person and must be created by a grant (express, implied or presumed) or by statute. It is not by itself on incorporeal hereditament in the sense that it is capable like other forms of personal property of being purchased or sold by anybody: it is rather a right appurtenant to a corporeal hereditament, a right which is enjoyed as part of a real property.”

In An Almanac of Contemporary Judicial Restatements by ‘lai Oshitokunbo Oshisanya at paragraph 1737 page 625, easement in land law is defined as:

“a right annexed to land (dominant tenement) to utilize other land (servient tenement) of different ownership in a particular manner (not involving the taking of any part of the natural produce of the land or any part of its soil) or to prevent the owner of the other land from utilizing his land in a particular

manner” (emphasis added): Halsbury’s Laws of England 4th ed. Vol. 14 paras. 1, 2, 4, 5, & 6 @ pp.4 & 5.”

The right of “profit a prendre” is defined as:

“a right to make some use of the soil of another, such as a right to mine metals, and if carries with it the right of entry and the right to remove and take from the land the designated products or profit and also includes right to use such of the surface as is necessary and convenient for exercise of the profit” See Black’s Law Dictionary 6th edition pg. 1211.

All through the gamut of the Amended Statement of Claim, no pleading that suggests the existence of an easement or profit a prendre can be discerned. The Respondents have therefore rightly submitted that the exception to the limitation law contained in Section 40(1)(f) does not avail the Appellants.

It has been contended for the Appellants that there was fraud, seeking to bring the matter under the provisions of Section 31(1) of the Law. In their Reply Brief, malice on the part of the 1st Respondent has also been alluded to.

Section 31(1) provides thus:

31(1) Subject to sub-section (4), where in the case of any action for which a period of limitation is prescribed by this Law, either –

(a) the action is based upon the fraud of the defendant: or

(b) any fact relevant to the plaintiff s right of action has been deliberately concealed from him by the defendant; or

the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.

The 1st and 2nd Respondents rightly submitted that there was no pleading as to fraud. No particulars of fraud were pleaded. Malice is also not pleaded. These are issues that must be pleaded and canvassed to enable response from the Respondents. In Highgrade Maritime Services Ltd. v. First Bank of Nigeria Ltd. (1991) 2 SCNJ 110, (1991) 1 S.C. (Pt. 11) 26, the Supreme Court per Wali, JSC said:

“It is trite law that where fraud is alleged, it must be specifically pleaded and particulars of the fraud given to enable the party defending the allegation understand the case he is facing and prepare his defence.”

Again, in Ojibah v. Ojibah (1991) 6 S.C. 182, (1991) 6 SCNJ 156, the Supreme Court per Nnaemeka Agu, JSC. (of blessed memory) said:

“The law requires that fraud must be distinctly alleged, with all necessary particulars, and distinctly proved.”

Learned Counsel for the Appellants submitted that this Court granted the Appellants leave to raise new issues. That may well be the case. But, a party cannot maintain on appeal a case diametrically different from one maintained at the trial. An appeal is normally a continuation of the trial. In the case of Management Enterprises Ltd. & Anor. v. Otusanya (1987) 2 NWLR (PT 55) 179, (1987) 4 S.C. 368, the Supreme Court per Oputa, JSC said:

“The normal rule is that a point presented for the first time in a Court of Appeal ought to be most jealously scrutinized. A Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time if it is satisfied that it has before it all the facts bearing on the contention as completely as would have been the case if, the controversy had arisen at the trial and next that no satisfactory explanation could have been offered by those whose conduct is impugned if any opportunity for explanation had been offered them.”

Also in Adeosun v. Governor of Ekiti State (2012) LPELR-7843(SC), the Supreme Court per Onnoghen, JSC said:

“A leave to raise fresh issue limits the issue to be raised to the case of the parties as pleaded, the evidence on record in support of their contending positions and the judgment of the Court thereon. The issue cannot be of large otherwise it will constitute on instrument of ambush against the opponent.”

See also: Onyemaizu v. Ojiako (2010) 4 NWLR (PT 1185) 504.

The Appellants did not plead either fraud or malice, which is now raised in the Reply Briefs. The pleadings rather show that the Appellants were properly and publicity notified of the acquisition of the parcel of land in issue. No allegation of fraud or malice was made. These are not issues that can be raised on appeal without the pleadings and evidence to ground the issue.

On the whole, I hold there has been no miscarriage of justice shown. I therefore resolve Issues 1, 2, 4, 5 and 8 against the Appellants.

Issue 6

The Appellants contend that the judgment of the lower court is against the weight of evidence. The 1st and 2nd Respondents in reply have correctly submitted that this issue does not arise. The matter did not proceed to hearing of evidence on oath, by examination in chief and cross examination: hence there was no evaluation of evidence. The matter was determined upon a Preliminary Objection on the competence of the claim, which was upheld. This issue does not follow from the Judgment appealed against. I therefore resolve Issue 6 against the Appellants.

Issue 7

On Issue 7, the Appellants contend that the learned trial Judge erred in law when he failed to note and rule that the Limitation Law of Akwa Ibom State is incompetent and invalid. It is submitted that the Akwa Ibom Legislature legislated on a matter on the Exclusive List, meant for Federal Legislature only, touching on procedure and jurisdiction, and to that extent, the said Limitation Law is null and void. Learned Counsel relied on Item 68 of the Exclusive Legislative List, and, Section 2 of Port 111 of the second Schedule of the 1999 Constitution. He also relied on Osadebe v. A.G. Bendel State (1991) 1 NWLR (PT 169) 525.

The 1st Respondent and the 2nd Respondent respectively submitted that the said Limitation Law is valid and competent. That it does not conflict with the Constitution in any way; and, that its promulgation by the Akwa Ibom Legislature does not conflict with the Exclusive List.

The Exclusive Legislative list is set out in the Second Schedule Part 1 of the 1999 Constitution. Item 1 – 68 provides items of the Exclusive list. Item 68 specifically:

Any matter incidental or supplementary to any matter mentioned elsewhere in this list

Part III of the Second Schedule states it is “SUPPLEMENTAL

AND INTERPRETATION” Item 2 thereof provides:

2 In this Schedule, references to incidental and supplementary matters – include, without prejudice to their generality, references to –

(a) offences:

(b) the jurisdiction, powers, practice and procedure of courts of law; and

The position of the courts has always been that in the construction or interpretation of the constitution or a statute, where the words are plain, clear and unambiguous, effect would be given to them in their ordinary and natural meaning, except where to do so, will result in absurdity. See: Lawal v. G. B. Ollivant (1972) 3 S.C. 124 at 137; Toriola v. Williams (1982) 7 S.C. 27 at 46; Sunmonu v. Oladokun (1996) 8 NWLR (Pt. 467) 387 at 419, 422; Chief Nnonye v. Anvichie (2005) 1 SCNJ 306 at 316; Associated Discount House Limited v. Amalgamated Trustees Limited (2007) S.C. 168.

In the case of The Estate of Soule (Deceased) v. Oluseye Johnson & Co. (1974) LPELR-3169(SC), (1974) 11 SC (Reprint) 188, the Supreme Court Per Fatayi-Williams, JSC (as he then was) said:

“The cardinal rule for the construction of legislative language is that the words used in a statute which are not applied to any particular science or art are to be construed as they are understood in common language.”

In the case of Awolowo v. Shehu Shagari (1979) ALL NLR 120, (1979) 6-9 SC 37, the Supreme Court per Fatayi-Williams CJN said:

“It is also relevant, we think, to point out that anybody called upon to interpret any kind of statute should not, for any reason, attach to its statutory provisions, a meaning which the words of the statute cannot reasonably bear. If the words used are capable of more thon one meaning, then the person interpreting the, statute can choose between these meanings, but beyond that he must not go. (See Jones v. Director of Public Prosecutions (1962) AC 635 of p.6 62.)”

See also Cotecna International Ltd. v. Ivory Merchant Bank Limited (2006) 4 S.C. (PT. 1) 1.

The important words in Item 68 are highlighted hereunder:

Any matter incidental or supplementary to any matter mentioned elsewhere in this list ‘in this list’ meaning within the Exclusive Legislative List. No other interpretation can be given to these plain words placed at the end of the Exclusive Legislative list. See also section 4(2) of the 1999 Constitution.

As rightly submitted by the Respondents, there is nothing in Items 1 – 67 that bring legislating on limitation of actions within the exclusive preserve of the National Assembly. As has been submitted for the 2nd Respondent, the powers of the State legislature to make laws for the peace, order and good government of the State as provided for in Section 4(7) of the Constitution has not been taken away.

An interpretation that is beyond the clear intendment of item 68 and Clause 2 of Part III cannot be ascribed to these provisions. I therefore hold that the Limitation Law of Akwa Ibom State is not invalid, null or void. Issue No 7 is resolved against the Appellants.

Issue 9

The Appellants contend they were not given fair hearing in that the trial court declined jurisdiction upon upholding the Preliminary Objection before hearing their case. In reply, the 1st Respondent submits the issue is misconceived; that the Appellants were given fair hearing on the Preliminary Objection, which determined the matter. The 2nd Respondent relied on Order 22 of the High Court (Civil Procedure) Rules of Akwo Ibom State 2009, which provides as follows:

ORDER 22 – PROCEEDING IN LIEU OF DEMURRER

1. No demurrer shall be allowed.

2. -(1) Any party may by his pleading raise any point of law and the Judge may dispose of the point so raised before or at the trial.

(2) If in the opinion of the Judge, the decision on such point of law substantially disposes of the whole proceedings or of any distinct part thereof, the Judge may make such decision as may be just.

The trial court was by these provisions empowered to first hear and determine the Preliminary Objection raised by the Respondents. The Appellants were heard in response to the Preliminary Objection. It was of that stage that the proceedings were, rightly, terminated. This being because the lower court had found it had no jurisdiction to entertain the matter. The proper course of action to take in that circumstance was to terminate the proceedings, which the trial court did.

Fair hearing is a hearing which is fair to all parties to the suit, giving each one an opportunity to be heard, whether the party be the plaintiff, the defendant, the prosecution or the defence. See Idakwo v. Ejiga (2002) 12 MAJSC 81; Samba Petroleum Ltd v. Ltd. IMB Plc. (2010) 5-7 (PT1) MJSC 103.

The Appellants were not shut out from being heard in response to the Preliminary Objection. There was therefore fair hearing. Issue No. 9 is resolved against the Appellants.

Issue 3.

The Appellants complain that the trial court erred in law when he ruled that the plaintiffs’ action violates Section 1(1) of the Public Officers Protection Law, Cap. 104 Vol. 5 Laws of Akwa Ibom State. On this issue, both the 1st and 2nd Respondents have rightly submitted that the contention of the Appellants is misconceived.

The learned trial Judge in the Judgment appealed against, specifically did not uphold the Preliminary Objection by application of the Public Officers Protection Law, Cap. 104 Vol.5 Laws of Akwa Ibom State. At page161 of the Record of Appeal, the learned trial Judge said:

“I am aware that “any persons(s)” within the meaning of the Public Officers Protection Law includes corporation sole or Public bodies Corporate or incorporate. See UNILORIN v. ADENIRAN (2007) 6 NWLR (Pt. 1031) 498 but I hesitate to stretch that meaning to breaking point to include the 1st Defendant which is Government simpliciter and not its officer or agency. I prefer to err on the side of caution. However on the whole this action being Statute barred by virtue of the Constitutional Law Cap. 78 Laws of Akwa Ibom State in (sic) bereft of cause of action. I therefore have no jurisdiction to entertain it. The Preliminary objection is successful in part. This action is accordingly dismissed.”

This issue therefore does not arise from the Judgment appealed against. Issue 3 is consequently resolved against the Appellants.

All nine Issues raised for determination are thus resolved against the Appellants. This appeal is without merit, and is hereby dismissed.

Parties are to bear their respective costs.

MOHAMMED LAWAL GARBA, J.C.A.: My learned brother Onyekachi A. Otisi, JCA, had availed me of a draft copy of the lead judgment delivered today.

To start with, I agree that the issues formulated by the learned counsel for the Appellants are indeed prolix and substantially repetitive. The law is now well known that the success of an appeal does not depend on the number of grounds of appeal or issues framed by counsel in their briefs but by the potency and sustainability of the issues in law.

Because the appeal is against the decision by the High Court upholding the preliminary objection by the Respondents that the Appellants’ action was statute barred and so it had no jurisdiction to adjudicate over it, the real and crucial issue or question that calls for decision by the court is whether the High court was right that the action was statute barred. Since the High court did not try the case by taking and evaluating evidence of the parties and making findings thereon, other issues in the appeal are undoubtedly unnecessary and/or clearly misconceived along with the grounds from which they are raised. In the case of Edem v. Cannon Balls Ltd. (2005) ALL FWLR (276) 693 at 706, it was held by the apex court that an appellate court is to disregard and ignore irrelevant issues raised in the briefs of argument so as not obscure the main or real issues in an appeal. See also Fed. Min. of Health v. Cometship Agencies (2010) 13 WRN, 1, at 29; Yakubu v. Govt. of Kogi State (1997) 7 NWLR (511) 66 at 92.

My learned brother has very comprehensively considered the germane issue of the application of the provisions of sections 1 and 16 of the Limitation Law Cap 78 Vol. 4, Laws of Akwa Ibom State to the Appellants, case.

An objection raised in a case that it is statute barred is one which goes to and challenges the competence of the case and by necessary implication, a challenge to the competence or jurisdiction of the court before which it was raised, to entertain or adjudicate over the case. In the case of Arabella v. NAIC (2008) 32 WRN 1, at 26, the law was stated by the Supreme Court that-

“It need be stressed and this is also settled firstly, that the question or issue of whether or not an action is statute barred, is one touching on and goes to the jurisdiction. See the case of Army & 4 Ors. (2000) 24 WRN 97; (1999) 9 SCNJ 52; (1999) 9 SC 89; (1999) 72 LRCN 3132; (1999) 12 NWLR (Pt. 63) 362 at 372.”

A statute of limitation or limitation law, is a statute or law which a prescribed or limit the period within which a party can utilize, employ or resort to the judicial processes of a court of law to enforce a right of a claim or action against another in matters or causes stipulated in the provisions of the statute or law. In order to be able to properly and validly initiate, institute, commence or bring and maintain a legal action in respect of the matters or causes set out in the provisions before a court of law, a party has or must file the action within the period of time limited by the provisions of the relevant statute or law. Thus, legal proceedings cannot validly and properly be instituted after the effluxion or outside the prescribed period of time. See Sanda v. Kukawa Local Government (1991) 1 NWLR (174) 379; Obiefuna v. Okoya (1961) 1 SCN LR, 144; Fadare v. Attorney-General, Oyo State (1982) 4 S.C. 1 (82) NSCC 52 at 60; Owie v. Ighiwi (2005) 1 SC (Pt. II) 16 at 31; Aremo II v. Adekanye (2004) ALL FWLR (324) 2113 at 2131.

From the claims of the Appellants set in the lead judgment, I am in complete agreement that the action has been caught up by the provisions of the Akwa Ibom State Limitation Law as it was initiated or commenced after the effluxion and outside the period of the time prescribed and limited in Sections 1 and 16 thereof. The action is statute barred and so incompetent, thereby robbing the High Court of the requisite jurisdiction to adjudicate over it. That court was therefore on “terra firma” (firm terrain) of the law when it declined jurisdiction for it had none over the suit of the Appellants.

I had stated at the beginning that the issue considered above is the crucial and real one that calls for decision by the court in the appeal and that the other issues are unnecessary. Since my learned brother had in the lead judgment dutifully considered and pronounced on those other issues as an intermediate appellate court in line with the exhortation of the apex court, I agree and adopt all the views expressed and the conclusions on those issues as set out in the lead judgment.

In the final result, for the above and the reasons adumbrated elaborately in the lead judgment, I find no merit in the appeal and is hereby dismissed. In the case of Arabella v. N.A.I.C. (supra) at 25, the apex court had stated that:

“It is trite that where a court finds and holds that an action is incompetent, null and void or that it has no jurisdiction to entertain it, it does not dismiss the action, but merely strikes it out. See the cases of Onumajuru v. Akanihu (1994) 3 NWLR (Pt. 33) 620 at 630 CA; Agbenyi v. Abo (1994) 7 NWLR (Pt. 359) 735 at 746 – 747 CA; Chief Eleki v. Oko XXVIIII & Anor. (1995) 5 NWLR (Pt. 393) 100 at 109 CA.”

In the above premises, I strike out the Appellants, action.

JOSEPH TINE TUR, J.C.A.: I have read the judgment of my Lord ONYEKACHI A. OTISI, JCA and I concur that the appeal lacks merit and should be dismissed.

The lands that the appellants now seeks a reversionary interest and compensation from the respondents were acquired as pleaded in paragraphs 2-8 of the statement of claim as follows:

“2. The plaintiffs were original owners of the large expanse of communal/individual land in Efiat Offot and Afaha Offot Villages, Uyo Local Government Area, measuring approximately 7 hectres, and being the subject matter of government’s compulsorily acquisition and revocation of rights of occupancy, as published in the Pioneer Newspapers of Monday, December 25, 1995 and Monday May 6, 1996 respectively. Copies of the said Pioneer Newspaper publications are hereby pleaded and shall be founded upon at the trial of this suit. The defendants are hereby put on notice to produce the said original newspaper publications at the trial.

3. The said land is more particularly delineated in survey play No. CD/AK/001/96, as having an area of 6.907 hectres, as published by the plaintiff in the said Pioneer Newspaper of Monday May 6, 1996, while the original survey plan is in the custody of the defendants. The said publications of the defendants in the Pioneer Newspaper of Monday May 6, 1996 is hereby pleaded and relied upon by the plaintiffs while the defendants are hereby put on notice to produce the said original survey plan during trial.

4. The land, the subject matter of this action, was the only communal/individual property of the plaintiffs and it hosted the plaintiffs’ economic crops and gardens, including plantations, cash crops, palm fruits, plantains, as well as communal cemetery where loved ancestral family members were buried. The said land a/so hosted village/communal shrines and sacred places of the plaintiffs.

5. The 1st defendant, sometimes in 1989 compulsorily acquired the said land and revoked the plaintiffs’ right of occupancy existing or deemed to exist in the said land, as published in the Pioneer Newspaper of Monday 23rd January, 1989 and so reported in the Pioneer Newspaper of Monday, 25 December, 1995. The plaintiffs hereby plead copies of the said newspaper highlighting these publications and the defendants are hereby put on notice to produce the original copies of the said newspaper publications during trial.

5a. The Defendants also compulsorily acquired extra land beyond the 6.907 hectres of land that was published in the said Pioneer Newspapers. They compulsorily took over 7.202 hectres of communal and individual land belongs to many indigenes.

6. The original purpose for the acquisition of the said plaintiffs land was to build a general post office but later on 25th December, 1995 and 06/05/1996, as published in the Pioneer Newspaper respectively, the 1st defendant changed the purpose for which the plaintiffs land was compulsorily acquired, with the new user as published in the said publication being Akwa Saving and Loans Limited residential Estate.

7. Instead of using the said compulsorily acquired land purely as the 2nd defendant’s residential estate as published, the 2nd defendant demarcated the land into plots and sold them to top government official and highly placed members of the public, to the detriment of the plaintiffs.

8. The defendants did not pay, have not paid, and have not made any immediate arrangements known to the plaintiffs to pay compensation to the plaintiffs for the said land compulsorily acquired; even as the plaintiffs waited patiently for many years. The statement of claim was subsequently amended. The reliefs claimed have already been set out in the lead judgment. The Land Use Act No. 6 of 1978 which came into effect on 29th March , 1978 authorizes or empowers the Governor of a State to revoke a right of occupancy for overriding public interest (Section 28(1) and 2). In the case of a Customary right of occupancy overriding public interest is defined under Section 28(3)(a)-(d) as follows:

“(3) Overriding public interest in the case of a customary right of occupancy means:-

(a) the requirement of the land by the Government of the State or by a Local Government in the State, in either case for public purposes within the State or the requirement of the land by the Government of the Federation for public purposes of the Federation;

(b) the requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith;

(d) the alienation by the occupier by sale, assignment, mortgage, transfer of possession, sub-lease, bequest or otherwise of the right of occupancy without the requisite consent or approval.”

The procedure for revoking a right of occupancy is set out in Section 28(4) as follows:

“(4) The Military Governor shall revoke a right of occupancy in the event of the issue of a notice by or on behalf of the Head of the Federal Military Government if such notice declares such land to be required by the Government for public purposes.”

The legal effect of a revocation is set out in Section 28(6) and (7) of the Land Use Act No.6 of 1978 to wit:

“(6) The revocation of a right of occupancy shall be signified under the land of a public officer duly authorized in that behalf by the Military Governor and notice thereof shall be given to the holder.

(7) The title of a right of occupancy shall be extinguished on receipt by him of a notice given under subsection (6) or on such later date as may be stated in the notice.”

The title if the holder of a right of occupancy shall be extinguished on receipt by him of a notice given under Section 28(6) or on such later date as may be stated in the Notice. Section 29(1) of the Act then provides that:

“29(1) If a right of occupancy is revoked for the cause set out in paragraph (b) of subsection 28 or in paragraph (c) of subsection (3) of the same action, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.

(2) If a right of occupancy is revoked for the cause set out in paragraph (c) of subsection (2) of section 28 or in paragraph (b) of subsection (3) of the same section the holder and the occupier shall be entitled to compensation under the appropriate provisions of the Minerals Act or any legislation replacing same.”

The appellants pleaded the purposes for which the respondent revoked their customary right of occupancy. Under the provisions of Section 28(6) and (7) of the Act (supra) the title of the appellants over the lands now subject matter of this appeal was extinguished. But the appellants were entitled to compensation for the value of unexhausted improvements at the date of revocation under Section 29(1) of the Act (supra). The Notice of revocation of the appellants’ customary right of occupancy was in 1989 but first published in the Pioneer Newspaper of Monday, 25th December, 1995. The appellants are presumed to have become aware of the revocation of their customary right of occupancy from 1989 but failed to institute an action to enforce their right for payment of compensation till 25th March, 2009 when this suit was instituted by writ of summons, almost a period of ten years interval. To “extinguish” a right or interest simply means “1. To bring to an end; to put an end to. 2. To terminate or cancel. 3. To put out or stifle.” See Blacks Law Dictionary, 9th edition page 664. Therefore from the date of revocation for overriding public purpose, the rights and interests of the appellants’ community been extinguished, the only remedy they can lawfully pursue is for payment of compensation for the unexhausted improvements on the land. In this case the appellants did not pursue compensation until the statutory period for doing so lapsed.

Section 50(1) of the Land Use Act, 1978 defines the term “public purposes” by using the word “includes” etc, as follows:

“(a) for exclusive Government use or for general public use;

(b) for use by any body corporate directly established by law or by any body corporate registered under the Companies Decree 1968 as respects which the Government owns shares, stocks or debentures;

(d) for obtaining control over land contiguous to any part or over land the value of which will be enhanced by the construction of any railway, road or other public work or convenience about to be undertaken or provided by the Government;

(e) for obtaining control over land required for or in connection with development of telecommunications or provision of electricity;

(f) for obtaining control over land required for or in connection with mining purposes;

(g) for obtaining control over land required for or in connection with planned urban or rural development or settlement;

(h) for obtaining control over land require for or in connection with economic, industrial or agricultural development;

(i) for educational and other social services.”

Paragraph 7 of the Amended statement of claim reads as follows:

“7. Instead of using the said compulsorily acquired land purely as the 2nd defendant’s residential estate as published, the 2nd defendant demarcated the land into plots and sold them to top government official and highly placed members of the public, to the detriment of the plaintiffs.”

The rights of the appellants over the acquired land having been extinguished it does not lie within the mouth of the appellants to complain as to how or in what manner the respondents shall put their acquired land into use. Furthermore, laying out the acquired lands into plots and allocating to top government officials and highly placed members of the public is for developmental purposes which is not detrimental to the extinguished interests of the appellants. The government may revoke the customary right of occupancy for her exclusive or general use by the public. (Section 50(1)(a)); or for use by any body corporate directly established by law or by any body corporate registered under the Companies Act as respects which the Government owns shares, stocks or debentures such as the 2nd respondent. (Section 50(1)(b)); or for obtaining control over land required for or in connection with planned urban or rural development or settlement (Section 50(1)(g)); for obtaining control over land required for or in connection with economic, industrial or agricultural development (Section 50(1)(h)) all these are permissible under the Land Use Act No.6 of 1978. Section 50(1)(a) of the Act commences the definition of “public purposes” by the use of the word “includes”, etc. The word “includes” used in Section 50(1) of the Act has the purpose of widening the scope of the concepts covered by the term “public purposes” but certainly not to narrow its meaning. See Rabiu v. Kano State (1980) FNLR 509 at 524. In Okesuji v. Lawal (1991) 2 SCNJ 1 Akpata, JSC held at page 13 that:

“… The use of the word “including” clearly shows that the definition is not exhaustive.”

The legal effect is that it is not within the province of the appellants to determine the public purposes for which the respondents shall utilize the property compulsorily acquired, the term “public purposes” being inexhaustive. Indeed in Lawson v. Ajibulu (1997) 6 SCNJ 1 where similar claims were made by the community from whom the Ogun State Government had compulsorily acquired the property, Belgore, JSC held at page 26 lines 12-28 of the judgment as follows:

“The land in this case forms a minuscule part of a large track of land acquired by Ogun State Government for public purposes. The trial Court as well as the Court of Appeal relied heavily on the case of Ereku v. Military Governor of Mid-Western State & Ors. (1974) 10 SC 59 in arriving at the conclusion that the acquisition whereby land is taken by government from one citizen and given to another citizen is not done for public purpose. NON POIEST REX GRATIAM FACERS CUM INJURIA ET DAMNO ALIORUM. What we have now is a far cry from the situation in Ereku’s case; the law has changed and “public purpose” as defined in 1960 Laws of Western Region of Nigeria on Public Lands Acquisition Law, applicable to the defunct Mid-Western State when the case was decided has been amplified in ramifications. In Ereku’s case the exercise of acquisition was arbitrary and contrary to the law as if was; it was thus in that judgment deprecated. The acquisition in the instant case on appeal is clearly within the purview of the definition of “public purpose” in Section 2 Public Lands Acquisition Law (Cap.105, Laws of Western Nigeria 1958) and now Laws of Ogun State Cap. 105, Section 23 and thus it was not ultra vires, null and void.”

Whether the respondents called in aid the Public Officers Protection Law or the Limitation Law of Akwa Ibom State, my candid opinion is that these claims are caught by these Limitation Laws. On the authorities of Eboigbe v. NNPC (1994) 5 NWLR (Pt.347) 647 at 659; Odubeko v. Fowler (1993) 7 NWLR (Pt.308) 637 and Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt. 174) 379, I hereby dismiss this appeal. I abide by the orders of my Lord.

Appearances

E. J. Uko Esq.For Appellant

AND

Iniobong M. George Esq., Director, Civil Litigation, Ministry of Justice, Akwa Ibom State – 1st Respondent

S. U. Ndah Esq. – 2nd RespondentFor Respondent