IKATA v. ARUGU
(2022)LCN/16890(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Wednesday, March 09, 2022
CA/PH/526/2019
Before Our Lordships:
Paul Obi Elechi Justice of the Court of Appeal
Gabriel Omoniyi Kolawole Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
CHIEF EDWIN IKATA APPELANT(S)
And
CHIEF JOHN UMOR ARUGU RESPONDENT(S)
RATIO
WHETHER OR NOT THE ISSUE OF LIMITATION OF ACTION CONSTITUTES A JURISDICTIONAL ISSUE WHEN RAISED
It is a trite principle of law that the issue of limitation of action where and when raised, constitutes jurisdictional issue which ordinarily ought to be resolved first.
In the case of OLAGUNJU V. POWER HOLDING CO. OF NIG. PLC (2011) LPELR-2556 (SC) the Supreme Court per Onnoghen, JSC; (as he then was) said thus: -“It should be noted that when a defendant contends that the action of the plaintiff is statute-barred, he is raising an issue of jurisdiction of the Court concerned on points of law because where an action is found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.”
WHETHER OR NOT JURISDICTIONAL ISSUES CAN BE RAISED AT ANYTIME
It is also trite that the jurisdictional issues can be raised at anytime in the course of the proceedings and even up until the appeal stage.
In the case of OMOMEJI & ORS v. KOLAWOLE & ORS (2008) LPELR-2650(SC), the Supreme Court expressed the opinion that, “the issue of jurisdiction by whatever name and under any shade, can be raised at any stage. It can be raised viva voce or the Court can raise it suo motu.”
In other words, the Appellant had the right to raise the issue of limitation of action which is a jurisdictional issue at any stage during the trial, and even up until appeal. PER KOLAWOLE, J.C.A.
THE EFFECT OF A STATUTE OF LIMITATION
The Court having now recognized and resolved the issue of limitation of action, which is a jurisdictional issue, ought to have declined jurisdiction therein, as it did not lie with the Court anymore.
I find the decision of the Supreme Court in the very recent case of ABUBAKAR v. MICHELIN MOTOR SERVICES LTD (2020) LPELR-50837(SC) very instructive, as the Court held thus: “The purport and effect of a statute of limitation, such as the Plateau State Limitation Edict No. 16 of 1988 is that where the statute prescribes a period within which an action should be brought, legal proceedings cannot validly be brought or instituted after the expiration of the prescribed period. An action brought after the prescribed period is said to be statute-barred. It was held in AMADI & ANOR. V. INEC (2012) LPELR-7831 (SC) AT 31-32 D-E, that the essence of a limitation law is that the legal right to enforce an action is not a right in perpetuity, but a right generally limited by statute. Consequently, where the action is bought outside the prescribed period, the Court is divested of jurisdiction to entertain the matter, as it is no longer a live issue.” PER KOLAWOLE, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Honourable Justice T. S. Oji of the High Court of Rivers State delivered on 27th June, 2019.
On the 12th of June, 2013, the Respondent who was the Claimant at the lower Court, had by a writ of summons claimed against the Defendant, the following reliefs:
1. A declaration that the only family that can present the paramount ruler of the Okoboh community otherwise known as Uwema Okoboh community is the Olu sub-family of Oto Royal family of Okoboh.
2. A declaration that the title of Uwema Okoboh or the village head or the highest chieftaincy in Okoboh is hereditary and by the direct son of the incumbent Uwema.
3. A declaration that the Claimant’s (Respondent) father, Chief Umor Arugu, Uwema Okoboh was the last Uwema of Okoboh.
4. A declaration that the Claimant (Respondent) by virtue of being the direct son of Chief Umor Arugu, Uwema Okoboh is the rightful heir of the throne of Uwema Okoboh by inheritance and in accordance with the Abua customary law and tradition as applicable in Okoboh community and should be installed and crowned as the Uwema Okoboh forthwith.
5. A declaration that the Defendant (now Appellant) not being a member of the Olu sub-family of Oto Royal family of Okoboh can best be described as a regent of the Uwema Okoboh throne.
6. An order of perpetual injunction restraining the Defendant (Appellant) from further parading himself as or performing or continue to perform any of the functions of the Uwema Okoboh.
7. An order directing the Defendant (Appellant) to give and hand over to the Okoboh community monetary and other accounts of his stewardship for the period he held forth as a regent to the throne of Uwema of Okoboh.
The Appellant upon being served with the originating processes, filed a memorandum of appearance and a statement of defence both filed and dated 24th July, 2013.
On the 26th of September, 2013, the Respondent filed a “Reply to Defendant’s statement of defence.”
The suit as constituted went to trial and the lower Court at the conclusion of the proceedings after both parties have called their respective witnesses, delivered its judgment on the 27th day of June, 2019.
The Appellant being dissatisfied with the decision of the lower Court initiated the appeal to this Court in order to express his grievances. The jurisdiction of this Court was invoked by the Notice of Appeal dated and filed on the 24th of September, 2019. It has twenty-one (21) odd and lengthy grounds of appeal with copious particulars.
In accordance with the Rules and practice of this Court, both parties filed and exchanged their respective briefs of argument. Appellant’s brief of argument filed on the 7th day of February, 2020, was settled by J.U. Ikorogbudu Esq., whilst the Respondent’s brief of argument filed on 24th November, 2020 was settled by H.D.D. Uwom, Esq. The Appellant’s Reply brief was filed on 26th of February, 2020.
In the Appellant’s brief of argument, two issues were distilled and formulated for the determination of this appeal and they read thus:
1. Whether the learned trial Judge was right in law in failing to consider and resolve some of the material issues which the defendant/appellant raised in this case and to have granted relief Nos. 1, 2, 3, 4 & 5 claimed by the Claimant/Respondent in this case instead of dismissing his entire case.
2. Whether the learned trial Judge was right in his construction/treatment of the oral and documentary evidence and the inferences, conclusions and findings he made in this case.
The Respondent’s Counsel also formulated two issues for determination to wit;
1. Looking at the pleadings and evidence adduced by the parties at trial whether the learned trial Court was right to have found on the preponderance of evidence that the evidence adduced by the Respondent was credible and granted some of the Respondent’s reliefs? (Grounds 6-12 of the Notice of Appeal).
2. Whether the learned trial Court considered all the issues presented by the parties before reaching a decision? (Grounds 1-5 of the Notice of Appeal).
SUBMISSIONS OF COUNSEL
On the first issue, learned Counsel for the Appellant submitted respectfully, that the trial Court erred in law when he granted the declaration number 3 as it was not in issue, and thereby rendered it academic, as the Courts are not allowed to resolve matters that are not in dispute. He cited the cases of ANGADI v. PDP (2018) 15 NWLR (PT. 1641) 1 AT 24, PARAS, E-F; ALLI v. N.U.C (2018) 15 NWLR (PT 1641) 161 AT 171, PARAS. E-F in support.
He further submitted that the trial Judge erred in law in entertaining the case and granting claims number 1-5 after he had found that the Respondent’s Claim was caught by the statutes of limitation. He argued that the finding of fact by the trial Court remains valid, correct and binding in law, hence, it is statute barred and the cause of action is extinguished. In reliance on this proposition, the Appellant’s counsel cited the provision of SECTION 16 OF THE LIMITATION LAW OF RIVERS STATE; and the decisions in DABUP v. KOLO (1993) 12 SCNJ 1 AT 10; UKIRI v. GECO-PRAKLA (2010) ALL FWLR (PT. 1220) 544 AT 566, PARA. E.
He again contended that the person that ought to be making the claim is Chief James Arugu. He argued that in law, a party who claims a relief that belongs to another person lacks the locus standi to make the claim. He cited and relied on the decision in UNOKA v. AGILI (2008) ALL FWLR (PT. 423) 1349 AT 1372, PARA G.
He submitted that the judgment of the trial Court and the grant of relief one is perverse.
He added that by the provision of SECTION 17 OF THE EVIDENCE ACT, 2011, that a custom may be judicially noticed when it has been adjudicated upon once by a superior Court of record.
He observed that the Supreme Court did not in anywhere in BUNGE v GOVERNOR OF RIVERS STATE (2006) ALL FWLR (PT. 325) 1 AT 29-30, PARAS. B-F, hold that succession to a chieftaincy or an Uwema stool in Abua or under Abua custom is on the basis of from father to son.
He further submitted that it was perverse for the trial Judge to ignore the royal or ruling family stated in documentary evidence in EXHIBIT L as the royal/ruling family of Okoboh Village/Community, and go contrary to the custom of Abua with respect to the Uwema/Rulership stool of the community as established by the Supreme Court in BUNGE v GOVERNOR OF RIVERS STATE and placed reliance on contrary/contradictory oral evidence of the respondent and on the contents of a self-serving EXHIBIT B written by an interested person.
He submitted that the law makes a presumption of regularity in favour of the Appellant’s ascension thereon and puts the onus on the Respondent to prove why the admitted ascension of the Appellant on the stool is improper/irregular.
This, he reasoned he has failed to do.
The Appellant’s counsel further argued that it was also wrong in law for the learned trial Judge to have relied on the oral evidence of the Respondent’s witnesses to hold and declare that the Appellant is a regent, which evidence contradicts the documentary evidence particularly EXHIBITS J, H, M, P, R, U, V, W, X, Z2, Z4, Z5, Z6, Z8, & Z9 tendered at the trial.
He noted that the law is that a party who relies on traditional history to claim a declaration of title or a right to a chieftaincy stool must lead credible evidence of its origin (founder and founding), devolution, etc, otherwise his claim must fail and cited the decision in EZE v. ATASIE (2000) FWLR (PT. 13) 2180 AT 2190, PARAS. B-C.
He submitted that the trial Court was therefore wrong to have accepted the contradictory evidence/case of the respondent as credible, reliable and impeccable. The trial Court was also wrong to have accepted the discredited story that Ovie was a regent on the disputed stool.
The Appellant’s learned counsel further submitted that the lower Court erred in law by playing down on the said material contradictions in the case of the respondent, which in his view, defeated the Respondent’s case, and in selectively picking just a few of them to hold that they did not change the Respondent’s case and in relying on such contradictory/discredited evidence to give judgment in favour the Respondent which he argued was perverse.
It was further submitted that in law, the trial Judge was required to discountenance the contradictory evidence of the Claimant’s case and not to pick and choose between them. The lower Court therefore was wrong to have accepted/relied on such contradictory evidence of the Respondent to give judgment for him.
He added that when the entirety of the evidence of CW1 is rejected as it is required by law because of its material contradictions, there will be no evidence of traditional history left by which the Respondent can prove his case and get judgment.
Additionally, he said that none of his remaining witnesses (CW2 and CW3) gave evidence on the traditional history pleaded by the Respondent, and that none of the Respondent’s witnesses witnessed the disputed stool.
The learned Appellant’s Counsel, therefore submitted, that all their evidence that the Appellant was elected to the disputed stool in an acting capacity or as a caretaker, was inadmissible/unreliable hearsay in law. It was contended that the learned trial Judge was therefore wrong to have accepted same. In support of this proposition, the Appellant’s counsel cited and relied on the decision in OLAFEMI V. AYO (2010) ALL FWLR (PT. 526) 547 AT 590, PARAS. A-B.
The Appellant’s counsel further argued that the DW1, DW2, and DW3 on the other hand, were eye witnesses to the choice/election in 1980 by the Oto Royal family of the Appellant to ascend the disputed stool and noted that their evidence that it was the Appellant that was elected to ascend and indeed, did ascend that stool as a substantive Uwema Okoboh is more credible than the hearsay evidence of CW1, CW2 and CW3 and cited the decision in OMISORE V. AREGBESOLA (2015) 15 NWLR (PT.1482) 205 AT 323, PARAS. D-F.
Appellant’s counsel further argued, submitted that the learned trial Judge was wrong to rely solely on the unreliable and inadmissible hearsay evidence of the Respondent to find that the brothers of the Respondent declined to ascend the stool, as he failed to call his brothers to substantiate that disputed claim.
It was further argued that the trend of the established successions to the said different Uwema stools which cut across the different communities/villages in Abua as revealed from the unchallenged evidence of DW1 & DW3 and the admissions of CW1, CW2 & CW3 proved or led to the irresistible conclusion that the Appellant ascended the disputed stool and has remained thereon as a substantive Uwema Okoboh and the custom pleaded by the Appellant is the correct one.
The Appellant’s counsel opined that the learned trial Judge erred in law and acted perversely for him to have substituted the words “ascendancy to the stool of Uwema” for the true words in Exhibit K being succession to Chief Igoni in respect of the headship of his house or family and his property. It was therefore wrong for the learned trial Judge to construe the EXHIBIT K the way he did and called upon this Court to intervene and construe the documents properly by itself. Again, he cited the case of EZE V. A.G RIVERS STATE (2002) FWLR (PT.87) 1109 AT 1129.
In the same vein, he submitted that the trial Judge erred in law in haphazardly construing the comments/contents of APPENDIX II to EXHIBIT K headed “Towns in the Abua Native Court Area with their Uwemas”.
He argued that it is nowhere stated in Exhibit K and/or its Appendix that succession or ascendancy to the Uwema stool went from father to son or next in line of the surviving male relatives and where the children were not of age, a regent was appointed, which the learned trial Judge wrongly imported into EXHIBIT K.
The Appellant’s counsel submitted that the law prohibits the reading, importation or addition of extraneous words into a written document while construing the document. The learned trial Judge, he argued construed portions of the said APPENDIX II to EXHIBIT K in isolation and not wholly or conjunctively as required by law and also deliberately skipped the portions that are obviously against the case of the Respondent which he submitted, was wrong. In support of this submission, the Appellant’s counsel referred to the decision in AKINBISADE v. STATE (2006) 17 NWLR (PT. 1007) 184 AT 204, PARAS B-C.
The learned Appellant’s Counsel further observed that EXHIBIT L affirms that the Oto family, (not Olu subfamily) is the royal family of Okobo village and explained, that the meaning of the word “hereditary” used in EXHIBIT L, runs counter to the conclusions of the trial Court in respect thereof and the definition of that word as given by the trial Court in its judgment (i.e that hereditary interest is passed down through one’s lineage). It was argued that the hereditary nature of the Uwema stool is not from father to son as the trial Court wrongly held but that it descends to succeeding generations of a royal family; from their ancestor to his descendants/family.
Similarly, learned Appellant’s Counsel submitted that the trial Judge erred in law when he equated EXHIBIT B with EXHIBIT K and in giving credit/weight to a spurious/unauthenticated document as Exhibit B, in making wrong findings/conclusions therefrom and in relying on EXHIBIT B to decide the case and give judgment in favour of the Respondent.
It was further submitted that EXHIBIT B is a worthless document that it contradicts/defeats the case presented in the by the Respondent who tendered it.
He again submitted that the premise on which the reliefs of the Respondent were built, having failed, that those reliefs must consequently fail and cited the decision in CHUKWUMAH v. SHELL (1993) 5 SCNJ 1 AT 42, in support.
Based on all the submissions above, the Appellant’s counsel urged this Court to resolve Issues 1 & 2 in favour of the Appellant and against the Respondent and to allow the appeal, set aside the judgment of the trial High Court on appeal and to dismiss the case/claims of the Respondent in Suit No. AHC/122/2013 in its entirety.
RESPONDENT’S COUNSEL SUBMISSIONS
On issue 1, learned Respondent’s Counsel submitted that the Appellant is yet to demonstrate in his brief of argument where the learned trial Judge abdicated his judicial function to properly evaluate the evidence adduced before him in reaching his decision. See DAKUR v. DAPAL (1998) 10 NWLR (PART 571) 573 AT 589, PARAS A-C.
The Respondent’s counsel observed that the lower Court while evaluating the entire evidence of the case as presented, concluded rightly that EXHIBIT M represents the recent modifications of the custom in which parties involved like the defendant are trying to create in my view a different custom from what obtained in the time of their ancestors as contained in EXHIBITS B and K.
It was further observed that EXHIBIT M lacks any probative value having being made by an interested party at a time when proceedings were anticipated. In reliance on this proposition, the Respondent’s counsel cited the provision of Section 83(3) of the EVIDENCE ACT, 2011; FEDERAL CAPITAL DEVELOPMENT AUTHORITY v. DR. CHARLES NZELU (2014) 5 NWLR (PART 1401) 565 AT 584, PARAS F-G.
He submitted also, that the Respondent as Claimant at the lower Court, discharged the burden duty to lead credible evidence to prove that he is entitled to the declaratory reliefs he sought and the lower Court rightly granted him those reliefs.
Relying on FABUNMI v. AGBE (1985) 1 NWLR (PART 2) 779, the learned Respondent’s counsel submitted further that the Respondent successfully proved in line with his pleadings that only the Olu sub-family of Oto Royal family of Okoboh can produce the Uwema, and that this Uwema stool is hereditary and as a direct son of the immediate past Uwema Okoboh-late Chief Umor Arugu, the Respondent was entitled to ascend to the Uwema Okoboh stool in line with Abua custom.
We were urged to answer Issue One in the affirmative in favour of the Respondent because, the learned trial Court was right to have found on the preponderance of evidence adduced by the Respondent to be credible and granted some of the Respondent’s reliefs.
On issue 2, the learned Respondent’s Counsel submitted that the allegation of the Appellant in his brief and grounds of appeal that the lower Court did not consider all the issues raised before it by the parties was wrong and unfounded. On the contrary, the issue of the locus standi of the Respondent to sue, it was argued that the lower Court fully resolved this in reaching a decision.
On the contention of the Appellant that the lower Court was wrong to grant the Respondent’s reliefs 1-5 because the statute of limitation caught up with him, the learned counsel submitted that this was misconceived because the lower Court agreed with the traditional evidence as adduced by the Respondent as credible and therefore held that “the Respondent slept over his right and therefore the Appellant should rule as Regent”.
The Respondent’s counsel submitted that the Appellant did not disclose that fraud or bad faith inspired the reliefs of the Respondent as it was held in the case of ADEJUMO V. AYANTEGBE (1989) 3 NWLR (Pt. 110) 417 AT 452, para. C, and that the doctrine of laches and acquiescence did not bar the Respondent’s reliefs that were granted by the lower Court.
Learned Counsel for the Respondent further submitted that in law, evidence elicited under cross-examination but not on facts pleaded does not enjoy a higher status in terms of credibility than evidence in chief given on facts not pleaded merely because it was obtained under cross-examination as they both go to no issue. He relied on the decision in the case of STANBIC IBTC BANK PLC V. L.G.C. LTD. (2018) 10 (Pt. 1626) 96 AT 142, paras. C-D.
The Respondent’s counsel submitted that it was the Claimant now Respondent’s case that he is the direct son of Umor Arugu and that since his elder brothers have rejected the throne, the mantle now rests on him to sit on the said stool and since the Defendant refused to relinquish same, he has the locus standi to bring an action against him.
Learned Counsel further submitted that the Respondent has further shown that his elder brothers who were entitled to be Uwema declined same and so, being the next surviving son in line to succession he should be the Uwema since same is hereditary. The Respondent’s counsel submitted that this was sufficient interest by which he was entitled to sue.
Learned Counsel for the Respondent submitted that the lower Court relied on the case of BUNGE V. GOVERNOR, RIVERS STATE (supra) to establish that succession to stool of the Uwema (village head) of each village in Abua clan (which includes Okoboh) was hereditary and in total agreement with the Respondent’s case.
The Respondent’s counsel submitted that it is self-contradictory for the Appellant to accept the judicially established custom of the Abua clan on succession to the stool of village chief in BUNGE V. GOVERNOR, RIVERS STATE (supra), when the evidence adduced at trial shows that the Appellant is not the son of the immediate past Uwema Okoboh but an adopted member of the Igwe sub-family of Oto Royal family of Okoboh unlike the Respondent who is not just the son of the immediate past Uwema Okoboh, but a member of the Olu sub-family of Oto Royal family of Okoboh.
He submitted that most of the judicial decisions cited in the Appellant’s brief of argument are not good precedents for this case as they do not apply to the facts of this case.
Learned Counsel for the Respondent urged us to answer Issue two in favour of the Respondent because, the learned trial Court considered all the issues presented by the parties before reaching a decision after evaluating the oral and documentary evidence as pleaded.
In his reply brief, learned Appellant’s Counsel submitted that the crux of this case on appeal is the mode of succession of the Uwema Stool according to Abua custom.
In further response to paragraphs 4.2–4.4 of the Respondent’s Brief, it is submitted that Exhibit B, the evidence of CW1, CW2 & CW3 and the traditional history of the respondent are materially contradictory and in law, not capable of establishing the respondent’s case.
In response to paragraphs 4.4 & 4.5 of the Respondent’s Brief, it is submitted that it is demonstrably clear that the learned trial Judge was wrong to rely on EXHIBITS B and L to hold that the respondent’s case is more credible and that the Uwema stool of Okoboh community was given to Olu subfamily of Oto royal family.
Appellant’s counsel argued that the trial Court was wrong to prefer Exhibit B to subsequent documents written by disinterested chiefs without any incentive to conceal or misrepresent facts, unlike Arugu Oriede (Respondent’s grandfather) who authored Exhibit B.
In respect to EXHIBIT L and its obvious admissions against the Respondent, the Appellant’s counsel cited the case of OKUNADE v. OLAWALE (2014) 10 NWLR (PT. 1415) 207 AT 258 PARAS. F-H & 280 PARAS D-G, and expressed the view that the learned trial Court simply glossed over this in his decision.
It was submitted that the respondent’s contention and trial Judge’s finding that succession to that stool is the automatic right of a son of the immediate past ruler (immediate past incumbent on the stool) render as surplusage or tautology the aforesaid words in parenthesis which are used in Exhibit L and that this is wrong in law.
It was argued that in the interpretation of a statute, a document or an instrument, none of the words used therein is to be taken as mere tautology or surplusage but rather it is presumed that the authors or legislators were very conscious in using the words therein. He cited the case of A.G ABIA STATE v. A.G FEDERATION (2003) 1 SCNJ 131 AT 193-194.
It was argued that in view of the judgment of the Supreme Court in BUNGE v. GOVERNOR OF RIVERS STATE (2006) ALL FWLR (PT.325) 1 AT PAGE 47, PARAS E-F, he submitted that the evidence in this case proved that succession is not from father to son but is based on the choice of the royal family.
In respect to the trial Judge’s findings of acquiescence, he contended that as the trial Court found the respondent guilty of acquiescence, that his claims in this suit have been successfully defeated, this is because equity does not aid the indolent. In aid of this proposition, he cited the decision in FOLAMI v. COLE (1990) 4 SCNJ 13 AT 20-21.
He further argued that the Respondent’s Counsel’s contention in paragraph 4.25 of his brief that the evidence extracted under cross-examination of CW1 & CW2 to the effect that no two persons can be installed to ascend an Uwema stool simultaneously, was based on unpleaded fact, was based on a misconception of the pleadings. The Appellant’s counsel directed the Court to paragraphs 16, 17, 20(d) & 27 of the Statement of Defence and paragraph 18 of the Rejoinder.
Whilst relying on the provision of ORDER 15 RULE 2(1) OF THE RIVERS STATE HIGH COURT (CIVIL PROCEDURE) RULES, 2010 and the case of THANNI v. SAIBU (1977) 2 SC 89 AT 97, it was submitted that in law, when a party has pleaded a material fact, it is not incumbent on him to state in his pleadings the subordinate facts which he intends to use in proving the material fact, hence it was proper in law for the Respondent’s Counsel to extract evidence in proof of the aforementioned material fact under cross-examination from CW1 & CW2 in order to establish that under the custom, two persons cannot be installed to ascend the same Uwema stool simultaneously.
It was further argued that since the Appellant had also pleaded that HRH N. W. Obagna installed Chief James Arugu to ascend the disputed stool in paragraph 15 of the Statement of Claim, the said evidence extracted under cross-examination from CW1 & CW2 is evidence to debunk the said facts pleaded by the Respondent in his statement of claim.
He submitted that in law, evidence given or extracted under cross-examination by a party to debunk a fact pleaded by his opponent is admissible notwithstanding that it is on a fact not pleaded by the party, and in support of this proposition the learned Appellant’s counsel made reference to BAMGBOYE v. OLAREWAJU (1991) 4 NWLR (PT. 184) 145 AT 155. PARAS. C–E.
In conclusion, it was further reiterated that the evidence of the Respondent, that his brothers rejected the stool was inadmissible and unreliable hearsay, adding that it was perverse for the learned trial Judge to have made a finding that the Appellant did not deny the allegation of the Respondent in that respect.
BRIEF FACTS OF THE CASE
Before I proceed to the resolution of the issues for determination, let me give a brief summary of the facts of this case as I understand it.
The Claimant/Respondent’s case is that the succession to stool of Uwema of Okoboh is by inheritance, that is from Father to son, or the nearest surviving male adult relative of the preceeding Uwema from Olu subfamily unit of Oto Royal Family, according to the custom of the Abua people. The Respondent claims that his father, Chief Umor Arugu, was the last substantive Uwema of Okoboh. He claims that it is only the Olu subfamily unit of Oto Royal Family that can produce an Uwema.
The Appellant, who is also a member of the Oto Royal family, disagrees with the Respondent to the extent that it is not the Olu subfamily unit of Oto Royal Family that has the exclusive right to produce the Uwema stool, but rather ascension to the Uwema stool is by selection/election of a male member of the Oto Royal house so agreed on by the said Royal house and the Okoboh Community.
That it was the Appellant that was rightly so selected and installed as the substantive Uwema of Okoboh and has been so installed and enjoyed peaceful occupation of the stool for over 30 years until the Respondent came to challenge his Uwemaship.
RESOLUTION OF THE ISSUES
I have carefully considered the twenty-one grounds of appeal contained in the notice of appeal filed by the Appellants, the two issues formulated for determination of the present appeal by counsel to both parties respectively, the arguments canvassed thereon by the respective parties and the decision contained in the Judgment of the lower Court, and I am of the view that there is only one question that this Court needs to answer in the determination of this appeal.
The sole issue in my view, is Whether the learned trial Judge was right in entertaining the suit and granting claims 1, 2, 3, 4 & 5, even after he had found that the suit had been caught by the statute of limitation?
On the issue of the trial Judge’s finding of fact that the Respondent was caught by the statute of limitation, the question being posed for this Court to answer is whether the lower Court ought to have deemed the suit as statute barred and declared that the cause of action was extinguished or whether the learned trial Judge was right to go on to entertain the case and grant claim no 1, 2, 3, 4 & 5 in favour of the Respondent.
It is a trite principle of law that the issue of limitation of action where and when raised, constitutes jurisdictional issue which ordinarily ought to be resolved first.
In the case of OLAGUNJU V. POWER HOLDING CO. OF NIG. PLC (2011) LPELR-2556 (SC) the Supreme Court per Onnoghen, JSC; (as he then was) said thus: -“It should be noted that when a defendant contends that the action of the plaintiff is statute-barred, he is raising an issue of jurisdiction of the Court concerned on points of law because where an action is found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the plaintiff leaving him with an empty unenforceable cause of action.”
It is also trite that the jurisdictional issues can be raised at anytime in the course of the proceedings and even up until the appeal stage.
In the case of OMOMEJI & ORS v. KOLAWOLE & ORS (2008) LPELR-2650(SC), the Supreme Court expressed the opinion that, “the issue of jurisdiction by whatever name and under any shade, can be raised at any stage. It can be raised viva voce or the Court can raise it suo motu.”
In other words, the Appellant had the right to raise the issue of limitation of action which is a jurisdictional issue at any stage during the trial, and even up until appeal.
From the records, it can be seen that in paragraphs 28 and 35 of the statement of defence, the Appellant averred thus;
28. “…the defendant avers that this suit is statute-barred as it is caught by the limitation period contained in the statute of limitation (Limitation Law of Rivers State).
35. “Alternatively, the defendant contends that the claimant’s case is not maintainable because it is statute barred, abuse of Court process and also vitiated by laches, acquiescence and estoppel by standing by.
It is worthy of note that the Appellant did not bring any preliminary objection or any application before the lower Court to strike out the suit on the ground that the Court lacked jurisdiction to entertain same, however, the lower Court took cognizance of the Appellant’s averments in paragraphs 28 and 35 of the statement of defence and indeed made pronouncements on it. The said pronouncement of the trial Court has not been appealed against, that means it remains valid, correct, and binding in law. See DABUP v. KOLO (1993) 12 SCNJ 1 AT 10, UKIRI v. GECO-PRAKLA (2010) ALL FWLR (PT. 1220) 544 AT 566, PARA E.
The Court having now recognized and resolved the issue of limitation of action, which is a jurisdictional issue, ought to have declined jurisdiction therein, as it did not lie with the Court anymore.
I find the decision of the Supreme Court in the very recent case of ABUBAKAR v. MICHELIN MOTOR SERVICES LTD (2020) LPELR-50837(SC) very instructive, as the Court held thus: “The purport and effect of a statute of limitation, such as the Plateau State Limitation Edict No. 16 of 1988 is that where the statute prescribes a period within which an action should be brought, legal proceedings cannot validly be brought or instituted after the expiration of the prescribed period. An action brought after the prescribed period is said to be statute-barred. It was held in AMADI & ANOR. V. INEC (2012) LPELR-7831 (SC) AT 31-32 D-E, that the essence of a limitation law is that the legal right to enforce an action is not a right in perpetuity, but a right generally limited by statute. Consequently, where the action is bought outside the prescribed period, the Court is divested of jurisdiction to entertain the matter, as it is no longer a live issue.”
It is manifestly clear from the foregoing, that as soon as the lower Court found that the Respondent’s claim was caught by the statute of limitation, the Court lost its jurisdiction and competence to entertain the matter any further, and the only proper order it should have given was an order of dismissal of the suit.
The learned trial Judge however in his decision said the following:
“Therefore, whilst I agree with the Claimant’s case and history as to the custom of succession to the Uwema stool of Okoboh, however on the grounds standing by, I cannot here agree with Claimant to be declared rightful Uwema of Okoboh as he slept over his rights for more than thirty years and allowed defendant to rule in his family stead. Perhaps the future will correct the anomaly in custom by the Okoboh community as posterity watches; that is why I have taken time to deal with the custom and history of Okoboh preceding 1980 and as at 1980 as I see it from the evidence before me. In view of same, I agree with claimant that in the face of existing custom, defendant can best be described as a regent because custom is dynamic it cannot be changed overnight, it evolves.”
The Court below, having found as it did above, should have directed itself at that point, and refrained from further consideration of the suit as he had so properly found that the Claimant had slept over his right for more than 30 years.
The apparently and very scholarly detailed analysis of the substantive issues in this case by learned trial Judge, I am afraid seems to have been an exercise in utter futility, and a waste of judicial time and effort. As it is axiomatic that you cannot place something on nothing, thus, where the trial Court lacks jurisdiction as it does in this case, seeing that the Respondent’s claim has been brought outside the prescribed period of 5 years by virtue of Section 16 of the LIMITATION LAW OF RIVERS STATE, the Court is divested of jurisdiction to entertain the matter, as it is no longer a live issue.
The learned Appellant’s Counsel in his notice of appeal, raised the issue of the suit being statute barred and this has further invited this Court to make pronouncement accordingly. This is allowable and good practice, as in the decision in USMAN DAN FODIO UNIVERSITY v. KRAUS THOMPSON ORGANISATION LTD. (2001) 15 NWLR (PT. 736) P. 305, the Supreme Court held that “…a party raising the issue of jurisdiction on appeal must make it a ground of appeal to enable him formulate an issue from the said ground.”
This, the Appellant has done and further argued as a sub issue under the appellant’s issue one.
I therefore find that Respondent’s claims were indeed caught by the statute of limitation, and consequently defeated.
I also find that the lower Court, despite its best intentions, if it can be so described without casting any aspersion on the integrity of the lower Court in trying to judicially record and concretize the customs and traditions of the Abua people, especially as touching the custom of succession to the Uwema stool of Okoboh, was in error when it went ahead to grant reliefs number 1-5, even after its finding that the case of the Respondent was caught by the limitation laws of Rivers State. It was not the place of the lower Court to delve into the substantive issues raised by the Respondent, however meritorious they might have seemed, as it lacked the requisite jurisdiction to so do.
I find that the lower Court ought to have dismissed the suit seeing that it lacked jurisdiction to entertain same. See again AMADI & ANOR. V. INEC (supra); Section 16 of the LIMITATION LAW OF RIVERS STATE, supra.
Based on the foregoing, this Court is guided by law to set aside the judgment reached by the lower Court and to allow this appeal and I so hold.
This appeal is hereby allowed as it has merit, and the decision contained in the judgment of the Rivers State High Court, in Suit No. AHC/122/2013, delivered by Honourable T.S. Oji on the 27th of June, 2019 is hereby set aside. The said suit in the lower Court is hereby dismissed. Both parties shall bear their respective costs of prosecuting the appeal.
PAUL OBI ELECHI, J.C.A.: I am privy to and agree with the reasoning articulated by my learned brother Gabriel Omoniyi Kolawole, JCA in the lead judgment just delivered.
I adopt his reasons and conclusion as mine in allowing the appeal as being meritorious.
Appeal allowed.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I agree with the lead judgment just delivered by my learned brother, Gabriel O. Kolawole J.C.A. The appeal has merit and the judgment of the Court is set aside.
Appearances:
H. D. D. UWOM, ESQ. For Appellant(s)
J. U. IKOROGBUDU, ESQ. For Respondent(s)