IMOJIME & ANOR v. REGISTERED TRUSTEES OF NKST & ORS
(2022)LCN/16908(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Tuesday, May 10, 2022
CA/MK/80/2019
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. AONDOHEMBA IMOJIME HON. 2. TERVER IMOJIME HON. APPELANT(S)
And
1. REGISTERED TRUSTEES OF NKST 2. NKST CHURCH, AKO 3. MIN. OF LAND & SURVEY, BENUE STATE 4. HON. ATTORNEY GENERAL OF BENUE STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON AN ORDER OF DISMISSAL
An order of dismissal, ordinarily, means disposing of a matter or case on the merit of the issues heard and determined finally as between the parties before the Court. The order is final and subject only to an appeal and cannot, in the absence of statutory provisions, be re-opened or reviewed by the Court that made it. See Okeke vs. Modu (1969) (470) 121 at 127. From the meaning of and effect of the two distinct orders, it is clear that where a case or matter is incompetent in law, the defect goes to the jurisdiction of the Court before which it was brought and renders it incompetent to adjudicate over it. The incompetence of the case robs the Court of the requisite competence/jurisdiction to entertain the case and without jurisdiction, the basis for the exercise of judicial authority and power to conduct proceedings in the case by way of determination on the merit, would be absent. In such situations, the only order that can properly be made is one striking out the case for want of jurisdiction. See Bronik Motors Ltd. vs. Wema Bank Ltd. (1983) 6 SC, 158; Ajomale vs. Yarduat (1991) 5 NWLR (191).”
See also the decision of this Court in Barr. Samuel Ulegede vs. Tyona Mbapuun (2021) LPELR- 54205 and O.B.M.C. Limited vs. MBAS Ltd. (2005) All FWLR Pt. 261, pg. 216, where the Supreme Court also held that:
“It is not in all cases that even dismissal would amount to final order of Court to be set aside only on appeal. The affected party has the right to apply that the matter be re-listed or to file a fresh matter.” PER JOMBO-OFO, J.C.A.
WHETHER OR NOT A SUIT WITHDRAWN AN STRUCK OUT BY THE COURT CONSITITUES AN ABUSE OF COURT PROCESS
A suit withdrawn and struck out by the Court does not constitute an abuse of Court process to a subsequent process filed as the right of the plaintiffs to file the same suit was not extinguished. See Order 23 Rule 1 (1), (2) and (4) which provide as follows:
23 1. (1) The plaintiff may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim. He shall thereupon pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2) A discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent claim.
(4) Where proceedings have been stayed or struck out upon a plaintiff’s withdrawal or discontinuance under this order no subsequent claim shall be filed by him on the same or substantially the same facts until the terms imposed on him by the Judge have been fully complied with.
Since no terms or conditions were imposed on the plaintiffs/appellants at the time of withdrawal of their Suit No. GHC/50/2013, there is obviously no reason estopping them from prosecuting Suit No. GHC/43/2017. As rightly submitted by the learned counsel for the appellants, when a suit is struck out, the plaintiff has the options to bring life back into the suit thereby bringing it back to the hearing cause list or to file a fresh action.
Where he opts to file a fresh action, nothing stops him from curing the defect complained of, or which he noticed in the suit that was struck out. See the case of Shanu vs. Afribank Nig. Plc. (2000) FWLR, Pt. 23, pg. 1221. The holding of the learned trial Judge to the effect that he had examined Suit No. GHC/50/2013 and Suit No. GHC/43/2017 filed at different intervals by the plaintiffs/appellants and which suits seek to achieve the same purpose, cannot be grounds for allowing the notice of preliminary objection. PER JOMBO-OFO, J.C.A.
WHETHER OR NOT A MATTER WITHDRAWN AND STRUCK OUT UPON APPLICATION OF A PARTY CAN BE UTILIZED BY THE OTHER PARTY OR THE COURT
It is the position of the law that a matter withdrawn and struck out upon the application of a party, cannot be utilized by the other party or even by the Court. See the decision of this Court per Uwa, JCA., in N.U.C. vs. Alli (2014) 3 NWLR Pt. 1393, pg. 33, 78, paras. B-D, where it was held as follows:
“A Court process filed by a party which has been withdrawn and struck out on the application of the party cannot be utilized by the other party, the Court or anybody else. A reference to the content of the process is wrong and all argument relying on same should be discountenanced. In the instant case, a notice of preliminary objection filed by the appellant was withdrawn by the appellant and was struck out by the trial Court. The process, having been withdrawn and struck out on the application of the appellant, ought not to have been utilized by the respondents, the Court or anybody else.” PER JOMBO-OFO, J.C.A.
THE POSITION OF LAW ON LIMITATION OF ACTION
Limitation of action is the principle of law requiring a plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a Court of law within the time limited by law, otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. See KASIM v. NNPC (2013) 10 NWLR (Pt. 1361) 46 at 67. A statutory period after which a lawsuit cannot be brought because the period laid down by the Limitation Act or Law has lapsed. Limitation of action is determined by looking at the Writ of Summons or the Statement of Claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the Writ of Summons was filed. A cause of action arises the moment a wrong is done to the plaintiff by the defendant. And dispute report basis by the defendant. And the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement. See ADEKOYA v. FEDERAL HOUSING AUTHORITY (2008) 4 SC 167 at 182. After a period set by the law for commencing an action, a Plaintiff, with a compelling cause of action cannot enforce same by judicial process because he has sat over his right for all times as the time stipulated by law for initiating such action has become extinct. See NASIR v. CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) 1-2 SC 65 at 92.
The Statute of Limitation will not apply where the person to be affected has been fraudulently denied the opportunity to react to the revocation of his right of occupancy over land. See EXECUTORS OF THE ESTATE OF ABATCHA v. EKE-SPIFF & 3 ORS (2009) 2-3 (Pt. 11) 93 at 118. PER HASSAN, J.CA
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Benue State High Court of Justice sitting at Gboko (hereafter the lower/trial Court) in Suit No. GHC/43/2017, delivered on 8th October, 2018 by Hon. Justice P. T. Kwahar, J.
BRIEF BACKGROUND FACTS
The appellants being the plaintiffs at the lower Court took out a writ of summons on 24th November, 2016 in Suit No. GHC/43/2017 and statement of claim wherein they claimed as follows against the respondents, therein the defendants:
i. AN ORDER of the Honourable Court revoking the Certificate of Occupancy No. BNA 6270 dated 31st May. 2006 issued to the 2nd Defendant by the 3rd Defendant.
ii. A DECLARATION that the Plaintiffs are legal/beneficial owners that the expanse of land known as IMOJIME HON family land, particularly described as that vast land bounded from the north by NKST AKO Orchard farm; from the east by NKST AKO church building; from the west by a road leading to Vincent Hon Addingi compound and late Chur Hon family land and from the south by the 1st Plaintiff’s compound as inheritance of their late father’s landed property.
iii. AN ORDER of this Honourable Court declaring that the Defendants are trespassers to the late Imojime Hon family land.
iv. AN ORDER of the Honourable Court directing the Defendants to vacate the said land with immediate effect and hand over possession to the Plaintiffs.
v. AN ORDER of perpetual injunction restraining the Defendants by themselves, privies, assigns, agents, personal legal representatives from further trespassing, claiming, tampering or dealing in any manner whatsoever with the property aforementioned.(See pages 1 – 12 of the record of appeal).
On 7th May, 2018 the 1st and 2nd defendants by way of a Motion on Notice No. GHC/292M prayed the Honourable trial Court as follows:
1. AN ORDER of Court striking out the name of the 2nd Defendant/Applicant from this suit for not being a juristic person.
2. AN ORDER of Court dismissing the entire suit for being incompetent.
The grounds upon which the application was brought include:
a. That the 2nd Defendant is not a juristic person and therefore cannot be sued.
b. That the subject matter of the application is an abuse of Court Processes.
c. That the subject matter of this application is statute-barred.
d. That the Honourable Court lacked the jurisdiction to entertain the suit. (See pages 35 – 72 of the record of appeal).
In support of the motion is an affidavit of 5 paragraphs to which is annexed 2 exhibits marked as Exhibits EZA 1 and EZA 2 respectively.
The 3rd and 4th defendants also filed a Notice of Preliminary Objection No. GHC/302M/2018 on 11th May, 2018 challenging the jurisdiction of the trial Court on similar ground that the action is statute barred. (See pages 86 – 92 of the record of appeal).
The 2 applications were subsequently consolidated and heard by the lower Court on 16th July, 2018. (See page 167 of the record of appeal).
In a considered ruling delivered on 8thOctober, 2018, the learned trial Judge upheld the Preliminary Objection of the respondents and dismissed the appellants’ suit in limine on grounds that the 2nd respondent is a non-juristic person, the suit is an abuse of Court process and is statute barred.
Dissatisfied with the decision, the appellants filed a joint Notice of Appeal on 16th November, 2018. The record of appeal was compiled and transmitted out of time on 16th May, 2019, but with the leave of Court sought and obtained, the same was deemed properly compiled and transmitted on 15th July, 2021.
Parties in line with the rules of this Court filed and exchanged briefs of argument. The appellants’ brief of argument filed out of time on 18th June, 2019 and deemed properly filed on 15th July, 2021 and the appellants’ reply brief filed 9th August, 2021 were both settled by Robert Hon, Esq. The respondents’ brief of argument filed 23rd July, 2021 was settled by J. O. Akaaunde, Esq. The 3rd and 4th respondents did not see the need to file any brief of argument.
The appellants from the 5 (five) grounds of the Notice of Appeal donated the following 3 (three) issues for determination:
i. Whether or not the learned trial Judge was right to have rely (sic) solely on Exhibits EZA 1 and EZA 2 to hold that the suit of the appellants as presently constituted in Suit No. GHC/43/2017 is an abuse of Court process and it is initiated outside the time limit for filing same and is therefore statute barred. (Distilled from grounds 1, 2 and 3 of the notice of appeal).
ii. Whether or not the learned trial Judge was right when he neglected to consider and rule on the contention of the appellants’ qua counsel that the notice of preliminary objection of the 1st and 2nd respondents is incompetent. (Distilled from ground 4 of the Notice of Appeal).
iii. Whether or not the trial Judge was right to have reached a conclusion that the appellant’s counsel indulged in professional misconduct, sharp practice and mischief in his ruling. (Distilled from ground 5 of the Notice of Appeal).
The 1st and 2nd respondents on their part donated the following issues for determination:
i. Whether or not the Honourable trial Court was right to hold that Appellants’ Suit No. GHC/43/2017 is an abuse of Court process.
ii. Whether the Honourable trial Court was right to hold that Appellants’ Suit No. GHC/43/2017 is initiated outside the time limit for filing same and is therefore statute barred.
iii. Whether or not the Honourable trial Court failed to consider and rule on the Appellants’ contention that the Notice of Preliminary Objection of the 1st and 2nd Respondents is incompetent;
iv. Whether or not the Honourable trial Court was right to have, in its ruling, reached a conclusion that the Appellants’ Counsel indulged in Professional Misconduct, sharp practice and mischief.
The issues as formulated by the 1st and 2nd respondents are not tied to any grounds of appeal and the Court is estopped from speculating as to which issue arose from which ground of appeal. I shall therefore discountenance the issues formulated by the learned counsel for the 1st and 2nd respondents and instead adopt the ones donated by the appellants in determining this appeal and they are so adopted.
ISSUE 1 (ONE)
Whether or not the learned trial Judge was right to have rely (sic) solely on Exhibits EZA 1 and EZA 2 to hold that the suit of the appellants as presently constituted in suit No. GHC/43/2017 is an abuse of Court process and it is initiated outside the time limit for filing same and is therefore statute barred.
Appellants submit that the Suit No. GHC/43/2010 is not an abuse of Court processes and is not caught up by the Limitation Laws of Benue State. He contended that the learned trial Judge was in error when he held that Suit No. GHC/43/2017 is an abuse of Court process and it is statute barred. That the trial Judge in arriving at this erroneous conclusion relied solely on Exhibit EZA 1 which is Suit No. GHC/50/2013. That the learned trial Judge ignored the writ of summons and statement of claim of the appellants in Suit No. GHC/43/2017 which was the only suit pending on the cause list between the parties and dwelt wholly on Exhibit EZA 1, to reach an unjust conclusion that GHC/43/2017 is an abuse of Court process and statute barred.
Learned counsel for the appellants went further to canvass that it is untenable in law for the learned trial Judge to be alarmed and resort to the use of derogatory words against the plaintiffs and their counsel simply because the suit was withdrawn by them upon filing of the notice of preliminary objection. The decision of the plaintiffs and their counsel to withdraw their suit at that stage and re-file a fresh suit subsequently is permissible in law and by the rules of the Court and therefore does no warrant vituperations attacks from the learned trial Judge. The appellants did not give any reason why they were withdrawing the suit at that stage and no law compels them to give reasons. He submitted that the learned trial Judge like Christopher Columbus embarked on a voyage of discovery to make his unsubstantiated findings. Counsel urged on us to hold that the holding by the learned trial Judge that suit No. GHC/43/2017 is an abuse of Court process in the face of Exhibit EZA 1, is wrong in law.
The learned counsel for the appellants in further submission stated that there are exceptions to the defence of limitation law, particularly as it relates to land. It is the law that lands covered by customary title are not susceptible to limitation law, also where there is fraud, limitation law will not apply, continuing trespass is also not affected by limitation law. (See paragraphs 39 sub-paragraphs (1-11) of the records of appeal), and the facts that the respondents are in continuous trespass on their land in dispute. The facts of fraud raised by the appellants were not denied and therefore deemed admitted. See Ayorinde vs. Sogunro (2012) 11 NWLR Pt. 1312, pg. 460 at 501, paras. E-G. See also Section 33 (1) of the Limitation Laws of Benue State, 2004; and Adekayaoja vs. Fakeye (2012) 43 WRN pg. 111 at 123, lines 40 – 45.
Appellants contended that the 1st and 2nd respondents did not file any defence to the suit before raising the defence of limitation law, talk less of evidence upon which the Court could base their objection. See also Inakoju vs. Adeleke (2007) FWLR Pt. 353, pg. 1, 20. We are urged to hold that Suit No. GHC/43/2017 is not caught up by statute of limitation as erroneously held by the learned trial Judge.
On the part of the 1st and 2ndrespondents, they submit and argue that considering the appellants’ Suit No. GHC/50/2013 vis-à-vis 3rd and 4th respondents’ Notice of Preliminary Objection registered as Motion No. GHC/347M/2015, the lower Court was right to hold that appellants’ Suit No. GHC/43/2017 is an abuse of Court Processes. 1st and 2nd respondents’ canvass that while it is true that a plaintiff can file a fresh suit and cure the defects noticed in the first suit, the liberty is not extended to mischievously setting out to mislead the Court by altering the date of accrual of the cause of action so as to render the action maintainable by all means as done herein by the appellants. The suit is simply statute barred and thus beyond remedy.
The 1st and 2nd respondents further argued that Suit No. GHC/50/2013 and suit No. MHC/43/2017 filed before the lower Court at different intervals, both seek to achieve the same purpose. With Suit No. GHC/50/2013 being caught up with statute of limitation and was accordingly withdrawn by the appellants upon receipt of 3rd and 4th respondents’ Notice of Preliminary Objection with Motion No. GHC/347/2015, the appellants craftily and radically altered the years when the cause of action arose, in Suit No. GHC/43/2017. That the withdrawal of Suit No. GHC/50/2013 was highly suspect, thus justifying the lower Court’s circumspection in keeping with the demands of fair hearing provided in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. They urged on us to discountenance the submission of the appellants as contained in paragraphs 4.07 and 4.08 of the appellants’ brief for they are legally watery and bony (without legal meat). See Central Bank of Nigeria vs. Saidu H. Ahmed (2001) 5 SC (Pt. 11) at page 146. That appellants have grossly interfered with the administration of justice, to the irritation and annoyance of the 1st and 2nd respondents by radically altering the years as contained in suit Nos. GHC/50/2013and suit No. GHC/43/2017.
RESOLUTION OF ISSUE 1 (ONE)
Part of the findings of the learned trial Judge reads as follows:
“I have examined suits (sic) No. GHC/50/2013 and suit No. GHC/43/2017 field (sic) by the plaintiffs/respondents at different intervals both suits seek to achieve the same purpose.
It seems to me that it was the filing of preliminary objection on the ground of statute barred that the plaintiff/respondent surreptitiously, applied to withdraw Suit No. GHC/50/2013 and same was struck out. The plaintiff/respondent waited for the mischief to calm and flagged back the same action seeking the same reliefs in the same High Court within Benue State. This conduct smacks not only of abuse of Court process but falls within the ambit of professional misconduct. This is nothing less than sharp practice.
It is on this ground that I wholly agree with learned counsel to the 1st and 2nd defendants/applicants that what the plaintiffs/respondents seek to achieve in the present suit is an abuse of Court process issue two is resolved in favour of the applicants/defendants…”
The learned trial Judge went further to rule thus:
“In Exhibit EZA 1 which was surreptiously (sic) withdrawn, paragraphs 13, 14, 15, 16 and 17 all indicated that the cause of action arose over ten years earlier before the plaintiffs suddenly woke from slumber to initiate this case. The cause of action arose either in 1980 or 1997. (See pages 163 – 164 of the record of appeal).”
Suit No. GHC/50/2013 which is Exhibit EZA 1 was struck out by the lower Court upon an application by the appellants to withdraw same. GHC/347/2017(Exhibit EZA 2) which was filed 3rd December, 2015 by the 3rd and 4th defendants/respondents, was the application that prompted the withdrawal and striking out of GHC/50/2013. While EZA 1 which was struck out was filed 4th June, 2013, Suit No. GHC/43/2017 was filed subsequently by the plaintiffs on 24th November, 2016. (See pages 1 – 17 of the record of appeal). This is to say that GHC/43/2017 was filed about 4 (four) years after EZA 1 ceased to exist by virtue of its being withdrawn and struck out. Now, aside from the drawn length of time that it took the plaintiffs to go back and institute GHC/43/2017, I make quick to state that there was no expressed condition prohibiting the plaintiffs from filing a fresh action after GHC/50/2013 was struck out. If waiting 4 (four) whole years before filing GHC/43/2017 even on similar or same reliefs as the already struck out GHC/50/2013, is what the learned lower Court viewed as having waited for the plaintiffs’ mischief to calm down, then both the said plaintiffs and the learned trial Court must obviously share in the patience of Job of the Holy Bible. Indeed, there is nothing in law stopping the plaintiffs from going back the very next day after GHC/50/2013 was struck out to institute a fresh action based on same reliefs as the former GHC/50/2013. Allowing 4 (four) whole years to elapse before coming back with Suit No. GHC/43/2017 whether on the same reliefs as GHC/50/2013 or not, does not in any way offend the conduct of the profession that I know, neither does it smack of sharp practice as erroneously held by the learned trial Judge. It is without doubt a blatant fallacy and a grave misconception of law for the learned trial Judge to hold that:
“… what was struck out cannot for any reasonable ground be resuscitated, the suit is bad on arrival.”
It is a reasonable ground for resuscitation or even to file a fresh suit, where the suit was not heard on the merit or where hearing has not even commenced at all before it was withdrawn and struck out. There is a difference between a suit struck out and a matter dismissed on the merit. See In Re: Apeh & Ors. (2017)LPELR-42035(SC) where the apex Court held thus:
“I observe that the motion, though treated elaborately, was only STRUCK out and not DISMISSED. Thus, as the said motion was not dismissed by this Court, I find myself in agreement with the submission of learned counsel for the applicants in his reply brief that the applicants are at liberty to bring the application over and over again. Unfortunately, the law has not set any time limit for presentation or representation of a process ordinarily struck out. For the purpose of a reminder, I think I should re-state the well settled principle of the law and permanent feature of the practice of the Courts that when an action is struck out, it is still alive and could be resuscitated by the plaintiff/appellant. It is not so when a matter is dismissed. The matter comes to a final bus-stop and the particular claim or relief suffers the vicissitude of death and it can hardly be revived. Thus, where a suit/case/application/appeal has been considered on its merit to finality and found to be worthless, it is subject to a dismissal order. Equally, where a matter is dismissed on ground of abuse of Court process, it is subject to be dismissed and it cannot be re-filed or restored in another Court or by the Court. An order of dismissal, ordinarily, means disposing of a matter or case on the merit of the issues heard and determined finally as between the parties before the Court. The order is final and subject only to an appeal and cannot, in the absence of statutory provisions, be re-opened or reviewed by the Court that made it. See Okeke vs. Modu (1969) (470) 121 at 127. From the meaning of and effect of the two distinct orders, it is clear that where a case or matter is incompetent in law, the defect goes to the jurisdiction of the Court before which it was brought and renders it incompetent to adjudicate over it. The incompetence of the case robs the Court of the requisite competence/jurisdiction to entertain the case and without jurisdiction, the basis for the exercise of judicial authority and power to conduct proceedings in the case by way of determination on the merit, would be absent. In such situations, the only order that can properly be made is one striking out the case for want of jurisdiction. See Bronik Motors Ltd. vs. Wema Bank Ltd. (1983) 6 SC, 158; Ajomale vs. Yarduat (1991) 5 NWLR (191).”
See also the decision of this Court in Barr. Samuel Ulegede vs. Tyona Mbapuun (2021) LPELR- 54205 and O.B.M.C. Limited vs. MBAS Ltd. (2005) All FWLR Pt. 261, pg. 216, where the Supreme Court also held that:
“It is not in all cases that even dismissal would amount to final order of Court to be set aside only on appeal. The affected party has the right to apply that the matter be re-listed or to file a fresh matter.”
A suit withdrawn and struck out by the Court does not constitute an abuse of Court process to a subsequent process filed as the right of the plaintiffs to file the same suit was not extinguished. See Order 23 Rule 1 (1), (2) and (4) which provide as follows:
23 1. (1) The plaintiff may at any time before receipt of the defence or after the receipt thereof, before taking any other proceeding in the action, by notice in writing duly filed and served wholly discontinue his claim against all or any of the defendants or withdraw any part or parts of his claim. He shall thereupon pay such defendant’s costs of the action, or if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2) A discontinuance or withdrawal as the case may be, shall not be a defence to any subsequent claim.
(4) Where proceedings have been stayed or struck out upon a plaintiff’s withdrawal or discontinuance under this order no subsequent claim shall be filed by him on the same or substantially the same facts until the terms imposed on him by the Judge have been fully complied with.
Since no terms or conditions were imposed on the plaintiffs/appellants at the time of withdrawal of their Suit No. GHC/50/2013, there is obviously no reason estopping them from prosecuting Suit No. GHC/43/2017. As rightly submitted by the learned counsel for the appellants, when a suit is struck out, the plaintiff has the options to bring life back into the suit thereby bringing it back to the hearing cause list or to file a fresh action.
Where he opts to file a fresh action, nothing stops him from curing the defect complained of, or which he noticed in the suit that was struck out. See the case of Shanu vs. Afribank Nig. Plc. (2000) FWLR, Pt. 23, pg. 1221. The holding of the learned trial Judge to the effect that he had examined Suit No. GHC/50/2013 and Suit No. GHC/43/2017 filed at different intervals by the plaintiffs/appellants and which suits seek to achieve the same purpose, cannot be grounds for allowing the notice of preliminary objection.
It is the position of the law that a matter withdrawn and struck out upon the application of a party, cannot be utilized by the other party or even by the Court. See the decision of this Court per Uwa, JCA., in N.U.C. vs. Alli (2014) 3 NWLR Pt. 1393, pg. 33, 78, paras. B-D, where it was held as follows:
“A Court process filed by a party which has been withdrawn and struck out on the application of the party cannot be utilized by the other party, the Court or anybody else. A reference to the content of the process is wrong and all argument relying on same should be discountenanced. In the instant case, a notice of preliminary objection filed by the appellant was withdrawn by the appellant and was struck out by the trial Court. The process, having been withdrawn and struck out on the application of the appellant, ought not to have been utilized by the respondents, the Court or anybody else.”
The holding by the learned trial Judge that Suit No. GHC/43/2017 is an abuse of Court process in the face of Exhibit EZA 1 i.e. Suit No. GHC/50/2013 which was earlier withdrawn and struck out is wrong in law cannot be allowed to stand. The finding also by the learned trial Judge that it is the filing of the preliminary objection that caused the appellants to “surreptitiously” withdraw Suit No. GHC/50/2013 is not borne out of the record as there was nothing surreptitious about the process of withdrawal of the said suit. The appellants made their application to withdraw the suit in the open Court and without objection from the respondents, the suit was struck out.
On the whole, the trial Court’s aspersion on counsel and the plaintiffs is rather uncharitable and uncalled for.
Now, as to whether the Suit No. GHC/43/2017 is statute barred, calls for the Court to advert its mind to the writ of summons and the statement of claim. In the authority of Ibrahim vs. Lawal (2015) 17 NWLR Pt. 1489, pg. 490 at 522, paras. F-H., the ultimate Court of this land, per our revered Okoro, JSC., while determining whether a matter before the Court is statute barred enjoined the Court:
“…to look at the writ of summons and the statement of claim to see 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. This in my view can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”
I have taken time to go through the plaintiffs’ statement of claim in their subsisting Suit No. GHC/43/2017 and I have found as a fact that the same was instituted at the lower Court on 24th November, 2016. The claim is over a parcel of land referred to as Imojime family land and is part of a vast parcel of land presently known as AddingiIng yoroko village which clearly places it on a rural setting. It is also prima facie evident on the face of the statement of claim that the 1st and 2nd defendants have been in continuous trespass on the land. Furthermore, the plaintiffs pleaded fraud and concealment of same in their statement of claim. Any of the aforementioned circumstances would constitute an exception to the defence of limitation of action.
In Ogunlade vs. Adeleye, cited with approval in the case of Kensal Farms Ltd. vs. Nigercat Constr. Coy. (2013) LPELR-20162(CA), the Supreme Court held as follows:
“In view of the provisions of Section 1(2) of the Limitation Law which excludes an action in respect of the title to land or any interest in land held by customary tenure from the operation of the law and as the interest in the land, subject matter of the action in the trial Customary Court was held under Customary Tenure, it follows that Section 4(4) would not apply to the present case. Consequently therefore, the defendant’s contention to the contrary and upon which he has now based his appeal to this Court must fail. In view of the clear provisions of Section 1(2) of the Limitation Law, the matters clearly contemplated by the said provision are those dealing with interest in land held by customary tenure.” Per Ogunwumiju, JCA (as she then was).
Section 1(2) of the Limitation Law provides:
“Nothing in this law affects actions in respect of title to land or any interest in land held by customary tenure or in respect of any matter which is subject to the jurisdiction of a Customary Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.”
See further the case of Ayorinde vs. Sogunro (2012) 11 NWLR Pt. 1312, pg. 460 at 501, paras. E-G, where the Apex Court, per our noble Peter-Odili, JSC., held thus:
“Moreover, what is at play is a claim founded on customary land tenure to which limitation law does not apply.”
This Court in the case of Adekayaoja vs. Fakeye (2012) 43 WRN pg. 111 at 123, lines 40-45, cited with approval the case of Dayo Adeleye Mining and Construction Coy. Ltd. vs. Jakura Marble Industries Ltd. (2007) All FWLR Pt. 390, pg. 1531 at 1549, paras. B-D, wherein it was held thus: “Time begins to run when trespass is committed or possession is lost…. where there is fraudulent concealment upon the discovery of fraud. In the instant case, time began to run against the appellant from 31st May, 1990 when it wrote a letter complaining about the trespass of the trespasser.”
In the instant case, the plaintiffs through their lawyer wrote a letter of complaint dated 21st May, 2013 against the trespassers and subsequently took steps to institute the subsisting Suit No. GHC/43/2017. See particularly paragraphs 17 – 30 of the plaintiffs’ statement of claim. Regarding continuous trespass, the Supreme Court in the authority of Oriori vs. Osain (2012) 16 NWLR Pt. 1327, pg. 560 at 580, paras. B-C., per Ngwuta, JSC., (of blessed memory) enjoined as follows:
“This means that initial trespass was committed by the appellants in 1971 but continued to the present time that is 29/2/84 when the action was instituted. This is a case of continuing trespass and according to the claim; the appellants were on the land on the day the action was commenced. In my view, the action given rise to this appeal is not statute barred…”
Again, contrary to the provisions of Order 22 Rule 2 of the Benue State High Court (Civil Procedure) Rules, 2007, any point of law must be raised in the pleadings of the party wishing to avail himself of such defence. The 1st and 2nd defendants/respondents failed to comply with the provision as they did not file statement of defence to Suit No. GHC/43/2017. See Inakoju vs. Adeleke (2007) All FWLR Pt. 353, pg. 1 at 202.
Relying on all the foregoing authorities the Suit No. GHC/43/2017 is not in any way caught up with the statute of limitation as erroneously held by the learned trial Judge in his judgment. Issue 1 (one) which reads: whether or not the learned trial Judge was right to have rely (sic) solely on Exhibits EZA 1 and EZA 2 to hold that the suit of the appellants as presently constituted in Suit No. GHC/43/2017 is an abuse of Court process and it is initiated outside the time limit for filing same and is therefore statute barred, is thus answered in the negative. Issue 1 (one) is resolved in favour of the appellants and against the respondents.
ISSUE 2 (TWO)
Whether or not the learned trial Judge was right when he neglected to consider and rule on the contention of the appellants qua counsel that the notice of preliminary objection of the 1st and 2nd respondents is incompetent.
Learned counsel for the appellants submit that the lower Court failed to consider and rule on the issue they raised in their written address in support of their counter-affidavit to the effect that the Notice of Preliminary Objection filed by the 1st and 2nd respondents was defective. Appellants argued that the 1st and 2nd respondents failed to file a memorandum of appearance nor defence before raising objection to the competency of the suit.
On the converse, learned counsel for the 1st and 2nd respondents submitted that the lower Court was right to have not wasted quality judicial time and energy to consider and rule on the contention of the appellants that the Notice of the Preliminary Objection of the 1st and 2nd respondents is incompetent. That this is because the gravamen of the appellants’ contention is that the 1st and 2nd respondents did not file a Memorandum of Appearance before filing the Notice of Preliminary Objection, which issue the lower Court had earlier resolved on 27th March, 2018 while ruling on the appellants’ Motion No. GHC/397M/2017, filed on 23/05/2017 as shown on page 159 of the record of appeal. The appellants did not appeal against the said ruling. They further submitted that the reason for delay in filing their Memorandum of Appearance and Defence was satisfactorily explained in Motion No. GHC/442M/2018 particularly in the accompanying affidavit. The Motion was moved and granted 16th July, 2018 and there was no appeal against same.
RESOLUTION OF ISSUE 2 (TWO)
The grouse of the appellants under this issue is that the lower Court failed to consider and rule on what appears to be a preliminary issue touching on the Notice of Preliminary Objection filed by the 1st and 2nd respondents. The defect is traced to the failure of the 1st and 2nd respondents to file a memorandum of appearance before stepping in to raise preliminary objection to the competency of the suit.
By the provisions of Order 9 Rule 1 of the Benue State High Court Civil (Procedure) Rules, 2007:
“A defendant served with an originating process shall, within the period prescribed in the process for appearance, file in the registry the original and copy of a duly completed and signed memorandum of appearance…..”
Much as the 1st and 2nd respondents failed to file a Memorandum of Appearance as demanded of them, but it is on record that the default was dealt with by the lower Court on 27th March, 2018 while ruling on the appellants’ Motion No. GHC/397M/2017 filed 23rd May, 2017. The said ruling reads as follows:
“It is the submission of the applicant’s counsel that the 1st and 2nd respondents cannot be heard, they having not complied with the provisions of Order 9 Rule 1 which requires the filing of memorandum of appearance. Whereas this is a sound submission, I am aware of Order 5 Rule 2 of the Rules of this Court. These provisions seek to save acts of non-compliance with the rules of this Court which do not touch jurisdiction of this Court, the rule provides that this Court can deem such non-compliance as an irregularity in order for the proceedings not to be unduly delayed. It is on that ground that I find no strong reasons to uphold the submission by applicant’s counsel that the counter-affidavit is incompetent.” (See page 159 of the record of appeal).
Having forgiven the sins of omission of the 1st and 2nd respondents as shown in the above ruling, it will amount to causing the 1st and 2nd respondents double jeopardy if the default is whipped up again. Above all, there is nothing on record to signify that the ruling has been appealed against. It is therefore wrong to suggest that the learned trial Judge neglected to consider and rule on the contention of the appellants’ qua counsel that the Notice of Preliminary Objection of the 1st and 2nd respondents is incompetent. The resultant effect is that this issue 2 (two) is resolved in favour of the appellants and against the respondents.
ISSUE 3 (THREE)
Whether or not the trial Judge was right to have reached a conclusion that the appellant’s counsel indulged in professional misconduct, sharp practice and mischief in his ruling.
Without much ado and given my earlier findings, it is clear that those remarks of the lower Court against the learned counsel for the appellant is condemnable, more so as they are baseless and unsubstantiated. It was within legality for the learned counsel to withdraw Suit No. GHC/50/13 and re-file Suit No. GHC/43/2017 as he did in the open Court without any objection. I fully align myself with the submission of the learned counsel for the appellants that the High Court of Benue State, is a hallowed temple of Justice that expects the highest level of decorum and decency both in the conduct, choice and the use of words from the Bar as well as Bench and even litigants; that the text of language used by the learned trial Judge against the learned counsel for the appellants in his ruling delivered on 18th October, 2018 in the open Court, is unjustified and fall short of the highest standard of decorum expected from worshippers in the hallowed temple of justice. The learned trial Judge, indeed lost restraint and threw caution to the wind. In the circumstances, I can only appeal to counsel for the appellants to let sleeping dog lie.
At the end of the day the question whether or not the trial Judge was right to have reached a conclusion that the appellant’s counsel indulged in professional misconduct, sharp practice and mischief, is answered in the negative. This is to say that he was wrong to have reached such conclusion. Issue 3 (three) is hereby resolved in favour of the appellants and against the respondents.
With the resolution of the 3 (three) issues in favour of the appellants and against the respondents, it follows that the appeal is imbued with merit. It therefore succeeds. In the vein, the judgment of the High Court of Benue State, sitting at Gboko in Suit No. GHC/43/2017 delivered 8th October, 2018 by Hon. Justice P. T. Kwahar, is hereby set aside.
In the event of this judgment, it is further ordered that Suit No. GHC/43/2017 shall be remitted back to the lower Court for hearing and determination by another Judge other than Hon. Justice P. T. Kwahar, J.
Costs assessed and fixed at N80,000.00 (Eighty Thousand Naira) is awarded in favour of the appellants and against the 1st and 2nd respondents only.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading in draft, the lead judgment just delivered by my learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA, and I am in complete agreement with his reasoning and conclusions on all the issues distilled for determination.
With the resolution of the three (3) issues in favour of the Appellants and against the Respondents, it follows that the appeal is imbued with merit. It therefore succeeds.
I also abide by the order as to costs.
MUSLIM SULE HASSAN, J.C.A.: I read a draft copy of the leading judgment by my learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA, just delivered and I agree with his Lordship that this appeal is meritorious and is hereby allowed.
Limitation of action is the principle of law requiring a plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a Court of law within the time limited by law, otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. See KASIM v. NNPC (2013) 10 NWLR (Pt. 1361) 46 at 67. A statutory period after which a lawsuit cannot be brought because the period laid down by the Limitation Act or Law has lapsed. Limitation of action is determined by looking at the Writ of Summons or the Statement of Claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the Writ of Summons was filed. A cause of action arises the moment a wrong is done to the plaintiff by the defendant. And dispute report basis by the defendant. And the wrong which is the basis of a dispute represents a factual situation which entitles the plaintiff to seek a remedy in a Court of law by way of enforcement. See ADEKOYA v. FEDERAL HOUSING AUTHORITY (2008) 4 SC 167 at 182. After a period set by the law for commencing an action, a Plaintiff, with a compelling cause of action cannot enforce same by judicial process because he has sat over his right for all times as the time stipulated by law for initiating such action has become extinct. See NASIR v. CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) 1-2 SC 65 at 92.
The Statute of Limitation will not apply where the person to be affected has been fraudulently denied the opportunity to react to the revocation of his right of occupancy over land. See EXECUTORS OF THE ESTATE OF ABATCHA v. EKE-SPIFF & 3 ORS (2009) 2-3 (Pt. 11) 93 at 118.
In the instant case as rightly observed by my learned brother in the lead judgment at page 19 that there is a prima facie evidence on the face of the statement of claim that the 1st and 2nd defendants have been in continuous trespass on the land, that the plaintiff pleaded fraud and concealment of same in their statement of claim, any of the aforementioned circumstances would constitute an exception to the defence of limitation of action.
In the light of the above and for the more detail explanation given in the lead judgment, I too find that this appeal is meritorious and is hereby allowed. The judgment of the lower Court delivered on the 8th day of October, 2018 is hereby set aside. I abide by the consequential orders made therein.
Appearances:
Robert Hon. Esq. For Appellant(s)
E. Z. Agbakor, Esq., with him, E. O. Ade, Esq. For Respondent(s)
