ISIAK O. MOYOSORE V. THE GOVERNOR OF KWARA STATE & ORS
(2011)LCN/4876(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of November, 2011
CA/IL/M.12/2007
RATIO
JURISDICTION: WHETHER A DEFENDANT HAS A RIGHT TO RAISE ANY ISSUE BORDERING ON THE JURISDICTION OF A COURT TO TRY A CAUSE OR MATTER AT ANYTIME, EVEN ON APPEAL, WITHOUT LET OR HINDRANCE
It has become part of our legal jurisprudence that a Defendant has right to raise any issue bordering on the jurisdiction of a Court to try a cause or matter at anytime, even on appeal, without let or hindrance. PER ITA G. MBABA J.C.A.
JURISDICTION: WHETHER THE DUTY OF THE COURT TO HEAR AND DISPOSE OF ANY SUCH CHALLENGE OF ITS JURISDICTION FIRST BEFORE GOING INTO THE MERIT(S) OF THE SUBSTANTIVE MATTER
It is also our Law that the Court has a duty to hear and dispose of any such challenge of its jurisdiction first before going into the merit(s) of the substantive matter. The logic for this lies in the fact that where a court lacks jurisdiction to hear and entertain a suit, whatever it does in the case will amount to sheer waste of time and a nullity, no matter how well the case must have been conducted. See the case of M.V. Gongola Hope v. Simufit cases Ltd. (2007) All FWLR (Pt.388) 10005 held 9; F.C.M.B. Ltd v. S.A.I.C. LTD. (2007) ALL FWLR (Pt.363) 133, HELD 7, Elorkele v. Nwafor (2008) ALL FWLR (Pt. 431) 1010, held 1. PER ITA G. MBABA J.C.A.
INTERPRETATION OF STATUTE: PURPOSE OF ORDER 26 RULE 2 OF THE HIGH COURT (CIVIL PROCEDURE) RULES
Order 26 Rule 2 of the High Court (Civil Procedure) Rules States; “Any party shall be entitled to raise by his pleading any point of law and point so raised shall be disposed of by the Judge before or at the trial”. That Provision followed rule one of that order which says: “No demurrer shall be allowed” I believe this was meant to check or curtail the usual tendency by the defence to resort to bubby traps and ambushing to abort trial of matters on their merit, by relying on technicalities to deny the claimant the hearing of his case on the merit. And often times, the technical Justice which the defendant secures by aborting the trial on merit becomes a mere temporary relief which only delayed the trial of the substantive matter, and when the technical justice it is set aside, on appeal, the parties go back to square one after spending all the time and resources pursuing shadows. That is why the Law would require such a point of Law, which the defendant has, which is capable of disposing of the case in limine, if raised and sustained, to be pleaded in the statement of defence, and properly raised, thereafter, for the Judge to dispose of, either before the trial or at the trial. Of course, that would give the claimant proper notice of the point of law defence raised, and will also ensure that the case is heard on its merits, as the penchant of the law now is to go for substantial justice and not enthronement of rules of technicalities to abort Justice. See the case Barrister Yusuf Akirikwen & Another v. Peoples Democratic Party (PDP) & 104 Ors (an unreported decision of this Court, Yola Division) in suit No. CA/YL/EPT/TR/R/4/2011, delivered on 6/9/11, where it was held on pages 44-45 as follows: “It must be stated that the rules and procedures of Court are infact, meant to serve the interest of Justice as hand maids of the Law to help the parties to get the Justice enshrined in the substantive law. The rules cannot therefore be made to operate as log in the wheels of Justice to be used to deny a litigant the opportunity to be heard on the merit, over the petition he has duly brought to the Court… of course, technical Justice may bring temporary relief, which only gives a cynical sense of fulfillment/satisfaction. But it surely leaves behind some open wound in the conscience and a slur on the Court or Tribunal, such that both the giver and the beneficiary of the absurdity would stand condemned for rape of Justice (Per Mbaba J.C.A.) PER ITA G. MBABA J.C.A.
SUBSTANTIAL JUSTICE: DUTY OF THE COURT TO SUBSTANTIAL JUSTICE
The Courts have always been enjoined to go for substantial Justice. See the case of PDP V. INEC (2009) 8 NWLR (Pt.1143) 297: Adams v. Umar (2009) 5 NWLR (PT. 1133) 41 at 34. PER ITA G. MBABA J.C.A.
DEMURRER: MEANING OF THE WORD “DEMURRER”
“Demurrer” originated from the latin word demorari or the French demurrer meaning to wait or stay proceedings by not filing a statement of defence but relying on the statement of claim that it disclosed insufficient material or was self-defeating to entitle the plaintiff or claimant to the reliefs sought in the suit and urging the court to dismiss or strike out the suit in limine on the insufficiency of the statement of claim in favour of the defendant without calling on the defendant to join issues with the claimant by filing a statement of defence and offering evidence. (See Black’s Law Dictionary (Eighth Edition) at page 465). PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
DEMURRER APPLICATION: ATTRIBUTES OF A DEMURRER APPLICATION
The attributes of a demurrer application are as follows: (1) Application by way of demurrer must be made before issues are joined in the suit, after filing the statement of claim and before filing the statement of defence. (2) The defendant shall base his application for a dismissal of the suit on the assumption that all the facts as alleged by the plaintiff in his statement of claim are true, admitted and established. (3) The applicant is not under the law to contest whether directly or indirectly, the truth or otherwise of such facts pleaded in the statement, neither is he to tender evidence. (4) It is invoked where the applicant is merely relying on a crucial point of the law like locus standi, limitation of action, lack of cause of action etc. in that only the statement of claim will be looked at to decide whether or not the demurrer succeeds. Numerous decisions of court were decided based on the foregoing factors like Brawal Shipping (Nig) Ltd v. Onwadike Co. Ltd (2000) 6 WRN 82; (2000) FWLR (pt. 23) page 1254; (2000) 6 S.C (pt.11) page 133; (2000) 11 NWLR (pt. 679) 387, Williams v. Williams (1995) 2 NWLR (pt.375) page 1 @ page 17, Fadase v. A-G., Oyo State (1982) 2 S.C 1, Mofas Shipping Line (Nig) Ltd v. NMA (2000) FWLR (pt. 23) 1153, Global Transport Oceanico S. A. v. Free Enterprises (Nig) Ltd. (2001) 12 WRN 136; (2001) 2 S.C 154; (2001) 5 NWLR (pt.706) 426; (2001) 2 SCNJ 224; (2001) FWLR (pt.40) page 1706 Ege Shipping & Trading Industry Inco v. Tigris International Corporation (1999) 14 NWLR (pt.63 7) page 70; (1999) 12 SCNJ 1. PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
Between
ISIAK O. MOYOSORE Appellant(s)
AND
THE GOVERNOR OF KWARA STATE & ORS Respondent(s)
ITA G. MBABA J.C.A. (Delivering the leading Judgment): This is an appeal against the decision of Hon Justice M.O. Adewara of Kwara State High court in suit No. KWS/68/2006, arising from an interlocutory application (a preliminary objection) raised by the Defendants on the competence of the suit.
The Ruling of the lower Court was delivered on 31/7/06. The main suit before the lower Court, as per the writ of summons dated 15/5/2006, was for:
(i) A declaration that the claimant is entitled to the right of occupancy in respect of all that piece and parcel of land, situate and lying at plot 22, Abdul Road, GRA Ilorin, Kwara State, covered by Certificate of Occupancy No. KW503, dated 6th June 1991 and more particularly delineated and described in survey Number L.P. 12 dated 3rd February, 1971.
(ii) A declaration that the purported revocation of the claimant’s right of occupancy in the said land is unconstitutional, null and void, and of no effect whatsoever.
(iii) An order setting aside the purported revocation of the claimant’s right of occupancy in respect of the land.
(iv) An order setting aside the purported rights of Occupancy granted to the 4th-6th defendants in respect of the said land.
(v) An order of perpetual injunction restraining the defendants, their privies, agents servants and / or any other persons claiming through or for them from trespassing on the said land.
(vi) N500, 000 (Five Hundred thousand Naira) as general damages for diverse acts of trespass committed by the defendants in respect of the said land.
(vii) The sum of N2, 500,000 (Two million, Five Hundred Thousand Naira) being damages suffered by the claimant arising form (sic) the Defendants unlawful conduct.
(viii) Cost of this action.” (See Pages 65 to 66 of the record of proceedings).
The Defendants did not file any defence to the action. But the 1st to 3rd as well as 4th and 6th Defendants (now Respondents) had filed motions challenging the competence of the suit and sought an order for its dismissal for want of jurisdiction, on the following grounds:
“(a) The claimant’s suit is statute barred as it was brought three months next after the act of revocation of this purported land by the Governor of Kwara State
(b) The claimant has failed to fulfill the condition precedent to validly file this suit
(c) The claimant has no legal interest worth protection by the suit and there is no reasonable cause of action.
(d) The suit is not properly constituted”
(See page 102 of the Record, and Pages 124 and 125 in respect of a similar application by the 4th and 6th Defendants).
After hearing the two motions, in a considered ruling, the learned trial judge up held the objection and said:
“I hold on the whole that the case is statue barred and can therefore not be entertained against 1st, 2nd and 3rd Defendants… I dismiss the case against them, while it is struck out against the 4th and 6th Defendants.”
See pages 228 and 229 of the Record.
Appellant therefore appealed against the whole decision of the learned trial Judge, as per his notice and grounds of Appeal dated 27/10/2006 whereof Appellant identified 5 grounds appeal, as follows: (pages 230 to 234 of the proceedings)
GROUND OF APPEAL
(1)The learned trial Judge erred in law when he held that the applications of the defendants are competent, not premature and not caught by the rule against demurer.
Particulars:
(a) Order 26 Rules 1 and 2 of the Kwara State (Civil Procedure) Rules 2005 abolished demurer and substitute there for proceedings in lieu of demurer
(b)The ground of objection relied upon in the applications of the Defendants depend on facts and ought to have been raised only after filing their statements of defence.
(c) No statement of defence has been filed in this case
(d) In the cases of Bambe v. Aderinola (1977) NSCC 1 and NDIC V. CBN (220) 7 NWLR (pt 766) 272 relied upon by the learned trial judge the issue of lack of jurisdiction was apparent on the face of the writ of summons and statement of claim and was determined solely on those documents.
(e) The issues raised in the applications of the Defendants in this case could not and was in fact not determined based on the Claimant’s writ of summons and statement of claim.
2. The learned trial judge misdirected himself when he held that:
“Since the complaint of the Plaintiff is against the alleged revocation of statutory right of occupancy No. KW 7566 dated 6th June 1991 in respect of a piece of land situate and lying at plot No. 22 Abdul Rasak Road GRA Ilorin, there is no doubt that the cause of action of the Claimant arose on the 17th June, 2005 when his interest in the property was taken away…. Looking at the Claimant’s writ of summons however, one sees clearly that this suit was filed on 12th May, 2005 about eleven (11) months after the alleged revocation of his interest or title in respect of the land in dispute”
Particulars:
(a) It settled that when limitation of action is raised in limine, the time of accrual of cause of action must not be based on the statement of defence or any other process filed by the Defendant but must be strictly determined based on the writ and statement of claim.
(b) The learned trial judge came to the conclusion that the cause of action in this case accrued on the 17th June, 2005 solely based on the facts contained in the affidavits of the Defendants in support of the applications.
(c) The conclusion of the learned trial judge is not bourn (sic) out by the claimant’s writ of summons and statement of claim.
3. The learned trial judge erred in law when held that the Public Officers protection Law applies to the Defendants in this case.
Particulars
(a) It is settled law that the Public Officers’ Protection Law does not cover a public officer who has stepped out of the bound of public duty or is guilty of bad faith in the performance of his duty.
(b) The claimant averred in his statement of claim that the purported revocation of his right of occupancy was carried out by the Defendants for their personal gain and was done in bad faith.
(c) The averments in the statement of claim has not been challenged by any Statement of defence and at this stage deemed admitted by the Defendants.
(4) The learned trial judge misdirected himself when he held that the Claimant’ right of occupancy was revoked on the 17th June 2005 and that his cause of action arose on that date.
Particulars
(a) It is settled law that revocation takes effect and a cause of action arises when notice of the revocation is received by the holder of a right of occupancy.
(b) Service of notice of revocation must be strictly proved by the revoking authority.
(c) Publication in newspaper is not one of the means of service of notice of revocation under the Land Use Act.
(d) Exhibit MOJ2 which is a purported delivery receipt does not show the date the letter of revocation was sent or the person who received it.
(e) Averment by the claimant in his statement of claim that he was never served with a notice of revocation and that he was set on enquiry when his possession was challenge sometime in March 2006, has not been challenged by any statement of defence and is deemed admitted by the Defendants.
(5) The learned trial judge erred in law when he held that the Claimant’s Cause of action against the 4th and 6th Defendants no longer exists.
Particulars
(a) It is settled that a statute of limitation like the Public Officers Protection Law does not extinguish cause of action but merely renders it unenforceable against particular persons.
(b) It is the finding of the learned trial judge himself that the action is not statute barred as against the 4th and 6th Defendants.
(c) A finding that the action is statute barred against the 1st – 3rd Defendants, even if correct (and it is not) merely renders the Claimant’s cause of action unenforceable against 1st – 3rd Defendants but nevertheless subsists and remains enforceable against any other person including the 4th and 6th Defendants in this case.”
The Appeal was however entered as CA/IL/12/2007 but on 22/2/2007 Appellant filed a motion seeking interlocutory injunction to restrain the Defendants from selling or otherwise disposing of or entering into and/or engaging in further acts of trespass on the land. The suit number of that interlocutory application was No. CA/IL/M.12/2007. From then on, the Appellant and the respondents, erroneously, adopted and continued to use the said motion number (CA/IL/M.12/2007), to file their Briefs in this Appeal, with even some variant (CA/IL/M.12/2007), as if the original Appeal number (CA/IL/12/2007) had been changed. This error only came to light after the hearing of the Appeal, and I belief, it can be treated as a harmless error that cannot affect the substance of the Appeal, only that the original Appeal number is now subsumed in Appeal No. CA/IL/M.12/2007. This judgment is therefore our decision in the appeal by the Appellant against the interlocutory Ruling of the lower court in the suit No. KWS/68/2006.
Appellant filed his Brief of argument on 5/10/2010 and on being served with the Respondents briefs; he filed a Reply Brief to the 4th and 6th Respondent’s brief on 4/3/11. He distilled five Issues for determination, as follows:
(1) Whether the learned trial Judge was right when he held that the applications of the Respondent (sic) are competent, not premature and not caught by the Rule against demurrer (Ground 1).
(2)Whether the learned trial judge was right when he held that the appellant’s action is statute barred (Ground 2)
(3) Whether the learned trial judge was right when he held that the public Officers Protection law applied to the 1st – 3rd Respondents in this case. (Ground 3)
(4) Whether the learned trial judge was right when he held that the appellant’s right of occupancy was revoked on 17th June 2005 and that his cause of a action arose on that date. (Ground 4)
(5) Whether the learned trial judge was right when he held that the appellant’s cause of action against the 4th and 6th Defendants no longer exist (sic) (Ground 5)”
The 1st to 3rd Respondents, on their port, filed their brief of argument on 4/11/2010 and distilled three (3) issues for determination as follows:
“(1) Whether or not the learned trial judge was right to have held that 1st to 3rd Respondents’ Application was competent, considering the provisions of Order 26, Rules 1 and 2 of the Kwara State High Court (Civil Procedure) Rules 2005 which abolished demurrer? Ground 1 of the Appeal.
(2) Whether the Appellant’s suit is not statute barred, having been instituted three months next after the act of revocation of his certificate of occupancy by the 1st Respondent? (Grounds 2, 3 and 5 of the Appeal)
(3) Whether the learned trial Judge was right to have held that the Appellant’s right of occupancy was validly revoked on 17th June 2005, having breached the terms and conditions contained in the said certificate of occupancy. (Ground 4).”
The 4th and 6th Respondents filled their Brief of Argument on 9/11/10 and therein raised a preliminary objection against the Appeal; that it is incompetent on the grounds that:
“(i) Argument canvassed on issue No.3 based on ground 3 raised new issues in this appeal without obtaining leave thereof.
(ii) Section 28 (i) of the land use Act argued in issue No.3 is new and no leave of this Honorable court was obtained before arguing the issue.
(iii) Issues 1, 3, 4, 5 formulated were mere repetitions of the grounds 1, 3, 4, and 5 of the grounds of Appeal and are liable to be struck out.
(iv) Ground 5 of the appeal on which issue 5 was formulated but not argued is deemed abandoned and should be struck out.
In the alternative the 4th and 6th Respondents also formulated three issues for determination of the Appeal as follows:
“(1) Whether the learned trial judge was not right to have allowed the Respondents’ application challenging jurisdiction of the court when no statement of defence was filed (Ground 1)
(1) Whether the Appellants’ suit was not statute barred having been filed outside the limitation period of 3 months against the 1st Respondent who is a public officer – Grounds 2 and 3.
(2) Whether the claim of the Appellant is extant in the light of all the facts in this case and whether any cause of action still exists against 4th and 6th Respondents, having dismissed the case against the 1st Respondent – Grounds 4 and 5.”
On his part, the 5th Respondent filed his Brief of Argument on 21/1/2011 and the same was deemed duly filed on 24/1/11 and he formulated 3 issues too for determination, namely
“(1) Whether the learned trial judge was right to have allowed the preliminary objection despite the failure of the Respondent to file statement of defence
(2) Whether the suit of the Appellant was not statute barred having been filed outside the prescribed period of 3 months.
(3) Whether the learned trial judge was right to have held that public officer protection law apply (sic) to the Respondents.”
The Appeal was heard on 10/10/11, when learned counsel on each side adopted their Briefs and urged us, accordingly.
The issues as identified by all the parties are similar, except that the Respondents fused the 5 issues by the Appellant into 3. I think the five issues by the Appellant can be further narrowed into 2, namely:
(1) Was the trial judge right to entertain the preliminary objection and to hold that the case of the Appellant was statute barred by reason of the Public Officers Protection Law, when the Respondents never filed any defence in the case and evidence was never taken to determine the validity of the alleged revocation of his (Appellants) right of occupancy over the land in dispute?- Grounds 1, 2, 3.
(2) Was it proper for the learned trial judge to hold that the Appellant’s right of Occupancy was revoked on 17th June, 2005 and that the cause of action against the 4th and 6th Defendants no longer existed, when evidence was never taken in the case to determine such substantial issues? Grounds 4 and 5.
I believe the issues 1 to 3 by the Appellant are properly located in the issue one formulated above. The same are the issues 1 and 2 by the 1st to 3rd Respondents, 4th and 6th Respondents and the three issues by the 5th Respondent. In the same way, the issue two formulated above takes care of the issues 4 and 5 by the Appellant, as well as the 3rd issue by the 1st to 3rd Respondents and 4th and 6th Respondents.
I shall therefore consider this Appeal on the above two issues formulated by this Court.
Learned Counsel for the 4th and 6th Respondents has raised a preliminary objection in their Brief of Argument on the competence of the Appeal, which has to be taken first, in the circumstance.
It should be noted that the 4th and 6th Respondents merely gave the notice of their objection in their Respondents’ Brief and proceeded to arguing their said objection on the grounds thereof – in the first part of their Brief (pages 3 to 7).
The notice stated as follows:
“TAKE NOTICE that the 4th and 6th Respondents shall contend at the treshold of the hearing of this appeal by way of preliminary objection that the appeal is incompetent and liable to be dismissed.” They then listed the grounds thereof (earlier reproduced in this judgment).
The Appellant had filed a Reply Brief to contend the issues raised by the 4th and 6th Respondents in their said preliminary objection.
Before delving into the arguments canvassed in the preliminary objection, it is necessary to consider whether the 4th and 6th Respondents have complied with the Rules of this court relating to raising of objection to the hearing of Appeal or any part thereof and so whether the preliminary objection raised by the 4th and 6th Respondents in their Brief of argument is competent.
Order 10 Rules 1 and 3 of the Court of Appeal Rules, 2011, states:
“(1) A Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registry within the same time.
(3) If the Respondent fails to comply with this Rule, the court may refuse to entertain the Objection or may adjourn the hearing at the cost of the Respondent or may make such other order as it thinks for.”
(Emphasis mine)
Can it be said that the 4th and 6th Respondents have complied with the above provisions when they incorporated both their notice of preliminary objection and the argument thereof in the Respondent’s Brief? I strongly doubt, as what was filed and paid for by the 4th and 6th Respondent on 9/11/10 was not, NOTICE OF PRELIMINARY OBJECTION but the 4th and 6th RESPONDENTS’ BRIEF OF ARGUMENT”. As it is, the 4th and 6th Respondents cannot prove the filing of “NOTICE of PRELIMINARY OBJECTION” pursuant to Order 10 Rule 1 (reproduced above).
It is normal and usual for any Respondent who intends to raise and rely on a preliminary objection against the hearing of an appeal, or any part thereof, to file a separate Notice of the Objection, and, thereafter, include the argument thereof in his Respondent’s Brief.
In the case of P.D.P. v. Senator Dahiru B. Gassol and Ors (unreported decision of this Court) in Suit No. CA/YL/31/2011, delivered on 13/9/2011, where the Respondent made a similar attempt to give notice of preliminary objection to some issue / ground of appeal, this Court held that that amounted to an attempt to smuggle in an objection to the hearing of the appeal and dismissed the objection for conflicting with Order 10 Rule (1) of this Court Rules. See also the case of ESOHO V. ASUQUO (2007) ALL AFWER (PT.359) 1355, held 16, BAYERO V. MAINASARA & SONS LTD (2007) ALL FWLR (PT.359) 1285, held 9.
Of course, by law it is the filing fee that vests legitimacy or validity on a court process, except where such fees are waived as in the case of official process filed by government or department of government. See the case of ONWUGBUFOR V. OKOYE (1996) 1NWLR (part 424) 252; see also NAA V. KAWGAJI (unreported decision of this Court in CA/J/166/2003, delivered on 30/3/11.
Since the alleged preliminary objection by the 4th and 6th Respondents was not filed separately, I do not therefore think the objection by the 4th and 6th Respondents is competent, to warrant any due consideration, by this court. It is accordingly dismissed.
ISSUE ONE: – (covering Appellants issues 1 to 3):
Arguing the Appeal, learned Counsel for the Appellant, Friday Oshomagbe Esq. (who also settled the Brief) submitted that the application by the respondents dated 7/7/2006, was incompetent, in its entirety, as it constituted a demurer, contrary to Order 26 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 2005, which outlaws the use of demurer: that the provision that no demurer shall be used is mandatory by reason of the operative word “shall” used therein. He relied on the case of Onochie v. Odogwu (2006) 6 NWLR (pt. 975) 65 at 89. Agusiobo V. A.G. Onyekwelu (2003) 14 NWLR (pt.839) 1 NWLR (pt. 169) 608; Anibi v. Shotimehin (1993) 3 NWLR (pt.282) 461.
Counsel also relied on the case of Okafor V. A.G. Anambra State (2005) 14 NWLR (pt.945) 210 at 222 on the attitude of Court to demurer proceedings, that it is archaic and time wasting; a product of English Rules of eighteenth century which the English people have since done away with; that the alternative to the demurer procedures is for the defendant to raise his objection on point of law or facts, which, if considered can dispose of the matter without hearing evidence and to raise same in his statement of defence (pleadings), and for the same to be taken at the hearing or before the trial. He relied on Order 26 Rule 2 of the High Court (Civil Procedure) Rules, 2005.
On the claim that Respondents were challenging jurisdiction, that the suit was statute barred, by reason of the fact that the cause of action arose on 17/6/2005, while the Appellant brought the action on 12/5/2006 – more than 3 months after the act of the public officer complained of, Counsel submitted that the trial judge was wrong to have relied on the affidavit of the Respondents in support of their preliminary objection to determine the date of commencement of the cause of action; that even in the situation of challenge of jurisdiction on the issue of statute of limitation, the same is a question of strict law, which can only be dealt with after a defendant had filed his pleadings. He relied on the case of Okoye V. Nigerian Construction and Furniture Company (1991) 6 NWLR (pt. 199) 501 at 540.
“Matters that can be taken up in proceedings in lieu of demurrer are matters which go to the merits and include maters relating to cause of action, ground of defence, statutory provisions or defenses, illegality and damages.”
Counsel further submitted that limitation of action is purely a statutory defence, which must be raised in the pleadings and not by way of demurrer, except where “it is exfacie apparent from the writ of summons and statement of claim that there is no jurisdiction in the Court. Where it is still necessary to call evidence in proof of mater which may lead to declare its jurisdiction, it is inevitable that the fact be clearly pleaded.” (per Oguntade JSC) Nnonye V. Anyichie (2005) 2 NWLR (pt.910) 623. Counsel also relied on the case of Ogoh V. ENPEE Ind. Ltd (2004) 17 NWLR (pt.903) 449 at 463. Where this court held:
“A party who is contending that an action is caught by statute of limitation must plead it or in the alternative he must plead the facts in support specifically. See Ketu v. Onikoro (1984) 10 SC 265. It therefore follows that a defendant who intends to rely on this defence must file a statement of defence which contains the averment.”
Counsel further submitted that to determine whether a suit is statute barred, the relevant processes to be considered strictly are the writ of summons and the statement of claim. He relied on the case of Egbe v. Adefarasin (1987) 1 NWLR (pt.47) 1 at 20; Ethiopian Airline v. Afri bank Plc (206) 17 NWLR (pt.1008) 245; Military Administrator, Ekiti State V. Aladeyelu (2007) 14 NWLR (pt.1055) 619 at 651-652; I.T.F. V. NRC (2007) 3 NWLR (pt. 1020) 28; F.R.I.N. V. GOLD (2007) 11 NWLR (Pt 1944) 1.
Thus, he said that the learned trial judge was wrong to have relied on the affidavit in support of the respondent’s application in concluding that the cause of action in the case occurred on the 17th June, 2005. He submitted that the cause of action did not arise on 17/6/2005 but on 15/2/2006, when the act of trespass by the Respondents was brought to the notice of the Appellant, and for this he relied on paragraphs 12, 13, 14, 15, 16, 17, 18, and 19 of the statement of claim (pages 67 to 75 of the Record). Counsel said that the Appellant took out this action on 12/5/2006, exactly 3 months on becoming aware of the trespass, and submitted that the trial judge should have considered the writ of summons and the statement of claim, to ascertain when the suit was filed and when the cause of action accrued.
On the application of the public officers Protection Law by the learned trial judge, counsel submitted that that law was not applicable to the facts of the case, arguing that the 1st to 3rd respondents were guilty of bad faith and abuse of office; that from a community reading of paragraphs 2, 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 18, 19, 21, and 22 of the statement of claim, it can be gathered that the Respondents made use the machinery of their public offices to deprive the Appellant of his property and vested same on themselves, in their personal capacities.
Counsel called us to note that the Appellant’s averments in those paragraphs of his pleadings were not controverted as the Respondent had not filed any defence in the action; that those averments were deemed admitted by the Respondents. He relied on the case of Daggash V. Bulama (2004) 14 NWLR (pt. 892) 144; Meridian Trade Corp. Ltd V. metal constriction (WA) Ltd (1998) 4 NWLR (pt.544) 1; (1990) 5 NWLR (pt.149) 144; Ibeanu V. Ogbeide (1998) 12 NWLR (pt.576); Lewis & Peat (NRI) Ltd V. Akhimien (1976) 1 ALL NLR 46; Akintola v. Solano (1986) 2 NWLR (pt. 24) 598 and Lawson Jack v. SPDCN Ltd. (2002) 13 NWLR (pt.783) 180.
Counsel further submitted that the public officers protection Law only operates to protect public officers in the performance of public duties and will not cover a public officer who stepped out of the bounds of public duty or is guilty of bad faith in the performance of his duty. He relied on the case of Ibrahim V. JSC (1998) 14 NWLR (pt.584) 11, Offobche V. Ogoja Local Govt. (2001) 16 NWLR (PT.739) 458 at 485; University of Ilorin V. Adeniran (2007) 6 NWLR (PT.1031) 498 AT 534 – 535.
Counsel further said that the purpose of the law as interpreted by courts, is not to be used to shield illegal acts. He relied on the case of CSS Bookshops Ltd. V. R.T.M.C.R.S (2006) 11 NWLR (pt. 992) 530 and said that the power of the Governor to revoke a right of occupancy under section 28 (1) of the Land Use Act, 1978 for “overriding public interest” does not allow him (Governor) to do so for private/personal purpose. Counsel relied on section 28 (2) of the Act for the definition of “overriding public interest”. He added that the revocation of Appellant’s right of occupancy by the 1st Respondent was not for overriding public interest; that where a parcel of land is not properly acquired or revoked for public purposes, the acquition or revocation is invalid. He relied on the case of Lawson V. Ajibulu (1991) 6 NWLR (Pt. 746) 726 at 751, Osho v. Foreign Finance corporation (1991) 4 NWLR (pt. 184) 157.
He urged us to resolve the 3 Issues for the Appellant.
In their reply, the 1st to 3rd Respondents, through their Counsel, M.A.I. Akande Esq. (Principal State Counsel), with him R.A. Shittu (Mrs) Senior State Counsel (who settled the Brief), submitted, on their 1st issue, that the learned trial Judge was right to have held the objection competent, considering Order 26, Rules 1 and 2 of the Kwara State High Court (Civil procedure) Rules, 2005; that that application was a challenge to the jurisdiction of the court and did not offend the provisions of Order 26 Rule 1:
Counsel submitted that application challenging jurisdiction of court can be filed and taken at any time, even before filing pleading by the defendant. They relied on the case of BAMBE OMDOR V. ADERINOLA & Ors (1977) NSCC 1, NDIC V. CBN (2002)7 NWLR (pt.766) 272 at 296, where the Supreme Court held:
“Objection to the jurisdiction can be taken at anytime, depending on what materials are available. It could be taken in any of the following situations:
(a) On the basis of the statement of claim; or
(b) On the basic of evidence received; or
(c) By a motion supported by affidavit giving the full facts upon which reliance is placed or
(d) On the face of the writ of summons, where appropriate as to capacity in which action was being brought.”
Counsel emphasized the 3rd condition and submitted that Appellant was attempting to equate issue of demurrer with the issue of jurisdiction, which he said, is not the same; that the Defendant does not need to plead before he can raise objection to jurisdiction. Thus, he said, their application was competent, and he relied again on the case of NDIC V. CBN (supra).
On their second issue – whether the Appellants suit was not statute barred having been instituted three months next after the act of revocation of his certificate of occupancy by the 1st Respondent – Counsel urged us to resolve this in favour of the 1st to 3rd Respondents; that having filed the action three months next after the revocation of his right of occupancy by the 1st Respondent the suit was statute barred, having been caught by the provisions of the Public Officers Protection Law of Kwara State, Cap 135.
Counsel submitted that it was not in dispute that the title document of the Appellant over the land in dispute was revoked by the 1st Respondent on 17/6/05, as published in MOJ1 and MOJ2A (page 106 – 107 of the Record); that it was not also in dispute that 1st Respondent (Executive Governor of Kwara State) was a public officer by virtue of Paragraph 19 of the 5th schedule, part one to the 1999 Constitution of the Federal Republic of Nigeria. He relied on the case of Ibrahim V. Judicial Service Committee 5 (1998) 12 SCNJ 255 at 276 – 278.
Counsel further said that it was not also in dispute that the 1st Respondent revoked the title document of the Appellant in the exercise of powers conferred on him under the Land Use Act; that for Appellant to be able to maintain an action against the 1st to 3rd Respondents, he must file same within 3 (three) months next after the act complained of. He relied on section 2 (a) of the Public Offices Protection Law, CAP 135 Laws of Kwara State 1994, which says:
“where any action prosecution or other proceeding is commenced against any person for any act done in pursuance or execution or intended execution of any law or of any public duty or authority or in respect of any alleged reselect or default in the execution of any such law, duty or authority, the following provisions shall have effect:
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, default complained of or in case of continue of damage or injury, within three months next after the ceasing thereof. Provided that if the action, Prosecution or proceeding be at the instance of any person for cause arising while such person was a convict prisoner it may be commenced within three months after the discharge of such person from prison.”
Counsel submitted that Appellant filed his suit on 12/5/06, whereas the 1st Respondent revoked his right of occupancy on 17/6/05; that was more than 3 months after the revocation of the right of occupancy, which he said was published by Exhibits MOJ1 and MOJ2A.
He urged us to hold for the 1st and 3rd Respondents.
Counsel for the 4th and 6th Respondents. Wahab Egbe Wale (Ph.D.) who settled the brief, also submitted that the issue of jurisdiction was fundamental and could be raised at any time and had to be resolved by the trial judge without waiting for the filing of pleadings by the Respondents. He relied or the case of AG. Kwara State V. Olawale (1993) 1 NWLR (pt.272) 645; ARJAY V. AIRLINE MANAGEMENT SUPPORT LTD (2003) FWLR (pt.156) 943; (2003) 7 NWLR (pt. 820). 577; NNONYE V. ANYICHIE (2005) ALL NWLR (N.253) 604; DAVIES V. MENDES (2007) ALL FWLR (pt. 348) 883 at 901 Counsel added that jurisdiction is the bed rock of all trials, and is such a threshold issue that when a court lacks it, it cannot exercise any judicial powers in respect of the matter; that no proceeding takes precedence over it, and when raised must be determined one way or the other before further proceeding in the mater. Thus, it takes precedent over the Rule of demurrer. He relied on the case of Davies V. Mendes (supra) at 901 – 902:
“In distinguishing a demurrer proceeding from the issue of jurisdiction, issue of jurisdiction is more fundamental than demurrer proceeding. It does not always follow that pleading must be a prerequisite to raising the issue of jurisdiction. Jurisdiction is a compelling necessity and prerequisite to the consideration of the demurrer proceedings.”
Counsel also relied on the case on NDIC V. CBN (supra); FCDA V. NOIBI (1990) 3 NWLR (pt.138) 270; WILLIAMS V. WILLIAMS (1987) 2 NWLR (pt.54) 66; Akpan V. Utin (1996) 7 NWLR (pt.463) 634; Okonkwo V. INEC (2004) 1 NWLR (PT.854) 242.
He added that it was not contestable that issue of limitation of action is a jurisdictional matter; that the lower court was right in determining it first.
Counsel further submitted that from the facts of the case presented in the statement of claim, the Appellant did not dispute that the 1st Respondent revoked his right over the land in question and that the said land was re-allocated to 4th and 6th Respondents and that by a letter of 17th June 2005 posted to the Appellant he was informed of the revocation of his land. He submitted that the issue of the revocation was fundamental in vesting the Court with jurisdiction and this could even be taken judicial notice of as an executive act of the 1st Respondent under the provisions of section 74 (1) (a) of the Evidence Act; that it was not necessary to set out in the pleadings contents of a statute, subsidiary legislation or gazette. He relied on Nwosn V. Imo State Environmental Sanitation Anthonity (1990) 2 NWLR (pt.688) 621; that any fact stated in official gazette connotes a notice to the whole world (Gbafe V. Gbafe (1996) 6 NWLR (PT.455) 417 at 434); that the implication of this is that Appellant is deemed to have notice. He, however, conceded that publication in a gazette is not a substitute to bringing the information to the concerned individual.
On the application of the Public Offices Protection Law, Counsel for the 4th and 6th Respondents’ submitted that the 1st Respondent revoked the statutory right of occupancy of the Appellant for breach of terms and conditions of the grant as indicated in the letter to the Appellant dated 17/6/2005; that having failed to file the suit within 3 months of the revocation, the matter was caught by the public officers protection law and consequently the action was statute barred. He relied on some authorities, including ACB V. NWANNA TRADING STORE LTD (2007) 1 NWLR (pt.0160) 11 NWLR (Pt.724) 290.
Counsel further submitted that in determining whether an action is statute barred the question the Court ought to ask is when time began to run and that this was answered in the case of FADARE V. A.G. OYO State (1982) 4 SC 1; NIIA V. AYANFALU (2007) 2 NWLR (Pt. 1018) 246 at 269: HUMBE V. A.G. BENUE STATE (2000) 3 NWLR (Pt.649) 419 at 433; BOARD OF TRADE V. CAYZER IRUINE Co. LTD (1927) AC 610.
Counsel concluded that the cause of action accrued on 27/7/2005 (sic) and that by provision of section 2(1) of the Public Officers Projection Law, the appellant ought to have taken the action within 3 months of the 27th July 2005. He said that the Appellants failure to do so has extinguished his right. He relied on the case of Ogun State Govt. V. Dalami Nig. Ltd. (2007) 9 NWLR (Pt.1038) 66 at 82.
The Counsel for the 5th Respondent, Tuned Olamu Esq, too, submitted in line with the Counsel for the 1st to 3rd and 4th and 6th Respondents, that it was necessary for the learned trial Judge to take and uphold the objection, since it touched on jurisdiction and that the suit was statute barred having not been commenced within 3 months from when the 1st Respondent revoked Appellant’s right of occupancy on 17/6/2005; that by section 2 (a) of the public officers Protection Law, the Appellant could not maintain the action, having taken it more than 3 months after the cause of action had accrued. Counsel also relied on some of the cases cited by other Respondents counsel, and AMAO (2007) ALL FWLR (Pt.351) 1490 at 1494 ELABANJO V. DAWUDU (2006) ALL FWLR (Pt. 328) 604 at 638 – 639; ADEKOYA V. FED. HOUSING AUTHORITY (2008) ALL FWLR (Pt.434) 1466.
It has become part of our legal jurisprudence that a Defendant has right to raise any issue bordering on the jurisdiction of a Court to try a cause or matter at anytime, even on appeal, without let or hindrance.
It is also our Law that the Court has a duty to hear and dispose of any such challenge of its jurisdiction first before going into the merit(s) of the substantive matter. The logic for this lies in the fact that where a court lacks jurisdiction to hear and entertain a suit, whatever it does in the case will amount to sheer waste of time and a nullity, no matter how well the case must have been conducted. See the case of M.V. Gongola Hope v. Simufit cases Ltd. (2007) All FWLR (Pt.388) 10005 held 9; F.C.M.B. Ltd v. S.A.I.C. LTD. (2007) ALL FWLR (Pt.363) 133, HELD 7, Elorkele v. Nwafor (2008) ALL FWLR (Pt. 431) 1010, held 1.
Thus, objection to jurisdiction can be taken, whether or not pleadings have been exchanged in the case. The rule barring the use of demurrer can not therefore be stretched to deny a party who has genuine and legitimate objection, touching on the jurisdiction of Court, the right of ventilating his grievance, even without exchange of pleadings, where the raising of such objection, if sustained, is capable of disposing of the whole action. See the case of NDIC V. CBN (supra), where the Apex Court held:
“The tendency to equate demurrer with objections to jurisdiction could be misleading. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all facts pleaded to be true the plaintiff has no cause of action or where appropriate no locus standi. But as already shown, the issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the reliefs he seeks. What is involved is what will enable the plaintiff to seek a hearing in Court over his grievance and get it resolved because he is able to show that the court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
Of course, such objection could be raised on the basis of a motion supported by affidavit, giving the full upon which reliance is placed, or on the basis of the statement of claim or writ of summons. It can also be done on the basis of evidence received (where evidence has been led). See the case of NDIC WCBM (Supra) page 296; Bambe & Ors v. Aderenola & ors (1977) NWLR (Pt.138) 270; see also Davies V. Mendes (2007) ALL FWLR (Pt. 348) 883 at 901 – 902, where this Court held:
“In distinguishing a demurrer proceeding from the issue of jurisdiction, issue of jurisdiction is more fundamental than demurrer proceedings. It does not always follow that pleading must be a prerequisite to raising the issue of jurisdiction. Jurisdiction is a compelling necessity and a prerequisite to the consideration of the demurrer proceedings.”
But while trying to ensure that a free channel remains for genuine complaints to be raised against unnecessary or hopeless / frivolous litigations, meant to stress the limits of the Court’s powers, care must be taken by the Court (which also is expected to be vigilant to guard its jurisdiction, jealously) to refuse any ploy by the defendant to shortchange the Plaintiff and deny him access to redress, on frivolous challenge of jurisdiction Thus, the Defendant’s penchant for throwing the punch of lack of jurisdiction, should not be allowed to provide a cover or bunker for him to hide away from justice, or stay there to continue his mischief against the claimant / plaintiff.
Therefore matters which should be raised on the pleadings, and which go to the merits of the case should be taken up in the pleadings, in lieu of demurrer, pursuant to Order 26 Rule 2 of the High Court (Civil procedure) Rules. Such matters include issues relating to cause of action, ground of defence, statutory provisions or defences, illegality and damages. See the case of Okoye V. Nigerian construction and Furniture company (1991) 6 NWLR (pt. 199) 501 at 540; Nonye v. Anyichie (2005) 2 NWLR (Pt.910) 623 at 659, where Ogtuntade JSC held.
“It seems to me therefore that cases to the effect that jurisdiction can be raised before service of statement if defence are those in which it is ex facie apparent from the writ of summons and statement of claim that there is no jurisdiction in the Court. There it is still necessary to call evidence in proof of matter which may lead to decline its jurisdiction, it is inevitable that the fact be clearly pleaded.” See also Ogoh V. ENPEE Ind. Ltd (2004) 17 NWLR (Pt.903) 449 at 463, where it was held:
“A party who is contending that an action is caught by statute of limitation must plead it or in the alternative he must plead the facts in support specifically…It therefore follows that a defendant who intends to rely on this defence must file a statement of defence which contains the averment.”
Order 26 Rule 2 of the High Court (Civil Procedure) Rules States;
“Any party shall be entitled to raise by his pleading any point of law and point so raised shall be disposed of by the Judge before or at the trial”.
That Provision followed rule one of that order which says:
“No demurrer shall be allowed”
I believe this was meant to check or curtail the usual tendency by the defence to resort to bubby traps and ambushing to abort trial of matters on their merit, by relying on technicalities to deny the claimant the hearing of his case on the merit. And often times, the technical Justice which the defendant secures by aborting the trial on merit becomes a mere temporary relief which only delayed the trial of the substantive matter, and when the technical justice it is set aside, on appeal, the parties go back to square one after spending all the time and resources pursuing shadows. That is why the Law would require such a point of Law, which the defendant has, which is capable of disposing of the case in limine, if raised and sustained, to be pleaded in the statement of defence, and properly raised, thereafter, for the Judge to dispose of, either before the trial or at the trial. Of course, that would give the claimant proper notice of the point of law defence raised, and will also ensure that the case is heard on its merits, as the penchant of the law now is to go for substantial justice and not enthronement of rules of technicalities to abort Justice. See the case Barrister Yusuf Akirikwen & Another v. Peoples Democratic Party (PDP) & 104 Ors (an unreported decision of this Court, Yola Division) in suit No. CA/YL/EPT/TR/R/4/2011, delivered on 6/9/11, where it was held on pages 44-45 as follows:
“It must be stated that the rules and procedures of Court are infact, meant to serve the interest of Justice as hand maids of the Law to help the parties to get the Justice enshrined in the substantive law. The rules cannot therefore be made to operate as log in the wheels of Justice to be used to deny a litigant the opportunity to be heard on the merit, over the petition he has duly brought to the Court… of course, technical Justice may bring temporary relief, which only gives a cynical sense of fulfillment/satisfaction. But it surely leaves behind some open wound in the conscience and a slur on the Court or Tribunal, such that both the giver and the beneficiary of the absurdity would stand condemned for rape of Justice (Per Mbaba J.C.A.)
The Courts have always been enjoined to go for substantial Justice. See the case of PDP V. INEC (2009) 8 NWLR (Pt.1143) 297: Adams v. Umar (2009) 5 NWLR (PT. 1133) 41 at 34.
Was the lower Court right in entertaining the application by Respondents, brought in the guise of challenge of jurisdiction and to up hold it in the circumstances of this case, to abort the trial, by reason of the alleged breach of the Public Officers Protection Law, when evidence was never taken to determine the validity of the alleged revocation of the Appellant’s right of occupancy?
My answer to this question is in the negative, mainly because one of the issues to be determined at the trial of the Appellant’s case, before the lower Court, was the purported revocation of his right of occupancy in respect of the land in dispute. He had a valid right of occupancy No. KW7566 of 6/6/91, issued, over the land, which he sought a declaration that he was entitled to the right thereof.
In paragraphs 12 of his statement of claim, he had averred as follows:
“that prior to March 2006 he had enjoyed peaceable and undisturbed possession of his interest in the land but on the 15th March 2006 he was informed by members of his family here in Nigeria that a group of persons had forcefully gained entry into his land by pulling down a portion of the perimeter fence surrounding the land”.
He discovered that the defendants, particularly the 4th, 5th and 6th Defendants were responsible for the destruction of his property and encroachment on his land.
Appellant further averred that he discovered that the 4th 5th and 6th Defendants had shared the land amongst themselves and the 4th Respondent had gone ahead to commence construction activities on the land in flagrant disregard of the claimant’s existing interest in the land; that the 4th to 6th Defendants in their reaction to the Appellant’s plea over the land, contended that the land had been allotted to them by the Kwara State Government and that Appellant’s interest in the land had been revoked by the State Government! Appellant further averred that he was not aware of the unlawful revocation of his rights of occupancy and that that cannot be done as the 4th to 6th Defendants “as alter ego to the 1st Defendant are in Position of public trust in relation to the land and in purporting to revoke the claimant’s interest in the land and vesting same in themselves without following due process are guilty of bad faith, breach of public duty and abuse of office and should not be allowed to benefit from their own wrong doing”. (See pages 70-71 of the Record).
Those were part of the grave allegations by the Appellant against the Defendants, which begged the Court for resolution and for redress. The Defendants had a duty to file their defence to deny those grave allegations, if disputed. They did not, but in rare display of arrogance and mischief, they brought that application to say that the case was statute barred; that the revocation of the Appellant’s right of occupancy had become a done deal, since it had been done more than 3 months before the Appellant came to court to question it; that by the Public Officers Protection law, the Appellant’s right of action has been extinguished.
Sadly, the learned trial Judge bought their weired reasoning and held that the suit was statute barred, because the Appellant did not take out the action within 3 months of the revocation of the Appellant’s right of occupancy! Meanwhile, no defence was filed by the Defendants to deny the claimants claim; no evidence was led to show whether or not Appellant’s right of occupancy was revoked or lawfully revoked, and if so, when? No evidence was taken to establish when the cause of action-accrued in the circumstances, to establish the alleged statutory limitation of three (3) months for the Appellant to take action!
Even if the defence of limitation of time were to apply in such a case, can the Respondents invoke such provision – Public Officers protection Law to deny the Appellant a hearing and take the land in the face of such damaging accusation of bad faith and abuse of office, which are yet to be determined? To answer that question in the affirmative would be to use the legal process to enthrone illegality, absurdity and impunity. I shall not say more on that, since the case of the Appellant is yet to be heard to establish or disprove those grave allegations by the Appellant, of bad faith and abuse of office by the Respondents.
I can only say that, in my view, the learned trial Judge was in grave error when he entertained what I think was a laughable application by the Respondents, to decide the Appellant’s claim and dismissed his case without even hearing his case, I therefore resolve this issue in favour of the Appellant.
ISSUE 2 (covering issues 4 and 5 by the Appellant):
Was it proper for the learned trial Judge to hold that the Appellant’s right of occupancy was revoked on 17/6/2005 and that the cause of action against the 4th and 6th Defendants had extinguished, when evidence had not been taken to establish such weighty issue?
Even where the defence of statutory limitation is properly raised in a suit, the duty of determining the period of limitation is on the court, and the court can only discharge that duty by resort to the writ of summons and/or the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action, and by comparing that with the date on which the writ of Summons was filed. Of course, that can be done without taking oral evidence from witnesses, and if the time on the writ of summons is beyond the period allowed by the limitation Law, then the action is statute barred. See the case of Egbe v. Adesfarasin (1987) 1 NWLR (Pt.47) 1 at 20.
In the case of Ethiopian Airline V. Afri bank plc (supra), this Court adopting the ratio of Oputa JSC in the above case of Egbe v. Adefarasin (supra) held;
“A cause of action is thus said to be statute barred if in respect of its proceeding cannot be brought because the period laid down by the limitation Law or Act had elapsed. How does one determine the period of limitation? The answer is simple – by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing the 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, the action is statute barred.” See also the case of Military Administrator Ekiti State V. Aladeyelu (2007) 14 NWLR (Pt. 1055) 619 at 651 – 652; ITF V. NRC (2007) 3 NWLR (pt. 1020) 28; F.R.I.N. V. GOLD (2007) 11 NWLR (pt. 434) 1452 held 3 and 4.
That decision of the Apex Court is very clear on the point that once a party alleges that an action is statute barred, the court must consider only the processes filed by the plaintiff to originate the case, namely the writ and the statement of claim, where evidence has not yet been led in the case. ADEKOYA V. F.H.A. (supra) held 5 and 6.
A close study of the writ of summons and the statement of claim in this case show that the claimant never mentioned 17/6/05 as a date of any consequence to the case. He rather mentioned 15/2/2006 when he alleged in paragraph 12 of his claim that on or about that date he was informed by members of his family in Nigeria (as the Appellant was resident abroad) that “a group of persons had forcefully gained entry into his land by pulling down a portion of the perimeter fence surrounding the land.” And he later discovered the Defendants were the persons.
I believe that in a civil claim, relating to land, that the date which would be relevant to construe the date the cause of action accrued would be the date of the alleged trespass, i.e. 15/2/2006. Appellant filed his case on 12/5/2006 against the Respondents over the trespass and damages he alleged against them in paragraphs 12, 13, 14 and 15 of the statement of claim. He also hinted that the Respondents reacted by claiming that his land was re-allocated to the 4th to 6th Respondents, an act which the Appellants questioned- and” wants the Court to declare unconstitutional, null and void, if it occurred.
If the re-allocation of the claimant’s land to the 4th to 6th Respondents was, in fact, done by the 1st Respondent, that becomes a ground of defence, which the Respondents must plead and lead credible evidence to prove and justify, at the hearing. The alleged act of re-allocation of the claimant’s land to the 4th to 6th Respondents cannot, therefore, be taken for granted, as a lawful act by the 1st Respondent, without credible evidence to prove and justify it. The 1st Respondent cannot be protected under section 2 (a) of the public Officers, protection Law to do so, if it is eventually established, at the trial, that what he did was unlawful, or done in bad faith, or an abuse of his office.
I hold that the learned trial Judge therefore erred by prejudging the case of the Appellant, without taking evidence. The evidence, which alleged 17/6/2005 as the date of revocation of the Appellant’s right of occupancy merely came from the affidavit of the Respondents in support of their motion to dismiss the case. That evidence can only qualify as a line of defence by the Respondents, not a conclusive evidence to base the determination of the date the cause of action accrued.
I therefore resolve this issue too in favour of the Appellant.
On the whole, I hold that this Appeal succeeds and is hereby allowed.
The decision of the learned trial Judge in the suit No. KWS/68/2006 dismissing the case of the Appellant against the 1st to 3rd Respondents and striking out the same against the 4th and 6th Respondents is hereby set aside. The case is hereby sent back to the State High Court to be heard by another Judge, on the merits.
The Respondents (except the 5th) shall pay the cost of this action assessed at fifty thousand naira (N50, 000.00) only, to the Appellant.
TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft a copy of the judgment of my learned brother, Ita George Mbaba, J.C.A just delivered. My lord has exhaustively and admirably too dealt with all the live issues in this appeal and I entirely agree with the reasons given therein and the conclusion reached. I also allow the appeal and the consequential orders made in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the advantage of reading in draft the comprehensive Judgment just pronounced by my learned brother, Mbaba JCA, in which I concur with these few words, by way of emphasis.
“Demurrer” originated from the latin word demorari or the French demurrer meaning to wait or stay proceedings by not filing a statement of defence but relying on the statement of claim that it disclosed insufficient material or was self-defeating to entitle the plaintiff or claimant to the reliefs sought in the suit and urging the court to dismiss or strike out the suit in limine on the insufficiency of the statement of claim in favour of the defendant without calling on the defendant to join issues with the claimant by filing a statement of defence and offering evidence. (See Black’s Law Dictionary (Eighth Edition) at page 465).
The history and range of demurrer was amply stated by the Supreme Court in the very recent case of JFS Investment Ltd v. Brawal Line Ltd & Ors (2011) 17 W.R.N page 1 @ pages 22 to 23 (Per the lead judgment of Adekeye, J.S.C.) as follows:
“Demurrer procedure as embodied in section 27 of the old Federal High Court Rules, 1976 was a device used in the Maritime Industry to enable a party to litigation to short circuit an otherwise, what would have been a lengthy trial, by raising an important defence which would have the effect of disposing of the case. The practice grew whereby a defendant who is served with a writ immediately filed a demurrer application and the bill of lading is clipped onto the motion paper without an affidavit exhibiting same, in order of draw attention to the contents of the bill of lading in respect of the claim. The court would automatically deliver its ruling thereafter, vide Essays in Nigerian shipping Law volume 2 in the article entitled demurrer applications. The bane of admiralty proceedings page 205 by L.N. Mbanefo.
This procedure has become archaic as it is now scrapped though it is still in existence in some States of the Federation like Anambra State, The procedure also referred to as “pre-emptory defence” is simply an application by the defendant that even if all that is in the statement of claim is true, the action cannot be sustained due to what a particular law or rules says in which case, the defendant does not file a statement of defence but goes on to demur by making an application to strike out or dismiss the plaintiff’s action.
The attributes of a demurrer application are as follows:
(1) Application by way of demurrer must be made before issues are joined in the suit, after filing the statement of claim and before filing the statement of defence.
(2) The defendant shall base his application for a dismissal of the suit on the assumption that all the facts as alleged by the plaintiff in his statement of claim are true, admitted and established.
(3) The applicant is not under the law to contest whether directly or indirectly, the truth or otherwise of such facts pleaded in the statement, neither is he to tender evidence.
(4) It is invoked where the applicant is merely relying on a crucial point of the law like locus standi, limitation of action, lack of cause of action etc. in that only the statement of claim will be looked at to decide whether or not the demurrer succeeds.
Numerous decisions of court were decided based on the foregoing factors like Brawal Shipping (Nig) Ltd v. Onwadike Co. Ltd (2000) 6 WRN 82; (2000) FWLR (pt. 23) page 1254; (2000) 6 S.C (pt.11) page 133; (2000) 11 NWLR (pt. 679) 387, Williams v. Williams (1995) 2 NWLR (pt.375) page 1 @ page 17, Fadase v. A-G., Oyo State (1982) 2 S.C 1, Mofas Shipping Line (Nig) Ltd v. NMA (2000) FWLR (pt. 23) 1153, Global Transport Oceanico S. A. v. Free Enterprises (Nig) Ltd. (2001) 12 WRN 136; (2001) 2 S.C 154; (2001) 5 NWLR (pt.706) 426; (2001) 2 SCNJ 224; (2001) FWLR (pt.40) page 1706 Ege Shipping & Trading Industry Inco v. Tigris International Corporation (1999) 14 NWLR (pt.63 7) page 70; (1999) 12 SCNJ 1.”
Other jurisdiction like Kwara State, for instance, scrapped demurrer in clear words in Order 26 rule 1 of the High Court (Civil Procedure) Rules, 2004, (Rules of the court below) relevant to the appeal, in these terms:
“Demurrer abolished
No demurrer shall be allowed.”
Rule 2 of order 26 thereof goes on to state that:
“Any party shall be entitled to raise by his pleadings any point of law and the point so raised shall be disposed of by the Judge before or at the trial.”
There is also Order 27 rule 4 (1) of the Rules of the court below enjoining any defendant intending to rely inter-alia on any limitation enactment to plead or raise same specifically or specially in the statement of defence. For convenience, order 27 rule 4 (1) of the Rules of the court below provides:
A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded, might take the opposite party by surprise. (my emphasis).
See Hassan v. Aliyu & Ors (2010) 17 NWLR (pt. 1223) 547 @ 619-620 where the Supreme Court stated in the judgment of Adekeye, J.S.C., inter-alia that:
“I have to emphasis also that a defence founded on statute of limitation like the Public Officers Protection Act, is a defence that the plaintiff has no right of action. It is a defence which can be traced in limine and without any evidence in support, it is sufficient if prima facie the date of taking the action outside the prescribed period is disclosed in the writ of summons and the statement of claim. The defence must be pleaded while the trial court has a duty to confine itself to the pleading filed by the parties. In order to determine the period, consideration must be given to the writ of summons and the statement of claim alleging when the wrong was committed and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from the parties.” (My emphasis).
See also Savage V. Rotibi 10 WACA 264.
The Rules of the court below having abolished demurrer, it was wrong for the court below to have taken the issue of limitation of the action under the Public Officers Protection Law without the respondent who were defendants in the court below pleading the defence in their statement of defence as a stepping stone for the ventilation of the preliminary objection.
The procedure adopted by the court below to get rid of the suit in limine when the plea was yet to be raised in the statement of defence was premature and unsupportable, in my view. See Fadare v. Attorney-General of Oyo State (1982) N.S.C.C 52 @ 57 v. 59 where the Supreme Court held inter-alia that.
“It seems to me to be beyond any question that the main point to be decided in this appeal is the proper meaning and scope of order 22 Rules 2 and 3 of the High court civil Procedure Rules of Western Nigeria and whether they properly construed by both the High Court and the Court of Appeal. The Rules provide as follows:-
1. No demurrer shall be allowed.
2. Any party shall be entitled to raise by his pleading any point of law and any points so raised shall be disposed of by the Judge who tries the case at or after the trial provided that by consent of the parties or by order of the court or a Judge on the application of either party the same may be set down for and disposed of at any some before the trial (italics mine)
3. If in the opinion of the court or a Judge the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground for defence, set off, counter-claim or reply therein, the court or Judge may thereupon dismiss the action or make such other order therein as may be just” (italic mine).
I should add immediately that the Federal court of Appeal mentioned demurrer (one of the complaints of Mr. Fasusi) by way of distinction particularly as the learned counsel appeared to be relying on cases which dealt with ‘Demurrer,’ a totally different procedure from order 22 Rule 2 under consideration, As was rightly pointed out by their Lordships of the Federal Court of Appeal in the case of the Demurrer (which is stiff applicable in the former Northern and eastern Nigeria i.e. in the Northern and Eastern states), the preliminary point of Law can be taken after the receipt of the statement of claim and before any defence is filed. The party in such a case relies on point of law even if the issues of fact in the statement of claim are conceded.
If he fails, an order would be made by the court ordering the filling of the statement of defence and the suit would proceed to trial. Order 22 Rule 1 of the Civil Procedure Rules of Western Nigeria abolished this procedure and substituted order 22 Rule 2 under which a Preliminary point of law could be raised after both the statement of the claim and defence have been filed. Such an application may lead to the dismissal of a suit as happened in the instance case. If on the other hand it fails, the action will proceed to trial issues having already been joined in the pleadings.
The western Nigeria rules as stated earlier have excluded Demurer. It seems to me that having regard to this, a close look at the wording of order 22 Rule 2 shows that it envisages a situation in which pleadings have been filed by both parties and issues joined. The issues can be disposed of by the trial judge at or after the trial (clearly after hearing evidence). Then the all important proviso is to the effect that before the trial i.e. before evidence is taken, the trial judge may, on the application of one of the parties, set down for hearing as preliminary point, any points of law raised in the said pleadings. This is clearly designed to ensure that suits that can be expeditiously dealt with and disposed of on grounds of law are not carried through a long and perhaps expensive trial.”
For these reasons, and reasons so well given in the judgment of my learned brother I. G. Mbaba J.C.A., I will allow the appeal and abide by the consequential orders stated in the said judgment.
Appearances
Friday Oshomagbe Esq.For Appellant
AND
MAI Akande Esq. (PSC) with him R.A. Shittu (Mrs.) ssc. 1st to 3rd Respondents
Wahab Egbewale (PTD) with him A.O. Orire Esq: 4th and 6th Respondents
Tunde Olomu Esq.: 5th RespondentFor Respondent
