JOSEPH AKUJOBI & ORS v. FESTUS AKUJOBI (2017)

JOSEPH AKUJOBI & ORS v. FESTUS AKUJOBI

(2017)LCN/9457(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of February, 2017

CA/OW/237/2010

RATIO

ACTION: LIMITATION; WHEN WILL AN ISSUED BE DEEMED STATUTE BARRED
It is a settled position of law from decided cases that the concept of limitation of action is that there is a statutory period after which a particular law suit or prosecution cannot be brought in Court. Hence a cause of action is said to abate or statute barred when no proceedings in respect thereof can be initiated because the time specified by the Limitation Law has expired or spent. After a period set by the law for commencing an action, a plaintiff, with a good cause of action cannot enforce same by judicial process because he has sat over this right for all times as the time stipulated by law for initiating such an action has become extinct. See: NASIR V. ATTORNEY-GENERAL KANO STATE (2010) LPELR ? 1943 (SC). PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

PROCEDURE: WHEN IN A PROCEEDING CAN A QUESTION OF JURISDICTION BE RAISED
In my considered view it would appear to be settled law that the issue or question of jurisdiction can be raised at any stage in a proceeding and even for the first time before the Supreme Court. The question of the application of statute of limitation to a cause or causes of action before the Courts (where applicable or invoked) would now also appear to be an issue that can be raised at any stage of the proceedings and even for the first time in the Supreme Court in as much as it throws up or borders on the issue of jurisdiction. This much would appear to be clear from the case of NASIR V. CIVIL SERVICE COMMISSION KANO STATE (supra) PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

PROCEDURE: RULES OF COURT MUST BE FOLLOWED IN RAISING QUESTION OF JURISDICTION OF COURT
Having said the above however, it must be borne in mind that even in raising the question of absence of jurisdiction in a Court to hear a cause or matter, the procedure laid down in the Rules of Court must be followed. It seems to me that an insistence that the applicable Rules of Court must be followed in raising a challenge to the jurisdiction of a Court to determine a cause or matter is not a diminution of the importance of the question of jurisdiction but only an adherence to the rule of law. In Solanke v. Somefun (1974) 1 SC 141 at p. 148 this Court per Sowemimo, JSC observed:
“Rules of Court are meant to be complied with and therefore, any part or counsel seeking the discretionary power of a Judge to be exercised in his favour must bring his case within the provisions of the rules on which he purported to make his application. If counsel fail to discharge their duties in that respect, it is but fair and right that a Court should refuse to exercise its discretionary power.”
And at pages 150 – 151, the Court went on:
“Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for quicker administration of justice. Some exceptions, for example, amendments of proceedings are provided for, but such exceptions should be resorted to where absolutely necessary.”
See also Musa v. Hamza (1982) 7 SC 118 and Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145. Rules of Court are in the nature of beacon lights to the parties to a dispute illuminating the path leading to justice. It would in the end result in injustice if it were open to the Court to hold one party bound by the rules while allowing the other to ignore them without good reasons. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

Between

1. JOSEPH AKUJOBI
2. GODFREY NNADI
3. THEDDEUS DIKE Appellant(s)

AND

FESTUS AKUJOBI Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 2/1/2010 by the High Court of Imo holden at Owerri, presided over by Hon. Justice C.I. Ohakwe (hereafter to be referred to as ?the lower Court? and ?the learned trial Judge? respectively). The lower Court in its judgment that spans pages 140 ? 150 of record having first reproduced the claims of the Plaintiff before it (now Respondent); summary of the respective cases of the parties; and ?issue for determination in the case from the facts of the case as disclosed from the evidence before it?; concluded that the Respondent had proved his case on preponderance to entitle him to the reliefs sought. The claims of the Respondent as stated in the judgment of the lower Court are as follows:-
?a. An Order of Court setting aside the certificate of Occupancy registered as Number 74, Volume 74 at Page 237 in the Lands Registry, Owerri.
b. N2,000,000 (two million naira) being general damages for trespass.
c. Perpetual injunction restraining the Defendants, their

agents, privies, workmen, assigns from further entry into the land in dispute.?

The terms in which the lower Court entered judgment for the Respondent are as follows:
?1. It is hereby ordered that the Certificate of Occupancy registered as No. 74, Volume 74 at page 237 of the Lands Registry, Owerri be set aside.
2. The Defendants to pay the Claimant N750,000 (seven hundred and fifty thousand naira) being general damages for trespass.
3. The Defendants, their agents, privies, workmen, assigns are perpetually restrained from further entry into the land in dispute.
The Defendants, to pay the costs of this proceedings which I assess at N15,000 (fifteen thousand naira) to the Claimant.?

The case before the lower Court was tried on pleadings filed and exchanged by the parties. I will later in this judgment set out verbatim the respective cases of the parties as appreciated or understood by them in their respective briefs of argument; as well as the cases of the parties as appreciated by the lower Court in its judgment.
?
The Appellants being dissatisfied with the judgment of the lower Court initiated the

instant appeal by lodging at the registry of the said Court on 12/4/2010 a notice of appeal dated 12/4/2010. The notice of appeal contains three grounds of appeal. The grounds of appeal shorn of their respective particulars are:-
?GROUNDS OF APPEAL
GROUND ONE
The learned judge of the trial Court erred in law when he held that ?the claimant proved better title than the Defendants over the land in dispute.?
GROUND TWO
The Learned Judge of the trial Court erred in law when he failed to strike out the Claimant?s suit for being statute-barred.
GROUND THREE
The learned trial judge of the trial Court erred in law when he held that ?the Governor of Imo State is not a necessary party in this case.?

The appeal was entertained on 7/11/2016 as parties had before then filed and exchanged their briefs of argument and regularised the positions of the briefs of argument where necessary. Appellants? brief of argument dated 1/12/2010 and filed on 7/12/2010 was settled by Ernest O. Nwagwu Esq. and learned counsel duly adopted and relied on same in urging the Court to allow the appeal.

Respondent?s brief of argument dated 18/4/2013 and filed on same date but deemed to have been properly filed and served on 3/12/2013 was settled by K.M. Onyeama, Esq. and learned counsel duly adopted and relied on same in urging the Court to dismiss the appeal.

The issues for the determination of the appeal as formulated by the Appellants in their brief of argument are:-
?1. Whether the Claimant (now Respondent) established better title to the land in dispute against the Defendants (now Appellants) – Ground 1 of the Grounds of Appeal.
2. Whether the Claimant’s suit No. HOW/39/2001 is statute-barred by virtue of Section 3 of the Imo State Limitation Law, 1994 – Ground 2 of the Grounds of Appeal.
3. Whether the failure by the Claimant to join the Governor of Imo State as a necessary party in this suit affected the competence of this Suit – Ground 3 of the Grounds of Appeal.?

In his brief of argument, the Respondent adopted the issues for the determination of the appeal as formulated by the Appellants.
?
The appeal will be resolved upon the issues formulated by the Appellants given the concurrence of parties relating

to same. I will however not consider them in order parties have argued them. I will start with the consideration of Appellants? issue 2.

APPELLANTS? ISSUE 2 ? WHETHER THE CLAIMANT?S SUIT NO. HOW/39/2001 IS STATUTE BARRED BY VIRTUE OF SECTION 3 OF THE IMO STATE LIMITATION LAW, 1994.
In dwelling on the issue, the Appellants said to the effect that the Respondent?s case before the lower Court was incompetent on the ground that it is statute barred by virtue of Section 3 of the Imo State Limitation Law. That, the said issue borders on the jurisdiction of the lower Court to have entertained the Respondent?s case and that it can be taken up at any stage of the proceedings because jurisdiction is the bedrock of judicial process. Cases considered relevant were cited. Having said to the effect that one of the factors a Court considers in the determination of a claim is whether the claimant’s case is competent, the Appellants thereafter went into a discourse of the case of the Respondent and evidence adduced before the lower Court in the aid of their stance that the Respondent?s action was statute barred. It is the

position of the Appellants that from the pieces of evidence before the lower Court, it was clear that the 2nd Appellant had been in possession of the land in dispute before 1989 by purchase from the Akujobi family. That this cannot be an act of trespass as alleged by the Respondent; more so, when PW3 had testified on page 93 of the records that the family had no problem with the 2nd Appellant in respect of plot 158 Ugwu Orji Layout after he had adjusted his fence. It is the stance of the Appellants that it is incontrovertible that the writ of summons was issued on 5th February 2001, a period of more than ten years from the date the 2nd Appellant acquired title to the land. That the Respondent?s case relates to dispossession of land which he claimed he got in 1985 by partitioning and ought to have been commenced within ten years from the date he was allegedly dispossessed of the land by the Appellants. The Appellants submitted that the Respondent’s cause of action accrued from 1989 when the 2nd Appellant commenced building house on the land after the certificate of occupancy (hereafter to be simply referred to as ?C of O?) granted to him by the

Imo State Government. That Respondent’s main claim is for Court’s declaration that the said C of O is null and void. That Respondent?s complaint being against the grant of the C of O to the 2nd Appellant in 1989, the determination as to the period of limitation is by looking at the writ of summons alleging when the wrong was committed which gave the Respondent a cause of action and by comparing that date with the date in which the writ of summons was filed. Cases considered to be relevant were cited. Stating the general principle of law to be that where the law provides for the bringing of an action within a prescribed period, in respect of a cause of action accruing to the plaintiff, proceeding shall not be brought after the time prescribed by the Statute and citing cases considered to be relevant, and which highlighted the legal consequences of an action that is statute barred, the Appellants submitted that once a Court has no jurisdiction to adjudicate on a matter, even where it had done so, such adjudication will be adjudged a nullity by an appellate Court and urged this Court to resolve this issue in their favour.
?
In dwelling on

Appellants? issue 2, the Respondents urged the Court to note that the issue was never canvassed throughout the proceedings at the lower Court until judgment was given. That the Appellants have therefore raised the said issue as a fresh issue in this appeal. The Respondent having said that it is trite law, that a fresh point or issue cannot be entertained on appeal except under special circumstances and with the leave of the Court, submitted that the said issue is incompetent and liable to be struck out by this Court.
?
Though not conceding that his action was statute barred, the Respondent dwelling further on the issue at hand, referred to paragraphs 7, 8 and 9 of the statement of claim and said 14/2/1985 was pleaded as the date when Exhibit A was signed and the land in dispute given to him and his brother late SAMUEL AKUJOBI. That they have been in active possession of the land in dispute, farming on it until July, 1999, when the 2nd and 3rd Appellants were seen inside the land in dispute. That these Appellants on inquiry at the instance of his late brother, claimed that the land in dispute was sold to them by the 1st Appellant and this resulted in

him (Respondent) and his late brother taking out an action in the Customary Court of Owerri Urban in Suit No. CC/OU/140/99 against the Appellants. That it was at the Customary Court that they discovered that the 2nd Appellant had secretly and fraudulently obtained a C of O No. 74 at page 74 Volume 237 at the land Registry Owerri without disclosing the true facts of the land affected by the instrument. It is the position of the Respondent that given his contention that the 1st Appellant fraudulently and secretly sold his (i.e. Respondent?s) land to the 2nd and 3rd Appellants without the consent and knowledge of the members of Agnes Akujobi family which has been proved in evidence before the lower Court, Section 3 of the Imo State Limitation Law 1994 did not avail the Appellants as it was on that date (i.e. July, 1999) that a right of action accrued to him (i.e. Respondent). This Court was urged to resolve this issue in favour of the Respondent by striking it out for being incompetent.
?
The Appellants confronted with the stance of the Respondent never filed any reply brief regarding the challenge to the competence of issue 2. This is however not to say

that the non-filing of a reply brief by the Appellants on the issue will be taken as portending or signifying the automatic success of the objection of the Respondent to the said issue.

Appellants? issue 2 clearly relates to the applicability of the provision of a statute of limitation to wit: Section 3 of the Imo State Limitation Law 1994 to the Respondent?s case. It is a settled position of law from decided cases that the concept of limitation of action is that there is a statutory period after which a particular law suit or prosecution cannot be brought in Court. Hence a cause of action is said to abate or statute barred when no proceedings in respect thereof can be initiated because the time specified by the Limitation Law has expired or spent. After a period set by the law for commencing an action, a plaintiff, with a good cause of action cannot enforce same by judicial process because he has sat over this right for all times as the time stipulated by law for initiating such an action has become extinct. See: NASIR V. ATTORNEY-GENERAL KANO STATE (2010) LPELR ? 1943 (SC).
?
By virtue of the provisions of Order 16 of the Rules of

the High Court applicable in the lower Court and which headed ?pleadings generally?, it is expressly provided or stipulated in Rule 7 thus:-
?7(1) All grounds of defence or reply which makes an action or counterclaim not maintainable or if not raised will take the opposite side by surprise or will raise issues of fact not arising out of the preceding pleadings shall be specifically pleaded.
(2) Where a party raises any ground which makes a transaction void or voidable or such matters as fraud, Limitation Law, release, payment, performance, facts showing insufficiency in contract or illegality either by any enactment or by common law, he shall specifically plead same.?

The Appellants given the submissions on their issue 2 do not in any way pretend that they pleaded the issue of the Imo State Limitation Law 1994 in their pleading. Their position is that they are raising the issue in the instant appeal as it is an issue that borders on jurisdiction.
?
In my considered view it would appear to be settled law that the issue or question of jurisdiction can be raised at any stage in a proceeding and even for the first time

before the Supreme Court. The question of the application of statute of limitation to a cause or causes of action before the Courts (where applicable or invoked) would now also appear to be an issue that can be raised at any stage of the proceedings and even for the first time in the Supreme Court in as much as it throws up or borders on the issue of jurisdiction. This much would appear to be clear from the case of NASIR V. CIVIL SERVICE COMMISSION KANO STATE (supra) where the Supreme Court in the lead judgment delivered Mukhtar, JSC; (as he then was) said thus:-
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The appellant cannot say that he was prejudiced, for I believe even if that point of law on statute of limitation was raised in the statement of defence, he could not have proffered more argument than he did in the course of the proceedings in respect of the motion. As I have stated earlier in the judgment in the treatment of issue (1), the statute of limitation is a matter of jurisdiction which can be raised at any stage of litigation, and I will add here, even in the Supreme Court. In my words, in the very recent case of

FRN v. GOLD 2007 11 NWLR part 1044 page 1 which has been cited by the learned counsel for the respondents:-
“There is no doubt this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation at an appellate Court, vide leave to do so even if he did not do so at the Court of first instance, because such issue borders on the fundamental issue of jurisdiction. The appellant in this case realized its mistake in not thrashing out the issue and so raised it in the Court of Appeal after leave was obtained.”
The above has in fact taken it beyond the position the appellant is quarrelling about. It is instructive in the instant case, for it went further than what to note that the Rule referred to in the quotation above has the same provision as the Rule discussed under this issue (2) supra. See also Olubanjo (sic: Elabanjo) v. Dawodu 2006 15 NWLR part page 76. xxxxxxxxxxxxx.?
?
This decision and others like it would appear to have derogated from the position of the law that statute of limitation like any other special defence must be specifically pleaded before

a defendant can take advantage of it. See amongst many others the case of MOBIL PRODUCING NIGERIA UNLTD V. LSEPA (2002) LPELR ? 1887 (SC) where the Supreme Court in the lead judgment delivered by Ayoola, JSC; said thus: –
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my opinion, bearing the distinction in mind, appropriate guidelines could be fashioned out as follows:
(i) Where on the face of the proceedings a superior Court is competent, Incompetence should not be presumed.
(ii) Where on the face of the proceedings the Court is incompetent, the Court should of itself take note of its own incompetence and decline to exercise jurisdiction, even if the question had not been raised by the parties. If it does not, the question of its incompetence can be raised at any stage of the proceedings because the fact of its incompetence will always remain on

the face of the proceedings.
(iii) Where the competence of the Court is affected by evident procedural defect in the commencement of the proceedings and such defect is not dependent on ascertainment of facts, the Court should regard such incompetence as arising ex facie.
(iv) When the competence of the Court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of fact if properly raised by the party challenging the competence of the Court should be tried first before the Court makes a pronouncement on its own competence.
(v) Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the Court, it is for the party who alleges the Court’s incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons.
(vi) A judgment given in proceedings which appear ex facie regular is

valid.?

See also the case of NNONYE V. ANYICHIE (2005) LPELR ? 2061 (SC) where the Supreme Court in the concurring judgment of Oguntade, JSC; dwelled on the need to raise issues and even those relating to jurisdiction in compliance with the procedure stipulated in the Rules of Court. His lordship said thus: –
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx With respect to the two Courts below, I do not think they fully understood the essence of the contention of the plaintiff/appellant. By its nature, the arguments of the plaintiff’s counsel before the two Courts below were directed at showing that the defendant followed a wrong procedure in his quest to show that the trial Court lacked the jurisdiction to hear the plaintiff’s suit. It is true that jurisdiction to adjudicate in a dispute, civil or criminal is a threshold issue. Without the necessary jurisdiction, a Court cannot make any valid order: See Attorney-General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552. This explains why it is important for a party who perceived that a Court has no jurisdiction to hear a cause or

matter must raise the issue at the earliest opportunity; and correspondingly, a Court is expected to decide the issue of its jurisdiction to hear a case, when a challenge is raised, at the earliest opportunity. An important adjunct to the above is that the question of absence of jurisdiction in a Court to hear a case can be raised at any stage of the proceedings and even for the first time in an appeal: See Tukur v. Government of Gongola State (1989) 4 NWLR (Pt. 117) 517 and Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 SC.
Having said the above however, it must be borne in mind that even in raising the question of absence of jurisdiction in a Court to hear a cause or matter, the procedure laid down in the Rules of Court must be followed. It seems to me that an insistence that the applicable Rules of Court must be followed in raising a challenge to the jurisdiction of a Court to determine a cause or matter is not a diminution of the importance of the question of jurisdiction but only an adherence to the rule of law. In Solanke v. Somefun (1974) 1 SC 141 at p. 148 this Court per Sowemimo, JSC observed:
“Rules of Court are meant to be complied with and

therefore, any part or counsel seeking the discretionary power of a Judge to be exercised in his favour must bring his case within the provisions of the rules on which he purported to make his application. If counsel fail to discharge their duties in that respect, it is but fair and right that a Court should refuse to exercise its discretionary power.”
And at pages 150 – 151, the Court went on:
“Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case within a procedure made for the purpose of a fair and quick trial. It is the strict compliance with these rules of Court that makes for quicker administration of justice. Some exceptions, for example, amendments of proceedings are provided for, but such exceptions should be resorted to where absolutely necessary.”
See also Musa v. Hamza (1982) 7 SC 118 and Williams v. Hope Rising Voluntary Funds Society (1982) 1-2 SC 145. Rules of Court are in the nature of beacon lights to the parties to a dispute illuminating the path leading to justice. It would in the end result in injustice if it were open to the Court to hold one party bound by the rules

while allowing the other to ignore them without good reasons. The relevant provisions of the Anambra State High Court Rules are Order 10 Rules 1 and 2 which read:
?1(1) where on the receipt of the statement of claim, a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, the plaintiff would not be entitled to judgment against the defendant, instead of filing a statement of defence, may raise the legal defence by a motion that the suit he dismissed without any answer upon questions of fact being required from him.
(2) xxxxxxxxxxx
(3) xxxxxxxxxxx
2(1) Notwithstanding the provisions of Rule 1 of this Order, any party to a suit shall be entitled to raise in his pleading any point of law and any point so raised may, by consent of the parties, or by order of the Court be set down for hearing and disposed of at anytime after pleadings.
(2) If, in the opinion of the Court the decision of such point of law substantially disposes of the suit,

or any, part of the suit, ground of defence, set-off, counter-claim, or reply, the Court may make such order therein as may be just such as the dismissal of the suit striking out or amendment of any portion of a party’s case.”
I want to reiterate here that at the time the defendant brought his motion to strike out plaintiff’s suit, all the parties had filed their pleadings and the defendants never anywhere in their pleadings raised the issue that the plaintiff did not comply with Section 41 of the Sheriffs and Civil Process Law of Anambra State. Whether or not the plaintiff complied with Section 41 is a matter of fact. Evidence would need to be led to show that the plaintiff did not serve the pre-action demand. The suggestion in the judgments of the two Courts below that the ground raised by the defendants for the striking out of plaintiff’s suit was jurisdictional is not quite correct. A perusal of plaintiff’s writ of summons and the statement of claim does not show ex facie that the trial Court had no jurisdiction in the matter. The sole purpose of Section 41 is to ensure that a person intending to bring a suit against a Court bailiff must first make a

pre-action demand to see the process. Where a defendant’s complaint is that no such pre-action demand was made and he intends to rely on it as ground to set aside the suit, he must raise the matter as a legal defence in his statement of defence.
This case brings to the fore the necessity to draw a distinction between a purely jurisdictional matter and a question of justice ability. No one has argued that the trial Court in this case ordinarily has no jurisdiction in a suit on trespass and defamation which plaintiff brought. The only configuration here is that the defendants were contending that a pre-action demand was not served. That contention only makes the plaintiff’s suit not justiceable. If the plaintiff issued the proper pre-action demand, his suit could still be heard by the same Court. It is erroneous therefore to say, that this was a challenge to the jurisdiction of the Court. It is important to bear in mind that a defendant could if he so elects waive the necessity for such pre-action notice or demand. If for instance, the defendant in this case did not raise the issue of non-service, the case would proceed to trial in the ordinary way. Where

there is no jurisdiction in the true sense in a Court to hear or determine a matter, none of the parties could waive the question of jurisdiction: see Onyema v. Oputa (1987) 3 NWLR (Pt. 60) 259 SC. There is a plethora of judicial authorities to the effect that the issue of the jurisdiction of a Court to hear a cause or matter can be raised at any stage and even for the first time on appeal. It is however too easy to overlook the fact that the jurisdiction being referred to in such cases is jurisdiction arising in the form of a constitutional limitation or other limitation imposed by specific laws. In such cases, it is only necessary to refer to the constitutional provisions or law concerned. Where the matter which impairs the authority or power of a Court to hear a case derives from failure to fulfil a condition precedent such as issuing a pre-action notice, it is necessary for a defendant to raise the matter in his statement of defence since this is a question of fact to be determined by the evidence called by parties. It is only when the trial Court is satisfied that indeed the pre-action notice was not served that he can decline to exercise his

jurisdiction. The appropriate expression to describe that situation is that the Court has declined to exercise its jurisdiction. All it means is that the jurisdiction of the Court has not been properly activated. In that situation it is not correct to say that such issue of jurisdiction can be raised at any stage. It is an evidence dependent issue of jurisdiction. In a civil suit, pleadings play an important and vital role. When a fact is not pleaded, evidence cannot be led on that fact. It seems to me therefore that cases to the effect that jurisdiction can be raised before service of a statement of defence are those in which it ex facie 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 matters which may lead the Court to decline its jurisdiction, it is inevitable that the fact be clearly pleaded. The question is, was it open to a defendant who had not by his statement of defence pleaded that he was not served the requisite demand and when the statement of claim does not betray the fact of non-service of the demand, to proceed by motion to ask that the

action be struck out? I think not. To allow a defendant to do so is to defeat the clear provisions of the Rules of Court set out above. What the defendants ought to have done was to first plead in their statement of defence the fact that the plaintiff did not issue the demand as provided in Section 41 of the Sheriffs and Civil Process Law. If it was perceived that that fact was enough to bring the suit to an end, the defendants would then move the Court to set the matter down for hearing to be disposed of after pleadings in accordance with Order 10 Rule 2(1) above. Simply put, the relevant Rules of Anambra State High Court do not postulate the hearing of a case by affidavit evidence after the parties had by their pleadings joined issues. Assuming that the defendants had not sooner discovered that the plaintiff did not issue the statutory demand, they should simply have amended their statements of defence to plead the point before moving the Court to set down the narrow issue for hearing. I do not doubt that the defendant may upon being served a statement of claim, and before or after filing a statement of defence raise the issue of jurisdiction of the Court to

bear a suit. Afterall the jurisdiction of the Court is determined by the claim on the writ of summons and statement of claim: See Adeyemi v. Opeyori (1976) 9 – 10 SC 31: but this can only be done if upon a perusal of the writ of summons and statement of claim, it appears ex facie that there is no jurisdiction in 660 Nigerian Weekly Law Reports 31 January 2005 (Oguntade, J.S.C.). the Court. (sic)
Where it is necessary to the defendant to call evidence to show that the Court has no jurisdiction the defendant must file a statement of defence raising the issue of fact and later ask the Court to dispose of the case by evidence on the point. Once it is apparent that there is jurisdiction in the Court to adjudicate by reference to writ of summons and statement of claim, a defendant/applicant can only determine the case in limine by application under the Rules of Court – Shell-BP Petroleum Development Co. of Nigeria v. Onasanya (1976) 6 S.C. 89. In the instant case there was nothing on writ of summons and statement of claim suggesting that the trial Court has no jurisdiction. If, as was decided in Adeyemi v. Opeyori (supra), there was nothing on the writ of summons

and the statement of claim indicating absence of jurisdiction in the trial Court to hear the case, the defendants could only have the suit decided in accordance with the rules of Court, clearly, it was an error to bring a motion after pleadings had been filed seeking to have a matter not pleaded decided by Court through affidavit evidence. As I said earlier, it is to be observed here that it was open to the defendants to waive the non-service upon them of the pre-action demand. When it is so waived, the suit can proceed to trial without the plaintiff incurring any disability therefrom. In the instance case, the defendant selected not to raise the matter in their statement of defence thus conveying to the plaintiff that it was being waived. The defendants not having raised on their pleadings that the needed pre-action demand was not served on them ought not be allowed to raise by affidavit evidence the matter not pleaded before the Court. In Ege Shipping & Trading Industries v. Tigris International Corporation (1999)14 NWLR (Pt. 637) 70 at 84, this Court per Ogundare, JSC said:
“The use by the defendants of affidavit evidence to counter or traverse

matters of fact pleaded by the plaintiff is clearly not a correct practice or procedure. In an application of the nature by the defendants, it must be presumed that all the facts pleaded by the plaintiff are correct. Where the defendants dispute any of such facts, they must file a statement of defence and lead evidence at the subsequent trial in support of their case.”
Even if the question of jurisdiction can be (sic) at any stage, yet it still must be brought before the Court by the proper procedure: See Dada v. Ogunsaya (1992) 3 NWLR (Pt.232) 754. I have said the above in the order to ensure that parties and their counsel follow the proper procedure in matters like this. Notwithstanding the views I have expressed above, I would still agree with the conclusion reached by my learned brother Akintan, JSC in the lead judgment. When defendants’ counsel brought the application to strike out plaintiff’s suit, the plaintiff contended inter alia that the defendants did not come by the right procedure. But notwithstanding this contention the plaintiff deposed to a counter affidavit in an attempt to meet the allegation that the requisite pre-action demand was not

made against the defendants. It is apparent from the said counter-affidavit that the plaintiff did not depose that he issued the requisite notice. This appeal then comes to this: Even if I allow the appeal and make the order that the defendants’ motion be struck out, it is clear for the eyes to see that plaintiff’s suit will still end up being struck out for non-service of pre-action demand. There is no point therefore postponing the inevitable. It is for this reason that I would agree that the appeal be dismissed. I would however make an order that parties bear their own cost.?
Suffice, it to say that the Supreme Court in the concurring judgment of Peter-Odili, JSC; in the case ofAJAYI V. ADEBIYI (2012) LPELR ? 7811(SC) would appear to have reiterated the position of Oguntade, JSC; that issue of statute of limitation should be raised in compliance with the Rules of Court. In this regard, his lordship said thus:-
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
On the strong position of the appellant that the action was statute barred and could not really takeoff, I would want to recapture the essence of a

statute of limitation. As Tobi JCA (as then was) states in Merchantile (sic) Bank Nig. Ltd v. Feteco Ltd (1998) 3 NWLR (pt.540) 142 at 156 – 157 as follows:-
“A statute on limitation of action is designed to stop or avoid situation where a plaintiff can commence action anytime he feels like doing so, even where human memory would normally have faded and therefore failed, put in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and make (sic) up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principle of equity and fair play will not avail such a sleeping or slumbering plaintiff.”
As a follow up to the principle well laid out in the case cited above is the fact that a statute of limitation such as the Public Officers (Protection) Law in which the acquisition by the Lagos State Government through its officers fall into, the law removes the right of action, the right of enforcement and the right of judicial relief in a plaintiff and leaves him with a bare and empty cause of action which he cannot enforce if the

alleged cause of action is statute-barred, that is to say, if such a cause of action is instituted outside the three months statutory period allowed by such law. See Ibrahim v Judicial Service Commission(1998) 14 NWLR (pt. 594) 1 at 31 – 33. The above is the law but situated in the present instance, the poser would be, does the principle on statute of limitation and the Public Officers Protection Law which on the face would seem relevant, apply. To answer that question I would refer and quote Order 17 Rule 11 of the High Court of Lagos State Civil Procedure Rules 1994 which provides thus:- ?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx?
To underscore the essential part that must be brought in when pleading, Order 19 Rule 18 of the same High Court of Lagos State Civil Procedure Rules 1994 provides as follow:-
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
It may be argued that those Rules of Court are not mandatory from which ever line of thinking but that would be difficult to sustain in view of earlier interpretation of similar provisions by none

less than this Apex Court. In the case of Mobil Producing Nigeria Unlimited v. L.S.E.P.A. (2002) 12 SC (Pt. 1) 26 at 38 Ayoola JSC said:-
“A party who challenges the competence of a Court on the basis of certain facts but fails to put in issue, those facts, stands the risk of being precluded at a later stage when the proceedings have been brought to a final conclusion from reopening that issue of fact.”
This Court in the above had relied and followed an earlier decision in Katsina Local Authority v. Makudawa (1971) NSCC 119.
Putting the principles and of course Rules of Court of trial in con, it is not in dispute that the appellant in the High Court did not plead issues of Notice of Acquisition and Limitation arising from Public Acquisition vis–vis the Public Officers Protection Law. In circumstances such as this, this very Court had put its stamp of authority on what should apply in the case of Ishola Balogun Ketu v. Chief Wahabi Onikoro (1984) 10 SC 265 at 267268 anchored by Obaseki JSC thus;
“It is a cardinal rule of pleading that such a specific matter as Limitation Law must be expressly set out or pleaded in the

statement of defence. Once it is not pleaded the defendant cannot be granted the protection of that law. In this case, it is not pleaded and even if it is applicable, the Court cannot grant the defendants the benefit of the Limitation Law contrary to the principle of the avoidance of surprise.” xxxxxxxxxxxxxx?
In my considered view it would appear to be clear from decided cases that even if the issue of limitation of action can be raised at the appellate Court level without its having been pleaded as the said issue bothers on jurisdiction, an appellant raising it for the first time at the appellate level is still expected to first procure the leave of the appellate Court to raise and argue the said issue before the issue can be said to be properly before the said appellate Court for it to be worthy of consideration. In this regard see theNASIR case supra).
See also the case of OWIE V. IGHIWI [2005] 5 NWLR (Pt. 917) 184 wherein Tobi, JSC; (now of blessed memory) in dwelling on the issue as to ?whether the respondent?s case was caught by the statute of limitation and or laches

and acquiescence? said thus:-
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

It is trite law that the issue of jurisdiction being threshold issue affecting the competence of the Court to adjudicate, can be raised at any time in the proceedings of the Court. It can even be raised for the first time in the Supreme Court before judgment is given. Because of the significant role it plays in the judicial process, jurisdiction can be raised suo motu by the Court, without any charge of bias from any of the parties.
A party can raise a fresh issue in this Court, but he must seek the leave of Court to do so. That was the decision in Jov v. Dom (supra). This Court held that a question of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure. Moreover Courts may raise a matter of law and Constitution at any time, but in doing so, the parties must be afforded the opportunity of addressing on it.
This basically goes to the spirit of fair hearing. It is for this reason that a party to an appeal that intends to raise a new or fresh issue on appeal must seek leave to do so.

Similar decision was reached in Salami v. Mohammed (supra). It was held by this Court that where a party wishes to raise on appeal a new issue not canvassed previously, leave of the appellate Court is necessary. It was also held that where grounds of appeal do not arise from the judgment appealed against and issues raised cannot be said to have been formulated from the incompetent grounds, a preliminary objection seeking to strike out such an appeal will be sustained.
In the light of the above authorities, I have not the slightest difficulty in striking out Ground 4 and I do so accordingly. As issue No.2 is formulated from Ground 4, that issue is also struck out. See Salami v. Mohammed (supra). Ojah v. Ogboni (1996) 6 NWLR (Pt.454) 27. xxxxxxxxxxxxxxxxxxxxxxx?
In the same appeal, Edozie, JSC; was one with Tobi, JSC; when his lordship said thus:
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
The defence of limitation law relates to the jurisdiction of Court. It is trite law that the question of jurisdiction being radically fundamental can be raised at any stage of a

proceeding and even for the first time in the Court of last resort such as this Court: see Management Enterprises Ltd. and Anor v Jonathan Otusanya (1987) 2 NWLR. (Pt.55) 179. Such an issue must however, be properly raised before the Court can properly entertain the point. This is so because, an appellate Court will not generally allow a fresh point to be taken before it if such a point was not pronounced upon by the Court below. See London Chartered Bank of Australia v. White (1987) 4 A.C. 4136. Similarly, an appellant will not as a matter of general principle be allowed to raise on appeal a question which was not raised, tried or considered by the Court below, although where such question involves a substantial point of law, substantive or procedural, and it is plain that no further evidence needs to be adduced which will affect the decision, the Court will allow the question to be raised to prevent obvious miscarriage of justice, vide Attorney-General of Oyo State v Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt.92) 1 at 29; John Bankole and Anor v. MojiduPelu and Ors. (1991) 8 NWLR (Pt.211) 523. In the instant case, as the limitation law was not pleaded nor

otherwise raised by the appellant and pronounced upon by the Courts below and no leave of this Court was granted to raise it, there is merit in the respondent?s preliminary objection. However, even on the consideration of the limitation law, the defence predicated on it is not sustainable. Time begins to run for the purpose of the limitation law when there is in existence a person who can sue and another who can be sued and when all facts have happened which are material to be proved to entitle the plaintiff to succeed: see Jallco Ltd v Owoniboys Tech. Service Ltd. (1995) 4 NWLR (Pt., 391) 534 at 547. In the case on land, and according to the respondent?s pleadings and evidence, it was the appellant?s trespass on the land in dispute in 1985 that prompted the action against the appellant. The cause of action therefore accrued in that year and reckoning from that time to 17/2/88 when action was instituted is only a period of less than 12 years within which the action could have been commenced pursuant to Section 6(2) of the Limitation Law of Bendel State. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx?

The

Respondent apparently in the knowledge that whatever happens to Appellants? issue 2 cannot portend the end of the appeal and has in my considered view rightly not come by way of preliminary objection. He has decided to attack the propriety of the said issue 2 in responding to the said issue in his brief of argument and I am of the settled view that this is proper. As said hereinbefore the Appellants confronted with the brief of argument in which the Respondent challenged the propriety of their issue 2, resolutely remained mum. They did not file a reply in which they could have demonstrated that the said issue 2 is not a fresh issue in that the ground of appeal from which the said issue was distilled flows from the decision of the lower Court in that the issue was raised before the lower Court and/or that they sought the leave of this Court to raise and argue the said issue as it was not an issue before the lower Court.

?I have diligently perused the record of appeal, and I am in no doubt that the Appellants never raised the issue of Limitation Law before the lower Court and that the said Court never pronounced on it. This being the situation, the

said issue which undoubtedly borders on jurisdiction, is a fresh issue in this appeal and in respect of which the Appellants required the leave of this Court to raise and argue. The Appellants never procured the leave of this Court in this regard. Accordingly, and guided by the cases I have cited hereinbefore, and to borrow the words of Tobi, JSC, I have not the slightest difficulty in striking out ground 2 in the notice of appeal before the Court. As issue No. 2 has been formulated from ground 2, that issue is also struck out. I therefore do not see any rationale for dwelling on the merit of the said issue although I have hereinbefore reviewed the submissions of parties thereon.

Flowing from all that has been said is that issue 2 is resolved against the Appellants in as much as it has not been resolved in favour of the Appellants but in favour of the Respondent.

APPELLANTS? ISSUE 3 ? WHETHER THE FAILURE BY THE CLAIMANT TO JOIN THE GOVERNOR OF IMO STATE AS A NECESSARY PARTY AFFECTED THE COMPETENCE OF THIS SUIT.
In dwelling on this issue, which raises the question as to whether the failure of the Respondent to join the Governor of

Imo State (hereafter to be simply referred to as ?the Governor?) in this suit as a necessary party affected the competence of this suit. Having referred to what they tagged or dubbed as the main relief sought by the Respondent, i.e. the claim for a declaration that the C of O in respect of IshiUgwu land situate at Orji Uratta in Owerri North L.G.A, otherwise called plot 158 Ugwu Orji Layout is null and void and of no effect whatsoever, the Appellants submitted to the effect that in as much as the said C of O was issued by the Governor in the exercise of his power under the Land Use Act, it was very necessary that the Governor by virtue of that fact should have been made a party in this suit. This is because the suit questions the validity of the Governor?s action in issuing the C of O in question. That the said Governor is entitled to have been heard in this matter before judgment was delivered regarding the nullity or validity of the said C of O issued by him. The Appellants stated that it is a fundamental principle of law, that, all parties who will be affected one way or the other in a litigation must be made parties as doing the contrary is

against all known principles of fair hearing for a party to be condemned in a judgment in which he is not given an opportunity to be heard. Cases considered relevant were cited in aid of the position of the Appellants.

The stance of the Respondent is that his suit is not incompetent because of the non-joinder of the Governor or any Government agency. This is because he has no complaint against any act of the Governor or any Government agency. The Respondent further submitted that the complaint in his case is against the fraudulent activities of the Appellants in obtaining the C of O they claimed to have in respect of the land in dispute. That joining the Governor or any Government agency in this case will amount to a mis-joinder of parties. The Respondent submitted that the case cited by the Appellants in support of their stance in their brief of argument are not relevant having regard to the facts of this case. It is also the stance of the Respondent that if the joining of the Governor would have helped the case of the Appellants, then it was their duty to have applied to join the Governor instead of expecting the Respondent to join the Governor against

whom he has no grievances. The Respondent cited the case of Peenok Investment Ltd V. Hotel Presidential (sic) (1982) 12 SC 1 to show that the non-joinder of a necessary party in any event cannot defeat an action. He also referred to Order 13 Rule 16(1) of the High Court Rules applicable to the lower Court to show that no proceeding shall be defeated by reason of non-joinder of parties. The Respondent urged this Court to resolve this issue in his favour.

I have said hereinbefore that I will re-produce the summary of the instant case as contained in respective briefs of parties as well as the summary of the case as captured in the judgment of the lower Court. This is because I am of the considered view that one can easily conclude from the summaries whether or not the parties properly appreciated their respective case; likewise the lower Court. I consider it appropriate to now do so as I am of the considered view that it is a thorough and correct appreciation of the facts of any given case that determines or informs those who should be made parties thereto. The summary of facts relevant to this appeal as contained in paragraphs 2.01 to 2.04 of the

Appellants brief of argument read thus: –
2.01 The summary of the Respondent’s case is that the land in dispute known as and called “ISHI UGWU” is the land partitioned to him and Samuel Akujobi (now late) during the partitioning of their family land amongst the 1st Appellant and other sons of late Agnes Njoku Akujobi (their mother).
2.02 The Plaintiff/Respondent claimed that himself and Samuel Akujobi (now late) were in possession of this land until sometime in 1999 when they noticed the presence of the 2nd and 3rd Appellants on the land.
2.03 The Plaintiff/Respondent stated that he later confirmed that his brother 1st Defendant/Appellant had sold the land to the 2nd and 3rd Appellants without his consent.
2.04 The summary of the Defendants/Appellants (sic) case as can be seen from their pleadings and evidence is that the land in dispute which is plot 158 Ugwu Orji Layout Owerri belonged to the sons of the late Agnes Njoku Akujobi before it was sold to the 3rd Appellant on 12th of November, 1982 by the other sons of late Agnes Njoku Akujobi to the knowledge and with the consent of the Respondent and Samuel Akujobi.

The said land was resold to the 2nd Defendant/Appellant in 1988 and he applied for and obtained a Certificate of Occupancy in respect of the land in 1989.?

The summary of facts relevant in the appeal as contained in paragraphs 2.01 to 2.04 of the Respondent?s brief of argument read thus:-
?2.01 The Claimant/Respondent?s case in the trial Court is that the land subject matter of dispute is known and called ?ISHI UGWU LAND? situated at Orji Uratta in Owerri North Local Government Area of Imo State. According to his evidence, he got the land in dispute from his ancestor OKAM, who deforested same. He also mentioned his generational lineage that inherited the land was in possession until it reached his father AKUJOBI who inherited same, and later gave it to his mother AGNES NJOKU AKUJOBI to farm as her MGBALA.
2.02 In his testimony in Court, he stated that AKUJOBI his father married many wives, and at his death his landed estate was shared among the various kitchen units. He said he, the 1st Defendant/Appellant, late SAMUEL AKUJOBI and SHEDRACK AKUJOBI (PW2) were from one kitchen unit (AGNES NJOKU AKUJOBI).

They got 10 pieces of lands at various locations from the share of AKUJOBI?S ESTATE.
According to him, out of the 10 pieces of lands got by his kitchen unit, the 1st Defendant/Appellant and the PW2 SHEDRACK AKUJOBI sold (7) Seven pieces of land out of the 10 pieces. It was when the Claimant/Respondent agitated over the sale of (7) Seven pieces of land without their consent and knowledge and called partition of the children of AGNES NJOKU AKUJOBI family land. It was during the said partitioning by the male children of AGNES NJOKU AKUJOBI, that they voluntarily gave the remaining three pieces of lands, one of which is the land in dispute, to the Respondent and his late brother SAMUEL AKUJOBI as their own share of their father?s Estate. The said partitioning of the said land was reduced in writing. After the written agreement (Exhibit A) the Respondent and his late brother took possession of the land in dispute and the two others given to them in the partition.
2.03 Sometime in 1999, the Respondent noticed the presence of the 2nd and 3rd Defendant/Appellant (sic) on the land in dispute, and sued them at Customary Court Owerri. When it was

discovered that the 2nd and 3rd Defendant (sic) had fraudulently obtained a certificate of occupancy in respect of the land, the suit at the Customary Court was withdrawn and re-filed at the High Court (the present suit).
2.04 The Defendant/Appellant (sic) case from the pleading at the trial Court is that the land in dispute belong to his mother late AGNES NJOKU AKUJOBI and at her death, the Four male children inherited it as family property, before it was sold to the 3rd Defendant/Appellant by the children of AGNES NJOKU AKUJOBI on the 12th November, 1982, as the 1st Defendant/Appellant alleged. The said land was resold by the 3rd Defendant/Appellant to the 2nd Defendant/Appellant, who applied and fraudulently obtained a certificate of occupancy in respect of the land in dispute in 1989.?

The lower Court in its judgment captured the respective cases of the parties herein thus:
?The Claimant?s case in summary is as follows:
That the claimant and the 1st Defendant are of the same parents. On the death of their father Akujobi, his lands including the Ishi-Ugwu land now in dispute were inherited in common by his children namely:

Joseph Akujobi, Shedrack Akujobi, Festus Akujobi, and Samuel Akujobi (now late) that when the 1st Defendant and Shedrack Akujobi sold some portions of the lands belonging to the family of Akujobi, the claimant objected to the sale following which a settlement to partition the entire estate of Akujobi was made and reduced into writing dated 14/2/85 and signed by the four sons of Akujobi. Under this arrangement, the claimant was given the Ishi-Ugwu land and the 1st Defendant handed over to the claimant a photocopy of property survey plan IM/GA5843 dated 7/11/77 in respect of Ishi-Ugwu land already produced in the 1st Defendant?s name and relating to the land in dispute. Since then i.e. 14/2/85 the claimant has been in exclusive possession of the land. That around July, 1999, the 2nd and 3rd Defendants were seen on the land claiming that it was the 1st Defendant who sold the land to them. The 2nd Defendant secretly obtained a certificate of occupancy over the land. That the 1st Defendant has no title to pass to the 2nd Defendant over the said Ishi-Ugwu land. That the claimant filed an action at the Customary Court Owerri urban and for injunction against the

1st, 2nd and 3rd Defendants.
In the counter affidavit filed by 1st Defendant in that suit, he exhibited showed (sic) that he exhibit a document of sale of Ishi-Ugwuto the 3rd Defendant. That the transaction between the 1st Defendant and other Defendants were tainted with fraud. That while the Customary (sic) case was still pending, the 2nd Defendant offered N250,000 (two hundred and fifty thousand naira) to claimant coupled with a Power of Attorney for the claimant to sign but claimant refused to do so. That the land in dispute is where their mother Mrs. Agnes Njoku was farming as her mgbala which by the custom of Orji Uratta belongs to the youngest son. That the IshiUgwu land of the claimant is represented in survey plan No. T.LD.03.2001. that none of the members of the Akujobi larger family took part in the secret sale of the land to the 2nd and 3rd Defendants. That all the documents from the Lands Office or the Owerri Capital Development Authority were obtained without the Defendants disclosing the true facts of ownership of the land in dispute.?
On the other hand, the case of the Defendants is that the claimant and the 1st Defendant are of

the same parents. That the land in dispute belongs to the mother of the 1st Defendant ? Agnes Njoku Akujobi and on her death, her male children inherited it. That on 12th November, 1982, the sons of late Agnes Njoku Akujobi sold the land now in dispute to the 3rd Defendant to the knowledge and consent of the claimant. That there was no sharing of any land among the sons of Umu-Agnes Njoku Akujobi. That in 1993, the claimant demanded for a portion of land at the Ishi-Ugwu Orji which had already been sold to the 3rd Defendant which had then had not been designated a layout known and called Ugwu Orji Layout which comprised of other lands that do not belong to the family. That the claimant forcefully entered a portion of this land sold to the 3rd Defendant and re-sold it to someone else and it is now the parcel of land called Plot 159 Ugwu Orji Layout, Owerri. That the 1st Defendant protested over the sale through his Solicitor. That the land in dispute was sold on 12th November, 1982 to Chief Theddeus Zoro Dike who resold same now called Plot 158 to Godfrey Ugochukwu Nnadi. That there was no time any survey plan was given to the plaintiff, rather the plaintiff

sometime complained that the 2nd Defendant?s fence encroached into plot 159 of Ugwu Orji Layout. That the claimant was aware of all the transactions and development on the land and kept quiet. That it was the claimant that who sold plot 159 Ugwu Orji Layout to someone following which the 1st Defendant petitioned to the Commissioner of Police. That the 2nd Defendant started building on the land in 1989 which before 1996 had reached the 1st floor stage. That the Government of Imo State had designated the Ala Ugwu Orji as UgwuOriji Layout of which Ala IshiUgwu Orji is inclusive and is known as plot 159, Ugwu Orji. It is one of these plots, 159 that the plaintiff sold. That the Defendant never approached the plaintiff for peace settlement, rather the plaintiff approached the 2nd Defendant to find something for them to enable him hands off the matter and he agreed and that the terms would be reduced to writing i.e. Power of Attorney. A dispute arose to which Solicitor would prepare the document and when the dispute could not be resolved; the claimant?s Counsel filed this suit. That the 1st Defendant and the Claimant have not shared their lands. That

the said custom of Orji Uratta does not apply to the land in dispute which both the claimant and the 1st Defendant benefited from the proceeds of the land in dispute. That the claimant was a party to the sale transaction. That he never gave the claimant the survey plan No. TLT. 03/2001 nor entered any memorandum with the claimant. That the extent (sic) boundaries and dimensions of the land in dispute are contained and shown on the Defendants Survey Plan No. AS.A/IMD21/2001.?
?
I am of the considered view that it is glaring from the facts of this case as summarised by the parties and the lower Court that whatever allusion the Respondent made to the C of O held by the 2nd Appellant in respect of the land the C of O covers, is that it was evidence of title being relied upon by the said 2nd Appellant in respect of the said land. It is in a case which the facts show that a C of O is being alleged by the Respondent as a document that an adversary is relying on as evidence of his title to the land covered by the said C of O that the Appellants are now arguing that the Governor who issued it or at whose instance it was issued ought to have been joined as a

party because the Appellants consider the Respondent?s claim in relation to the said C of O as tantamount to questioning the validity of the Governor?s action in issuing same pursuant to the provisions of the Land Use Act.

I am of the considered view that there is nothing recondite in the principles put in place by the Courts and particularly the Supreme Court regarding joinder of parties. It would appear that it is in the application of the principles to the facts of any given case that parties at times deliberately or hastily confuse themselves. One of the landmark or ground-breaking decisions on joinder of parties, is that of IGE V. FARINDE (1994) LPELR ? 1452 (SC) wherein the Supreme Court dwelling on ?necessary party? per Iguh, JSC; said thus:-
?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

This issue, in effect, questions whether the respondents are necessary parties who ought to be joined as co-plaintiffs in the suit. It is my view that this issue is more than sufficient to determine this appeal.
Although the respondents made their application to the High

Court under the provisions of Order 13 Rules 14, 15 and 20, the correct Rule is Order 13 Rule 19 of the High Court of Lagos State (Civil Procedure) Rules, 1972 which provides as follows:-
“(1) No cause or matter shall be defeated by reason of the misjoinder or non-Joinder of parties and the Court may in every cause or matter deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
(2) xxxxxxxxxxxxxxxxxx?
The above Rule was construed by this Court in Chief A.O. Uku and ors v. D.E. Okumagba and ors (1974) 3 S.C. 35 where Udoma, J.S.C. had this to say;
“The beginning and end of the matter is that the Court had jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the Rule to join a person whose presence is not necessary for that purpose.”
It seems to me clear that the prescribed purpose referred to by Udoma, J.S.C., is that of enabling “the Court effectually and completely to adjudicate upon and settle all questions” as aforementioned. See too Oyedeji Akanbi (Mogaji) and

Anor v. Okunlola Ishola Fabunmi & Anor, In Re Yesufu Faleke (Mogaji) (1986) 2 S.C. 431 at 449 (1986) 1 NWLR (Pt. 19) 759 where Nnamani J.S.C., in explaining the rationale behind the issue under consideration observed as follows:-
“The aim is to put an end to litigation and not to have, as Lord Denning said in Re Vander ville Trusts (1969) 3 All E.R. 496 at 499. ‘twoparalled proceedings in which the self-same issue was raised, leading to different and inconsistent results’
One other objective in ruling that a person is a necessary party is for him to be bound by the result of the litigation. As Devlin, J. put it in Amon v. Raphael Tuck and Sons Limited (1956) 1 All E.R.273 ? 26 ‘The only reason which makes it necessary to make a person a party to an action is that he should be bound by the result and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he is a party’.”
The principles governing the intervention of third parties in a suit whether as plaintiffs or defendants have been settled by numerous authorities both in England and in this country. See Amon v. Raphael

Tuck and Sons Limited (1956) 1 All E.R. 273; Peenok Investments Limited v. Hotel Presidential Limited (1983) 4 NCLR 122 (1982) 12 S.C. 1 at 35-55 Per Idigbe, J.S.C. and at 92 105 per Eso, J.S.C.; Adegbenro v. Attorney- General of the Federation and ors (1962) 2 SCNLR 130; (1962) 1 All NLR 431; Oriare v. Government of Western Nigeria (1971) 1 All NLR 138; Okafor v. Nnaife (1973) 3 S.C. 85; (1973) 1 All NLR (Pt.1) 238; Awani v. Erejuwa II (1976) 11 S.C. 307; Re Lord Cable (deceased) (1976) 3 Ch. D. 417 etc. It must however be observed that the power of a trial Judge to join a person, whether as a plaintiff or defendant, to a suit is entirely discretionary and, except he proceeded to make such an order for joinder upon wrong principles, an Appeal Court will be reluctant to interfere with his order. See Oyedeji Akanbi (Mogaji) and Anor v. Okunlola Ishola Fabunmi and Anor, (supra), at 462. But it is a discretion which, like other judicial discretions, must be exercised judiciously. It is however clear that for the Court to exercise this discretion favourably under this Rule of Court, the applicant must satisfy the Court that he is a person who ought

to have been joined in the suit in the first instance or that his presence before the Court is necessary to enable such a Court effectually and completely to adjudicate upon and settle all the issues involved in the cause.
A “necessary party” to a proceeding has been said to be a party whose presence is essential for the effectual and complete determination of the claim before the Court. It is the party in the absence of whom the claim cannot be effectually and completely determined. See Oyedeji Akanbi (Mogaji) v Fabunmi, (supra) at 475 per Karibi- Whyte, J.S.C. Where, however, the presence of a party is not necessary for the effectual and complete adjudication of the matter before the Court, there will be no jurisdiction under the provisions of Order 13 Rule 19 to order a joinder. See Uku and ors v Okumagba and ors (1974) 3 S.C. 35 (1974) 1 All NLR (Pt.1) 475. But where an applicant seeking to be joined establishes that he has an interest in the subject of the action and/or in the eventual result of such an action, the application for joinder may be granted. See Ntiashagho v Amodu and anor (1959) WRNLR 273; and Oyedeji Akanbi Mogaji v Fabunmi,

supra at 479. So, in Gurtner v Circuit and ors (1968) 2 Q.B. 587, the Court of Appeal in England held, quite rightly in my view, that where the determination of an action between the parties would directly affect a third person’s legal right or his pecuniary interest, the Courts had a discretion to order the third person to be added to the action on such terms as the Court considered desirable so that all matters in dispute could be effectually and completely determined and adjudicated upon. It seems to me therefore, well settled that for an application under Order 13 Rule 19 to be granted, the applicant must show not only that he is a necessary party to the action but also that failure to join him will result in the claim before the Court not being effectually and completely determined. See Peenok Investments Limited v Hotel Presidential Limited (supra). Where however all the facts before the Court are sufficient for the effectual or complete determination of the claim between the parties before the Court, the applicant cannot be a necessary party and his application for joinder, not being necessary for the effectual and complete determination of the claim

will be refused. See Egonu v Egonu (1973) 3 ECSLR (Part 2) 664, Mantgomery v Morgan and Company (1895) 2 WBD 321, 324 C.A. and Isaac Marbell v Richard Akwei (1952) 14 WACA 143.
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
It may therefore be stated that a key test for the joinder of an intervener whether as a plaintiff or a defendant is whether he will be directly affected by the judgment of the Court in the suit by curtailing or interfering with the enjoyment of his legal rights. This is because the only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action, and the question to be settled therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. See Amon v. Raphael Tuck & Sons Limited supra at 287.”
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx It must however be pointed out that the law appears also settled that the Courts will not generally compel a plaintiff to proceed against a

party he has no desire to prosecute. See Aromire v. Awoyemi (1972) 1 All NLR (Part 1) 101 at 108 (1972) 2 S.C.1 and Dollfus Miegete Compaqune S.A. v. Bank of England (1950) 2 All E.R. 605 at 608. Denman, J. in upholding this principles of the law in Norris v. Beazley (1877) 2 C.P.D. 80; 46 L.J.Q.B. 169 has this to say ?
“I am quite clear, however, that the Court ought not to bring in any person as defendant against whom the plaintiff does not desire to proceed unless a very strong case is made out, showing that in the particular case justice cannot be done without his being brought in.”
So, too, in Lajumoke v. Doherty (1969) 1 NMLR 281, the Western State Court of Appeal per Eso, J.C.A., as he then was, made it clear that it was not laying down a rule that an intervener can never be joined against the wishes of the plaintiff. He explained, and I am in full agreement with the learned Justice, that this could happen ?
“(1) When the justice of the matter demands that the party has to be joined before the case can be properly determined or
(2) When the plaintiff’s case or the defendant’s case in the existing action cannot be effectually

and completely determined without the joinder.”
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The provisions of the Land Use Act make it clear that (subject to its provisions) all land comprised in the territory of a State in the Federation is vested in the Governor of a State (not as his personal property) but to be held by him in trust and administered for the common benefit of all Nigerians. See (Section 1). It would also appear to be clear from the provisions of the Act that it is for the control and management of the land vested in him that a Governor is conferred with the power to grant statutory rights of occupancy whether or not the land in question is in an urban area; the grant of which is evidenced by certificate under his hand and which is known and called C of O. (See Section 9). Indeed, Section 9 of the Act makes it clear that a C of O can be granted by the Governor to any person, can be granted when the person in occupation of the land under a customary right of occupancy applies for it in a prescribed form; and when any person is entitled to it. Furthermore, under the provisions of Section 9, the Governor is

empowered to cancel a C of O if the person in whose name it has been issued without lawful excuse refuses or neglects to accept and pay for the certificate or revoke it depending on the circumstance of its grant.

It is in my considered view clear from the facts of this case that whatever C of O that was granted the 2nd Appellant is not in respect of government land consequent to an acquisition under the Act. The 2nd Appellant therefore clearly does not derive his title to the land evidenced by his C of O from the Governor but from the family which sold the same to him. In my considered view there is therefore nothing relating to the genuineness or validity of the C of O vis–vis the title of the 2nd Respondent that makes the Governor a necessary party in the case of the Respondent which is basically challenging the claim of the Appellants to the land whether as original owners or transferred owners. It is in my considered view also worthy to note what Ogbuagu, JSC; said regarding certificate of occupancy in his lordship?s concurring judgment in the case ofOMIYALE V. MACAULAY (2009) LPELR ? 2640 (SC) and it goes thus:-<br< p=””

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?xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx This is because, the effect of Section 34 of the Land Use Act on or in respect of the title of a person with title to land before the coming into force of the Act, is that vested rights (such as is in the instant case leading to this appeal), CANNOT be defeated by the application of say Sections 1 and 5 of the Act. The prerequisite for a valid grant of a Certificate of Occupancy, is that there must not be in existence, the valid title of another person with legal interest in the same said land at the time the certificate was issued.
xxxxxxxxxxxx For a Certificate of Occupancy under the Act to be therefore, valid, there must not be in existence at the time the certificate was issued, a Statutory or Customary owner of the land in issue or dispute who was not divested of his legal interest to the land prior to the grant. In other words, where a Certificate of Occupancy has been granted to one of two claimants who has not proved a better title (as

the Appellant), it must be deemed to be defective, to have been granted or issued erroneously and against the spirit of the Act and the holder (such as the Appellant), would have no legal basis for a valid claim over the land in dispute. It must be stressed and this is also settled that a Certificate of Occupancy, does not confer legal right to possession where such possession, was procured following acts of trespass such as in this case leading to this appeal. In other words, possession cannot be properly and validly secured by an act of trespass or acquisition of a Certificate of Occupancy procured after this trespass. So held this Court in the case of Datoegoem Dakat v. Muse Dashe (1997) 12 SCNJ. 90 – per Ogwuegbu, JSC. The holding of a Certificate of Occupancy whether Statutory or Customary, is at best a prima facie evidence of title of the land covered by it. But its exclusive possession, is rebuttable. See the case of Dapub v. Kola (993) 12 SCNJ 1 citing the case of Chief Titiloye & 4 ors. v. Chief Olupo & 4 ors. (1991) 7 NWLR (Pt.205) 519 @ 530; (1991) 9-10 SCNJ. 122. See also the cases of Olahunde & anor. v. Prof Adeyoju (supra) and Alhaji

Kyari v Alhaji Alkali & 2 ors. (2001) 5 SCNJ. 421 @ 447, 448. I can go on and on in respect of this issue of the Appellant relying heavily on a purported but invalid Certificate of Occupancy. It need be stressed or always borne in mind as this is also settled, that the registration of a Certificate of Occupancy (as was done by the Appellant), does not and cannot, cure or validate any irregularities in its procurement. This is why there is the need for a person seeking such registration, to make prior enquiries and search. But invariably, regrettably and unfortunately, this will not be done by a desperate party who wants registration of his/her “title” Deed and grant of a Certificate of Occupancy, by all means. I sound this note of warning or can I say, free advise because, the mere registration, does not and will not, validate spurious or fraudulent instrument of title or a transfer or grant which in law, patently remains, invalid or ineffective. See the cases of Lababedi & anor. v. Lagos Metal Industries (Nig.) Ltd & anor. (1973) 8 NSCC 1 and Romaine v. Romaine (1992) 4 NWLR (Pt.238) 650; (1992) 5 SCNJ. 25 ? per Nnaemeka-Agu, JSC.
From the

foregoing, since it is also firmly settled that where it is shown by evidence, that another person other than the grantee of a Certificate of Occupancy, had a better right to the grant, a Court such as this Court, may have no option, but to set aside the said grantor otherwise, discountenance it as invalid, defective and/or spurious as the case may be. See the cases of Ogunleye v. Oni (supra) and Dzungwe v. Gbishe & anor. (1985) 2 NWLR (pt.8) 528 @ 540. S.C. xxxxxxxxxxxxxxxxxxxxxxxxxx?

Guided by the cases I have cited hereinbefore, I cannot but say that the Governor of Imo State clearly does not qualify as a necessary party in the case of the Respondent as conceived and fought before the lower Court and that the non-joinder of the said Governor has in no way or manner affected the competence of the Respondent?s case in as much as the case at its inception was properly constituted in that it had a plaintiff; defendants; and claims against the defendants. See AYORINDE V. ONI (2000) LPELR ? 684 (SC), (2000) 3 NWLR (Pt. 649) 348. The lower Court in my considered view was eminently correct in its conclusion on the issue.

Flowing from all

that has been said is that issue 3 is resolved against the Appellants and in favour of the Respondent.

APPELLANTS? ISSUE 1 ? WHETHER THE CLAIMANT (NOW RESPONDENT) ESTABLISHED BETTER TITLE TO THE LAND IN DISPUTE AGAINST THE DEFENDANTS (NOW APPELLANTS).
In dwelling on this issue, the Appellants referred to paragraph 2 of the Respondent?s pleading as describing the land in dispute to be ?Ishi-Ugwu? and that he gave evidence to this effect. That in paragraph 19 of his pleading, the Respondent also averred that the ?Ishi-Ugwu? land in question ?involves or consists of plots 158, 159, 160 and 161 of the Ugwu Orji Layout”. Having referred to the evidence of the Respondent regarding the name of the land in dispute and the evidence of PW2 which situated or fixed the land in dispute at Works Layout, the Appellants said that there was no evidence from the Respondent that Ugwu Orji Layout is the same as Works Layout or is within the same Layout. The Appellants also submitted that aside from the Respondent?s pleading and contradictory evidence stated above, there was no evidence from the Respondent in proof of

the exact extent, size or dimension of the land in dispute allegedly trespassed into by the Appellants. This situation the Appellants submitted cannot ground the grant of injunction and cases considered relevant were cited in aid.

Also referring to the evidence of the Respondent to the effect that he sold part of the land in dispute the Appellants submitted to the effect that the Respondent could not bring an action in respect of such land which he has sold, and that this makes it unclear the area of land to which the Respondent’s claim relates. This is more so as the Respondent did not produce any dispute/composite plan to show the area he claims or the area allegedly trespassed into by the Appellants. Cases considered to be relevant were cited.
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It is the stance of the Appellants that the failure of the Respondent to prove the exact identity of the land in dispute renders any judgment in his favour a nullity. This is because, where a Plaintiff fails to prove the exact extent of boundaries of the area of land he claims, his action should be dismissed. Cases considered relevant were cited. The Appellants further submitted that since the Respondent

claimed absolute exclusive title to the land in dispute by Exhibit A, the burden was on him to prove the validity of the said exhibit which is not an instrument of title and cannot be evidence of title having regard to Sections 2 and 15 of the Land Instrument Registration Law, Cap. 72 Laws of Eastern Nigeria 1963 as applicable in Imo State. That it was for the Respondent who pleaded and tendered Exhibit A in proof of the partitioning of the land in dispute and other parcels of land called Uhuo Ukwuala and Egbelu sometime in 1985 to produce cogent and satisfactory evidence of the alleged partitioning. That the failure of the Respondent to mention the portions got by each of the sons of Agnes Njoku Akujobi who owned the land in dispute before partitioning was fatal. It is also the submission of the Appellants that if indeed, there was partitioning of the family land in 1985, as alleged by the Respondent, the effect would have been to vest in each individual member of the family an absolute personal title to the share he got and that this being the case there would have been no need to sell part of the land in dispute as family land in 1993 or for PW3 to act on

behalf of the family in respect of part of the land in dispute in 1993. References were made to relevant portions of evidence of witnesses and cases considered to be relevant were cited. Having referred to other pieces of evidence of witnesses called by the Respondent to show that contradictory evidence was adduced on the issue of the partitioning of the family land as claimed by the Respondent, and stating the position of the law to be that the success of a claimant in an action for declaration of title to land or trespass depends entirely on the strength of his own case and not on the weakness of the defence, the Appellants submitted that the lower Court was wrong in holding that the Respondent had shown better title to the land than the Appellants and in awarding damages against the Appellants for trespass. This is because damages for trespass can only be awarded in favour of a party that has satisfactorily proved title to the land or presented cogent evidence to show that he was in effective possession prior to the alleged trespass. Cases considered relevant were cited. The Appellants concluded by urging the Court to resolve issue 1 in their favour.<br< p=””

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In dwelling on this issue, it is the stance of the Respondent that he proved a better title to the land in dispute and that the lower Court was right to have given him judgment in respect of all his reliefs. In this regard, the Respondent submitted to the effect that he established the traditional history regarding the land in dispute; while the Appellants in their statement of defence did not plead how their root of title ? Madam Agnes Njoku Akujobi came to own the land. The Respondent also submitted to the effect that he proved his title to the land through Exhibits A and B.

The Respondent submitted that the Appellants failed woefully to convince the lower Court that there was a sale of land in dispute by his family to the 3rd Appellant in 1988. That the Appellants did not call any of his brothers or any witness to the said sale of the land in dispute to the 3rd Appellant. Neither did he tender any document signed by the four male children of Agnes Akujobi transferring title to the said land to the 3rd Appellant and could not have dislodged the straight forward traditional history of the Respondent.
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While agreeing with the submission of

the Appellants in respect of the grant of injunction over land, it is however the position of the Respondent that he proved the exact extent, size and dimension of the land in dispute trespassed into by the Appellants. That in proof of his case, he tendered in evidence Exhibit B and Exhibit G and also called PW4 ? the surveyor who made Exhibit G. Though not conceding that he did not tender a composite survey dispute plan, the Respondent said it was worthy of note that inside Exhibit E is a survey plan showing the exact area of the land in dispute in respect of which the certificate of occupancy was fraudulently obtained, and which the Respondent was asking the lower Court to set aside in paragraph 24 (A) of the statement of claim. He also submitted that where the area of the land in dispute is well known to both sides, the issue of proof of same does not arise again as the lower Court cannot possibly reach a conclusion that the area claimed is not certain. That in circumstances as in this case, the land cannot be described as uncertain. It is the stance of the Respondent that Exhibit A need not be an instrument of title to land as stated in Sections 2

and 15 of the Land Instrument Registration Law Cap 72, Law of Eastern Nigeria 1965 to be a valid document of transfer of interest in land. It is also the stance of the Respondent that he and his late brother got the land in dispute and two other lands namely, ?Uhu Ukwuala and Egbelu? as their inheritance from their father?s estate, and need no instrument of title to own a family land (the land in dispute). It is equally the stance of the Respondent that Appellants did not tender the purported power of Attorney which they alleged his family kitchen unit used in transferring title to the 3rd Defendant in 1982. That they did not tender the said document because the Appellant know that if they tendered any such documents, the content will be against them and this Court was urged to so presume under Section 149 (d) of the Evidence Act, 2011. This is more so as Exhibit C contains what the Appellants were hiding from the Court. That the recital in the said Exhibit described the 1st Appellant as the absolute owner in possession by inheritance of the land; he called ?Ugwu Orji? situated along Ugwu Orji. That it was clear from the Exhibit

that the 1st Appellant sold the land secretly and without the consent of the other members of Agnes Akujobi family. That without conceding that the land in dispute is a family land, if it is sold as a personal property, the said sale is void and the purchaser gets nothing.
This Court was urged to resolve issue 1 in favour of the Respondent as he proved a better title to the land in dispute than the Appellants

It is in my considered view obvious from the summary of the respective cases of the parties undertaken by the lower Court in its judgment and which has been reproduced hereinbefore, that despite the traditional history in respect of the land in dispute pleaded by the Respondent both parties are ad idem that some parcels of land including the land in dispute became family property after the death of Mrs. Agnes Njoku Akujobi. This being the case, it is the Respondent who by this action is claiming exclusive ownership of the land in dispute consequent to its having been partitioned that in order to succeed in his claims has the burden to establish a better title to the land in question. See the case of OKELOLA V. ADELEKE (2004) LPELR ? 2438

(SC), (2004) 13 NWLR (Pt. 890) 307. This is aside from the position of the law as stated in the judgment of the lower Court that when a plaintiff in a land case claims damages for trespass and injunction against a defendant who asserts that the land in dispute belongs to him, title to the said land becomes an issue. Indeed, the position of the law as enunciated in the cases cited hereafter, is that although generally a claim in trespass is rooted in exclusive possession and all a plaintiff needs prove is that he has exclusive possession of the land in dispute, once a defendant claims ownership of the same land, title is put in issue and the plaintiff to succeed must show a better title than that of the defendant to the land in dispute. See UDE V. CHIMBO [1998] 10 SCNJ. 23; and FASIKUN V. OLURONKE [1999] 1 SCNJ. 105. The position becomes more compelling where the plaintiff claims that he is entitled to the possession of the land in dispute. See OLOHUNDE V. ADEYOJU [2000] 6 SCNJ. 470. It is also worthy to note that the Respondent in the instant case being the party who brought the action against the Appellants must succeed on the strength of his own case and not

on the weakness of the case of the Appellants.

The Appellants have argued that the land in respect of which the lower Court granted the Respondent the injunction he sought against them lacks precision in that its size and extent are not known. The lower Court in its judgment simply granted the injunction in the instant case in relation to the land in dispute.
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The pertinent question then is, how did the Respondent describe the land in dispute? The Appellants would appear to have demonstrated in their brief of argument that the Respondent was absolutely inconsistent regarding the land in dispute. In paragraph 2 of the statement of claim, the Respondent described the land in dispute as Ishi-Ugwu situate at Umuimeka. In paragraph 19 of the same process, the Respondent averred that ?the Ishi-Ugwu land of the plaintiff is involved in Plots 158, 159, 160 and 161 of the Ugwu-Orji Layout. The defendants have no title or possession over any of the Plots including Plot 146?. Again in paragraph 23 of the statement of claim, the Respondent averred that ?part of Ishi-Ugwu land of the plaintiff fell into Plot 159 Ugwuorji Layout. The said portion

was sold by the Plaintiffs in 1993. The sale transaction took place in the Akujobi larger family to the knowledge of the 1st Defendant who did not oppose.? As it can be seen from the submissions of the Respondent that have been highlighted hereinbefore, it is his stance that he has proved the identity of the land in dispute through Exhibit G. Exhibit G on its face declares that it was made on 9/3/2001. The exhibit shows the entire Akujobi family land as shown in Plan No. IM/GA.5843/77. This plan shows no plots and Respondent throughout the length and breadth of this statement of claim made references to plots and their number as constituting the land in dispute. A building under construction is shown in the plan. It would appear from the submissions of the Respondent as highlighted herein before that the building under construction shown therein is the cause of action and therefore constitutes the land in dispute. However, no evidence was adduced by the Respondent to tie the parcel of land shown in Exhibit G and which was depicted as the cause of action with the land in respect of which the Appellants averred that a C of O was issued to the 2nd

Appellant. The lack of evidence in this regard is understandable as the Respondent who had the good sense in tendering a certified copy of a counter affidavit to which a document titled Deed of Conveyance made the 12th day of November, 1982 between the 1st Appellant and 3rd Appellant (who is the vendor to the 2nd Appellant) was attached did not have the good sense of procuring and tendering a certified copy of the C of O which he alleged the 2nd Appellant has in respect of the land which he claimed was improperly sold to the 3rd Appellant by the 1st Appellant on the ground that the said land had been partitioned to him and which land can only be said to be part of the land in dispute as shown in Exhibit G. The situation therefore is that when the term land in dispute is used in this case, there is a doubt as to whether it is the whole of the land verged in red in Exhibit G or the one said to be the cause of action. This obvious imprecision regarding the land in dispute even if the portion of land on which the 2nd Appellant is building is known to the Appellants in my considered view makes the land in dispute amorphous and indeterminable to sustain an

injunction.

Furthermore, it is simply incomprehensible to me how the lower Court could have granted an injunction in respect of the land over which the 2nd Appellant has a C of O (which is undoubtedly a public document) given the failure of the Respondent to tender the certified copy assuming the said land is the land in dispute and to have gone to the extent of setting aside the said C of O. This is against the backdrop of the position of the law that no Court had the vires to set aside a process that it has not sighted. It is my considered view that a document which a party wants the Court to set aside has to be produced before the said Court as a piece of real evidence and where as in the instant case the document is a public document, then its certified copy has to be placed before the Court. If this is not done, I can only wonder how it can be said that the fact of the existence of such a document has been proved. See in this regard, the case of LEKWOT V. JUDICIAL TRIBUNAL ON CIVIL AND COMMUNAL DISTURBANCES IN KADUNA STATE [1997] 8 NWLR (Pt. 515) 22.
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I have stated hereinbefore that it was for the Respondent who is asserting that the Akujobi

land which he and his brothers claimed to have inherited from their mother had ceased to be family land consequent to its partition among the persons that collectively owned it. It is worthy of note that the case of the Respondent is not that the 1st Appellant improperly sold the land in dispute being family land either as his own or in a capacity that he lacked. The need for the Court to be satisfied in respect of the precise nature of the title claimed, that is to say, whether it is title by virtue of original ownership, customary grant, conveyance, sale under customary law, long possession, or otherwise and; evidence establishing title of the nature claimed finds support in the cases of ADESANYA V. ADERONMU [2000] 6 SCNJ. 242; and OKELOLA V. ADELEKE (supra).

Now, the Supreme Court dwelling on determination of family property per Ayoola, JSC in the case of OLORUNFEMI V. ASHO (2000) 2 NWLR (Pt. 643) 173, said:-
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There is no doubt that one of the methods by which family property can be determined is partition by which property which belonged to the family is split up into

ownership of the constituent members of the family. The property may be, but is not invariably, divided among individual members of the family so as to vest absolute ownership in individual members. The division may be among constituent branches of the family. Where the division is among constituent branches of the family, a new family ownership is created in as many places as the property is divided, each branch becoming the owner of the portion partitioned to it. Partition must be by the general consent of the family. (See Kadiri Balogun v. Tijani Balogun 9 WACA 78). The head of the family cannot on his own partition family property without the consent of joint owners of the property joining in the voluntary partition of the property. Although partition could be by deed, in customary law oral partition, is valid: Taiwo v. Taiwo 1 NSCC 46, 50. Partition is to be distinguished from allotment. Allotment does not determine the family ownership of the land so as to make the allotee an absolute owner. It can be effected by the head of family alone. (See generally, Majekodunmi v. Tijani 11 NLR 74, Onisiwo & Ors. v. Gbamgboye & Ors. (1941) 7 WACA 69). Partition

which does not make provision for all of the constituent branches of the family is void. Whether there was partition or allotment is a question of fact. The mere use of the word “partition” may not settle the issue where there is an issue whether or not family property is determined. In Dosunmu & Ors. v. Adodo (1961) L.L.R. 149, at 150, Sir De Lestang C.J. (Lagos) said:
“That being so, the principal question for decision in this appeal is whether the allocation of the plots by the head of the family was a partition of the property between the branches or whether it was a grant of occupational rights only. This is primarily a question of fact to be decided on the evidence… The significance of these general principles is that where details of partition are not given in the pleadings and the fact of determinative partition is not common ground, the mere use of the term “partition” may not be conclusive of the fact that family ownership has been determined. xxxxxxx?
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I have perused the record painstakingly, and also given serious consideration to Exhibit A the Respondent relied heavily upon

in the proof of the fact that their family land was partitioned and I cannot but say that the said exhibit does disclose this and or support the position. It is a document headed ?Agreement for the lease of some piece of land at IshiUgwu, UhuoUkwuala and UhuoEgbelu?. All that the document shows is that certain parcels of land were released by some of the Respondent?s brothers to the Respondent in lieu of the money which the Respondent did not get from the plots of family land which the 1st Appellant and Shedrack (PW2) sold. The document did not show that the whole of the Akujobi family land was shared amongst all the sons of Akujobi as claimed by the Respondent. To cap it all the evidence of PW3 referred to by the Appellants in their brief of argument and Exhibit F written on behalf of the family as at 29/6/1993 rendered the evidence adduced by the Respondent concerning the partition of their family land carried out by Exhibit A as far back as 1985 to be glaringly contradictory. Surely contradictory evidence adduced by a party in respect of an issue forming the basis of his case cannot be said to have established the issue. The bottom line is

that though the Respondent has shown by Exhibit A that some of his brothers released some parcels of land to him to assuage for short changing him as it were, the family nature or tenure of the Akujobi land was never determined. It is therefore obvious that the Respondent having not established the partitioning of the Akujobi family land he relied on as conferring exclusive ownership of any part of the said land on him, has woefully failed to establish his case as set up in the pleadings. Therefore there is actually not need to dwell on the case of the Appellants.

Flowing from all that has been said is that Appellants? issue 1 must be and is hereby resolved in their favour.
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In the final analysis, the instant appeal is meritorious in as much as Appellants? issue 1 has been resolved in their favour despite the initial resolution of their issues 2 and 3 against them. Furthermore, given the resolution of Appellants? issue 1 in their favour, it follows that the judgment of the lower Court in favour of the Respondent must be set aside and it is hereby set aside. In the place of the judgment entered in favour of the Respondent, one

dismissing the claims before the lower Court in the instant case is hereby entered.

I make no order as to costs.

RAPHAEL CHIKWE AGBO, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother Lokulo-Sodipe, JCA and I agree with him that the plaintiff?s suit at the Court below was statute-barred and ought not to have been entertained by the trial Court.

I too allow the appeal and abide by the consequential orders contained in the lead judgment.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have perused the lead judgment delivered by my learned brother, Ayobode Olujimi Lokulo-Sodipe, JCA. I agree entirely with his reasonings and conclusions which are in tandem with mine. I also agree with the consequential orders made therein, inclusive of the one with regard to costs.

Appearances

E. O. NwagwuFor Appellant

AND

K. M. OnyeamaFor Respondent