JOSEPH OKOYE & ANOR v. MRS. COMFORT EDUZOR & ANOR
(2018)LCN/11974(CA)
In The Court of Appeal of Nigeria
On Friday, the 13th day of July, 2018
CA/E/311/2013
RATIO
COURT AND PROCEDURE: STATUTE OF LIMITATION
“The law has over the years remained firmly settled to the effect that a limitation law circumscribes the period within which a cause of action can be litigated upon. Therefore, a person may have a cause of action which he automatically looses if he failed to institute or litigate on the cause of action within the period stipulated in the limitation law which guides the subject matter of the cause of action. The Supreme Court, more recently reiterated this principle of the law in Attor. Gen. of Adamawa State & Ors v. Attor. Gen. of the Federation (2014) LPELR 23221 at P. 31, paras. B ? F, to the effect that: ”A statute of limitation removes the right of action, the right of enforcement and the right to 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, if such a cause of action is instituted outside the statutory period allowed by such law. Another way of stating the above proposition is that any action that is commenced after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (pt. 584) 1; Obiefuna v. Okoye (1961) 1 All NLR 357; Egbe v. Adefarasin (No. 2) (1985) 1 NWLR(pt. 3) 549; Fadare v. A. G., Oyo State (1982) 4 SC 1; Abubakar v. Governor of Gombe State (2002) 17 NWLR (pt. 797) 533.” per Peter – Odili, J. S. C.” PER TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
1. JOSEPH OKOYE
2. ALPHONSUS OKOYE
( FOR THEMSELVES AND ON BEHALF OF LATE RAYMOND OKOYE FAMILY OF ORJI VILLAGE, ENUGWU-UGWU) Appellant(s)
AND
1. MRS. COMFORT EDUZOR
2. UCHENNA EDUZOR Respondent(s)
TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment):
This appeal is sequel to the decision of the Anambra State High Court of Justice, holden at Awka, which was delivered on 23rd January, 2012.
The appellants had claimed at the Court below against the respondents, thus:
1. A declaration that the plaintiffs are the persons entitled to the grant of statutory Right of Occupancy in respect of the land in dispute, situate, lying and being along Orji Village Road, Enugwu-Ukwu known as Raymond Okoye compound.
2. N500,000 as special and general damages for acts of trespass of the defendant against the piece of land described above.
On their part, the respondents in their defence, counter-claimed against the appellants, and prayed for the following reliefs, namely:-
a. A Declaration that the 2nd defendant Uchenna Eduzor is the person entitled to the grant of statutory right of occupancy in respect of the land in dispute situate, lying and being along Orji Village Road and verged Green in the Survey Plan of the 1st defendant.
b. A Declaration that the 2nd defendant, Uchenna Eduzor is the person entitled to the grant of statutory right of occupancy in respect of the piece of land which the plaintiffs enclosed in their compound verged Yellow in the 1st defendant’s survey Plan.
c. N1,000,000 as general damages for the acts of trespass of the plaintiffs on the land now in dispute.
d. An Order of perpetual injunction restraining the plaintiffs, their agents and privies from further trespass into the land now in dispute.
The parties filed and exchanged their pleadings and thereafter proffered parole evidence and tendered into evidence, some documentary exhibits. Thereafter, the learned counsel to the parties, filed and exchanged their respective written addresses which were later adopted by each of them at the end of parole evidence proffered by the witnesses for each party. In his judgment, the learned trial judge entered judgment for the appellant in respect of part of the land in dispute and also entered judgment for the respondents in respect of the land in dispute, as claimed in the respondents’ counter-claim. The appellant was not satisfied with the decision of the learned trial judge, in awarding part of the land in dispute as per the respondents’ counter-claim, to the respondent.
Essentially, the appeal is targeted and against that part of the decision which entered judgment for the respondents in their counter-claim and declaring the 2nd respondent as the person entitled to the grant of right of occupancy in respect of the land situate, lying and being along Orji Village Road, Enugwu-Ukwu, Verged green but excluding the portions Verged Yellow and red in Exhibit B – defendants Plan No. BA/AN/LD/03/2005. Furthermore, the appellant was irked against the award of Ten Thousand Naira (N10,000) damages against him for trespass into the respondents’ land and being perpetually restrained from any further trespass into the said respondents’ land as adjudged in the counter-claim.
The appeal was anchored on two grounds of appeal, namely:
GROUND ONE
The learned trial judge erred in law in assuming jurisdiction over the respondents counter-claim in Suit No. A/54/2005 in respect of the land verged Green in the respondents’ dispute Plan No. BA/AN/LD/03/2005 when the subject matter of the said Counter-claim is statute barred by virtue of Section 22(2) of ACTION LAWS, Laws of Anambra State Cap 3 limiting the time for institution of land suits to 12 years.
Particulars
1. The Counter-claim of the respondents was premised on the whole land verged Green in their Plan No. BA/AN/LD/03/2005 (Exh. B) occurred much over 12 years and the evidence of the respondents chronicled the acts of trespass (causes of action) by the appellants on the said land verged Green as follows:-
(i) Use of part of the land in dispute by the appellant’s father, late Raymond Okoye as access Road before the Nigeria Civil War despite opposition by late Nwafor Eduzor, the 1st respondent’s husband and father of the 2nd respondent. The act of trespass never ceased.
(ii) In 1986, the appellants despite opposition by late Nwafor Eduzor, the 1st respondent’s husband and father of the 2nd respondent erected wall fence and gate and enclosed into the appellant’s compound the portion verged YELLOW from the whole land verged GREEN despite the respondents’ opposition. The appellants also widened the access road and made same motorable as in the area verged RED in the entire land verged GREEN despite the respondents? opposition. The acts of trespass never ceased.
(iii) In 1990, the appellants buried a member of their (appellants) family inside the said land verged GREEN despite the respondents’ opposition. The burial was not reversed.
3. From the chronicled alleged acts of trespass by the appellants on the land verged GREEN which was the subject of the respondents’ Counter-claim, the cause of action over the land in dispute verged GREEN arose before the Nigeria Civil War in 1986.
GROUND TWO
The learned trial judge erred in law in considering in portions the land in dispute in the respondents’ Counter- claim when indeed the respondents identified the land in dispute as a whole verged GREEN in their (respondents) dispute Plan No. BA/AN/LD/03/2005.
Particulars
The trial judge on its own considered the land in dispute in the respondents’ counter-claim in portion when the respondents fought the Counter-claim based on the entire land verged GREEN in their dispute plan as a whole.
In order to activate the prosecution of the appeal, the appellant’s brief of argument, prepared by C. A. Nwokike, Esq., was dated and filed on 15th February, 2017. On their part, the respondents’ brief of argument settled by Amaka Ezeno, Esq., dated 9th Nov., 2017 and filed on 10th Nov., 2017 was deemed by this Court as properly filed on 15th November, 2017. Thereafter, the appellant’s reply brief dated 24th November, 2017 was filed on same date.
The appellant nominated two issues for the determination of the appeal, thus:
(1) Whether the Court below is not wrong when after identifying the entire land verged GREEN in the respondents’ dispute as the subject of the Counter-claim went ahead to pronounce that the Counter-claim is statute barred over some portions of the entire land in dispute verged GREEN and assumed jurisdiction over other portions of the same land verged GREEN.
(2) Whether the Court below can apply different law or consideration to a definite portion of land identified to be in dispute.
The respondents also suggested two issues for the resolution of the appeal, to wit:
i. Whether the Actions Law of Anambra State is applicable to the parcel of land in question which title is derived and held under the native law and custom of Enugwu-Ukwu.
ii. Whether the learned trial judge was right in holding that the 2nd respondent was entitled to his counter claim in respect of the land situate, lying and being along Orji Village Road, Enugu-Ukwu, verged Green in Exhibit B, but excluding the portions verged Yellow and Red for being caught up with laches and acquiescence and statute of limitation?
Upon my perusal of the appellant’s claim vis-a-vis the respondents’ counter claim, the judgment of the Court below and the two grounds of appeal against that judgment, I am satisfied that issue 1 formulated by the respondents for the determination of the appeal, will suffice in my consideration and resolution of this appeal.
A resum of the contentions of the appellant’s learned counsel are that since the learned trial judge had identified the respondents’ land as the entire land verged green in respondents’ dispute survey plan as the subject matter of the counter-claim which he had pronounced as being statute barred at page 221 of the record of appeal by virtue of Section 22(2) of the Actions Law of Anambra State, his Lordship was wrong to have awarded portions of the same land verged green, in favour of the respondents. He insisted that the claim of the respondents in their counter-clam was definite and embodied in the entire land verged green in the respondents’ Exhibit ‘B’.
He referred to paragraphs 6(f), (g), (i) and 7(b) of the respondents’ Further Amended Statement of Defence and Counter-claim at pages 75 & 76 of the record of appeal, which pleaded facts relating to the portion of land verged green which are in tandem with the respondents’ counter-claim in respect of the land verged green in the dispute plan – Exhibit B, which according to him, were caught up with the Anambra State’s Actions Law – a statute of limitation.
He furthermore, insisted and persisted in his contentions that since the respondents’ counter-claim over the land verged green was filed in July, 2005 over a right of action which accrued over 12 years before 2005 when the counter-claim was filed, was an infraction of Section 22(2) of the Actions Law Cap. 3, Revised Laws of Anambra State, 1991 which provides that actions over land cannot be filed after 12 years, of the accrual of the cause of action. He referred to authorities such as Ajayi v. Adebiyi (2012) 11 NWLR p. 137; Merchantile Bank Nig. Ltd v. Feteco Nig. Ltd (1998) 3 NWLR (pt. 540) 143; Emiator v. Nigerian Army (1999) 12 NWLR (pt. 631) 362; Ibrahim v. JSC (1998) 14 NWLR (pt. 584) 1; Okenwa v. Military Gov. Imo State (1997) 6 NWLR (pt. 507) 154 at 167, all to the effect that a right of action is extinguished and not available to a claimant who failed to institute his action within the period prescribed in a limitation law.
The learned respondents’ counsel in his responses on this issue, submitted that by virtue of Section 18 of the Actions Law of Anambra State, the said Law is inapplicable in the circumstances of this case because according to him, title to the land in dispute was derived under customary law. He referred to the pleadings of the parties which according to him, indicate that the parties are ad idem that the land in dispute is held under the native law and custom of Enugwu-Ukwu. He referred to paragraphs 6 and 7 of the appellant’s further amended statement of claim to the effect that the land in dispute is held under Enugwu-Ukwu native law and custom. Furthermore, he referred to paragraph 6(h) of the respondents’ further amended statement of defence/counter-claim, wherein it was averred that the land in dispute devolved on the 2nd respondent by virtue of his inheritance of the same land from his father – Nwafor Eduzor, according to the native law and custom of Enugwu-Ukwu.
He placed reliance on the authorities of High Chief Sunmonu Uwangwe & Anor v. Mr. Orisamadegun Oshorunaiye & Ors. (2014) LPELR 23704 CA, decided under the Ondo State of Nigeria Limiation Law and David Ogunlade v. Ezekiel Adeleye (1992) LPELR 2340 (SC) which was decided pursuant to Section 4(4) of the Limitation Law, Cap. 64 of the Laws of Western Nigeria, to the effect that the said Limitation Law which provided for the time limit within which an action can be filed in recovery of land does not apply to lands under customary law by virtue of Section 1(2) of the Limitation Law.
Resolution:
The law has over the years remained firmly settled to the effect that a limitation law circumscribes the period within which a cause of action can be litigated upon. Therefore, a person may have a cause of action which he automatically looses if he failed to institute or litigate on the cause of action within the period stipulated in the limitation law which guides the subject matter of the cause of action. The Supreme Court, more recently reiterated this principle of the law in Attor. Gen. of Adamawa State & Ors v. Attor. Gen. of the Federation (2014) LPELR 23221 at P. 31, paras. B ? F, to the effect that:
”A statute of limitation removes the right of action, the right of enforcement and the right to 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, if such a cause of action is instituted outside the statutory period allowed by such law. Another way of stating the above proposition is that any action that is commenced after the period stipulated by the statute is totally barred as the right of the plaintiff or the injured person to commence the action would have been extinguished by such law. See Ibrahim v. Judicial Service Committee, Kaduna State (1998) 14 NWLR (pt. 584) 1; Obiefuna v. Okoye (1961) 1 All NLR 357; Egbe v. Adefarasin (No. 2) (1985) 1 NWLR(pt. 3) 549; Fadare v. A. G., Oyo State (1982) 4 SC 1; Abubakar v. Governor of Gombe State (2002) 17 NWLR (pt. 797) 533.” per Peter – Odili, J. S. C.
In his own contribution, Muhammad, JSC, re-echoed the same principle at pages 41 – 42, paras A – C, thus:
”My Lords, the whole connection of ‘Limitation’ action in respect of a given subject matter postulate a statutory period after which a lawsuit prosecution cannot be brought in Court. It usually comes about by legislation (Statutes) and it can even be made by a written agreement between contracting parties. Thus, a statute of limitation is law which bars claims after a specified period have elapsed. It establishes a time limit for suing in a civil case based on the date when the claim accrued. The purpose of such a statute of course, is to require diligent prosecution of known claims, thereby providing finality and predictability in legal affairs and ensuring that claims will be resolved in good time while evidence is reasonably available and fresh. The authors of Corpus juris Secundam (C. J. S.) equate statutes of Limitation to laches. They stated, inter alia:
?Statutes of Limitations, like the equitable doctrine of laches, in their conclusive effects are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded and witnesses have disappeared.”
The limitation law in the instant case, is the Actions Law, Cap. 3, Revised laws of Anambra State, 1991 and Section 22(2) thereof provides, inter alia:
”No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it accrued to some person through whom he claims, to that person.”
The intendment of this Law, is that in actions bordering on recovery of land, the institution of such an action by a claimant, must be done not later than 12 years from the accrual of the right of action to the claimant. Put differently, such an action must be filed by a claimant within 12 years of the accrual of the right of action. The phrase: accrual of right of action, means no more than when the cause of action arose. The latter was defined in Fred Egbe v. The Hon. Justice J. A. Adefarasin (1987) 1 S. C. 1 at p. 37 to mean ‘the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief.’
Furthermore, that ‘a statute of limitation removes the right of action, the right of enforcement, the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce.’- per Oputa, JSC.
In determining the cause of action in any particular matter, the Court peruses only the plaintiff’s statement of claim. Ogbimi v. Ololo (1993) 7 SCNJ (pt. II) 447 at 454; Attor. Gen. Kwara State & Ors v. Raimi Olawale (1993) 1 SCNJ 208 at 221.
In the instant case, the respondents, being the counter-claimants averred at paragraph 6(d), (e) and (f), of the further amended statement of defence/counter claim, at page 75 of the record of appeal, inter alia:
“(d) The land in dispute was originally owned by Nwakuekwu, the 2nd defendant’s forefather, who first cleared and farmed on the land. Nwakuekwu begat Eduzor who inherited the land in dispute at the death of his father, Nwakuekwu. Eduzor begat Nwafor, the 2nd defendant’s father who being the only son of his father inherited the land in dispute from Eduzor at the death of Eduzor in 1938. Nwafor, during his lifetime was exercising maximum acts of ownership over the land in dispute with the 1st defendant including farming on the land in dispute, planting economic trees thereon and reaping same and the said Nwafor and the 1st defendant’s various acts of ownership on the said land was not challenged by anybody including the plaintiffs until the death of Nwafor in 1987. At the death of Nwafor, the land in dispute devolved to the sons of Nwafor and the 2nd defendant is in custody of the said land as the head of Nwafor Eduzor family as same has not been partitioned among the children of the said Nwafor Eduzor.
(e) The said land bought by the plaintiffs’ father from late Columbus Offorah is landlocked (does not have an access road) as same was the farmland of Late Columbus Offorah who lived in another portion of land near the defendants’ house.
(f) Late Raymond Okoye, during his lifetime, was using a portion of the land now in dispute as an access road which was vehemently opposed by late Mr. Nwafor Eduzor, the husband of the 1st defendant and father of the 2nd defendant, on the basis that the plaintiffs’ father should go to Columbus Offorah to give the plaintiffs’ father an access road since the said plaintiffs’ father bought the land which is not in dispute from Late Columbus Offorah.
It is clear to me as crystals that the land, the subject matter of the respondents’ counter-claim borders on a parcel of land, which is subject to native law and custom of inheritance of Enugwu-Ukwu of Njikoka Local Government Area of Anambra State. The learned trial judge, at page 222 of the record of appeal, so rightly found thus:
”The defendants hinged their case on traditional title and gave a run down on how their forefather deforested the land and used same. They pleaded and gave evidence of geneology and how the land devolved to the 1st defendant?s husband and eventually to the 2nd defendant as the 1st son. Incidentally, this evidence was not challenged under cross-examination. Even at that, the attempt by the plaintiffs to hinge their title on alleged purchase from Okoye Gagwo failed to make a headway. I do not therefore have difficulty in ascribing title of the remaining portions to the defendants and as such hold that the plaintiffs failed to prove the case in respect of that remaining portion.”
As I did indicate, the claim and counter-claim of both parties relate to the same land. The extent and identity was even made clearer during the visit to the locus. The land in dispute was properly identified. It is that portion which the plaintiff?s father allegedly bought from Okoye Gagwo. It is the same land the defendants deny the purchase and alleged that the 2nd defendant inherited through his father and tracing their genealogy and inheritance to their forefather who was the original founder.
Now, having found that the land in dispute counter-claimed by the respondents, was derived and held under native law and custom of Enugwu-Ukwu, the operation of Section 18 of the Actions Law of Anambra State forcefully comes into play. It provides, that:
”The provisions as regards limitation of actions provided in this law shall have no application where a person bringing an action to recover land, or the person through whom he claims, derived his title to such land solely under customary law.”
In a similar situation, such as it is in the present action, the Supreme Court, in David Ogunlade v. Ezekiel Adeleye (1992) LPELR 2340 (SC) where S. 4(4) of the Limitation Law, Cap. 64 of the Laws of Western Nigeria, 1959 was considered vis-a-vis Section 1(2) of the same Limitation Law, which is in pari materia with Sections 22(2) and 18 of the Actions Law of Anambra State 1991, held, at page 24 of the report, inter alia:
”As I stated earlier, S. 4(4) of the Limitation Law cannot be read in isolation from S. 1(2) of the said Law. The latter completely excludes the operation of the Limitation Law from those matters listed in S. 1(2). The claim before the Customary Court which is now on appeal before us is an action in respect of interest in land held by customary tenure. See Rotibi v. Savage 16 NLR 77 at 82. S.1(2) of the Limitation Law excludes the claim from the operation of the Limitation Law.” per Ogwuegbu, JSC.
Further see: High Chief Sunmonu Uwangwe & Anor v. Mr. Orisamadegun Oshorunaiye & Ors (2014) LPELR 23704 (CA), where Section 6(2) of the Limitation Law of Ondo State, Cap. 61 which is in pari materia with Sections 22(2) and 18 of the Actions Law of Anambra State, 1991, was considered; his Lordship, Abiriyi, JCA, held at pages 32 – 33 of the report, that:
”It is clear from the amended statement of claim that the action was for present trespass as at the time of the action and the statute of limitation could not possibly apply to it. The appellants also pleaded that the land was subject to native law and custom. Therefore the Limitation Law of Ondo State was not applicable. See Oyebanji v. Lawanson (2008) All FWLR (pt. 438) 243 – 244.
I agree with the submission of the learned counsel for the appellants that if the learned trial judge had looked at the paragraphs 8, 9, 14, 22 and 28 of the amended statement of claim and applied the applicable law, he would have arrived at a different conclusion which is that the appellants were claiming ownership of the land in disputes by inheritance under customary law which renders the Limitation Law inapplicable. The action was not statute barred.”
In view of the foregoings, I am satisfied that with the intervention of Section 18 of the Actions Law of Anambra State, 1991; the respondents’ counter-claim/action having bordered on a parcel of land which is subject of an inheritance under the native law and custom of Enugwu-Ukwu, Section 22(2) of the Actions Law of Anambra State, is inapplicable, in the instant case. Therefore, the counter-claim of the respondents was not statute barred. Hence, I resolve the sole issue in this appeal against the appellant. So, the appeal stands dismissed. The orders made by the learned trial Judge in respect of the respondents’ counter-claim, are each hereby affirmed.
Costs of N100,000 is awarded to the respondents against the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I had a preview of the leading judgment just delivered by my learned brother, TOM SHAIBU YAKUBU JCA. I agree with the reasons adumbrated therein and conclusions reached thereat to the effect that the appeal lacks merit and should be dismissed. The issues distilled by both sides of the divide have been adequately and admirably dissected in the said leading judgment. I humbly and respectfully adopt the same as mine. The appeal is thereby dismissed. I endorse the order made in the leading judgment with regard to costs.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my brother TOM SHAIBU YAKUBU, JCA.
I agree with his reasoning and conclusion. I also dismiss the appeal and allow the counter claim.
I abide by the consequential order made as to costs.
Appearances:
C. O. Nwokike, Esq.For Appellant(s)
Amaka Ezeno, Esq., (with S. A. Madubuike)For Respondent(s)
