KULLOMA v. MODUBE & ORS
(2021)LCN/15088(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, March 17, 2021
CA/G/94/2018
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
BABA ALH. KACHALLA KULLOMA APPELANT(S)
And
- NGUBDO SULE MODUBE 2. ADAMU MUSA NGULDE 3. MINISTRY OF LAND & SURVEY BORNO STATE RESPONDENT(S)
RATIO
WHETHER WHERE THE JURISDICTION OF A COURT TO ENTERTAIN AN ACTION IS CHALLENGED, THAT ISSUE MUST FIRST BE SETTLED BEFORE IT PROCEEDS TO ATTEND TO ANY OTHER ISSUE
The law is trite that where the jurisdiction of a Court to entertain an action is challenged, that issue must first be settled by the Court expeditiously before it proceeds to attend to any other issue. This is because where a suit is incompetent and a Court is without jurisdiction to entertain same, any further proceedings in the suit would be an act in futility as the decision rendered therein would be null and void ab initio. This position of the law was aptly stated by his lordship, Nweze, J.C.A. (as he then was) in Unilorin V. Oluwadare (2009) 19 WLR 730, 733 as follows: “Jurisdiction is to a Court what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that he has a genuine cause to be allowed to ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper as vigilant as he is always will readily intercept or query all persons who intrude in his domain. The above analogy may, fittingly, be applied to the invocation of the Court’s jurisdiction.” See also Okonkwo V. INEC (2014) LPELR-22486(CA); BSADP V. Abdullahi (2011) LPELR-9228(CA) 14-15; Onyema V. Oputa (1987) LPELR-2736(SC) 38-39, F-C, per Oputa, J.S.C. Thus, jurisdiction is fundamental and crucial for where there is a want of jurisdiction, the proceeding thereafter will be affected by a fundamental vice and would become a nullity, however well conducted they might otherwise be. I therefore find that the lower Court acted rightly when it first considered the issue of jurisdiction raised and also pronounced upon it promptly before proceeding any further. PER JUMMAI HANNATU SANKEY, J.C.A.
PURPORT AND EFFECT OF A LIMITATION LAW OR ACT
A Limitation Law or Act removes the right of action, the right of enforcement and the right to judicial relief and leaves a plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is statute-barred. Accordingly, 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, proceedings shall not be brought after the time prescribed by such statute – Araka V. Ejeagwu (2000) 15 NWLR (Pt. 692) 684. Therefore, whereas a plaintiff may have a cause of action, he loses the right to enforce that cause of action by judicial process because the period of time laid down by the Limitation Law for bringing such action had elapsed – Savannah Bank V. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212; Okere V. Amadi (2005) 14 NWLR (Pt. 945) 545. Any omission or failure to institute an action within the time so stipulated denies the Court the jurisdiction to entertain it. The operation of a limitation statute is of strict liability. Once the time provided by statute within which to institute an action has run out, the right to institute the action is lost forever – WAPC Plc V. Adeyeri (2003) 12 NWLR (Pt. 835) 517); Obembe V. Wemabod Estates Ltd (1977) 5 SC. The philosophy behind the Limitation Laws was stated by Niki Tobi, J.C.A. (as he then was) in Mercantile Bank (Nig) Ltd V. Feteco (1998) 3 NWLR (Pt. 540) 143, 156-157 thus: “A statute of limitation is designed to stop or avoid situations where a plaintiff can commence an action anytime he feels like doing so, even when memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering plaintiff…” Thus, the purport and essence of a limitation law is that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the period prescribed. An action instituted after the expiration of the prescribed period is said to be statute-barred. The essence is that a legal right to enforce an action is not a perpetual right but a right generally limited by statute. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law had elapsed. Put another way, the conspicuous effect of a Limitation Law is that legal proceedings cannot be properly and validly instituted after the expiration of the period. PER JUMMAI HANNATU SANKEY, J.C.A.
DUTY OF THE COURT OF APPEAL TO CONSIDER AND PRONOUNCE ON ALL ISSUES PLACED BEFORE IT
In Alafia V. Gbode Ventures Ltd (2016) LPELR-26065(SC) 16-17, the Supreme Court per Galadima, J.S.C., exhorted Courts lower in hierarchy to the Supreme Court, thus: “While this Court being the final Court of Appeal can afford not to pronounce on other issues placed before it where it finds that the Court lacked jurisdiction, the Court of Appeal whose decision on jurisdiction may be faulted by this Court should not be debarred for considering and pronouncing on such other issue(s) raised in the Appeal. It should pronounce on them, and the Court below has rightly done so in this case.” See also Garba (Rtd) V. Mohammed (2016) LPELR-40612(SC) 56-57, per Kekere-Ekun, J.S.C.; Arulogun V. COP, Lagos State (2016) LPELR-40190(CA) 9, per Augie, J.C.A. (as he then was); Dilli V. Adamu (2016) LPELR-40227(CA) 25, per Ekanem, J.C.A.; Brawal Shipping V. Onwadike (2000) LPELR-802(SC) per Uwaifo, J.S.C.; State V. Ajie (2000) LPELR-3211(SC) 9, per Onu, J.S.C.; & Katto V. CBN (1991) 9 NWLR (Pt. 214) 126, 149. PER JUMMAI HANNATU SANKEY, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Borno State in Suit No. BOHC/MG/CV/41/2015, delivered on November 15, 2016 by Adamu Z. Musa, J.
By a specially endorsed Writ of Summons and Statement of claim, the Appellant, as Plaintiff before the lower Court, claimed as follows from the Respondents, now Defendants:
a) “A declaration that the Claimant’s family is the rightful owner and has title, interest and rightful (sic) over that piece of land situated at Gwange III, New GRA, Bama Road Maiduguri, Borno State.
b) A declaration that the 2nd Defendant have (sic) no title, interest or right over that piece of land situated at Gwange III, New GRA, Bama Road Maiduguri, Borno State.
c) A declaration that the 2nd Defendant’s act of selling the piece of land at Gwange III, New GRA Maiduguri Borno State to the 1st Defendant was illegal and void.
d) Perpetual injunction restraining the Defendants by themselves or their privies, servants, agents or any person claiming title, interest or right over that piece of land situated at Gwange III, New
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GRA, Maiduguri, Bama Road Maiduguri, Borno State from entering, claiming or selling whole or any part of the said land in dispute.
e) An Order of demolition of the illegal structure erected on the Claimant’s land by the 1st Defendant.
f) An Order for payment of general or aggravated damages for unlawful trespass and erection of illegal structure erected on the claimant’s land by the 1st Defendant.”
The 1st Respondent denied the claim and joined issues with the Appellant. After pleadings were duly filed and exchanged, the Appellant adduced evidence in proof of his claim through six witnesses and two exhibits; while the 1st Respondent testified in his defence and tendered three exhibits. At the close of trial, the lower Court entered Judgment in favour of the 1st Respondent on November 16, 2016, striking out the Plaintiff’s claim on the ground that it was statute-barred, in addition to holding that the land did not belong to the Plaintiff.
Dissatisfied with this decision, the Appellant appealed to this Court vide his Notice and Grounds of Appeal filed on November 22, 2016, wherein he complained on four grounds.
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The Grounds without their particulars state thus –
i. “The learned trial Judge erred in law when he placed sole reliance on DW2A, a plan and DW2B, assessment of compensation without being certified as provided by the Evidence Act 2011 as amended.
ii. The learned Trial Judge erred in law when he fails (sic) to consider the prerequisite requirements of the provisions of Sections 28 and 44 of the Land Use Act 1978 while placing reliance on payment of compensation in this case after recognizing the title of the claimant in this case but he jumped to the conclusion that compensation have been paid in respect of the land in dispute.
iii. The learned trial Judge erred in law when he dismissed the Appellant claim and declared the Respondents the owners of the land in dispute without the Respondents filing a counter claim before him.
iv. The Judgment is against the weight of evidence.”
Thereafter, the Appellant sought an Order setting aside the Judgment of the lower Court.
At the hearing of the Appeal on 14-01-21, learned Counsel for the Appellant, A. Babawuro Esq., adopted the submissions contained in the
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Appellant’s Brief of argument settled by A. Mohammed Esq., as well as the submissions in the Appellant’s Reply Brief of argument filed on 19-12-20 in response to 1st Respondent’s Brief and that of 2nd and 3rd Respondents’ Brief of argument, in urging the Court to allow the Appeal and set aside the Judgment of the lower Court.
Thereafter, learned Counsel for the 1st Respondent, Auwal Idris Esq., also adopted the 1st Respondent’s Brief of argument filed on 21-12-20 but deemed duly filed on 14-01-21, and settled by Y.G. Bello, Esq., in urging the Court to dismiss the Appeal and affirm the Judgment of the lower Court.
Learned Counsel for the 2nd and 3rd Respondents, B. Yusuf, Esq., Assistant Director of Civil Litigation, Borno State Ministry of Justice, also adopted the 2nd and 3rd Respondents’ Brief of argument filed on 25-11-20, in urging the Court to dismiss the Appeal for lacking in merit and affirm the Judgment of the lower Court.
In arguing the Appeal in his Brief of argument, the Appellant distilled three issues for determination from his four grounds of Appeal as follows:
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- “Whether the trial Court was right when it held that the matter is caught by the Limitation Law, statute-barred? (Ground 4)
2. Whether the trial lower Court was right when it held that the plaintiff did not own the land in dispute on the ground that their father have collected compensation when the land is acquired by Government? (Ground 1)
3. Whether the land in dispute is at all acquired by Government having regard to the provisions of Section 28 of the Land Use Act, 1978 and taking in mind that the land is already covered by a certificate of occupancy? (Ground 2)
No issue having been distilled from Ground three (3) of the Grounds of Appeal, it is deemed abandoned and is accordingly struck out.
The 1st Respondent, in his Brief of argument, formulated one lone issue for the determination of the Court thus –
“Whether the trial Court was right to have dismissed the Appellant’s case for lack of proof under the balance of probability as required by law or not.”
On their part, the 2nd and 3rd Respondents adopted the issues for determination framed by the Appellant.
Having examined the grounds of appeal vis-a-vis the
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issues crafted for determination by the parties, I adopt issues 1 and 2 submitted for the determination of the Court, issue 3 having been struck out, I believe that the following shall suffice to resolve the Appeal:
1. Whether the trial Court was right when it struck out the suit on the ground that it was statute barred?
2. Whether the trial Court was right when it also considered the claim and pronounced on the merits of the case.
The issues shall be addressed together.
ARGUMENTS
In arguing the Appeal, learned Counsel for the Appellant submits that in order to determine the applicability of the Limitation Law to the case, resort has to be made to the time in which the cause of action arose and the time in which the suit was filed. He contends that the suit was filed on July 28, 2015 and by paragraph 12 of the Statement of claim, the land devolved upon the Appellant and his siblings by inheritance upon the death of their father on May 12, 2015. As a result, the cause of action arose in 2015 and therefore it is not caught by the Limitation Law. Counsel therefore submits that the lower Court erred in law when it held that the case was
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caught by the statute of limitation.
Counsel also submits that the lower Court, having held that the suit was caught by the statute of limitation and so was statute barred, it no longer possessed jurisdiction to proceed as it did with the case. Therefore, it erred in law by proceeding to consider the merit of the case and thereafter found that the land did not belong to the Appellant. He submits that this finding is an exercise in futility and is null and void ab initio.
On the merit of the case, Counsel submits that the land is covered by a customary right of occupancy No. 000271 dated May, 13 1978, Exhibit PW1A before the lower Court. He concedes that the Government can deprive a holder or occupier of land of his land compulsorily in the overriding public interest for public purposes, in accordance with Section 28(1) (2) and (3) provisions of the Land Use Act, 1978. However, this cannot be done without the payment of compensation, which is a condition precedent to the validity of the acquisition – Ogunleye V. Oni (1990) 2 NWLR (Pt. 135) 745; Universal Malting Co. Ltd V. Messrs. Singoz & Co. (2015) CAR 239, 294-296, G-F. Counsel submits that the
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crux of the Appellant’s case is that it was not shown that the land was acquired for overriding public interest as contended by the Respondents in their defence.
Counsel also disputes Exhibit DW2B tendered by the Respondents as proof that the Appellant’s father was duly paid compensation for the land in question. He contends that the only authentic proof of payment should be a payment voucher signed by the beneficiary or linking the payment to his personal account. Counsel therefore submits that the facts and law do not support the assertion that Government acquired the land or that it paid compensation to the Appellant’s father. Therefore, the purported acquisition is a nullity for non-compliance with Section 28 of the Land Use Act, 1978. Finally, Counsel urged the Court to resolve the issues in favour of the Appellant, set aside the Judgment of the lower Court and make an Order for a re-trial before a different Judge.
In response, learned Counsel for the 1st Respondent submits that the Appellant failed to discharge the burden of proof placed on him by Sections 131, 132 and 133 of the Evidence Act, 2011. He submits that the
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reliefs sought by the Appellant, being declaratory in nature, the onus rests on him to prove his entitlement to same as such reliefs are not granted even on an admission or in default of defence – Nwankwo V. Nwankwo (2017) LPELR-42832(CA) 30-32, F-C; Onogwu V. State (1995) 6 NWLR (Pt. 401) 276; Dumez Nig. Ltd V. Nwakhoba (2008) 18 (Pt. 1119) 361; Chukwumah V. Shell Petroleum (1993) 4 NWLR (Pt. 289) 512; CPC V. INEC (2011) LPELR-8257(SC) .
Counsel submits that by paragraphs 6, 7 and 8 of the Statement of claim, the Appellant contends that the subject matter in dispute is landed property which was founded by his great grandfather over 150 years ago. It thereafter devolved on his grandfather and his father after him, who later sold part of the land and then acquired a customary right of occupancy over the remaining land. The Appellant testified in this vein in his statement on oath, but under cross-examination, he did not know when his father sold part of the land to Audu Seti and Bukar Kori Ali.
Counsel argues that the Appellant failed to establish how the land was founded and the particulars of intervening owners through whom he claimed the land. He
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referred to the evidence of PW2, PW4, PW4, PW5 and PW6 and submitted that neither the Appellant nor his witnesses led evidence to establish the identity of the land in dispute – Odiche V. Chibogwn (1994) 7 NWLR (Pt. 385); Jodi V. Salami (supra).
Counsel submits that the 1st Respondent, on the other hand, led evidence to show how he bought the land from Mr. Tami Sambo, the 2nd Respondent, not from the Appellant or any of his family members. He refers to paragraph 5 of the 2nd and 3rd Defendant’s Statement of defence which stated that the land in dispute had been Government property since 1981. The 2nd Defendant, as DW2, pleaded the Government Layout BOTP/63, Exhibit DW2A, and Plot BO/3557. In paragraphs 4, 5 and 6 of his statement on oath, he also pleaded the Assessment of compensation in respect of Bama road GRA Extension, Exhibit DW2B. Therein, the name of the Appellant’s father, Kachalla Kulloma, is contained as No. 7 on the list and was the highest beneficiary, having been paid the sum of N6, 370.48. He was not cross-examined on this evidence, therefore it is deemed admitted – Daggash V. Bulama (2004) 14 NWLR (Pt. 892) 144, 240, B-D.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Relying on the decision in Isaac V. Imasuen (2007) All FWLR (Pt. 376), Counsel submits that the 1st Respondent has a better title as per paragraph 18 of his Statement of defence and paragraph 8 of his witness statement on oath where he pleaded the statutory certificate of occupancy issued to him after he purchased the land at the cost of N4, 800, 000.00 from the 2nd Respondent.
In respect of the customary certificate of occupancy No. 000271 held by the Appellant, the receipt of payment and the site plan pleaded by the Appellant in paragraphs 11 and 11a of the Statement of claim, Counsel submits that where two persons make conflicting claims to a piece of land, the law ascribes possession to the person that can prove a better title to the land -Ugochukwu V. Chemin Ltd (1993) 6 NWLR (Pt. 297).
Counsel pleads the legal maxim of nemo dat quod non habet to contend that the land in dispute was revoked by Government and compensation was paid to the Appellant’s father, Kachalla Kulloma, to the tune of N6, 370.48k, being the beneficiary listed as No. 7 in Exhibit DW2B. He submits that a statutory right of occupancy automatically extinguishes all
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existing rights in respect of the parcels of land over which it is granted – Usman V. Garke (supra).
Finally, Counsel submits that the Appellant’s case is statute-barred, the action having been instituted one year after the 1st Respondent had developed the land in dispute, and also in view of Exhibits DW1A, DW1B and DW1C. He therefore urged the Court to dismiss the Appeal with substantial costs, and to affirm the Judgment of the trial Court.
On the part of learned Counsel for the 2nd and 3rd Respondents, Counsel submits that in determining whether the suit is statute-barred, it is the Writ of summons and the Statement of claim that ought to be examined. In the event that it is found that the suit is caught by the statute of limitation, the proper Order to make is one of striking out – Mulima V. Usman (2014) 16 NWLR (Pt. 14320) 160, 207, E-H; NPA Plc V. Lotus Plastic Ltd (2005) 12 SCNJ 165, 183; Unity Bank Plc V. Nwadike (2009) 4 NWLR (Pt. 347) 469, 666.
Counsel submits that from the Writ of summons and Statement of claim, the suit was filed on 28-07-15 while the cause of action accrued on 28-01-83, the date of payment of compensation to the
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displaced farmers upon the acquisition of their land by the Government of Borno State, which was thereafter designated as BOTP/63 Bama Road Government Reservation Area Extension since 1981. Therefore, the period between the date on which the suit was filed and the date of the acquisition of the land by Government and the payment of compensation in the sum of N6, 370.48k to the father of the Appellant, is 32 years, which is over and above the period of time stipulated in the Limitation Act within which a party may file an action, i.e. 12 years – Section 15(2) (1) (a) of the Limitation Act is relied on. Counsel submits that Kachalla Kulloma’s right or interest in the land was extinguished upon his receipt of the sum of N6, 370.48k as compensation for the acquisition of the land, and the claimant claiming through him had nothing to give – Section 34(5) of the Land Use Act.
Counsel also argues that, contrary to the contention of the Appellant that the cause of action arose in 2015 after the death of his father, the father’s interest in the land had been extinguished even before his death, and so the Appellant inherited nothing, based on the legal
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maxim – nemo dat quod non habet. Thus, the lower Court rightly held that the suit is caught up by the Limitation Act, the Appellant having filed the action on 28-07-15.
Counsel further submits that it is settled law that when an issue of jurisdiction is raised, it ought to be determined first, as it is the live-wire of a suit. Therefore, where a case is conducted without jurisdiction, it is a nullity no matter how well conducted. Consequently, the proper Order to make where a Limitation Law is upheld is to strike out the matter – NBCI V. Dauphin (Nig) Ltd (2014) 16 NWLR (Pt. 1432) 90, 105-106, G-A; Section 168 of the Evidence Act, 2011. Based on this, Counsel submits that the lower Court, having held that it had no jurisdiction to entertain the action and therefore struck it out, its further finding that the land in dispute does not belong to the Appellant, is a nullity and cannot be an issue before this Court. In the alternative, Counsel urged the Court to invoke Section 15 of the Court of Appeal Act to hold that no miscarriage of justice has been occasioned by that pronouncement as it is null and void ab initio – Usman V. Garke (1998) LCN/0362/CA, 1, 8.
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In respect of the questions whether the land in dispute was actually acquired by Government having regard to Section 28 of the Land Use Act, 1978, and also that it was already covered by a customary certificate of occupancy, Counsel relies on Sections 1, 5, 28(1) (3) and 29(4) of the Land Use Act (supra). In this regard, he refers to the evidence of DW3 where evidence was led that the Appellant’s interest was extinguished in the land in 1981 upon payment of the compensation to his late father on 02-08-81. He was neither cross-examined nor was his evidence controverted. The Judge therefore acted rightly when he accepted and acted on it – Ogundipe V. Kwara State (1993) 8 NWLR (Pt. 313) 558, 568, H-B. This is more so that under cross-examination, the Appellant admitted that he did not know whether compensation was paid to his father. Counsel therefore urged the Court to dismiss the Appeal as lacking in merit.
In his Reply on point of law, the Appellant merely re-argued his Appeal and sought to raise fresh issues that did not arise from the Respondents’ Briefs of argument. It is therefore discountenanced as that is not the purpose of a
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Reply Brief of argument.
RESOLUTION OF ISSUES
In line with the law, the 2nd and 3rd Respondents raised a point of law in paragraph 9 of their Statement of defence contending that the claim was statute-barred – Oyebamiji V. Lawson (2008) 10 MJ.S.C. 154. By this, the 2nd and 3rd Respondents raised an issue of jurisdiction, having challenged the competence of the suit.
The law is trite that where the jurisdiction of a Court to entertain an action is challenged, that issue must first be settled by the Court expeditiously before it proceeds to attend to any other issue. This is because where a suit is incompetent and a Court is without jurisdiction to entertain same, any further proceedings in the suit would be an act in futility as the decision rendered therein would be null and void ab initio. This position of the law was aptly stated by his lordship, Nweze, J.C.A. (as he then was) in Unilorin V. Oluwadare (2009) 19 WLR 730, 733 as follows:
“Jurisdiction is to a Court what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of
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the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that he has a genuine cause to be allowed to ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper as vigilant as he is always will readily intercept or query all persons who intrude in his domain. The above analogy may, fittingly, be applied to the invocation of the Court’s jurisdiction.”
See also Okonkwo V. INEC (2014) LPELR-22486(CA); BSADP V. Abdullahi (2011) LPELR-9228(CA) 14-15; Onyema V. Oputa (1987) LPELR-2736(SC) 38-39, F-C, per Oputa, J.S.C.
Thus, jurisdiction is fundamental and crucial for where there is a want of jurisdiction, the proceeding thereafter will be affected by a fundamental vice and would become a nullity, however well conducted they might otherwise be. I therefore find that the lower Court acted rightly when it first considered the issue of jurisdiction raised and also pronounced upon it promptly before proceeding any further.
A Limitation Law or Act removes the right of action, the right of
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enforcement and the right to judicial relief and leaves a plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is statute-barred. Accordingly, 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, proceedings shall not be brought after the time prescribed by such statute – Araka V. Ejeagwu (2000) 15 NWLR (Pt. 692) 684. Therefore, whereas a plaintiff may have a cause of action, he loses the right to enforce that cause of action by judicial process because the period of time laid down by the Limitation Law for bringing such action had elapsed – Savannah Bank V. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212; Okere V. Amadi (2005) 14 NWLR (Pt. 945) 545.
Any omission or failure to institute an action within the time so stipulated denies the Court the jurisdiction to entertain it. The operation of a limitation statute is of strict liability. Once the time provided by statute within which to institute an action has run out, the right to institute the action is lost forever – WAPC Plc V. Adeyeri (2003) 12 NWLR (Pt. 835) 517); Obembe V. Wemabod Estates Ltd (1977) 5 SC.
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The philosophy behind the Limitation Laws was stated by Niki Tobi, J.C.A. (as he then was) in Mercantile Bank (Nig) Ltd V. Feteco (1998) 3 NWLR (Pt. 540) 143, 156-157 thus:
“A statute of limitation is designed to stop or avoid situations where a plaintiff can commence an action anytime he feels like doing so, even when memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering plaintiff…”
Thus, the purport and essence of a limitation law is that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the period prescribed. An action instituted after the expiration of the prescribed period is said to be statute-barred. The essence is that a
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legal right to enforce an action is not a perpetual right but a right generally limited by statute. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law had elapsed. Put another way, the conspicuous effect of a Limitation Law is that legal proceedings cannot be properly and validly instituted after the expiration of the period.
In the instant case, the provision relied on was Section 15(2) (1) (a) of the Limitation Act which provides –
“NO action by a person to recover land –
(a) Shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it is first accrued to some person through whom he claims, to that person.”
From the pleadings of the Appellant, he claims the land in dispute based on the fact that his great grandfather founded the land. Upon his death, it devolved on his grandfather and then to his father after him. By paragraphs 9 to 11 of the Statement of claim, the Appellant states how his father dealt with the land during his lifetime.
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Whereas he sold parts of the land to at least two other people, he obtained a customary right of occupancy over a portion of the land on Mach 13, 1978. He tendered both the Certificate and the site plan made in 2018 in Court.
Upon the death of his father on 12-05-15, the Appellant claims that the children, inclusive of him as the eldest, inherited the land and he became the head of the family – paragraph 12 of his statement of claim. By paragraph 13, it was in the same year, 2015, that the 2nd Respondent, a Director with the 3rd Respondent, informed him that the land in question had been acquired by the State Government and compensation paid thereon to his late father. He however denies this.
In response to the claim, the 2nd and 3rd Respondents aver that the land in question does not fall under customary land, it was compulsorily acquired by the Borno State Government in 1981 and was then designated a Government Layout BOTP/63 Bama Road Government Reservation Area. Thereafter, payment of compensation was made to the displaced farmers, Kachalla Kulloma (the Appellant’s father) inclusive, on 28-01-83. The file of the Ministry of land &
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Survey, as well as the proof of payment of compensation to the Appellant’s father and others were duly pleaded and tendered in evidence. Both parties adduced evidence in proof of their positions.
From the evidence of the Appellant as PW1, it is apparent that prior to the demise of his father in 2015, he had no personal knowledge of the land except what he was told by his father. Therefore, it came to him as a surprise when the 2nd Defendant, an Assistant Director in the Land Department of the 3rd Department, informed him that the land had been long since acquired by Government in 1981 and and also allocated. The Appellant’s brother, PW6, also admitted that all he knew about the land was what he was told by his father, as he was too young to know what transpired in the 1980s, and thus he had no personal knowledge that the land had been acquired by Government. The Customary Certificate of occupancy issued to the Appellant’s father on 13-03-78 and the payment receipt attached are in evidence as Exhibits PW1A and PW1B.
On their part, the 2nd and 3rd Respondents adduced evidence in their defence through DW3, a Deputy Director with
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the 3rd Defendant, whose schedule of duty includes land administration and encompasses acquisition of land and payment of compensation to affected persons. The following documents were tendered through him, the Government Layout for Bama Road GRA Extension BOTP/63A – Exhibit DW2A, the Assessment of compensation in respect of Bama Road GRA Extension dated 20-08-81 – Exhibit DW2B. He identified the Appellant’s father name, Kachalla Kulloma, number 7 on the list, as having been paid compensation of N6, 337.48k.
From the totality of the evidence adduced on both sides, it became apparent that the land in dispute had been acquired by the Borno State Government as far back as 1981 during the lifetime of the Appellant’s father, designated a Government Layout and the portion claimed by the Appellant allocated to one Paul Mamman Thahal to whom a statutory certificate of occupancy had been issued. The Appellant’s father had also been paid compensation for the land since 1983. It was this same land that was subsequently sold to the 1st Respondent.
In the light of these facts, by Section 15(2) (1) (a) of the Limitation Act, any party aggrieved
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should have instituted an action within 12 years after the Government acquisition or after the payment of compensation. However, the Appellant who, by virtue of the demise of his father in 2015 long after the Government acquisition of the land, stepped into his father’s shoes, filed the action on 28-07-15. From 1981 when the land was acquired or 28-01-83 when compensation was paid, this was certainly much more than 12 years after the cause of action first accrued to his father, through whom the Appellant claims.
I agree with the submission of learned Counsel for the Appellant that since Government had acquired the land in dispute in 1981 and paid compensation to Kachalla Kulloma, the Appellant’s father on 28-01-83, his (the latter’s) right or interest in the land was extinguished. The Supreme Court per Ogwuegbu, J.S.C. in Jibona V. Kolawole (1996) 10 NWLR (Pt. 476) 22, put it this way:
“On the reading of the Limitation Law as a whole, they do not merely deny the right of action, they completely extinguished an existing right at the expiration of twelve years from the accrual of the right of action.”
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Kachalla Kulloma therefore had no title to pass on to the Appellant at his death in 2015, in line of the principle of law expressed in the Latin maxim: nemo dat quod non habet meaning, no one can give what he does not have – Section 34(5) of the Land Use Act (supra); GCM Ltd V. Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507, 533, G-H. Thus, even though the Appellant may reserve the right to challenge the acquisition of the land under Section 28 of the Land Use Act (supra) as he belatedly sought to do in his Brief of argument, it is a futile exercise since the action is statute-barred, having been brought more than 12 years after the compulsory acquisition of the land by the Borno State Government.
What this means is that while the Appellant who may have had a cause of action, he has lost the right to enforce that cause of action by judicial process because the period of time laid down by the Limitation Law for bringing such action had elapsed – Savannah Bank V. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212; Okere V. Amadi (2005) 14 NWLR (Pt. 945) 545. It is for this reason that the lower Court rightly found at page 125 of the Record that the action was caught by the
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Limitation Law and so is statute barred. I agree.
Having so found, that should have been the end of the matter since the suit was statute-barred and was liable to be struck out at that stage. However, it is apparent that the lower Court still proceeded to consider the case on its merits. This is a practice that has been recommended by appellate Courts to Courts lower in hierarchy. The reason is not far-fetched. It is to pre-empt a situation in which, in the event that the lower Court is overruled on the issue of jurisdiction since, as a trial Court, its decision is subject to appellate review, it would not be necessary to send the case back for a determination on the merits as the lower Court would have considered the case on its merits, and its findings thereon would be subject to appellate review without any further delay.
In Alafia V. Gbode Ventures Ltd (2016) LPELR-26065(SC) 16-17, the Supreme Court per Galadima, J.S.C., exhorted Courts lower in hierarchy to the Supreme Court, thus:
“While this Court being the final Court of Appeal can afford not to pronounce on other issues placed before it where it finds that the Court lacked
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jurisdiction, the Court of Appeal whose decision on jurisdiction may be faulted by this Court should not be debarred for considering and pronouncing on such other issue(s) raised in the Appeal. It should pronounce on them, and the Court below has rightly done so in this case.”
See also Garba (Rtd) V. Mohammed (2016) LPELR-40612(SC) 56-57, per Kekere-Ekun, J.S.C.; Arulogun V. COP, Lagos State (2016) LPELR-40190(CA) 9, per Augie, J.C.A. (as he then was); Dilli V. Adamu (2016) LPELR-40227(CA) 25, per Ekanem, J.C.A.; Brawal Shipping V. Onwadike (2000) LPELR-802(SC) per Uwaifo, J.S.C.; State V. Ajie (2000) LPELR-3211(SC) 9, per Onu, J.S.C.; & Katto V. CBN (1991) 9 NWLR (Pt. 214) 126, 149.
Thus, the lower Court, by considering the case and making a pronouncement on its merits, apparently in the event that he is overruled on the issue of jurisdiction, cannot be faulted. This is to be commended.
The learned trial Judge found that from the evidence adduced before it, it is not disputed that the great grandfather of the Appellant founded the land in dispute. It was also not in doubt that the plot in dispute is situated within the Borno State
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Government Layout which was acquired in 1981. He deftly analyzed the evidence adduced by both sides, both oral and documentary, and found as follows at page 126 of the Record:
“Exhibits DW2B tendered herein is contained list of those compensated by the Borno State Government. The name of Kachalla Kulloma is inclusived, (sic) he was paid inter alia N6,370.4 on the 20/8/1981. The evidence before this Court is very clear that Kachalla Kulloma was compensated by the Borno State Government on 20/08/1981, and he is the father of the claimant, be as it is the matter is settled. The claimant father was duly compensated by Borno State Government when the land was acquired. Therefore, Kachalla Kulloma seized (sic) to be the owner of the land, hence he was compensated. From the above reasons this Court is satisfied that the land in dispute is not belongs (sic) to the claimant.”
I decline to interfere with these apt findings of facts as they are borne out by the evidence adduced before the Court as reflected in the Record, and so are not perverse.
In respect of the issue canvassed by the Appellant as to whether or not the acquisition of the
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land in 1981 was done strictly in compliance with Sections 19 and 28 of the Land Use Act, 1978, this is totally unwarranted. The issue of whether the Borno State Government complied with the pre-conditions for the compulsory acquisition of land in 1981 as laid out in the Land use Act (supra) when it paid compensation to Kachalla Kulloma, the Appellant’s father, was not an issue before the lower Court. It is therefore a fresh issue canvassed before this Court, without leave. More importantly, the acquisition, having been effected in 1981 when, by the Appellant’s own admission, his father was still alive having only died in 2015, and so the land was still in his possession, the issue has since been caught up by the Limitation Law and so is statute-barred. The Appellant’s submission thereon is therefore discountenanced.
In conclusion, notwithstanding these findings of facts on the merits, the lower Court was still obliged to strike out the suit, as he rightly did, (as opposed to dismissing it), in view of its earlier finding that the suit was caught by the Limitation Law and so was statute-barred. This is the correct position of the law.
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It is therefore for these reasons that I resolve the two issues for determination against the Appellant.
In the result, I find the Appeal bereft of merit. It fails and is dismissed.
Accordingly, I affirm the Judgment of the Borno State High Court delivered on November 15, 2016 by Adamu Z. Mussa, J.
I award the costs of this Appeal assessed at N150, 000.00 to the Respondents against the Appellant.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I was opportune to read before now the judgment just delivered by my learned brother JUMMAI HANNATU SANKEY, J.C.A. I am in full agreement with the reasoning and conclusion therein.
I agree the suit of the appellant was caught by the provision of S. 15(2)(a) of the Limitation Act and so it is statute-barred.
I agree this appeal completely lacks merit and should be dismissed. The judgment of High Court of Borno State in Suit No. BOHC/MG/CV/41/2015 delivered on 15th November, 2016 is hereby affirmed. I abide by the order as to cost in the lead judgment.
EBIOWEI TOBI, J.C.A.: In considering this appeal, I agree with the lead judgment just delivered by my learned brother JUMMAI HANNATU SANKEY,
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J.C.A. as I hold that the appeal lacks merit and it is also dismissed by me. I adopt the lead judgment as mine as I abide by the order as to cost.
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Appearances:
Babawuro, Esq. with him, A. Ahmed Esq. holding the brief of A. Mohammed Esq. For Appellant(s)
Auwal Idris Esq. holding the brief of Y. G. Bello Esq. – for the 1st Respondent,
B. Y. Yusuf, Esq., Assistant Director of Civil Litigation, Borno State Ministry of Justice – for 2nd and 3rd Respondents. For Respondent(s)
