MALLAM BALA MAI RIGA & ANOR v. ALH. SHUAIBU MAI ANGUWA KABULA & ORS
(2019)LCN/12797(CA)
(2019) LPELR-47766(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of March, 2019
CA/A/270/2016
RATIO
COURT AND PROCEDURE: WHETHER AN ACTION IS STATUTE BARRED
“It is elementary law, that in considering whether an action to enforce a legal right is statute barred, the proper document to be examined is the plaintiffs’ averment in the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiffs a cause of action and by comparing that date with the date on which the writ of summons was filed, not statement of defence or any other document. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law then the action is statute barred. See the cases of; FORESTRY RESEARCH INSTITUTE OF NIGERIA VS. GOLD (2007) LPELR-1287 SC; IKONNE & ORS VS. NWACHUKWU & ORS (2017) LPELR-42449 CA.” PER ABDU ABOKI, J.C.A.
LAND LAW: PROVING TITLE TO LAND
“A claimant of title to land may do so through any of the following recognized five ways; a) By traditional evidence;
b) By production of document of title duly authenticated and executed;
c) By act of ownership extending over a sufficient length numerous and positive enough so as to make it reasonable to infer that the person so exercising such the right owns the land;
d) By acts of long possession and the enjoyment thereof; proof of possession of land connected or adjacent to the land disputed in such a way that it is probable that the person who owns such connected land actually owns the land in dispute. See the case of; OGUNJEMILA VS. AJIBADE (2010) NWLR (PT. 1206) AT 559.” PER ABDU ABOKI, J.C.A.
JUSTICE
ABDU ABOKI justice of The Court of Appeal of Nigeria
ADAMU JAURO justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM justice of The Court of Appeal of Nigeria
Between
1. MALLAM BALA MAI RIGA
2. MALLAM CHINDO USMAN MOHAMMEDAppellant(s)
AND
1. ALH. SHUAIBU MAI ANGUWA KABULA
(Substituted with Alhaji Yakubu Abubakar Miyanga)
2. GIWA MAI YANGA
3. SALEH MAI YANGARespondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment):
The appeal herein is against the Judgment of the High Court of justice of Niger State (herein after referred to as the Trial Court) delivered on 4th December, 2015 by Hon. justice Ahmed A. Bima J. in Suit No. NSHC/SD/33/2013.
The Appellants were the Plaintiffs at the Trial Court while the Respondents were the defendants.
By Writ of Summons dated 2nd May, 2013 the Appellants as Plaintiffs claimed against the Respondents as Defendants the following reliefs:
1. An order of this Court declaring the action of the defendants as unlawful, provocative and totally wrong.
2. An order of perpetual injunction restraining the defendants, their agents, privies, servants however called from further trespassing and entering into the plaintiffs’ farmland.
3. General damages in the sum of N2, 000, 000,00 (Two Million Naira only)
4. Substantial cost of this action.
The Defendants in response filed their joint statement of defence dated 24th May, 2013 on 27/5/2013.
The plaintiffs called five witnesses in proof of their case while the 1st and 2nd defendants testified for all the defendants as DW1 & DW2 respectively.
The trial Court in its judgment held inter alia as follows;
“On the whole plaintiffs’ case fails as it is statute barred. The 1st defendant who has been in exclusive possession of the land for over 25 to 30 yrs is declared as the bonafide owner of the land in dispute. Plaintiffs and their agents are hereby perpetually restrained from further trespassing into this land.”
Dissatisfied with the said judgment of the Trial Court, the Appellants who were the plaintiffs at the trial Court appeal to this Court vides their notice of appeal dated 18/2/2016 and filed 19/2/2016. The said notice appeal which appears on pages 82 to 86 of the record of appeal contains four grounds of appeal. The record of appeal was compiled and transmitted to this Court on 17th May, 2016.
The briefs of argument were subsequently filed and exchanged by the parties in accordance with the rules of this Court. The Appellants’ brief of argument is dated 30th June, 2016 and filed on the 1st July, 2016 while the Respondents Brief of Argument, is dated and filed on the 13th February, 2017.
On 16th January, 2019, the appeal was heard before the Court. The Appellants’ Counsel adopted the Appellants’ brief of argument and urged the Court to allow the appeal. The Respondents’ Counsel on its part adopted the Respondents’ brief of argument and urged the Court to dismiss the appeal for lacking in merit.
The Appellants from their four grounds of appeal distilled two issues for determination as follows:
1. Whether the trial Judge was right to place reliance on averments in the statement of defence to reach a determination that the appellants’ suit was statute barred.
2. Whether the Appellants’ suit before the lower Court is in fact and in law statute barred.
The Respondents counsel on its part distilled a lone issue for determination as follows;
1. Whether the trial Judge did not consider the Appellants’ claim at the lower Court before the Court held that the Appellants’ claim is statute barred.
I will determine this appeal on the basis of the two issues raised in the Appellants’ brief of argument. I will determine them together.
ISSUES FOR DETERMINATION
1. Whether the trial Judge was right to place reliance on averments in the statement of defence to reach a determination that the appellants’ suit was statute barred?
2. Whether the appellants’ suit before the lower Court is in fact and in law statute barred?
Learned counsel to the Respondent submitted that each limitation law sets out when the cause of action for the purpose of any particular action accrues, for the purpose of ascertaining when time begins to run against the plaintiff. He contended that in the instant case, the Trial Court relied on the provision of Section 15 (2) (a) (b) of the Limitation Law Act.
He submitted that the writ of summons and the statement of claim should be the first port of call by the Court when invited to determine whether an action is statute barred or not, no evidence need to be taken. He cited in support the cases of; EREGBOWA & ORS VS. OBANOR & ORS (2010) LPELR-8964.
UKIRI VS FCSC (2011) ALL FWLR (PT.577) PG 783.
Learned counsel argued that where as in the instant case evidence is taken, both plaintiffs’ pleading and evidence are to be considered. The Court should have no business looking at the statement of defence in determination of the date of the accrual of cause of action as the statement of defence in determination of the date of the accrual of cause of action. He referred the Court to the case of OYETOKI VS NIGERIAN POSTAL SERVICE (2010) ALL FWLR (PT.504) PG. 1572.
He maintained that in the instant case, the trial Judge placed reliance on the averment contained in the statement of defence to hold that the suit was statute barred, which is an error. He referred the Court to page 80 of the record of appeal and the case of WOHEREM VS EMEREUWA (2004) 13 NWLR (PT. 890) PG. 398 AT 417-418.
He insisted that the Trial Court erred when it relied on the respondents’ defence to hold that the appellants’ action was statute barred. He urged the Court to so hold.
Learned counsel submitted that it is trite law that evidence on facts not pleaded goes to no issue and the Court cannot speculate on the time the cause of action arose for the purpose of ascertaining whether an action is statute barred or not.
He contended that in the instant case the Trial Court relied on un-pleaded facts to hold that the appellants’ suit was statute barred. He referred the Court to pages 78-80 of the record of appeal and the cases of;
UNIVERSAL TRUST BANK NIG. LTD VS. OZOEMENA (2007) 3 NWLR (PT.1022) PG. 448. SHALLA VS. THE STATE (2007) 18 NWLR (PT.1066) PG. 240.
Learned counsel contended that long possession of land per se is not enough to give the possessor right to land. It must be coupled with adverse possession of the party pleading it. He cited in support the cases of;
ADEJUMO VS OLAWAIYE (1996) 1 NWLR (PT. 425) PG 436.
OGUNKO VS SHELLE (2004) 6 NWLR (PT.868) PG 17.
ADEDEJI VS OLOSO (2007) 5 NWLR (PT.1026) PG 133.
He also referred the Court to evidence of PW1, 2, 3, 4 & 5 under cross examination and submitted that from their evidence it is clear that assuming but not conceding that the 1st Respondent’s possession is adverse, it only became adverse within the last 10 years before the commencement of the action which is within the statutory limitation period of 12 years. Therefore, the trial Judge was in error when he struck out the appellants’ suit.
Learned counsel for the Appellants submitted further that assuming they are wrong in their submissions above, by the doctrine of continuance of injury or damage in trespass, the appellants’ suit is not statute barred. He referred the Court to the cases of; ALH. JIBRIN BALA GUNNA ALHASSAN VS. DR. MUAZU BABANGIDA ALIYU (2009) LPELR-8340. AMACHERE VS. S.P.D.C NIG. (2011) LPELR-4474-CA. A.G RIVERS STATE VS A.G BAYELSA STATE (2012) 6-7 MJSC PT.3.
He contended that in the instant appeal, it is the case of the appellants both at pleadings and evidence that the respondents are still on the land. It follows therefore, that the trespass on the land has not ceased and the appellants’ right to sue the respondent cannot be taken away.
Learned counsel submitted that time will only begin to run against the appellants when the event leading to the cause of action ceases. He urged the Court to so hold and resolve in favour of the appellants.
Learned counsel for the Respondents on their part submitted that the trial judge considered the pleadings vis-a-vis the testimonies of the appellants at the trial Court before reaching its decision.
He contended that the Trial Court was right when it held that the appellants’ suit is statute barred. He referred the Court to paragraphs 6 and 7 of the plaintiffs’/appellants’ statement of claim at page 5 of the record, the testimonies of the PW2 under cross examination at page 59 of the record, the testimony of PW3 & PW4 at page 60 of the record, the testimony of PW5 at page 63 of the record and the respondents’ argument at pages 50-53 of the record of appeal.
He urged the Court to dismiss the appeal and up hold the judgment of the lower Court.
In resolving the issues it is pertinent for me to reproduced the provision of Section 15 (2) (a) (b) of the Limitation Law Act which the Trial Court relied on. The section provides thus;
“No action by a person to recover land shall subject to paragraph (b) of that section, be brought after the expiration of 12 years from the date on which the right of action actuated to the person bringing it, or through whom he claim, to that person.”
The Trial Court in its judgment in paragraph 5 at page 78 of the record of appeal found thus;
“From the evidence of the plaintiff (sic) and his witnesses, it is clear that the defendants trespassed on the plaintiffs land between 25 to 30 years ago”.
It is elementary law, that in considering whether an action to enforce a legal right is statute barred, the proper document to be examined is the plaintiffs’ averment in the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiffs a cause of action and by comparing that date with the date on which the writ of summons was filed, not statement of defence or any other document. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law then the action is statute barred. See the cases of; FORESTRY RESEARCH INSTITUTE OF NIGERIA VS. GOLD (2007) LPELR-1287 SC; IKONNE & ORS VS. NWACHUKWU & ORS (2017) LPELR-42449 CA.
The Trial Court in its judgment at page 80 of the record found thus;
“Paragraph 6, 7, 8 and particularly paragraph 9 of the statement of defence shows that the defendants have been in exclusive possession of this land for over 160 years without challenge from the defendants (sic) or any other person. The fact that the defendants deforested a land and was in exclusive possession for such a long period of time without challenge in my view clearly raised an issue of limitation law.”
Thus, I agree with the contention of the appellants’ counsel that the appellants’ suit cannot be held, to be statute barred based on the respondents’ defence. More so, the finding of the trial Court that Paragraphs 6, 7, 8 and 9 of the statement of defence shows that the defendants have been in exclusive possession of this land for over 160 years in my view is perverse, is not borne out of the evidence on record.
The appellants’ counsel also contended that the trial Court relied on unpleaded facts to hold that the appellants’ suit was statute barred. Order 15 Rule 7 (2) of the Niger State High Court (Civil procedure) Rules 2012 provides thus;
“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 common law, he shall specifically plead same.”
It is clear from the above that a party intending to rely on the statute of limitation to the suit, must file a statement of defense and plead with specificity the relevant statute of limitation relied upon as a defense. See P.N UDOH TRADING CO. LTD VS. ABERE & ANOR (2001) LPELR-2893 S.C.
In the instant case, I have carefully gone through the record of appeal filed, and particularly the joint statement of defence filed by the defendants/respondents there is nowhere the respondents pleaded the statute of limitation, as stipulated by the provisions of the Niger State High Court (Civil procedure) Rules.
The defendants/respondent in my view raised the issue of statute of limitation for the first time in their final written address. As I have earlier said, limitation law must be expressly set out or pleaded in the statement of defence. Once it is not pleaded the defendants cannot be granted the protection of the law. Therefore, even if the limitation law is applicable, the trial Court cannot grant the defendants. See the cases of; ISHOLA BALOGUN KETU VS. CHIEF WAHABI ONIKORO (1984) 10 SC 265 AT 267-268; AJAYI VS ADEBIYI & ORS (2012) LPELR-7811 SC.
Hence, the judgment of the trial Court by these defects is vitiated. I so hold.
Now having held that the judgment of the trial Court is vitiated, should the case be sent back to the trial Court for retrial to subject the parties to the untold hardship, further expenses of money and waste of time and rigors of another trial, when both sides had concluded the presentation of their cases at the trial Court? I do not think so.
This Court has the power to deal with the case in accordance with the powers of the trial Court and give any judgment that ought to have been made by virtue of Section 15 of the Court of Appeal Act 2004.
The provision of the said Act gives this Court the choice to rehear the case on the pleadings and evidence before it or remit it to the trial Court to hear it. See MBA & ORS VS. AGU & ORS (1999) 12 NWLR (PT. 629) 1.
The appellate Court such as this Court should be able to exercise its powers under Section 15 of the Court of Appeal Act to rehear the case by considering the totality of the pleadings and evidence of both parties in the record of appeal and give the correct judgment that meets the justice of the case. See Order 4 Rule 9 (2), (3), (4) & (5) of the Court of Appeal Rules 2016 OSUN STATE INDEPENDENT ELECTORAL COMMISSION & ANOR VS. AC & ANOR (2010) LPELR-2818 SC.
I will now proceed to determine the issues thrown up by the pleading and evidence parties.
The Appellant/Plaintiff averred in paragraphs 3 to 6 of their statement of claim thus;
3. The plaintiffs inherited the farmland from their mother namely Tani who was farming there on and who in turn inherited same from her father Bawa by name as the only surviving child of Bawa.
4. It is the averment of the plaintiffs that the farmland was deforested by the 1st plaintiff’s paternal grandfather Dako by name who was cultivating thereon and planted some economic trees before giving same to his brother Bawa.
5. The plaintiffs aver that their maternal grandfather Bawa had seven children including their mother Tani and their mother’s siblings died long before the death of Bawa leaving their mother Tani as the only surviving child of Bawa before the death of Bawa.
6. It is the averment of the plaintiffs that the 1st defendant entered the plaintiffs’ farmland and started using same as his personal property.
7. The 1st defendant also carved out part of the farmland and borrowed same to the 2nd and 3rd defendants who are currently farming thereon.
The Appellants as Plaintiffs at the Trial Court elicited evidence through PW1, PW2, PW3, PW4 and PW5 in support of the case in their pleadings. The said Appellants’ witnesses were all consistent in their evidence that the Plaintiffs’ mother inherited the land in dispute from her father Bawa, while the Plaintiffs inherited the land in disputed from their late mother Tani. The examination in chief of PW1 went thus;
“The plaintiffs inherited the farmland from their mother Tani who in turn inherited same from her father Bawa. Bawa’s brother Dakwo was the first person to cultivate on the farmland. It was Dakwo who gave same to Bawa (as outright gift) and was farming thereon since. Tani the plaintiffs’ mother upon her death of her father Bawa was the only person having inheritance of the farmland and was using same for farming.
The cross examination of PW1 went thus;
“I know Dakwo. He is Bala mainga’s (1st plaintiff) grandfather. I also know one Bawa. It was in my presence that Dakwo gave the land in dispute to Bawa. Alhaji Audu, Dagacin Zariyawa and one Musa now late were there too. I know the land in dispute very well and my husband shares boundary with it. Shualbu 1st defendant also shares boundary with the land in dispute”
His cross examination did not challenge the testimony that it was Bawa’s brother Dakwo who first cultivated on the farmland and it was Dakwo who gave same to Bawa (the Plaintiffs’ mother) as outright gift and was farming thereon.
Also the Defendants’ did not challenge the testimony that Tani (the Plaintiffs’ mother) was the only person having inheritance of the farmland after the death of her father Bawa. The cross examination rather confirmed the PW1’s presence when Dakwo (The 1st person who cultivated the land) gave the land in dispute to Bawa (the Plaintiffs mother’s father).
PW2 said Myself, Tanko Knakani, Mairiga (1st plaintiff), Dantani (now late) used to have communal farming on the disputed land. It is over 50 year now. The 1st Defendant trespassed into this land about 30 years ago. The 1st Defendant leased part of the said land to 2nd and 3rd Defendants and they have since been farming there.
PW3 corroborated PW2’s evidence that the 1st Defendant carved out the land in dispute and gave to 2nd and 3rd Defendants.
The Respondents as Defendants at the Trial Court have not filed any counter claim. But rather in their joint statement of defence averred in paragraphs 3 to 15 thus;
3. The defendants denied paragraphs 3, 4, 5, 6, 7, 8, .9, 10, 11 and 12 of the statement of claim.
4. In specific reply to the averments contained in paragraphs 3, 4 and 5 of the statement of claim, the 1st defendant avers that he is the rightful owner of the said piece of land measuring an area of about 25 hectares situate and lying at Zariawa Road, Zariawa, Suleja Local Government Area.
5. The 1st defendant avers that he inherited the said piece of land from his mother by name Hajara who died about 150 years ago.
6. The 1st defendant states that the land in dispute originally belongs to his maternal grandfather mallam Turaki Mamman who deforested the disputed land when it was virgin land well over 160 years ago and was farming on same until he died sometimes in 1948 or thereabout.
7 The defendant state that as at the time his maternal grandfather was alive, he has about 18 people working for him on the land including the 1st plaintiff’s father.
8. The 1st defendant avers that as at the time mallam Turaki Mamman died in 1948, he left behind 2 children as his only surviving heirs, mallam Adamu and Hadiza.
9. The 1st defendant avers that it was mallam Adamu who inherited the piece of land and he was also farming on the land as at the time mallam Turaki was alive and was never challenged by the 1st defendant’s father (sic) or any other person at all.
10. The 1st defendant states that mallam Adamu gave birth to Hajara, the 1st defendant’s mother and Goma his only sister.
11. The defendant states that mallam Adamu died leaving Hajara and Goma as his only surviving children.
12. The defendant states that it was Hajara and Goma that jointly inherited the said farmland after the death of mallam Adamu.
13. The 1st defendant further avers that Hajara gave birth to only two children, MaIlam Shaibu Mai Unguwa (1st defendant) and Yakubu Abubakar, his younger brother.
14. The 1st defendant state that even when his mother Hajara and her sister Goma inherited the said farmland, it is still the 1st defendant that continued to farm on the land in question since he was involved in the cultivation of the farm wit MaIlam Adamu, his grandfather.
15. The 1st defendant states that after the death of his mother Hajara, himself and his younger brother Yakubu Abubakar inherited the said piece of land and continued to farm on the said farmland without any encumbrance from anybody till date.
The Respondents testified for themselves in support of their joint statement of defence. The DW1’s evidence contained in his witness statement on oath reproduced averments in their joint statement of defence. In his evidence under cross examination by counsel for the appellants DW1 states that he never farm on the land in dispute, but the late Alh. Shuaibu Maiunguwa (1st defendant) used to farm on the land. DW2 in his evidence under cross examination stated that all what he stated in his witness statement on oath is based on what his father told him.
It is pertinent to note that the Defendants have not filed any counter claim.
A claimant of title to land may do so through any of the following recognized five ways;
a) By traditional evidence;
b) By production of document of title duly authenticated and executed;
c) By act of ownership extending over a sufficient length numerous and positive enough so as to make it reasonable to infer that the person so exercising such the right owns the land;
d) By acts of long possession and the enjoyment thereof; proof of possession of land connected or adjacent to the land disputed in such a way that it is probable that the person who owns such connected land actually owns the land in dispute. See the case of;
OGUNJEMILA VS. AJIBADE (2010) NWLR (PT. 1206) AT 559.
In the instant case, it is my view that from the pleadings and evidence of the parties, they are all relying on traditional evidence to prove of their title to the land in disputed.
Where evidence of tradition is relied on in proof of declaration of title to land as in the instant case, the burden is on the plaintiffs to plead and prove facts such as who founded the land in dispute, how did he found the land, and particulars of the intervening owners through whom they (plaintiffs) claims. See the cases of;
OLOKUNLADE VS. SAMUEL (2011) 17 NWLR PT 1276 AT 290. UKAEGBU VS. NWOLOLO (2009) LPELR-3337 SC.
In the instant case, the Appellants as Plaintiffs who were relying on traditional history to prove their title, had in my view proved their claim. The evidence on record shows that the Appellants pleaded and lead evidence in support of how they got to the land in dispute or their root of title, the appellants also gave names and history of their ancestors from whom they claimed.
It is my view that the Appellants were able to prove on balance of probabilities that the land in dispute belongs to them.
In the light of the foregoing I resolved issues 1 & 2 in favour of the Appellants.
On the whole, this appeal succeeds as it has merit. It is accordingly allowed. The judgment of the Trial Court delivered on 4th December, 2015 by Ahmed A. Bima J. is hereby set aside.
Rather it is hereby adjudged that the Plaintiffs/Appellants proved their claims against the defendants for reliefs (a) and (b) in their joint statement of claim, which are hereby granted.
The claim for relief of general damages is dismissed. The respondents shall pay the costs of N200,000:00 to the Appellants.
ADAMU JAURO, J.C.A.: I have had the advantage of reading before now the judgment just delivered by my learned brother, Abdu Aboki, PJCA. I am in complete agreement with the reasoning and conclusion to the effect that the appeal is meritorious and ought to be allowed.
I adopt the said judgment as mine and join my brother, in allowing the appeal. I adopt all consequential orders made therein, including that on costs.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, LORD JUSTICE ABDU ABOKI, PJCA. I agree with the reasoning, conclusions and orders therein.
Appearances:
N.C. NwaiwuFor Appellant(s)
Abdulsallam HussainiFor Respondent(s)
