MR. POLYCAR P. ONWUSIRIBE v. MR. EDWIN OGBUEHI
(2019)LCN/13471(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/OW/181/2010
RATIO
LAND LAW: SECTION 3 OF THE IMO STATE LIMITATION LAW AS REGARDS ACTIONS FOR RECOVERY OF LAND
Section 3 of the Imo State Limitation Law 1994 says in its provisions:
No action shall be brought by any person to recover any land after expiration of ten years from the date which the right of action accrued to him or if it first accrued to some person through when he claim, to that person.PER RITA NOSAKHARE PEMU, J.C.A.
LAND LAW: DEFINITION OF LAND IN ACCORDANCE WITH SECTION 2 OF THE INTERPRETATION SECTION OF THE LIMITATION LAW OF IMO STATE
Section 2 the Interpretation Section of the Limitation Law of Imo State defines land to include land held under a right of occupancy or any other tenure.
In the case of MAJEKODUNMI v. ABINA (2002) FWLR (PT. 100) 1336; and AGBOOLA v. ABIMBOLA (1969) 1 ALL MR Page 277. It seems that the statute upon which the decisions were found specifically excluded land under customary tenure from its operation.
But it seems to me that this is not the case. This is because by virtue of the provisions of Section 2 the Interpretation Section of the Limitation Law, which defines LAND, it defines it to include:-
LAND HELD UNDER A RIGHT OF OCCUPANCY OR ANY OTHER TENURE
The statute relevant to this case in hand, does not seem to exclude land under customary tenure from its operation.If the Limitation Law of Imo State excludes Customary Land tenure from its Limitation provisions, then the Plaintiff?s case is not statute barred. But if so, it is statute barred. PER RITA NOSAKHARE PEMU, J.C.A.
JUSTICES
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
MR. POLYCAR P. ONWUSIRIBE Appellant(s)
AND
MR. EDWIN OGBUEHI Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State Nigeria, sitting at Orlu, delivered on the 19th of April 2010.
SYNOPSIS OF FACTS
The Appellant had Vide Writ of Summons, dated 17th of July 2006 and Statement of Claim filed on the 10th of August 2006 (Paragraph 38 thereof) claimed the following against the Respondent viz:-
1. A declaration of Honourable Court that the Plaintiff is entitled to the customary certificate of Occupancy of the piece or parcel of land known as and called Umudumodu Land situate and being at Umuelekeoba Okohe in Ideato South Local Government Area Imo State Nigeria.
2. A sum of one million five hundred thousand naira (N1.5M) as general damages for trespass.
3. Perpetual injunction restraining the Defendant, his servants from further entry into the said land and doing any act or thing thereby inconsistent with the rights of the Plaintiff.
-Pages 1 -4 of the record of Appeal.
At the end of the hearing of the case, and after pleadings were ordered and filed, learned silk for the
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Respondent, Chief Eze Dumuehiome SAN, raised the issue of Statute Bar.
Counsels for the respective parties were invited by the Court to address it on that issue. At the end of this, the Court below declined jurisdiction as the matter the subject matter of this appeal was instituted more than the period of ten years permitted by law.
The Appellant, dissatisfied with the judgment appealed, and filed a Notice of Appeal on the 29th of April 2016 Pages 109-110 of the Record of Appeal. There are Two (2) Grounds of Appeal in the Notice of Appeal filed.
The Appellant filed his brief of argument on the 3rd of August 2010. It is settled by J. A. NNODI, ESQ.
The Respondent filed his brief of argument on the 8th of March 2012. It is settled by N. C. NWACHUKWU, ESQ.
A reply brief was filed by the Appellant on the 29th of June 2012.
The Appellant distilled two (2) issues for determination from the two Grounds of Appeal. They are:-
1. ?WHETHER OR NOT THERE IS ANY LAW KNOWN AS AND CALLED THE LIMITATION LAW 1984 OF IMO STATE WHICH OUSTS THE JURISDICTION OF THE HONOURABLE COURT TO ENTERTAIN THE CASE.
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2. WHETHER OR NOT THAT SAME STATUTE OF LIMITATION APPLIES IN CUSTOMARY LAND TENURE?
The Respondent proffered a sole issue for determination which is:-
1. IN ALL THE CIRCUMSTANCES OF THIS MATTER WAS THE LEARNED TRIAL JUDGE CORRECT TO HAVE DECLINED JURISDICTION BECAUSE THE SUIT IS STATUTE BARRED?
On the 28th day of March 2019 the parties adopted their respective briefs of argument.
I shall consider this appeal based on the Appellant?s issues for determination.
ISSUE NO 1.
It is the Appellant?s contention that there is no law known as the Limitation Law 1984 of Imo State. That Section 3 of the said Law, cited by Respondent?s counsel is void.
ISSUE NO 2.
Appellant contends that Statute of Limitation does not apply to customary land tenure; citing MAJEKODUNMI v. ABINA (2002) FWLR (PT. 100) 1336 and AGBOOLA v. ABIMBOLA (1969) 1 ALL NLR. 277.
RESOLUTION OF ISSUES
ISSUE NO 1.
Section 3 of the Imo State Limitation Law 1994 says in its provisions:
No action shall be brought by any person to recover any land after expiration of ten years from the date which the right of action
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accrued to him or if it first accrued to some person through when he claim, to that person.
The suit, the subject matter of this appeal, shows through the pleadings in the Statement of Claim filed, that the cause of action arose in the year 1967, when a local arbitration looked into the matter, but later advised the parties to go to Court.
The suit was instituted on the 17th of July 2006 Pages 1-3 of the Record of Appeal, about 39 years after the cause of action arose. The Claimant/Plaintiff was therefore clearly out of time in instituting the suit.
The Imo State Limitation Law was promulgated in 1994 not 1984.
This issue is resolved in favour of the Respondent and against the Appellant.
ISSUE NO 2.
By Writ of Summons and in Paragraph 38 of the Statement of Claim, the Plaintiff claims against the Defendant as follows:-
1. A Declaration of Honourable Court that the Plaintiff is entitled to the Customary Certificate of Occupancy of the piece or parcel of land known as and called Umuidusuodu land situate and being at Umuelekeoba Okohia in Ideato South L.G.A, Imo State of Nigeria.
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2. The sum of one million five hundred thousand naira (N1.5M) as general damages for trespass.
3. Perpetual Injunction restraining the Defendant his servants, privies, agent and servants from further entry into the said land and destroy any act or thing thereby inconsistent with the rights of the Plaintiff.
In Paragraph 29 of Amended Statement of Defence, the Defendant averred thus:-
The Defendant admits Paragraph 37 of the Statement of Claim to the extent only that in 1967, a land dispute between the Plaintiffs family and the Defendants family was referred to local arbitration constutited by the five village of Okohia. At the time, the Defendants father was alive.
The arbitration ended in 1969. The decision of the arbitration panel was that the Plaintiff?s family should provide oath for the Defendant?s family and if the Plaintiffs family failed to provide the oath, the Plaintiff family would be adjudged the losers in the dispute
The facts inherent in the above paragraphs smack of land subject to customary law tenure.
In his reply the Plaintiff in Paragraph 29 of his reply denied these
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facts. But that the parties went for Nwaebe (soothsayer) No decision was reached.
It is apparent that the issue between the parties has to do with customary land tenure.
Does the Imo State Statute of Limitation apply to Customary Land tenure. In other words, whether the Limitation Law applies to land under Customary Law
Section 2 the Interpretation Section of the Limitation Law of Imo State defines land to include land held under a right of occupancy or ?any other tenure.
In the case of MAJEKODUNMI v. ABINA (2002) FWLR (PT. 100) 1336; and AGBOOLA v. ABIMBOLA (1969) 1 ALL MR Page 277. It seems that the statute upon which the decisions were found specifically excluded land under customary tenure from its operation.
But it seems to me that this is not the case. This is because by virtue of the provisions of Section 2 the Interpretation Section of the Limitation Law, which defines LAND, it defines it to include:-
LAND HELD UNDER A RIGHT OF OCCUPANCY OR ANY OTHER TENURE
The statute relevant to this case in hand, does not seem to exclude land under customary tenure from its operation.
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If the Limitation Law of Imo State excludes Customary Land tenure from its Limitation provisions, then the Plaintiff?s case is not statute barred. But if so, it is statute barred
I hold that the term any other tenure in Section 2 of the Interpretation Section of the Limitation Law, makes the suit the subject matter of this Appeal one that is caught by the provisions of the Limitation Act of Imo State.
The Result is that the Plaintiff cannot institute the action, even though it is a Customary land tenure by exflusion of time.
This issue is resolved in favour of the Respondent and against the Appellant. The Appeal fails and same is hereby dismissed.
The judgment of the Court below delivered on the 19th of April 2010 is hereby affirmed. N50,000 costs in favour of the Respondent.
ITA GEORGE MBABA, J.C.A.: I agree.
IBRAHIM ALI ANDENYANGTSO, J.C.A.: I have been privileged to have read in advance, the lead judgment just delivered by my learned brother, HON. JUSTICE RITA NOSAKHARE PEMU, JCA. I completely agree with
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his reasoning and conclusion. I hereby dismiss the appeal. I abide by the consequential order made as to Costs.
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Appearances:
J.A. Nnodi, Esq.For Appellant(s)
N.C. Nwachukwu, Esq.For Respondent(s)
Appearances
J.A. Nnodi, Esq.For Appellant
AND
N.C. Nwachukwu, Esq.For Respondent
