O. N. NWOKORO v. THOMAS AZIPU ASHUE
(2010)LCN/3733(CA)
In The Court of Appeal of Nigeria
On Thursday, the 22nd day of April, 2010
CA/C/119/2008
RATIO
JURISDICTION: IMPORTANCE OF JURISDICTION
the issue of jurisdiction is very fundamental and that it is the very basis upon which a court tries a case. That lack of jurisdiction robs a court of the competence to hear and decide a matter. The issue whether a court has jurisdiction can be raised at any time be it at the Court of Appeal or Supreme Court relying on several authorities including the statement of the apex court in PETROJECSSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL COMPANY LIMITED (1992) 5 NWLR (pt 244) 675; 693 E-F where it stated as follows:-
“The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal Calabar or to this courts: a fortiori the court can suo motu raise it.” PER JAFARU MIKA’ILU, J.C.A.
LIMITATION LAW: EFFECT OF A STATUTE BARRED ACTION
Thus, the issue of jurisdiction is so fundamental to the legal process that unless a court has jurisdiction, it can not proceed to hear the matter, it has been further clarified by the Supreme Court in Odofin Vs. Agu (1992) 3 NWLR (pt 229) 350; 369 E, per Nnaemeka-Agu, JSC in the following words:-
“Where the condition of want of competence exists, it is a fundamental defect fatal to adjudication. It is not a mere irregularity which can be cured by considerations of substantial justice.”
Thus the Supreme Court further held in Araka vs. Ejaagwu (supra) at 710 C-E as follows:-
“it is a basic principle of law that a limitation Law or Act removes the right of action, the right of enforcement and the right of judicial relief and leaves the 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 bringing of an action within a prescribed period in respect of a cause of action according to the plaintiff, proceedings shall not be brought after the time prescribed by such a statute. See Micheal Obiefuna vs. Alexander Okoye (1962) All NLR 357, (1961) 1 SCNLR 144, Fred Egbe vs. Adefarsin (1982) 1 NWLR (Pt.47) 1, (1985) 1 NSCC 643. It can thus be said that whether or not an action is statute-barred involves the vexed question of the competence of the court to determine the suit.” PER JAFARU MIKA’ILU, J.C.A.
LAND LAW: WHAT SHOULD A PLAINTIFF PROVE IN A CLAIM FOR DECLARATION OF TITLE TO LAND
It is trite that in a claim for declaration of title to land, the plaintiff in order to succeed must prove or establish with certainty the identity of the land in dispute. PER JAFARU MIKA’ILU, J.C.A.
JUSTICES
JAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
O. N. NWOKORO Appellant(s)
AND
THOMAS AZIPU ASHUE Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State, Obudu Judicial Division which was delivered on the 22nd day of October, 2007. By the said judgment the trial Judge granted the Respondent’s claims and dismissed the Appellant’s counter-claim.
Before this court briefs have been filed and exchanged. In the appellant’s brief of argument the following three issues have been formulated for the determination of this appeal:-
ISSUE1:- Whether the court below was right in assuming jurisdiction to entertain the Respondent’s claim when the said claim was statute-barred. (Based on ground 2)
ISSUE 2:- Whether the court below was right in granting the Respondent’s claim having regard to the claim before the court. (Based on grounds 1, 3, 4, 5, 7, 9, 10 and 11.)
ISSUE 3:- Whether the court below was right in refusing to grant the appellant’s counter claim having regard to the evidence before the court.
On the other hand the Respondent in the Respondent’s brief of argument has framed the following issues for determination:-
1. Whether the appellants can competently raise the issue of jurisdiction for the first time based on the Limitation Law when the defence was not raised at the trial in the lower court.
2. Whether the trial court was right to have granted the relief sought by the plaintiff/Respondent as against those sought by the Defendants/counter claimants/Appellants.
It is clear that in both briefs of the appellant and the Respondent issues of jurisdiction and evaluation of evidence have been raised. However I will consider the issues as formulated in the appellant’s brief of argument.
The first issue therein is whether the court below was right in assuming jurisdiction to entertain the Respondent’s claim when the said claim was statute-barred.
As correctly submitted by the appellant, the issue of jurisdiction is very fundamental and that it is the very basis upon which a court tries a case. That lack of jurisdiction robs a court of the competence to hear and decide a matter. The issue whether a court has jurisdiction can be raised at any time be it at the Court of Appeal or Supreme Court relying on several authorities including the statement of the apex court in PETROJECSSICA ENTERPRISES LTD VS LEVENTIS TECHNICAL COMPANY LIMITED (1992) 5 NWLR (pt 244) 675; 693 E-F where it stated as follows:-
“The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of Appeal Calabar or to this courts: a fortiori the court can suo motu raise it.”
The appellant has reiterated that the appellant is at liberty to raise the issue of jurisdiction in this Court although it was not raised at the court below. Thus in ARAKA VS. EJEAGWU (2000) 15 NWLR (pt 692) 684-709 F- H the Supreme Court held that it is well settled that an appellate Court will not allow a fresh point of law to be taken before it if such a point was not pronounced upon by the Court below. That in the same vein, an appellant will not be allowed to raise on appeal, a question which was not raised, tried or considered by the trial Court but where the question, involves substantial points of law, substantial, and it is plain that no further evidence could have been adduced which would affect the decision on them, the court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice. He has added that the issue of jurisdiction is one which the court will allow to be raised for the first time on appeal as in the instant case.
Also the Supreme Court in ARAKA VS. EJEAGWU (supra) at 710 E-G as follows:-
“A Court is said to be competent to adjudicate upon an action when:-
1) “The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction, and the case comes before the court, initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in the competence of the court is fatal and the proceedings are a nullity as such defect is extrinsic to the adjudication. See MADUKOLO VS NKEMDILIM (1962) 2 SCNLR 341- (1962) NSCC 374; SKEN CONSULT VS’ UKEY (1981) 1 SC 6, (1981) 1 SC 4 (Reprint), (1981) NSCC 1, ROSSEK VS. AFRICAN CONTINENTAL BANK LTD (1993) 8 NWLR (pt 312) 382; 473 and 487”.
He has reiterated that the issue of jurisdiction is so fundamental to the legal process that unless a court has jurisdiction, it can not proceed to hear the matter. He refers to the case of ODOFIN VS. AGU (1992) 3 NWLR (pt 229) 350; 369 where the Supreme Court, per Nnaemeka – Agu JSC held as follows:-
“Where the condition of want of competence exists, it is a fundamental defect fatal to adjudication. It is not a mere irregularity which can be cured by considerations of substantial justice.”
Thus, the issue of jurisdiction is so fundamental to the legal process that unless a court has jurisdiction, it can not proceed to hear the matter, it has been further clarified by the Supreme Court in Odofin Vs. Agu (1992) 3 NWLR (pt 229) 350; 369 E, per Nnaemeka-Agu, JSC in the following words:-
“Where the condition of want of competence exists, it is a fundamental defect fatal to adjudication. It is not a mere irregularity which can be cured by considerations of substantial justice.”
Thus the Supreme Court further held in Araka vs. Ejaagwu (supra) at 710 C-E as follows:-
“it is a basic principle of law that a limitation Law or Act removes the right of action, the right of enforcement and the right of judicial relief and leaves the 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 bringing of an action within a prescribed period in respect of a cause of action according to the plaintiff, proceedings shall not be brought after the time prescribed by such a statute. See Micheal Obiefuna vs. Alexander Okoye (1962) All NLR 357, (1961) 1 SCNLR 144, Fred Egbe vs. Adefarsin (1982) 1 NWLR (Pt.47) 1, (1985) 1 NSCC 643. It can thus be said that whether or not an action is statute-barred involves the vexed question of the competence of the court to determine the suit.”
The learned counsel for the appellant has reiterated that the lower court has no jurisdiction to try the respondent’s claim as it was statute-barred. That the respondent’s suit at the lower court was for the declaration of title to land and damages for trespass to land. That under section 1 of the Limitation Law, Cap 114, Laws of Cross River State, 2004 an action for recovery of land shall be instituted within the (10) years of the occurrence of the act in respect of which relief is sought. That in this case the respondent’s cause of action arose in March 1994. The Respondents did not file his writ and statement of claim before the lower Court until July, 2006, more than 12 years after the supported act of trespass occurred. The appellants counsel has maintained that the suit entertained by the trial court was statute-barred and the trial court, therefore, lacked jurisdiction to entertain it relying on Elabanjo vs. Dawodu (2006) 15 NWLR (Pt.1001) 76.
To determine whether an action is statute-barred the learned counsel has referred this court to the statement of the Supreme Court in Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) 1 which is as follows”-
“by looking at the Writ of summons and statement of claim alleging when the wrong was committed which give the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. 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, than the action is statute-barred.”
With the above the learned counsel for the appellant has averred that the lower court ought not to have entertained the respondent’s suit because the facts disclosed on the respondents’ writ of summons and statement of claim sufficiently disclosed when the respondents cause of action occurred; and a comparison of that date with the date when the writ of summons was filed shows that the respondents suit was statute-barred as at the date it was commenced as shown by the record.
The appellant’s counsel urges this court to declare the judgment of the lower court in respect of the Respondent’s claim a nullity, the same having been given without jurisdiction. That it is trite that once a court has no jurisdiction to adjudicate on a matter, its adjudication of the matter will be declared a nullity by an appellate court.
It is the submission of the learned counsel for the appellant that the issue of jurisdiction is very fundamental and that it is the very basis upon which a court tries a case. That lack of jurisdiction robs a court of the competence to hear and decide a matter. Also the issue whether a court has jurisdiction can be raised at any time, be it at the Court of Appeal or the Supreme Court. The Supreme Court in PETROJESSICA ENTERPRISES LTD VS. LEVENTIS TECHNICAL COMPANY LIMITED (1992) 5 NWLR (Pt.244) 675; 693 E – F held as follows:-
The importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, or an appeal to the Court of Appeal or to this court; a fortio; the court can suo motu raise it”
The appellant counsel has further argued that the appellant is at liberty to raise the issue of jurisdiction in this court althought it was not raised at the court below. Thus in ARAKA v. EJEAGWU (2000) 15 NWLR (Pt.692) 684′ 709 F – H the Supreme Court held that it is well settled that an appellate court will not allow a fresh point of law to be taken before it if such point was not pronounced upon by the court below. In the same vein, an appellant will not be allowed to raise on appeal, a question which was not raised, tried or considered by the trial court but where the question involves substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision on them, the court will allow the question to be raised and the points taken to prevent an obvious miscarriage of justice relying on ATTORNEY GENERAL OF OYO STATE VS. FAIRLAKES HOTELS LTD (1988) 5 NWLR (Pt.92) 1; 29, JOHN BANKOLE AND OTHERS VS. MOJIDI PELU AND OTHERS (1991) 8 NWLR (Pt.211) 523. Thus the issue of jurisdiction is one which the courts will allow to be raised for the first time on appeal as in this case. He has relied on ARAKA VS. EJEAGWU (Supra) at page 710 E – G where the Supreme Court held as follows:-
“A court is said to be competent to adjudicate upon an action when:-
(i)
(ii) “The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(iii) “The case comes before the court, initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in the competence of the court is fatal and the proceedings are a nullity as such defect is extrinsic to the adjudication and
(iv) The case comes before the court, initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in the competence of the court is fatal and the proceedings are a nullity as such defect is extrinsic to the adjudication. See MADUKOLU VS. NKEMDILIM (1962)2 SCNLR 341; (1962) NSCC 374; SKEN CONSULT VS. UKEY (1981) 1 SC 6, (1981) 1 SC 4 (Reprint); (1981) NSCCI; ROSSEK VS. AFRICAN CONTINENTAL BANK LTD (1993) 8 NWLR (pt312)382; 473 and 487”
The learned counsel has further maintained that the issue of jurisdiction is so fundamental to the legal process that unless a court has jurisdiction, it can not proceed to hear the matter relying also on ODUFIN VS. AGU (1992) 3 NWLR (pt 229) 350; 369 F where the Supreme Court held as follows:
“where the condition of want of competence exists, it is a fundamental defect fatal to adjudication. It is not a mere irregularity which can be cured by consideration of substantial justice”
The appellant counsel has further added that the Supreme Court has further held in ARAKA VS. EJEAGWU (supra) at page 710 C – E as follows:-
“It is a basic principle of law that a Limitation Law or Act removes the right of action, the right of enforcement and the right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he can not enforce if such a cause of action is statute-barred. Accordingly, where the law provides for 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 a statute. See MICHAEL OBIEFUNA VS. ALEXANDER OKOYE (1962) ALL NRL 357, (1961) 1 SCNLR 144; FRED EGBE VS. ADEFARASIN (1987) 1 NWLR (Pt.47) 1, (1985) 1 NSCC 643. It can thus be said that whether or not an action is statue-barred involves the vexed question of the competence of the court to determine the suit”
The appellant’s counsel has reiterated that the lower court had no jurisdiction to try the Respondent’s claim, as it was statute-barred. That the Respondent’s suit at the lower court was for declaration of title to land and damages for trespass to land. That by section 1 of the Limitation Law, Cap 114, Laws of Cross River State, 2004, an action for recovery of land shall be brought within ten years of the occurrence of the act in respect of which relief is ought. That Respondent herein stated in paragraph 7 of his statement of claim as follows:-
“That surprisingly, in the month of March, 1994, the defendants themselves and their agents broke and entered the plaintiff’s farm situate thereto at plot 227 and destroyed same. When confronted the Defendants now claim that the plot is their own and called it plot 223”
The learned counsel has maintained that this shows clearly that the Respondent’s cause of action arose in March 1994. But the respondent did not file his writ and statement of claim before the lower court until July 2006 more than twelve years after the supposed act of trespass occurred. The learned counsel has reiterated that the suit entertained by the trial court was statute-barred and the trial court, therefore lacked jurisdiction to entertain it relying on ELABANJO VS. DAWODU (2006) 15 NWLR (pt 1001) 76 SC.
To determine whether or not an action is statute-barred, the learned counsel has relied on the case of the Supreme Court FORESTRY RESEARCH INSTITUTE OF NIGERIA VS. MR I. A. ENAIFOGH GOLD (supra) where the statement of the Supreme Court was quoted which is as follows:-
“by looking at the writ of summons and statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witness. If the time on the writ is beyond the period allowed by the Limitation Law, then the action is statute-barred.”
The learned appellant counsel has opined that the lower court ought not to have entertained the Respondent’s suit because the facts disclosed on the Respondent’s writ of summons and statement of claim sufficiently disclosed when the respondent’s cause of action occurred; and a comparison of that date with the date when the writ of summons was filed shows that the Respondent’s suit was statute-barred as at the date it was commenced.
With the above, the learned counsel for the appellant urges this court to declare the judgment of the lower court in respect of the Respondent’s claim a nullity, the same having been given without jurisdiction. That the Supreme Court made it clear in F.R.I.N VS GOLD (supra) at 18H-19D, that once a court has no jurisdiction to adjudicate on a matter, its adjudication of the matter will be declared a nullity by an appellate court.
On the other hand the learned counsel for the Respondent has submitted that the question of jurisdiction now raised on appeal is not one that can be raised without the leave of this court. He has also averred that as from March, 1994 when the Respondent complained of trespass by the appellants, the appellants remained on the land.
The respondent’s counsel has maintained that as from March, 1994 when the Respondent complained of trespass by the appellants, the appellant remained on the land even up to the time of the trial of the case. That their conduct constituted continuous trespass which gives rise to a fresh cause of action from day to day. He has relied on ALHAJI OYEBANJI AND 5 OTHERS VS. IYABO AFUSAT LAWANSON AND 2 OTHERS (2008) 10 MJSC 154, 66 where the Supreme Court, per Oguntade J.S.C stated as follows:-
“The reliance of the appellants upon the statute of Limitation could not be upheld since they failed to plead the relevant facts upon which the trial court could come to the conclusion that the suit by the Respondents was statute-barred. More importantly the suit of the Respondents was in trespass. For every day the appellants remained on the land in dispute, which as evidence reveals, belongs to the respondents, they committed a fresh act of trespass which was actionable. It would therefore not avail them to contend as they did that the cause of action arose on a particular date since they remained on the said land even at the time the suit was being heard.”
The learned counsel had maintained that the Respondent’s case was not caught up by the Limitation Law and that the trial court was properly seized of jurisdiction to entertain the action.
The learned counsel for the respondent has further added that a party who relies on the defence of Limitation must specifically plead same, relying on O25 R 6(1) of the High Court of Cross River State (civil Procedure) Rules 1987, as applicable, which provides as follows:-
“A party shall plead specifically any matter for example performance, release, any relevant statute of Limitation, fraud or any fact showing illegality which, if not specifically pleaded might take the opposite party by surprise.”
He has added that the correct way of pleading the defence is to raise distinctly the particular statutory provision relied upon. He has argued that the statement of defence falls short of the requirement of the rules as enunciated in OYEBANJI. VS. LAWANSON (supra) and in many other cases. He has also maintained that no evidence was led in the lower court in support of the averment. That the said paragraph therefore remained moribund and it is deemed as abandoned. He has relied on OGH VS. SC NIG LTD (2007) 9 JSC 90; 99 where the Supreme Court stated as follows:-
“Pleading not being human beings have no mouth to speak through witnesses. If witnesses do not narrate them in court, they remained moribund, if not dead of all times and for all times, to the procedural this advantage of the owner, in this con the appellant.”
He has averred that not only must a party who raises the defence based on the Limitation Law specifically plead the defence, he must also lead or adduce evidence on the issue at the trial. That the appellant did not canvass the issue of limitation during the trial or in the address stage.
The learned counsel for the respondent has submitted that for an issue that was not raised in the lower court to be allowed to be raised on appeal as a fresh point, such a point of law must pass the legal test as highlighted by the Supreme Court in N.E.W VS DEMAP (2002) 2 MJSC 123; 148 pages 6 – 149 paras A-G. He has also referred to the statement of the apex court in KAKOYI VS. LADUNNI (1976) 11 SC 2X5 which reads as follows:-
“In the first place, although the Court of appeal is generally, inclined to scrutinize suspiciously a point not taken in the Court of trial but which is being taken for the first time before it, it will allow the point to be made if satisfied beyond doubt that it has before it all the facts bearing upon. The now contention as completely as would have been the case if the contrary had arisen at the trial… or if the new argument, being on a point of law is being raised on and the same matter and set of fact as were before the court of trial; provided always that if the new argument is raised on facts, the Court of Appeal ought to be satisfied that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them in the witness box …. The new point now taken on behalf of the Appellant is on a matter of law and, what is more, it is based on the matter and set of facts given in evidence before the trial court”
The respondent’s counsel has argued that from the above decision, ground 2 of the grounds of appeal remains in competent before this court as even though it raises a new point of law, it is not based on the matter and set of facts given in evidence before the trial Court. He urges this court to hold that the trial judge was right in assuming jurisdiction to entertain the respondent’s claim and to dismiss the appeal on this ground. Having considered the argument of the learned counsel for the appellant and that of the learned counsel for the respondent. I am inclined to decide this issue in favour of the respondent.
The 2nd issue as framed in the appellant’s brief of argument is whether the trial court was right in granting the Respondent’s claim having regard to the evidence before the court. This issue is based on grounds 1, 3, 4, 5, 7, 9, 10 and 11 of the grounds of appeal. Here it is the contention of the learned counsel for the appellant that the trial Judge erred in law in granting the Respondent’s claim when the land in respect of which the claim was sought was not identified with certainty. He has maintained that the trial Judge came to a finding that there were unexplained discrepancies in the survey plans of the parties (Exhibits B and Q) making the identity of the land in dispute uncertain. He has drawn the attention of this court to page 114 lines 4-5 of the record where the trial court stated as follows:-
“Neither party was able to call its surveyor and so to have the discrepancies explained.
The appellant counsel has argued that these discrepancies in the survey Plans unresolved or explained, the court below could not ascertain the identity of the piece of land said to have been reclaimed from the swamp by the respondent and the one (plot 227) allocated to him by the Obudu Urban Development Council in 1976.
It is trite that in a claim for declaration of title to land, the plaintiff in order to succeed must prove or establish with certainty the identity of the land in dispute. The appellant counsel has submitted that the Respondent having failed to identify with certainty the land in dispute and the court below having held that the discrepancies in the survey plans before it were unexplained and unresolved, the Respondents claim ought to have been dismissed. He has reiterated that the learned trial Judge failed to resolve the confusion over the identity of the land claimed by the respondent and made conflicting findings thereon. He has averred that the learned trial Judge found at page 110 line 30 – page 111 lines 1-3 that plots 223 and 227 were one and the same. When his Lordship held as follows:-
“There is no doubt that on paper, the parties are not contesting what was granted to the other but Physically, the parties are contesting the same piece of land for, otherwise they would not be here”
At page 116 lines 29 – 30 found that plots 223 and 227 are separate and distinct, when his Lordship held as follows:-
“There is evidence from both parties which I believe that plots 223 and 227 are different and distinct plots”
The appellants counsel has also submitted that the Respondent himself led conflicting evidence as to the identity of the land claimed by him. That at page 60 lines 3 – 5, the Respondent led evidence that his plot is 227 and that it shares a boundary with plot 223. That the respondent led no evidence to enable the court below to establish where plot 223 ended and plot 227 began. That the respondent tendered Exhibit G which identifies plots 223 and the same piece of land allocated to the appellants in 1973.
The learned counsel for the appellant has submitted that before a declaration of title to land is granted, the land to which the claim relates must be identified with certainty. That it is the duty of the plaintiff to show the court clearly the area of land to which the claim related. If it is not ascertained the claim must fail and it must be dismissed.
The identity of the land in dispute is the crux of the matter in this appeal. In IORDYE VS. IHYAMBE (2000) 15 NWLR (part 692) 675; 681 D – F the Supreme Court held as follows:-
“The court should not grant a declaration of title to a piece of land the boundaries of which are obscured and uncertain. In an action which seeks the determination of boundaries between the parties to the dispute it is for the plaintiff to identify and prove the existing boundaries and where none is identified and proved, the court has no power to demarcate one. where the plaintiff claims for a declaration of title and fails to prove the exact extent of the land he is claiming, his action should be dismissed and not non suited.
It has further been submitted by the appellant’s counsel that the trial judge erred in holding that the Appellants trespassed onto the Respondent’s land when the Respondent’s own case was that he and the appellant’s were jointly in possession of the land. That he therefore did not have exclusive possession and could not found a case in trespass against the appellants, relying on YUSUF v. KEINSI (2005) 13 NWLR (Pt.943) 558, OKHAROBO VS. AIGBE (2002) 9 NWLR (PT.771) 29 @ 51 SC; OHBAH VS.OJIBAH (1991) 5 NWLR (Pt.191) 296 @ 314 H – 5A and ADEGBITE VS. OGUNFAOLU (1990) 4 NWLR (Part 146) 578 @ 592 C-G.
The appellant counsel argues that the respondent in paragraph 6 of his statement of claim, at page 4 of the Record and in his evidence-in-chief at page 60, lines 16 – 20 averred and led evidence that the appellants were on the disputed property from 1980 with Respondent’s express permission. That therefore the learned trial judge erred when he held, at page 117, lines 26 – 29 that the defendants trespassed onto the plaintiff’s land and proceeded to award damages to the Respondent for trespass.
He has further submitted that the learned trial judge erred in relying on the evidence of PW2 and the list attached to exhibit H in holding that it was not possible for one plot to bear two numbers. He has contended that a cursory examination of the said list reveals that the list is riddled with inconsistencies. That several different plots bear the same number with different names. He has given this court the following examples:-
(i) Plot number 221 is listed against the names of two different individual appearing with serial numbers 293 and 317;
(ii) Plot number 223 is listed against the names of two different individuals appearing with serial numbers 295 and 316;
(iii) Plot number 227 is listed against the named of two different individuals, appearing with serial numbers 299 and 312;
(iv) Plot number 229 is listed against the names of two different individuals, appearing with serial numbers 301 and 311;
(v) Plot number 231 is listed against the names of two different individuals, appearing with serial numbers 303 and 309;
(vi) Plot No 234 is listed against the names of two different individuals appearing with serial numbers 306 and 310;
(vii) Plot No 236 is listed against the names of two different individuals, appearing with serial numbers 308 and 318.
The learned appellant counsel has further submitted that the said list does not have a beginning or an end. That the list was not entitled to be given any weight because it was not maintained by the Obudu Urban Development Council, which is the body through which the parties to this action claim title by allocation.
The learned appellant counsel has reiterated that the manifest discrepancies and inconsistencies apparent in the list the learned trial judge admitted and relied on the said list when he said (at page 117, lines 3 – 8) as follows:-
“there is also evidence from PW2 (one Emmanuel Izama, one time secretary of Obudu Urban Lands Committee), who stated that it was not possible for one plot to bear two numbers. So the plot in dispute cannot be plot 227 and also plot 223. I believe him because he stated that the said lands committee kept a register of allottees of land”.
The learned counsel has maintained that his Lordship failed to properly evaluate the list and this failure occasioned a miscarriage of justice.
The appellant counsel has further submitted that the court below should not have relied on the receipt tendered by the respondent as Exhibits C1 – C4 since the said receipt were not issued by the Obudu Urban Development Council, the body from which the Respondent claimed to have received his allocation. That the trial judge’s reliance on the said receipt, as he did, caused him to come to a wrong conclusion and thus occasioned a miscarriage of justice.
In short the following are also submission of the appellant’s counsel:-
(i) That this court is in as good a position as the court below to evaluate the documents before the court. That in ISHOLA VS. U.B.N. LTD (2005) 6 NWLR (pt 922) 422, the supreme court held that, where evidence adduced before a trial court is documentary and not based on demeanor or credibility of witnesses, an appellate court is in as good a position as a trial court to evaluate such a documentary evidence and draw necessary inferences from it. The learned counsel urges this court to evaluate the documents before the court below and hold that the learned trial Judge was in error in relying on them.
The learned counsel for the appellant urges this court to interfere to cure the injustice that would be occasioned by a decision based on improper evaluation of documents by the trial Judge, relying on OKOTIE EBOH VS. MANAGER (2002) 18 NWLR (pt 905) 250.
The learned appellant counsel also has contended that the trial Judge erred in granting the Respondent’s claim in the face of the admission by the Respondent, at page 68 line 30 and page 69, lines 25 and 26 of the record, that he was 14 years old at the time of the purported allocation and therefore lacked the legal capacity to acquire title to the land at the time of the purported allocation to him.
The appellant counsel has reiterated that the purchase or acquisition of land is a contractual transaction and both parties to such a transaction must have the requisite legal capacity for the transaction to be valid. He has relied on OMIDIJI VS. F.M.B. (2001) 13 NWLR (pt 731) 646; at 672 A-B where the Court of Appeal held as follows:
“The law is settled that at common law infants or minors are barred from entering into contracts. The respect of contracts which are for the infants necessaries. See Chitty on contracts, 24th ed. Vol.1 paras 472-473, page 220. Thus as it has not been shown or established that the contract in question in this case is one for the infant’s necessaries, the buyer of the house, being an infant, was therefore incapable of entering into the contract. The purported sale of the house to the said infant purchaser is therefore null and void.”
With the above the learned counsel for the appellant has submitted that the purported allocation to the Respondent in 1976 was void and the learned trial Judge was in error in failing to so hold.
It is also his submission that when an appellant complains that a judgment is against the weight of evidence, he means that when the evidence adduced by him is balanced against that adduced by the Respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before the court. He has relied on GUARDIAN NEWSPAPER LTD VS. AJEH (2005) 12 NWLR (pt 938) 205; 210. He has added that the judgment in the court below does not dispassionately reflect or flow from the evidence adduced before the court, thus leading to a miscarriage of justice.
The respondent’s counsel has counter argued that it is the contention of the appellant that the plaintiff/Respondent’s cause of action arose in March, 1994 and that his filing the writ and statement of claim in July, 2008 offends section 1 of the Limitation Law Cap 114 Laws of Cross River state 2004, which stipulates that an action for the recovery of land shall be brought within 10 years of the occurrence of the act in respect of which relief is being sought. He has averred that as from March, 1994 when the Respondent complained of trespass by the appellants, the appellants remained on the land even up to the time of the trial of the case. That their conduct constituted continuous trespass which gives rise to a fresh cause of action from day to day. He has relied on the statement of the Supreme Court in the case of ALHAJI OYEBAMIJI and 5 others VS. IYABA AFUSAT LAWANSON AND 2 others (2008) 10 MJSC 154; 166 which is as follows:
“The reliance of the appellants upon the statute of Limitation could not be upheld since they failed to plead the relevant facts upon which the trial court could come to the conclusion that the suit by the Respondents was statute barred. More importantly, the suit of the Respondents was no trespass. For every day the appellants remained on the land in dispute, which as the evidence reveals, belongs to the respondents, they committed a fresh act of trespass which was actionable. It would therefore not avail them to contend as they did that the cause of action arose on a particular date since they remained on the said land even at the time the suit was being heard.”
He has added that in a similar situation the Court of Appeal, Kaduna Division, while interpreting section 2(a) of the Public Officers Act Cap 379 of 1990 held as follows:-
“where the injury complained of is a continuing one time does not begin to run for the purpose of the application of a Limitation Law until the cessation of the event leading to the cause of action In other words “continue of injury” means the continuance or repeat of the act which caused the injury See the case of ALHAJI JIBRIN BALA GUNA ALHASAN VS. DR MUAZU BABANGIDA AKIYU and 2 others APPEAL NO: CA/K/78/2008.”
With the above he has submitted that the Respondent’s case was not caught up by the Limitation Law and that the trial court was properly seized of jurisdiction to entertain the action.
He has further submitted that a party who relies on the defence of Limitation must specifically plead same.
Thus Order 25 Rule 6(1) of the High Court of Cross River State (Civil Procedure) Rules 1987, has provided as follows:
“A party shall plead specifically any matter for example performance release, any relevant statute of limitation, fraud or any fact showing illegality which, if not specifically pleaded might take the opposite party by surprise.”
The learned counsel has maintained that the correct way of pleading the defence is to raise distinctly the particular statutory provision relied upon relying on OYEBAMIJI VS. LAWNSON (supra) page 164 – 165.
He has drawn the attention of this court to plea under paragraph 34 of the statement of defence and avers that that said paragraph falls short of the requirement of the rules as enunciated in OYEBAMIJI vs. LAWANSON (supra) and in many other cases. He has added that no evidence was led in the lower court in support of the averment. That the said paragraph is therefore deemed as abandoned. He has relied on the statement of the Supreme Court, per Mustaphar, JSC in OGI VS. SC. NIG. LTD (2009) 9 MJSC 90; 99 which is as follows:-
Pleadings not being human beings have no mouth to speak in court. And so they speak through witnesses if witnesses do not narrate them in court, they remained moribund, if not dead of all times and for all times, to the procedural disadvantage of the owner, in this con the Appellant. See also IFETA VS. SHELL PET DEV. CO. LTD (2006) 7 MJSC 121; 129
The respondent’s counsel has averred that not only must a party who raises the defence based on the limitation law specifically plead the defence, he must also lead or adduce evidence on the issue at the trial. That here the appellant did not canvass the issue of limitation during the trial or in the address stage.
The learned counsel for the Respondent has submitted that not only must a party who raises the defence based on the limited law specifically plead the defence, he must also lead or adduce evidence on the issue at that trial. That here the appellant did not canvass the issue of limitation during the trial or in the address stage.
The learned counsel has maintained that for an issue that was not raised in the lower court to be allowed to be raised on appeal as a fresh point; such a point of law must pass the legal test as high lightened by the Supreme Court in N.E.W. vs. DEMAP (2002) 2 MJSC 123; 148 page 6-149. Therein the Supreme Court quoted Idigbe, JCA IN KAKOJI vs. ZADUNI (1976) 11 SC 245 where he stated as follows:-
“In the first place, although the Court of Appeal is generally inclined to scrutinize suspiciously a point not taken in the court of trial but which is being taken for the first time before it, it will allow the point to be made if satisfied beyond doubt it has before it all the facts bearing upon the new contention as completely as would have been the case if the controversy had arisen at the trial Or if the argument, being on point of law, is being raised on the same matter and set of fact as were before the court o f trial, provided always that if the new argument is raised on facts, the Court of Appeal ought first to be satisfied that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them in the witness box. The new point now taken on behalf of the appellant is on matter of law and, what is more, it is based on the matter and set of fact, given in evidence before the trial court.”
The learned counsel for the Respondent has concluded that from the above decision, ground 2 of the grounds of appeal remains incompetent before this court as even though it raises a new point of law, it is not based on the matter and set of facts given in evidence before the trial court. He urges this court to hold that the trial Judge was right in assuming jurisdiction to entertain the respondent’s claim and he urges this court to dismiss the appeal on this point.
In the final conclusion I have perused the arguments of the appellant and those of the respondent in their brief and I have gone over the record of proceedings in this matter and I have reached the following conclusion.
(i) That the respondent’s case being for a declaration of title and damages for trespass was not caught up by the limitation law and as such, the lower court was seized of jurisdiction to entertain the matter.
(ii) That the respondent was able to prove his case by preponderance of evidence, and having established the identity of the land he claimed, was entitled to judgment in his favour.
(iii) That appellants whose counter-claim is replete with unresolved contradictions were entitled to nothing but a dismissal of the counter-claim.
(iv) That the lower court arrived at its findings upon a proper and thorough appraisal of the evidence, both oral and documentary, presented by the parties. There is therefore no basis for the disturbance of the findings of the lower court.
In the final conclusion I find no merit in the appeal and it is therefore dismissed.
Costs in the sum of N30,000:00 awarded in favour of the respondent against the appellants.
Appeal dismissed.
NWALI SYLVESTER NGWUTA, J.C.A.: I agree
PROCLAMATION OF JUDGMENT OF HON. JUSTICE JEAN OMOKRI, J.C.A.: Hon. Justice Jean Omokri, JCA (of blessed memory) participated in this appeal and agreed in conference that the appeal should be allowed. Pursuant to the proviso to section 294 (2) of the Constitution I hereby pronounce his opinion dismissing the appeal.
Appearances
I. I. Ikoi Esq.For Appellant
AND
Maurice B. Agiah Esq.For Respondent
