ODOGWU v. OGOCHUKWU (2021)

ODOGWU v. OGOCHUKWU

(2021)LCN/15506(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, March 12, 2021

CA/AS/52/2006

RATIO

TITLE TO LAND: WHETHER A CERTIFICATE OF OCCUPANCY RAISES THE PRESUMPTION THAT THE HOLDER IS THE OWNER IN EXCLUSIVE POSSESSION OF THE LAND.

A certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land. It also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy, the certificate of occupancy will stand revoked by the Court. A person without title to a parcel of land in respect of which a certificate of occupancy was issued acquires no right or interest which he did not have before its issuance. See OGUNLEYE v. ONI (1990) 2 NWLR (PT. 135) 745, EZEANAH v. ATTAH (2004) 7 NWLR (PT. 873) 468, MADU v. MADU (2008) 6 NWLR (PT. 1083) 296, ADOLE v. GWAR (2008) 11 NWLR (PT. 1099) 562, ATANDA v. ILIASU (2013) 6 NWLR (PT. 1351) 529, ORIANZI v. ATTORNEY-GENERAL OF RIVERS STATE supra, ADERONPE v. ELERAN supra and BAC ELECTRICAL CO. LTD v. ADESINA (2020) 4 NWLR (PT. 1745) 548. PER JOSEPH EYO EKANEM, J.C.A.

TITLE TO LAND: CONSIDERATIONS WHEN PROVING TILE TO LAND BY DOCUMENT OF TITLE

When a party, as in the instant matter, relies on document of title to prove his title to land, the Court is required to inquire into a number of questions including:-
(a) Whether the document is genuine and valid;
(b) Whether it has been duly executed, stamped and registered;
(c) Whether the grantor had the authority and capacity to make the grant;
(d) Whether the grantor had in fact what he purported to grant;
(e) Whether it had the effect claimed by the holder of the instrument. See ROMAINE v. ROMAINE (1992) 4 NWLR (PT. 238) 650, ADENIRAN v. ALAO (2001) 18 NWLR (PT. 745) 361 and OYENEYIN v. AKINKUGBE (2010) 4 NWLR (PT. 1184) 265. PER JOSEPH EYO EKANEM, J.C.A.

TITLE TO LAND: METHODS OF PROVING OWNERSHIP OF LAND

TITLE TO LAND: BURDEN TO PROVE AN ENTITLEMENT TO A DECLARATION OF TITLE TO LAND

In a claim for declaration of title to land, the burden is generally speaking on the plaintiff to show his entitlement to the declaration. He must succeed on the strength of his case and not on the weakness of the defendant’s case. However, the plaintiff is entitled to take advantage of any evidence adduced by the defence which tends to support his own case. See KODILINYE v. ODU (1935) 2 WACA 336, PIARO v. TENALO (1976) 12 SC 31 and NWANKWO v. OFOMATA (2009) 1 NWLR (PT. 1153) 496. PER JOSEPH EYO EKANEM, J.C.A.

TITLE TO LAND: WHETHER ANY MEMBER OF A FAMILY OR COMMUNITY CAN SUE TO PROTECT OR DEFEND THE INTEREST OF THE FAMILY WITHOUT THE AUTHORITY OF THE LATTER

the law is trite that any member of a family or community can sue to protect or defend the interest of the family in respect of family property. If he does not have the authority of the family to sue, the family will not be bound by the result of the action except, for some reason, the family is estopped from denying that the action was binding on them. See SOGUNLE v. AKERELE (1967) NMLR 58; OJUKWU v. OJUKWU (2008) 18 NWLR (PT. 1119) 439, UNITY BANK PLC v. BOUARI (2008) 7 NWLR (PT. 1086) 372, SAPO v. SUNMONU (2010) 11 NWLR (PT. 1205) 374 and LAYINKA v. GEGELE (1993) 3 NWLR (PT. 283) 518.
In SHARON PAINT AND CHEMICAL CO. LTD v. EZENWAKU supra 317, Olagunju, J.C.A., opined thus:-
“But what is decisive of any challenge of an action being instituted in a representative capacity is the element of flexibility that failure of a plaintiff to sustain an action in representative capacity does not render the action incompetent per se as the Court, is not precluded from rendering judgment on individual or personal basis rather than on group basis if that course is dictated by the evidence that emerged at the conclusion of the trial.”
The mere fact that the 3rd and 4th defendants were joined as co-defendants in the suit for themselves and as representing Umuda Village excluding the plaintiffs, did not knock the bottom off the case of the respondent. Where named plaintiffs allege that they represent a group, any member of that group can object to the named plaintiffs representing him.

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

KENNY EZENWANI ODOGWU (Substituted By Order Of Court On 9/9/2020 For Chief Sunny Dike Odogwu, Former Deceased 1st Appellant) APPELANT(S)

And

SAMUEL OGOCHUKWU (For Himself And As Representing The Umuda Village, Umuaji Quarters, Asaba) RESPONDENT(S)

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State in the Asaba Judicial Division (the trial Court) delivered in suit No. A/22/2002 on 21/2/2005 by T. O. DIAI, J. In the judgment, the trial Court found in favour of the Plaintiffs against the defendants and declared that Umuda Village, Umuaji Quarters are the people entitled to the grant of a certificate of statutory right of occupancy over the land in dispute situate at Uda Layout verged Pink in the plan tendered before the trial Court as Exhibit “N”. The trial Court dismissed the counter-claim of the 1st defendant.

Aggrieved by the decision, the defendants in the suit appealed to this Court by means of a notice filed on 22/2/2005. The notice of appeal was subsequently amended with the leave of this Court.

The facts of the case leading to the appeal may be summarized as follows: the original three plaintiffs sued the original defendant, Chief Sunny Dike Odogwu for a declaratory, injunctive and monetary reliefs in respect of the land in dispute. The said plaintiffs sued “for themselves and as representing the Umuda Village, Umuaji Quarters, Asaba.” A second defendant was with the leave of Court joined in the suit. In the course of time, two more persons were joined in the suit as 3rd and 4th defendants to challenge the capacity in which the original plaintiffs sued. The amended writ of summons and the statement of claim were further amended and amended, respectively, to reflect the joinder.

The case of the original plaintiffs was that the Umuda Village was the owner, from time immemorial, of the land in dispute which is in its possession. The said plaintiffs fenced the land but were arrested and detained by the police on the basis of a petition written by the 2nd defendant as a representative of the 1st defendant who later demolished the fence. The original plaintiffs sued as stated earlier.

The case of the original 1st defendant was that the land originally belonged to the Umuda Village which transferred the same to Mr. Joe Bardi (Jnr) by way of a customary law transaction. The said purchaser went into possession of the land and applied for, and was granted a statutory right of occupancy over the land in dispute. By a deed of assignment which was consented to by the then Military Governor of Bendel State, Mr. Joe Bardi (Jnr) made an outright assignment of his statutory right of occupancy to the original 1st defendant, Chief Sunny Iwedike (Dike) Odogwu. The deed of assignment was duly registered in the Lands Registry, Benin City, now at Asaba. The original plaintiffs encroached on the land. Consequently, the said defendant denied the claim of the plaintiffs and counter-claimed for declaratory, monetary and injunctive reliefs against them in their individual capacity.

The trial Court, as earlier stated, granted a declaratory relief in favour of the original plaintiffs and dismissed the counter-claim of the original 1st defendant.

During the pendency of the appeal, the original parties died and by the order of the Court the original 1st defendant/1st appellant was substituted with the current appellant while the original plaintiffs/respondents have been substituted with the lone respondent. The original 2nd – 4th defendants’ appellants have not been substituted.

Pursuant to the rules of this Court, the appellant filed an amended appellant’s brief of argument on 11/9/2020 and a reply brief of 13/1/2021. Both briefs were deemed duly filed and served on 19/1/2021. Respondent filed his brief of argument on 23/11/2020.

At the hearing of the appeal on 19/1/2021, Chike Onyemenam (SAN) for the appellant adopted and relied on the briefs filed on his behalf in urging the Court to allow the appeal, set aside the judgment of the trial Court and enter judgment dismissing the respondent’s claim.

G. A. I. Mowah, Esq., for the respondent adopted and relied on respondent’s brief of argument in urging the Court to dismiss the appeal. He applied to withdraw his motion filed on 2/10/2018. He stated that grounds 1 and 2 of the amended notice of appeal are no longer alive as the appellants to which the grounds relate are no longer parties in the appeal.

In the appellant’s amended brief of argument, the following issues have been formulated for the determination of the appeal:-
“(i) ISSUE NO. 1 (FROM GROUND 12)-
Whether the Learned Trial Judge was right in entering judgment for “Umuda Village” when Umuda Village, a Family or Village Unit is not a person known to Law.

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(ii) ISSUE NO. 2 (FROM GROUND 10)-
Whether the Learned Trial Judge was right in holding that the original 1st Appellant had failed to discharge the onus or burden of proof on him to show that Umuda Village being the original owners of the Land in dispute, had divested themselves of their title to the Land in dispute.
(iii) ISSUE NO. 3 (FROM GROUND 9)-
Whether the Learned Trial Judge correctly interpreted the contents of Exhibit “A” and if not, whether his finding that Exhibit “A” and “Q” and the Appellants’ pleadings were in conflict and consequently goes to no issue, occasioned a miscarriage of justice against the original 1st Appellant.
(iv) ISSUE NO. 4 (FROM GROUNDS 7, 8 &11)-
Whether the Learned Trial Judge was right in holding that Umuda Village had discharged the burden of establishing their title to the Land in dispute with the degree of proof required.
(v) ISSUE NO. 5 (FROM GROUND 1)-
Whether the Learned Trial Judge’s failure to consider the original 3rd and 4th Respondents case having held that he wrongly joined them as co-defendants, occasioned a miscarriage of justice on the Appellant’s case.
(vi) ISSUE NO. 6 (FROM GROUND 2)-
Whether the Learned Trial Judge was right in entering judgment in favour of Umuda Village when the same Umuda Village was a co-defendant in the same suit.
(vii) ISSUE NO. 7 (FROM GROUNDS 4 & 5)-
What is the Legal effect of the Trial Judge ignoring Exhibit “P” a judgment of a Court of co-ordinate jurisdiction, and delivering a judgment in conflict with same.
(viii) ISSUE NO. 8 (FROM GROUNDS 3 & 6)-
Whether having regard to the finding of the Learned Trial Judge that as at the date of filing of this suit, no cause of action had accrued to the original Plaintiffs/Respondents; the Court below was right in entering judgment for the Plaintiffs/Respondents; afortiori, when the action from the evidence led, had become Statute Barred.

In the respondent’s brief of argument, the following issues have been formulated for the determination of the appeal:-
“ISSUE 1:
Whether the initial joinder of the 3rd & 4th defendants in this suit, and the eventual finding that they were needlessly joined, adversely affected the judgment granting ownership of the land in dispute to Umuda family. (Grounds 1 & 2). (Appellant’s Issues 5 & 6)
ISSUE 2:
Was the learned trial judge right in assuming jurisdiction on this case? (Grounds 3 & 6). (Appellants issue 8)
In ground 3, appellant complains that there was no cause of action when the suit was filed. In ground 6, he complains that the suit was statute barred at the time it was filed. These complains were argued in appellant’s issue 8 where he contends that these two features rob the Court of jurisdiction to hear the case.
ISSUE 3:
Whether the trial Court lacked jurisdiction to hear the case when the plaintiffs claimed titled to the land in the name of Umuda Village? (Ground 12). (Appellant’s Issue 1).
This is the correct Issue arising from Ground 12. The appellant left the complaint of jurisdiction should be the focus of any issue framed on that Ground of Appeal. That sting is not reflected in the issue framed by the appellant.
ISSUE 4:
Whether the trial judge was correct in the decision reached that the appellant failed to prove that he acquired title over the land in dispute. (Grounds 4, 5, 7, 8, 9, 10 & 11). (Appellant’s Issues 2, 3, 4 & 7).”

It is my humble view that the issues formulated by counsel of both sides rather proliferate. This is especially so in respect of issues formulated by appellant’s senior counsel. An issue arises ordinarily from a combination of grounds of appeal through which a common theme or a common issue runs. See NWOKEARU v. STATE (2013) 6 NWLR (PT. 1380) 207, 223.

This Court has the power to reframe issues for the purpose of accentuating the principal questions in controversy in the interest of clarity and brevity. See KALU v. STATE (2017) 14 NWLR (PT. 1586) 522, 541 and POROYE v. MAKARFI (2018)1 NWLR (PT. 1599) 91, 137.

Consequent upon the foregoing, I hereunder formulate the following issues for the determination of the appeal:
1. Was the learned trial judge right in entering judgment for Umuda Village?
2. Was the learned trial judge right in holding that the original 1st appellant had failed to discharge the onus of proof on him showing that Umuda Village had divested itself of title to the land in dispute?

Was the claim for title by the respondent devoid of reasonable cause of action and statute-barred?I need to mention that issue 1 is drawn from grounds 1, 2 and 12 of the grounds of appeal. Issue 2 is formulated from grounds 4, 5, 7, 8, 9, 10 and 11 of the grounds of appeal, while issue 3 springs from grounds 3 and 6 of the grounds of appeal:-
ISSUE 1
“Was the learned trial judge right in entering judgment for Umuda Village?”

Senior counsel for the appellant stated that it is settled law that an action for a determination of title or right of occupancy and indeed any legal action cannot be brought for and on behalf of a non-juristic person, otherwise the action will be incompetent. He relied on SHARON PAINT & CHAMICAL CO. LTD v. EZENWAKU (2001) FWLR (PT. 43) 290 among other cases. He noted the capacity in which the respondent brought the action and the evidence that the land belongs to Umuda Village. He submitted that since the original respondents were not shown to represent a natural or an artificial person, the action at the trial Court was fundamentally defective and ought to be set aside.

Learned senior counsel stated that the only reason why the original 3rd and 4th respondents were joined in the suit for themselves and as representing Umuda Village excluding the respondent was to enable them challenge the representative capacity of the respondent, so that the village would not at the end of the case be bound by a judgment in a suit that they did not authorize. He posited that the fact that the village that the respondent purported to represent was made defendant clearly knocked the bottom out of the respondent’s representative action and in fact shifted the burden to the respondent to show the authority or mandate of the village to represent it. This burden, he contented, the respondent failed to discharge. He argued that if the learned trial judge had considered the effect of joining the entire village as co-defendant and placed the case of the respondent side by side with that of the village on an imaginary side, his Lordship would not have entered judgment for Umuda Village.

In his response, counsel for the respondent contented that with the death of the 2nd, 3rd and 4th defendants, grounds 1 and 2 of the grounds of appeal died since, according to him, the grounds related to the 3rd and 4th defendants and in the light of evidence of the original 2nd and 3rd appellants upon which the trial Court held that they were wrongly joined because they were only necessary witnesses. It was his further argument that even if the original 3rd and 4th respondents were still alive and were parties to this appeal, those grounds would still not be maintainable by them since they are not aggrieved by the judgment on appeal, having testified that they have no interest in the land in dispute.

Counsel argued that the trial Court did nothing wrong in joining the 3rd and 4th respondents to present their own view. He placed reliance on ATANDA v. OLANREWAJU (1988) 4 NWLR (PT. 89) 89. He further argued that it is a gross misconception of the law to contend that the bottom was knocked off the case of the respondent. This, he said, is because the purpose of such joinder is not to displace the existing plaintiff. He called in aid EKPERE v. AFORIJE (1972) ALL NLR 224. He noted that the 3rd and 4th defendants did indeed put forward their case and did not displace the respondent. He referred to the decision of the learned trial Judge on the point and noted that there is no appeal against the same. Counsel finally contended that it was wrong for the appellant to say that the trial Court did not consider the evidence of the 2nd and 3rd defendants.

RESOLUTION
Respondent counsel’s submission to the effect that grounds 1 and 2 of the notice of appeal are no longer live grounds of appeal is in the nature of an objection which ought to be taken or raised by way of motion on notice and not by way of argument of the issue distilled therefrom. Where a respondent perceives that a ground of appeal is not competent or is not viable, that is a preliminary issue that should be raised by way of a preliminary objection where there is only one ground of appeal in the notice of appeal or by way of a motion notice where there are other competent or viable grounds of appeal that can sustain the appeal. See DAUDU v. FEDERAL REPUBLIC OF NIGERIA (2018) 10 NWLR (PT. 1626) 109, FRN v. ATUCHE (2019) 8 NWLR (PT. 1674) 338 and OSANYANBI v. LASISI (2019) 17 NWLR (PT. 1701) 217. Furthermore, the grounds and issue formulated from them have a direct bearing on the appeal as appellant’s senior counsel’s position is that with the joinder of the former 3rd and 4th appellants, the case of the respondent lost its foundation. I therefore discountenance this aspect of the argument of respondent’s counsel.

The original plaintiffs in the case leading to this appeal sued “for themselves and as representing the Umuda Village, Umuaji Quarters, Asaba.” The original 3rd and 4th defendants were joined in the suit “for themselves and as representing the Umuda Village, Umuaji Quarters, Asaba excluding the named plaintiffs.” The complaint of the appellant is that since the named original plaintiffs were not shown to be representing a natural or artificial person, the action was fundamentally defective and so also is the judgment entered in their favour. The law is that a person who institutes an action in Court must be competent to do so. Competence to institute an action is crucial to the competence of the suit and in turn the competence of the Court to entertain the same. See QUO VADIS HOTELS AND RESTAURANTS LTD v. COMMISSIONER OF LANDS, MID-WESTERN STATE (1973) SC 71, 82.
The High Court Rules of various States make provisions for representative action. An example is the Delta State High Court (Civil Procedure) Rules which provides in Order 13 Rule 14 (1) as follows:-
“1. Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued on behalf of or for the benefit of all persons so interested.
2. Where there are numerous persons having interest in one suit and they seek to defend the action, a Judge may allow one or more of such persons to defend the action on behalf or for the benefit of all persons so interested.”
The species of action known as representative action were evolved for the relaxation of the “Complete Joinder” rule of the common law which required all parties who were interested in a suit to be present in Court so that a final end might be made to the controversy and thus avoid multiplicity of actions on the same matter. The rule was too rigid when it had to be applied to societies or groups. In response, equity allowed some of such persons to sue on behalf of themselves and all others having the same interest. The named plaintiffs were regarded as their champion. If they win, all the persons represented would reap the fruit of victory. If they fail, they fall with them and take the consequences. On this account, the rule has been described as “a rule of convenience only” which came into being only for convenience and for the sake of convenience, it has been relaxed. It should therefore not be treated as rigid but as a flexible tool of convenience in the administration of justice. See ABUAKWA v. ADANSE (1957) 3 ALL ER 559, 562; ANATOGU v. ATTORNEY-GENERAL OF THE EAST-CENTRAL STATE OF NIGERIA (1976) 6 ECSLR 453, IN RE: APEH (2017) 11 NWLR (PT. 1576) 252 and IGHEDO v. POWER HOLDING COMPANY (NIG) PLC (2018) 9 NWLR (PT. 1623) 51.
The group that is represented is invariably a community of persons or group of persons who collectively are not legal persons otherwise they would not need representation. What is important is that the group, community or class of persons is easily identifiable, they have a common interest, a common grievance and the relief claimed must be beneficial to all. It is wholly of no moment that the group is not a legal person; what is crucial is that the group is represented by a juristic person or persons. In ETALUKU v. NIGERIAN BOTTLING CO. PLC (2004) 15 NWLR (PT. 896) 370, 402 AUGIE, J.C.A. as he then was, stated the law as follows:-
“It is an established principle that where several persons are jointly interested in the same claim, one or any number of them may with the authorization of the others sue for and on behalf of all of them. See IFEKWE v. MADU (2000) 14 NWLR (PT. 688) 459 where the Court also held that it is the person invoking the jurisdiction of the Court that must be a juristic person, and not the party being represented.”
The original plaintiffs were natural persons and they sued on behalf of a village which is made of a group of persons. That is in line with the essence of representative action. In the case of SHARON PAINT AND CHEMICAL CO. LTD v. EZENWAKU supra cited by appellant’s counsel, the suit was filed by named plaintiffs in a representative capacity, to wit: for themselves and on behalf of Ezenwaku family of Udi”. Fabiyi, J.C.A. (as he then was) reasoned that:-
“Undoubtedly, “Ezenwaku Family” is not a person at law. It is neither a natural person nor a corporation, sole or aggregate, that can sue or be such. Not being a juristic person, it cannot be represented in an action. It is clear on this score that the suit was not properly constituted and must be struck out.”
However, in the case of ETALUKU v. NIGERIA BOTTLING COMPANY PLC supra, Augie, J.C.A., stated that the party being represented need not be a juristic person. The decision in Etaluku’s case supra is latter in time than Sharon Paint and Chemical Co. Ltd case supra and I will therefore follow it.
Furthermore, the original plaintiffs sued for themselves and as representing “the Umuda Village”. I place emphasis on the definite article “The”. In Oxford Advanced Learner’s Dictionary 7th edition page 1642 the phrase “The Village” is defined as:-
“The people who live in a village.”
In the Nigeria context, “The Umuda Village” means the people of Umuda Village who are juristic persons and therefore can be represented in an action. This is unlike the situation in Sharon Paint and Chemical Co. Ltd case supra where the definite article “The” was not prefixed to the name “Ezenwaku Family”.

The first part of the contention of appellant’s counsel is unfounded.

Appellant’s senior counsel contended that the joinder of the original 3rd and 4th respondents as co-defendants for themselves and on behalf of Umuda Village excluding the original plaintiff knocked the bottom off the case of the original plaintiffs as the people they purported to represent had thus joined as defendants. The learned trial Judge reasoned as follows at page 380 of the record of appeal:
“The position of the law on who can sue to protect family property is well settled. It is the law that any member of the family can institute such an action even when he does not have the support of the head of the family or principal members thereof. The capacity to institute an action in such a situation is not vested exclusively on the head and principal members. In the circumstances of this case, since the plaintiffs are all members of Umuda family, they do not need the consent or authority of the head and principal members of the family to institute this action and I so hold.”

The above reasoning of the learned trial Judge cannot be faulted. It is to be re-stated that the original plaintiffs sued “for themselves and as representing the Umuda Village”. This implies that they sued in a dual capacity, to wit; In their individual capacity and in a representative capacity. If they could not sue in a representative capacity, the fact that they stated that they sued for themselves is crucial to the survival of the action as the action can be sustained in the name of the original plaintiffs without more. See OPARA v SHELL PETROLEUM DEVELOPMENT CO. (NIG) LTD (2015) 14 NWLR (PT. 1479) 307, 346 and SHELL PETROLEUM DEVELOPMENT CO. (NIG) LTD v. AJURA (2015) 14 NWLR (PT. 1480) 403, 477 – 478. This is especially so in this instance since the original plaintiffs were indigenes of Umuda Village and the law is trite that any member of a family or community can sue to protect or defend the interest of the family in respect of family property. If he does not have the authority of the family to sue, the family will not be bound by the result of the action except, for some reason, the family is estopped from denying that the action was binding on them. See SOGUNLE v. AKERELE (1967) NMLR 58; OJUKWU v. OJUKWU (2008) 18 NWLR (PT. 1119) 439, UNITY BANK PLC v. BOUARI (2008) 7 NWLR (PT. 1086) 372, SAPO v. SUNMONU (2010) 11 NWLR (PT. 1205) 374 and LAYINKA v. GEGELE (1993) 3 NWLR (PT. 283) 518.
In SHARON PAINT AND CHEMICAL CO. LTD v. EZENWAKU supra 317, Olagunju, J.C.A., opined thus:-
“But what is decisive of any challenge of an action being instituted in a representative capacity is the element of flexibility that failure of a plaintiff to sustain an action in representative capacity does not render the action incompetent per se as the Court, is not precluded from rendering judgment on individual or personal basis rather than on group basis if that course is dictated by the evidence that emerged at the conclusion of the trial.”
The mere fact that the 3rd and 4th defendants were joined as co-defendants in the suit for themselves and as representing Umuda Village excluding the plaintiffs, did not knock the bottom off the case of the respondent. Where named plaintiffs allege that they represent a group, any member of that group can object to the named plaintiffs representing him.

In such a case, the dissenting member can apply and say that the named plaintiffs have no right to represent him or that he does not want them to represent him. He will apply to be made a party to protect his own interest. Such a dissenting member is then usually made a defendant. See ATANDA v. OLANREWAJU (1988) 4 NWLR (PT. 89) 394.
The fact of making such a person or persons defendant/s does not torpedo the case of the named plaintiffs. In EKPERE v. AFORIJE (1972) ALL NLR 224, 232, the Supreme Court held that:-
“… while a person represented but dissatisfied with the person representing might see to have himself joined as a separate defendant he is not so joined in substitution of the original representative but as a separate defendant so as to put forward his own view.”
The 3rd and 4th defendants were joined in suit and they did put forward their own view but the trial Court was not impressed with their view. In that circumstance, it cannot seriously be said that their case was ignored by the trial Court and that Court did not place their case side by side with respondent’s case.

Though the learned trial Judge in essence found the suit viable on account of the personal capacity of the respondent, the declaration was rightly made in favour of Umuda Village as the trial Court found rightly or wrongly that title was in the Village.
I therefore enter an affirmative answer to issue 1 and resolve it against the appellant.

ISSUE 2
Was the learned trial judge right in holding that the original 1st appellant had failed to discharge the onus of proof on him of showing that Umuda Village had divested itself of title to the land in dispute?

Appellant’s senior counsel set out in numbered sub-paragraphs the facts of the case leading to this appeal. He conceded that in IDUNDUN v. OKUMAGBA (1978) 9- 10 SC 227, there are listed five ways of establishing title to land but he added that the same includes payment of purchase price, issuance of purchase receipt and being put into possession. He contended that the five methods are not exhaustive. After setting out a hypothetical situation of serial purchases of land up to the last purchaser who is unable to produce the original purchase receipt but who gets the original owner to confirm in writing that title is in the last purchaser, he posited that there could be no better method of showing that an original owner of land has divested himself of title to his land than the said original owner clearly confirming same in writing and charging a fee to that effect. He stated that in this instance Umuda Village had charged and was paid a huge sum of N40,000.00 in 1986 (which sum he said translated to several millions of naira today) by the original 1st appellant and the village confirmed that the land was validly transferred from Joe Bardi to the original 1st appellant. He lamented that some group of persons purporting to represent the same Umuda Village filed the action leading to this appeal and obtained judgment declaring title in favour of the said village. He urged the Court to hold that the sixth methods of establishing title to land in Nigeria is by getting the original owner of the land to confirm, orally or in writing, the he sold the land to the current owner or to his vendor. He added that such a decision will become the locus classicus on the point.

Learned senior counsel referred to Exhibits “A” and “Q”, a receipt of Umuda Village and a written confirmation by the same village, respectively. He set out the content of Exhibit “A” and stated in essence that the learned trial judge wrongly interpreted it as a purchase receipt and that if his Lordship had properly interpreted the two documents, he would not have ignored them and relied on the oral evidence of the respondent.

He stated that in civil action, the burden is on the plaintiff to establish his claim on a balance of probabilities and also that the holder of a certificate of occupancy is presumed to be the exclusive owner in possession of the land covered by the certificate. He stressed that once such a certificate of occupancy is tendered in evidence, the burden shifts to the person seeking to set it aside to rebut the presumption by tendering evidence to show a better right to possession. He cited and relied on OGUNLEYE v. ONI (1990) 2 NWLR (PT. 135) 745. He argued that the original 1st appellant led evidence to discharge the burden on him to show that he was not a trespasser by tendering several exhibits and leading oral evidence which, he said, confirmed title to be vested in him (original 1st appellant).

He predicated the argument on the fact that the respondent’s claim is based on exclusive possession of the land in dispute and not on ownership.

Senior counsel went on to state that the original 1st appellant sued one Chief (Mrs.) Giwa-Amu who wanted to acquire the land and obtained judgment against her, with a restraining order on her and her agents or business partners from further trespass. The judgment was tendered at the trial Court as Exhibit “P”. He observed that the learned trial judge ignored the judgment and proceeded to enter judgment in favour of the respondent. He posited that the result is that the respondent has one Asaba High Court judgment in his favour while the original 1st appellant had an earlier judgment of the same High Court in his favour over the same land.

Respondent’s counsel on his part, contended that the major issue in this appeal is the purchase by Joe Bardi along with transfer to the original 1st appellant. He noted that the appellant acknowledged that original ownership of the land was in Umuda Village and that the burden was therefore on him to prove that he acquired the land. He summarized the case of the appellant and contented that the alleged customary law sale of the land between Joe Bardi and Umuda Village was not pleaded and proved. He stressed that the ingredients of customary law purchase were not pleaded. He cited and relied on ODUSOGA v. RICKETTS (1997) 2 NWLR (PT. 511) 1.

Counsel submitted that the learned trial judge was right to treat Exhibits “A” and “Q” as he did. This, he said, is because the documents do not support the case for which the appellant pleaded them. He argued that Exhibit “A” is a document of purchase instead of confirmation as pleaded by the appellant and that Exhibit “Q” contradicts Exhibit A. He posited that the evidence of the original 2nd defendant was contrary to the pleading of the appellant as he stated that the original 1st appellant bought the land from Umuda Village. He urged the Court to discountenance the evidence.

In respect of Exhibit P, the judgment obtained by original 1st appellant against one Chief (Mrs.) Giwa-Amu, he stated that it was not pleaded and that there was nothing to show that the respondent knew about the pendency of the case.

He argued that the judgment could not therefore be relied upon as estoppel per rem judicata or estoppel by conduct.

The reply by appellant’s senior counsel was either a re-iteration of his argument in appellant’s brief or presentation of a fresh point. I therefore discountenance the same.

RESOLUTION
In a claim for declaration of title to land, the burden is generally speaking on the plaintiff to show his entitlement to the declaration. He must succeed on the strength of his case and not on the weakness of the defendant’s case. However, the plaintiff is entitled to take advantage of any evidence adduced by the defence which tends to support his own case. See KODILINYE v. ODU (1935) 2 WACA 336, PIARO v. TENALO (1976) 12 SC 31 and NWANKWO v. OFOMATA (2009) 1 NWLR (PT. 1153) 496.
In the instant case, it is common ground between the parties that Umuda Village is/was the original owner of the land in dispute. The result, as rightly held by the trial Court, was that the burden of proving that the village had been divested of the ownership rested on the appellant. See ONOBRUCHERE v. ESEGINE (1986) 1 NWLR (PT. 19) 799 (also reported in (1986) 12 SC 383, ORLU v. GOGO-ABITE (2010) 8 NWLR (PT. 1196) 307 and MULIMA v. USMAN (2014) 16 NWLR (PT. 1432) 160. After considering evidence that was led, the trial Court reached the conclusion that the appellant failed to discharge the burden.

There are five established methods or ways of proving ownership of land, namely:
a. By traditional evidence; or
b. By production of documents of title; or
c. By acts of ownership extending over a sufficient length of time, numerous and positive enough to warrant the inference that the person is the true owner; or
d. By acts of long possession and enjoyment of the land; or
e. By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute. See IDUNDUN v. OKUMAGBA (1976) 9 – 10 SC 227, PIARO v. TENALO supra and ORIANZI v. ATTORNEY-GENERAL OF RIVERS STATE (2017) 6 NWLR (PT. 1561) 224.
Appellant’s senior counsel contended that the five methods are not exhaustive. He added a sixth method to wit; getting the original owner of the land to confirm (orally or in writing) that he sold the land to the current owner. With due respect to the senior counsel, I think his contention is new learning to me and I must confess that I am a bit slow and indeed reluctant to accept it. This is because learned senior counsel has mixed up means by which title to land can be proved in Court (which is the focus of the five methods and is a matter of evidence) with the mode of acquisition of title to land. In AJIBOYE v. ISHOLA (2006) 13 NWLR (PT. 998) 628, 652, ONNOGHEN, J.S.C., as he then was, made the distinction between the two as follows:-
“It must be noted that the above five methods deal with the means by which title to land can be proved in the Court of law. The said methods have nothing to do with the mode of acquisition of title to land which may be by:
(a) First settlement on the land and deforestation;
(b) Conquest during tribal wars;
(c) Gift
(d) Grant-customary,
(e) Sale
(f) Inheritance, etc.” See also ADEBO v. OMISOLA (2005) 2 NWLR (PT. 909) 149, 168, ELERAN v. ADERONPE (2008) 12 NWLR (PT. 1097) 50, 74 and MOHAMMED v. MOHAMMED (2012) 11 NWLR (PT. 1310) 1, 42.

That gives a quietus to the effort of learned senior counsel for the appellant to create a sixth method of prove of title in Nigeria.

The case of the appellant as pleaded in the amended statement of defence is as follows:-
(i) Umuda Village, the original owner of the land, transferred ownership of the land to Mr. Joe Bardi (Jnr) by way of customary law transaction in 1977 and the said Mr. Joe Bardi (Jnr) went into possession of the land, applied for and was granted a statutory right of occupancy over the land in dispute for a period of 99 years from 8/9/1983 by the old Bendel State Government. The same was registered as No. 29 at page 29 in volume B.41 at the Lands Registry , Benin-City;
(ii) Mr. Joe Bardi (Jnr) made an outright assignment of his statutory right of occupancy to the original 1st appellant by a deed of assignment dated 29/2/1985 with the consent of the Military Governor of the old Bendel State, Brigadier J. T. Useni. The deed of assignment was registered as No. 31 at page 31 in Volume 652 of the Lands Registry, Benin-City, now at Asaba;
(iii) In 1986, Umuda Village head and elders confirmed the original grant to Mr. Joe Bardi (Jnr) and requested the original 1st appellant to pay some fee to the Village for the subsequent transfer of the land to him. He brought drinks and kolanuts, paid the fee and was issued with a receipt;
(iv) The original 1st appellant has remained in exclusive possession of the land through a farming tenant;
(v) When there was encroachment on the land, the Diokpa and elders of Umuda Village re-affirmed in writing the fact that Umuda Village had in 1986 confirmed or ratified the transfer of the land to the original 1st appellant by Mr. Joe Bardi (Jnr).

The appellant testified through witnesses and tendered exhibits including:-
(i) Exhibit A (Umuda Village receipt);
(ii) Exhibit Q (document of Umuda Village head) (Diokpa) and elders confirming Exhibit A;
(iii) Exhibit Q (certificate of occupancy) granted to his vendor;
(iv) Exhibit Q (deed of assignment) by Mr. Joe Bardi (Jnr) to the original 1st appellant, and
(v) Exhibit P (Asaba High Court judgment) obtained against Chief (Mrs.) Giwa-Amu in favour of original 1st appellant

Respondent’s counsel has rightly contended that the major issue in this appeal is the alleged purchase of the land in dispute by Mr. Joe Bardi (Jnr) from Umuda Village. The plea of the appellant in this regard is in paragraph 8 of the statement of defence and counter-claim which is as follows:-
“The 1st and 2nd Defendants deny paragraph 7 of the statement of claim and aver in answer thereto that the land in dispute measuring about two acres, originally belonging to Umuda Village, Umuaji Quarters, Asaba, but was transferred by the aforesaid village to Mr. Joe Bardi (jnr) by way of a customary law transaction sometime in 1977, and the latter went into possession of same and later on applied to the old Bendel State Government and was granted a statutory Right of Occupancy over same for 99 years from the 8th day of September, 1983, and duly registered as No. 29 at page 29 in Volume B. 41 at the Lands Registry Benin-City, now at Asaba is hereby pleaded and will be relied upon at the hearing of this suit.”

The appellant therefore pleaded customary sale of the land to his vendor by Umuda Village. The respondent denied the sale and so issues were joined on it. In the case of ODUSOGA v. RICKETTS (1997) 53 LRCN 2376, 2393, Ogundare, J.S.C., set out the law thus:-
“For a sale under customary law, three essential ingredients are required, viz:
(i) Payment of the purchase price
(ii) Purchaser is let into possession by the vendor.
(iii) In the presence of witnesses. See also COLE v. FOLAMI (1956) NSCC 59, OGUNBAMBI v. ABOWAB 13 WACA 222, ORUNENGIMO v. EGEBE (2007) 15 NWLR (PT. 1058) 630 and ATANDA v. COMMISSIONER FOR LANDS/HOUSING, KWARA STATE (2018) 1 NWLR (PT. 1599) 3232.
For such evidence to be given, the facts of those incidents must be pleaded. There is no pleading of those material facts nor was evidence given on them. There is no mention of the purchase price, or of the letting of the original 1st appellant into possession (thought it need not be by way of a ceremony) and there is no whiff in the pleading of who the witnesses to the transaction were. In the case of ATANDA v. COMMISSIONER FOR LANDS/HOUSING, KWARA STATE supra page 54, it was held that in a case of customary sale of land, the names of the persons who witnessed the transaction must be pleaded and testified to even if they are dead. See also ADEDEJI v. OLOSO (2007) 5 NWLR (PT. 1026) 133. The case of FOLARIN v. DUROJAIYE (1988) 19 NSCC (PT. 5) 225 also reported in (1988) NWLR (PT 70) 351, 366 cited by respondent’s counsel is apt. In the case Oputa, J.S.C. emphasized the need for:-
“… accurate pleading in cases dealing with sale of land and the transfer of the title by such sale to the purchaser.”
Such pleading is lacking in the instant matter.

Appellant relied on Exhibits A and Q to prove his case. In respect of Exhibit A, it is pleaded in paragraph 10 of the statement of defence thus:-
“… the 1st and 2nd defendants aver that the 1st defendant through his agents; including Ogbuefi Francis Odogwu, Ogbueji M. C. Ojugbana and others later approached the Umuda Village Head and Elders in 1986, to confirm his title over the land which he purchased, and the Umuda Village carried out a verification exercise and thereafter… confirmed their original grant of the land to Mr. Joe Bardi (Jnr) and requested that 1st Defendant pay some fees to the village for the subsequent transfer of the land to him, and the 1st Defendant brought drinks and kolanuts, paid the fee, and was issued with a receipt. The receipt is hereby pleaded and will be relied upon at the trial of this suit.”
Exhibit A (the receipt pleaded above) reads:-
“Received from Sunny Odogwu, the sum of N40,000.00 (Forty Thousand Naira… Kobo) being the customary kola purchase of land on Umuda Layout opposite Oma Girls Grammar School, Asaba measuring 400 fit by 200 fit for residential purpose.

The receipt is for “customary kola purchase of Land”. It is in his brief of argument that appellant’s senior counsel in quoting the receipt inserted the word “(for)” in between the words “Customary Kola” and “Purchase”. That word is not found in the receipt as inserted by senior counsel. The receipt was written by literate person/s and the language is clear and unambiguous and therefore must be followed. See COCA-COLA (NIG) LTD v. AKINSANYA (2017) 17 NWLR (PT. 1593) 74, 121. Again words are not to be read into a statute or a document that are not in them. See EHINDERO v. FRN (2018) 5 NWLR (PT. 1612) 301, 318. In this light, it is clear to me that the receipt or document is not a confirmation of sale of the land to Mr. Joe Bardi (Jnr) nor is it a receipt for fee for the subsequent transfer of the land to original 1st appellant As rightly held by the trial Court at page 385 of the record:-
“It purports to be a receipt issued the 1st defendant for purchase of land.”

Again in this regard, the learned trial judge rightly held at page 385 of the record that:-
“In view of the fact that the case of the defendants is that the land was sold to Joe Bardi from whom the 1st defendant purchased the land, the document contradicts both the pleadings and evidence of the defendants, and therefore goes to no issue.”

In respect of Exhibit Q, the pleading relevant thereto is in paragraph 15 (b) of the statement of defence which states:-
“The Diokpa and Elders of Umuda Village in order to re-assure the 1st Defendant, decided to re-affirm in writing the fact that Umuda Village had in 1986 confirmed and ratified the transfer of the present land in dispute to the 1st Defendant by Mr. Joe Bardi (Jnr.), the original grantee. The document is hereby pleaded and will be relied upon at the hearing of this suit.”

Exhibit Q states:-
“By this document we, the Diokpa and Principal members of Umuda Village, Umuaji Quarters, Asaba, hereby confirm that on 24th day of August, 1986, the Umuda Village did approve and/or ratify the transfer of title over two acres of land immediately before Macmerg Gas Plant, along Benin – Asaba Expressway, from Mr. Joe Bardi (Jnr) to Chief Sunny Iwedike Odogwu by virtue of a deed of assignment dated 25th day of February 1983.”

The learned trial judge held at page 286 of the record that Exhibit Q, just as Exhibit A, did not show that original 1st appellant’s vender acquired a valid title to the land from Umuda Village which he transferred to him. This conclusion of the learned trial judge cannot be faulted. Again, as rightly argued by respondent’s counsel, Exhibit Q contradicts Exhibit A in that the latter purports to show that Mr. Joe Bardi (Jnr) sold the land to the original 1st appellant but Exhibit A is the receipt of sale of the land by the village of Umuda to him (the original 1st appellant).

To worsen matters for the appellant, the DW3 (who testified as an elder of Umuda Village and Chairman of the Land Implementation Committee of the village) testified at page 305 of the record that:-
“The village looked at the record and saw that the 1st defendant bought the land. The village issued a verification letter to the effect that they sold the land to the 1st defendant.”

This piece of evidence contradicts the case of the appellant that the land was sold to Mr. Joe Bardi (Jnr) by the village and that the latter sold the same to the original 1st appellant. The best that can be said of it is that it went to no issue. See THE NATIONAL INVESTMENT AND PROPERTIES CO. LTD v. THE THOMPSON ORGANISATION LTD (1969) N. M. LR. 99

Appellant’s senior counsel submitted that with a certificate of occupancy issued in favour of original 1st appellant’s vendor (Exhibit O) and the deed of assignment from the said vendor to him (Exhibit OI) together with Exhibits A and Q as well as oral evidence, the burden shifted to the respondent to prove that Umuda Village was in exclusive possession of the land in dispute. It must be said quickly that the claim of the respondent before the trial Court was that Umuda Village has title to the land in dispute.

In the light of what I have said so far, it was not proved that Umuda Village divested itself of title to the land in favour of the vendor of the original 1st appellant. He had no authority and capacity to make the grant to original 1st appellant. The maxim is nemo dat quod non habet. The deed of assignment therefore did not have the effect of transferring title to him.

That then brings me to the certificate of occupancy issued to the vendor of the original 1st appellant (Mr. Joe Bardi (Jnr.) A certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land. It also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is rebuttable because if it is proved by evidence that another person had a better title to the land before the issuance of the certificate of occupancy, the certificate of occupancy will stand revoked by the Court. A person without title to a parcel of land in respect of which a certificate of occupancy was issued acquires no right or interest which he did not have before its issuance. See OGUNLEYE v. ONI (1990) 2 NWLR (PT. 135) 745, EZEANAH v. ATTAH (2004) 7 NWLR (PT. 873) 468, MADU v. MADU (2008) 6 NWLR (PT. 1083) 296, ADOLE v. GWAR (2008) 11 NWLR (PT. 1099) 562, ATANDA v. ILIASU (2013) 6 NWLR (PT. 1351) 529, ORIANZI v. ATTORNEY-GENERAL OF RIVERS STATE supra, ADERONPE v. ELERAN supra and BAC ELECTRICAL CO. LTD v. ADESINA (2020) 4 NWLR (PT. 1745) 548.
Since Mr. Joe Bardi (Jnr) had no title to the land, he acquired no right or interest by the certificate of occupancy. The certificate was of no value since there was in existence before it was issued a deemed statutory right of occupancy in favour of Umuda Village which had not been revoked. He therefore assigned nothing but the wind and a law suit to the original 1st appellant.

I now turn my attention to Exhibit “P”. It is a certified true copy of the judgment of the High Court of Delta State in suit No. A/138/2002 in favour of the original 1st appellant against one Chief (Mrs.) Giwa-Amu over the land in dispute. The suit was between the original 1st appellant and Chief (Mrs.) Giwa-Amu in her personal capacity. The original respondents were not parties to the suit and no evidence was led to the effect that they were aware of the pendency of the suit and stood by. The judgment therefore is not binding on them. The law is that no person is to be adversely affected by a judgment in an action to which he was not a party because of the injustice in deciding an issue against him in his absence. The rule admits of two exceptions, namely: (i) a privy (ii) where a person acts as to preclude himself from challenging the judgment. See DIKE-OGU v. AMADI (2008) 12 NWLR (PT. 1102) 650, 673. The original respondents did not fall into any of these categories.

Furthermore, a judgment in a land matter is a judgment in personam and not a judgment in rem. It cannot operate as estoppel against a non-party. See SOSAN v. ADEMUYIWA (1986) 3 NWLR (PT. 27) 24, OGBORU v. IBORI (2005) 13 NWLR (PT. 942) 319 and IMOH v. ONANUGA (2013) 15 NWLR (PT. 1376) 139. Exhibit “P” cannot operate as estoppel against the original respondents.

Exhibit P therefore does not advance the case of the appellant.

I enter an affirmative answer to issue 2 and resolve it against the appellant.

ISSUE 3
Was the claim for title by the respondent devoid of reasonable cause of action and statute-barred?

Appellant’s senior counsel stated that the learned trial judge rightly held that as at the date the original respondents filed the case, no cause of action accrued to them, and so he consequently dismissed their claim for damages for trespass. It was his argument that having so found, the matter should have ended there, but the learned trial judge still went ahead and entered judgment for the said respondents for a declaration of title. He submitted that a finding that no cause of action accrued to a plaintiff clearly means that the Court had no dispute to entertain and consequently would have no jurisdiction to enter judgment in favour of such a plaintiff.

He submitted that under Section 6 of the Statute of Limitation Cap 89 Laws of Bendel State (applicable to Delta State) an action for a declaration of entitlement to right of occupancy must be brought within 12 years from the date of accrual of the cause of action. He stated that by the certificate of occupancy obtained in 1983 and transferred, and duly registered in 1983, the presumption is that respondents were duly notified by advertisement and publication before the grant of the certificate of occupancy. He contended that the original respondents became aware of the original 1st appellant’s claim for title in 1987 and stood by until 2002 before the action was filed. This delay, he said, divested the said respondents of locus standi and robbed the trial Court of jurisdiction to entertain the suit.
Respondent’s counsel argued that the finding of the trial Court that there was no cause of action was confined to the claim for damages for destruction of fence. Counsel stated that the defence of limitation was not pleaded, the facts on which the defence may be considered are not clear as none was pleaded and the respondent had no opportunity to challenge the plea as it was not raised at the trial. He finally argued that limitation law is not applicable to land held under native law and custom, citing Section 6 (2) of the Limitation Law of Bendel State (applicable at the time of the suit).

RESOLUTION
At page 387 of the record of appeal, the learned trial judge held thus:-
“It is the view of the Court, therefore, that whatever happened subsequent to the issuance of the writ cannot be used to found a cause of action which was not in existence at the time of issuance of the writ. The cause of action in trespass, upon which the claim for damages is founded, had not accrued on the date of the issuance of the writ of summons in this case. The Court holds therefore that the claim for trespass cannot be sustained.”
As rightly argued by respondent’s counsel, the finding that no cause of action had accrued as at the date of the issuance of the writ of summons affected only the claim for trespass. The claim for declaration of entitlement to grant of a certificate of occupancy was not affected. I therefore discountenance the submission of learned senior counsel for the appellant in this regard.

As regards limitation of action, Order 25 Rule 6 (1) of the Bendel State High Court (Civil Procedure) Rules, 1988 (which were the extant rules of Court during the pendency of the suit at the trial Court) states:
“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.”
It has therefore been held that a party wishing to rely on a statute of limitation must specifically plead the same. In KETU v. ONIKORO (1984) 10 SC 265, 267 – 268, Obaseki, J.S.C., opined that:-
“It is a cardinal rule of pleading that such specific matters as the Limitation Law must be expressly set out or pleaded in the statement of defence once it is not pleaded, the defendant cannot be granted the protection of that Law.” See also ELABANJO v. DAWODU (2006) 15 NWLR (PT. 1001) 76, 149 and OYEBAMIJI v. LAWANSON (2008) 15 NWLR (PT. 1109) 122, 133.
Over time, the Courts have held that though a defence of limitation ought to be pleaded, it still can be raised at any stage in the proceeding since it is an issue of jurisdiction. In ABUBABAR v. MICHELIN MOTOR SERVICES LIMITED (NO. 1) (2020) 12 NWLR (PT. 1739) 553, 569 – 570, the Supreme Court held that:-
“It is desirable but not mandatory that Limitation Law is pleaded. If it is not pleaded, it still can be raised at any stage in the proceeding and in any Court for the first time since it is an issue of jurisdiction. The adverse party must be put on notice so that he is not taken by surprise.”
In FORESTRY RESEARCH INSTITUTE OF NIGRIA v. GOLD (2007) 11 NWLR (PT. 1044) 1, 16 MUKHTAR, J.S.C. (as he then was) opined that:-
“There is no doubt that this rule connotes mandatory procedure, but it does not preclude a party from raising the defence of statute of limitation, at an appellate Court, vide leave to do so even if he did not do so at the Court of first instance, because such an issue borders on the fundamental issue of jurisdiction. See also NASIR v. CIVIL SERVICE COMMISSION, KANO STATE (2007) 5 NWLR (PT. 1190) 253, 270 and ABI v. CENTRAL BANK OF NIGERIA (2012) 3 NWLR (PT. 1286) 1, 45.
The immediately forgoing position of the Court was based on the consideration that issue of limitation is an issue of jurisdiction. However, in ELABANJO v. DAWODU supra. page 150, Onnoghen, J.S.C., as he then was held the following view:-
“On the sub-issue as to whether a defence of statute of limitation raises an issue of jurisdiction of the trial Court, I hold the view that it does not.”
After analyzing the concept of jurisdiction and the position of the Law that it can be taken at any time depending on what materials are available, his lordship concluded by stating that:-
“The above however is limited to a situation where the substance of the objection is jurisdiction, not where a legal defence such as limitation law is being raised in answer to the case of the plaintiff. I hold the view that to say that an action that is alleged to be statute-barred is a matter affecting the competence of the Court before which it is instituted instead of competence of the cause or right of action so instituted is to stretch that word too far.”
What seem to emerge from these apparently conflicting positions of the Courts of the land is that a defence of limitation must be specifically pleaded. However, where the date or time of accrual of cause action is clearly stated in the writ of summons and the statement of claim and there would be no need to call evidence to prove or determine the same, the defence need not be specifically pleaded for it to be raised. See OYEBANJI v. LAWANSON (2004) 13 NWLR (PT. 889) 62, 74 which was affirmed by the Supreme Court in OYEBAMIJI v. LAWANSON supra.

Since the defence was not raised in the statement of defence, I ought to look at the amended statement of claim to see if the date of the accrual of the cause of action for title to the grant of statutory right of occupancy was clearly stated in the writ of summons and the amended statement of claim. But this will be an academic exercise. This is because the land is said to be held by the respondent by reason of inheritance from its founder. Thus the land is said to be held under customary tenure. Section 6 (2) of the Limitation Law, Cap 89, Laws of Bendel State 1976 (applicable at the time of the suit) states:-
“No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.”
Section 1 (2) of the same law provides:-
“Nothing in this law affects actions in respect of the title to land or any interest in land held by customary tenure or in respect of any matter which is subject to the jurisdiction of a Customary Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.”
The provision immediately above is, but a codification of the long established position of the law that limitation law does not apply to land held under customary tenure. This is because under customary law, there is no title by proscription unlike the position in English Law. See AGBOOLA v. ABIMBOLA (1969) 2 SCNLR 40 and OGUNLANA v. DADA (2010) 1 NWLR (PT. 1176) 534.

The issue of limitation law in this appeal is non-sequitur. I therefore enter a negative answer to issue 3 and resolve it against appellant.

Having resolved all the issues for determination against the appellant, the conclusion is inescapable that the appeal lacks merit. I accordingly dismiss the same and affirm the judgment of the trial Court.

I assess the costs of the appeal at N300,000.00 in favour of the respondent against the appellant.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have read the lead judgment in draft before now, and I agree with the reasoning and conclusion arrived at by my learned brother, JOSEPH EYO EKANEM, JCA in dismissing this appeal.

The Appellant had erected a Defence of limitation of time content that the action was statute barred pursuant to Section 6(2) of the Limitation Law Cap. 89 Laws of Bendel State (applicable to the suit at the time of the suit) limiting the period to 6 years.
AGBOOLA VS. ABIMBOLA (1969) 2 SCNLR 40 AND OGUNLANA V. DADA (2010) 1 NWLR (PT. 1176) 534 cited by my Lord in the lead judgment have clearly interpreted and applied the

Limitation Laws as in Section 1(2) of the Law (supra) to hold that it is inapplicable to title to land or any interest in land held by customary tenure or any matter which is subject to the jurisdiction of a customary Court relating family status, inheritance and disposition of property on death…
The initial parties including the Respondents had traced their right of title by customary act of inheritance from the founders. The rationale for not allowing the statute of limitation to apply to lands held under customary tenure or interest is that interest in family property should not be allowed to be lightly defeated by individual rights of alienation contrary to the communal nature of family property which is held in trust by the Head of the family and to be dealt with only on the authority or presumed authorization of the family through the Trustees-being the Head thereof with or without the concurrence of the principal members.
The voidability of such transactions without the consent of the majority of the principal members is a different matter and to be strictly proved.

I must observe also, that the learned counsel for the parties dwelt at length on the question whether the statute of limitation was a special defence and which must be specifically pleaded and also whether it was a question of jurisdiction which could be raised at any stage of the proceedings and even on appeal with or without leave.
I do reason that the apparently conflicting decisions of the apex Court referred to by the parties and my lord in that regard, in the lead, should not be of any problem; as a calm reading of the decisions will show the rationes therein that if leave is granted to so raise that would have obviated the necessity and ratified the non-compliance with the specific requirement for specific and express pleadings where necessitated or obligated by the Rules of pleadings.
As relating to whether a special Defence is a question of jurisdiction which could be raised even without pleading same and at any stage, me think, with respect, that the Court should be hesitant and not be too expressive or hypo expressive so as to over shoot beyond the relevant facts and the law/cum circumstances. That is, to make obiters appear like the reason for the decision.

If the question of special defences are jurisdictional questions, then why will anybody be put on Notice before it is raised as after all, lack of jurisdiction cannot be waived or acquiesced to by anybody, not even the Courts nor the parties?
If one is not put on notice but the Court finds that there is no jurisdiction, will the Court then hold the objection as unfounded and ungrantable? I do not think so.
In the absence of situations of cross violations of rights and invasion of public duties, safety and well-being, warranting policy decision, the need to maintain the certainty of the law and its predictability must not be lost sight of by the Courts. It is in this task of social engineering of balancing conflicting and competing interests that justice can be assured, particularly in the penultimate Courts. In any case, the Courts are not zombies.
Ultimately, the Appellants, who were beneficiaries of the transaction relating to customary title vested in the community of Amuda, which was in the manner they sued (juristic persons) had not shown that the vested right of title and occupation of the Respondents’ vendors, had been legally divested at the time the Appellants purportedly acquired the title claimed by them.
Appeal is dismissed.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, JOSEPH EYO EKANEM, J.C.A., and I am entirely in agreement with him on the reasoning and conclusion reached.
The appeal is hereby dismissed.

Appearances:

CHIKE ONYEMENAM, SAN with him, Messrs. P. O. C. NWOKORO and C. C. OGEAH For Appellant(s)

G. A. I. MOWAH, Esq., with him, I. OKELEKE, Esq. For Respondent(s)