OKOYE & ORS v. MADUMBU & ORS (2020)

OKOYE & ORS v. MADUMBU & ORS

(2020)LCN/15298(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, June 11, 2020

CA/AW/154/2015

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

PATRICK NKEMKA OKOYE 2. SAMUEL NWACHUKWU 3. EMEKA CHINWUBA 4. EMMANUEL CHUKWUEMEKA OBI (For Themselves And On Behalf Of The People Of Eziano Community Awka) APPELANT(S)

And

CHRISTOPHER MADUMBU (For Themselves And On Behalf Of The People Of Enugwu Agidi Town, Njikoka Local Government Area Of Anambra State) 2. FRANCIS ANENYE 3. PETER ONWUEKWUSI 4. ERIC ONWUBU 5. JONATHAN OKAFOR (For Themselves And On Behalf Of Mbano Community, Enugwu Agidi) RESPONDENT(S)

RATIO

THE DUTY OF THE COURT WHERE A PLEA THAT AN ACTION IS STATUTE BARRED IS RAISED

The law is elementary that where a plea that an action is Statute bar is raised, the Court is to determine when the cause of action arose and when the Suit was filed. The Court must decide, by looking into the Statement of Claim, for the date when the cause of action arose, and the Writ of Summons for the date when the action was filed.
However, where the date as to when the cause of action arose is disputed by the parties, the Court should not determine the issue until evidence has been called on the issue. – KASANDUBU & ANOR V. ULTIMATE PETROLEUM LTD & ANOR (2008)7 NWLR (Pt 1086) 274. In ABIOLA V. OLAWOYE (2006)13 NWLR (Pt 996) – Page 1 at 21. PER PEMU, J.C.A.

WHEN DOES TIME START TO RUN IN A CAUSE OF ACTION

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This Appeal is against the decision of the High Court of Justice of Anambra State holden at Nnewi in Suit No. A/55/2005 delivered on the 23rd of October, 2013.

FACTS OF THE CASE IN BRIEF
This Suit, the subject matter of this Appeal was brought in a representative capacity by the Appellants (Plaintiff in the Court below), for themselves and on behalf of the entire people of Eziano Community Awka, Awka South Local Government Area of Anambra State, and against the Respondents (Defendants in the Court below) who were sued in a representative capacity on behalf of the Mbano Community /entire Enugu – Agidi people in Njikoka Local Government Area, Anambra State.

The Respondent were sued for declaration of title to land, for forfeiture damages and perpetual injunction.

The Respondents Counterclaimed for declaration, damages and for perpetual injunction.

According to the Appellants, the parties are agreed that the land in dispute was once the abode and sojourn of Nawgu (Nawgu) people before they were expelled after conquest in a war about a century years before the coming of the British to Nigeria where they set up a British Administrative Government in Nigeria. The Nawgu people upon Conquest fled to the area next to Ukwulu town in present Anambra State where they presently reside as Nawgu town.

It is the Plaintiffs claim that they alone fought and conquered the Nawgu people for killing an Awka man, expelled them from their land and took same over as war booty. They inherited same by conquest and thereby exercised all acts of possession and ownership on the entire Agunorgu land including renting and leasing part of it to tenants for farming, including the Respondents.

The Respondents story is that the War against the Nawgu people was Ogu Amekom (War of Alliance) fought together by six forms against the Nawgu Community.
The six forms are:
1. The Defendants (Enugwu Agidi)
2. Nawfia Community
3. Isuaniocha
4. Amawbia community
5. Okpuno
6. Plaintiff (Appellants) (Awka Community
The Nawgu land was then shared amongst all the conquering towns and part of the land in dispute was their own (Respondents) have from the War booty and part of it was founded by their great Ancestor Omenekanu.

That official documented records showed that the Appellants people, before the coming of British, gave part of the conquered lands to their neighbours to farm on payment of rents and tributes as customary tenants, and that the Respondents here is one of such tenants (which consist of Okpuno Community, Amawbia Community, Isuamocha and others).

The Appellants alleged that there had always been peace between the Appellants Awka people and her tenant neighbours, until the British came about 1904 to establish the British Administration and Courts. These Appellants tenants including the Respondents tried to take Agunogu land from them which led to continuous litigation. There are judgments emanating from Native Court, high Court and the Supreme Court showing the victory of the Appellants against the Respondents. In some of these decisions of the Courts, the Appellants obtained victory. Those decisions have not been appealed till date. That the cases that went to Court showed that the Respondents had always been rent and tribute paying tenants of the Appellants.

At the end of the trial, the Appellants claim was dismissed and the Respondents were granted the reliefs sought in their Counterclaim.

The Appellants are dissatisfied and have appealed the decision.
They filed a Notice of Appeal on the 16th of January, 2014.

The Appellants proffered (4) four issues for determination for the Grounds of Appeal.
They are:
1. WHETHER THE LEARNED TRIAL HIGH COURT JUDGE HAS THE POWER AND RIGHT TO REFUSE TO CONSIDER THE APPELLANTS CLAIMS FOR FORFEITURE AGAINST THE RESPONDENTS PREDICATED UPON EXISTING JUDGMENTS DECLARING THE RESPONDENTS TO BE TENANTS OF THE APPELLANTS ON THE AGUNOGU LAND IN DISPUTE WHICH THE RESPONDENTS HAS DENIED THE OVER-LORDSHIP OF THE APPELLANTS?
2. WHETHER IT IS POSSIBLE IN LAW AS THE LEARNED TRIAL HIGH COURT JUDGEMENT MANIFESTED THAT THE RESPONDENTS WHO WERE INITIALLY PUT IN POSSESSION AND OCCUPATION OF THE AGUNOGU LAND IN DISPUTE BY THE APPELLANTS AND DECLARED TO BE RENT AND TRIBUTE PAYING TENANTS OF THE APPELLANTS BY VALID EXISTING PREVIOUS JUDGMENT WHICH EQUALLY FOUND THE RESPONDENTS GUILTY OF TRESPASS, SHALL NOW BE DECLARED OWNERS OF THE LAND IN DISPUTE BY SAME ACT OF POSSESSION CUM TRESPASS.
3. WHETHER THE LEARNED TRIAL HIGH COURT JUDGE NOT SITTING ON APPEAL OVER SEVERAL EXISTING PREVIOUS JUDGMENTS CONCERNING AND BETWEEN THE APPELLANTS AND RESPONDENTS HAS THE POWER TO RE-OPEN AND TRY ISSUES/POINT ALREADY SETTLED AS RES JUDICATA AND ARRIVE AT CONTRARY OPPOSITE DECISION?
4. WHETHER THE LEARNED TRIAL HIGH COURT JUDGE WAS RIGHT TO HOLD THAT THE CLAIMS OF THE APPELLANTS AS CONTAINED IN THEIR ACTION ARE STATUTE BARRED DESPITE PREVIOUS EXISTING VALID JUDGEMENT DECLARING APPELLANTS AS LANDLORD OF THE RESPONDENTS; FINDING RESPONDENTS LIABLE FOR TRESPASS ON THE LAND IN DISPUTE AND PRESENT ACTS OF THE RESPONDENTS DENYING THE OVER – LORDSHIP OF THE APPELLANTS.

The Respondents on their part proffered (2) two issues for determination from the Grounds of Appeal.
They are:
1. WHETHER THE LEARNED TRIAL JUDGE WAS JUSTIFIED IN HOLDING THAT THE APPELLANTS’ CASE WAS STATUTE- BARRED
2. IN THE EVENT THAT THE APPELLANTS’ CASE WAS NOT STATUTE BARRED, WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN ENTERING JUDGEMENT FOR THE RESOLUTION BASED ON PLEADINGS AND THE RESPONDANCE OF ENVISAGE LED BY THE PARTIES IN THIS CASE?

On the 23rd day of March, 2020, the parties adopted their respective briefs of argument.
From the State of the issues proffered by both parties, it is apparent that the issue of Statute bar is evident. It is one that requires consideration first before any other issue, as the allegation of statute bar goes to jurisdiction.
A Suit that is statute barred is one which is no longer legally is enforceable owing to a prescribed period of limitation having elapsed.
The Appellants had brought this up in their Issue No. 4, while the Respondents refer to it in their Issue No. 1.
If I find that the Suit, the subject matter of this Appeal is statute barred, that puts paid on this matter and same knocks the bottom off the Appeal.

I prefer the way and manner in which the Respondents couched their issue, but I shall couch it thus:
IS THE SUIT THE SUBJECT MATTER OF THIS APPEAL STATUTE BARRED?
The law is elementary that where a plea that an action is Statute bar is raised, the Court is to determine when the cause of action arose and when the Suit was filed. The Court must decide, by looking into the Statement of Claim, for the date when the cause of action arose, and the Writ of Summons for the date when the action was filed.
However, where the date as to when the cause of action arose is disputed by the parties, the Court should not determine the issue until evidence has been called on the issue. – KASANDUBU & ANOR V. ULTIMATE PETROLEUM LTD & ANOR (2008)7 NWLR (Pt 1086) 274. In ABIOLA V. OLAWOYE (2006)13 NWLR (Pt 996) – Page 1 at 21.

It was held that time start to run from the date on which the right of action accrues or where the right of action is concealed, from the time the owner discovers the truth or could have done so with reasonable diligence. See UNIVERSITY OF ILORIN V. ANDENITAN (2007)2 CLRN 28 (which deals with matter of limitation is land matter).
In P.N UDOH TRADING CO LTD V. ABERE (2001) 11 NWLR (Pt. 723) 114 @ 129 – A cause of action is said to arise as soon as a combination of circumstances giving rise to the right to file a claim in Court for a remedy accrues, or happens and that it is the act on the part of the Defendant which gives the Plaintiff a right to complain.

It is the argument of the Appellants, in arguing his Issue No. 4, that the Court below reasoned (wrongly in his view) in another consolidated Suit Nos 0/48/1949; 0/55/1049; 0/56/1948 and 0/57/1949; which the Appellants won, the said consolidated Suits went on appeal to the West Africa Court of Appeal and WACA non-suited the Appellants.

The Court below then reasoned that Limitation of action time for the institution of another action, began to run for the Appellants in this case from the 5th of October, 1954, when the WACA non suited them. Therefore, the Court below concluded that by not instituting another fresh suit against the Respondents until the present action was filed in 2005, the Appellant’s action has become statute barred, thereby striking out the suit.

The Appellants submit that the non-Suiting of the Appellants is not conclusive, neither is it compulsory that the Appellants pursue a fresh cause of action against the Respondent, if the Respondent has ceased his trespassing acts or contest the Plaintiffs’ title to the land in dispute.

That after the judgment in respect of the consolidated suits by WACA the Respondents desisted from entering the land.

They submit that the Respondents never come into the land by way of trespass again until after the civil war in Nigeria. That it was because of the grave hardship facing the Igbo race during and after the civil war that made the Appellants not demand customary rents from the Respondents. This led the Respondents to occupying the Agunogu land without paying further rents and refusing to pay again.
Citing GWEDE V. INEC (2014)18 NWLR (Pt. 1438) 56 @116-117 L-b, he submits that a cause of action will not abate or become time barred until the injury or damage which is of a continuing nature completely stops or abates.

They submit that the acts of the Respondents trespass and occupation of the land, and the most recent acts of citing the Trans Obibia Housing Estate on the land, constitute continuing acts of trespass and cause of action arising from it cannot abate or become statute barred until the injury or damage completely stops.

They further submit that the trespass and the occupation of the land and trespass have not stopped: The cause of action on it cannot therefore be declared statute barred – they submit.

On the part of the Respondents, it is their submission that:
In paragraph 21 of the 2nd further amended statement of Defence, the Respondents pleaded inter alia thus:
“…the Plaintiffs right to institute fresh action accrued on 5th October, 1954, following the judgment of the West African Court of Appeal of that date. Twelve years after that date, the Plaintiffs’ right to file the present action became extinguished by operation of law.”

That the provision of Section 1 of the Real Property Limitation Act 1874, which is in pari material with Section 22(2) of the Actions Law Cap 3 Revised Laws of Anambra State, 1991 has this to say:
“(2) No action shall be brought by any other 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 accrued to some person through whom he claims to that person.”

They submit that by virtue of this provision, actions for declaration of title or recovery of land must be instituted within 12 years from the date the cause of action arose.

That time, for the purposes of the Limitation law begins to run from the date of the accrual of the action.

That the opportunity granted the Appellants to have another bite at the cherry started running from the date of the judgment in 1954.

That time begins to run for the purpose of the Limitation law on a judgment, when an appeal against the judgments is finally determined – OSHOBOJA V. AMUDA (2000)13 NWLR (Pt. 685) 427. That the moment WACA gave its judgment in 1954 and non-Suited the appellants, their right to bring this action started running. The judgment was not appealed. That from 1954 to 2005 when the Appellants commenced this Suit is about 51 years.

That the Nigerian Civil War ended in 1970. Since that time the Respondents had been exercising act of ownership and possession thereof on the land in dispute, without any hindrance nor interference by the Appellants, until 2005 when the Suit, the subject matter of this Appeal was filed.

RESOLUTION OF THE ISSUE OF STATUTE BAR
The Appellants were no doubt at liberty to institute fresh Suit after they were non-suited in 1954.
After the Civil War, in 1970 the Respondents allegedly were on the land, but the Appellants looked on. In one breath, the Appellants stated that they allowed the Respondents to remain on the land because of the distress condition during the Civil War, and its after math. In another breath, the Appellants said that the Respondents failed and/or refused to pay their customary rents to the Appellants.
No action was filed during this time until after thirty years in which the Respondents occupied the land. That constitutes laches and acquiescence on the part of the Appellants. The act of the Respondents staying on the land cannot be said to constitute continued trespass.
Since 1970 when the Right of action arose, the Appellants did nothing. The Respondents allegedly reentered the land. The Appellants consented. The Respondents planted crops and remained on the land. Therefore, these cannot be trespass -FATTOU N’JI Vs. RICHARDS JAMES HALL, WACA 100. The gravamen of the two respective issues is whether time has elapsed. The answer is unequivocally in the affirmative.
Actions for the declaration of title or recovery of land must as a matter of Law, be instituted within 12 years from the date the cause of action arose – AMODU V. AJIBOYE (2000)14 NWLR (Pt. 686)15.
In paragraph 19 of the Appellants Further Amended Statement of Claim; they pleaded thus:
“Despite all these cases the Enugwu-Agidi people turned to claim part of Agunogu permanently and they were sued in the consolidated Suit Nos 04/4/49; 05/55/49; 05/56/49 and 05/57/49 – Udekwu Modekwe and 2 others Vs. Udegu Amata, Anadegbe Ojisi, Nwankwo Atuegbu and Ojukwu Onwukerife for the four quarters of Enugwu-Agidi Ezinano Awka people now and get clear declaration and injunction against Enugwu – Agidi people.”
The WACA judgment (appeal against the consolidated Suits) was delivered on the 5th of October, 1954 – AMATA V. MODEKWE 14 WACA 580.
The Appellants were granted the opportunity to re-institute another action, but failed to do since year 1954.
The Appellants however did not do anything but waited till 2005 before they instituted the Suit, the subject matter of this appeal against the Respondents (a period of about 51 years).
I agree with the submission of the Respondents in paragraph 4.10 of their brief, when they said that whether the cause of action accrued in 1954 after the WACA judgment or in 1970 after the Nigeria Civil War, when according to the Appellants, the respondents stopped payment of rent, the result is the same. The defence of statute bar put up does not avail the appellants.
The Court below put it succinctly rightly in my view thus:
“Whether resort is had to the Real Property Limitation Act 1874 as Statute of general application prior to 1991 or relying on the Action Law which came into effect in 1991 this Suit commenced in 2005 must be construed as having been filed outside the 12 years Limitation period, and therefore being statute barred, is liable to be struck out …”
It is my view that in a situation where Statute bar is raised, that goes to jurisdiction and has to be addressed first by Court and if found tenable, it knocks the bottom of the entire case as the Court is rob off its jurisdiction to entertain the matter, no matter how many other issues are raised (as elegant as they may be). You cannot put something on nothing both will collapse. MACFOY V. UAC 1961 3 ALL ER. 1169.
Hear PW3 testimony. When cross-examined he said:
Q: Do you know the Defendant went up to WACA in respect of the land in dispute.
Ans: Yes
Q: In 1954 WACA decided in favour of the Defendant by non-suiting the Plaintiff and judgment of home (sic) Court set aside.
Ans: Yes: this is the only suit since then (sic) it was when we got ready and field this suit in 2005.
Q: Since then the defendants have been exercising acts of ownership and possession on the land.
Ans: Yes, they have been on the land and still enter – hence we sued them…” Pages 598 – 599 of the Record of Appeal
Under the Limitation Law, time does not stop running during a period of war. UTA FRENCH AIR LINES V. WILLIAMS (2000)14 NWLR (Pt 687/271 @ 280 para c-d.
The Suit, the subject matter of this action is without doubt statute barred, and being so, it renders the Suit in the Court below null and void, and I so hold.
The Counter-claimant is also caught by this virus and consequently this appeal is dismissed in its entirety.
The parties are family members and I make no order as to costs.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the judgment just delivered by my Learned Brother, R. N PEMU, JCA.

I agree with the reasons therein advanced to arrive at the final conclusion that the appeal should be dismissed for being statute barred which has rendered the suit at the Court below null and void and therefore dismissed same.
I also agree that the Counter Claim is also caught up by the same statute of limitation.
I make no order as to costs.

BITRUS GYARAZAMA SANGA, J.C.A.: I am privileged to have read a draft of the judgment just delivered by my learned brother, PEMU, J.C.A. I agree with and adopt the finding by my learned brother in the lead judgment that this suit is incompetent as it is statute barred. I therefore dismiss both the appeal and the counter claim and abide by the order as to costs.

Appearances:

IFEANYI OBIAKOR ESQ For Appellant(s)

K.O. KAMA ESQ. For Respondent(s)