THE TRUSTEES OF NEW JERUSALEM CHURCH OF GOD, WARRI & ANOR v. MADAM FELICIA EREKU
(2019)LCN/12842(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/B/114/2009
RATIO
ACTION: WHERE AN ACTION IS STATUTE-BARRED
“There is no way in which a party can successfully challenge one’s title where an action is already statute barred. Any challenge thereafter by any legal process becomes an exercise in futility. It is now well settled that in considering whether an action to enforce a legal right is statute barred, the Court should confine itself as in the present case, to the averments in the writ of summons and the claims before the lower Court which allege the factual situations that gave rise to the present cause of action. see UBN PLC V. UMEODUAGU (2004) 13 NWLR (Pt. 890) 352.” PER PHILOMENA MBUA EKPE, J.C.A.
EQUITABLE DOCTRINE: LACHES
“Though it is trite law that where there is a right there is a remedy, the need to act rightly and timeously has over time been a minimum requirement of equity which the Courts have also consistently enforced. See Ogundare & Anor v. Executive Governor of Lagos State & Ors. (2017) LPELR- 41859; Attorney General of Adamawa v. Attorney General of the Federation (2014) 14 NWLR Pt. 1428 Pg. 515 at 559 Par. G; LPELR-23221 (SC).” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
STATUTE OF LIMITATION: WHETHER A PROCEEDING CAN COMMENCE AFTER THE PERIOD OF LIMITATION
“Where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation for instituting such an action has elapsed. See Aremo II v. Adekanye & Ors. (2004) 13 NWLR Pt. 891 Pg. 572; Udoh Trading Co. Ltd. v. Abere (2001) 11 NWLR Pt. 723 Pg. 114; Odubeko v. Fowler (1993) 7 NWLR Pt. 308. See also CBN & Ors. v. Okojie (2015) LPELR-24740 (SC); Eboigbe v. NNPC (1994) 5 NWLR Pt. 347 Pg. 649.” PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. THE TRUSTEES OF NEW JERUSALEM CHURCH OF GOD, WARRI
2. NEW JERUSALEM CHURCH OF GOD, WARRI Appellant(s)
AND
MADAM FELICIA EREKU
(Substituted for MR. VICTOR OMARE EREKU by the order of Court made on 14th January 2013)
(for herself on behalf of Ereku Family of Ogisin dynasty of Odion-Warri) Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Delta State, delivered by Honourable Justice A.P.E. Awala on 19/5/06 wherein judgment was entered in favour of the Respondent and the sum of Five Million Naira was awarded as general damages against the Appellant.
The facts that led to this appeal are as follows:-
The Plaintiff, Respondent herein, filed a writ of summon with an accompanying statement of claim on 30/10/03. An amended statement of claim was filed on 10/10/05. The Respondent claimed as follows:-
a. An order of forfeiture of the land whereupon the Defendants’ church lies and the adjoining land because the execution is fraudulent.
b. A declaration that the purported conveyance dated the 12th of July 1968 is null and void.
c. A declaration that the Plaintiff is entitled to statutory right of occupancy of the said land in question.
d. The sum of N50, 000, 000. 00 (Fifty Million Naira) as general damages for trespass on the said land by the defendants.
The Appellants did not enter any appearance nor file any process at the trial Court to defend this suit. The Respondent filed an application that the trial Court should enter judgment in its favour, the Appellants having failed to file their statement of defence. On the contrary, the trial Court set down the case for hearing, and the matter was heard in the absence of the Appellants on 3/8/05.
In a considered judgment delivered on 19/5/06, the learned trial judge granted all the reliefs sought by the Respondent and awarded the sum of (Five Million Naira) as general damages against the Appellants.
Dissatisfied, the Appellants filed a Notice of Appeal on 24/7/06. Record was filed on 3/4/09 and deemed filed on 11/1/17. The Appellants’ brief was filed on 24/2/17 and Appellants’ reply brief filed on 3/12/18. The Respondent?s brief was filed 21/11/18 and deemed filed same day.
Mr. Sanchez Agumor, Esq. who settled the Appellants’ brief identified a sole issue for the determination of this appeal to wit:-
Whether the trial Court possessed the requisite jurisdiction to hear and determine the Respondent?s claim.
In the brief settled by Chief A.K. Osawota Esq., P.E. Tobuyei Esq., B.I. Chigbo Esq., and B. Ahwinahwi Esq. the Respondent adopted same issue as identified by the Appellants.
In the determination of this appeal, I am going to adopt same issue as identified by the parties to wit:-
Whether the trial Court possessed the requisite jurisdiction to hear and determine the Respondent?s claim.
SOLE ISSUE
Whether the trial Court possessed the requisite jurisdiction to hear and determine the Respondent’s claim.
Learned Appellants’ counsel argued that jurisdiction is the live wire for any matter to be heard by a Court and where a Court lacks the requisite jurisdiction to hear a matter and that Court goes ahead to hear same, any decision reached subsequently is a nullity. Counsel cited G & T Investment Ltd. v. Witt & Bush Ltd. (2011) 8 NWLR Pt. 1250 Pg. 500 at 539 Par. A-C; Shelim v. Gobang (2009) 12 NWLR Pt. 1156 Pg. 435.
Counsel emphasized that jurisdiction is usually and normally donated by the Writ of Summons and or Statement of Claim of the Plaintiff. Counsel cited Egharevba v. Eribo (2010) 9 NWLR Pt. 1199 Pg. 411 at 439 Par. B-D
Respondent?s undated and unsigned amended statement of claim at the lower Court will reveal that the alleged cause of action arose in 1968 and a simple mathematical calculation will show that the Respondent?s right of action (if any), expired in 1980. The Respondent filed this action twenty-three (23) years after the cause of action expired.
Counsel emphasized that the lower Court ought to have held, even on the strength of the facts disclosed by the Respondent’s pleadings, that the Respondent?s action was caught by the statute of limitation and was therefore statute barred. Counsel cited Hassan v. Aliyu (2010) 17 NWLR Pt. 1223 Pg. 547 at 619-620 Par. H-C
Counsel contended that a holistic consideration of Section 6 (2) and Section 21 (c) Limitation Law Cap 89 Laws of Bendel State 1976 as applicable to Delta State strengthens the position of the Appellants as the provisions divest the Respondent of the right of action and constitutes a ground upon which the trial Court should have struck out or dismissed the Respondent?s case. Counsel cited Nasir v. Civil Service Commission, Kano State (2007) 5 NWLR Pt. 1190 Pg. 253 at 272 Par E.
Counsel argued that the Respondent’s delay in instituting this action irredeemably extinguishes his locus and right of action and therefore robbed the lower Court of jurisdiction to entertain the case, it follows that there is no remedy available in law that the Respondent can seek even before this Honourable Court.
Counsel submitted that this Honourable Court ought not to take any further steps in respect of this appeal except than setting aside the lower Court?s decision. Counsel cited Nasir v. Civil Service Commission, Kano State (supra).
Counsel urged this Honourable Court to uphold the principle and hold that twenty-three (23) years was too long a time for the Respondent to institute this action and therefore too late to enforce the position which the Respondent seeks the parties to be placed. Counsel cited Adejumo v. Olawaiye (2014) 12 NWLR Pt. 1421 Pg. 252 at Pg 280 -281 Par. G-C. to opine that the equitable doctrine of laches and acquiescence is applicable.
Counsel argued that had the learned trial judge perused the amended statement of claim particularly paragraph 5 thereof, the lower Court would have held that it does not possess the requisite jurisdiction to hear the matter. Counsel cited Ibekwe v. Imo State Education Management Board (2009) 5 NWLR Pt. 1134 Pg. 234 at 254 Par. C-F
Counsel emphasized that the fact that the Appellants were not in Court to raise the issue of jurisdiction cannot whittle down the overwhelming effect of the absence of jurisdiction as the lower Court had the latitude to raise the issue of jurisdiction suo motu. Counsel cited Ogembe v. Usman (2011) 17 NWLR Pt. 1277 Pg. 638; Okonkwo v. Federal Republic of Nigeria (2011) 11 NWLR Pt. 1258 Pg. 215 at 248 Par. F-G
Learned counsel argued that the Respondent having pleaded fraud ought to furnish particulars of the alleged fraud in the pleadings and prove same beyond reasonable doubt as required by law.
Counsel further argued that the service of processes especially originating process is what vests jurisdiction on Courts to hear and determine any matter and where there is no proper service of the originating processes, the adjudicating Court is completely robbed of jurisdiction. Counsel cited Agip (Nig.) Ltd. v. Agip Petroli Int?l (2010) 5 NWLR Pt. 1187 Pg. 348 at Pg 388-389, Par. G-B; 394-395, Par. G-A; Olorunyolemi v. Akhagbe (2010) 8 NWLR Pt. 1195 Pg. 48 at Pg. 60-62; NITEL Plc. v. ICIC (Directory Publishers) Ltd. (2009) 16 NWLR Pt. 1167 Pg. 356 at Pg 385-386 Par. H-A; Nwankwo v. Kanu (2010) 6 NWLR Pt. 1189 Pg. 62 at Pg. 95 Par. E-F.
Counsel submitted that the Appellants were not served with the originating processes of the suit at the trial Court.
Counsel emphasized that by virtue of Sections 673 (2) and 679 of the Companies and Allied Matters Act, part C, the only service on the 1st Appellant which can be seen as proper and valid service is service on the Registered Trustees of the Church. The service of the Originating process in this case on an unnamed Usher of the church cannot and will not be service on the 1st Appellant. Counsel citedRanco Trading Co. Ltd. v. UBN Ltd. (1998) 4 NWLR Pt. 547 Pg. 566 at Pg. 573 Par. G.
Counsel added that the provisions of Order 6 Rule 11 of the Lagos State High Court Rules relied upon by the Court in Ranco’s case is similar to the provisions of Order 12 Rule 8 of the Bendel State High Court Rules 1988.
Counsel further argued that while the purported affidavit of service contained at Pg. 65 of the records shows that the Originating processes were served on the Appellants on November 14, 2003, the trial judge stated in his judgment that the Appellants were purportedly served on October 29, 2004, whereas when the matter came up for hearing on December 14, 2004, the learned trial judge stated that there was no proof of service of the writ of summons and statement of claim on the Defendants.
Counsel submitted that failure of the Appellants to appear in Court in response to the Respondent?s summons ought to have put the learned trial judge on check as the best proof of service is appearance of the Defendant in person. Counsel cited Nwankwo v. Kanu (supra); NITEL Plc. v. ICIC (Directory Publishers) Ltd. (supra).
Counsel argued that the record reveals that the matter was adjourned severally and out of those several adjournments, the Appellants were only served twice. In all those instances the trial Court ordered that hearing notices be issued on the Appellants but there was no corresponding proof of service of the hearing notices.
Counsel opined that the failure to serve hearing notices on the Appellants after the matter was adjourned by the lower Court on several occasions also amount to denial of fair hearing and the judgment is therefore a nullity and liable to be set aside. Counsel cited Okogi v. Okoh (2010) 9 NWLR Pt. 1199 Pg. 311 at Pg. 324 Par. D-H
Learned counsel emphasized that proceedings of August 3, 2005, February 27, 2006 and May 19, 2006 which were conducted without serving hearing notices on the Appellants all amount to a nullity and the judgment obtained thereto is null and void.
Counsel argued that the appropriate procedure to follow and or employ in the signing and or endorsing of a Court process by a legal practitioner known to law has been well outlined by the Court and all requirements of signing Court processes must be strictly complied with for such a process to be competent and confer jurisdiction on the Court but the Respondent unsigned and undated amended statement of claim having fall short of the mandatory requirement of the law is incompetent and divested the lower Court of the requisite jurisdiction to hear and determine the case culminating in this appeal. Counsel cited Yakubu v. F.M.B.N Ltd. (2015) 11 NWLR Pt. 1470 Pg. 232 at 242.
Counsel emphasized that this issue being one that denies the lower Court of jurisdiction in respect of the proceedings, the entire proceeding at the trial Court is therefore a nullity. Counsel cited Hamzat v. Sanni (supra); Okonkwo v. FRN (2011) 11 NWLR Pt. 1258 Pg. 215 at 248.
Learned counsel argued that in land cases, for the Claimant to be entitled to his claim, he must prove his claim to the satisfaction of the Court even in the absence of, or in default of defence. Counsel cited First Bank of Nigeria Plc. v. Okelewu (2013) 13 NWLR Pt. 1372 Pg. 435 at Pg. 458 Par. B-D; 463 Par. D.
Counsel further argued that findings made by the learned trial judge are perverse and not supported by evidence as the Appellants were not properly served with the originating processes and the purported affidavits of service are unreliable in view of the various contradictions contained therein. Counsel cited Momoh v. Umoru (2011) 15 NWLR Pt. 1270 Pg. 217 at 270-271 Par. G-A.
Counsel argued that the issue of concealment of fraud raised in the Respondent?s brief was not pleaded and proved by the Respondent at the lower Court same cannot then be raised by counsel on appeal as a brief of argument is not a substitute for evidence. Counsel cited C.B.N v. Okojie (2015) 14 NWLR Pt. 1479 Pg. 231 at Pg265 Par. F-H.
Counsel further argued that the case of Arowolo v. Ifabiyi (supra) relied upon by the Respondent is not applicable to the instant case because the facts are quite different.
Learned Respondent?s counsel in reply contended that there is no proof that the amended statement of claim of the Respondent is undated and unsigned.
Counsel argued that the cause of action in this appeal is not statute barred as the Respondent?s claim is not limited to Paragraph 5 of the Statement of Claim only. The Respondent stated in paragraph 7 of the statement of claim on Pages 19-20 of the records that it was in the year 2001 that the Deed was discovered to have been fraudulently made.
Counsel further argued that it was on October 25, 2001 that the cause of action arose because that was when the Respondent discovered the fraudulently executed Deed of conveyance and in June 11, 2011 the Appellants joined issues through their respective counsels and via correspondences that were tendered in evidence as Exhibits before the learned trial Court.
Learned counsel argued that an allegation of fraud can be raised at any time, moreso a party cannot be bound by a document he never knew existed.
Counsel further argued that on the contention that the Respondent did not prove or provide particulars of fraud in the pleadings and prove same beyond reasonable doubt, the law is that an unchallenged piece of evidence is sufficient to prove an alleged fact.
Learned counsel argued that assuming but not conceeding that the amended statement of claim was unsigned or undated which is not clear on the face of the Records, the law suit at the trial Court subject to this appeal can still be salvaged.
Counsel urged this Court to permit the original statement of claim which was properly filed and signed and consider same to be used for this appeal as the Court will always do substantial justice.
Learned counsel argued that the service of originating processes on the Appellants was proper as the service conformed with the legal requirement in Order 12, Rule 8 of the High Court of Bendel State (Civil Procedure) Rules, 1988 which was the applicable law in the instant case, having been received by an Usher at the Registered office of the Appellant.
Counsel emphasized that subject to the provisions of Section 140 of the Evidence Act, 2011, the Appellants had the duty in the Notice of Appeal to explain the status or position of an Usher in its organization.
OPINION
In this case, the original writ and claim was filed on 30/10/03. The unsigned and undated Amended Statement of Claim attached to the motion for leave to file same was filed on 10/10/05.
It is settled that an unsigned Statement of Claim is fundamentally defective. See Okafor v. Nweke (2007) 10 NWLR Pt. 1043 Pg. 521; Hamzat & Anor v. Sanni & Ors. (2015) LPELR-24302. An Amended Statement of Claim goes to the date the original statement of claim was filed. The original valid statement is the originating process in an action which must be signed by the litigating party or a legal practitioner on his behalf. See Iwunze & Ors. v. Okenwa & Anor. (2015) LPELR-24905 (CA); Aaron Okarika & Ors v. Isiah Samuel (2013) 7 NWLR Pt. 1352 Pg. 19 at 34 Par. G-H, 37; Ugbomah v. Allanah & Ors. (2018) LPELR-44832 (CA); Julius Berger (Nig.) Plc. v. Jameshill Associate Ltd. (2018); Jameon Nig (Ltd.) & Ors. v. Isa Engineering (Nig.) Ltd & Anor. (2018). Supremacy of a Statement of Claim over Writ of Summons is not in dispute. Statement of Claim supercedes Writ of Summons. It is the Statement of Claim that donates locus standi on the Claimant. See Adesanoye v. Adewole (2006) 14 NWLR Pt. 1000 Pg. 242; Agwaramgbo v. UBN (2001) 4 NWLR Pt. 702 Pg. 1; Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR Pt. 675 Pg. 315. Paragraph 3(a) of the affidavit in support of the motion to amend the claim on Pg. 18 of the record states that one of the reasons for the amendment is that the Respondent ‘discovered that there were some crucial facts that were not pleaded in the statement of claim’.
Those facts not pleaded originally were in the incompetent Amended Statement of Claim considered by the learned trial judge by Paragraph 1 of the judgment on Pg. 95 of the Record. The Amended Statement of Claim which is an incompetent process cannot be redeemed by this Court and I have no hesitation stating categorically that it is liable to be struck out. The implication of this is that since parties are bound by their pleadings, the judgment of the trial Court which considered unpleaded facts contained in the Amended Statement of Claim cannot stand the test of fair trial and consequently cannot be sustained. See Omidiora v. Federal Civil Service Commission (2007) LPELR-8883 (CA); Okoko v. Dakolo (2006) 14 NWLR Pt. 1000 Pg. 401; Odubeko v. Fowler (supra).
Let me now consider whether there was proper service of the originating process on the Appellants who were defendants at trial. On Pages 67-78 of the Record, several Hearing Notices (6) are exhibited which showed that the Bailiffs all served someone they called an ‘Usher’ on the premises of the Appellants’ church. No doubt from Pg. 79 of the Record, the 2nd Appellant was incorporated under The Land (Perpetual Succession) Act, Cap 98. It would have a secretary and an office. At least it would have a priest who could be regarded as a Principal Officer. On all occasions, the Usher (whoever that means) was served with the process. It is clear by the reference of the learned trial judge in paragraph 3 of the judgment on Pg. 95 of the Record that His Lordship did not look closely at the affidavit of service sworn to by the Bailiffs which showed clearly that the wrong people had been served with the relevant process. The law is that failure to serve process where such process is required is a failure which goes to the root of a case. Any order made against a party who ought to have been served but was not served with process is null and void. See Okoye & Okoye v. CPMB Ltd. (2008) LPELR-12505 (SC) 15; Idisi v. Ecodril (Nig) Ltd. & Ors. (2016) LPELR-40438 (SC) Uba Okeke v. Tijani Lawal & Ors. (2018) LPELR-43920 (SC). The Respondent has not disputed the fact that it was an unnamed Usher instead of a valid representative of the Appellants, who was served with the originating process and the Hearing Notices before the learned trial judge heard the Respondent and gave judgment in her favour. On this issue, I find it impossible to sustain the judgment of the trial Court.
Since the Appellants did not put up appearance at the trial Court, it has raised for the first time on appeal as it has the right to so do, the issue of lack of jurisdiction of the trial Court by reason that the cause of action has abated and is caught up by the statute of limitation. SeeMohammed v. Gov of Kaduna State & Ors. (2016) LPELR-41331 (CA); Independent National Electoral Commission v. Ogbadibo Local Government & Ors (2015) LPELR-24839. In considering the issue of limitation, it is the statement of claim that must be considered exclusively to see the facts therein as stated by the Plaintiff. See Williams v. Williams (2008) 10 NWLR Pt. 1095 Pg. 346; NPA Plc. v. Lotus Plastics (2005) 19 NWLR Pt. 959 Pg. 158.
From paragraph 2 of the Statement of Claim, the Deed of Conveyance being challenged as fraudulent was dated and executed on 12/7/68 and was probably registered around the same date since the Respondent could find a copy of it in the Ministry of Lands and Survey, Asaba when he conducted a search in 2001.
I have to agree with the Appellants’ counsel that having waited and delayed for so long before coming to assert his right to the land in dispute, the Respondent is also barred by virtue of the equitable doctrine of laches from suddenly waking up after more than twenty-two (22) years in slumber to lay a claim to the land in dispute.
Though it is trite law that where there is a right there is a remedy, the need to act rightly and timeously has over time been a minimum requirement of equity which the Courts have also consistently enforced. See Ogundare & Anor v. Executive Governor of Lagos State & Ors. (2017) LPELR- 41859; Attorney General of Adamawa v. Attorney General of the Federation (2014) 14 NWLR Pt. 1428 Pg. 515 at 559 Par. G; LPELR-23221 (SC).
The time started to run to challenge the title of the Appellants on 12/7/68, and I agree with the learned Appellants’ counsel that waiting for more than 22 years to challenge the title of the Appellants is ludicrous in this case, to say the least. It is clear that the claim of the Respondent is based on suspicions and suppositions of whether the registered documents were forged. Where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Where an action is statute barred, a Plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of the time laid down by the limitation for instituting such an action has elapsed. See Aremo II v. Adekanye & Ors. (2004) 13 NWLR Pt. 891 Pg. 572; Udoh Trading Co. Ltd. v. Abere (2001) 11 NWLR Pt. 723 Pg. 114; Odubeko v. Fowler (1993) 7 NWLR Pt. 308. See also CBN & Ors. v. Okojie (2015) LPELR-24740 (SC); Eboigbe v. NNPC (1994) 5 NWLR Pt. 347 Pg. 649.
On the issue of fraud, from the original statement of claim, it is clear that no direct and specific pleading was made that in fact fraud had been perpetuated by the Appellants in securing the land in dispute. In Paragraphs 7-10 of the original Statement of Claim on Pg. 4 of the Record, we see the following reasons for the Respondent?s claim of fraud: –
7. The Plaintiff shall also rely on the Certified Copy of the registered Deed or Indenture during hearing.
8. The Plaintiff further avers that the vendors were not properly disclosed and their signatures showed to him were highly suspect. This is moreso where they did not sign in their own handwriting.
9. The Plaintiff also avers that the purported executed deed was not executed by the accredited representatives of the family. The Defendant is put on strictest proof with regard to whether or not the deed is genuine or otherwise.
10. The Plaintiff further states that going by the purported execution of the Deed of Conveyance, it became very clear to him that there was no valid transaction between his predecessors and the Defendant’s predecessors.
The law is settled that the standard of proof of allegation of crimes which is the foundation in a civil cause or matters is provided by the legislature in S. 135 (1) – (3) of the Evidence Act 2011 to the effect that it must be proved beyond reasonable doubt. This has not been done by the Respondent. At trial, the learned trial judge in my humble view naively took the sparse evidence of the Respondent as regards whether the Deed, Exhibit ?D? is a forged document or not hook, line and sinker. The Court held as follows on Pg. 100 of the Record: –
I think it is foolhardy to take the Court for granted and go to sleep while Court papers relating to a land one is occupying is being disputed in Court and the case is being heard with several Hearing Notices served on them for nearly three years without them (the Defendants) making a move. It is now firmly trite that the unchallenged pleadings and evidence of a Plaintiff in Court of law by the Defendant is taken as the correct facts of the case the Plaintiff and the evidence is bound to be accepted by the Court and judgment entered in favour of the Plaintiff. There must be an end to litigation. The burden on the Plaintiff in such circumstances is not on a balance of probability. It is in my opinion, as the burden on him lies.
Accordingly, I enter judgment in favour of the Plaintiff as claimed by him in paragraph 22 (a), (b), (c) and (d) (with variation) in the Amended Statement of Claim filed on 10/10/05.
To take a critical look at the reasoning of the learned trial judge, we need to look at the claim of the Respondent at trial. The Respondent’s claim in the writ filed on 30/10/03 is set out below on Pg. 1 of the Record: –
The Plaintiffs claim against the Defendants jointly and/or severally is as follows:
1. An order of forfeiture of the adjoining land to the Defendants’ church because the execution is fraudulent.
2. A declaration that the purported conveyance dated the 12th of July, 1968 is null and void.
3. A declaration that the Plaintiff is entitled to the Statutory Right of Occupancy of the said land in question.
4. The sum of N50, 000, 000. 00 (Fifty Million Naira) as general damages for the trespass on the said land by the Defendants.
Clearly, Paragraph 2 is a prayer for declaration that the Conveyance dated 12/7/1968 is null and void. My Lords, the learned trial judge did not do a critical evaluation of the evidence given by the sole witness at trial who sought a declaration on the basis of fraud. There was no critical consideration of the evidence proffered in proof of a declaratory relief before it was granted. Let us look at the evidence of fraud which must be proved beyond reasonable doubt. At Pg. 87 and 88 of the Record, PW1 gave evidence as follows: –
The Defendant have built their church on the southern part of the land, while the northern part is yet to be developed. Sometimes in 2001, I went to the Defendants’ premises to enquire about the land. I did not meet the pastor in charge. I return again I met him and I asked him about. That how did he come about the land. He did not reply. He called the Church members together that if he had met me the first day, I came he would have beaten me up. I told him to show me evidence of how he got the land even a photocopy. He told me to go and come back. In two to three weeks I went back to him. He told me that his lawyer had advised him not to give me any evidence or documents to me how he about the land. This encounter was in May 2001. I told him this matter will settle if he showed me some evidence but he refused. As the pastor refused to show me any document, I instructed my lawyer Osawota to write to the defendant. These are the letters my lawyer wrote to the pastor.
The original letter written by my lawyer is with the defendant. As a result of Exhibit ‘B’ I became suspicious of the transaction because they sent a photocopy of the agreement and plan of the land in question dated 12/7/68. The agreement and plan was purportedly registered at the land Registry at Asaba. As I was suspicious I caused a search to be made. My finding was that a conveyance dated 12/7/68 was false. When I looked at it the vendors were not disclosed as they did not sign their signatures. No signature in that conveyance. I came to the conclusion that the conveyance was fraudulently executed. In spite of the fact that the conveyance was registered the fraudulent nature of it cannot be hidden.
Before I went to Asaba to search on receipt of the photocopy of the conveyance which I suspected I caused a letter to be written and served on them to produce a letter title document because the one they sent I am not satisfied with it there or forfeit the land within three months. They have not replied. This is the letter my lawyer wrote to the pastor?s lawyer, Mr. Enemisin. See to tender it a photocopy. The original letter is with the defendant.
The requirement of the law regarding the onus placed on a party claiming a declaratory relief as claimed by the Appellants is trite. A claim for a relief of declaration, whether of title to land or not, is not established by an admission by the Defendant because the Plaintiff must satisfy the Court by cogent and credible evidence called by him to prove that as a Claimant, he is entitled to the declaratory relief. It is the law that a Court does not grant declaratory on admission of parties because the Court must be satisfied that the Plaintiff on his own evidence is entitled to the relief claimed. See Ayanru v. Mandilas Ltd (2007) 10 NWLR Pt. 1043 Pg. 462; Ndayako v. Dantoro (2004) 13 NWLR Pt. 889 Pg. 187 at 214; Emenike v. PDP (2012) LPELR-7802 (SC); Organ & Ors. v. Nigerian Liquefied Natural Gas Ltd. (2013) LPELR-20942 (SC).
There is in my humble view no evidence at all to support the grant of any declaratory relief to the Respondent by the trial Court. Any one of the reasons, of lack of jurisdiction by reason of being statute barred, the incompetent process used by the Court to grant the claim of the Respondent and lack of proper service of process were enough to allow the appeal. I also considered the merit of the case at trial which forces me to conclude that the judgment of the trial judge cannot be affirmed.
I am persuaded that there is merit in this appeal and that it should be allowed.
The judgment of Hon. Justice A.P.E. Awala delivered on 19/5/2006 in Suit No. W/ 177/03 is hereby set aside. The claim at trial is statute barred and it is hereby struck out. N100,000.00 costs for the Appellants against the Respondent.
PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading the draft Judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JCA.
The Respondent as Plaintiff at the lower Court made the following claims:
a. An Order of forfeiture of the land whereupon the Defendants’ church lies and the adjoining land because the execution is fraudulent.
b. A declaration that the purported conveyance dated the 12th of July 1968 is null and void.
c. A declaration that the Plaintiff is entitled to statutory right of occupancy of the said land in question.
d. The sum of (Fifty Million Naira) as general damages for trespass on the said land by the Defendants.
The sole issue for determination is whether the trial Court possessed the requisite jurisdiction to hear and determine the Respondent’s claim.
The gravamen of the Respondent’s claim at the lower Court is the issue of title land and the Appellant argues that the lower Court lacks the requisite jurisdiction to hear same.There is indeed no gainsaying the fact that jurisdiction is the anchor upon which any matter can hear and determined by any Court, and the lack of it renders any subsequent proceedings in that Court a nullity. Learned Appellant’s Counsel has argued that the Respondent’s tardiness robbed the Court below the requisite jurisdiction to entertain the matter.
I am in total agreement with that line of argument that waiting for more than 22 years to challenge the Appellant’s title is completely out of the question.
There is no way in which a party can successfully challenge one’s title where an action is already statute barred. Any challenge thereafter by any legal process becomes an exercise in futility.
It is now well settled that in considering whether an action to enforce a legal right is statute barred, the Court should confine itself as in the present case, to the averments in the writ of summons and the claims before the lower Court which allege the factual situations that gave rise to the present cause of action. see UBN PLC V. UMEODUAGU (2004) 13 NWLR (Pt. 890) 352.
In sum, and from the totality of all of the above summation, this appeal is allowed and the Judgment of the lower Court delivered by Hon. Justice A.P.E. Awala on 19/5/2006 in suit NO. W/177/03 is hereby set aside. I abide by the award of cost in the lead Judgment of N100,000.00 in favour of the Appellant. Appeal allowed.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the advantage of reading before now the lead judgment just delivered by my learned brother HELEN MORONKEJI OGUNWUMIJU, JCA.
My Lord has adequately dealt with all the issues in contention and I agree with the reasoning and conclusion reached in the said judgment. It is glaring that the suit, subject of this appeal suffers from triple fundamental defects that renders the trial at the lower Court null, and void ab initio.
Firstly, the action is prima facie statute barred. The second defect is the non-signing of the statement of claim which renders the said process incompetent and dead on arrival. Thirdly, the lack of proper service of the originating processes as well as subsequent hearing notices touches on the Appellants’ right to fair hearing. The consequence of such failure or neglect to properly serve a party to an action with the necessary processes is that the Court lacks jurisdiction to entertain the proceedings which in the end is rendered null and void. See SKEN CONSULT (NIG) LTD VS. UKEY (1981) 1 SC 6; WEMA BANK (NIG) LTD VS. ODULAJA (2000) FWLR (PT. 17) 138; NUT TARABA STATE & ORS. VS. HABU & ORS. (2018) LPELR ? 44057 (SC).
In the light of the aforementioned defects the whole proceeding of the trial Court leading to the judgment appealed against is a nullity because the said Court is robbed of the jurisdiction to entertain same.
In this regard I also hold that this appeal succeeds and it is hereby allowed. I abide by the consequential order made in the lead judgment including the order as to costs.
Appearances:
S.E.F. Agumor Esq., with him, I.S. Osage Esq.For Appellant(s)
Chief A.K. Osamota Esq., with him, B.I. Chigbo Esq.For Respondent(s)
