Alhaji Sabiriyu Shittu V. Otunba Oyewole Fashawe (2005)
LAWGLOBAL HUB Lead Judgment Report
S.M.A. BELGORE, JSC
The appellants were Plaintiffs in the High Court of Anambra State sitting at Nnewi Judicial Division. The land in dispute called by plaintiffs as Okpukpite was acquired by their ancestors by conquest about four hundred and fifty years ago. The eleven plaintiffs represent various descendants of the original conqueror and divided or apportioned the land among themselves. They had been in possession all the time burying their dead there, farming there and having various homes stead there undisturbed all these centuries. Individual members of each family had portions allocated to them and the have developed most of them and are still developing them; it is a continuing process as the families grow larger. This families’ rights had been exercised unhindered up to promulgation of Land Use Decree (now Act) of 1978.
By a publication around 1979 the then Anambra State Government published a Notice whereby it expressed its intention to acquire the disputed land for “overriding public interest” and in particular, for fibre processing. The plaintiffs’ communities protested and had a series of meetings with the former Anambra Government at Enugu. Nothing again was heard about this matter not until 1989 when the new Anambra Government on 2nd day of December 1989 repealed the previous Notice of Acquisition, published a new one for an unspecified public interest. This Notice was not served on any of the plaintiffs. The communities, as represented by the eleven plaintiffs continued their protests by physical presence at Awka, the seat of 1st defendant government and by petitions. The government of former Anambra State at Enugu promised to look into their protests and would make all efforts to accommodate their protest insofar as farms and homesteads and several developments had taken place and were ongoing on the vast track of land.
To find a solution, the new Anambra State Government set up a Panel of Inquiry under Professor Iloegbune to look into Government land allocations and policies and make recom-mendations. The land in dispute formed part of that Inquiry. The panel made far-reaching recommendations and findings. The Government accepted the recommendations. The most significant findings and recom-mendations are:
That the acquisition of the plaintiffs land in dispute had not been legally perfected by the Government in so far as compensations had not been paid to anyone whose land was being expropriated.
That the Government should review the layout plan to accommodate all existing development as earlier promised the communities.
That the Government should require all owners of the existing developments to regularize their titles, by applying for formal allocation and grant of Certificate of Occupancy.
That the Government should allocate 2% of the plots from the redesigned layout to original land owners (Plaintiffs) in accordance with the new policy of Anambra State Government on expropriated lands.
All these the Government accepted by their White Paper. The plaintiffs were not paid their compensation and the defects in the acquisition leading to their “not perfecting the acquisition” as the White Paper seems to have accepted in Iloegbune Report had not been looked into much less perfected, To the Plaintiffs, therefore, the Government had not fulfilled its obligations under the White Paper and had not fully acquired their land. This is a situation still to be denied by Government.
All the foregoings were facts clearly in the statement of claim. Also undenied is that fact that a complete stranger to the land IBETO INDUSTRIES LIMITED applied to the Government for a Right of Occupancy and was immediately granted one evidenced by a Certificate of Occupancy registered at Land Registry, Awka to build a gas processing plant. Whereas in reaction to the White Paper, several of the plaintiffs applied for the same right of occupancy but had no response much less being granted.
The respondents never filed statement of defence but only came by way of demurrer. The Statement of Claim remained untraversed once a demurer is filed. The demurer, an archaic procedure though still extant in our practice in some parts of the country, is the nature of saying that even if all in the statement of claim as averred are true the action cannot be sustained either due to illegality (e.g. sharing of assets criminally acquired) or public policy (e.g. gaming and lottery banned in some states and frowned upon in others) or by failing to give Notice of Intention to sue (when such notice is statutorily required) or when the right to sue had lapsed due to extension of lime e.g. Limitation Act or Law. There are other instances whose demurrer can be filed against statement of claim. By its nature, demurrer if successful can lead to the action being stopped in its tracks whatever the merits of claim. It is what I will call “peremptory defence” to save the defendant the trouble of filing a statement of defence. But it is not in all cases successful demurrer is a complete guillotine to the action. If the demurrer fails the defendant can still come to defend the action by filing statement of defence or praying for extension of time to do so if the time has passed. In some cases, where the claim is clear and certain and the defendant has no defence, the dismissal of demurrer is virtual end of the suit.
By its nature, demurrer is only filed against statement of claim and admits no filing of statement of defence, otherwise the demurrer proceedings will be rendered meaningless (Williams v Williams (1995) 2 SCNJ 22; Federal Capital Development Authority v Naibi (1990) 2 NWLR 270, 281; Ege Shipping V. Tigris International (1999) 12 SCNJ, 14). In essence, the motion on demurrer should be brought before issue was joined on matters alleged in the statement of claim (Glover & Another V. Officer Administering Government of Nigeria & Ors. (1949) 19 NLR 45)., Enwezor, V. Onyejekwe (1964) 1 All NLR 14). However, if the parties have joined issue, pleadings have been exchanged by parties there is no more place for demurrer (Gold Coast and Ashanti Electrical Power Deve-lopment Corporation v Attorney – General (1937) 3 WACA 215.) and the case must proceed to trial (Odive v Obor & Anor, (1974) 1 All NLR (Pt. 1) 436 and Aina v The Trustees of NRC Pensions Fund (1970) 1 All NLR 281).
The procedure by way of demurrer is not only archaic and time wasting, it is a product of English Rules of eighteenth century whereby formulary system reigned. The English have done away with it but it appears some parts of this country still adhere to it. The Uniform High Court Rules and recent High Court Rules of Lagos State wisely did away with demurrer. It is in the interest of efficient and timeous dispensation of matters in Court to allow parties to join issues and the defendant, without directly pleading law but facts can raise issues that will dispose of the matter without hearing evidence on matters like limitation of action, immorality, public policy, laches etc. in statement of defence.
What is strange in this case is that the Government of Anambra State and the defendants/respondents not only filed a demurrer but attempted to raise some defences. It has not vitiated the demurrer which was here based clearly on Limitation Law of Anambra State. The so-called defences attached to the demurrer are inconsequential as to demolish its purpose. The question is: was the action statute-barred by virtue of Limitation Law? The plaintiffs all along, believing on White Paper on Iloegbune Report, believed Government would abide by its words and honour as a government. By giving a portion of the contentious land to IBETO INDUSTRIES LIMITED the Plaintiffs’ rights got vitiated, in their view, and went to Court. The time started running for purpose of Limitation Law of Anarabra State when the land whose acquisition Government itself in its White Paper admitted was yet to be perfected, was given to a third party by way of right of Occupancy. Nemo dat quod non habet, the plaintiffs seem to contend. But I do not intend to go further than this in this appeal, suffice however to say that time to sue had not elapsed as found by trial court and erroneously upheld by Court of Appeal. Limitation period has not set in.
For the forgoing reasons, I allow this appeal and hold that the action of the plaintiffs subsists. I order that the suit be remitted to High Court, Nnewi Judicial Division before another judge other than the one that heard it before. The defendants are at liberty to apply for extension of time to file their statement of defence if trial court in its discretion would find it expedient to grant application to do so out of time.
I award N5000.00 as costs in trial court against 1st and 3rd respondent, N5000.00 as costs against 1st and 3rd respondent in Court of Appeal and N10,000.00 as costs against 1st and 3rd respondents in this Court all in favour of the appellants.
SC.194/2000
