Michael Nwiboeke & Ors V. Paul Nwokpuru (2016)
LawGlobal-Hub Lead Judgment Report
EMMANUEL AKOMAYE AGIM, J.C.A.
On 3-9-2012. Nwokpuru Iyaji as plaintiff commenced suit No. OCC/6/2012 in Odomoke Isieke Customary Court against the appellants herein claiming for:
(a) “Declaration of title: that the plaintiff is the bona fide owner of the said land.
(b) Perpetual injunction: Restraining all the defendants, their agents and relations from entering the said land.
(c) N50,000.00 for making use of the land for about six years now.
(d) N5000.00: General damages.”
The plaintiff testified as a witness in support of his case. The defendants adduced evidence through four witnesses in support of their defence. At the close of evidence by both sides the trial Customary Court on 3-12-2012 rendered it judgment in the terms following:
a. The plaintiff – Nwokpuru Iyaji is entitle to ownership of the piece or parcel of land known as Ali Nweze Onweagbo or Onu Ogwa Awoke situate at Egwudulegu Ishieke in Ebonyi Local Government Area of Ebonyi State.
b. The defendants, agents and or relations are hereby given perpetual injunction, restraining them from further
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trespass into the said piece or parcel of land.
c. The defendants are to pay the sum of N4,000 to the plaintiff as general damages and N3000 as cost. This is ORDER/JUDGMENT of this Court. Parties who are dissatisfied with the judgment of this Court is hereby reminded of 30 days statutory time to appeal against the judgment.
By a notice of appeal dated 11-10-2013, the appellant herein, commenced appeal No. CCA/IA/2013 against the above judgment of the trial Customary Court in the Ebonyi State Customary Court of Appeal. Upon the death of the plaintiff, he was by order of the Ebonyi State Customary Court of Appeal substituted by his son, Paul Nwokpuru as respondent in the appeal. Following the filing, exchange and adoption of briefs by all sides, the said Customary Court of Appeal on 3-2-2014 rendered its judgment holding that the appeal failed and dismissed same.
?Dissatisfied with the judgment of the Ebonyi State Customary Court of Appeal, on 15-4-2014, the appellant commenced this further appeal No. CA/E/264/2014 to this Court by filing a notice of appeal containing five grounds for this further appeal, after obtaining the leave of the
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Customary Court of Appeal to appeal to this Court against its said decision on grounds of facts and mixed law and facts on 14-4-2014.
Both sides filed, exchanged and adopted their respective briefs as follows – appellant’s brief, respondent’s brief and appellants’ reply brief.
The appellants’ brief raised the following issues for determination –
1. Whether the lower Court was right when it held that the Section 3 of the Limitation Law (Cap 102) Laws of Ebonyi State 2009 was not applicable in this case on the ground that the said limitation law came into force in 2009 and that by virtue of Section 44 of the same law all previous limitation laws with their effects had ceased to exist.
2. Whether the lower Court rightly held that the procedure adopted by the trial Court was fair because the question put to the defendants witnesses by Court did not lead them to say what they did not intend to say.
3. Whether the finding of the lower Court that the respondent withdraw from the customary oath taking ab-initio because he was not allowed to take the oath was not perverse in the sense that it did not flow from the record of evidence
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before the trial Court and whether the failure to uphold that customary oath on that basis was right.
The respondent’s brief adopted the issues raised for determination in the appellants’ brief.
I will determine this appeal on the basis of the issues raised for determination in the appellants’ brief.
Learned counsel for the appellant has argued that the Customary Court of Appeal erred in law when it held that by virtue of S. 44 of the Limitation Law Cap 102 Laws of Ebonyi State 2009, the action was not statute barred on the ground that the said law came into force in 2009, that the said S. 44 had exhumed and revived all rights that were dead as a result of the application of previous statutes of limitation, that the appellants had been in exclusive possession of the Suitland for 53 or 23 years before the respondent commenced the suit in the Customary Court, that S. 3 of the 2009 Limitation Law of Ebonyi State provides that an action for recovery of land must be commenced within 10 years from the time the right of action accrued, that S. 3 of the said Limitation Law is not subject to S. 44 of the said Law, that S. 44 by providing that
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any enactment relating to the limitation of action which were in force before the commencement of this law shall cease to apply did not revive any right extinguished by previous limitation statutes, rather it has repealed such previous laws to avoid conflict, that in any case the 2009 Limitation Law of Ebonyi State states that it commenced on 21-5-1990.
Learned counsel relying on Ojokolobo v. Alamu (1997) 3 NWLR (Pt. 6) 377 at 394 argued that the limitation law being a procedural law applies retrospectively and that it applied to the suit leading to this appeal even though the cause of action arose 53 or 23 years before the suit was commenced.
Learned counsel argued finally under this issue that the trial Court lacked the jurisdiction to entertain the action as it was statute barred. For this submission, he relied on Adeshi v. Oko (2010) 45 WRN 160 ratio 4.
Learned Counsel for the respondent in reply argued that the trial Court rightly held that S.3 of the Limitation Law was not applicable to the action brought by the respondent in the Customary Court, that limation of action was not applicable to customary law and recovery of land
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held under Customary Law, that the rule of prescription is not applicable to Customary Law. For these submissions he relied onDede v. African Associations Ltd. (1910) 1 NLR 130 at 135, Adu v. Kuma (1937) 3 WACA 240 Nigeria Land Law (page 457) by Prof. B. O. Nwabueze and Nature of African Customary Law (P. 166) by Dr. T.O.S Elias and Atunrase & Ors v. Sunmola & Anor (1985) 1 SC 347 at 398.
Learned Counsel also submitted that the said Limitation Law cannot apply retrospectively, that the action was not challenged as being statute barred at the trial Court, that the appellants had been in adverse possession for six years at the time the suit was filed in the Customary Court, that S. 44 of the Limitation Law protected actions that ordinarily would have been statute barred under S. 3 of the same law.
Another submission of Learned Counsel is that the respondent never slept on his right and has never been divested of his ownership arising from length of time because he has been astute in asserting his title and challenging the adverse possessor (the appellants), that the purported long possession by appellants was only for farming purposes and
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they never lived on or built on the Land, that the owner of land is under no obligation to immediately commence an action against a person that he finds has trespassed on his land, that it is sufficient that he has warned the trespasser, that there are evidence on record that the respondent persistently resisted the appellants trespass on the suit land and summoned them before several bodies such as Nwiboko Obodo’s Local Council, Ishieke village Council, H.R.H. Chief Iteshi Nwenu and his cabinet and the Human Rights Commission before commencing the suit against them in Odomoke Customary Court, that all these bodies found in favour of the respondent, that the appellants remained adamant, persisting in their adverse possession. For these submissions he relied on Bokitsi Concession case (1902) Renew Report (at 239 at 243 and Morah v. Okwuawyanga (1990) 1 NWLR 125 at 223.
Let me now consider the merit of the arguments of both sides on this issue.
?The basis for the application of a limitation of action law is that the period prescribed by law, within which an action should be brought, reckoned from the date the cause for the action accrued, has
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expired. Therefore, to determine if the action was commenced within or after the limited time, it is necessary to determine when the cause of action accrued.
At the trial both sides did not agree on the date the cause for the action accrued. There is no evidence of the exact date the cause for this action accrued. Learned counsel for the appellant in their brief in the lower court argued that it can be implied from the facts that the plaintiff had testified that following the trespass by the father of the appellants into the land he had summoned him before Chief Nwiboko Obodo and subsequently before Chief Nwodo Oku, both of whom resolved the dispute in the plaintiff’s favour, that Chief Nwiboko Obodo had before 1958 been convicted of murder and sentenced to death and the said conviction and sentence was affirmed by the Federal Supreme Court as reported in Obodo & Ors v. The Queen (1958) NSCC III and the fact that appellants’ father who had participated in the settlement of the dispute before Chief Nwodo Oku died in 1989. Learned Counsel then implied from these events that since Chief Nwiboko Obodo who first settled the dispute was later convicted
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of murder and sentenced to death in 1958, then it follows that that the dispute must have occurred before 1958 and that since the father of the appellants who was summoned before Chief Nwodo Oku in connection of the same act of trespass into the land died in 1989 then it follows that dispute was existing before 1989, and then concluded that the cause for the action accrued before 1960 (53 years before the suit was filed in the trial Customary Court on 3-9-2012) or before 1989 (23 years before the said suit was filed).
Learned Counsel for the respondent in his brief acknowledged thusly- “In the instant case, the trespass is alleged to have occurred in the 50s and had continued unabated because the trespasser (Nwiboeke) had no respect for a constituted authority hence he refused to respect the rulings of the bodies that had adjudicated in the matter. This case took place more than 50 years before the creation of Ebonyi State”.
?The same Learned Counsel further in the respondent’s brief turned volte-face to argue that “It is therefore not surprising that in 2012 when the children of Nwiboeke the trespasser also failed to respect the ruling of the
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arbitration bodies, he (the plaintiff) sued them in the Customary Court. By our calculation therefore the suit was not statute barred. It was instituted six years ago. Besides, the plaintiff had in his claims at the trial Court, clearly stated that defendants had made use of the land for 6 years”.
The Customary Court of Appeal did not consider or resolve this factual issue of when the cause of action accrued in spite of the above arguments in the briefs of both sides before it. The Court was silent on this issue and rather proceeded to hold that S. 3 of the Limitation Law 2009 was not applicable to this case for the reasons that S. 44 of the Limitation Law 2009 had revived rights of action extinguished before the commencement of the 2009 Law, that the respondent did not sleep over his right and took several steps to stop the trespass and recover his land and that the Limitation of action laws do not apply to land held under Customary Law. The trial Court had a mandatory legal duty to determine the said factual issue of the date of accrual of the cause for the action as part of its duty to consider every issue raised and or argued by the parties to a
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case before it. It is settled law that a Court in deciding a case before it must consider and determine all the issues raised by the parties to the case before it. This must be obvious from its judgment which must reflect a dispassionate consideration of all those issues. See Wilson & Anor v. Oshin & Ors (2000) 6 SC (Pt. III) 1, AG Leventis Nig Plc v. Akpu (2007) 6 SC (Pt. 1) 239 and Odetayo v. Bamidele (2007) 5 SC 72.
In this appeal, both sides have again raised and argued the same issue. Both sides have repeated their respective arguments in the lower Court. The dispute as to when the cause for this action accrued remained. Apart from the law that this Court is bound to consider an issue that was contested before the lower Court which it ignored and failed to consider, the argument of the same issue before this Court, amounts to an invitation to this Court to consider it.
I will therefore proceed to consider and determine when the cause for this action accrued.
?Both sides agree that the plaintiff summoned the father of the appellants before Chief Nwiboko Obodo, Chief Nwodo Oku and Chief Iteshi Nwenu over the later’s entry
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into the suit land and summoned the appellants who continued to occupy the said land as that of their father to the Human Rights Commission office at Abakaliki. The trial Court held that: “All these actions took place in a span of many years.” I agree with the argument of Learned Counsel for the appellant that if Chief Nwiboko Obodo who resolved this dispute was later convicted of murder and sentenced to death in 1958, it follows that he must have resolved the dispute before 1958. Equally I agree with his argument that if the father of the appellant who participated as a party to the dispute settled by Chief Nwodo Oku, died in 1989, it follows that the dispute arose and was resolved by Chief Nwodo Oku before 1989. I also agree with the conclusion of Learned Counsel for the appellants that 53 Years reckoned from 1960 and 23 years reckoned from 1989 elapsed before the suit was filed on 3-9-2012 in the trial Customary Court. So the cause for this action accrued before 1960 or before 1989 and the action was commenced 53 years or 23 years after the said cause of action accrued.
?Clearly, Suit No. OCC/6/2012 was not commenced within the period of 10 years from
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when the cause for the action accrued as required by S. 3 of the said 2009 Limitation Law, which states that – “No action shall be brought by any person to recover any land after the expiration of ten 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.”
The argument by Learned Counsel for the respondent that limitation of action laws are not applicable to customary law or actions to recover land held under Customary Law cannot be accommodated by the clear words of S. 3 of the Limitation Law. Such argument is contrary to that provision. It is clear from the opening words of that provision thusly; “No action shall be brought by any person to recover any land,” that its legislative intention is that it should apply to actions by all persons in respect of all lands without exception. This is supported by the definition of land in S. 2 of the same Limitation Law as including “land held under a right of occupancy or any other tenure”.
The said 2009 Limitation Law intended that it should not apply to some actions. The said actions expressly excluded from its
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application are listed in S. 43(1) as follows –
(1) “This Law shall not apply to:
(a) Any proceedings for the recovery of any sum due in respect of a tax which is payable to the State; or
(b) Any proceedings for the recovery of any fine or penalty incurred in connection with any such tax; or
(c) Any proceedings by or on behalf of the Governor for the recovery of possession of land vested in him by virtue of the provisions of the Land Use Act; or
(d) Any proceedings for the recovery of any rent due under any grant made under the provisions of the Land Use Act; or
(e) Any matter which is subject to the jurisdiction of a Customary Court or Area Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death; or
(f) Any proceedings in respect of casements and profits a prendre.”
An action for the recovery of land held under Customary Law is not listed therein. So it is not excluded from the application of the said Limitation Law. If the Law had intended that an action such as this one for the recovery of land held under Customary Law be excluded from its application, it
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would have expressly stated so in S. 43(1) by listing it among those actions excluded from its application. It is a trite rule of interpretation that where a statute expressly lists certain things, it intends that those not listed are excluded. This rule is expressed in the oft quoted maxim that the express mention of certain things excludes those not mentioned. See A-G Bendel State v. Aideyan (1999) 4 NWLR (Pt. 188) 646 at 672 cited by Learned Counsel for the appellants. See also Ports and Cargo Handling Services Co. Ltd & Ors v. Migfo Nig. Ltd & Anor (2012) LPELR-9725(SC).
As a general rule, the rule that an adverse possessor of land can acquire title to the said land by prescription does not apply to land held under Customary Law Tenure. The judicial authorities of Young Dede v. African Association Ltd (supra), (supra), Adu v. Kuma (supra), Atunrase & Ors v. Sunmola & Anor (supra) and the ual authorities of Nigerian Land Law (supra) and Nature of African Customary Law (supra) restate this general rule against the application of the rule of prescription in Customary Law. In line with this general rule, the limitation statutes of
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many states contain provisions excluding their application to land held under Customary Law. But the Limitation Law 2009 of Ebonyi State did not exclude actions to recover land held under Customary Law from its application. So the general rule against acquisition of title to land held under Customary Law by prescription is not applicable in Ebonyi State by virtue of the provisions of S. 3 of the said Law which makes it applicable to land held under any tenure. This is because a general principle of law is subject to legislation. So where it conflicts with statute as in this case the statute would prevail over it. See Ugwu & Ors v. P.D.P. & Ors (2013) Unreported Judgment of this Court on 8-3-2013 in CA/E/259/2008. So judicial decisions such asKensal Falms Ltd v. Nigercat Construction Co (2013) 18 WRN at 142-143 and Oguntade v. Adeleye (1992) 8 NWLR (Pt. 260) 409 cited by Learned Counsel for the appellants, which applied provisions excluding the application of limitation statutes to land held under Customary Law are not applicable to cases which involve the application of a limitation statute that did not exclude actions to recover land held under Customary
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Law from its application.
The Limitation Law Cap. 102 Vol. 4 Laws of Ebonyi State 2009 commenced on 21-5-1990. As I had held herein, the cause for this action accrued certainly before 1989, 23 years before the commencement of suit No OCC/6/2012 on 3-92012 in -Odomoke Customary Court. One of the questions that the arguments of both sides threw up is whether S. 3 of the said Law can apply retrospectively to causes of action and the ensuing rights of action that accrued before its commencement.
?It is clear from the express words of S.3 of the Limitation Law that it refers to action brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him. The relevant consideration for the purpose of applying this provision is when the said action was brought. If the said action is commenced after the commencement of the limitation law, that is, 21-5-1990, then the said law would apply to the action. The law did not exclude from its application actions brought by persons whose right of action accrued before the commencement of the law. So, that meaning cannot be read into the very clear
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words of S. 3 of the Limitation Law. So after the commencement of the law, no action can be brought by a person to recovery any land after the expiration of ten years from the date on which the cause of action accrued to him.
The application of the law to actions filed after the commencement of the Limitation Law by persons whose right of action accrued before the said commencement of law does not amount to a retrospective application of the law. What would amount to a retrospective application of the law, is to apply it to actions filed in Court before the commencement of the Limitation Law. The 2009 Ebonyi State Limitation is an adoption of the Limitation Law Cap I14 Laws of Abia State of Nigeria 2005. Ebonyi State had inherited all the laws applicable to Abia State by virtue of S. 3 of the Ebonyi State (Applicable Laws) Law, 2009. Following the revision of all the laws applicable to Ebonyi State from her birth on 1st October 1996, the Laws of Ebonyi State 2009 were produced. S. 3 and S. 43 of both laws are the same in numbering and . So the right to bring this action became statute barred by virtue of S. 3 of the 2005 Abia State Law long before
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the commencement of the 2009 Ebonyi State Law on 12-5- 1990. The right of action could not reincarnate after the repeal of the 2005 Abia State Law by S. 44 of the Ebonyi State Law, because its limitation was continued by S. 3 of the same Ebonyi State Law, The right of action that was extinguished by the Abia State Law remained extinguished by the Ebonyi State Law. I do not agree with the argument of Learned Counsel for the respondent in support of the decision of the trial Court that S. 44 of the 2009 Ebonyi State Limitation Law exhumed and revived the right of action that had expired and became barred as a result of the effluxion of 10 years after it accrued by virtue of S. 3 of the Abia State Limitation Law 2005. It is settled law that where there is a change in law, the new law merely replaces the old law as the prevailing law but does not alter or affect the legal regime including the rights and obligations created or extinguished under the old law. S.6(1)(a) (b) and (c) of the Interpretation Act Cap. 123 LFN 2004 clearly states this effect of the repeal of an enactment thusly –
“The repeal of an enactment shall not – (a) revive anything not in force or
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existing at the time when the repeal takes effect; (b) affect the previous operation of the enactment or anything duly done or suffered under the enactment; (c) affect any right, privilege, obligation or liability accrued or incurred under the enactment;”. S. 44 of the Limitation Law 2009 emphasized the change in the limitation law applicable in Ebonyi State and avoided the concurrent existence of the 2005 Abia State Law and the 2009 Ebonyi State Law by providing that “Any enactment relating to the limitation action which were in force in the state immediately before the commencement of this Law shall cease to apply.” See Ogidi & Ors v. Okoli & Ors (2014) LPELR- 22925 (CA) and Sossa v. Fokpo (2000) LPELR- 6841(CA).
In the light of the foregoing, I hold that the respondent’s right to bring Suit No. OCC/6/2012 on 3-9-2012 in the Odomoke Customary Court was statute barred by virtue of S. 3 of the 2009 Limitation of Law. Therefore Suit No OCC/6/2012 was incompetent. The trial Court could not validly exercise jurisdiction to entertain it, as a condition precedent to its exercise of jurisdiction did not exist. Its incompetence because the right of
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action was statute barred became a feature in the case that robbed the trial Customary Court of the jurisdiction to entertain the suit. In Aremo v. Adesanya (2004) LPELR- 544 (SC) the Supreme Court held that; “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 time laid down by the limitation for instituting such an action has lapsed.” As held by the same Supreme Court in A-G Federation & Ors. v. Sode & Ors (1990) LPELR- 601 (SC)” A Court can only exercise jurisdiction with respect to a right of action and cannot assume jurisdiction unless the plaintiff who has brought the action before it has a right of action.” The trial proceedings and judgment are therefore nullities.
?I do not agree with the argument of Learned Counsel for the respondent that the action was not statute barred because the respondent did not sleep on his right and took several steps overtime to resist the trespass and continuing trespass by the father of the appellants and the appellants and that the respondent was under no obligation to commence litigation
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immediately he became aware of the trespass and that it is sufficient if he warned the trespasser. This argument cannot be accommodated by the clear words of S.3 of the Limitation Law. There is nothing in that provision requiring that the trespasser must be warned to stop the trespass before an action is filed in Court to stop the trespass or excluding or suspending its application where the action is preceded by extrajudicial steps to recover the land from the trespasser. There is nothing in S.3 limiting its application in any circumstance. Consideration of the fact that the plaintiff took several steps to resist the trespass can be relevant only in response to a plea of laches and acquiescence resulting in acquisition of possessory title by prescription.
The summons of the appellants by the respondent to several extrajudicial bodies such as Chiefs and the Human Rights Commission Office do not amount to actions brought to recover the land. Only actions brought in a Court established by law to exercise judicial power qualify as actions for the purpose of the application of S. 3 of the Limitation Law. S.2 of the Limitation Law defines action to include
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“any proceedings (other than a criminal proceeding) in a Court established by law” and defined a Court as “a Court established by law”. It is settled law that extrajudicial settlement or resolution of a dispute does not prevent the time within which the action concerning the dispute can be brought to Court from running. See Lahan v. A-G (1963) 2 SCNLR 47 and Eboigbe v. NNPC (1994) LPELR- 992 (SC).
For the above reasons issue No. 1 of the appellant’s brief is resolved in favour of the appellants.
Having held that the action was statute barred and that the trial and ensuing judgment is a nullity, no useful purpose would be served considering and determining the remaining issues 2 and 3. See Tunbi v. Opawole (2000) 1 SC 1.
On the whole this appeal succeeds as it has merit. It is accordingly allowed. The judgment of the Ebonyi State Customary Court of Appeal in Appeal No. CCA/IA/2013 delivered on 3-2-2014 that Suit No. OC/6/2012 is not statute barred and that therefore the trial Customary Court Odomoke had the jurisdiction to entertain and try the Suit is hereby set aside. Equally the judgment of the Odomoke Customary Court in Suit No.
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OCC/6/2012 is set aside.
I make no order as to costs.
Other Citations: (2016)LCN/8963(CA)
