Mr. Emmanuel Atunka & Anor V. Undie Aboki & Anor (2016)
LawGlobal-Hub Lead Judgment Report
CHIOMA NWOSU-IHEME, J.C.A.
The Respondents, as claimants, in the Obudu Judicial Division of the Cross River State High Court instituted a suit against the Appellants as Defendants for declaration of land known as Ungwu-Abeb, an order of perpetual injunction against the 1st and 2nd Appellants, Ten Million Naira general damages for trespass to the said land.
The Respondents filed their writ of summons and statement of claim on the 20/6/12.
Appellants filed their joint statement of defence wherein they pleaded at paragraph 39 that they would contend at the trial that the claimants’ action is statute barred.
Consequently, Appellants filed a motion on notice along with a written address on the 12th of December, 2012 to determine the issue whether or not the action is statute-barred determined before the hearing of the substantive suit.
Respondents filed a counter affidavit with their response on the 18th of December, 2012.
On the 25th of February, 2013, Justice C. E. Ita in a considered Ruling dismissed the preliminary objection. This appeal is predicated on that Ruling.
?The Respondents in
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their claim have alleged that they are the owners of a parcel of land known as and called “Ungwu-Abeb” along Atiekpe/Ikwomikwu Road, Atiekpe village, Obudu which they inherited from their grandfather Akomaye Nick (a.k.a Ibonle).
The Respondents allege that the 2nd Appellant among other family members, trespassed on the land in dispute in 1996 and commenced building a brick house thereon.
It is on Record that there were efforts at settlement by the parties as well as litigation. Despite having knowledge that the 2nd Appellant was building on the land, the Respondents did not sue the Appellants for the said land.
However, in 2012, the Respondents went to Court claiming a declaration that the said land which to their knowledge the 2nd Appellant started building on since 1996 belongs to them, they also prayed for injunction and damages for trespass.
?Appellants on their side have asserted that the land is Udie-Amu’s family land held by Ateleye Imbufe and Likoliwhe who were children of Imbufe Itungbe who was a descendent of Utsese who founded the whole of Atiekpe, while Ibonle was a stranger in Atiekpe who was accepted as an immigrant. (Pages
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77-78 of the Records).
Before the hearing of the substantive matter, the Appellants challenged the competence of the suit on grounds that it was statute-barred. This constituted the subject matter of the motion on notice which the Learned trial Judge dismissed. That dismissal culminated in the filing of this appeal.
The Appellants’ counsel E. A. Abua Esq consequently distilled two issues for determination thus:
“(i) Whether or not the lower Court rightly dismissed the preliminary objection challenging the competence of the suit.
(ii) Whether or not the jurisdiction of the lower Court to hear and determine the matter is based on the main claim in the suit or the ancillary reliefs therein.”
Counsel for the Respondents U. C. Duru Esq adopted the two issues as distilled by counsel for the Appellants.
In his argument on the foregoing issues, Learned counsel for the Appellant E. A. Abua, contended that in determining the issue of jurisdiction, the trial Court must look at the writ of summons and the statement of claim and not the statement of defence as argued by counsel for the Respondents.
He cited ADEKOYA V. FED. HOUSING
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AUTHORITY (2008) 4 SCNJ 1 at 12 while referring specifically to paragraph 22 of the statement of claim at page 9 of the Record of Appeal.
Counsel argued that having averred that in 1996 the 2nd Defendant (2nd Appellant) trespassed into his (Respondents) land and commenced development thereon by building a brick house, that since the Respondents commenced this action in 2012, about sixteen years after that the matter was statute barred and therefore robbed the trial Court of jurisdiction to entertain the suit.
On the second issue, counsel submitted that reliefs (b) and (c) are ancillary to relief (A) which is the main relief. That where a Court lacks jurisdiction to entertain the principal claim or relief in a suit before it, then it automatically lacks the jurisdiction to hear the ancillary reliefs contained in the suit. He referred to TUKUR V. TARABA STATE (1997) 6 SCNJ page 81 at 113.
In his reply, Learned counsel for the Respondents, U. C. Duru Esq posited that Appellants’ trespass on the Respondents’ land is continuous and gives rise to a fresh trespass, which according to counsel is actionable.
?He submitted that the order of the High
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Court of Obudu in suit No. H/1A/2003 had nullified and settled the first act of trespass committed previously by the Appellants on the Respondents’ land in 1996 and any subsequent or further entry into Respondents’ land constitute fresh trespass which is actionable by the Respondents.
He argued further that subsequent trespass of 2009 and 2010 are considered as fresh trespass by the Respondents and that was what gave rise to the suit in 2012.
Counsel posited that relief (c) is not ancillary claim but a substantive claim since it prayed the Court for an order to demolish the said illegal structure on the land which counsel described as trespass on its own and actionable and therefore not tied to relief (a). He however pointed out that should any of the reliefs be ancillary, it should be claim (B) which prayed for injunction to restrain the Appellants from further trespass.
While urging, the Court to dismiss the appeal, he described the arguments of Appellants’ counsel as purely technical.
To determine whether the suit instituted at the trial Court was statute barred or not, reference must be made to relevant paragraphs of the statement of
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claim filed by the claimants themselves at the trial Court. Paragraph 22 of the statement of claim at page 9 of the Records states thus:
“Claimants aver that in 1996, 2nd Defendant amongst other family members, trespassed into claimants’ family land at Ungwu-Abeb and 1st Defendant particularly through 2nd Defendant commenced development on the land by building a brick house which was still at the foundation level.”
The above paragraph was lifted from the claim of the claimant as presented at the Court below.
It is also clear that the Respondents as claimants instituted this action on the 20th day of June, 2012, in suit No. HJ/3/2013.
Section 1 of Part 1 of the Limitation Law of Cross River State, 2004 provides that no action for the recovery of land can be brought after ten years from the date the cause of action arose. It states as follows:
“No action shall be brought by any person to recover land after the expiration of 10 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 Respondents have argued that subsequent trespass of 2009 and
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2010 were considered as fresh trespass and that was what gave rise to their instituting the action in 2012.
This submission to me is quite at variance with paragraph 22 of the statement of claim which clearly stated that the 2nd Defendant (2nd Appellant) herein among other family members trespassed into the said land and the said 2nd Defendant commenced development on the land by building a brick house which according to the Respondents was still at the foundation level. If subsequent arbitration or litigation settled that first trespass as argued by the Respondents, then one wonders why the Respondents still made reference to 1996 as when the first trespass occurred. The Respondents still prayed the trial Court in their relief (c) for an order directing Defendants (Appellants) to demolish and evacuate the illegal structure on the claimants (Respondents’) land.
It is also clear from the said paragraph 22 of the statement of claim that Respondents instituted the action at the lower Court for the recovery of land. From 1996 – 2012 when the suit was instituted is about sixteen years.
It is trite that where a Claimant goes to Court after the period
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limited by statute upon the accrual of his right of action, then he has lost the right to enforce the claim. See WILLIAM V. WILLIAMS (2008) All FWLR (Pt. 433) pg. 1245 at 1248.
“Limitation of action is determined by looking at the writ of summons or statement of claim alleging when the wrong was committed which gave the plaintiff the cause of action and by comparing that date on which the writ of summons was filed… In order to determine whether an action is statute barred or not, the Court must be involved in the exercise of calculating the years, months and days to the minutest detail.”
UKIRI v. FED. CIVIL SERVICE COMMISSION (2011) All FWLR (Pt. 577) pg. 783 at 794.
Once the limitation period expires, a claimant’s action becomes barren, sterile and totally unenforceable and no Court has jurisdiction to entertain it.
“Where by operation of law, a cause of action is no longer extant, an application for writ of summons by a prospective plaintiff and the issuance of the said writ, based on a claim that has gone stale or become extinguished, would be null and void ab initio and thus incapable of conferring jurisdiction on the Court. Such a
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Court will lack both competence and jurisdiction to adjudicate thereon.”
See CRUTECH V. OBETEN (2012) NWLR (Pt. 641) pg. 1567 at 1583.
The claim at the Court below was therefore null and void and not capable of conferring jurisdiction on the Court for the simple but unfortunate reason that it was caught up by the statute of limitation law and thus have become incurably stale having been institute sixteen years after the cause of action accrued as clearly shown in paragraph 22 of the statement of claim.
On whether reliefs (b) and (c) are independent or ancillary to relief (a), it may be necessary to reproduce the said reliefs as contained in the statement of claim as follows:
“a) A declaration that the Claimants’ family are the owner in title and in possession of all that land known and described as “Ungwu-Abebi”, along Atiekpe/Ikwonikwu Road, Atiekpe village, Obudu and bounded in the North and to the right by Cosmas Ugbaka, South and to the left by Atiekpe/Ikwonikwu Road and Ada Ashikong, East by Ingio Ashindiaye and West by Abeb stream respectively.
b) An order of perpetual injunction restraining the 1st & 2nd Defendants, their
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agents, servants, privies, personal representatives, assigns Executors and any person(s) acting through or deriving his or her authority from Defendants from further entry into and interfering with Claimants’ enjoyment of their land, the subject matter of this action.
c) An Order of this Honourable Court directing Defendants to demolish and evacuate the illegal structure erected by 1st Defendant through the permission of 2nd Defendant on Claimants’ land at Ungwu-Abeb Atiekpe village, Obudu.
d) The sum of Ten Million Naira (N10,000,000,00) only, against the Defendants, being general damages for trespass into Claimants’ land at “Ungwu Abeb” Atiekpe village, Obudu.”
Looking at the above reliefs, it is obvious that relief (a) is the main or principal relief for declaration of the statutory Right of Occupancy, while relief (b) is for injunction. Relief (c) is prayer for the demolition of the said illegal structure (Brick house) on the land and claim (d) is for damages. Reliefs b, c and d are dependent on relief A which I consider the principal relief. None of the other reliefs can stand independent of the principal relief as they are tied to the
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principal relief like Siamese twins.
If the principal claim fails, the other claims which revolve round the principal claim automatically crash. I therefore do not agree with the learned trial Judge when he stated at page 134 of the Record as follows:
“Claim ‘C’ herein is seeking an order of Court directing the 1st Defendant to demolish that building. That trespass was alleged to have taken place in 2010. This action was filed in 2012. At lease Claim ‘C’ on the statement of claim is not statute barred.”
Looking at paragraph 22 of the statement of claim already reproduced earlier in this judgment, it cannot be said that the trespass was alleged to have taken place in 2010, when the Claimants (Respondents) themselves clearly stated that “1st Defendant particularly through 2nd Defendant commenced development on the land by building a Brick house.” It follows therefore that building of the brick house commenced in 1996 and not 2010. Any testimony in Court that the Brick house was started in 2010 is clearly at variance with the statement of claim and the law says it must be jettisoned. The argument that the first trespass was settled by Obudu
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Traditional Council is puerile. I say so because if in 2010 the Claimants are still praying the Court to demolish the illegal structure (Brick House) on the said land, then one wonders what the Traditional Council settled.
Where a Court lacks jurisdiction to entertain the principal claim or relief in a suit before it, then it is bereft of jurisdiction to hear the ancillary reliefs contained in the said suit.
“Since proceedings in respect of the principal claims could only have been validly and properly initiated by writ of summons, the subsidiary claims ought to have been struck out along with the principal claims, all being incompetent.”
See TUKUR V. TARABA STATE (1997) 6 SCNJ pg. 81 at 113.
Again, the above principle of law as re-echoed in WESTERN STEEL V. WORKERS UNION (1987) 2 SCNJ page 9.
“The claim for injunction is ancillary and subsidiary to the main claim and therefore does not stand alone. Therefore the jurisdiction of the Court will be determined by the subject matter of the claim and not the claim relating to injunction which was an ancillary relief and depends on the primary claim.”
In PDP V. SYLVA (2012) All FWLR
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(Pt. 637) p. 606 at 644 Rhodes-Vivour (JSC) reiterated the same principle when he stated as follows:
“A Court cannot hear and determine ancillary claims if it has no jurisdiction to entertain the main claims and if the ancillary claims will clearly involve a substantial discussion of the main claims.”
From all I stated above, it follows therefore that when the principal claim is statute-barred, the ancillary claims automatically suffer the same fate.
It is clear that claims b, c and d as claimed by the Respondents at the lower Court are ancillary and subsidiary to the principal or main claim which is relief (A). It was therefore erroneous for the learned trial Judge to assume that “at lease claim ‘C’ on the statement of claim is not statute barred”. This is because where the main claim is statute barred, the ancillary claims fail with it.
If an action is statute-barred and therefore cannot be validly instituted and initiated, the proper order to make is to strike it out as being stale and incompetent. The Learned trial Judge had no justification trying to apply “damage control” by trying to pick and chose which claims to save.
?In the
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final result, the two issues are resolved against the Respondents and in favour of the Appellants. There is merit in this appeal and it is hereby allowed.
The Ruling of the Obudu Judicial Division of the Cross River State High Court delivered by E. E. Ita, J, on the 25th of February, 2013, in suit No. HJ/3/2013 which was given without jurisdiction is hereby struck out. I make no order as to costs.
Other Citations: (2016)LCN/8732(CA)
