Chief E.W.J. Woherem Jp V Joel Emereuwa (2004)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C. 

What calls for decision in this appeal is whether or not the plaintiff’s claims against the defendants in the suit are statute-barred.

The plaintiff had on the 12th day of November, 1992 in the Port Harcourt Judicial Division of the High Court of Rivers State of Nigeria instituted an action against the defendants jointly and severally claiming as follows –

“(i) A declaration that the plaintiff is the bona-fide owner of the piece and parcel of land known as and called “Ohia Apamini” situate at Mgbuakara, Rumumini in Rumuokwuta measuring 3.126 Acres and more particularly described by survey plan No. ESP 6648 dated 30-10-66 and prepared by E. Eyo, licensed surveyor and counter-signed by Survey-General, Eastern Nigeria on the 13th of December, 1966.

(ii) 5 million naira being special and general damages for trespass.

(iii) Perpetual injunction against the defendants, their servants agents, privies or successors in title restraining them from further acts of trespass or howsoever interfering with the interest of the plaintiff on the said land.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged. Thereafter the defendants on the 21st April, 1993 filed an application before the trial court pursuant to the provisions of Order 24 rules 2 and 3 of the High Court (Civil Procedure) Rules of Rivers State of Nigeria, 1987 for an order to dismiss the plaintiff’s suit. The sole ground relied upon for this application was that the action is statute-barred by virtue of the provisions of section 1 of the Limitation Law No.7 of 1988 of Rivers State of Nigeria.

At the hearing of the application, the defendants, as applicants, relied copiously on the affidavit in support of the motion as well as several averments in their statement of defence.

The plaintiff, as respondent, for his own part, confined himself to the averments in his writ of summons and statement of claim.

The defendants, in particular, relied on the facts pleaded by them in their statement of defence and/or deposed to in the affidavit in support of their application to the effect that the land in dispute was purchased by the 1st defendant from the 3rd defendant in 1967 at the price of E370.00, that the land was later conveyed to the said 1st defendant by a deed of conveyance dated the 17th day of March, 1967 and that the conveyance was subsequently registered at the Lands Registry in the office at Enugu on the 8th June, 1967 as No. 18 at page 18 in Volume 462. They stated that the land, at the end of the civil war, was declared as abandoned property but that the Rivers State Government by an extra-ordinary Gazette No. 22 of the 6th October, 1987 released the property to the 1st defendant. The defendants claimed that ownership and possession of the land in dispute were on the 1st defendant and contended that the cause of action in the dispute arose in 1967 when the land was sold to the 1st defendant by the 3rd defendant.

The plaintiff filed no counter-affidavit to controvert the depositions in the affidavit of the defendants in support of their application but entirely relied, as already stated, on the averments in his writ of summons and statement of claim.

In his statement of claim, the plaintiff averred that he purchased the land in dispute from the owners thereof on the 30th December, 1964 and that he immediately went into possession and occupation thereof. The averments in paragraphs 9 – 11 and 13 – 17 of the plaintiff’s statement of claim are significant. These state as follows:-

“9. The plaintiff has been in undisturbed possession of the property for over 20 years to the knowledge of all the defendants.

10. Sometime in July 1992, a surveyor came unto the land to do some survey work and on inquiry by the plaintiff he claimed he was sent to the land in dispute by one Joel Enwereuwa, the 1st defendant, who claimed to be the owner of the land in dispute. Thereafter two men came to the land for clearing having not gotten the permission, consent, leave or licence of the plaintiff. The plaintiff sent the surveyor and the workers away.
11. The Commissioner of Police invited the 1st defendant and the plaintiff, which invitation was honoured on the 31st of July, 1992 and discussion centred on the ownership of the land in dispute. The 1st defendant stated he “bought” the land from the 3rd, 4th and 5th defendants. After hearing 1st defendant and plaintiff, the Commissioner of Police advised both parties to keep the peace and urged any aggrieved party to go to court.

12 . …