Nigerian Institute for Oil Palm Research V. Chief Isaac Udofa Udom (2016)

LawGlobal-Hub Lead Judgment Report

CHIOMA EGONDU NWOSU-IHEME, J.C.A.

 The Respondent as Plaintiff at the trial Court instituted suit No. HUK/40/2009 against the Appellant as defendant claiming the reliefs set out in the writ of summons and statement of claim (see pages 3-9 of the Records).

The Appellant thereafter filed a motion on notice praying the Court to dismiss or strike out the Respondent’s suit for being improper, statute barred and an abuse of Court process. The Respondent filed a counter affidavit and written address in opposition of the said motion.
The Learned trial Judge in his ruling on the motion dismissed the Appellant’s motion and thereafter the matter proceeded to the pre-trial stage.

At the pre-trial conference on the 2/12/2010, the Respondent proposed that the Court should resolve the issue of who should be in possession of the land in dispute at the pre-trial stage. The proposal was based on the admission of the defendant in paragraph 5 (c) and (g) of her statement of defence.

On the 13/12/2010, the learned trial Judge delivered his ruling on the issue of possession at the pre-trial stage based

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solely on the admission of the Appellant in her statement of defence. This appeal is predicated on the two rulings of the trial Court.

The Appellant distilled two issues for determination thus:
“1. Whether the lower Court has jurisdiction to entertain the case of the Respondent.
2. Whether having regard to the entire circumstances of this case, the learned trial Judge was right in entering judgment for possession in favour of the plaintiff based on admission in a declaratory relief without taking evidence from the plaintiff to substantiate his claim.”

The Respondent on his part adopted the two issues as formulated by the Appellant.

In determining this appeal, I shall start with the first issue which touches on jurisdiction. A resolution of the issue on jurisdiction will determine whether or not there is need to go into the other issue.

?Counsel for the Appellant N. I. Omorodion Esq. contended that the case was statute barred contrary to Section 1 of the Limitation Law Cap. 78 Laws of Akwa Ibom State which stipulates ten years period for recovery of land or real estate, since the cause of action arose in 1955, while the action was

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filed in October, 2009, about 54 years after.

Counsel for the Respondent Comfort Gladstone Esq. on his side argued that the Appellant did not properly raise the defence of statute of limitation in paragraph 8(1) (a) of the statement of defence and that the facts as pleaded in the said paragraph were too scanty to sustain the plea. That the Appellant ought to have specifically pleaded the statute of limitation and led evidence to substantiate the averment.