Alhaji Alfa Adaji & Ors V. Alhaji Umaru Amodu & Ors (1992)
LawGlobal-Hub Lead Judgment Report
KATSINA-ALU, J.C.A.
In the High Court of Justice. Ankpa, the appellants, as plaintiffs, commenced an action, by writ of summons dated 5th September, 1989, against the present respondents, as defendants, claiming the following reliefs:
“(1) A declaration that the plaintiffs are entitled to the Customary right of occupancy of the piece or parcel of land situate and extending from the Northern bank of the stream known and referred to as Aji Igbi on the South East of Okaba to the Otohu stream on the North West, and the economic trees thereon.
(2) A declaration that the people of Onupi who reside at and around Eti-Ede Okaba are customary tenants of Okaba-Community.
(3) A declaration that Aji-Ajigbi stream is the boundary between the lands of the Onupi Community who migrated from Ochecheke on the South East and the Okaba Community.
(4) A perpetual injunction restraining Onupi Community, their agents and or servants from denying the title of their landlord the Okaba Community.
(5) A perpetual injunction restraining Onupi Community, their agents and or servants from carrying on any further development on the land in issue without consent of Okaba Community first had and received.”
The parties filed and exchanged pleadings. But before the hearing of the substantive suit, the respondents, upon a preliminary objection by motion on notice, dated 20th day of February, 1990, filed in the court below, prayed for the following orders:
“(1) Striking out the suit No. AHC/12/89 for being statute barred.
(2) Dismissing the suit “as it is re-opening of a matter already decided by a court of competent jurisdiction.”
The application was supported by an affidavit together with a “photocopy” of the proceedings before the Atta Igala’s “B” Court in 1968 in Suit No. 1/68 between Alufa Adaji (m) of Okaba v. Umam Gogo Onupi (m) of Okaba, marked as Annexure “A” to the affidavit.
For their part, the plaintiffs/appellants filed a counter-affidavit, wherein Exhibits A to F were attached and marked accordingly.
The application marked as suit No.AHC/20M/90, was heard and determined on 22nd March, 1990. In his ruling, the learned trial Judge granted the first prayer and struck out Suit No.AHC/12/89 for being statute barred. The second relief, that is, to dismiss the suit on ground of Res Judicata was refused.
Being dissatisfied with the said decision, the plaintiffs/appellants have appealed to this Court upon four grounds of appeal.
Arising from the grounds of appeal, the appellants formulated four issues for determination which read as follows:
“(1) Whether, the appellant’s cause of action in the suit before the court below was statute barred.
(2) Whether, having regard to the materials before the learned trial Judge, the provisions of Section 9 of the Limitation Edict, 1988 enures to the benefit and advantage of the appellants.
(3) Whether the court below lacked jurisdiction to entertain the issue of the appellants action being statute barred.
(4) Whether or not the decision of the learned trial Judge is reasonable.
For their part, the respondents formulated the following issues:
“(1) From the reliefs formulated by the plaintiffs/appellants in their statement of claim, what consitutes the cause of action?
(2) When did the appellants’ cause of action accrue?
(3) Whether the cause of action of the appellants’ suit is statute barred?
I shall deal with the issues raised by the appellants together. The respondents, upon a preliminary objection sought for an order which was granted, that the substantive suit be struck out on the ground that same was statute barred. The respondents’ argument was predicated on section 3 of the Limitation Edict No.16 of 1988 of Benue State which provides as follows:
“(3) No action shall be brought by any person to recover any land after the expiration of ten years from the date which the right of action accrued to him or, if it first accrued to same person through whom he claims, to that person.”
Consequently the respondents relied on Annexure “A” attached to their affidavit in support of the motion on notice to establish the point that the cause of action had accrued since 1968, as main fest in the proceedings before the Ana Igala “B” Court in suit No. 1/68 between Alufa Adaji v. Umoru Gogo Onupi wherein the adverse possession to the land in dispute was successfully set up by the respondents.
In his ruling the learned trial Judge said inter alia:
“In Annexure A at page 3 the present 1st plaintiff who was the plaintiff in that suit stated under cross-examination as follows:
Yes, I remember I once lodged a complaint of about the same area before the Native Authority and members of the Igala N.A. Local Government were detailed to come to the place (same land) in dispute for settlement. The Local Government members then told us that since I have told them they were my relatives, they too could not ask them to go back to their former place of abode, and that they should be allowed to stay there, but now they are coming in more and more and that is why I sued him.’
Annexure A is pleaded in the Statement of Defence. The present 1st defendant who was the defendant in that suit insisted at page 22 of the said Annexure A, that he did not agree to leave the area for the plaintiff (also the present 1st plaintiff) because according to him, the area in dispute was within the area of his jurisdiction as a village head. If, therefore, the defendants denied the title of the Okaba people to the disputed portion or parcel of land since 1968 or before then they had set up adverse possession to the possession of the Okaba people who claim to be their overlords. The cause of action and the right to that action, accrued since 1968 or when they set up that adverse title from 1968 to 1989 is about 21 years, eleven years more than the period allowed by the Edict for the taking of this action to recover land.”
The learned trial Judge then concluded thus:
“The present suit in the circumstances is statute barred, the right to recover the land having accrued before, in or about 1968 more than 21 years before the action was taken. Having so held I am prepared to strike out this suit No. AHC/12/89 on grounds only of the limitation.”
For the appellants it was said that the suit in the court below was not statute barred as the alleged cause of action arose in 1989. This is so because the factual situation which gave the appellants the right to the judicial reliefs claimed in paragraph 30(1) to (5) of the Statement of Claim, is manifest in paragraphs 1 to 29 of the Statement of Claim. That being so, it was contended that the particular acts of the respondents committed in 1989, being the cause of the appellants’ action, cannot be said to be statute barred. See Egbe v Alhaji Abubakar Alhaji & Ors (1990) 1 NWLR (Pt. 128) 546.
By their statement of Claim, the plaintiffs/appellants claimed a number of declarations and injunctions to restrain the respondents from denying the title of their landlords, the Okaba Community over the piece of land in dispute and also to restrain the respondents from effecting any further development on the land. Paragraphs 19, 20, 21, 22, 23, 24, 27, 28 and 29 of the Statement of Claim read as follows:
“(19) The defendants then moved to their present settlement at Eti-Ede Okaba, led by Onu Ogbaje, Idakwo Okai and Adejo Ujo who was their gogo during the reign of Atta Igala Ameh Oboni about 32-49 years ago.
(20) The defendants on settling at Eti-Ede Okaba, refused to pay tax to the gogo of Okaba, stating that they also had their own gago.
(21) The defendants, however, undertook not to lay claim to any piece or parcel of land in their new settlement, to always recognise the landlordship of Okaba Community and not to harvest or reap the fruit of any economic trees on Okaba land, that is to say the piece or parcel of the land lying to the north of Aji-Ajigbi stream.
(22) The 1st plaintiff dissatisfied with the non-payment of tax to him by the defendants made report to the District Head of Ojokwu, and the matter went to Ana Igala’s Court but was later resolved by one Daniel Ogbadu the then member of Igala in the then Northern Region House of Assembly.
(23) Defendants were not asked to pay tribute to the plaintiffs because they (defendants) only lived on the land; they did not farm there and did not enjoy any economic trees therein.
(24) The plaintiffs have allocated pieces or parcels of land to people from defendants Community to build houses and or stores thereon at and around Eti-Ede Okaba. Evidence will be led at the trial to show who these plaintiffs are, the persons they allocated land to and for what purposes.
(27) The plaintiffs had continued to enjoy the economic trees on the land around and about Eti-Ede Okaba until 1976 when one Audu Eneche of defendants community brought suit No. 222/76 against Abu Ademu of plaintiff community in Grade 1 Area Court. Ankpa to claim palm trees at Eti-Ede Okaba.
(28) The above suit was decided in favour of Abu Ademu in the Grade 1 Area court, Ankpa; in the Upper Area Court, Ayangba in appeal case No UACA/91/76, and in the High Court of Justice Makurdi, in appeal case No.MD/93m/1976. The records of proceedings of suit No.22/76 of the Grade 1 Area Court. Ankpa of Appeal Case No. UACA/CVA/91/76 of the Upper Area Court, Ayangba, and No. MD/93A/1976 of the High Court of Justice Makurdi, are hereby pleaded.
(29) This year 1989, members of the defendant’s community have started laying claim to the land round and about Eti-Ede Okaba, interfering with the harvest and enjoyment of the economic trees on the land by plaintiff’s community, and doing acts inconsistent with their status on the land, such as constructing and opening an Eke Market, erecting notice boards showing Onupi town, erecting church and other buildings on the land in issue.”
As would be expected the defendants/respondents traversed these averments in their statement of defence. Paragraphs 14, 15, 17, 19, 21, 22, 23, 24, 25, 26 27 and 28 of the Statement of Defence read:
“(14) The defendants deny paragraph 19 of the claim and puts the plaintiffs to the strictest proof thereof.
(15) The defendants in answer to paragraph 19 of the claim aver that the Onu Ogbaje (from Enyikwala) mentioned even reigned as (Onu) Chief of Ojokwu before Adama Omagube ascended the same stool.
(17) The defendants admit paragraph 20 of the claim as it tends to show that defendants have never paid tax in all their existence to the gogo of Okaba.
(19) The defendants deny paragraph 21 of the claim and put the plaintiffs to the strictest proof thereof.
(21) The defendants have since they moved from Ichecheke been in effective possession and enjoyment of the land and it’s economic trees without any interruption until 1989 when the 2nd plaintiff single handedly formulated cases in various courts in Ankpa against members of defendants community.
(22) The defendants shall at the trial of the case lead evidence to show the acts of possession of members of Onupi Community on various parts of this land.
(23) The defendants deny paragraphs 22 and 23 of the claim and puts the plaintiffs to the strictest proof thereof.
(24) The defendants in answer to paragraph 22 of the claim avert hat the dispute between the 1st plaintiff and 1st defendant’s predecessor (Omaleabu Okeme) was not as to payment or non payment of tax but on the boundary between the two communities which they head gagos.
(25) The defendants further aver that the 1st defendant’s predecessor won the case and the boundary between the two communities was declared to be Utowu stream, which was between Onupi village and Okaba village.
(26) That since then the matter was thus resolved between the parties and nobody raised the issue or further contested the decision of the Igala Native Authority until 1968 when the 1st plaintiff instituted an action at the Attah Igala’s B Court against the 1st defendant seeking similar relief but the suit was dismissed on the 10th of February 1968. The proceeding of the said court shall be founded upon at the trial and is hereby pleaded.
(27) After the decision of the court as above, the 1st plaintiff did not appeal nor opt for an administrative re-settlement of that which was done under the leadership of the then Honourable Counsellor Daniel Ogbadu on behalf of Igala Native Authority.
(28) That the matter has since been forgotten until 1989, when the plaintiffs took out this writ before this honourable court”.
To determine whether the claim is statute barred or not, it is the plaintiff’s claim which has to be looked at. A critical perusal of the statement of claim and the statement of defence, would show that the parties have joined issue on this crucial point i.e. that the claim is statute barred. It thus became necessary for the court to hear oral evidence in this regard; it was premature to determine the issue on affidavit evidence. For example, it is vital, for a proper determination of the issue, to take evidence from the person or persons who settled the dispute in 1968 as to the nature of the settlement.
The decision or the learned trial Judge hinged on Exhibit A, the proceedings in the Attah Igala’s ‘B’ Court of 1968. As indicated earlier in this judgment, the learned trial Judge rejected the respondent’s objection that Exhibit “A” constituted estoppel per rem judicatam. He found that it “does not have any conclusive decision.
It only referred the suit for administrative settlement. It does not decide anything touching on the status of the parties thereto to the land in dispute.” The view of the learned trial Judge supports the case of the appellants. However the respondents in paragraph 26 of their Statement or Defence averred that the Anah Igala’s ‘B’ Court dismissed the suit on 10th February 1968. It seems obvious to me that on the state of the pleadings and material before the learned trial Judge there were triable issues which ought properly to have been determined after hearing oral evidence from the parties rather than relying on the affidavit evidence.
In view of the foregoing, this appeal is allowed. The ruling of the Court below is set aside. The case is remitted to the High Court of Kogi State for hearing and determination by another Judge. There shall be costs which I assess at N500.00 in favour of the appellants.
Other Citations: (1992)LCN/0136(CA)