Brawal Lines Limited V. Dee-damor Development Company Limited (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MUSA MOHAMMED SAULAWA, J.C.A. (Delivering the Leading Judgment)

The present appeal is a fall-out of the ruling of the Delta State High Court, Asaba Judicial Division, delivered on May 2, 2012 in Suit No. W/181/2008. By the said ruling, the lower court coram T.C. Makwe, J.; dismissed the Appellant’s motion on notice filed on January 20, 2012 on ground that it was totally misconceived.

BACKGROUND FACTS:

The facts and circumstances surrounding the instant appeal are gleanable from the record of appeal. It is evident from the record, that on 30/6/08, the Respondent filed the said suit in the lower court seeking some declaratory and injunctive reliefs against the Appellant. By the Amended Statement of Claim thereof, dated and filed on 26/6/09, the Respondent claimed the following reliefs against the Appellant:

i. A declaration that the deed of assignment executed on 13/2/1995 between the Plaintiff and the Defendant herein over an indeterminate portion of the Plaintiff’s land covered by Certificate of Occupancy No. BDSR 793 dated 24/2/81 measuring approximately 1.2 hectares situate, lying and being at along Airport Road, Warri which land is clearly shown on Survey Plan No. HAIL/DT/644/2006 prepared by Thomas O. Dabiri (Registered Surveyor) and dated 17/4/2006 is null, void and of no effect whatsoever.

ii. An Order setting aside and/or nullifying the said deed of assignment executed between the Plaintiff and the Defendant herein.

iii. An Order of perpetual injunction restraining the Defendant, its agent, thugs, privies, employees, policemen or purported policemen acting on its instruction or complaint and/or any person(s) acting by or on behalf of the Defendant from entering into or trespassing into any part approximately 1.2 hectares situate, lying and being at along Airport Road, Warri which land is clearly shown on Survey Plan No. HAIL/DT/644/2006 prepared by Thomas O. Dabiri (Registered Surveyor) and dated 17/4/2006.

iv. N50,000,000.00 (Fifty Million Naira) damages and 10% interest thereon from Judgment until the entire sum is liquidated.

Earlier on 15/05/08, the Appellant had filed a suit No. W/132/2008, vide a Writ of Summons, in the lower court against the Respondent and one other person thereby seeking the following reliefs:

1. A declaration that the Plaintiff is entitled to a statutory right of occupancy in respect of ALL PART, parcel or piece of land lying, being and situate at along Airport Road, Ogunu, Warri, in Warri South Local Government Area of Delta State of Nigeria a place within the jurisdiction of this Honourable Court, and shown or covered by Survey Plan No. DON/DT/92/95 made by D.O. Nnamani, Registered Surveyor dated 19th December, 1995.
2. The sum of N575,000.00 (Five Hundred and Seventy Five Thousand Naira) only being special damages for damage and destruction at part of the Plaintiff’s concrete wall fence by the Defendant, his agents, servant or privies.
3. The sum of N10,000,000.00 (Ten Million Naira) only being general damages for the Defendant’s acts of trespass to the said piece or parcel of land.
4. An order of perpetual injunction restraining the Defendants whether by themselves or by their agents, servants, privies or otherwise howsoever from entering further despoiling, altering the Plaintiff from peaceable possession/use of the land pending the hearing and determination of the substantive suit.
5. Any other legal remedies or equitable relief which this Honourable court may find that the Plaintiffs are entitled to having regards to the justice and or circumstances of the case.

Both suits in question were transferred to Asaba Judicial Division of the lower court and accordingly consolidated on 18/11/08. Eventually, the two consolidated suits proceeded to trial, in the course of which the Respondent called a sole witness. On the part thereof, the Appellant equally called a sole witness who testified as DW1. However, on 20/01/12, at the conclusion of the testimony of DW1, the Appellant’s learned counsel, Dr. T.C. Osanakpo, SAN filed a motion on notice seeking the following reliefs:

1. An Order dismissing Suit No. W/181/2008: DEE DAMOR DEVELOPMENT COMPANY LTD V. BRAWAL LINES LTD.
2. AND for such further or other orders as the Honourable court may deem fit to make in the circumstances.

The motion in question was predicated upon the ground that –

The Suit No. W/181/2008 is statute barred under the Limitation Law of Delta State.

On 22/02/12, the learned counsel to the parties adopted their respective written addresses regarding the motion in question. Thus, resulting in delivering the vexed ruling on the said 02/05/12 by the lower court to the conclusive effect, thus:

A glance at particularly paragraphs 7, 8, 9, 10 and 11 of the Amended Statement of Claim reproduced above shows that the cause of action arose on 24/07/2007 when the Defendant started laid false claim to indeterminate portion of the land in dispute and recently attempted to gain entrance into the land with the aid of thugs purporting to be policemen. From 24/07/2007 to 30/06/2008 when this action was filed is about 11 months and 6 days not up to one year.