Jacob Aboyeji V. Alhaji Yakubu Abudu Lateju (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment)

On the 27th day of February, 2009, in the Kwara state High court of Justice, Ilorin, the claimant/Respondent filed a writ of summons for and on behalf or the Abudu Lareju’s family claiming the following reliefs:

“(a) A declaration that the claimant’s family is the customary owner of all that portion of land measuring an Area of 214 OM X 148 6M X 192.2.M X 221.3M (3.796 IIQ) in dimension which the Defendant occupied without the notice, consent and approval of the claimants family.

(b) An order setting aside the certificate No. KW 10755 of occupancy unlawfully issued to the Defendant by the Kwara State Government in respect of portion of the land.

(c) A declaration that Certificate of Occupancy No. KW 10755 unlawfully issued to the Defendant by the Kwara State Government in respect of the portion of land is null and void”

After pleadings were filed and exchanged but before commencement of hearing, the appellant who was the defendant in that court filed a notice of preliminary objection pursuant to order 26 Rules 2, 3 and 4 of the Kwara state High court (civil procedure) Rules 2005 and under the Inherent jurisdiction of that court wherein he contends that:

“The claimant lacks competence to institute this (sic) proceedings and this Honourable Court lacks jurisdiction to entertain the claimant’s and consequently same should be DISMISSED in its entirety.”

The grounds upon which the objection is predicated are as stated herein:

“1, The sale of the above land to the Defendant had been finally concluded since 1977 between all the parties concerned that is the Claimant’s (Vendors) Late Alhaji Asana Lawal (Transferor) and the Defendant in this suit (Transferor) and the period is over 31 (thirty-one) years ago.

2. The action is Statute-barred and cannot be maintained by virtue of section 4 0f the Limitation Law Cap 89 Laws of Kwara State of Nigeria 1994.
3. The claimant who is suing through his family has no authority of his family to institute this case against the Defendant and the claimant never has any power of Attorney or authority from his family before instituting this action against the Defendant/Applicant in this suit.”

The Notice of preliminary objection is supported by a 16- paragraph affidavit. Paragraphs 11 and 12 of the said affidavit are germane for the just determination of the preliminary objection and they are therefore reproduced below:

“11. That when the Defendant took full possession of the land after it had been SOLD to him in 1977, and since that time in 1977 the Defendant had Fenced-Up all the (4) four sides of the land, and all the farmers on the land were all asked and were all requested by the Defendant to vacate the land and all their belongings including their crops etc and they all vacated and left the land, and since then none of them including the family of the Claimant farming on the land never returned back to the land since 1977 until the claimant instituted this action against the Defendant in February, 2007.

12. That since the time the Defendant took full possession of the land in 1977 and the period of time when this suit was filed in court on 28th February, 2007 which is clearly (30 years) thirty years, that nobody, and no member(s) of the claimant’s family including their past (3) three MOGAJI ABUDU who have been the heads of the claimant’s family in Ilorin ever challenged or disturbed the Defendant from his peaceful holding of the land since that period (1977).”

It is instructive to observe that written addresses were filed and exchanged by the parties in respect of the position taken by each. Needless to say on the 3rd of July, 2008, oral arguments for and against the application were advanced by the counsel and the learned trial judge adjourned the application for ruling on the 22nd of September, 2008.

In a reserved ruling delivered on the said date (26/09/2008) the learned trial judge, M. A. Folayan (J) held inter alia thus:

“It is my view that if the court should pick and choose any of the documents relied on by the defendant for the purpose of this case being statute barred it will occasion a miscarriage of justice because all those documents are being challenged by the claimant. And since the act of trespass has not ceased, the time has not cease to run and I therefore hold that this suit is not statute barred. The preliminary objection is hereby dismissed.”