Maza v. Awuna (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

ABDU ABOKI, J.S.C. (Delivering the Lead Judgment)

This is an appeal against the judgment of the Court of Appeal, Makurdi Division.

The Appellant, who was the Plaintiff at the High Court of Benue State, sought the following reliefs, against the one Mr. Peter NguorAkpooki, as Defendant:

1. A Declaration of title, over Plot of land covered by Benue State Government Certificate of occupancy, No. BN 798 ON TPS 018 in Makurdi Urban Development Area consisting of 2,704.41, square meters with Beacons Nos. MK. 4212, MK.4213, MK. 4214, and MK. 4215.
2. An Order of Court ejecting the Defendant from the said Plot of Land.
3. An Order of Injunction perpetually restraining the Defendant, his agents, servants, privies and any other person claiming through him from entering into the Plot of Land and interfering with the Plaintiff’s peaceful, enjoyment.
4. General Damages limited to the tune of N10 Million Naira being damages suffered by the Plaintiff on account of acts of trespass committed by the Defendant on the Plot of Land.
5. Any other legal or equitable remedy or remedies that would meet the justice of the case.

The Defendant filed his statement of Defence, and Counter-Claim, joining the Ministry of Lands and Survey, Makurdi, as a Defendant. The Counter-Claim is in the following terms:

1. A nullification of BN 789 for non-compliance with the conditions attached thereto.
2. A striking out of the action because it is time barred.
3. General Damages of N5 Million

At the end of trial, the trial Judge dismissed the Appellant’s claims and granted the counter-claim of the Respondent, particularly awarding the disputed land to him.

Aggrieved by this decision, the Appellant appealed to the Court below. The Court below, coram: Hon. Justice, A.O. Belgore, Hon. Justice, A.A. Yahaya and Hon. Justice, U.I Ndukwe- Anyanwu, JJCA, heard the appeal on the 10th day of March, 2009 and on the 29th of May, 2009, it delivered its judgment. It dismissed the appeal and affirmed the judgment of the trial Court, hence the Appellant’s further appeal to this Court.
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It is instructive to state at this juncture that Mr. AkpookiAwuna, the original Defendant died. The Respondent, Mr. Peter AguorAkpooki, the son of the deceased Respondent was granted leave by this Court to be substituted as the Respondent on the 24th January, 2017.

In line with the extant Rules and practice of this Court, parties filed and exchanged their briefs of Argument, which they adopted and relied on, as their arguments in support of their respective stance, when the appeal came up for hearing on the 21st of February, 2022.

The Appellant’s brief of argument was dated the 21st of May, 2010 and filed on the 24th of May, 2010. Christopher Okeke, Esq., adopted the Appellant’s brief of argument, settled by B.I. Wayo, Esq; wherein he put forward three Issues for this Court’s determination. They are:

1. Whether or not the Court of Appeal was right in its decision that by the provision of Section 3 of the Benue State Limitation Edict of 1988, the Counter-Claim of the Respondent as was instituted at the High Court was not statute-barred.
2. Whether or not the Court of Appeal was right, in considering possession of the land, simpliciter, rather than vested right in reaching the same decision as the High Court that the Respondent was a deemed holder of a Statutory Right of Occupancy?
3. Whether or not the judgment of the Court of Appeal delivered on the 28th May 2009 is a nullity?

These issues were adopted by the Respondent, in the Respondent’s Brief of Argument settled by S.A. Akpehe, Esq; dated 15th February, 2022, filed on the 16th February, 2022, but deemed filed on the 21st February, 2022.

Learned Counsel on both sides are ad idem on the issues calling for determination. I too adopt the Issues and will be thus guided.

ISSUE ONE
Whether or not the Court of Appeal was right in its decision that, by the provision of Section 3 of the Benue State Limitation Edict of 1988, the Counter-Claim of the Respondent as was instituted at the High Court was not statute-barred.

It is submitted for the Appellant that going by the provisions of Section 3 of the Benue State Limitation Edict of 1988, which states that all disputes affecting land must be brought to Court within 10 years from the date the cause of action arose, the counter-claim of the Respondent was statute barred, as the cause of action arose in 1981, and not in 2003, as erroneously held by the Court below.

Relying on the case of Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22, it is the contention of the learned Counsel for the Appellant that the lack of knowledge of the Respondent on when the cause of action arose, is not a defence to commence an action outside the limitation period. He cited also the case of Akibu v. Azeez (2003) FWLR (Pt. 149) 1470, and invited this Court’s attention to the testimony of DW3 at Page 318 of the Record.

This Court was urged to hold that the counter-claim was statute barred and resolve this issue in favour of the Appellant.