Ntoe Andrew O Ansa & Ors V. Chief E.H. Etim & Anor (2009)

LawGlobal-Hub Lead Judgment Report

MOJEED A. OWOADE, J.C.A.

This is an appeal from the Judgment of O.I. Itam, J. delivered on 26th day of July, 2007 in Suit No. HC/219/2009 at the Calabar Judicial Division of the High Court of Cross River State. By a writ of summons and statement of claim filed on 8th August, 2006, the Appellants as Plaintiffs claimed against the Defendants/Respondents jointly and severally as follows.

1. An order that the Plaintiffs are entitled to the certificate of Occupancy over the land in dispute described in Plan No. DAACO/CR/18/1, dated 29/11/77 and made by Dien Aniyom, Licensed surveyor.
2. An order of perpetual injunction restraining the Defendants by themselves, their agents, servants or assigns from further interfering, entering upon or dealing, with the land in dispute in any way without the consent and authority of the Plaintiffs.
3. An order for Account and return of all monies/proceeds collected over the land in dispute by the Defendants.
4. N15 Million Naira damages for trespass.

On 14th August, 2006, the Defendants/Respondents entered a conditional appearance to the Suit and followed up on 20th August, 2006 with a statement of defence and counterclaim.

The Defendants/Respondents’ also filed what he termed ‘Rejoinder’ on 19/1/07.

On 6/11/06, the Plaintiffs/Appellants filed a Reply to statement of defence and defence to counter claim.

Meanwhile, by paragraphs 21 – 23 of the Defendants/Respondents statement of defence and counter claim, they contend that.

21. Defendants intend at the trial of the Suit to challenge the competence of this suit and shall urge the court to strike out their claims and dismiss the suit.
22. Defendants aver that they intend to rely on all legal and equitable options open to them in the prosecution of this action.
23. Defendants aver that they are not liable at all to the Plaintiffs claim and shall urge the court to dismiss the entire action as frivolous and vexatious and with substantial cost.

On 12/2/07, the Defendants/Respondents filed a motion on notice praying the court to dismiss the Plaintiffs claim for being statute barred. The learned trial Judge entertained arguments on the Defendants/Respondents motion and on the 26/7/07 delivered his Judgment, which is contained at pages 167-177 of the record of appeal. Therein, he held first at page 175 that:

“From the totality of the averments in the statement of claim but especially paragraphs 3-10, as well as arguments of both counsel, it seems to me, and I so find and hold, that it is a common ground that it was in 1976 that is about 30 years before this action was brought in 2006. For the avoidance of doubts both the statement of claim and the writ complain of what the plaintiffs describe as an illegal survey plan dated 29th November, 1977 made by the defendants after they allegedly broke Into the Plaintiff’s land. It is sheer common sense to presume that the alleged acts of trespass preceded the alleged illegal survey.”

And at page 176, that:

“It is now trite that the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed that gave rise to the cause of action and by comparing the two dates. If the time on the writ is beyond the period allowed by the limitation law, then the action Is statute barred, meaning that it has become extinguished, by law and can no longer be maintained in the court. ……………….

It is now trite that where a defendant raises a defence that the Plaintiff’s action is statute barred and the defence is sustained by the trial court (as In the Instant case), the proper order for the trial court to make is an order of dismissal of the Plaintiff’s action and not merely strike it out……………………..

For the foregoing reasons, the defence raised by the defendants to the plaintiffs action is hereby sustained and the Plaintiffs action is hereby dismissed with N2,000 cost to the defendants”

Dissatisfied with this judgment, the Plaintiffs/Appellants filed a Notice and Grounds of Appeal containing four (4) grounds of appeal before this court on 7/9/07.

Appellant’s brief of argument dated 25/2/09 was filed on 27/2/09. Respondent’s brief of argument dated 2/4/09 was filed on 3/4/09. Appellants formulated one issue for determination, that is, Whether the trial Court was right to hold that this action founded on trespass was statute barred.