Pastor Luka Abimiku & Ors V. Pastor Abimiku Anzaku (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the Nasarawa State High Court of Justice delivered on 15.01.2002 by Ramadan J. wherein he dismissed the Notice of preliminary objection filed by the defendants/appellants.

The plaintiff/respondent commenced an action against the Defendants/Appellants at the Nasarawa State High Court of Justice. In his writ of summons dated 18th day of August 1999 and the Amended statement of claim dated 26th day of July 2008, the plaintiff/respondent claimed against the defendants/appellants as follows: –

(a) A Declaration that the plaintiff is the owner and entitled to the statutory right of Occupancy of all that piece or parcel of land lying and being situate along the Lafia-BAD Road in Keffin Wambai and more particularly shown, described, delineated and verged RED in the survey plan to be filed in this suit by the plaintiff. The annual rental value of the said land in dispute is N100.00.

(b) AN ORDER to the defendants to vacate or leave the said land in dispute for the plaintiff.

(c) GENERAL DAMAGE of the sum of N30,000.00 for trespass.

(d) A PERPETUAL INJUNCTION restraining the defendants by themselves, their servants, agents and/or privies from committing further acts of trespass to the said land in dispute.”

The defendants filed a joint statement of Defence and a counterclaim dated 18th day of March, 2001. See pages 17-21 of the record. Plaintiff in response filed a reply to the statement of defence and counter-claim, dated the 26th day of July, 2001.

Before the commencement of hearing of the suit, the appellants raised a preliminary objection to the effect that the action is caught by the limitation law, 1987 and therefore statute barred. After considering the submission of both counsel the learned trial judge in his ruling delivered on the 15th day of January 2002 dismissed the preliminary objection as lacking in merit.

Being dissatisfied with the said Ruling Defendants/Appellants lodged an appeal to this court vide Notice of Appeal dated 21st day of October, 2002 and filed same date. Pursuant to order of court made on 27.11.12, appellants filed an amended Notice of Appeal on 3/2/12 containing three Grounds of appeal.

In compliance with the rules of court parties exchanged briefs of argument. Appellants’ brief of argument settled by Bawa Dakup esq was filed on 13.02.2003. Respondent’s brief of argument settled by E. E Officha esq was filed on 5.05.2003. A reply brief was filed by the appellants on 6.02.2013, when the appeal came up for hearing each counsel adapted their respective briefs of argument. Appellants formulated three issues for determination as follows:

(a) From pleadings, when does the cause of action arose in this matter and is it not caught by the limitation Edict of Nasarawa State and Limitation Decree?

(b) Whether or not this suit offences (sic) S. 54 of E. Act therefore abuse of courts process

(c) Whether or not the trial court made specific findings on every issue raised in the preliminary objection.