Sylvanus Ekemezie V. Anikokwu Ifeanacho & Ors (2009)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

At the Anambra State High Court (hereinafter referred to as “the lower court”), the three respondents as plaintiffs suing in representative capacity instituted an action against the appellant as defendant thereat, also in representative capacity, claiming declaration of customary right of occupancy over a parcel of land called AGBO (Amadim). They also claimed N2,000.00 damages for trespass and perpetual injunction.

The facts which gave rise to this appeal are simply thus: The plaintiffs/respondents and the people they represent are members of AMADIM village in Achalla whereas the named defendant and some unnamed persons he represent are members of the UMUEZEDE VILLAGE in Achalla. Sometimes in 1958, the Umuezede people in Suit No. 0/111/58 instituted an action against the Amadim people claiming title for parcels of land which they (the Umuezede people) called IRUAGU, OKEOKWE and AMAJANA. Judgment was given in (Umuezede people) favour in the High Court. Being dissatisfied with the judgment against them, the Amadim people appealed to the Supreme Court in Appeal No. SC170/04 which after hearing the appeal set aside the judgment of the High Court in Suit No. 0/111/58 and dismissed the claims of Umuezede people over the entire parcels of land in dispute.

Then sometimes in 1971, the Amadim people instituted suit No. 0/93171 against the Umuezede people at the same High Court, this time claiming title of parcel of land called EGEDE. They also, claimed damages for trespass and injunction over the same land.

Judgment was given in their (Amadim people) favour over the said EGEDE land and its adjoining land called AGBO. Aggrieved by the decision of the High Court in Suit No. 0/93/71, the Umuezede people appealed to the Enugu Division this court which was then called Federal Court of Appeal in appeal No. FCA/E/68/77. This court after hearing the appeal varied the decision of the High Court and confirmed the award over the particular parcel of land in dispute which is called EGEDE by Amadim people. This court also set aside the award of the High court over the adjoining parcel of land which the Amadim people called AGBO. Dissatisfied with the decision of this Court, the Umuezede people unsuccessfully appealed to the Supreme Court vide appeal No.SC 74/79 in that the apex court dismissed their appeal and affirmed, in toto, the judgment of this court in the said suit i.e. FCA/68/77.

Sometimes in the year 2000, the Amadim people who are now respondents in this appeal freshly instituted suit No. A/230/2000 which is the subject matter of this appeal, against the people of Umuezede alleging that dated back to 1978 and subsequent dates, the latter people repeatedly committed acts of trespass in to Agbo parcel of land and erected some building structures thereon. They also claimed restraining and injunctive orders from the High Court sitting in Awka, Anambra State (hereinafter) referred to as (“the lower court”). It should be noted that the suit was initially instituted at the Customary Court Achalla, with suit No. ACC/1/2000 before the suit was later transferred to the lower court bearing Suit No. A/230/2000.

Pleadings were ordered, filed and exchanged. When the case was set for hearing in earnest, the defendants now appellants, filed a motion on notice dated 20/5/2002 praying for an order dismissing the suit or striking same out as an abuse of the court’s process.

The defendant/appellant also averred in paragraph 4 of the affidavit supporting the motion that the action was statute barred by virtue of Sections 7 (4) and 15 (2)(a) of the Limitation Act, Cap 522, of Laws of the Federation 1990. The said motion was keenly, contested by the plaintiffs/respondents. In the end, the lower court in a considered ruling dated 23/2/2006, dismissed the application and awarded N5,000 cost against the appellants. Being dissatisfied with the Ruling of the lower court, the appellants appealed to this court vide their Notice and Ground of Appeal dated 151 day of March 2006 and filed on 2/3/2006.

It needs to be stated that after the judgment of this court in Suit No. FCA/E/68/77 was delivered in which the land in dispute in the instant case was excised from the award of the trial court in Suit No. 0/93/71, the plaintiffs/respondents instituted many suits such as AA/60/78; AA/67/78 and AA/62/78 in respect of the same land in dispute which said suits were struck out by the lower court for want of diligent prosecution.

On 26th May 2002, the defendant/appellant filed a motion on notice dated 17/5/2002 urging the court to dismiss or strike out the above suit as an abuse of court process and also on the ground that the action was statute barred, hence the court lacked jurisdiction to entertain and determine it. The court heard the application and on 2nd day February 2006 dismissed it with N5,000 costs against the appellants.

Aggrieved by the ruling of the lower court, the appellants appealed to this court. The Notice of Appeal filed by the appellant dated 1st March 2006 contained some grounds of mixed law and facts and of facts. Eight grounds of appeal are contained in the said Notice of Appeal.

Briefs of Argument were filed by the learned counsel to the parties. In the Brief of Argument filed by the appellants on 10/11/2006 dated 8/11/2006 six issues were distilled for the determination of the appeal. Also following a preliminary objection argued in the Respondent’s Brief of Argument, the appellant also in response to it filed an Appellants’ Reply Brief on 27/11/2006 dated 26/11/2006.

The Appellant’s Brief of Argument dated 8/11/2006 was also filed on 10/11/2006 while the Respondents Brief of Argument dated 22/1/07 and filed on 24/1/07 contained two issues for determination of the appeal.

However, before I treat the issues for determination of the appeal raised by the learned senior counsel to the parties, I deem it proper to first of all deal with the Preliminary Objection which as I have said supra, the respondents had incorporated in their Brief of Argument. The Preliminary Objection was argued on pages 5 and 6 of his Brief of Argument. It is more ideal to first of all deal with the said Preliminary Objection because if in the end I find same to be sustainable, that will bring the matter to an end since the objection solely touches on the competence of the appeal hence it will be a futile exercise to consider the merits of the appeal. See Nigerian Navy vs. Garrick (2006) 2 NWLR (Pt.969) 69.