ALHAJI HARUNA SULE KALSHINGI VS ALH. SULEIMAN MASORO & ANORMay 6, 2021
MRS. ROSEMARY ONWUSOR VS YAHI MAINA & ORSMay 6, 2021
BABA ALH. KACHALLA KULLOMA VS NGUBDO SULE MODUBE & ORS
(2021) Legalpedia (CA) 61386
In the Court of Appeal
HOLDEN AT GOMBE
Tuesday, March 16, 2021
Suite Number: CA/G/94/2020
JUMMAI HANNATU SANKEY
TUNDE O. AWOTOYE
BABA ALH. KACHALLA KULLOMA || NGUBDO SULE MODUBE
AREA(S) OF LAW
PRACTICE AND PROCEDURE
SUMMARY OF FACTS
By a specially endorsed Writ of Summons and Statement of claim, the Appellant as Plaintiff before the High Court of Justice, Borno State, claimed from the Defendants/Respondents a declaration that the Claimant’s family is the rightful owner and has title, interest and rightful (sic) over that piece of land situated at Gwange III, New GRA, Bama Road Maiduguri, Borno State; a declaration that the 2nd Defendant’s act of selling the piece of land at Gwange III, New GRA Maiduguri Borno State to the 1st Defendant was illegal and void; Perpetual injunction restraining the Defendants by themselves or their privies, servants, agents or any person claiming title, interest or right over that piece of land situated at Gwange III, New GRA, Maiduguri, Bama Road Maiduguri, Borno State, from entering, claiming or selling whole or any part of the said land in dispute among other reliefs. The 1st Respondent denied the claim and joined issues with the Appellant. After pleadings were duly filed and exchanged, the Appellant adduced evidence in proof of his claim through six witnesses and two exhibits; while the 1st Respondent testified in his defence and tendered three exhibits. At the close of trial, the lower Court entered Judgment in favour of the 1st Respondent striking out the Plaintiff’s claim on the ground that it was statute-barred, in addition to holding that the land did not belong to the Plaintiff. Dissatisfied with this decision, the Appellant appealed to this Court vide his Notice and Grounds of Appeal.
Issues Of Determination:
Whether the trial Court was right when it struck out the suit on the ground that it was statute barred? Whether the trial Court was right when it also considered the claim and pronounced on the merits of the case.
“The law is trite that where the jurisdiction of a Court to entertain an action is challenged, that issue must first be settled by the Court expeditiously before it proceeds to attend to any other issue. This is because where a suit is incompetent and a Court is without jurisdiction to entertain same, any further proceedings in the suit would be an act in futility as the decision rendered therein would be null and void ab initio. This position of the law was aptly stated by his lordship, Nweze, JCA (as he then was) in Unilorin V Oluwadare (2009) 19 WLR 730, 733 as follows: “Jurisdiction is to a Court what a gate or door is to a house. That is why the question of a Court’s jurisdiction is called a threshold issue. It is at the threshold (that is, at the gate) of the temple of justice (the Court). To be able to gain access to the temple (that is, the Court), a prospective litigant must satisfy the gate keeper that he has a genuine cause to be allowed to ingress. Where he fails to convince the gate keeper, he will be denied access to the inns of the temple. The gate keeper as vigilant as he is always will readily intercept or query all persons who intrude in his domain. The above analogy may, fittingly, be applied to the invocation of the Court’s jurisdiction.” See also Okonkwo V INEC (2014) LPELR-22486(CA); BSADP V Abdullahi (2011) LPELR-9228(CA) 14-15; Onyema V Oputa (1987) LPELR-2736(SC) 38-39, F-C, per Oputa, JSC.
“Thus, jurisdiction is fundamental and crucial for where there is a want of jurisdiction, the proceeding thereafter will be affected by a fundamental vice and would become a nullity, however well conducted they might otherwise be.
“A Limitation Law or Act removes the right of action, the right of enforcement and the right to judicial relief and leaves a plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is statute-barred. Accordingly, where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the time prescribed by such statute – Araka V Ejeagwu (2000) 15 NWLR (Pt. 692) 684. Therefore, whereas a plaintiff may have a cause of action, he loses the right to enforce that cause of action by judicial process because the period of time laid down by the Limitation Law for bringing such action had elapsed – Savannah Bank V Pan Atlantic (1987) 1 NWLR (Pt. 49) 212; Okere V Amadi (2005) 14 NWLR (Pt. 945) 545.
“Any omission or failure to institute an action within the time so stipulated denies the Court the jurisdiction to entertain it. The operation of a limitation statute is of strict liability. Once the time provided by statute within which to institute an action has run out, the right to institute the action is lost forever – WAPC Plc V Adeyeri (2003) 12 NWLR (Pt. 835) 517); Obembe V Wemabod Estates Ltd (1977) 5 SC.
“The philosophy behind the Limitation Laws was stated by Niki Tobi, JCA (as he then was) in Mercantile Bank (Nig) Ltd V Feteco (1998) 3 NWLR (Pt. 540) 143, 156-157 thus: “A statute of limitation is designed to stop or avoid situations where a plaintiff can commence an action anytime he feels like doing so, even when memory would have normally faded and therefore failed. Putting it in another language, by the statute of limitation, a plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a defendant. The different statutes of limitation which are essentially founded on the principles of equity and fair play will not avail such a sleeping or slumbering plaintiff…” Thus, the purport and essence of a limitation law is that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the period prescribed. An action instituted after the expiration of the prescribed period is said to be statute-barred. The essence is that a legal right to enforce an action is not a perpetual right but a right generally limited by statute. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law had elapsed. Put another way, the conspicuous effect of a Limitation Law is that legal proceedings cannot be properly and validly instituted after the expiration of the period. In the instant case, the provision relied on was Section 15(2) (1) (a) of the Limitation Act which provides – “NO action by a person to recover land – Shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it is first accrued to some person through whom he claims, to that person.”
“I agree with the submission of learned Counsel for the Appellant that since Government had acquired the land in dispute in 1981 and paid compensation to Kachalla Kulloma, the Appellant’s father on 28-01-83, his (the latter’s) right or interest in the land was extinguished. The Supreme Court per Ogwuegbu, JSC in Jibona V Kolawole (1996) 10 NWLR (Pt. 476) 22, put it this way: “On the reading of the Limitation Law as a whole, they do not merely deny the right of action, they completely extinguished an existing right at the expiration of twelve years from the accrual of the right of action.” Kachalla Kulloma therefore had no title to pass on to the Appellant at his death in 2015, in line of the principle of law expressed in the Latin maxim: nemo dat quod non habet meaning, no one can give what he does not have – Section 34(5) of the Land Use Act (supra); GCM Ltd V Travellers Palace Hotel (2019) 6 NWLR (Pt. 1669) 507, 533, G-H. Thus, even though the Appellant may reserve the right to challenge the acquisition of the land under Section 28 of the Land Use Act (supra) as he belatedly sought to do in his Brief of argument, it is a futile exercise since the action is statute-barred, having been brought more than 12 years after the compulsory acquisition of the land by the Borno State Government. What this means is that while the Appellant who may have had a cause of action, he has lost the right to enforce that cause of action by judicial process because the period of time laid down by the Limitation Law for bringing such action had elapsed – Savannah Bank V Pan Atlantic (1987) 1 NWLR (Pt. 49) 212; Okere V Amadi (2005) 14 NWLR (Pt. 945) 545.
“In Alafia V Gbode Ventures Ltd (2016) LPELR-26065(SC) 16-17, the Supreme Court per Galadima, JSC, exhorted Courts lower in hierarchy to the Supreme Court, thus: “While this Court being the final Court of Appeal can afford not to pronounce on other issues placed before it where it finds that the Court lacked jurisdiction, the Court of Appeal whose decision on jurisdiction may be faulted by this Court should not be debarred for considering and pronouncing on such other issue(s) raised in the Appeal. It should pronounce on them, and the Court below has rightly done so in this case.” See also Garba (Rtd) V Mohammed (2016) LPELR-40612(SC) 56-57, per Kekere-Ekun, JSC; Arulogun V COP, Lagos State (2016) LPELR-40190(CA) 9, per Augie, JCA (as he then was); Dilli V Adamu (2016) LPELR-40227(CA) 25, per Ekanem, JCA; Brawal Shipping V Onwadike (2000) LPELR-9258(SC) per Uwaifo, JSC; State V Ajie (2000) LPELR-3211(SC) 9, per Onu, JSC; & Katto V CBN (1991) 9 NWLR (Pt. 214) 126, 149.
STATUS(ES) REFERRED TO
Land Use Act 1978|Limitation Act|
A.Babawuro, Esq. appears with A. Ahmed Esq. for the Appellant, holding the brief of A. Mohammed Esq.|Auwal Idris Esq. appears for the 1st Respondent, holding the brief of Y.G. Bello Esq.|B.Y. Yusuf Esq., Assistant Director of Civil Litigation, Borno State Ministry of Justice, appears for the 2nd and 3rd Respondents.|