Legalpedia Citation: (2024-02) Legalpedia 54755 (CA)

In the Court of Appeal

Holden At Makurdi

Fri Feb 16, 2024

Suit Number: CA/MK/03/2023

CORAM

Cordelia Ifeoma Jombo-Ofo Justice, Court of Appeal

Biobele Abraham Georgewill Justice, Court of Appeal

Ibrahim Wakili Jauro Justice, Court of Appeal

PARTIES

IHS NIGERIA LIMITED

APPELLANTS

1. MR. LAMIDO MAIKASUWA LADAN
2. MTN NIGERIA LIMITED

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND LAW, LIMITATION LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The 1st Respondent, as Claimant, had by his Statement of Claim, filed before the lower Court, claimed declaration of title to land, an order of injunction and damages against the Appellant and the 2nd Respondent, as Defendants.

The Appellant raised a preliminary Objection challenging the 1st Respondent’s suit for being statute barred and prayed for the striking out of the 1st Respondent’s suit. The Appellant in this appeal has his connection to the land in dispute through a lease by the 2nd Respondent.

The lower Court proceeded to hear the Appellant’s Notice of Preliminary Objection and delivered its ruling, in which it dismissed the Appellant’s Notice of Preliminary Objection for lacking in merit and held firmly that the 1st Respondent’s suit was competent and therefore, not statute barred as challenged by the Appellant, hence this appeal.

HELD

Appeal allowed

ISSUES

1. Whether by the Writ of Summons and Statement of Claim of the 1st Respondent before the lower Court, wherein the cause of action was said to have occurred in 2002, 2018, 2019 and 2021, the suit was statute barred by the Plateau State Edict No. 16 1988 applicable in Nasarawa State?
2. Whether the lower Court was right in law to have held that the Writ of Summons was duly endorsed and the argument against it is misconceived?

RATIONES DECIDENDI

DAMAGES AND TRESSPASS – THE IMPLICATION OF A CLAIM FOR DAMAGES AND TRESSPASS

In law, from the averments of the 1st Respondent, it is clear, and I so firmly hold, that the principal claim of the 1st Respondent against the Appellant and the 2nd Respondent is for declaration of title to the land in dispute. I find the claim for damages for trespass to be rooted in the claim for declaration of title to land. In law, by the mere claim for damages for trespass and order of perpetual injunction, the 1st Respondent clearly puts his title to the land in dispute in issue. It follows therefore, the claim of the 1st Respondent was principally rooted in a Claim for Declaration of title to land. – Per B. A. Georgewill, JCA

CAUSE OF ACTION – WHEN THE CAUSE OF ACTION ROSE AGAINST A PARTY WHOSE CONNECTION TO A LAND IN ISSUE IS A LEASE

…the Appellant, having traced his connection to the land in dispute by means of a lease in 2015 from the 2nd Respondent, the law is that the cause of action of the 1st Respondent against the Appellant will relate back to the year the 2nd Respondent who leased the land to the Appellant came into the land in dispute. – Per B. A. Georgewill, JCA

CAUSE OF ACTION – WHEN THE CAUSE OF ACTION ARISES WHERE A PERSON CLAIMS THROUGH ANOTHER PERSON

By the provision of Section 3 of the Limitation Law of Plateau State 1988 as applicable in Nasarawa State, if a person claims through another person, then the cause of action would relate to when the person from whom he claims, entered the land. In the instant case, the Appellant averred that he came into the land in dispute in the year 2015 by means of a lease from the 2nd Respondent who had gone into the land in dispute to erect its Telecommunication Mast in 2002. It follows therefore, the cause of action against both the 2nd Respondent, as well as the Appellant accrued to the 1st Respondent in the year 2002. – Per B. A. Georgewill, JCA

LIMITATION PERIOD – WHEN AN ACTION IS COMMENCED OUTSIDE THE LIMITATION PERIOD

Now, the issue of limitation of action is a threshold question of jurisdiction and competence, jurisdiction on the part of the Court, and competence on the part of the 1st Respondent’s suit. In law, once it is found that an action had been commenced outside the limitation period prescribed by law, such an action is said to be statute barred, stale and thus, dead on arrival. It leaves the cause of action of such a Claimant bare and unenforceable in a Court of law. This is to obviate the need for Defendants to grapple with claims which have become stale and for which material documents and other relevant evidence might have been lost. See Section 3 of the Limitation Law of Plateau State 1988 as applicable to Nasarawa State. See also Nwadiaro V. Shell Development Coy. Ltd (1990) 5 NWLR (Pt. 150) 322 @ pp. 337 – 339, where this Court per Kolawole JCA had stated inert alia thus:

“One of the principles of the Statute of Limitation is that those who go to sleep on their claims should not be assisted by the Courts in recovering their property. But another equally important principle is that there shall be an end of these matters, and that there shall be an end to stale demands.”

See further M. L. Mande Enterprises Limited V. The Registered Trustees of Seventh Day Adventist Church in Nigeria & Ors (2022) LPELR – 57435(CA), Amata V. Omofuma (1997) 2 NWLR (Pt. 485) P. 93 @ p. 113, Obiefuna V. Okoye (1961) 1 SCNLR 144, P. N. Udoh Trading Co. Ltd V. Abere (2001) 11 NWLR (723) 114, Angadi V. PDP (2018) 15 NWLR (Pt. 1641) 1.

I saw it earlier argued somewhere in the 1st Respondent’s brief that the issue of limitation of action is a matter for evidence to be led at the trial by the parties. However, I had earlier stated the position of the law on limitation of action, which is that limitation of action is a threshold question of jurisdiction and competence. Thus, being a threshold issue of jurisdiction, it is in law far too important to be circumscribed and or limited to the pleadings of the parties. – Per B. A. Georgewill, JCA

JURISDICTION – THE IMPORTANCE OF JURISDICTION IN ADJUDICATION – WHEN AN ACTION IS COMMENCED OUTSIDE THE LIMITATION PERIOD

Indeed, in law, the question of limitation of action being a threshold issue which affects the jurisdiction of the Court and therefore, its application cannot be limited to specific pleadings and or the Rules of Court. It can even be raised viva voce, since no Court has the competence to adjudicate the merit of a cause or matter which is incompetent before it no matter its zeal to render substantial justice on the merit. Indeed, jurisdiction is the epicentre and soul of adjudication. See Ajayi V. Adebiyi (2013) 3 WRN 1, where the Supreme Court per Adekeye JSC had stated inter alia thus:

“Limitation law and Locus Standi are both threshold issues which can be raised anytime or for the first in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court…..It transcends any High Court Rules. It can be raised by preliminary objection at any stage of the proceedings before any Court by any of the parties or even suo motu by the Court.”

See also M. L. Mande Enterprises Limited V. The Registered Trustees of Seventh Day Adventist Church in Nigeria & Ors (2022) LPELR – 57435(CA), P. N. Udoh Trading Co. Ltd V. Abere (2001) LPELR – 2893 (SC), Sulgrave Holdings Inc & Ors V. FGN & Ors (2012) LPELR – 15520 (SC), Egbe V. Adefarasin (No. 1) (1985) 1 NWLR (Pt. 3) 540.

My Lords, the law considers all claims commenced after or outside the limitation period as stale and as dead and thus awaits the summons from on high on the resurrection day but until then it remains stale and unenforceable in a Court of law. The rationale for this position of the law was explained in greater details by this Court in Ikosi Industries Limited V. Lagos State Government &Ors (2017) LPELR – 41867(CA), inter alia thus:

“…The rationale for limitation of time for the commencement of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost or unavailability of materials evidence or death or unavailability of vital key witnesses, due to no fault of his, necessary for his defense which would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law.” – Per B. A. Georgewill, JCA

CAUSE OF ACTION – WHETHER A CAUSE OF ACTION IS DIFFERENT FROM THE EFFECT OR CONSEQUENCE OF THE WRONG WHICH MAY BE RECURRENT

My Lords, it is the law that an alleged wrong or cause of action is clearly distinct and different from the effect or consequences of the wrong which may be recurrent. Thus, in law where an act complaint of by a Claimant in his pleadings, such as a building, or as in the instant case, a completed Telecommunication Mast, is completed, the issue of continuing wrong does not arise. A continuous wrong may result from wrongs which in themselves are in a continuous state of being committed and not completed before action was commenced.

For instance, where a Defendant enters upon the land of a Claimant to put up a building, but which building is under construction and continued well outside the limitation period and is still under construction, an action may lie well outside the limitation period for the continuous act of the Defendant on such a land in dispute. It may also amount to continuous injury where for instance a Defendant enters into the land of a Claimant to use it as a dumpsite, and which is put in use until well outside the limitation period. Furthermore, a continuing wrong or injury would also arise where for instance a Defendant enters into the land of a Claimant and digs a borrow – pit, which remained in use and or was never filled up till after the limitation period.

My Lords, in all the above or such instances, it is my view, that such wrongs would constitute continuing wrongs or injury, for which an action can be commenced competently outside the limitation period. – Per B. A. Georgewill, JCA

LIMITATION PERIOD – DUTY OF THE APPELLANT TO COMMENCE HIS ACTION WITHIN THE TIME OR PERIOD OF LIMITATION PRESCRIBED BY LAW

The law neither operates in such a nebulous manner nor does it allow the 1st Respondent such latitude and or liberty to enforce his perceived rights against the 2nd Respondent through whom the Appellant claims to be a lessee in perpetuity. In law, even efforts made at settlement, including writing letters after the cause of action has arisen, do not stop or prevent the limitation time from running to keep the right of the Claimant running in perpetuity. He must commence his action within the time or period of limitation as prescribed by law.  – Per B. A. Georgewill, JCA

CAUSE OF ACTION – CAUSE OF ACTION DIFFERENTIATED FROM THE CONSEQUENCE OF THE ACTION

The finding of the lower Court on continuing injury and or trespass shows, with due deference to the lower Court, a misunderstanding of the difference between when a cause of action accrues, that is the date a cause of action arises or the date of the occurrence, neglect or default complained of by a Claimant on the one hand, and the consequence or result of the act complained of on the other hand. Indeed, the latter, that is the consequence or result of the act complained of, has nothing in law to do with the limitation period as prescribed by law. It is therefore, incumbent on this Court, having come to the finding that the decision of the lower Court, that the claims of the 1st Respondent was competent because it was a complaint bordering on a continuing wrong, is perverse to set same aside. See Aboyeji V. Lateju (2012) 3 NWLR (Pt. 1288) 434 @ p. 451. See also Mosojo V. Oyetayo (2003) 13 NWLR (Pt. 837) 340. – Per B. A. Georgewill, JCA

LIMITATION – HOW TIME IS COMPUTED FOR THE PURPOSE OF LIMITATION OF ACTION – CAUSE OF ACTION V. CONSEQUENCE OF ACTION

Thus, for the purpose of limitation of action, time is computed from the initial act or omission and not based upon the continuous injurious effect, especially in the instant case, when there exists a known person, a Defendant, as in the 2nd Respondent, through whom the Appellant claims to be a lessee, that could be sued by a Claimant, as in the 1st Respondent, from the onset in 2002 or within ten years from 2002, for such an alleged infraction. In INEC V. Ogbadibo Local Government (2016) 3 NWLR (Pt. 1498) 167 @ p. 205, the Supreme Court had put it in a very concise and apt manner, all that I have been labouring and trying to say here perhaps in too many words, thus:

“Continuance of injury or damage means continuance of the legal injury and not merely continuance of the injurious effects of a legal injury. In this case, the legal injury complained by the respondents was the excision of Otukpa State Constituency in 1996. The act was completed in 1996. The fact that the respondents have since the excision not been represented in the State House of Assembly constitutes the effect of the legal injury they allegedly suffered by that singular act. The legal injury occurred once. What the trial Court and the Court of Appeal relied on to give judgment in favour of the Respondents was the continuance of the injurious effect of the legal injury…in the circumstance, both Courts were wrong.”

Again, in INEC V. Enasito (2018) 2 NWLR (Pt. 1602) 63 @ pp. 88 – 89, the Supreme Court drew the distinction between a completed cause of action and a continuation of injurious effect of a legal injury for the purposes of determining when time begins to run, and had stated inter alia thus:

“It is not about the continuous result of the excision. Time begins to run for the purpose of any suit, the Respondents are to pursue, from the date of excision of the Constituency by the Appellant and not on account of the continued suppression of the right of the people of the Constituency to representation.”

See also Michael Obiefuna V. Alexander Okoye (1961) All NLR 357 @ pp. 360, INEC V. Onowakpoko (2018] 2 NWLR (Pt. 1602) 134 @ p. 155. – Per B. A. Georgewill, JCA

COURTS – CONDUCT OF COURTS WHEN FACED WITH TWO OR MORE DECISIONS OF A HIGHER COURT ON THE SAME ISSUE

Now, there is in law fidelity on the part of lower Courts to be bound by decisions of Courts higher than them in the hierarchy of Courts in the land. It is true that one of the leeway for a lower Court is to distinguish the decision of the higher Court if the facts supports such distinction. However, in all cases, where a lower Court is faced with two or more decisions of a higher Court on the same issue, then such a lower Court has only one option open to it, namely; to be bound by the latter decision of the higher Court. It cannot, as was done in error by the lower Court in this case, rather jettison the latter decision for the earlier decision and bound itself with the earlier decision. See Central Bank of Nigeria V. Okojie (2015) 14 NWLR (Pt.147) 231 @ p. 263. – Per B. A. Georgewill, JCA

STATUTE BAR – WHERE A SUIT IS STATUTE BARRED – CONDUCT OF COURTS WHEN FACED WITH A CHOICE BETWEEN SUBSTANTIAL JUSTICE AND TECHNICAL JUSTICE

In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, this Court had cause to consider the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:

“My Lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled.”

I do not think I can improve on the statement of law made above by this Court and thus, I cannot but bow to it. I fully subscribe to its truism and so it is with the 1st Respondent’s Suit. See Umanah V. Attah (2006) 17 NWLR (Pt. 1009) 503 @ p. 525, where the Supreme Court had per Tobi JSC, (God bless His Soul), reiterated inter alia thus:

“Once a Court lacks jurisdiction…The matter ends there and the only procedural duty of the Court is to strike it out. No more and no less. The position of the law is as hard and as strict as that. The only valid way is to file the action in a Court of competent jurisdiction.”

However, in law, once a suit is found to be statute barred, the proper order to make is one of dismissal. See NPA Plc. V. Lotus Plastics Ltd. & Anor (2005) 19 NWLR (Pt. 959) 258. – Per B. A. Georgewill, JCA

ACADEMIC ISSUES – CONDUCT OF COURTS TO ACADEMIC ISSUES

Indeed, the Courts, particularly appellate Courts, do not embark on such exercise of jurisdiction over matters which are no longer live, as that would clearly amount to nothing but sheer waste of the very precious and, if I may say scarce, judicial time. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853. See also Uba Plc V. Dana Drugs Ltd (2018) LPELR – 44103 (CA), per Georgewill JCA, Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497. – Per B. A. Georgewill, JCA

STATUTE BAR – WHEN A SUIT IS STATUTE BARRED

It is glaring that the suit of the Respondent at the lower Court is statute barred. And where a suit is statute barred the order a Court shall make is of dismissal as rightly arrived at by his Lordship in the lead judgment. See NPA Plc v Lotus Plastics Ltd and Anor (2005) 19 NWLR (Pt 959) Pg 258. – Per I. W. Jauro, JCA

CASES CITED

STATUTES REFERRED TO

1. Plateau State Edict No. 16 of 1988 as applicable in Nasarawa State

Sheriffs and Civil Process Act

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