CORAM

---

Cordelia Ifeoma Jombo-Ofo Justice, Court of Appeal

Biobele Abraham Georgewill Justice, Court of Appeal

Ibrahim Wakili Jauro Justice, Court of Appeal

---

PARTIES

---

MTN NIGERIA LIMITED

APPELLANTS 

---

1. LAMIDO MAIKASUWA LADAN

2. IHS NIGERIA LIMITED

RESPONDENTS 

---

AREA(S) OF LAW

---

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

 

---

SUMMARY OF FACTS

The land of the 1st Respondent, measuring 0.474 hectares and more particularly about 272.2 square meters (55/55 feet), occupied by the Defendants, is situated at Keffi/Abuja Federal Road, beside the water reservoir in Akwanga, Nasarawa State. It was encroached upon by the Appellant in the year 2002. At that time, the Appellant attempted to establish his right to the land by writing letters to the Appellants and even presenting the issue before the Nigerian police force. Unfortunately, he did not take further steps to recover the said land or establish his rights until the year 2021 (19 years later), when he believed that the Appellants had acknowledged the trespass. At this point, the matter was brought to the court, but the Appellants raised a preliminary objection, arguing that the matter was statute-barred by virtue of limitation law.

The 1st Respondent claimed that he was still within the limitation period because it was a continuous trespass.

The lower Court 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 Statement of Claim before the lower Court, in light of paragraphs 27 – 30 therein where the cause of action was said to have occurred in 2018, 2019 and 2021, the 1st Respondent’s Suit is Statute barred?

2. Whether the exercise of the Constitutional right by the 1st Respondent by submitting its grievance to the lower Court, a Court of law, as was done in the instant Suit is an Abuse of Court process?

3. Whether the lower Court denied the Appellant or any party fair hearing in the determination of the application before it or made any finding of fact against the Appellant for trespass?

 

---

RATIONES DECIDENDI

---

REPLY BRIEFS – THE PURPOSE OF A REPLY BRIEF

---

It follows, therefore, where no new issues or points were raised, or that the submissions in an Appellant’s brief cater adequately to all the submissions in a Respondent’s brief, then a reply brief is unnecessary, and thus, need not be filed. It is not an avenue for an Appellant to merely have a ‘second bite at the cherry’. Consequently, the Appellants’ reply brief, having brought nothing new to the discussion table on issue one in this appeal, is hereby discountenanced. See Order 19 Rule 5(1) of the Court of Appeal Rules 2021. See also Edo State House of Assembly & Ors V. Igbenideon & Ors (2021) LPELR – 55990 (CA). See also Ikine V. Edjerode (2001) 12 SC (Pt. II) 94; Enosegbe V. Enizode – Aiwize & Ors (2021) LPELR – 54200 (CA).

Per B. A. Georgewill, JCA

 

---

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

---

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

 

---

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

---

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 inter 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.

Per B. A. Georgewill, JCA

 

---

LIMITATION PERIOD – CONDUCT OF COURTS TO THE ISSUE OF LIMITATION PERIODS – WHEN THE ISSUE OF LIMITATION LAW CAN BE RAISED

---

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 detail 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 – CAUSE OF ACTION DISTINGUISHED FROM THE EFFECT OR WRONG OCCASSIONED BY THE ACTION

---

My lords, it is the law, as it was so forcefully submitted, and quite rightly too in my view, by learned Senior Advocate for the Appellant, 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 complained 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 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.

However, where, as in the instant case, the 1st Respondent alleged, and it was clear even on his averments, that the Appellant entered upon the land in dispute, which the 1st Respondent claims as his own, in the year 2002, and erected its telecommunication mast thereon, and for which he even wrote to the Appellant in the year 2002 to complain and also took the Appellant to the Police at the Agwanga Division of the Nigeria Police in 2002, the lower Court was utterly wrong to have held that such a completed action complained of by the 1st Respondent against the Appellant constituted a continuing wrong for which action can, going by the decision of the lower Court, be taken by the 1st Respondent against the Appellant at any time and year of his choice, and perhaps, in perpetuity.

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 Appellant 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

 

---

COURSE OF ACTION – THE DIFFERENCE BETWEEN WHEN A COURSE OF ACTION ARISES AND THE CONSEQUENCE OR RESULT OF THE ACT COMPLAINED OF – CONDUCT OF APPELLATE COURTS TO PERVERSE FINDINGS OF LOWER COURTS

---

…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.

My lords, at best, the claim of the 1st Respondent against the Appellant, which the lower Court thought and found, though erroneously, as continuing trespass, can be described only as a continuous injurious effect of alleged act of trespass of the Appellant which occurred in 2002. In law, there can be no continuation of trespass where a tortfeasor is still on the subject matter of the complained tort sequel to entering into the land, and such continuous injurious effect of any act or omission is not a continuation of the act.

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 Appellant, 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 favor 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 LOWER 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 Court higher than them in the hierarchy of Courts in the land. It is true that one of the leeways for a lower Court is to distinguish the decision of the higher Court if the facts support 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.1479) 231 @ p. 263.

Per B. A. Georgewill, JCA

 

---

COMPETENCE – WHETHER THE ISSUE OF COMPETENCE CAN BE REGARDED AS MERE TECHNICALITY – WHERE A COURT LACKS JURISDICTION

---

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

---

It follows, therefore, since the 1st Respondent’s Suit was incompetent and thereby robbed the lower Court of its jurisdiction, issues two and three have become merely academic. Indeed, the Courts, particularly appellate Courts, do not embark on such exercises 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

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Limitation Law of Plateau State, Edict No. 16 of 1988 as applicable to Nasarawa State

3. Court of Appeal Rules 2021

CLICK HERE TO READ FULL JUDGEMENT