Legalpedia Citation: (2023-07) Legalpedia 02800 (CA)

In the Court of Appeal

Tue Jul 4, 2023

Suit Number: CA/C/121/2022

CORAM

Muhammed Lawal Shuaibu JCA

Abubakar Mahmud Talba JCA

Mohammed Danjuma JCA

PARTIES

THE EXECUTIVE GOVERNOR OF AKWA IBOM STATE AND 2 ORS

APPELLANTS

HIS HIGHNESS CHIEF (DR.) ISAAC DANIEL OBIOURA AND 48 ORS

RESPONDENTS

AREA(S) OF LAW

APPEAL, EVIDENCE, LAND, PRACTICE AND PROCEDURE

 

SUMMARY OF FACTS

This is an appeal against the ruling of the High Court of Akwa Ibom state, sitting in Eket delivered by Hon. Justice Eno Isangedighi, wherein the applicants’ notice of preliminary objection was dismissed. The Res in this suit is the piece of land identified on the survey plan by no: SE.OP.C.29 tracing No: SEC.15 containing area of approximately 8.534 hectares (21,789 acres)

The respondents as claimants at the lower Court were seeking declarations, injunctions and damages for trespass. The appellants as defendants entered conditional appearance and also filed a notice of preliminary objection

The case of the appellants is that the interest or ownership of the land in dispute had passed to the appellants in 1970 when it acquired the land, exercised several acts of ownership and possession, including the leasing of the land, to Mobil Producing Nig. Unlimited in 1970. In the preliminary objection, the Appellant claimed that this suit is caught by estoppel per rem judicata and this Court lacks jurisdiction to determine the suit. The Appellants also claimed that the action is a gross abuse of Court process while also claiming that the claimants claims are non-justiciable.

The lower Court saw no merit in the preliminary objection of the defendants and therefore dismissed same. The appellants were dissatisfied by the decision and therefore appealed to this Court.

HELD

Appeal allowed

ISSUES

1. Whether the trial Court acted erroneously when it held that the respondents’ cause of action was not statute barred and that it had jurisdiction to hear this appeal?
2. Whether the trial High Court acted erroneously and breached the appellants’ right of fair hearing when it failed to consider and/or determine all the allegations of fact, issues, arguments and authorities cited by the appellants in their notice of preliminary objection and also in their further affidavit and reply on point of law?
3. Whether the trial High Court acted erroneously when it failed to appreciate that the underlying suit is incompetent as the respondents are not Chairmen or Councillors of the Eket and Esit Eket Local Government Areas of Akwa Ibom State of Nigeria and procured no leave before instituting the underlying action?
4. Whether the trial High Court acted erroneously and in breached of the right of the appellants to fair hearing when it totally ignored and/or failed to consider and rule on the argument of the appellants on res judicata which was conspicuously raised by the appellants in their notice of preliminary objection and supported by plethora of binding authorities cited and brought to the cognizance of the learned trial judge?

RATIONES DECIDENDI

STATUTE BAR – HOW TO DETERMINE IF A CAUSE OF ACTION IS STATUTE BARRED

A cause of action is statute-barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Law or Act had lapsed. And the period of limitation is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the writ of summons was filed. If the time on the writ is beyond the period allowed by the Limitation Law, then the action is statute barred. See EGBE VS ADEFARASIN (1985) 1 NWLR (PT 3) 1, UBA PLC VS BTL INDUSTRIES (2005) 10 NWLR (PT 933) 356 and TAKORI VS MATAWALLE (2020) 17 NWLR (PT. 1752) 165 @ 180-181. – Per M. L. Shuaibu, JCA

CAUSE OF ACTION – WHEN A CAUSE OF ACTION ARISES

A cause of action arises on a date or from the time when the breach of any duty or act occurs that precipitated the person thereby injured or the victim who is adversely affected by such an infraction to commence the action to assert his right or have his legal right protected from the breach. Thus, a cause of action arises on the date of the occurrence, neglect or default complained of and not the consequence or result of the occurrence of the infraction. FADARE VS ATTORNEY GENERAL OYO STATE (1982) 4 SC 1, A. G. ADAMAWA STATE VS A. G. FEDERATION (2014) 14 NWLR (PT 1428) 515 and ADEKOYA VS FEDERAL HOUSING AUTHORITY (2008) 11 NWLR (PT.1099) 539. – Per M. L. Shuaibu, JCA

LAND – WHETHER THE PUBLIC OFFICER’S PROTECTION LAW EXTENDS TO AN ACTION FOR RECOVERY OF LAND

Lest I forget, the underlying complaint of the respondents being founded on recovery of land, the public officers’ protection law aforesaid does not extend to action founded on land. However, the effect of the respondents’ action being statute-barred, that cause of action becomes extinct by operation of the law and can no longer be maintained in a law Court. – Per M. L. Shuaibu, JCA

COURTS – DUTY OF A COURT TO PRONOUNCE ON ALL ISSUES RAISED BEFORE IT

It was held in plethora of judicial decisions that all lower Courts, as a general rule must pronounce on all issues properly placed before them for determination in order apart from the issue of fair hearing not to risk the possibility that the only issue or issues not pronounced upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. Thus, every Court must make a finding and pronouncement on material and fundamental issues canvassed before it by the parties because failure to do so may result in a miscarriage of justice. BRAWAL SHIPPING (NIG) LTD VS F. I. ONWADIKE CO. LTD (2000) 6 SCNJ 508 @ 522.

… It was inter alia held in ADAH VS NYSC (2004) 13 NWLR (PT 897) 639, that all Courts below the Supreme Court are bound to take all issues canvassed by the parties, even when such issues appear superfluous or spent. – Per M. L. Shuaibu, JCA

 

REPRESENTATIVE CAPACITY – CONSITIONS FOR AN ACTION TO LIE IN REPRESENTATIVE CAPACITY – WHERE LEAVE OF COURT IS NOT OBTAINED BY PARTIES ACTING IN REPRESENTATIVE CAPACITY

For an action to lie in representative capacity, the plaintiff or the defendant, as the case may be, must have a common interest and common grievance with those he represents in the suit. The relief claimed or the outcome of the litigation must also be beneficial to the plaintiff or the defendant along with those he represents. In the instant case, the respondents sued for themselves and on behalf of the Eket and Esit Eket Local Government Area of Akwa Ibom State of Nigeria.

The issue then is does the respondents requires the leave of Court for them to maintain the action at the lower Court? It is very pertinent to note that the adjectival laws of the High Court in relations to representative actions are rules of convenience and therefore not meant to frustrate proceedings. Thus, where leave of Court is not obtained for a plaintiff or defendant as the case may be a suit in a representative capacity, the failure will not vitiate the action. In ADEOGUN VS AKINYEMI (2020) 7 NWLR (PT 1724) 389 @ 424-425, the apex Court has held that the Court cannot strike out or dismiss an action or render the outcome of a judgment or ruling of no effect and upset the judgment merely because leave was not obtaining to sue in a representative capacity is not fatal so as to vitiate the proceedings.  – Per M. L. Shuaibu, JCA

RES JUDICATA – MEANING OF ESTOPPEL PER REM JUDICATAM

Estoppel per rem judicatam postulates that if an action is brought and the merits of the question arising therefore between the parties is heard and a final judgment of a Court of competent jurisdiction is handed down over the parties and the subjected matter of the action, any person whatsoever, as against the other person is estoppel in any subsequent litigation from disputing or questioning such decision on the merits whether it be used as the foundation of an action, or relied upon as a bar to any claim. ARUBO VS AIYELERU (1993) 3 NWLR (PT.280) 126, DOKUBO VS OMONI (1999) 8 NWLR (PT 616) 647 and SKYBLING (NIG) LTD VS NEWLIFE CO. OP. SOCIETY (2020) 9 NWLR (PT. 1739) 541 @ 564-565. – Per M. L. Shuaibu, JCA

JUDICIAL DECISION – THE STATUS OF A JUDICIAL DECISION

A judicial decision is conclusive until reversed by a superior Court and its veracity is not open to challenge nor can it be contradicted. It is also settled that no judge is competent to sit in judgment over the decision or order made by another judge of co-ordinate jurisdiction.  – Per M. L. Shuaibu, JCA

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal Rules 2021
2. Limitation law of Akwa Ibom State 2000
3. Public laws of Akwa Ibom State, 2000
4. Public Officers Protection Law, Cap 104, Laws of Akwa Ibom State, 2000

CLICK HERE TO READ FULL JUDGMENT