EFFECT OF LIMITATION LAW
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CASE TITLE: ONYEASO & ORS v. IGWENMA & ANOR (2019) LPELR-47288(CA)
JUDGMENT DATE: 12TH APRIL, 2019
PRACTICE AREA: CIVIL PROCEDURE
LEAD JUDGMENT: AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.
SUMMARY OF JUDGMENT:
This appeal borders on Civil Procedure.
This appeal is against the judgment delivered on 6/3/2007 by the High Court of Abia State presided over by Hon. Justice L. Abai.
The Appellants as Plaintiffs before the High Court initiated the instant action by a writ of summons dated 15/7/2005 but which issued on 26/7/2005. In the statement of claim filed in the case, the Appellants claimed against the Defendants (Respondents) as follows:-
“a) A declaration that the plaintiffs are entitled to the statutory certificate of occupancy over the land known as OVOROUBA EGBELU situate at OHABIAM in Aba South Local Government Area covered by a survey plan No MG/772/75 attached to the lease agreement registered as No 18, Page 18 in volume 79 dated 28/8/76 at the Lands Registry Umuahia Abia State.
- b) A declaration that the following documents:-
- Customary Right of Occupancy dated 27/10/1993 issued to the 1st defendant by the Obioma Ngwa Local Government (now Ugwunagbo Local Government) registered as No. 89 at page 89 Volume 9 of the Lands Registry at Umuahia.
- Interim development permission dated 28/2/1994 issued to the 1st defendant by the Obioma Ngwa Local Government (now Ugwunagbo Local Government) and
iii. Notice of intention to revoke Right of Occupancy dated 17/12/2003 issued to the 1st defendant by the 2nd defendant are all null and void ab initio and cannot stand in the face of the plaintiffs earlier acquired interest in the land in dispute, the directives of the Abia State Government in the white paper on the panel of inquiry into the acquisition of land in Asa-Nnentu by Obioma Ngwa Local Government Council between 1988 and 1993, and that neither the then Obioma Ngwa Local Government Council nor the Ugwunagbo has the right and powers to issue these document (sic) to the 1st defendant as the land in dispute is situate in Aba South Local Government Area.
- c) An order of Court setting aside the documents itemized in paragraphs 30(b)(i)-(iii) of this statement of claim as being null, void and of no effect whatsoever.
- d) An order of the Court on the defendants to quit or vacate forthwith the above-stated piece of land now in dispute.
- e) The sum of N50,000,000.00 (Fifty Million Naira) being general damages for trespass into that piece of land known as OVOROUBA EGBELU situate at OHABIAM in Aba South Local Government Area property of the plaintiffs.
- f) A perpetual injunction restraining the defendants their agents, servants, workers, representatives, privies and grantees from further trespassing and interfering with the plaintiffs right to the ownership and use of the land in dispute in any manner whatsoever inconsistent with the plaintiffs right to same.”
On being served with the statement of claim, the Respondents filed two separate notices of preliminary objection. The first notice of preliminary objection filed by the 2nd Respondent was supported by an affidavit. The Appellants filed their counter affidavit in opposition to the 2nd Respondent’s notice of preliminary objection. In its notice of preliminary objection, the 2nd Respondent challenged the jurisdiction of the High Court to entertain the instant suit on the ground of its incompetence and its un-maintainability. The second notice of preliminary objection filed by the 1st Respondent was not accompanied by an affidavit. Therein, the Respondent disclosed that it was challenging the competence of the instant suit.
By or before 19/10/2006, the notice of the preliminary objection filed by the 1st Respondent was before the High Court and the Court informed the parties that it would now take the two preliminary objections filed by the Respondents together. This was because, in the view of the Court, the two preliminary objections were basically the same and that Appellants’ counsel could thereafter reply to the same together, and this learned senior counsel to the Appellants did. Equally, the Respondents delivered their respective replies on point of law on 6/11/2006 and the matter was adjourned till 22/1/2007 for ruling. However, it was on 6/3/2007 that the High Court eventually delivered what it styled Ruling/Judgment. In its Ruling/Judgment, the High Court after delving copiously into the statement of claim before it dismissed the suit.
Being dissatisfied, the Appellants appealed to the Court of Appeal.
ISSUES FOR DETERMINATION
The Court determined the appeal on this sole issue couched as follows:
“Whether or not the lower Court can be said to be wrong in its decision that the Appellants’ suit as it relates to the 1st Respondent is statute barred given its finding that the cause of action against the said 1st Respondent arose or accrued in 1994″
On the whole, the Court found no merit in the appeal and accordingly dismissed same.
- LIMITATION LAW – LIMITATION LAW: Position of the law as regards the application of limitation law to land matters
- ACTION – CAUSE(S) OF ACTION: Instance where the doctrine of continuing trespass cannot or will not be applied to determine when a cause of action arose/accrues
- APPEAL – FRESH POINT(S) ON APPEAL: Whether leave of Court must first be sought and obtained before a fresh point can be raised on appeal; effect of failure thereof