IN THE HIGH COURT OF JUSTICE OF PLATEAU STATE OF NIGERIA
HOLDEN AT JOS
ON THURSDAY THE 2ND DAY OF NOVEMBER, 2017
BEFORE HIS LORDSHIP: JUSTICE M. I. SIRAJO …………………JUDGE
SUIT No. PLD/J190/08
BETWEEN:-
JOSEPH DUNG …………………………………………………….PLAINTIFF/RESPONDENT
AND
By a notice of preliminary objection dated and filed on 19th July, 2017, the 2nd, 3rd and 4th defendants challenged the jurisdiction of this Court to hear and determine this suit as it relates to them on the grounds that:-
“1. The cause of action against the 2nd, 3rd and 4th defendants, if any, arose over 10 years ago.
2. The cause of action of the plaintiff is sterile and cannot be enforced against the 2nd, 3rd and 4th defendants/objectors.
3. The suit against the 2nd, 3rd and 4th defendants is statute barred.”
The objectors indicated that they will place reliance on the pleadings before this Court in support of the grounds of objection. Also in support of the objection is an affidavit of 7 paragraphs sworn to by Vivian Michael, a Litigation Secretary in the Law firm of S. A. Abbah and Company, Jos.
The objectors sought for two reliefs:-
Address of counsel containing a sole issue for determination was filed along with the preliminary objection.
In opposing the preliminary objection the plaintiff caused to be filed on his behalf counter-affidavit of 8 paragraphs deposed to by one Miss Alice Goteng, a Litigation Clerk in the Law Firm of Messrs I. S. Bashiri & Company; counsel representing the plaintiff. Filed along with the counter-affidavit is a written address of F. M. Pwul Esq.
Having read the opposing affidavits, the opposing addresses and all the pleadings filed by the parties, I will go straight in to the determination of this application without much ado. In so doing, I will adopt the sole issue formulated by S. A. Abbah Esq on behalf of the 2nd, 3rd and 4th defendants/objectors. The issue is –
“Whether by the pleadings on record, the suit of the plaintiff is not statute barred against the 2nd, 3rd and 4th defendants/objectors.”
This suit was filed in 2008 against the 1st defendant only. Subsequently, an order was made joining the 2nd, 3rd and 4th defendants/objectors on the application of the plaintiff. A new Writ of Summons was issued in 2016 to reflect the new parties. The new parties responded to the suit against them by filing a joint statement of defense, to which the plaintiff filed a reply before this preliminary objection was filed. It is the contention of the 2nd, 3rd and 4th defendants that having bought their respective portions of the land, developed and moved in between 2002 and 2004, the suit commenced against them is statute barred as same was filed more than ten years after the cause of action had arisen.
Section 3 of the Limitation Law of Plateau State provides that an action to recover land shall not be filed 10 years after the accrual of the cause of action to the claimant. The question now is, how does the Court determine when the cause of action arises? The answer, as provided by plethora of judicial authorities, is that the Court looks at the Writ of Summons and the Statement of claim to determine when the cause of action accrued to the claimant and whether or not the suit as filed is caught up by the statute of limitation. In the instant objection, the Court is invited by learned counsel for the objectors not to limit its scrutiny to the Writ and the Statement of claim but also to look at the joint statement of defense of the 2nd, 3rd and 4th defendants/objectors. This invitation is not supported by the extant decisions of the Supreme Court and the Court of Appeal on the subject matter of this objection. See: JULIUS NDUKA VS. EDWIN OGBONNA (2010) LPELR – 45857 (CA) at 12; GOODWILL COMPANY LTD VS. CALABAR CEMENT COMPANY (2009) LPELR – 8351 (CA) at 28; ENGR. G. F. C. EZEANI VS. NIGERIA RAILWAY CORPORATION (2013) LPELR – 22065 at 19 – 20.
Looking at the plaintiff’s amended statement of claim, particularly paragraphs 28, 29 and 30 thereof, it is averred that the 2nd, 3rd and 4th defendants bought their respective portions of the land in dispute from the 1st defendant “sometimes in 2008”. By this averment, the statement of claim, which is the only material for consideration at this stage, has clearly shown that the cause of action in this suit arose in 2008, thereby situating the claim properly within the allowable limit and confines of the law. On this score, the preliminary objection ought to be dismissed.
The situation will not be any better even if I decide to heed to the invitation of learned counsel for the objectors by looking at all the pleadings of the parties. Let me now have a glance at the pleadings as I am invited to do so.
In response to the plaintiff’s averments that the cause of action accrued in 2008, the objectors averred in their joint statement of defense that they bought their respective lands in 2002 and 2004. The plaintiff further joined issues with the defendants when in his reply to the joint statement of defense he averred at paragraphs 4 and 5 as follows:
“4. The plaintiff in further reply to part of paragraph 3 and the whole of paragraph 5 of the defense states that neither the 2nd, 3rd and 4th defendant’s building was erected 12 years ago as the plaintiff and other members of the Loh-Gyang, headed then by the late Chuhwak Rapp only got to know of the defendants’ illegal developments on the land, subject matter of dispute in the year 2009 for the 2nd defendants, the year 2008 for the 3rd defendant and the year 2013 for the 4th defendant, the respective years above listed being the period that each of the defendants’ illegal developments were either started or on going.
5. The plaintiff states further in reply to paragraphs 3 and 5 of the defence that the Loh-Gyang family through Chuhwak Rapp, the late plaintiff had since the year 2008, about 9 years ago, sued the 1st defendant the purported vendor of the 2nd, 3rd and 4th defendants challenging his illegalities over the land, subject matter of dispute having serially and categorically cautioned each of the 2nd, 3rd and 4th defendants against purchase or any transaction whatsoever over any portion of the land, subject matter of dispute.”
With this state of the pleadings, issues are joined by the parties with respect to when the cause of action arose. Until the documents of title and change of ownership are before the Court, it will be impossible to determine when the cause of action in this suit arose. This issue can only be resolved by hard and tested evidence and not by affidavits.
When one looks at all the pleadings, which are not evidence but mere averments of facts, one must conclude that the preliminary objection as raised in the instant case is premature. If the opposing parties are contending different dates of the accrual of the cause of action, common sense dictates that an objection ought not be raised before evidence is led. This objection is not only premature, it is without substance. It is raised with the sole aim of delaying the hearing of this suit. I dismiss it accordingly.
Justice M. I. Sirajo
Judge
2/11/2017
Appearances:-
F. M. Pwul for the plaintiff/respondent.
L. O. Akinmade for the 2nd, 3rd and 4th defendants/objector
