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Sabo Zangye v Ayimaba Tukura (2018) – CA

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➥ CASE SUMMARY OF:
Sabo Zangye v Ayimaba Tukura (2018) – CA

by “PipAr” B.C. Chima

➥ COURT:
Court of Appeal – CA/MK/175/2017

➥ JUDGEMENT DELIVERED ON:
Friday, 2nd November, 2018

➥ AREA(S) OF LAW
Filing multiplicity of suits;
Statute barness in respect to land.

➥ NOTABLE DICTA
⦿ COURT OF APPEAL CONSIDERS ISSUE, IN THE CASE IT IS OVERRULED BY THE SUPREME COURT
However, as an intermediate Court and in the event that I am overruled in finding that the issue has been rendered academic having already ruled that latter case filed in 2015 is an abuse, I will proceed to consider the issue of statute bar. — J.H. Sankey, JCA.

⦿ STATUTES ARE TO BE INTERPRETED LITERALLY, WHETHER HARSH OR NOT
In the matter of the interpretation of statutes, Courts have been well guided over the years with the clear boundary beyond which Courts cannot enter. Thus, while Courts have the power to interpret the law, it has no licence to veer into the legislative arena or constitute itself into the legislator, however harsh or distasteful the piece of legislation may be. Once the words are plain and unambiguous, the Court is duty bound to give effect to it. In other words, in the interpretation of statutes, words should always be given their ordinary meaning. Where the words are clear, unambiguous and to the point, any addition or subtraction will be sequel to introducing an illegal backdoor amendment. See Setraco Nig Ltd V Kpaji (2017) LPELR-41560(SC) 25-26, paras D-A, per Peter-Odili, JSC; & Skye Bank Plc V Iwu (2017) LPELR-42595(SC) 118 paras B-C, per Ogunbiyi, JSC. — J.H. Sankey, JCA.

➥ LEAD JUDGEMENT DELIVERED BY:
Jummai Hannatu Sankey, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
G.H. Mohammed Esq.

⦿ FOR THE RESPONDENT
Yohanna Z.P. Agyere Esq.

➥ CASE HISTORY
The facts leading to the Appeal are thus: Sometime in the year 2002, the Appellant (as Plaintiff) commenced an action seeking title to land at the Grade 1 Area Court Karshi in Nasarawa State vide suit no CV/37/2002. At the trial, the trial Grade 1 Area Court entered Judgment for the Respondent (as Defendant).

Dissatisfied with the Judgment of the trial Court, the Appellant herein appealed to the High Court of Nasarawa State sitting in its appellate jurisdiction still in 2002 complaining of a lack of fair hearing. The Appeal succeeded and the Judgment of the trial Area Court was consequently set aside and an order for re-trial of the suit was made.

Thirteen years thereafter i.e. sometime in 2015, the Appellant filed another suit before the same trial Grade 1 Area Court, to wit: suit no CV/05/2015. Therein and attached to the particulars of claim was “Annexure A” being the printed Record of the said High Court sitting in its appellate jurisdiction wherein the order for retrial was contained.

Available:  Nigerian Breweries Plc. V. Oyo State Board of Internal Revenue (2012) - CA/I/M.25/2007

Before the matter proceeded to hearing, the Respondent (as Defendant) filed a motion on notice raising an objection to the hearing of the suit on two grounds namely: that suit no. CV/05/2015 was statute-barred, the cause of action having accrued in 2002; and was also an abuse of Court process in view of the existence of suit no CV/37/2002 earlier sent back to the same Area Court for retrial in 2002. The trial Grade 1 Area Court heard arguments on the objection and dismissed same.

Aggrieved by the Ruling of the trial Court, the Respondent appealed to the Court below sitting in its appellate jurisdiction. In considering the Appeal on the issue of whether or not the fresh suit, number CV/052015 was statute-barred based on the documents before it, the Court below found as a fact that the order for retrial of suit no CV/37/2002 made by the High Court was made on 16-10-02, and not on 16-10-12.
It therefore held that the suit was indeed statute-barred. The Court below also held that in view of suit no CV/37/2002 sent back to the trial Area Court for retrial, the fresh suit, number CV/05/2015, amounted to an abuse of Court process. Consequently, the Appeal was allowed and the claim of the Appellant (as Plaintiff) at the trial Area Court was dismissed.

Being dissatisfied, the Appellant appealed to this Court vide a Notice of Appeal filed on 12th May, 2017 wherein he complained on three grounds.

➥ ISSUE(S) & RESOLUTION

I. Whether the lower Court was right in holding that the suit instant constitutes an abuse of Court process?

RULING: IN RESPONDENT’S FAVOUR.
A. “The Appellant with proper introspection has conceded that suit no CV/05/2015 filed in 2015 was indeed an abuse of process. This was the right thing to do. It is evident from the processes of the trial Area Court contained in the printed Record that suit no CV/37/2002 and suit no CV/05/2015 are virtually identical in content. They are between the same parties, in respect of the same subject matter and seeking essentially the same reliefs, except for a few consequential orders. The latter suit, i.e. CV/05/2015 was filed ostensibly in compliance with the order for retrial of suit no CV/05/2002 made on 16th October, 2002 by the High Court. As rightly held by the Court below, the order for retrial resuscitated the case which was decided by the trial Area Court on 12th July, 2002. Thus, filing suit no CV/05/2015 has led to a multiplicity of Court processes between the same parties on the same subject matter and seeking the same reliefs, in addition to being before the same Court. Such an act has been described as an improper use of the judicial process to the irritation, annoyance and harassment of the other party. See Comm. of Education V Amadi (2013) 2 SCNJ 120 at 140, per Onnoghen, JSC (as he then was).”
.
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II. Whether the lower Court was right in holding that the suit instant was statute-barred?

Available:  Alexander Madiebo & Ors v. Godwin Nwachukwu Nwankwo (2001)

RULING: IN RESPONDENT’S FAVOUR.
A. “It is clear and indisputable that both the date at the commencement of the proceedings and the date on the signature page immediately after the delivery of the Judgment were “16/10/2002”. Consequently, I find that the date on which the order for retrial was made in respect of suit no CV/37/2002 was 16th October, 2002.”

B. “The arguments of the Respondent have all been centered squarely on the fact that suit no CV/05/2015 which gave rise to the appeal at the Court below from which this Appeal emanated, was statute-barred having been filed thirteen years after the accrual of the cause of action. With these facts, the consideration of whether or not suit no CV/05/2015 was statute-barred has been rendered academic because, come what may, it is liable to be struck out as its institution at the trial Court when suit no CV/37/2002 was still pending for retrial led to a multiplicity of actions, which is an abuse. Striking it out will make way for the Appellant to comply with the valid and subsisting order of the Nasarawa State High Court made in its appellate jurisdiction way back in 2002 in respect of the earlier suit no CV/37/2002. Since the viability or otherwise of that suit, to wit: CV/37/2002 is not an issue before this Court, I decline to venture into whether or not that initial case is statute-barred.”

C. “The issue before the Court below and now before this Court is the status of suit no CV/05/2015 and whether or not it is statute-barred. The Appellant has since conceded that he should not have filed it in the first place and that it constitutes an abuse.”

Available:  Brila Energy Limited v. Federal Republic of Nigeria (2018) - CA

D. “The law is trite that it is the claim of the Plaintiff that should be examined to determine the date on which the cause of action in a given case accrued. In respect of suit no CV/05/2015, from the statement of claim filed by the Appellant, particularly paragraph 8 thereof (at pages 4-5 of the main Record of Appeal), the cause of action arose in 2002. Now even though there were intervening factors in the form of the Appeal from the decision of the Area Court and the subsequent order for retrial in the same year, the date of the accrual of the cause of action remains constant, to wit: 2002. Thus, purporting to file a fresh suit in 2015 based on a cause of action that accrued in 2002 renders the suit statute-barred by virtue of the express provisions of Sections 2 and 3 of the Limitation Law of Plateau State (Edict No. 16) 1988 applicable to Nasarawa State (supra).”
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.
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✓ DECISION:
“Since I have found that suit number CV/05/2015 filed on 25th May, 2015 between Sabo Zangye And Ayimaba Tukura before the Grade 1 Area Court, Karshi was filed in abuse of the Court’s process, the proper order to make in the overall circumstances of the case is one striking out the suit, and not an order of dismissal. Consequently, the order of dismissal made by the Court below is set aside. In its stead, an order striking out the said suit number CV/05/2015 is hereby made. I award costs assessed at N100, 000.00 to the Respondent against the Appellant.”

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)

➥ REFERENCED (CASE)
⦿ TO DETERMINE STATUTE BARREDNESS IN RESPECT OF CUSTOMARY LANDS, THE LIMITATION LAW IS PECULIAR
Nwiboeke V Nwokpuru (2016) LPELR-41524(CA) 13: “The argument by learned Counsel for the respondent that limitation laws are not applicable to customary law or actions to recover land held under Customary Law cannot be accommodated by the clear words of S. 3 of the limitation law. Such argument is contrary to that provision. It is clear from the opening words of that provision thusly; No action shall be brought by any person to recover any land’, that its legislative intention is that it should apply to actions by all persons in respect of lands without exception. This is supported by the definition of land in S. 2 of the same limitation law as including land held under a right of occupancy or any other tenure.”

➥ REFERENCED (OTHERS)

End

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