ISSUES

Whether the time to sue had lapsed, leading to the claim being statute-barred?

Whether the filing of demurrer as a defence by the respondent was appropriate?

FACTS

The appellants' ancestors had acquired certain land by conquest some 450 years prior to the present action. In 1989, the Anambra State government published its intention to acquire the land. The notice was not served on any of the appellants.

In response to objections by the appellants, a panel of inquiry was appointed to investigate the matter. It was found that the government's acquisition of appellants' land had not been legally perfected, as no compensation was paid.

The appellant's instituted action, seeking the recognition of their right of occupancy of the disputed land, particularly as such recognition had been granted to a third party who is a complete stranger to the land.

Rather than filing a Statement of Defence, the respondent proceeded by way of demurrer. It relied on the submission that the appellants' claim was statute-barred as the time to sue had lapsed. Both the trial court and the Court of Appeal upheld the respondent's contention, leading to the present appeal to the Supreme Court.

The appeal was allowed.

HELD

1.      On the nature of demurrer

The demurrer is an archaic procedure still extant in some parts of the country. The essence of the demurrer is that even if all in the Statement of Claim as averred are true the action cannot be sustained either due to illegality, public policy, or by failing to give notice of intention to sue or when the right to sue has lapsed due to extension of time. By its nature, demurrer if successful can lead to the action being stopped in its tracks regardless of the merits of the claim. If the demurrer fails the defendant can still defend the action by filing its Statement of Defence. Per Belgore, JSC at 380.

2.      On whether the appellants' action was statute-barred

The government's allocation of a portion of the land to a third party led the appellants' to institute legal action. The time started running for purpose of the Limitation Law of Anambra State when the land which acquisition government had admitted was yet to be perfected, was given to the third party by way of right of occupancy. On that reckoning, the time to sue had not yet lapsed, and the appeal was accordingly allowed. Per Belgore, JSC at 380.

For the appellant: Chief AO Mogboh, SAN with him, CHC Nwanya Esq.

For the first and second respondent: NJ Obika (Mrs) Solicitor-General Anambra State

For the third respondent: CO Anah Esq. with him BS Nwankwo Esq.

The following cases were referred to in this judgment:

Nigeria

Aina v The Trustees of NRC Pensions Fund (1970) 1 All NLR 281

Ege Shipping v Tigris International (1999) 12 SCNJ 14

Enwezor v Onyejekwe (1964) 1 All NLR 14

Federal Capital Development Authority v Naibi (1990) 2 NWLR 270

Glover & another v Officer Administering Government of Nigeria & others (1949) 19 NLR 45

Gold Coast and Ashanti Electrical Power Development Corporation v Attorney-General (1937) 3 WACA 215

Odive v Obor & another (1974) 1 All NLR (Part 1) 436

Williams v Williams (1995) 2 SCNJ 22

The following statute was referred to in the judgment:

Nigeria

Land Use Act of 1978

The following laws were referred to in the judgment:

Actions Law Cap. 3, Laws of Anambra State, 1986: Ss 20(1)(a); 20(1)(d); 37(1)

Limitation Law of Anambra State

The following rules were referred to in the judgment:

High Court Rules of Lagos State

Uniform High Court Rules

Belgore, JSC (Delivered the Leading Judgment):- The appellants were plaintiffs in the High Court of Anambra State sitting at Nnewi Judicial Division. The land in dispute called by plaintiffs as Okpukpite was acquired by their ancestors by conquest about four hundred and fifty years ago. The eleven plaintiffs represent various descendants of the original conqueror and divided or apportioned the land among themselves. They had been in possession all the time burying their dead there, farming there and having various homestead there undisturbed all these centuries. Individual members of each family had portions allocated to them and they have developed most of them and are still developing them: it is a continuing process as the families grow larger. This families' rights had been exercised unhindered up to promulgation of Land Use Decree (now Act) of 1978.

By a publication around 1979 the then Anambra State Government published a Notice whereby it expressed its intention to acquire the disputed land for "overriding public interest" and in particular, for fibre processing. The plaintiffs' communities protested and had a series of meetings with the former Anambra Government at Enugu. Nothing again was heard about this matter not until 1989 when the new Anambra Government on 2 December 1989 repealed the previous Notice of Acquisition published a new one for an unspecified public interest. This Notice was not served on any of the plaintiffs. The communities, as represented by the eleven plaintiffs continued their protests by physical presence at Awka, the seat of first defendant government and by petitions. The government of former Anambra State at Enugu promised to look into their protests and would make all efforts to accommodate their protest insofar as farms and homesteads and several developments had taken place and were ongoing on the fast track of land.

To find a solution, the new Anambra State Government set up a Panel of Inquiry under Professor Iloegbune to look into Government land allocations and policies and make recommendations. The land in dispute formed part of that Inquiry. The panel made far-reaching recommendations and findings. The Government accepted the recommendations. The most significant findings and recommendations are:-

1.      That the acquisition of the plaintiffs land in dispute had not been legally perfected by the Government insofar as compensations had not been paid to anyone whose land was being expropriated.

2.      That the Government should review the layout plan to accommodate all existing development as earlier promised the communities.

3.      That the Government should require all owners of the existing developments to regularise their titles by applying for formal allocation and grant of Certificate of Occupancy.

4.      That the Government should allocate 20 percent of the plots from the redesigned layout to original land owners (plaintiffs) in accordance with the new policy of Anambra State Government on expropriated lands.

All these the Government accepted by their White Paper. The plaintiffs were not paid their compensation and the defects in the acquisition leading to their "not perfecting the acquisition" as the White Paper seems to have accepted in Iloegbune Report had not been looked into much less perfected. To the plaintiffs, therefore, the Government had not fulfilled its obligations under the White Paper and had not fully acquired their land. This is a situation still to be denied by Government.

All the foregoings were facts clearly in the Statement of Claim. Also undenied is that fact that a complete stranger to the land Ibeto Industries Limited applied to the Government for a right of occupancy and was immediately granted one evidenced by a Certificate of Occupancy registered at Land Registry, Awka to build a gas processing plant. Whereas in reaction to the White Paper, several of the plaintiffs applied for the same right of occupancy but had no response much less being granted.

The respondents never filed Statement of Defence but only came by way of demurrer. The Statement of Claim remained untraversed once a demurer is filed. The demurrer, an archaic procedure though still extant in our practice in some parts of the country, is the nature of saying that even if all in the Statement of Claim as averred are true the action cannot be sustained either due to illegality (e.g. sharing of assets criminally acquired) or public policy (e.g. gaming and lottery banned in some states and frowned upon in others) or by failing to give Notice of Intention to sue (when such notice is statutorily required) or when the right to sue had lapsed due to extension of time e.g. Limitation Act or Law. There are other instances when demurrer can be filed against Statement of Claim. By its nature, demurrer if successful can lead to the action being stopped in its tracts whatever the merits of claim. It is what I will call "peremptory defence" to save the defendant the trouble of filing a Statement of Defence. But it is not in all cases successful demurrer is a complete guillotine to the action. If the demurrer fails the defendant can still come to defend the action by filing Statement of Defence or praying for extension of time to do so if the time has passed. In some cases, where the claim is clear and certain and the defendant has no defence, the dismissal of demurrer is virtual end of the suit.

By its nature, demurrer is only filed against Statement of Claim and admits no filing of Statement of Defence, otherwise the demurrer proceedings will be rendered meaningless (Williams v Williams (1995) 2 SCNJ 22; Federal Capital Development Authority v Naibi (1990) 2 NWLR 270 at 281; Ege Shipping v Tigris International (1999) 12 SCNJ 14). In essence, the motion on demurrer should be brought before issue was joined on matters alleged in the Statement of Claim (Glover & another v Officer Administering Government of Nigeria & others (1949) 19 All NLR 45); Enwezor v Onyejekwe (1964) 1 All NLR 14). However, if the parties have joined issue, pleadings have been exchanged by parties there is no more place for demurrer (Gold Coast and Ashanti Electrical Power Development Corporation v Attorney-General (1937) 3 WACA 215.) and the case must proceed to trial (Odive v Obor & another (1974) 1 All NLR (Part 1) 436 and Aina v The Trustees of NRC Pensions Fund (1970) 1 All NLR 281).

The procedure by way of demurrer is not only archaic and time wasting, it is a product of English Rules of eighteenth century whereby formulary system reigned. The English have done away with it but it appears some parts of this country still adhere to it. The Uniform High Court Rules and recent. High Court Rules of Lagos State wisely did away with demurrer. It is in the interest of efficient and timeous dispensation of matters in Court to allow parties to join issues and the defendant, without directly pleading law but facts can raise issues that will dispose of the matter without hearing evidence on matters like limitation of action, immorality, public policy, laches etc. in Statement of Defence.

What is strange in this case is that the Government of Anambra State and the defendants/respondents not only filed a demurrer but attempted to raise some defences. It has not vitiated the demurrer which was here based clearly on Limitation Law of Anambra State. The so-called defences attached to the demurrer are inconsequential as to demolish its purpose. The question is: Was the action statute-barred by virtue of Limitation Law? The plaintiffs all along, believing on White Paper on Iloegbune Report, believed Government would abide by its words and honour as a government. By giving a portion of the contentious land to Ibeto Industries Limited the plaintiffs' rights got vitiated, in their view, and went to Court. The time started running for purpose of Limitation Law of Anambra State when the land whose acquisition Government itself in its White Paper admitted was yet to be perfected, was given to a third party by way of right of Occupancy. Nemo dat quod non habet, the plaintiffs seem to contend. But I do not intend to go further than this in this appeal, suffice however to say that time to sue had not elapsed as found by trial court and erroneously upheld by Court of Appeal. Limitation period has not set in.

For the forgoing reasons, I allow this appeal and hold that the action of the plaintiffs subsists. I order that the suit be remitted to High Court, Nnewi Judicial Division before another judge other than the one that heard it before. The defendants are at liberty to apply for extension of time to file their Statement of Defence if trial court in its discretion would find it expedient to grant application to do so out of time.

I award N5,000 as costs in trial court against first and third respondent, N5,000 as costs against first and third respondent in Court of Appeal and N10,000 as costs against first and third respondents in this Court all in favour of the appellants.

Onu, JSC:- Having had the privilege of reading before now in draft the judgment of my learned brother, Belgore, JSC just delivered, I am in entire agreement with his reasoning and conclusions that this appeal is meritorious and it therefore succeeds. I adopt the same as mine and have nothing further to add thereto.

Kalgo, JSC:- I have had the privilege of reading in advance the judgment just delivered by my learned brother, Belgore, JSC in this appeal. I entirely agree with the reasoning and conclusions reached in the said judgment and find merit in the appeal. I accordingly and for the reasons given in the leading judgment which I adopt as mine, allow the appeal and abide by all the consequential orders made therein including the order as to costs.

Ejiwunmi, JSC:- I had the advantage of reading before now the judgment just delivered by my learned brother, Belgore, JSC. In the said judgment, the question raised in the appeal as to whether the plaintiffs' action was not statute barred was properly resolved in favour of the plaintiffs. I therefore adopt the said judgment as my own and also allow the appeal. I abide also with the consequential orders made in the leading judgment.

Edozie, JSC:- The appellants and respondents were respectively plaintiffs and defendants before the Nnewi High Court in Suit No HN/61/17. As radical owners of the land in dispute, the reliefs sought by the plaintiffs jointly and severally against the defendants as adumbrated in their Statement of Claim may be paraphrased thus:-

"(a) Declaration of statutory right of occupancy to the land in dispute called Okpukpuite land which was compulsorily acquired by the Anambra State Government for a well defined public purpose but which purpose has been abandoned by the allocation of parcels of the land in dispute to private entrepreneurs.

(b)     An order setting aside the Anambra State Government revocation of plaintiffs' right of occupancy over the land in dispute.

(c)     An order setting aside certificates of occupancy granted to the third defendant and other private commercial interests.