JACOB ABOYEJI v. ALHAJI YAKUBU ABUDU LATEJU (2011)

JACOB ABOYEJI v. ALHAJI YAKUBU ABUDU LATEJU

(2011)LCN/4294(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of February, 2011

CA/IL/23/2009

RATIO

RULE OF INTERPRETATION OF DOCUMENT: WHETHER IT IS A CARDINAL PRINCIPLE OF INTERPRETATION OF DOCUMENTS THAT WHATEVER IS NOT MENTIONED SHOULD BE EXCLUDED

It is pertinent to pause at this juncture and state that the law is trite that it is a cardinal principle of interpretation of documents that whatever is not mentioned is excluded. PER TIJJANI ABDULLAHI, J.C.A.

CAUSE OF ACTION: MEANING OF CAUSE OF ACTION; WHEN DOES CAUSE OF ACTION

DEFENCE OF STATUTE BAR: WHAT AT THE DOCUMENTS TO BE CONSIDERED AT THE STAGE OF RAISING THE DEFENCE OF STATUTE BAR IN AN ACTION

STATUTE OF LIMITATION: WHETHER AN ACTION CAN BE PROPERLY OR VALIDLY INSTITUTED AFTER THE EXPIRATION OF THE PRESCRIBED PERIOD WITHIN WHICH TO BRING IT

It is trite law that, where a statute of limitation prescribes a period within which an action should be brought; legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute-barred. See Ogunko vs. Shelle (2004) 6 NWLR (pt. 868) 17 and Osun State vs. Dalame Nigeria Ltd. (2007) Alt FWLR (pt. 365) 438.” It is also settled law that, time be-gins to run for the purposes of the limitation law from the date the cause of action accrues. See British Airways Plc vs. Akintoye (1995) 1 NWLR (pt. 374) at 724; Shell Pet. Dev. Co, (Nig) Ltd. vs. Farah (1995) 3 NWLR (Pt. 382) 148 at 156; Jalko Ltd. vs. Owoniboys Tech. services Ltd. (1993) 4 NWLR (pt. 391) 534 at 539 and Asaboro vs. Pen Ocean Oil (Nig) Ltd. (2006) 4 NWLR (pt. 971 595. PER TIJJANI ABDULLAHI, J.C.A.

JUSTICES:

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

Between

JACOB ABOYEJI – Appellant(s)

AND

ALHAJI YAKUBU ABUDU LATEJU (FOR AND ON BEHALF OF ABUDU LATEJU FAMILY) – Respondent(s)

TIJJANI ABDULLAHI, J.C.A. (Delivering the Leading Judgment): On the 27th day of February, 2009, in the Kwara state High court of Justice, Ilorin, the claimant/Respondent filed a writ of summons for and on behalf or the Abudu Lareju’s family claiming the following reliefs:
“(a) A declaration that the claimant’s family is the customary owner of all that portion of land measuring an Area of 214 OM X 148 6M X 192.2.M X 221.3M (3.796 IIQ) in dimension which the Defendant occupied without the notice, consent and approval of the claimants family.
(b) An order setting aside the certificate No. KW 10755 of occupancy unlawfully issued to the Defendant by the Kwara State Government in respect of portion of the land.
(c) A declaration that Certificate of Occupancy No. KW 10755 unlawfully issued to the Defendant by the Kwara State Government in respect of the portion of land is null and void”
After pleadings were filed and exchanged but before commencement of hearing, the appellant who was the defendant in that court filed a notice of preliminary objection pursuant to order 26 Rules 2, 3 and 4 of the Kwara state High court (civil procedure) Rules 2005 and under the Inherent jurisdiction of that court wherein he contends that:
“The claimant lacks competence to institute this (sic) proceedings and this Honourable Court lacks jurisdiction to entertain the claimant’s and consequently same should be DISMISSED in its entirety.”
The grounds upon which the objection is predicated are as stated herein:
“1, The sale of the above land to the Defendant had been finally concluded since 1977 between all the parties concerned that is the Claimant’s (Vendors) Late Alhaji Asana Lawal (Transferor) and the Defendant in this suit (Transferor) and the period is over 31 (thirty-one) years ago.
2. The action is Statute-barred and cannot be maintained by virtue of section 4 0f the Limitation Law Cap 89 Laws of Kwara State of Nigeria 1994.
3. The claimant who is suing through his family has no authority of his family to institute this case against the Defendant and the claimant never has any power of Attorney or authority from his family before instituting this action against the Defendant/Applicant in this suit.”
The Notice of preliminary objection is supported by a 16- paragraph affidavit. Paragraphs 11 and 12 of the said affidavit are germane for the just determination of the preliminary objection and they are therefore reproduced below:
“11. That when the Defendant took full possession of the land after it had been SOLD to him in 1977, and since that time in 1977 the Defendant had Fenced-Up all the (4) four sides of the land, and all the farmers on the land were all asked and were all requested by the Defendant to vacate the land and all their belongings including their crops etc and they all vacated and left the land, and since then none of them including the family of the Claimant farming on the land never returned back to the land since 1977 until the claimant instituted this action against the Defendant in February, 2007.
12. That since the time the Defendant took full possession of the land in 1977 and the period of time when this suit was filed in court on 28th February, 2007 which is clearly (30 years) thirty years, that nobody, and no member(s) of the claimant’s family including their past (3) three MOGAJI ABUDU who have been the heads of the claimant’s family in Ilorin ever challenged or disturbed the Defendant from his peaceful holding of the land since that period (1977).”
It is instructive to observe that written addresses were filed and exchanged by the parties in respect of the position taken by each. Needless to say on the 3rd of July, 2008, oral arguments for and against the application were advanced by the counsel and the learned trial judge adjourned the application for ruling on the 22nd of September, 2008.
In a reserved ruling delivered on the said date (26/09/2008) the learned trial judge, M. A. Folayan (J) held inter alia thus:
“It is my view that if the court should pick and choose any of the documents relied on by the defendant for the purpose of this case being statute barred it will occasion a miscarriage of justice because all those documents are being challenged by the claimant. And since the act of trespass has not ceased, the time has not cease to run and I therefore hold that this suit is not statute barred. The preliminary objection is hereby dismissed.”
Aggrieved by the ruling of the learned trial judge, the applicant appealed to this Court upon a notice of appeal which carries four grounds. With the leave of the Court two more additional grounds were filed.
Learned Counsel for the parties on 24/11/2010 adopted their briefs of argument.
The appellant’s brief dated 10/08/2009 was filed on 11/8/2009. In response to the respondent’s brief, learned Counsel filed a reply-brief on 2/10/2009. Learned Counsel adopted the two briefs as his argument in this appeal and urged the Court to allow the appeal.
Learned Counsel for the respondent also adopted his brief dated 08/09/2009 but filed on 08/09/2009 as his argument in this appeal and urged us to dismiss the appeal for lacking in merit.
In a brief settled by M. A. Bello, Esq. six issues were distilled from the six grounds of appeal as follows:
“(i) Whether the learned trial judge was right in his holding that the attachment of Exhibit CR 1 was satisfactory to discharge the onus on the Respondent to prove he was authorized to sue on behalf of the family? This issue arises from Ground I.
(ii) Whether, despite the abundance of evidence before him the learned trial judge is justified in holding that the Appellant’s plea of statute-bar failed because he gave several dates when the cause of action could have arisen? This issue arises from Ground II.
(iii) Whether on the peculiar facts of this case the Respondent’s claim that his signature was forged properly arises for consideration on the question of statute-bar to warrant the learned trial judge’s holding that a trial on the merits is desirable? This issue arises from Ground III.
(iv) Whether the learned trial judge is justified in raising the issue of continuing trespass SUO MOTU and thus assume jurisdiction over a claim not before him in a bid to defeat the Appellant’s defence of statute-bar? This issue arises from Ground IV.
(v) Whether the learned trial judge properly exercised his judicial discretion on established principles in deciding the preliminary objection? This issue arises from
Ground V.
(vi) Whether after correctly identifying the principles upon which the Appellant’s plea of statute-bar ought to be decided, the learned trial judge was right in overlooking and/or ignoring palpable evidence on record establishing those principles? This issue arises from Ground VI.
Learned counsel intimated the court that issues (i), (iii) and (iv) will be argued separately while issues (ii), (v) and (vi) shall be argued together.
On the other hand, in a brief settled by F. B. Fabiyi, Esq. four issues were formulated for determination and they are that:
1. Whether the trial court was right in holding that the claimant has the authority of the members of his family to sue in a representative capacity (p. 157 lines 21-22 of the record of proceedings: this relates to Grounds 1 of the Ground of Appeal to the Court of Appeal at page 161 of the record of Proceedings)
2. Whether the trial Court was right in holding that it is when the Claimant became aware of the defendant’s presence on the said land that the time begins to run (p.158 lines record 31-33 of the of proceeding: This relates to Ground IV of the Ground of Appeal to the Court of Appeal at page 163 of the record of proceedings.
(3) whether the trial High court was right to have held that the Defendant gave different dates, that is 1976, 1977, 1988, 1994 and 1997, the Claimant gave 2006, who to believe now becomes a matter of evidence to which case the title documents submitted must be looked at and properly scrutinized since the Claimant is challenging the authenticity of the documents (p.158 lines 34-36) or the record of proceedings: This relates to Grounds II and III of the Grounds of Appeal to the Court of appeal on pages 162 of the record of proceedings).
(4) Whether the trial High court Judge has introduced new issue to this case by holding that if the act complained of is still continuing and not concluded the action still lies and such suit can not be statute barred {p.159 lines 4-6 of the record of proceedings: This relates to Grounds IV, and VI of the Grounds of Appeal to the Court of Appeal on pages 163 and 165 of the record of proceedings).
In arguing issue No. 1, learned counsel after referring to the holding of the learned trial judge at p. 157 of the record wherein the learned trial judge held thus:
“On the authority of the case of OLATUNJI VS. REGISTRAR CO-OPERATIVE SOCIETIES (1986) NMLR page 393, the attachment of exhibit “CR 1″ has satisfied the onus on the claimant that he must prove that he has the authority of the members of the family he claims’ to represent…” Lines 6-10).
Submitted that the trial judge, with respect due to him was wrong to have held so. It the contention of the learned counsel that a perusal of Exhibit CR I readily shows that it refers to an authority to sue LUBCON NIG. LTD. dated the 19th day of January 2006, and has nothing to do with the appellant. It is his further contention that, to that extent, the case of Olatunji vs. Registrar Co-operative, societies has no application in the instant case and that the lower Court ought to have held that the respondent has no authority to sue in this instant case.
Learned counsel for the respondent on the other hand argued per contra and submitted that the claimant/respondent herein has the authority of his family members to sue the defendant/appellant in a representative capacity. Learned counsel contended that the trial court was right in dismissing the appellant’s motion challenging the jurisdiction of the trial Court to entertain this matter on the ground that the respondent lacked the locus standi to institute this action.
It is the contention of the learned counsel that what the respondent needs to show to establish before the trial court that he has the authority of his family members to institute this action is that, the right is communal and that the claimant has sued for himself as an interested party and on behalf of others who have joint or common interest with him on the subject matter of the suit.
It is his further contention that under order 5 Rule 2 of the High court of Kwara state (civil procedure) Rules 2005, what the respondent is required to do when suing in a representative capacity is to endorse the writ of summons that he is suing in a representative capacity. Learned counsel opined that the respondent strictly complied with the provisions of the order by endorsing his writ of summons to the effect that he sued them in a representative capacity.
Learned counsel submitted that where the parties have common interest, grievance and the relief sought is beneficial to all the parties whom the claimant proposes to represent a representative suit is valid and will be allowed to avoid unnecessary proliferation of claims in court in respect to one subject matter. For this submission learned counsel referred us to the case of Adediran vs. Interland Transport Ltd. (1991) 9 NWLR (part 214) 155.
It is the submission of the learned counsel that since issues have been joined in their pleadings on whether the claimant obtained authority from his family or not before the institution of this suit and the trial judge has not taken evidence from the parties on the issue, he (trial judge) was right to have held among others that the issue of authority to sue can only be resolved at the trial. He relied on the case of Enang and others vs. Adu (1981) 11 – 12 SC p. 25 (a) to buttress his submission on this point.
Learned Counsel contended that before instituting this action for and on behalf of his family members, respondent filed an ex parte application dated 26th day of February, 2007 to sue for and did obtain the leave of the trial court to institute the action in a representative capacity. Learned Counsel further contended that Exhibit CR shows that the family members of the respondent latently and tacitly gave their authority to the respondent to institute the action. The fact that the name of LUBCON NIG. LTD. is mentioned on Exhibit CRI will not erode such authority given to him by his other family members to institute the action. Learned Counsel urged us to resolve this issue in their favour.
RESOLUTION OF THE ISSUE
Now, the first port of call in determining this issue is, to ascertain from Exhibit CR1 whether or not the said Exhibit has clothed the respondent with authority to institute the action in a representative capacity for and on behalf of other members of his family as canvassed by the learned counsel for the respondent.
To do justice to the competing arguments of both sides on this Exhibit, since same is not unwieldy, it is reproduced thus:
“LETTER OF AUTHORITY
We, the undersigned who are principal members of ABUDU LATEJU’S family of No. 2 Gambari Road, Ilorin, Kwara state held a family meeting on the 19th January, 2006 and appointed ALHAJI YAKUBU ABUDU LATEJU who is a member of our family to institute Court action for ABUDU LATEJU’S against LUBCON NIG. LTD. and to represent our interest in the matter.
Dated this 19th day of January, 2006.
(SGD)
OLATEJU
………………………
Mogaji Abudu Lateju
(Family Head)
(SGD)
AMBALI
…………………….
Alfa Ambali Kurangu
(Principal Member)
(SGD)
IKOLU……………
Mallam Awedu Ikolu
(Principal Member).”
It is instructive to note that the contents of the letter of authority reproduced above are very clear and unambiguous and no aid is required for their interpretation. The contents needless to say are self-explanatory. The tendering of the Exhibit (CRI) to my mind is a fortification of the appellant’s argument that the respondent has no authority to sue in this instance, as the authority granted therein is specific, limited and not general nor at large. I am of the further view that there is no way you can stretch the contents of the said exhibit to include the appellant. The letter of authority authorizing the respondent to sue in a representative capacity for and on behalf of family members of the respondent is direct, positive and explicit.
The authority as per the exhibit is limited to suing LUBCON NIG. LTD, but not any other person.
Learned counsel for the respondent has made heavy weather of the fact that the respondent and the members of his family have a common interest, grievance and the relief sought is beneficial to all the parties whom the claimant proposes to represent, but with due respect to the learned counsel, these requirements of suing in a representative capacity can only be called in aid of a litigant where the letter of authority is not specific, direct or positive as to the party to be sued. At the risk of being repetitive, the letter of authority is specific as to the party the respondent had been given authority to sue? This being the case, I am of the considered view that the cases of Adediran vs. Interland Transport Ltd, Enang and ors B. Adu and Olatunji vs. Registrar co-operative societies Ltd. (supra) relied upon by the learned counsel are not apposite to the facts of the case in hand.
Learned counsel for the respondent placed reliance on the provision of order 5 rule 2 of the Kwara state High court (Civil/Procedure) Rules, wherein he submitted that, all what is required the respondent to do, is to endorse that, he is suing in a representative capacity. But like the contents of Exhibit CR1, the provision of the said order and rule, looking at them closely cannot be said to have clothed the respondent with authority to sue the appellant on behalf of himself and other members of his family. Order 5 Rule 5 of the said Rules provides thus:
“Where a claimant sues, or the defendant or any several defendants is sued in a representative capacity, the originating process shall state the capacity” (underlining supplied for emphasis).
In the case we have in hand, the issue is not whether the respondent has the capacity to institute the action in contention but his capacity has been circumscribed by the Exhibit itself. For avoidance of doubt, the capacity of the respondent to sue for and on behalf of members of his family is not in doubt but same (capacity) is limited to suing LUBCON NIG LTD. but not the appellant.
Again, learned counsel for the respondent quite copiously stated in paragraph 2.02 of his brief that, he sought and obtained leave of the lower Court to sue in a representative capacity. I have carefully and meticulously examined the record of the lower court deemed filed and served on the respondent on the 30th day of June,
2009 but could not find where such application was made and granted by the learned trial judge. I hasten to say that what the learned counsel stated in paragraph 2.02 of his brief is not borne out by the records. The record served on the respondent, needless to say remains sacrosanct, unimpeachable and binding. The argument contained in the said paragraph (2.02) in view of the foregoing is hereby discountenanced.

It is pertinent to pause at this juncture and state that the law is trite that it is a cardinal principle of interpretation of documents that whatever is not mentioned is excluded.
I am of the firm view that failure of the respondents family to specifically mention the appellant in Exhibit CRI, shows that the authority to sue is limited to LUBCON Ltd, and if the respondent could procure Exhibit CRI in 2006 to sue LUBCON Ltd, there is no rational explanation behind his failure to obtain a specific authority in respect of the appellant in 2007 other than that he does not have the backing of his family to institute the suit.
For the foregoing reasons, this issue is resolved in favour of the appellant and against the respondent.
The resolution of this issue in favour of the appellant would have lain to rest the determination of other issues formulated by the parties. But like I have always said, in view of our penultimate position in the hierarchy of courts we have in the country, consideration will be given to the remaining issues in case we are overruled.

The next issue for determination as set out by the appellant is issue No.3 which is whether, on the peculiar facts of this case the respondent’s claim that his signature was forged properly arises for consideration on the question of statute-bar to warrant the learned trial Judge’s holding that the trial on the merits is desirable?
In arguing this issue, learned counsel for the appellant referred to pages 158-159 of the record, wherein the Judge held inter-alia that since the respondent was disputing the authenticity of the documents relied by the appellant, it became necessary to go into the merits of the case. Learned counsel contended that, this is not a prerequisite for determining the question of statute bar. It is his further contention that the only consideration in determining the question of statute-bar is the date the cause of action arose, and date the suit was filed.
It is the submission of the learned counsel that the authenticity of the documents of title complained about by the respondent could easily have been ascertained by a careful perusal of other document and consideration of other collateral facts in the case without recourse to a hearing on the merit. Learned counsel alluded to the fact when the documents of title of the appellant were discovered missing. He also alluded to the fact that despite all efforts of tracing same proved abortive. Learned counsel contended that the file copy of the certificate of occupancy No. KW10755 in respect of the land in question was attached to the writ of summons and statement of claim by the respondent without accounting for his source.
It is his further contention that the inferences to be drawn from the above stated facts are that the missing file was stolen by the respondent and more importantly the respondent has been aware of the appellant’s interest in the land since or about the 23rd July, 1977. Learned counsel opined that there is no basis therefore that the respondent’s claim that the signatures are forged or that they are not authentic, especially as he did not claim to be the person purported to have executed the document on behalf of the family in 1977. We were urged to resolve the issue in favour of the appellant.
For his part, learned counsel for the respondent submitted that the different dates given by the appellant as to when cause of action arose based on Exhibits JAB1, JAB2, JAB3, JAB4, JAB5, and JAB6 are self contradictory. Learned counsel alluded to the challenge of the genuiness and authenticity of the exhibits in their counter-affidavit and reply to the appellant’s preliminary objection and contended that there exist fundamental contradiction in the case which cannot be resolved until oral evidence is heard in the substantive case so as to determine the correct dates, the original and genuiness of the Exhibits. Learned counsel opined that, the trial High court was therefore right to have held that the Court cannot make pronouncement on this without going into the substantive case. For this submission, learned counsel relied on the case of Momah vs. VAB PETROLEUM INC (2000) 1 SCNQR 348.
On the missing document, learned counsel submitted that, Exhibit JAB 6 is a public document in the custody of the Kwara state Ministry of Land and Housing, Ilorin and this being the case, learned counsel went on; it would therefore be naive and unconceivable for the appellant to have submitted that the claimant/respondent stole the file. Learned counsel alluded to the averments in the counter affidavit of defendant/respondent where it was averred that he left the document (Exhibit JAB 6) with the family of the claimant in the year 2006 when he was making effort to settle with the family after he was discovered to have entered the family land. This allegation, learned counsel canvassed is criminal in nature which ought to be proved beyond reasonable doubt. It is the contention of the learned counsel that these learned allegations and counter allegations were what the court considered to have ruled that the issue of statute-bar cannot be determined except evidence is taken in the substantive case. For this contention, learned counsel referred us to the case of Ibadan LGPC Ltd and other vs. Mr. David Okunade (2005) 3 NWLR (pt. 911) 45 at 48 to support his contention.

RESOLUTION OF THE ISSUE
It is appropriate from the onset, before delving into whether the action is statute barred or not to albeit briefly define what a cause of action is and when it can be said to have arisen.

The law is trite that a cause of action is a fact or set of facts which gives a person a right to judicial relief. A situation or state of facts which would entitle party to sustain an action and give him right to seek a judicial remedy on his behalf. A cause of action arises on the date of occurrence, neglect or default complained of and not the consequence or result of any of the above. See Mojojo vs. Oyetayo (2003) 8 M.J.S.C. 161 at 163 paras C, per Tobi, JCA.
Now given the peculiar facts of this case, can it be said that the claim that the signature of the respondent was forged, properly arisen for consideration on the question of statute-bar to warrant the holding learned trial judge that a trial on the merits is desirable? To answer this question, recourse had to be made to what the law entails for a successful plea of statute bar in an application such as the one we have at hand.

It is pertinent to pause and observe that at the stage of raising the defence of statute bar in an action such as the one in hand only documents filed by the parties, particularly the statement of claim and the Writ are to be considered. It is from these documents, one would be able to know when the cause of action arose and whether or not same is statute barred.
It is trite law that, where a statute of limitation prescribes a period within which an action should be brought; legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute-barred. See Ogunko vs. Shelle (2004) 6 NWLR (pt. 868) 17 and Osun State vs. Dalame Nigeria Ltd. (2007) Alt FWLR (pt. 365) 438.
It is also settled law that, time be-gins to run for the purposes of the limitation law from the date the cause of action accrues. See British Airways Plc vs. Akintoye (1995) 1 NWLR (pt. 374) at 724; Shell Pet. Dev. Co, (Nig) Ltd. vs. Farah (1995) 3 NWLR (Pt. 382) 148 at 156; Jalko Ltd. vs. Owoniboys Tech. services Ltd. (1993) 4 NWLR (pt. 391) 534 at 539 and Asaboro vs. Pen Ocean Oil (Nig) Ltd. (2006) 4 NWLR (pt. 971 595.

Learned counsel for the respondent has made heavy weather of the genuiness or otherwise of the exhibits exhibited by the appellant in support of his application. With respect due to the learned Counsel, I am of the view that the authenticity or otherwise of the documents filed by the appellant to support his title has no role to play in the issue as it is more a question of when did actual physical possession by the appellant take place.
That aside, a careful and meticulous examination content of the Exhibit JAB 3, a Deed of Allotment between the representative of respondent and the appellant executed as far back as 23rd day of July, 1977 are quite clear and unequivocal in vesting the appellant with title over the land from that date. And Exhibit JAB 7, a valuation certificate issued on 4/6/1993 in which it has been stated quite categorically that details of the improvements on the plot includes about 29882.00 sq. meters” and is fenced on three sides with sand-concrete blocks to about three to four course height taken together is quite apparent that the respondent’s claim that the signature on Exhibit JAB 3 was forged is a mere afterthought. This is more so when the provisions of sections 123 and 130 of the Evidence Act are taken into consideration. Needless to say, by the combined effect of the provisions of the two sections, there is a presumption of genuiness in favour of a document which is 20 years old. Exhibit JAB 3, Deed of Allotment was executed about 34 years ago.
Again, assuming but not conceding the fact that the issue of forgery of the signature on Exhibits JAB 1 and JAB 3 is material to a consideration of the application in hand, the fact that the respondent had been aware of these documents since 1997 as can be gleaned from the arguments put up in support or his position, should have swayed the trial judge to hold that his (respondent) cause of action arose in 1977 which makes his (respondent) action statute barred. Let me say that, Exhibit 7 (valuation certificate) refers to the appellant’s fence on the land (evidence of adverse possession) which was on that date valued. The difference between that date and the 6th February, 2007 when the suit was filed period is a fourteen of years, eight months and two days. Section 4 0f the Limitation Law of Kwara State limits the period to 10 years.
For the foregoing reasons, this issue is resolved in favour of the appellant and against the respondent.
The next issue for determination is issue No. 4 which is whether the learned trial judge is justified in raising the issue of continuing trespass SUO MOTU and thus assume jurisdiction over a claim not before him in a bid to defeat the appellant’s defence of statute bar? Learned Counsel began his argument on this issue by urging us to answer the question raised in this issue in the negative. Learned counsel submitted that that the trial judge had no power to SUO MOTU raised an issue not submitted for trial by the parties and based his decision thereon.
The law is trite, learned counsel further submitted that, courts of law are under duty to confine their decisions to issues raised by the parties before them. For this submission, learned counsel referred us to the cases of Bhojsons PLC vs. Geoffery K. Daniel-Kalio (2006) S.C. (Pt. 11) 91 at 101 – 103 and Oshatoba vs. Olujitan (2000) 8 NWLR (Pt. 655) 159 at 179 to buttress his submission on this point. We were urged to resolve this issue in favour of the appellant.
For his part, learned counsel for the respondent argued per contra and submitted that the trial Court did not introduce new issue to this case because in the appellant’s writ of summons and his statement of claim, the appellant averred that the Defendant/respondent entered and trespassed on the said land without the claimant’s family consent and approval.
It is the contention of the respondent’s Counsel that since the claimant/respondent claimed in his writ of Summons and statement of Claim that the appellant entered and trespassed on his family land, the issue of continuing trespass was not a new issue raised by the trial court SUO MOTU. He urged us to resolve the issue in their favour.

RESOLUTION OF THE ISSUE
In resolving this issue, my first port of call is the writ of summons and the Statement of Claim filed by the respondent with a view to finding out whether or not the respondent in the said documents has raised the issue of trespass as canvassed by his learned Counsel. A careful and meticulous examination of the two documents would show that the respondent had not raised the issue of trespass; his Counsel had made heavy weather of. The two documents clearly show that the action is for declaration of title; an order setting aside the certificate of occupancy No.KW/10755 unlawfully issued to the defendant/appellant by the Kwara State Government in respect of the portion of the land and a declaration that the said Certificate issued in respect of the land is null and void.
It is instructive to note that in spite of what has been stated supra, the learned trial judge held at p. 159 of the record thus:
“One can also look at it from the angle of a continuous act of trespass. If the act complained of is still continuing and not concluded then action still lies and such act cannot be statute-barred…”
In the light of the above, I am of the considered view that the learned trial judge by so doing was making a case for the parties outside the pleadings, which a court of law cannot do. This is so because the respondent had not made, at any time, the issue of trespass part of his case. I am therefore of the further view that the issue of continuing trespass could arise for consideration either at any interlocutory stage or at the end of the trial. This issue, like the previous ones is resolved in favour of the appellant and against the respondent.
Issues II, v and VI as can be gleaned from the appellant’s brief are as follows:
“ii. WHETHER, despite the abundance of evidence before him the learned trial judge is justified in holding that the Appellant’s plea of statute-bar failed because he gave several dates when the cause of action could have arisen? This issue arises from Ground II.
v. WHETHER the learned trial judge properly exercised his judicial discretion on established principles in deciding the preliminary objection? This issue Arises from Ground V.
vi. WHETHER after correctly identifying the principle upon which the Appellant’s plea of statute-bar ought to be decided, the learned trial judge was right in overlooking and/or ignoring palpable evidence on record establishing those principles. This issue Arises from Ground VI.
Learned counsel for the appellant urged us to answer the said issues in the negative. These issues learned counsel went on, are on all important issue of statute-bar submitted for the consideration of the learned trial judge and the ruling on which culminated in this appeal.
Learned counsel contended that part of the appellant’s complaint against the respondent’s suit before the lower court is that the suit is statute-barred and cannot be maintained. The lower Court, learned counsel went or, dismissed the notice of preliminary objection on grounds inter-aria that the appellant was not specific as to the date he believes the respondent’s cause of action arose but gave several dates, while the respondent gave a particular and specific date when he became aware of the appellant’s interference with his right to the land.

RESOLUTION OF THE ISSUES
In resolving these issues, let me mention from the onset that the respondent in his brief did not respond to these issues for he formulated only four issues for determination against the six issues distilled by the appellant. I have decided albeit to touch on these issues because the appellant is the complainant, the appeal is his.
I am of the considered view that contrary to the views expressed by the learned trial judge, it was not out of place for the appellant to have given several dates when the cause of action would have accrued to the respondent and that it is the duty of the trial court to determine if the cause of action could properly be said to have accrued on any of all of those dates given.
I am of the further view that in the instant case, the cause of action could have arisen either upon the execution of Exhibit JABI, JAB3 or any date prior to the making of Exhibit JAB7 (indicating the existence of the Appellant’s fence before the making thereof). The respondent’s claim that he became aware of the incursion by the Appellant in 2006 should therefore have cut no ice with the learned trial judge, as all that matters is the accrual of the cause of action and not when a claimant claims to become aware of the right, especially in this case where a fence could not have gone unnoticed by the Respondent who claimed not only to have also been in possession, but to be living on the land.
For these reasons adumbrated above, all the three issues listed supra are resolved in favour of the appellant and against the respondent.
In conclusion, all the issues having been resolved in favour of the appellant, this appeal succeeds and it is hereby allowed. The ruling of the learned trial judge is set aside. The preliminary objection raised by the appellant succeeds. The action of the respondent is statute barred. Same is hereby dismissed accordingly with N50, 000.00 costs to the appellant and against the respondent.

SOTONYE DENTON-WEST, J.C.A.: The facts and the issues for determination in this case have been set out in the lead judgment of my respected and learned brother Tijjani Abdullahi, JCA.
These issues raised therein satisfaction, were when my brother resolved of the Appellant and against the Respondent, in these words:
“In conclusion, all the issues having been resolved in favour of the appellant, this appeal succeeds and it is hereby allowed. The ruling of the learned trial judge is set aside. The preliminary objection raised by the appellant succeeds. The action of the respondent is statute barred. Same is hereby dismissed accordingly with N50, 000.00 costs to the appellant and against the respondent.”
Therefore, I have nothing more to add.
Accordingly, I am obliged to also allow the appeal and thus abide by all consequential order made therein.

IGNATIUS IGWE AGUBE, J.C.A.: I have been privileged to read in advance the lead judgment of my learned and Noble Lord Tijjani Abdullahi (P.J), and as usual he has succinctly dealt with all the teething issues raised by parties in the Appeal at hand before arriving at the conclusion that the Appeal is meritorious and should be allowed.
There is nothing more to add as I am in complete agreement with his reasoning and conclusions on all the issues formulated. I too shall allow the appeal on all the grounds and set aside the judgment of the lower Court. The preliminary objection raised by the appellant also succeeds as the action of the Respondent is statute barred. I abide by the order as to costs.

Appearances

1. M. A. Bello Esq.
2. B. Abdutzeez. For Appellant

AND

A. S. Jimoh Esq. For Respondent