J. A. N. ELUKPO v. RAIMI ADINOYI IBRAHIM & ANOR. (2013)

J. A. N. ELUKPO v. RAIMI ADINOYI IBRAHIM & ANOR.

(2013)LCN/6699(CA)

In The Court of Appeal of Nigeria

On Monday, the 18th day of February, 2013

CA/A/152/2009

RATIO

WHETHER ARGUMENTS IN A BRIEF ARE TO BE CANVASSED ON THE BASIS OF ISSUES FORMULATED

It is settled principle that arguments in a brief are to be canvassed on the basis of issues formulated and not on the grounds of appeal ALAO v. OKRO (1991) 7 NWLR (pt.203) 260 SC; ADEYERI ii v. ATANDA (1995) 5 NWLR (pt.397) 512 at 518 SC. It is therefore not mandatory that the grounds of appeal are reflected along with the issues formulated. In my view, the whole essence of the modern practice identifying the grounds of appeal besides the issues formulated is to show that the said issues emanate from the grounds of appeal filed, since any issue for determination not related to any ground of appeal is irrelevant, and must be discountenanced by the court – IBATOR v. BARAKURO (2007) 9 NWLR (pt.1040) 475. Per TINUADE AKOMOLAFE-WILSON, J.C.A.

WHETHER THE EXISTENCE OF A CAUSE OF ACTION IS DETERMINABLE ONLY FROM THE PLEADINGS OF THE PLAINTIFF

It is trite law that the existence of a cause of action is determinable only from the pleadings of the plaintiff. Hence in order to determine the date a cause of action arises, the court is enjoined to examine the writ of summons and the statement of claim of the plaintiff so as know the date the alleged wrong was committed and compare that date with the date the writ of summons was filed. If the time in the writ is beyond the period allowed of the Limitation Law, then the action is statute barred. See WESTERN STEEL WORKS LTD. v. IRON & STEEL UNION OF NIGERIAN & ANOR (1987) 1 NWLR (pt.49) 284. Per TINUADE AKOMOLAFE-WILSON, J.C.A.

WHETHER THE MATERIAL FACTS AND DETAILED PARTICULARS TO ESTABLISH FRAUD MUST BE SPECIFICALLY PLEADED

WHETHER LEGAL PROCEEDINGS CAN BE VALIDLY INSTITUTED UPON THE EXPIRATION OF THE PERIOD PRESCRIBED BY THE STATUTE OF LIMITATION.

Where statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration period of the prescribed period is said to be statute barred. OSUN STATE GOVT v. DAKOMIMY LTD. (2000) ALL FWLR (pt.365) 438; JALLICO LTD v. OWONBOYS TECH. SERVICE LTD. (1995) 4 WLR (pt.391) 551 at 538. An action filed outside the period will lapse due to effluxion of time. See CPC v. INEC & OR (2011) LPELR 8257 LLPEL (SC). Per TINUADE AKOMOLAFE-WILSON, J.C.A.

Before Their Lordships

HUSSEIN MUKHTARJustice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODOJustice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSONJustice of The Court of Appeal of Nigeria

Between

J. A. N. ELUKPOAppellant(s)

AND

1. RAIMI ADINOYI IBRAHIM
2. ATTORNEY-GENERAL OF KOGI STATERespondent(s)

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice, Lokoja, Kogi State delivered by Hon. Justice S. K. Otta on 8th January 2009 wherein the claim of the claimant was struck out for being incompetent having been filed outside the statutory period.
All parties filed their respective briefs of argument. At the hearing of the appeal on 21st November 2012, the appellant’s brief filed on 23rd July 2009 settled by Chief J.A.N. Elukpo, Esq, in person, was deemed filed. The 1st respondents brief of argument settled by Abdullahi M. Aliyu Esq., was also deemed filed. Therein, he gave a notice of preliminary objection in paragraph 3.01 challenging the competence of this appeal, and urged this Hon. Court to strike out the appeal. The 2nd respondent’s brief of argument dated 3rd of September 2009 and filed on 4th September 2009 was settled by I. O. Alhassan Esq. Both the 2nd respondent and his counsel were absent at the hearing of the appeal; though his counsel was aware of the date of hearing. However, the brief of argument of 2nd respondent was deemed adopted and argued by the court. In the brief of argument, 2nd respondent also raised a preliminary objection, contending that grounds 3 – 12 of the Notice of Appeal are incompetent and therefore should be struck out. The appellant filed a Reply Brief to the Briefs of Argument of the 1st and 2nd respondents on 2nd October 2009. Therein, he also replied to the notice of objection of the 1st and 2nd respondents.
The grounds of the preliminary objection of the 1st respondent are –
“i. Parties did not adduce evidence at the trial court.
ii. The learned trial Judge merely considered the statement of claim in arriving at his decision.
iii. The omnibus ground of appeal (Ground 1) is therefore not available to the appellant.
vi. Ground 2 did not challenge the ratio decidendi of the ruling of the learned trial Judge.
v. Ground 2 is equally incompetent.
vi. Grounds 3 – 12 have been abandoned.
vii. There is no competent ground to support the Notice of Appeal.
viii. Grounds 2 – 12 are academic.
ix. The entire appeal is incompetent.”
It is the submission, of learned counsel for the respondent that the appellant formulated only two issues for this appeal which are from grounds 1 and 2 of the Notice of Appeal while no issues were raised on Grounds 3 – 12. He therefore urged the court to strike out grounds 3 – 12 as they are deemed abandoned. He cited authorities in support.
Learned counsel noted that appellant’s issue No 1 was formulated on Ground 1 of the Grounds of Appeal, the omnibus ground, which complains of the weight of evidence whereas no evidence was adduced at trial since the case was dismissed in limine. He submitted that omnibus ground is not available to an appellant when no evidence was adduced at the trial and therefore it is liable to be struck out as incompetent and the issues arising therefrom ought to be discountenanced. He relied on AWOLESI MOTORS (NIG) LTD. v. DINA (1994) 2 NWLR (pt.326) 368 at 374 para C; MOBIL OIL NIG. LTD. v. COKER (1975) MSCC 108 at 112, KAIKA v. YAZID (2001) 17 NWLR (pt.453) 431 at 453 para A – D; MILITARY GOV., ONDO STATE v. AYAYI (1998) 3 NWLR (pt.546) 27 at 44 paras F – G.
On appellant’s issue No.2, it is Mr. Aliyu’s contention that it is academic and of no practical utilitarian value since the appellant has conceeded that the Kwara State Limitation Law, (which was applied by the learned trial Judge) is in pari material with Benue State Limitation Law which the appellant opined is the appropriate law. According to the 1st respondent relying on ISHOLA v. AJIBOYE (1994) 6 NWLR (pt.352) 506 at 566 para B, the issue formulated therein should be struck out as academic and not based on the ratio decidendi of the court. Learned counsel argued that if grounds one and two are struck out and 3 – 12 are deemed abandoned then it leaves the Notice of Appeal bereft of any grounds. Relying on AMADI v. OKOLI (1977) NSCC 177 at 122, counsel submitted that any Notice of Appeal that has no ground is incompetent and ought to be struck out, and so urged the court accordingly.
The 2nd respondent, in a simplistic manner also urged the court to strike out grounds 3 – 12 on which he contends are deemed abandoned because no issue was formulated on them. He relied on ALI v. ALBASHIR (2008) 3 NWLR (pt.1073) 94 at 135 paras. D – E; IBRAHIM v. MOHAMMED (2003) 6 NWLR [pt.817] 615.
Learned counsel for the appellant responded to the notice of objection in paragraphs 2.00 – 2.06 of his Reply Brief. He submitted that the appellant did not abandon grounds 3 – 12. He cited UKPO v. IMOKE (2009) 1 NWLR (pt.1121) 90 at 109, 129 to show that grounds of appeal can be contracted to form issue for determination though the grounds are not expressly stated and that it would amount to a misdirection to regard such grounds as abandoned, since the court has power to formulate issues from competent grounds of appeal. It is also appellant’s contention that the respondents are only trying to use technicalities against the merits of the case which should not be allowed – ORIJA v. AKOGUN (2009) 10 NWLR (pt.1150) 441 SC. Mr. Elukpo therefore, urged the court, based on his submissions herein including the appellant’s brief, the Reply Brief and the Record of Appeal, to discountenance the Respondents notice of objection as ill conceived.
In the main appeal, the two issues formulated by the appellant are –
“(1) Whether the learned trial Judge properly evaluated the case of the appellant (Ground 1).
(2) Whether the learned Judge was right when he held that Kwara State Limitation Act (sic) was applicable in this case (Ground 2).”
The 1st respondent in the alternative without prejudice to his, notice of objection considered two issues for determination:
“(i) Whether the learned trial Judge was right to have held that it was Kwara State Limitation Law that applied to this case?
(Grounds 2, 7 and 8).
(ii) Whether the learned trial Judge was right that this action, which was more than 15 years after the accrual of the cause of action, was statute barred. (Grounds 3, 4, 6, 9, 10, 11 and 12).”
On his part, the learned counsel for the 2nd respondent distilled two issues for determination from what he regarded as the remaining two grounds of appeal (grounds 1 and 2) in view of his notice of objection; as follows:-
i. Whether the learned trial Judge appraise (sic) and evaluate (sic) the evidence and was right when he held that the claimant’s suit was statute barred having been filled (sic) outside the statutory period.
ii. Whether the learned trial Judge was right when he held that Kwara State Limitation Law was applicable in Kogi State having been created out of Kwara State.”

It is now apt to consider the preliminary objection first before delving into the main issues of the appeal. The principles of law enumerated by the learned counsel for the 1st respondents on the preliminary objection are correctly stated. In AWOLESI MOTORS NIG. LTD. v. DINA (1994) 2 NWLR (pt.326) 368 at 374 paragraphs C, the Court of Appeal stated thus:-
“However, where in a case the defendant called no evidence, it has been held that a plaintiff cannot appeal on the ground that the judgment is against the weight of evidence. See ODUFUNADE v. ROSSEK (1962) 1 ALL NLR 98. That being the case, afortiori and it necessarily follows that in the circumstance of this, case, where the ruling is a final decision in a matter where no evidence has been led and the case is not fully presented by affidavit evidence, and it is not possible for any assessment or evaluation of the evidence to be made nor inference to be drawn from the facts contained in the affidavit evidence, a general ground of appeal cannot be invoked and the question of what weight to be given to the evidence does not come to play.”
However, in the instant case a perusal of the argument of the learned counsel for the appellant shows that, rightly or wrongly, in his argument he did not rely only on the affidavit evidence in proof of his submission in respect of the substantive objection of the respondents on statute of limitation. He also relied on the statements of oath of the 1st respondent which according to him, evinces the fraud he complains about which he submitted is a defence to the plea of Statute of Limitation. Thus, a calm examination of the points canvassed under Issue No.1, shows that the points postulated thereunder go beyond Ground one of the Notice of Appeal. It is in fact, a swipe at the totality of the judgment of the court and the argument thereunder encompasses many other competent grounds of appeal, (apart from Ground No.1) in the Notice of Appeal based mainly on “omnibus ground of appeal.” For instance, in his argument in support of submission of issue one he captioned the heading as –
“Whether the failure of the learned trial Judge to property (sic) evaluate the whole case of the plaintiff to weigh the evidence at the trial has occasioned a miscarriage of justice (Ground 1).
The fact that he referred to ground one of the Notice of Appeal as where the issue is distilled is completely immaterial. In my view what is important is the argument advanced thereunder; that is whether or not the argument is covered by the grounds of appeal filed by the appellant.
The same argument also applies to issue No.2 which he tagged as being distilled from ground two of the Notice of Appeal because he bracketed Ground No.2 at its side thereby giving the impression that the issue stems from only ground two. It is settled principle that arguments in a brief are to be canvassed on the basis of issues formulated and not on the grounds of appeal ALAO v. OKRO (1991) 7 NWLR (pt.203) 260 SC; ADEYERI ii v. ATANDA (1995) 5 NWLR (pt.397) 512 at 518 SC. It is therefore not mandatory that the grounds of appeal are reflected along with the issues formulated. In my view, the whole essence of the modern practice identifying the grounds of appeal besides the issues formulated is to show that the said issues emanate from the grounds of appeal filed, since any issue for determination not related to any ground of appeal is irrelevant, and must be discountenanced by the court – IBATOR v. BARAKURO (2007) 9 NWLR (pt.1040) 475.
A calm examination of the grounds of appeal shows repetitions of the same complaints but the issues formulated are covered by the grounds of appeal filed by the Appellant. Also the arguments advanced thereunder are relevant to the other grounds of appeal filed, apart from grounds 1 and 2 identified against the issues for determination. The defects in the grounds of appeal and the couching of the issues formulated border on in-elegant drafting. However inelegant drafting of Grounds of Appeal or issues for determination cannot render such grounds or issues incompetent.
For instance, though ground one appears to be an omnibus ground of appeal, however a perusal of grounds 4, 6, 8 and 10 and the particulars of error thereunder show complaints also on improper review of evidence before the court, to support ground one of the Notice of Appeal, even though those grounds were not elegantly couched. References were also made to some statements on oath of some witnesses. It is trite law that statements of oath is evidence of a witness before the court. The case of AWOLESI MOTORS NIG. LTD. v. DINA (supra) heavily relied upon by the 1st respondent and the other cases relied upon by both respondents are distinguishable from the instant case. On the attitude of the appellate court to inelegantly couched grounds of appeal, the Court of Appeal had this to say –
“Where grounds of appeal are not misled by the contents of a ground of appeal, a complaint about its form, which does not occasion a miscarriage of justice becomes a technicality. This is so because the courts now pursue the path of substantial justice.”
See UKPO v. IMOKE (2009) 1 NWLR (pt.1121) 90 at 130 para F – H. What is paramount is that the issues for determination must come within the compass of the grounds of appeal; since the grounds of appeal are the reasons the appellant considered to be wrong before appealing. See MWARA v. FCDA (2007) 11 NWLR (pt.1044) 59 at page 83 A – B.
In the case at hand, the misconception of both respondents with regard to abandonment of some grounds of appeal is borne out of the fact that the appellant did not quote Grounds 3 – 12 as he did for grounds 1 and 2 on issues 1 and 2 respectively. However, this does not signify the abandonment of those grounds of appeal as they are subsumed in the issues argued.
It is trite law that once the issues for determination formulated can be tied to grounds of appeal, even though not expressly stated, it would amount to a misdirection to hold that the grounds of appeal have been abandoned.
The admonition of the court in UKPO v. IMOKE (supra) page 130 on this issue is pertinent –
“Where there are competent grounds of appeal before an appellate court, in order to do substantial justice, the court rather than strike out the issues formulated by the appellant for being incompetent may look at the grounds of appeal and formulate issues there from.”
However, a careful examination of the grounds of appeal vis-‘E0-vis the issues ventilated by the appellant in his brief of argument reveals complete abandonment of grounds 5 and 8. They are hereby struck out.
In conclusion the preliminary objection of the 1st and 2nd Respondents, concerning abandonment of grounds 3, 4, 6, 9, 10, and 11, of the Notice of Appeal, in view of analysis adumbrated above, is misplaced and misconceived, and it is hereby dismissed.

Only the 1st respondent attacked issue No.2 formulated by the appellant on the preliminary objection. He contends that the issue is based solely on Ground 2 which states thus:-
“The entire judgment is a nullity because the court decision was based heavily on Kwara State Limitation Law.”
I am in full agreement with the learned counsel for the 1st respondent that the ratio decidendi of the court was not based on whether it is the Kwara State or the Benue State Law Limitation that is applicable to this matter. This issue becomes irrelevant in view of the concession of the appellant himself that both laws have exactly the same provisions with the same wordings. In the circumstances, whether it is the Kwara State Law or the Benue State Limitation Law that is applicable becomes an academic matter which has no relevance to the conclusion or decision of the court and has no effect whatsoever on the parties. The law has been settled that a ground of appeal must relate and only attack the decision of the lower court on issues decided by that court otherwise it is an academic matter. See ISHOLA v. AJIBOYE (1994) 6 NWLR (pt.352) 506 at 566 para B. In SARAKI v. KOTOYE (1992) 9 NWLR (pt.264) 156 at 164, the Supreme Court held thus –
“It is well settled preposition of law in respect of which there can hardly be a departure that grounds of appeal must relate to the decision and should constitute a challenge to the ratio of that decision.”
See also ENIGBONKAN v. AMERICAN INTERNATIONAL INSURANCE LTD (1994) 9 NWLR (pt.348) 1; EGBE v. ALHAJI (1990) 1 NWLR (pt.128) 546 at 590. In the instant case, Ground 2 of the Notice of Appeal does not in anyway stem from the decision of the court and does not constitute any challenge to the ratio of the judgment. In the circumstances, Ground 2 of the Notice of Appeal is merely academic. It is hereby struck out. Grounds No.7 and 12 are repetitions of Ground No.2. They are therefore also struck out. However, as stated earlier, the argument on issue No.2 formulated for determination is not limited only to Ground 2 of the Notice of Appeal even though the appellant gave the impression otherwise as he bracketed (Ground 2) against issue No 2. The argument advanced therein goes beyond the issue of whether it is the Kwara State Law or that of Benue State Law of Limitation that is applicable. Under the heading of issue No.2, Mr. Elukpo deliberated on the issue of whether the action is statute barred and also whether the discharge of the 2nd respondent automatically discharges the 1st respondent as decided by the trial court. It is noticed that some of the points discussed under issue two are distilled from Grounds 6, 9, 10 and 12, and not just from Ground No.2. The arguments under issue No.2 are therefore relevant and the consideration of the points raised cannot be ignored by the court.
Before I conclude, it needs to be pointed out that most of the Grounds of Appeal were badly drafted and repetitive. Worse still, is the drafting of the issues for determination. They were badly drafted as the issues ventilated there under surpass the con of the issues as drafted. The arguments are also mixed up making it difficult for the court to identify the particular issues deliberated upon at each point in time. Be that as it may, I am affected by the decision of UKPO v. IMOKE (supra) at page 130 where it states that
Where there are competent grounds of appeal before an appellate court, in order to do substantial justice, the court rather than strike out the issues formulated by the appellant for being incompetent may look at the grounds of appeal and formulate issues there from.
Consequently, I refrain from discountenancing the argument advanced under issue No.2 irrespective of the incompetence of Ground No.2 of the Notice of Appeal. This is because, as said earlier, the argument advanced thereunder are covered by some other competent grounds of appeal in the Notice of Appeal.
This brings me to the main appeal, before the court. In my view, the only issue for determination is whether this action is statute barred. At this juncture, it is necessary to state the facts of the case for purpose of comprehension.
The appellant’s action in the lower court is founded on trespass. The facts relating to his claim can be garnered from his statement of claim at pages 4 – 7 of the Record of Appeal. The appellant claims that he procured the grant of a parcel of land in 1982 and built on part of it. Sometime in 1993, the 1st respondent went to disputed land and on confrontation by the appellant, the 1st respondent showed the Temporary Certificate of Occupancy to the appellant who allegedly informed the 1st respondent that the land belonged to him and not to the State Government who purportedly gave 1st respondent right of occupancy. The 1st respondent went ahead to dig a foundation on the land. The appellant caused his solicitors to write to the 1st respondent and threatened to sue him if he did not stop his act of trespass. The 1st respondent through his solicitors denied any trespass and challenged the appellant to go to court if he believed that the land in dispute belonged to him. The solicitor’s letter written by the appellants lawyer together with the 1st respondent’s reply are on pages 13 – 15 of the record.
Despite this challenge from the 1st respondent the appellant did not file any action in court until 16 years thereafter, when he filed this action in 1999. In explaining why he waited for 16 years, the appellant alleged that though he had wanted to go to court, the 1st respondent, along with several persons begged him not to and at a meeting held on the 18th of June 2000, it was agreed that both the plaintiff (appellant) and the 1st defendant (respondent) should maintain their respective boundaries.
On his part, the 1st respondent denied trespassing upon the appellant’s land and asserted that he was the owner of the land both by virtue of a grant from the traditional land owners in addition to a statutory right of occupancy granted by the Kogi State Government to him, through its official, the 2nd respondent.
The contention of the appellant is that pursuant to the amicable settlement dated 18/6/2000 he abandoned the idea to institute an action in court and that the terms of the amicable settlement were reduced into an agreement captioned “minutes of meeting”. However after some years the 1st respondent violated the terms of the peaceful agreement by swearing to an affidavit to deny the appellant as his neighbour which according to him revealed deceitfulness of the respondent. The appellant therefore later resorted to court, hence the action before the High Court, Lokoja. The learned trial Judge found at page 252 of the Record of Appeal that –
“The net result is that whichever way one looks at the action of the plaintiff either to recover land – (Section 4) 10 years or for Tort (Trespass) – (Section 18) 5 years, it is my considered view that it was filed outside the period allowed by the limitation law (supra).”
What can be deduced and gathered as the complaint of the appellant from the brief of argument of the appellant’s counsel though not properly presented, is that the peace agreement entered into by the appellant and the 1st respondent amounted to a contract which the parties were bound to honour because there was meeting of minds of both contracting parties. HILARY FARMS LTD. & ORS. v. “MAHTRA” SISTER VESSEL TOM v. “KADRINA” & ORS. (2007) 14 NWLR (pt.1054) 210 at 213; NIUM HOTEL LTD v. M.D.C LTD. (2007) 13 NWLR (pt.1051) 237 at 242. He stated that the claimant/appellant at the trial, relied on the statement by the 1st respondent concerning the agreement of 18/6/2000, as a breach of the said agreement and thereby resuscitates the action which according to him accrued only when the appellant became aware of the oath of 19/10/2007 by the 1st respondent in which he fraudulently denied the appellant the agreement of 18/6/2000. It appears to be his contention that the learned trial Judge ought to have held that the transaction between the appellant and the 1st respondent accrued only when the appellant became aware that the respondent fraudulently violated the terms of the contract. He stated that paragraphs 21, 22, 23, 24, and 25 of the statement of claim are statements of facts of fraud, and breach of contract, while the reply to the 1st Defendant’s (Respondent) Statement of Defence filed on 22/7/2008, paragraph 1 (c) and (d) clearly indicate fraud against the 1st defendant. In the same way, that the reply to the 2nd defendant’s (Respondent) Statement of Defence, filed on 20/10/2008 highlighted the issue of fraud in paragraphs 1(c) and (d) (pages 110 and 171 of the Record of Appeal). His argument appears to be that Section 33 of the Limitation Law of both Kwara and Benue States deal with postponement of limitation period in case of fraud, concealment or mistake. He therefore, urged the court to hold that the appellant is not barred by the limitation laws of either Kwara State or Benue State, and the Public Officers Protection Law. It is also Appellant’s contention that since the 1st and 2nd respondents were sued jointly and severally a discharge of one should not offer automatic discharge of the other. On the whole, the appellant urged this Court to hold that the ruling of the lower court is not in line with the evidence before it; and therefore the decision is “pervasive (sic) justice”.
Finally, he urged us to allow this appeal, set aside the ruling of the trial court and in its place, give judgment in favour of the appellant or send the case back to Kogi state for re-trial as this court may deem appropriate.
Abdullahi M. Aliyu Esq, of learned counsel for the 1st respondent submitted that the determining factor for the limitation period in an action is the plaintiff’s writ of summons and the statement of claim vis-a-vis the date of the alleged wrong. He cited EGBE v. ADEFARASIN (1987) ALL MLR 1 at 20 in support. It is counsel’s contention that the cause of action arose in this case when the Appellant wrote a letter dated 24th May 1993 to the 1st Respondent requesting him to vacate the land in dispute else he would be sued, and the 1st defendant refused to comply with the demand. The writ of summons having been filed on 4th June 2009, it is his argument that a period of 16 years has lapsed between the accrual of the cause of action and the filing of his suit. He cited Sections 4 and 18 of the Limitation Law, Cap. 81 Laws of Kwara State, 1994 and submitted that whatever angle one sees the Appellant’s case, whether from the point of view of recovery to title of land, or trespass, the action is statute barred having been filed after 5 and/or ten years as allowed by the law. He further submitted, citing ALUBU v. MEEZ (2003) 1 SCNJ 393 AT 416; ODAKU EKUM HASSAN (1997) 12 NWLR (pt.531) 56; AJIBONA v. KOLAWALE (1996) 10 NWLR (pt.476) 22 at 37 – that once there is adverse possession as in this case, that Limitation Law will apply even if the party is not aware of the trespass. The defendant, he submitted, has been living in his house for over 15 years and therefore the action of the Appellant is statute barred.
It is pertinent to point out immediately, here, and correct the impression created by the learned counsel to the Respondent that the issue of adverse possession is relevant to this suit and to note that he did not refer to the provision concerning adverse possession in respect of either Benue State or Kwara State Limitation Law. The case cited by Respondent’s counsel on this point deal with Lagos State and Western Region which have such provisions in their Limitations Laws. However, under the Limitation of Benue State which is in pari materia with Kwara State, while the Laws bar the remedy for action in respect of land after the period of ten years, adverse possession is only in respect of action to recover land held by trustee, which is not the situation here.
Learned counsel also advanced extensive argument on the issue of the action being statute barred by virtue of section 20 of the Public Officers Protection as the 2nd respondent who issued the Certificate of Temporary Occupancy to the Appellant is a public officer within the law hence any action against him ought to have commenced within 3 months from the date of the cause of action. I find it unnecessary to deliberate on this point first and foremost as that is the decision of the lower court which is not contested by either of the parties. Secondly the issue is neither a ground of appeal nor an issue argued in the Appellants brief. It is settled principle that any issue formulated by the Respondent for determination must flow from the grounds of appeal filed by the Appellant. For the Respondent to validly raise any issue not related to the grounds of appeal filed by the appellant, he must file a cross appeal or file a Respondent’s Notice – OSSAI v. WAKWAH (2006) 4 NWLR (pt.969) 208 SC. Consequently I hereby discountenance the submission of the 2nd Respondent in paragraphs 7.06, 7.07, 7.08, 7.09, 7.10, and 7.11 of his Brief of Argument as irrelevant and incompetent. See NZEKWU v. NZEKWU (1989) 2 NWLR (pt.104) 373.
On the issue of the appellant’s justification for the delay in filing this action on the ground of fraud, Mr. Aliyu submitted that the appellant cannot in law raise the issue of fraud in his reply as it ought to have been raised in his statement of claim with detailed particulars of the fraud. He referred to Order 26 Rule 4 (1) of the Kogi State High Court (Civil Procedure) Rules 2006 and OKWONKWO v. CCB NIG PLC (2003) 8 NWLR (pt.822) 347 at 425 para H and ALALADE v. MORUNDIYA (2002) 16 NWLR (pt.792) 81 at 102 – 103 para H – A. He argued, assuming, without conceding that the Reply could be considered, that there were no facts established that constituted fraudulent concealment in the Appellant’s pleadings, since the Appellant knew his right of action from 1993 when he wrote Exhibit ‘I’ to the 1st Respondent.
On whether the learned trial court was right to have held that striking out of the 2nd Appellant from this action automatically discharges the 1st Respondent, learned counsel submitted that where there is a joint cause of action against two or more persons as in this case, a discharge against one operates as a discharge against the other(s). He relied on OGUNSAN v. IWUAGWU & ANOR (1968) ALL NLR 125 at 529. He therefore argued that the action against the 2nd Respondent being joint and several, a discharge of the 2nd Respondent under the Public Officers Protection Law will also operate to discharge the 1st Respondent. Finally, he urged the court to dismiss the appeal.
I. O. Alhassan, Esq., of learned counsel for the 2nd Respondent argued along the same line with the 1st Respondent. He submitted that the learned trial Judge properly evaluated the evidence before the arrival at his conclusion at page 252 of the Record of Appeal when he stated that Exhibit 3 is not an agreement between the Appellant and the 1st Respondent and that he saw no fraud in the matter. Citing ASINIOLA v. FATODU (2009) 6 NWLR (pt.1136) 184 at 186 he submitted that a Reply to Statement of Defence is meant to be reply to points raised in the statement of claim and not an avenue for raising new issues. The 2nd Respondent, like the 1st Respondent also submitted that fraud ought to have been pleaded in the statement of claim, with its particulars. He also argued that since the cause of action accrued in 1993, the action of the Appellant against the Respondents which was filed in 2008 is caught by the statute of Limitation which makes it incompetent.
Learned counsel for the 2nd Respondent, like the 1st Respondent submitted that the cause of action ought to have commenced against the 2nd Respondent within 3 months of the cause of action. As I stated earlier, this submission is not relevant because there is no appeal against it.
The 2nd Respondent finally urged that the appeal be dismissed in its entirety.
Where a law provides for bringing an action within a stipulated time, any action brought thereafter will be statute barred. The action will be regarded as stale. No matter how viable the rights of the claimant, he will have no remedy in court as the claimant is regarded as having slept over his rights. See EGBE v. ADEFARASIN (No.2) 1987 1 NWLR (pt.47) 1. It is the law that Limitation period is the dead line within which to file an action.
The subject matter of this action is a piece of land situate in Lokoja, Kogi State. It is on records that Kogi State was created out of Kwara and Benue States. It is common ground between the parties that the Benue State Law of Limitation is in pari material with Kwara State Law hence the provisions of the law will apply muntatis muntandis.
Section 4 of the Limitation Law, Cap 89, Laws of Kwara State provides –
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
Section 18 also provides thus –
“No action founded on contract tort or any other action not specifically provided for in part I and Part II of this Edict shall be brought after the expiration of five years from the date on which the cause of action accrued.”
It is trite law that the existence of a cause of action is determinable only from the pleadings of the plaintiff. Hence in order to determine the date a cause of action arises, the court is enjoined to examine the writ of summons and the statement of claim of the plaintiff so as know the date the alleged wrong was committed and compare that date with the date the writ of summons was filed. If the time in the writ is beyond the period allowed of the Limitation Law, then the action is statute barred. See WESTERN STEEL WORKS LTD. v. IRON & STEEL UNION OF NIGERIAN & ANOR (1987) 1 NWLR (pt.49) 284.
In EGBE v. ADEFARASIN (1987) 1 NWLR (pt.47) 1 at page 20 Oputa JSC put it succinctly thus –
“How does one determine the period of limitation. The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from the witnesses. If the time on the writ is beyond the period allowed by the Limitation law, then, the action is statute barred.”
The pleadings in paragraphs 2, 6, 7, 8, 10 and 11 of the appellant’s statement of claim (pages 4 – 7 of the Record of Appeal) show that the Appellant discovered the 1st Respondent alleged trespass on his land as far back as early 1993. Consequent upon that he wrote a letter, Exhibit ‘I’ (see page 13 of the Record of Appeal) through his counsel on 24th May 1993 giving the 1st respondent an ultimatum till 28/5/93 to “demolish the house erected on his land under reference and equally stay clear from same failing which he shall initiate drastic legal proceedings against you for trespass to his land…”
The 1st Respondent by a letter dated 24/5/94, through his solicitor replied immediately stating that he has not trespassed into the Appellant’s land, if he had any in the location, and also daring him to go to court ( see page 15 of the Record of Appeal). This shows that conflict already arose by Exhibit ‘2’ by the refusal of the 1st Respondent to vacate the land. The Appellant’s grievance had been established by that date thereby giving him a cause of action to seek redress in court if he so desired; as he had earlier threatened to do in his letter.
Time begins to run for purpose of the Limitation Act on the date the cause of action accrues. In other words, the moment the full elements/acts of wrong doing entitling the injured party to sue has been committed is the accrual of cause of action – ETIM v. IGP (2001) 11 NWLR (pt.724) 3 NWLR (pt.724) 266 at 284; ADIMORA v. AJUFO (1988) 3 NWLR (pt.80); EMATOR v. NIGERIAN ARMY (1999) 12 NWLR (pt.631) 362 at 361 – 370. A cause of action is the factual situation in which the plaintiff relies upon to support the remedy he seeks from – OGBIMI v. OLOLO (1993) 7 NWLR (pt.304) 128 at 136. The factual situation in the case at hand is that dispute arose after the Defendant refused to vacate the parcel of land by his letter Exhibit ‘2’. The facts disclosed that the writ of summons was filed on 4th June 2008 (see page 1 of Record of Appeal) while the wrong complained above occurred on 25/5/93 (Exhibit ‘2’). The period between the date of issue of the writ of summons and the date of cause of action is fifteen years. This is over and above the period of ten years within which the Appellant can file an action as prescribed by section 4 of the Limitation Law of Kwara State. Thus in whatever angle the Appellant’s action is viewed, be it for an action for recovery of land, or for tort of trespass to land by virtue of the provisions of sections 4 and 18 respectively, the action is statute barred. It is trite law that where an action is statute barred, the plaintiff loses the right to enforce his cause of action by a judicial process because of the limitation period provided by law. See EBOIGBE v. NNPC (1994) 5 NWLR (pt.347) 64 at 659.
The contention of Appellant is that there was amicable settlement between the Appellant and 1st Respondent when he discovered the trespass in 1993 in which an agreement was reached by the minutes dated 18/6/2000 which culminated into a contract between the parties, the breach of which reveals the fraudulent concealment of the Respondents and therefore statute of limitation cannot be a defence available to the Respondents, as raised. The fraudulent concealment of the 1st Respondent that came into his knowledge is the statement on oath of the 1st Respondent dated 19/10/2007 in another case in which he claimed in paragraph 9 thereof that “I did not breach any fence of the claimant on the 11/1/2007 or any other persona fence.” (See page 17 – 18 of the Record of Appeal.) The claimant in that suit is the Appellant herein while the 3rd Defendant therein is the 1st Respondent in the suit. The appellant’s complaint, though not properly ventilated in his brief, making it obtuse for understanding, is that his statement on oath of 19/10/2007 is a fraudulent breach of the peaceful agreement of 18/6/2000, which in fact is a contract agreement between the Appellant and the 1st Respondent but that this fraudulent breach only came into his knowledge on 19/10/2007, thus the cause of action can only begin to run from the date of accrual being 19/10/2007 and therefore his action is not statute barred.
As a general rule, the limitation period shall not begin to run where there in a case of fraud. In other words, the period of limitation will not begin to run until the plaintiff has discovered the fraud, or would with reasonable diligence have discovered it. A perpetrator of fraud is barred or estopped from taking advantage of the period of limitation law. AROWOLO v. FABIYI (1995) 8 NWLR (pt.414) 496; ANWADIKE v. ADMINISTRATOR OF ANAMBRA STATE & 2 ORS. (1997) 7 NWLR (pt.460) 316 at 334.

However, it is trite law that if a party makes fraud an issue in a civil matter, the material facts and detailed particulars for the establishment of fraud must be specifically pleaded in the statement of claim. See cited case OKONKWO v. CCB (NIG.) PLC (2003) 8 NWLR [pt.822] 347 at 425; ATALADE v. MOROHUNDIYA (2002) 16 NWLR (pt.792) 18 at 102.
In fact, Order 26 Rules 4 (1) of the Kogi State High Court (Civil Procedure) Rules 2006 specifically prescribes that details of fraud be specifically pleaded by the party who seeks to rely on fraud –
“A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud, or any fact showing illegality) which, if not specifically pleaded, might take the opposite party by surprise.”
Thus, the requirement for pleading the particulars of fraud is mandatory. It is definitely a matter of law and not mere procedure.

I need to state here and clear that the provisions of order 4 Rule 1 (2) of the Kogi state High court (Civil Procedure) Rules which the Appellant seeks to get protection cannot avail him of the mandatory requirement for the plea of fraud to be specifically made in the statement of claim. Order 4 Rule (1) 2 provides –
“where at any stage in the course of or in connection with any proceedings, there has by reason of anything done or left undone been a failure to comply with the requirements as to time, place, manner or form, the failure shall be treated as an irregularity and may not nullify such step taken in the proceedings. The judge may give any direction as he thinks fit to regularize such steps.”
The provisions of Order 26 Rule 4 (1) is mandatory because the word “shall” was employed. The breach of this provision cannot be called mere irregularity which can be cured by the saving provision of order 4 Rule 1 (2).
Now the pleadings of fraud as claimed by the Appellant are in paragraphs 21, 22, 23, 24 and 25 of his statement of claim (page 6 of Record of Appeal). They are reproduced hereunder for ease of reference –
“21. The claimant avers that the 1st defendant invited the members of his church including the brother of the claimant to JANE Palace Hotel, No.12 Julius Elukpo Street, Lokoja, to plead with the claimant to enable the 1st defendant maintain the boundary with him as a neighbour.
22. The claimant states that the minutes of the meeting was taken and all the people in attendance signed.
23. The claimant avers that the 1st defendant continued to use people to cause damages, to him by breaking the fence he constructed between his boundary and that of the defendant and one time placed furniture in front of the claimants premises.
24. The claimant avers that in one of those destructions, 300 bags of cement were removed from his premises, after breaking his fence. He instituted legal action against the culprits including the 1st defendant for compensation.
25. The claimant avers that the 1st defendant denied him as contained in the minutes of 12/6/2000 and made different statements in his statement on oath.”
A cursory look at these paragraphs reveals a bereft of any such pleading of fraud. There is no scintilla pleading of any such fraud in any of the 28 paragraphed statement of claim of the Appellant (pages 4 – 7 of the Record of Appeal). The closest paragraph to the settlement meeting later termed, contractual agreement by Appellant, is paragraph 25. The averment therein does not by any stretch of imagination, amount to averment on fraud. Even, the Appellant’s Reply to the Statement of Defence of 1st and 2nd Respondent heavily relied on by the Appellant does not assist or improve on his case. Paragraph 1 (c) and (d) of Reply to Defence of 1st Defendant Statement of Defence (page 1(c) of Record of Appeal) reads –
“1(c) The statement on oath by the 1st defendant dated 19/10/2007 in breach of the agreement of 18/6/2000 resuscitates the action, which has become accrued from the date of the oath.
1(d) The agreement based on the aforesaid minutes was borne out of deceit or fraud of the 1st defendant and the people he used to plead with the claimant.”
The averments in paragraphs 1(c) and 1(d) of the Reply to the statement of Defence of 2nd Defendant at page 171 of Record Appeal states –
“1(c) That the cause of action is not statute barred because this is a case of concealed fraud wherein the claimant was kept in ignorance of the fraud without any fault of his own.
1(d) That statute of limitation does not and cannot begin to run for a public officer under fraud or deceitfulness.”
With due respect, all these averments are completely devoid of any particulars as required by law. The mere parade of the word “fraud” in those paragraphs does not satisfy the requirement for giving the detailed particulars of such fraud.
Assuming for a moment that fraud was sufficiently pleaded by the Appellant, the next question is whether such facts actually constitute fraud. It is apt at this stage to reproduce the peaceful agreement of 18/6/2000 (Exhibit ‘1’) page 16 of the Record of Appeal in which the Appellant has placed so much reliance to establish the so called fraud. It states –
“18-06-2000
The minute of meeting held between four elders of Jehovah’s Witnesses with Chief J. A. Elukpo.
We the under mentioned elders came to plead with Chief J. A. Elukpo on behalf of our spiritual brother, brother Raheem Ibrahim of the matter of land dispute between them at the instance of Mr. Raheem Ibrahim; that Mr. Elukpo never trespass into Mr. Raheem Ibrahim’s land in his fencing and that Raimi should maintain his beacons and Mr. Elukpo equally to maintain his own beacon as contained in the cite (sic) plan; prepared by the Land Department on 23-03-98.
Signed:
Mr. J. R. Ilaya
Mr. T. S Obamiel
Mr. R. A. Ologun
Mr. P. B. S. Elukpo
Mr. R. A. Ibrahim
Chief J. A. Elukpo”
In the first place, this cannot be regarded as a contract agreement between the parties. It is simply “terms of settlement.” The breach of it cannot be regarded as fraudulent concealment as claimed by the Appellant.
Apart from this, the statement of oath of 1st Respondent at (pages 17 – 18 of the Record) is not even a breach of the peaceful meeting held in Exhibit 3C. A careful reading of Exhibit ‘3’ shows that the peaceful meeting was convened at the instance of 1st Defendant on the complaint that the Appellant trespassed into his land while fencing. Thus the statement of oath of 1st Respondent on 19/10/2007 where he deposed thus – “That I did not break any fence of the claimant on the 11/1/2007…” is not a breach of such peaceful agreement because the 1st Respondent never admitted at any point in time that he trespassed upon the Appellant’s land. Worse still, it does not constitute fraudulent concealment of fact as to constitute a defence to statute of limitation.
It is an established principle that in order to constitute fraudulent concealment, there must be some abuse of confidential position between the parties. In AJIBONA v. KOLAWOLE (1996) 45 LRCN 2514 at 2532, (1996) 10 NWLR (pt.476) 22 at 36 OGWUGBU JSC put it succinctly –
“In order to constitute such fraudulent concealment as would in equity, take a case out of the law of Limitation, it is not enough that there should be merely a tortuous act unknown to the injured party or the enjoyment of property without title while the rightful owner is ignorant of his right, there has to be some abuse of confidential position some intention at imposition, or some deliberate concealment of facts.” To enter a land without the knowledge of the owner does not constitute concealed fraud.”
In the instant case, there were no facts in the pleadings to suggest any deliberate concealment of facts by the Respondents. Thus the issue of fraud raised by the Appellants to elongate the period of limitation is not available to the Appellant. The only fact established by him is the issue of peaceful meeting between the parties after he became aware of trespass in 1993.
Even though peaceful settlement of issues is encouraged by our courts, it is the law that in considering whether an action is statute barred, negotiation between the parties will not stop the period of limitation from running from the date of accrual of action. In order words, the period of limitation begins to run as soon as the cause of action arises and it does not cease to run merely because the parties engage in negotiation. Thus although the law does not prohibit parties to a dispute from engaging in negotiation for the purpose of settling their dispute, generally such a negotiation by parties does not prevent or stop the period of limitation stipulated by a statute from running. See NWADIALO v. SHELL PETROLEUM DEV. CO. (1990) 5 NWLR (pt.150) 322.
In EGBOIGBE v. NNPC (1994) 5 NWLR (pt.437) 649 ADIO JSC had this to say at page 659 –
“As for the period during which the parties engaged in negotiation, the law, is that when in respect of a cause of action, the period of limitation beginning to run, it is not broken and it does not cease to run merely because the parties engaged in negotiation. The best cause for a person to whom a right has accrued is to institute an action against the other party so as to protect his interest or right in case the negotiations fails.”
A perusal of the contents of Exhibit ‘3’ does not suggest any reason why the period of limitation should cease to run. This is moreso as there was no admission of liability of trespass by the 1st Respondent. See the cited case of MKPEDEM v. UDO (2000) 9 NWLR (pt.673) 631 at 645 paras G – H.
The sum total of all I have said in the foregoing is that this action is statute barred. The Appellant was in deep slumber over his rights since 1993. The attempt to justify the delay in pursuing his right on the ground of fraudulent concealment by the 1st Respondent as a departure from the peaceful negotiation between the parties does not save the Appellant’s case as there are no facts to substantiate his allegations.
It is one of the cardinal principles of statutes of limitation that a person who sleeps over his rights should not be assisted by the courts in an action for recovery of his property. It is a common saying that equity aids the vigilant and not the indolent. Delay also defeats equity. See NWADIALO v. SHELL PETROLEUM DEV. CO. LTD. (supra) at page 495.
The effect of the expiration of the statutory period for instituting an action for the purposes of limitation period is very clear. When an action is statute barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the time laid down by the limitation law for instituting such an action has elapsed. See ODUBEKO v. FOWLER (1993) 7 NWLR (pt.308) 637. The plaintiff is left with a right without a remedy as the action is not maintainable in court. Such a plaintiff is left with a bare and empty cause of action which he cannot enforce. His suit must be struck out. His case can be likened to the biblical proverbial foolish maidens who were not ready with their lamps when the bridegroom arrived. So they were refused entry into the marriage feast. The predicament of such a plaintiff was lucidly expressed and clarified by the court in the cited case of P. M. UDOH TRADING CO. LTD. v. ABERE (2001) 11 NWLR (pt.723) 114 at 130.
“Where an action is statue barred a plaintiff who may have had a cause of action loses the right to enforce the cause of action by judicial process because of period of limitation laid down by the ODUBEKO v. FOWLER (1993) 7 NWLR (pt.308) 637, an action commenced after the expiration of the period within which an action must be brought stipulated in statute of limitation is not maintainable. See EKEOGU v. ALIRI (1991) 2 NWLR (pt.179) 258. In short when the statute of limitation in question prescribes a period, within which an action must be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. See SANDA v. KUKAWA LOCAL GOVT. (1991) 2 NWLR (pt.174) 379.”
The only issue for determination is hereby therefore resolved in favour of the Respondents.
The learned trial Judge was right when he held that this suit is incompetent.
Where statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration period of the prescribed period is said to be statute barred. OSUN STATE GOVT v. DAKOMIMY LTD. (2000) ALL FWLR (pt.365) 438; JALLICO LTD v. OWONBOYS TECH. SERVICE LTD. (1995) 4 WLR (pt.391) 551 at 538. An action filed outside the period will lapse due to effluxion of time. See CPC v. INEC & OR (2011) LPELR 8257 LLPEL (SC).
Hence where an action is statute barred, the suit cannot stand. It must be struck out see SANDA v. KUKAWA LOCAL GOVT (supra). I therefore have no reason to disturb the decision of the trial court striking out the suit for being statute barred.

This appeal lacks merit and it is hereby dismissed in its entirety.

There shall be no other as to costs.

HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of previewing and discussing in advance, the lead judgment of my learned brother Akomolafe-Wilson, JCA and fully agree with the conclusion that the appeal is completely lacking in merit. I adopt the judgment in its entirety as mine inclusive of the consequential orders made therein. The unmeritorious appeal has to be and is hereby dismissed.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in draft the lead judgment of my learned brother TINUADE AKOMOLAFE-WILSON JCA, just delivered. I agree with the conclusion contained thereat that this appeal lacks merit and is hereby dismissed.

Appearances

A. S. Elukpo Esq.For Appellant

AND

A. M. Aliyu Esq. with K. C. Wisdom – For the 1st RespondentFor Respondent