MR. ETA EYO USO v. MR. IBOK E. EYO-ITA & ANOR (2016)

MR. ETA EYO USO v. MR. IBOK E. EYO-ITA & ANOR

(2016)LCN/8501(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of April, 2016

CA/C/261/2013

RATIO

ACTION: LIMITATION OF ACTION; REASON FOR LIMITATION OF ACTION
Litigation cannot continue in perpetuity, a person cannot sleep on his rights then wake up one day and jump unto the Court to stir up an old wound. A successful plea of the limitation Law can deal a fatal blow on a suit.
A statute allows a certain period of time for bringing litigation or for a commencing proceedings is known as a statute of limitation that statute then expresses the policy of the State prescribing the period of time within which an action or proceedings in Law or inequity must be brought. A Plaintiff may have a cause of action but he loses the right to enforce that cause of action by judicial process because the period of time laid down by the limitation Law for bring such actions had elapsed. A Limitation Law does not operate in vacuo. Time in itself begins to run for the filing of an action when the cause of act arose. See Fadare & Ors v. Attorney General Oyo State (1982) 13 NSCC 52 at 60, (1982) 4 SC 1. This means that once there exist two people with interest of variance to each other over a subject matter, then the aggrieved party must go to Court timeously or forever hold his peace. Different periods apply to different subject matter. In this appeal, land is in issue. The applicable Law is Section 1 of the limitation Law Cap L 14 Laws of Cross River State 2004 is the relevant legislation and it sets out 10 years from the date the right of action arose. Time will therefore begin to run when the cause of action arose. Therefore it is absolutely necessary when dealing with limitation statute to determine the precise date upon which the cause of action arose. See Dawodu v. Ajose (2010) 52 WRN 161. PER PAUL OBI ELECHI, J.C.A.
ACTION: LIMITATION OF ACTION; HOW IS THE PERIOD OF LIMITATION DETERMINED
Therefore to determine the period of limitation, one will look 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 on which the Writ of Summons was filed. This can be done without taking evidence from witnesses. If the time on the writ of summons is beyond the period allowed by the limitation Laws, the action is Statute Barred. See Elabanjo v. Dawadu (2006) 50 WRN 1. PER PAUL OBI ELECHI, J.C.A.
ACTION: WHEN WILL A CAUSE OF ACTION ARISE
“A cause of action is said to arise when there are in existence all the facts necessary to establish a claim.” PER PAUL OBI ELECHI, J.C.A.

JUSTICES

CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria

ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria

PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria

Between

MR. ETA EYO USO (For himself and on behalf of Obong Uso Ishie, family of Ishie Town Calabar) – Appellant(s)

AND

1. MR. IBOK E. EYO-ITA

2. MRS. INI E. BASSE – Respondent(s)

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment delivered by Hon. Justice E. O. Abua on 17th June, 2013 in Calabar Judicial Division of the High Court of Cross River State wherein the Court dismissed the Appellant’s suit in limine as Statute – Barred.

According to the Appellant in his Amended Appellant’s Brief Stated that in 1976, Kasuk Qua Clan filed Suit No. C/88/76 for a declaration of title to all land in Ishie Town. The High Court gave Judgment in that Suit in favour of Kasuk Qua Clan and declared that all land in Ishie Town, including the present Appellant Obong Uso Ishie family land, is owned by Kasuk Qua Clan.

The Ishie Town people including the Appellant’s Obong Uso Ishie family appealed against the Judgment in appeal No. CA/E/210/96 and on the 26th April, 2001, the Court of Appeal upheld their appeal and reversed the Judgment of the High Court thereby restoring title of Ishie Town people to their land. A further appeal to the Supreme Court by the Kasuk Qua Clan was dismissed in June, 2005.

In between the period of litigation from the High Court to the Court of appeal,

portions of Obong Uso Ishie family land in Ishie Town were leased in 1993, 1994 and 2002 to the 1st and 2nd Respondents by Offiong Okoho Uso family without the knowledge or consent of the head and principal members of Obong Uso Ishie family.

As soon as the title of Ishie Town people was restored to them via the Judgment in appeal No. CA/C/210/96, the Obong Uso Ishie family began the designation of residential layout on their family land. However, the members of Offiong Okoho Uso family who claimed to be owners of the land sued Obong Uso Ishie family in Suit No. HC/165/2004 for a declaration of title to the land and Obong Uso Ishie family in Suit No. HC/165/2004 for a declaration of title to the land and Obong Uso Ishie family Counter-Claimed.

In its Judgment in Suit No. HC/165/2004, the Court delivered Judgment in favour of Obong Uso Ishie family. The Court further declared all leases and conveyances of the land made by Offiong Okoho Uso family including those made in favour of the present Respondents as null and void.

Not feeling satisfied, the Offiong Okoho Uso family filed appeal No. CA/C/84/2009 against the Judgment. On the 9th day

of December, 2009 the appeal was dismissed. It was then that some of those who bought land from Offiong Okoho Uso family also obtained Leave to appeal as interested persons against the Judgment which nullified the leases, but on the 8th day of June, 2010, their appeal No. CA/C/89/2008 was also dismissed.

It was thereafter that the people who leased the Appellant’s family land from Offiong Okoho Uso family attorned their tenancies to Obong Uso Ishie family but the present Respondents refused to either attorn their tenancy or vacate the land. As a result, the Appellant consequently filed an Originating Summons for possession against the Respondents.

On the 17th day of June, 2013, the trial Court dismissed the Suit as being Statute-barred. Dissatisfied with the above Ruling, the Appellant filed a Notice of Appeal on the 30th day of July, 2013 against the said Ruling. The Notice of Appeal was later amended with Leave of Court. From the 4 Grounds of Appeal, the sole issue for determination is:

“Whether on the facts of this case, the learned trial Judge was right to hold that all the Appellant’s claims in this suit were statute

barred.”

?In arguing this issue, Learned Appellant’s Counsel submitted that in deciding whether an action is Statute barred, the Court would look at the facts pleaded in the Statement of Claim to determine what exactly the cause of action is and when it arose.

Adebanjo v. Ogun State Sports Council (2005) All FWLR (Pt. 279) 1319, Kolawole v. Olori (2010) All FWLR (Pt. 514) 35 at 81.

In this case he contended that it is apparent from the facts pleaded in the Statement that the Appellants cause of action first arose on the 24th January, 2007 when the Respondents refused to vacate the Appellant’s family land after their leases were nullified in the Judgment in Suit No. HC/165/2004, as affirmed in appeal No. CA/C/89/2008 and CA/C/84/2009.

Learned Appellant Counsel stated that the Respondents took possession of separate portions of the Appellant’s family land in 1993, 1994 and 2002 when they were leased to them by Offiong Okoho Uso family. That he said was when the Appellants family and other Ishie Town people were trying to establish title to their Ishie Town land in appeal No. CA/E/210/96 by then, the Appellant was also unaware of the

leases granted by Offiong Okoho Uso family.

After the Ishie Town people had recovered their land, the Appellants, Obong Uso Ishie family began to develop its family land in 2004, unaware of the leases granted the Respondents. The Respondent’s vendor, Offiong Okoho Uso family, tried to stop the Appellants family by suing them in Suit No. HC/165/2004 for declaration of title. The Appellant’s family Counter-Claimed but the present Respondents were not named expressly as parties to the Counter-Claim in Suit No. HC/165/2004 because the Appellant did not know them of that time, but in Law they are all parties to the Suit. See Maya v. Oshuntokun (2001) FWLR (Pt. 81) 1777.

On the basis of the above, Learned Counsel then submitted that the present Respondents as privies to Offiong Okoho Uso family, they were affected and bound by the Judgment entered in Suit No. HC/165/2004 that Offiong Okoho Uso family was not the owner of the land in dispute and that all leases granted by the family were null and void.

Learned counsel Stated that the Judgment in Suit No. HC/165/2014 that the present Respondents vendor Offiong Okoho Uso family was not the owner

of the land now in dispute meant that the Respondents bought nothing from the vendor who cannot sell what it did not have. The Respondents he contended were either bound to attorn their tenancies to the adjudged owners of the land or vacate the land altogether. This attitude of the Respondents by refused to vacate the land that has constituted a cause of action in this suit.

Though the Respondents entered into various portions of the Appellant’s family land in 1993, 1994 and 2004, they are not nonetheless trespassers even though based on the voidable leases granted to them by Offiong Okoho Uso family. On the other land, they became trespassers on the 24th January, 2007 when the Court declared those leases null and void in Suit No. HC/156/2004. The present suit was filed on the 1st day of June, 2011 is therefore about four years and five months from the 24th January, 2007 when the Appellants cause of action arose in compliance with Section 1 of the Limitation Law (Cap L 14 Laws of Cross River State) which stipulates that the limitation period for actions to recover possession of land is 10 years from the date the right of action first accrued. See

Registered Trustees of the Rosicrucian Order (AMORC) v. Attoe (2009) ALL FWLR (Pt. 467) 136 at 147.

In view of the above authority, Learned Counsel submitted that this suit in the circumstance is not Statute Barred in view of Section 1 of Limitation Law (Law L 14 Laws of Cross River State). Therefore he submitted that the Court below was wrong in Law when it dismissed his suit as statute barred. According to Appellant’s Counsel, if the trial Judge had followed the decision in the Registered Trustees of Rosicrucian Order v. Attoe (supra) it would have held that the action is not Statute Barred.

It is also contended by the Appellant that since the Respondents are still in continuous trespass on the land even after their leases were nullified by the Court in Suit No. HC/165/2004. It is settled Law that in an action for continuous trespass there is no period of limitation because every day, the Respondents remain on the Appellant’s family land without the family’s consent, there is a fresh cause of action for trespass. It means therefore that an action for trespass can therefore be brought anytime during the continuance of the trespass. The period of

limitation will only start to run after the trespass has abated. See Oyebamiji v. Lawanson (2008) All FWLR (Pt. 438) 236 at 247, Adepoju v. Oke (1999) 3 SCNJ 46 at 55, Oba Aremo II v. Adekanye (2004) 7 SCNJ 218 at 234, Abiodun v. Attorney-General Federation (2007) 15 NWLR (Pt. 1057) 359 at 412.

In view of the above authorities, Learned Counsel submitted that the Appellants cause of action did not accrue only in 1993, 1994 and 2002 as wrongly held by the Lower Court. Rather it continues to accrue every day the Respondents continue to remain on the Appellants family land against the wishes of the family. See Okito v. Obiora (2007) All FWLR (Pt. 365) 568 at 583. The Respondents are still on the Appellants family land and as a result, the statute of Limitation cannot apply.

The Lower Court he stated acknowledged that the claim against the 2nd Respondent was brought within 9 years and yet he dismissed all the Claims. See ELF Oil Nig. Ltd v. Oyo State Board of Internal Revenue (2003) FWLR (Pt. 138) 1352.

From the Records, separate and distinct claims for possession were made against each Respondent. Only the claims for damages and injunction

were made against both Respondents jointly and severally.

Learned Appellant’s Counsel then urged the Court to resolve this lone issue in favour of the Appellant and to allow the appeal. Consequently, to set aside the dismissal of the Appellants claims against the 2nd Respondent and to send those claims back to the High Court for a full trial before another Court.

On his own part, the 1st Respondent Counsel in his Amended 1st Respondent Brief adopted the Appellant sole issue for determination thus:

“Whether the action of the claimant/Appellant is Statute Barred.”

He stated that by Paragraph 10 of the Statement of Claim the Appellant admitted that the Respondent occupied the land in 1993/1994 but that the Appellant had his hands full at the time and that the Respondent was not a party to the proceedings subsequently commenced by the Appellant. This he stated shows that 1993/1994 was the time when the cause of action arose and an alternative computation cannot be foisted on the Court since the period of occupation is the date of computation. See Awoniyi v. Amor (2000) 10 NWLR (Pt. 676) 522 and Jallco Ltd. v. Owoni Boys Tech Service

Ltd (1995) 4 NWLR (Pt. 391) 534 – that time begins to run when there is in existence the parties and facts that are material to be proved to entitle the Plaintiff to succeed. Learned 1st Respondent Counsel contended that if the date on the affidavit in support of the summons is compared with the date the suit was instituted, it would be found that the current action is Statute Barred.

Since parties are bound by their pleadings, it is therefore not open to a party to deport from his pleadings and set up a different case simply because the pleadings are suddenly found to be unfavourable. See Emezokwe & Ors v. Okadigbo (1973) 4 SC 113. Arab Chem. Ltd v. Owoduenyi (2013) 10 NWLR (Pt. 1361) 101.

Where time for instituting an action is imposed by Law, decree or edict, the Courts cannot extend the time prescribed except where the said Law provides for such extension which is not the case here. See C.P.C. v. I.N.E.C. (2011) 18 NWLR (Pt. 1279) 532, Shettima v. Goni (2011) 18 NWLR (Pt. 1279) 489.

Learned 1st Respondent’s Counsel then urged the Court to dismiss the appeal on lack of jurisdiction and grounds of limitation of action.

?On

his own part, the 2nd Respondent in his 2nd Respondent amended brief of argument also adopted the sole issue for determination herein before stated. To argue this issue the Learned 2nd Respondent Counsel in his Amended 2nd Respondent’s Brief submitted that as at the time the land in issue was occupied in 1993-1994, the Appellant knew about it. And from that time, there was in existence.

1. A person who can sue

2. Another who can be sued

3. All facts which are material to be proved had happened.

By his own calculation, the suit was filed 17-18 years over and above the time allowed by the limitation Law of Cross River State. The cause of action in this case was complete for the first time when it was noticed that there was a trespass, also by Paragraph 13 of the Statement of claim they “… were at that time concentrating their effort on defending the then pending Law suit with Kasuk Qua Clan which affected the land”.

The period of limitation is designed to avoid a situation where a Plaintiff can commence an action long after human memory had faded. See National Universities Commission v. Olapade Olatunji Oluwo & 5 Ors (2001) 3

NWLR (Pt. 699) 90 at 108. He then submitted that the Appellants have lost his right of action having not brought his action within the ten years allowed by the Limitation Law of Cross River State. The Court is then being urged to resolve this issue in favour of the Respondents. See Eboigbe v. NNPC (1994) 5 NWLR (Pt. 347) 649 cited Odelilekum v. Hassan (1997) 12 NWLR (Pt. 531) 56.

The submission by the Appellant’s Counsel that the case against the 2nd Respondent ought to be maintained even if that of the 1st Respondent is dismissed does not hold any water, not even the case of ELF Oil Coy Nig. Ltd v. Oyo State Board of Internal Revenue (supra) which does not apply to this case.

The Appellant’s claim indicates a joint cause of action against the Respondents and the claim is not divisible of the common cause of action against joint debtors or joint tort feasors, a release of one of the joint-tort feasor or joint debtor has a crucial effect to destroy the foundation of the joint cause of action and in turn discharges the remaining joint tort feasors. In view of the above, Learned Counsel stated that the Lower Court did not fall into any deep error in

dismissing this suit in favour of the Respondents.

On the Appellant’s contention that the cause of action arose on the 24th January, 2007 when their lease were nullified, Learned Counsel submitted that is not the Law and relied on the case of Ofili v. V. C. SC. (2007) 42 WRN 52-53. Also for the Appellants to say that they were not aware of the lease granted to the 2nd Respondent is quite unfortunate to say the least. To determine whether cause of action is statute barred, one must look of the Writ of Summons and the Statement of Claim. A look at Paragraph 3 (C) of the Statement of Defence of the 2nd Respondent where she averred that the Appellant was consulted and aware of their intention and acquisition of the suit land. In his final submission, he urged the Court to hold that the claims against the Respondents are the same and the cause of action also the same. There are not different and they are not distinct so as to warrant the authority of ELF Oil (Nig) Ltd vs. Oyo State Board of Internal Revenue to apply in this case.

He then urged the Court to resolve the sole issue for determination in favour of the Respondents and uphold the Judgment of

the Lower Court. The principle of statute of limitation is in place to give litigation a life span.

Litigation cannot continue in perpetuity, a person cannot sleep on his rights then wake up one day and jump unto the Court to stir up an old wound. A successful plea of the limitation Law can deal a fatal blow on a suit.

A statute allows a certain period of time for bringing litigation or for a commencing proceedings is known as a statute of limitation that statute then expresses the policy of the State prescribing the period of time within which an action or proceedings in Law or inequity must be brought. A Plaintiff may have a cause of action but he loses the right to enforce that cause of action by judicial process because the period of time laid down by the limitation Law for bring such actions had elapsed. A Limitation Law does not operate in vacuo. Time in itself begins to run for the filing of an action when the cause of act arose.

See Fadare & Ors v. Attorney General Oyo State (1982) 13 NSCC 52 at 60, (1982) 4 SC 1. This means that once there exist two people with interest of variance to each other over a subject matter,

then the aggrieved party must go to Court timeously or forever hold his peace. Different periods apply to different subject matter. In this appeal, land is in issue. The applicable Law is Section 1 of the limitation Law Cap L 14 Laws of Cross River State 2004 is the relevant legislation and it sets out 10 years from the date the right of action arose. Time will therefore begin to run when the cause of action arose. Therefore it is absolutely necessary when dealing with limitation statute to determine the precise date upon which the cause of action arose. See Dawodu v. Ajose (2010) 52 WRN 161.

Therefore to determine the period of limitation, one will look 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 on which the Writ of Summons was filed. This can be done without taking evidence from witnesses. If the time on the writ of summons is beyond the period allowed by the limitation Laws, the action is Statute Barred. See Elabanjo v. Dawadu (2006) 50 WRN 1.

From the Statement of Claim, I took into consideration the following Paragraphs of the

Statement of Claim viz Paragraphs:

1. “This suit was commenced by originating summons on the 1st day of June, 2011.

Paragraphs 10, 11 and 12 of the statement of claim which State

(10) In 1993 and 1994, during the pendency of those appeals, some members of Offiong Okoho Uso family leased vast portions of Obong Uso Ishie family land lis pendens to the 1st defendant. The transactions were effected through several unregistered deeds of lease which were all back dated to 3rd March, 1978.

(11) The 1st defendant later surveyed the land covered by all the leases he was granted by some members of Offiong Okoho Uso family as per his survey Plan No. JEJ/CR/7835. In 2005, during the pendency of Suit No. HC/165/2004, he applied for a Certificate of Occupancy over the land shown in that survey plan and he was granted a Certificate of Occupancy No. CA/483/2005 on 6th February, 2006.

(12) In the year 2002, some members of offing Okoho Uso family also leased a vast portion of Obong Uso Ishie family land to the 2nd Defendant vide an unregistered agreement dated 11th August, 2002 with survey Plan No. JEJ/CR/31269 showing the demised land

attached.

The appeals referred to in Paragraph 10 above were the cases between the Kasuk Qua Clan and the Appellants and not between the Appellant and Offiong Okoho Uso family who were vendors to the Respondents on record. Thus, those appeals are not what were decided by the Court of appeal in appeal No. CA/C/84/2009 between the Appellant and Respondents vendors but between the Appellants and Kasuk Qua Clan in CA/E/210/96 as could be seen in Paragraphs 7 and 8 of the Statement of Claim.

From the three Paragraphs of the Statement of Claim viz Paragraphs 10, 11 and 12, it is clear that the 1st Respondent came upon the land in 1993 and 1994 while the 2nd Respondent came unto same in 2002.

The Suit between the Appellant’s family and those Appellants referred to as Respondents vendors was commenced in 2004 as could be seen in Paragraph 15 of the Statement of Claim. The Appellants have pleaded in Paragraphs 10, 11 and 12 of their Statement of Claim that a fraction of Obong Uso Ishie family, called Offiong Okoho Uso family sold the lands to the Respondents.

?The Appellants it would appear knew about the acquisition of the lands by the

Respondents as to when the events happened i.e. in 1993, 1994 and 2004 and the Appellants from the above have not stated otherwise. It is therefore apparent that the cause of action leading to this suit occurred and become ripe when the Appellants in 1993, 1994 became aware of the transactions that have led to this suit as well as the sale to the 2nd Respondent in 2002. In that wise, the cause of action against the 1st Respondent accrued in 1993/1994 while that of the 2nd Respondent was in 2002. By simple mathematical calculation, it would be seen that this suit taken out on the 1st day of June, 2011 was commenced 17 years after the occurrence of the event against the 1st Respondent in breach of Section 1 of the limitation Law Cap L 14 Laws of Cross River State 2004 and against the 2nd Respondent a year after the occurrence of the action.

In respect of the 2nd Respondent, the Appellants were consulted a stated in Paragraph 3 (c) of the Statement of Defence and it is most unfair for the Appellants to deny it. The Appellants were consulted and are aware of the Respondents intention and acquisition of the land in 2007.

?The 2nd Respondent could not

have been effected by the limitation Law Section 1 of the Cross River State (being less than ten years yet) but having been sued jointly and like Siamese twins which is not severable and as such, the Respondents will rise and fall together in this suit. See Ihunde v. Sampson Roger (Nig) Ltd. (2000) FWLR 2782. Amao v. Civil Service Commission (1992) 7 NWLR (Pt. 252) 214.

On the other hand, the Appellant Counsel in their brief of argument admitted that the Respondents took possession of separate portions of the Appellant family land in 1993, 1994 and 2002. That it was when the Appellants family and other Ishie Town people were trying to establish title to their Ishie Town land in appeal No. CA/C/210/96. Also, that the Appellant was not aware of the leases granted by Offiong Okoho Usom family.

The above pieces of argument were raised by the Appellant with the view of offering a defence or mitigating factor why this suit was supposed to be instituted.

?From the contents of Paragraph 10 of the Statement of claim, it is apparent on record that the cause of action accrued in 1993, 1994 and 2002 when they took possession of the separate portions

of the Appellant’s land leased to them by Offiong Okoho Uso family. The Appellant is bound by his pleadings and he is not in a position to deny the contains of Paragraphs 1, 10, 11 and 12 of his Statement of Claim. Even on the allegation from the Appellant’s that they were engaged in trying to establish their title in appeal No. CA/C/210/96 over Ishie Town people does not mitigate their delay in bringing up the action timeously. As for the period the Appellant used in establishing his so called title, the Law is that when in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the Appellant was engaged in trying to establish title. In fact, what the Appellant could have done when he discovered that he Respondents have taken several portions of their land in 1993, 1994 and 2002 was first as a person to whom a right has accrued is to institute an action against the Respondents so as to protect his interest or right in case their adventure into establishing their title in appeal No. CA/C/210/96 fails. This Judgment in land is a Judgment in rem because it is the interest or rights of the

parties in respect of the land which are being determined and not the status of the land itself.

?In his amended Brief of Argument, Learned Appellant’s had submitted that this suit is Statute Barred cannot be sustained because the Appellant’s claim is for continuous trespass as pleaded in paragraphs 2, 20 and 21 (IV) of the Statement of Claim. That as a continuing trespass and because the Respondents are still on the land, the period of limitation does not apply.

What is paramount at this stage is to ask the simple question of:

“When did the cause of action in this suit arise?”

“A cause of action is said to arise when there are in existence all the facts necessary to establish a claim.”

Whether the trespass is a continuous one, what is important is when time started running for purposes of the limitation Law to wit.

“Time begins to run for purposes of limitation Law from the date of the accrual of the cause of action. In other words, time begins to run when there is in existence a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the Plaintiff to

succeed.”

See Ofili v. V. C. S.C. (2007) 42 WRN 52, Adelioya v. Federal Housing Authority (2008) 6 MJS 66 at 79.

By 1993-1994 that is the time the land in issue was occupied by the Respondents, the Appellants knew about it. From that point in time, there was in existence.

(a) A person who can sue.

(b) Another who can be sued and

(c) all the facts which are material to be proved had happened. By then, the cause of action was already well established.

See Fadara v. Attorney General of Oyo State (1982) SC 1. That was the appropriate time for the Appellant to have instituted any action if in his opinion his interest on the land has been infringed.

Rather than do the above, the Appellant exhausted off the time in the world pursuing other interests with Kasuk Qua Clan which affected the land, until he was caught up with Section 1 of the limitation Law of Cross River State 2004. The present action brought after 17 years after the cause of action arose is really caught by the limitation Law Section 1 of the Cross River State 2004. Therefore I do not agree that the act of trespass on the part of the Respondents is a

continuous one that makes the period of limitation not to be applicable to it.

I think that what happened in this case is that the Appellants actually noticed the Presence of the Respondents on the land between 1993 – 1994 but rather over looked same hoping to mop up their case after clinching the Judgment in appeal No. CA/C/210/96 as reflected on Paragraph 13 of the Statement of Claim. This cannot be allowed in Law for the Appellants to institute any suit even after the time prescribed by Law and in this case, the limitation Law of Cross River State 2004. Therefore, the Appellants not having brought their suit within the time allowed by the Law is statute barred. In fact, it is for the sake of such negligent complacency that the Laws of concerning time bar were made. Like I Stated earlier on in the course of this Judgment the principle of limitation of action is in place to give litigation a life span. Litigation cannot continue in perpetuity. A party like the Appellant cannot be asleep on his rights since 1993-1994 only to wake up one day and jump into the Court to stir up an old wound.

?In conclusion, I hereby resolve the sole issue for

determination in this appeal against the Appellant and in favour of the Respondent and hereby hold that the suit at the Lower Court is statute barred and also affirm the decision of the Lower Court.

I hereby assess and fix cost of N50,000.00 in favour of the Respondents.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My learned brother, P. O. ELECHI, JCA, afforded me the opportunity of reading before now the judgment just delivered. His Lordship has resolved the sole issue before us. I am in agreement with his reasoning and conclusion that the suit at the lower Court was statute barred.

I agree that the appeal is bereft of merit and that the suit at the lower Court was statute barred and the learned Trial Judge was right to so hold. The judgment of the lower Court is hereby affirmed.

I also award N50,000 costs in favour of the Respondents.

ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Paul Obi Elechi, JCA, made available to me a draft copy of the lead Judgment in this appeal. I am in complete agreement with his reasoning and conclusion in dismissing this appeal.

?I adopt his reasoning as mine and also dismiss this

appeal.

?I abide by the orders in the lead judgment including the orders as to costs.

Appearances

C. O. Okute, Esq.For Appellant

AND

Eto Mohammed, Esq.For Respondent