ALAFIN v. OKANLA & ORS (2020)

ALAFIN v. OKANLA & ORS

(2020)LCN/13966(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, February 21, 2020

CA/IL/12/2019

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

MALLAM ABUBAKAR BABA ALAFIN (For Himself And On Behalf Of Entire Ile Tuntun Family, Oke-Oyi) APPELLANT(S)

And

1. MALLAM ABDULSALLAM AWEDA OKANLA 2. SULEIMAN SADIKU ALABI 3. RAMONI IDRIS RESPONDENT(S)

RATIO

THE GUIDING PRINCIPES OF LAW IN DETERMINING WHEN A SUIT OR AN ACTION INSTITUTED BEFORE A COURT IS STATUTE-BARRED

The Apex Court and this Court, have in a plethora of judicial pronouncements enunciated the guiding principles of law in determining when a suit or an action instituted before a Court of law is statute barred by reason of the period provided within which to institute an action. What then is cause of action in the legal parlance? Cause of action means the fact or combination of facts which gives rise to a right to sue. The right to sue consist of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent to the wrongful act. It is that particular act of the defendant which gives the plaintiff his cause of complaint, every fact which is material to be proved to entitle the plaintiff to succeed and every fact which the defendant would have the right to transverse. See Egbue vs Araka (1988) 3 NWLR Pt. 84 P.417 @ 598; Amodu vs Amode (1990) 5 NWLR Pt. 150 P.417 @ 356; Edjerode vs Ikine (2001) 18 NWLR Pt. 745 P.417 @ 446; Chevron (Nig)Ltd vs Lonestar Drilling Nig Ltd (2007) 16 NWLR Pt. 1059 P.417 @ 168 and Adimora vs Ajufo (1988) 3 NWLR Pt. 80 P.417 @ 1.

A CAUSE OF ACTION

A cause of action is said to accrue for the purpose of limitation upon the occurrence of an event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action. See Adimora vs Ajufo (1988) 3 NWLR Pt. 80 P. 417 @ 1; Yare vs National Salaries, Wages of Income Commission (2013) 5 NWLR Pt. 1367 P. 417 @ 173 and Owie vs Ighiwi (2005) 5 NWLR Pt. 917 P. 417 @ 184.

For the purpose of litigation, a cause of action entails the fact or combination of facts which gives rise to a right to sue and it consists of two elements: –
(a) The wrongful act of the defendant which gives the plaintiff his cause of compliant; and
(b) The resultant/consequent damage.
It is thus constituted by the aggregate or bundle of facts which the law will recognize as giving the plaintiff a substantive right to make a claim remedy or relief against the defendant. The existence of cause of action is an indispensable prerequisite. See Onuekwusi vs R.T.C.M.Z.C (2011) 6 NWLR Pt. 1243 P.296 @ 341.

Time begins to run where there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See Owie vs Ighiwi (2005) 5 NWLR Pt. 917 P. 417 @ 184 and Fadare vs A-G Oyo State (1982) 12 NSCC 52.

In determining whether an action is statute barred, the Court will only look at the writ of summons and the statement of claim and nothing more to determine when the cause of action accrued. See the case of Mobil Producing Nig Ltd vs Uwemedimo (2006) ALL FWLR Pt. 313 P.116 @ 133 – 134. PER BDLIYA, J.C.A.

WHETHER OR NOT A COURT HAS JURISDICTION TO ADJUDICATE ON A SUIT THAT IS STATUTE-BARRED

I am in total agreement with learned counsel to the respondent, when he submitted that a Court of law has no jurisdiction to adjudicate upon a suit which is statute barred, and that issue of jurisdiction of a Court can be raised at any stage of the proceedings, indeed, even on appeal for the first time. See Fumudoh vs Ike (2018) All FWLR Pt. 934 P.1233 @ 1234, wherein, it has been enunciated that:
“Jurisdiction of Courts is very fundamental, and lack of jurisdiction robs a Court of the competence to hear and decide the matter. In other words, once a Court has no jurisdiction to adjudicate on a matter, its adjudication of the matter will be declared a nullity by an appellate Court. The issue of jurisdiction of Court can be raised at any stage of legal proceedings, be at the Court of Appeal or at the Supreme Court.”
Again, in Adetona vs Igele General Ent. Ltd (2011) 1 MJSC Pt. 1 P.102 @ 130-131, the Apex Court espoused thus:
“The issue of jurisdiction is fundamental and the law is trite that it can be raised by a party at any stage of Court’s proceedings, even at the level of Supreme Court. It is however ideal that it be raised at the earliest stage of proceeding to avoid unnecessary waste of time.”

Before a Court of law can arrive at a decision that it has no jurisdiction to adjudicate upon a matter or suit which is statute barred, that is, commenced outside the period provides for to doing in the limitation Law, 1987, it must be shown by the writ of summons and the averments in the statement of claim, by examining same to determine when the said suit was filed and when the cause of action arose culminating in the filing of the same. In order to determine whether an action is statute barred or not, the yardstick to be used are:
a. The date when the cause of action accrued.
b. The date of commencement of the suit as indicated in the writ of summons.
c. Period prescribed for bringing an action to be ascertained from the statute in question.
See Ajayi vs Adebiyi & Ors (2012) 8 SCM 81 @ 20 Para; Asaboro vs Pan Ocean Oil (Nig) Ltd (2006) 4 NWLR Pt. 971 P.596 and Ogunko vs Shelle (2004) 6 NWLR Pt. 868 P.17. PER BDLIYA, J.C.A.

IBRAHIM SHATA BDLIYA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice, Kwara State, (the lower Court) in suit No. Kws/120/2013 delivered on the 23rd day of October, 2018, by S.M Akanbi J. The appellant commenced suit No. Kws/201/2013 by an originating summons seeking the following reliefs:
(1) AN ORDER OF THIS COURT that the Claimant is the trustee of on expanse of land at Ariyibi Village, Ilorin East L. G. A, KWARA State.
(2) AN ORDER that trespass and encroachment of the Claimant’s family land by the Defendants is unconstitutional, illegal, null and void.
(3) A sum of N100,000.00 being damages for an infringement on the Claimant’s right to their landed property, situate, lying and being at Ariyibi Village, Ilorin East L. G A, Kwara State.
(4) AN ORDER of this Honourable Court vesting the land in dispute in the Claimant’s family being the customary owner of same, for a very long time unchallenged.
(5) AN ORDER of perpetual injunction restraining the Defendants, their privies, agents, servants, assigns or any person(s) acting through them or for them from

further trespassing on the said expanse of land at Ariyibi Village, Ilorin East L. G. A, Kwara State.

The suit proceeded to trial and on the 3rd of December, 2014 judgment was entered in favour of the appellant. The respondent, being dissatisfied filed an appeal to this Court in appeal No. CA/IL/90/2016. The said appeal was allowed in a judgment delivered on the 2nd of March, 2017, with an order that the suit No. kws/120/2013, be remitted to the lower Court for trial on a writ of summons, rather than originating summons. Parties were ordered to file pleadings accordingly. Pleadings were filed by the parties. The respondents filed a statement of defence, wherein, a preliminary objection was raised on the competence of the said suit being statute barred. The lower Court, after the hearing of the preliminary objection in a ruling delivered on the 23rd of October, 2018, upheld the same, and dismissed the suit for being statute barred. Dissatisfied with the ruling, the appellant filed a Notice of appeal challenging same on the 5th of November 2018, on the three (3) grounds of appeal, which are thus:
(1) The learned trial judge erred in law by holding

that:-
“……. Having regard to the writ of summons and statement of claim from 2000 to 2013 outside the limitation period, the action now filed in year 2013, became incompetent afortiorai rendering the Court powerless and without jurisdiction. On this score alone as the case is completely statute barred”.
PARTICULARS OF ERROR
(i) The cause of Action did not arise in 2000, but in 2013.
(ii) The erection of signpost on the land in question by the Respondents precipitated the cause of Action in 2013.
(iii) The suit was remitted to the Honourable Chief Judge of Kwara State for assignment to another Judge for trial based on the Appeal of the Respondents to the Court of Appeal that the originating summons of the Appellant was incompetent and that parties should fie pleadings at trial Court.
(iv) The parties in the Suit are not the same with the parties in Suit CVF/40/2000, wherein the judgment was delivered on 7th of May, 2010.
(v) The Appellant brought this action at the lower Court in 2013.
(vi) 2013 to 2018, is not up to 10 years as statutorily provided by statute of limitation of Kwara State.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(vii) By the statute of limitation of Kwara State, the action of the Appellant can only be statute barred within 10 years of accrual of cause of action.
(viii) The Appellant’s action at the Lower Court is not caught by the statute of Limitation.
GROUND TWO
The trial Court erred in law and misdirected itself by declaring that the action of the Appellant is statute barred; based on Exhibit “A1”
PARTICULARS
(i) Exhibit “A1” is a judgment between the Appellant and one Sadiku Alabi, Ajagbe Aribi, Alhaji Atanda, Akanbi Akano and Issa Akano, before Upper Area Court II Oloje, delivered on 7th of May, 2010.
(ii) It was held in Exhibit “A1”that the decision in Suit CVF/36/92, appointing the Appellant as Trustee for his family is extant, valid and subsisting.
(iii) Title to the disputed land had not been decided in favour of the Respondents.
(iv) The suit was not heard on its merit by the Lower Court as ordered by the Court of Appeal.
(v) The order that the Suit is statute barred has no foundation or basis upon which it can stand.
(vi) The decision is perverse and has occasioned

miscarriage of justice against the Appellant.
3. The trial Court has no jurisdiction to grant the Respondents’ Application. “

The appellant sought the following reliefs in the event of allowing the appeal:
RELIEFS SOUGHT
(a) To allow the appeal of the Appellant and set aside the decision of the Lower Court delivered on 23rd of October, 2018, the subject of this appeal.
(b) AN ORDER OF THIS HONOURABLE COURT that the Lower Court had requisite jurisdiction to hear and determine the Appellant’s Claim and that same is not statute barred.
(c) AN ORDER OF THIS HONOURABLE COURT THAT the Suit of the Appellant be heard by another judge of High Court of Justice of Kwara State on its merit.
(d) AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstance of this appeal.

The appellant’s brief of argument was filed on the 20th day of September, 2019, containing two (2) issues for determination in the appeal, on page 5 thereof, which are as follows:
A. “Whether from the State of pleadings, the action of the appellant is statute barred based on Exh AI. (Ground 1 and 2).

Whether the trial Court has jurisdiction to grant the respondents’ application of statute of limitation. (Ground 3).”The respondents’ brief of argument was filed on the 1st day of November, 2019, wherein, on page 2 thereof, the two (2) issues for determination in the appellant’s brief of argument were adopted accordingly. A reply brief of argument was filed by the appellant on the 18th day of November, 2019.
ISSUE ONE (1)
Whether suit No. Kws/120/2013 is statute barred in view of Exh “AI”, (the judgment of the Upper Area Court in suit No. CVF/40/2000), delivered on the 23rd day of July, 2002? On this issue, Y.Y. Babatunde Esq, of learned counsel, did contend that on the pleadings and exhibit “AI”, suit No. Kws/120/2013, instituted on the 9th of January 2018, by the appellant, cannot be statute barred, in that, it is same suit that was remitted to the lower Court by this Court to be adjudicated upon on a writ of summons, rather than on an originating summons per order of Court made on the 2nd of March, 2017.

Learned counsel further submitted that, for a suit to be declared statute

barred, the date the cause of action arose must be determined, and compared with the date of the institution of same as enunciated in the case of Adesina vs Ojo (2012) 10 NWLR Pt. 1309 P552 @ 567-570. That the cause of action in suit No. Kws/120/2013, arose when the respondents erected a sign post on the parcel of land in dispute, which the appellant considered to be in violation of his title to same, thus instituted suit No. Kws/120/2013 before the lower Court which was determined in favour of the appellant in the judgment of the Court leading to the making of an order remitting same to the lower Court for retrial.

As regards suit No.CVF/40/2000, which is Exhibit “AI”, learned counsel did contend that same is different or distinct from suit No.Kws/120/2013, because the subject matter and cause of action are totally different. On how to determine when a cause of action arises, learned counsel submitted that, the Court is to consider the pleadings, the writ of summons and the date of commencement as espoused in the case of Adekoya vs FHA (2008) 6 MJSC, P.66 @ 82-83. That having regard to the pleadings, writ of summons and the date it was filed,

suit No. Kws/1220/2013, cannot be statute barred as held by the lower Court. Rather, in suit No. Kws/120/2013, the cause of action arose in 2013, not in 2000 when suit No. CVF/40/2000, was initiated before an Upper Area Court. In conclusion, learned counsel did urge that issue 1 be resolved in favour of the appellant.

For the respondents, Babatunde Olomu Esq, of learned counsel, adumbrated that in determining whether a suit is statute barred or not, the date the cause of action arose is to be considered vis-à-vis the date, the said suit was commenced. That the cause of action in the suit before the lower Court arose in 2000 leading to the extant appeal when the appellant sued Sadiku Magaji, who later died, and was substituted by the 1st respondent. As to what is cause of action, the principles of law enunciated by the Courts in the cases of Okafor vs Bende Divisional Union, Jos Branch (2017) 5 NWLR Pt. 1559 P. 385 @ 417; Esuwoye vs Bosere (2017) 1 NWLR Pt.1546 P.250 @ 217 and Mahman vs Usman (2014) 16 NWLR Pt. 1432 P. 160 @ 198, were cited and relied on, wherein cause of action has been defined by the Courts. That in determining when a cause of

action arose, the Court is to consider the writ of summons and the statement of claim as propounded in Mobil Producing Nigeria Ltd vs Uwemedimo (2006) All FWLR Pt. 313 P.166 @ 133-134; A.G Kwara State vs R. Olawale (1993) 1 NWLR Pt. 272 P.645 and Ogbimi vs Ololo (1993) 7 NWLR Pt. 304 P.128 @ 134-135.

Learned counsel further submitted that the reliefs sought in suit No.CVF/40/2000 is the same as in suit No.Kws/120/2013 as well as the subject-matter. Therefore, the contention of the appellant that suit No.CVF/40/2000 is different or distinction from suit No.Kws/120/2013, cannot be correct, it is misleading. Learned counsel went on to submit that appeal No. CA/IL/90/2015, against the judgment delivered in suit No.Kws/120/2013, wherein an order was made remitting the said suit to the lower Court for retrial. However, instead of filing pleadings before the lower Court as ordered, the appellant filed a fresh or new suit, based on a different cause of action. Learned counsel, therefore, urged the Court to resolve issue 1 against the appellant.

In the reply brief, learned counsel pointed out that the contention of the 1st respondent that the cause of action

arose in 2000 cannot be correct because it was the erection of the signpost in 2013 that gave rise to the cause of action culminating to suit Kws/120/2013, which was commenced before the lower Court. That the parties in suit No.CVF/40/2000 and Kws/120/2013, are different. The issues in dispute are substantially different. It is further submitted that in suit Kws/120/2013, the cause of action arose in 2013 whereas in suit No. CVF/40/2000, it arose in 2000. In view of the foregoing, learned counsel submitted that suit No.Kws/120/2013, cannot be incompetent by reason of being statute barred as held by the lower Court.

On pages 193 to 194 of the record of appeal, the learned judge of the lower Court, in a ruling delivered on the 23rd day of October, 2018, held thus:
“Going by the case of ADESINA VS. OJO (2012) 10 NWLR (Part 1309)552 at Pages 569 – 572 appositely cited by the Respondent. Cause of action is that which makes an action possible, it is every fact which is material to be proved to entitle plaintiff to succeed or all those things necessary to give a right of action. Whether they are to be done by the plaintiff or third-party cause

of action is totally of the factual situation in a case which entitled the plaintiff to reliefs thus, cause of action will not exist where nothing happened to entitled a plaintiff to some reliefs or to sue someone. IKINE VS. EDJERODE (2001) 12 SCNJ 184 at 198 and finally in the statement of claim, customary ownership of the land at Ariyibi Village, Ilorin East Local Government, #500,000 damages and order of restraining the defendants, privies, agents, servant e.t.c.
Going by the writ of summons and the statement of claim, the (cause of action arose) claimant ought to have commenced the suit in year 2000 and not now when the claimant noticed the trespass on Ariyibi land. By Section 4 of the Kwara State Limitation Law and from the case of Adesina vs. Ojo Supra cited by the Respondent/Claimant on cause of action. Cause of action arose in year 2000 almost 13 years thereafter when claimant noticed of trespass by the defendants on the land. By Section 4 of the Kwara State Limitation Law. You determine the period of limitation by looking at the writ of summons and the statement of claim. See NASIR VS. CSS KANO STATE (2007) 5 NWLR 253 at 270 – 271;

TUKUR VS. GOVERNOR OF GONGOLA STATE (NO. 2) (1989) WLR (Part 117) 517. He filed his action 11 years thereafter outside the period of Limitation.
Limitation Law, How determined? Limitation Laws have for their abject the prevention of the rearing up claims that are state. See P. N. UDOH TRADING COMPANY LIMITED VS. ABERE (2001) 11 NWLR (Part 723) 144 Page 626 – 627 Paragraphs F – A; AJAYI VS. MULTI ADMIN ONDO STATE (1997) 5 NWLR (Part 504) 237 Page 627 Paragraphs A – D. The claimant having been aware of the trespass since year 2000 waited till effluxion of time before taking action, he was dozing, soliloquizing fantasying till year 2018 when he lived in the illusion that he was still within time. How can he be heard, he is surely cannot be heard to say he is within time.
The issue comes under whether this action is statute barred, of course, this action is time and statute barred having falling prey of Section 4 of the Limitation Law of Kwara State. See the case of NPA VS. LOTUS PLASTIC LIMITED (2006) ALL FWLR Page 1038 – 1039 appositely cited by the Applicant’s counsel. See also SOFEN AND OTHERS VS. ADEMUYIWA (1986) 3 NWLR (Part

27) 241. Issue 1 is resolved in the objector’s Defendants/Applicant favour.
The argument that it is not statute barred having regard to what transpired in CVF/36/92, CVF/40/2000. All that this Court is expected to do is to look at the writ of summons and the statement of claim and not the entire pleadings. See Nasir vs. Kano State CSS (Supra), Tukur Vs. Gongola State (Supra), FORESTRY RESEARCH INSTITUTION OF NIGERIA VS. GOLD (2007) 5 SCNJ 302 at 314.”

Was the learned trial judge of the lower Court right in arriving at the decision supra? The Apex Court and this Court, have in a plethora of judicial pronouncements enunciated the guiding principles of law in determining when a suit or an action instituted before a Court of law is statute barred by reason of the period provided within which to institute an action. What then is cause of action in the legal parlance? Cause of action means the fact or combination of facts which gives rise to a right to sue. The right to sue consist of the wrongful act of the defendant which gives the plaintiff the right to complain and the damage consequent to the wrongful act. It is that particular

act of the defendant which gives the plaintiff his cause of complaint, every fact which is material to be proved to entitle the plaintiff to succeed and every fact which the defendant would have the right to transverse. See Egbue vs Araka (1988) 3 NWLR Pt. 84 P.417 @ 598; Amodu vs Amode (1990) 5 NWLR Pt. 150 P.417 @ 356; Edjerode vs Ikine (2001) 18 NWLR Pt. 745 P.417 @ 446; Chevron (Nig)Ltd vs Lonestar Drilling Nig Ltd (2007) 16 NWLR Pt. 1059 P.417 @ 168 and Adimora vs Ajufo (1988) 3 NWLR Pt. 80 P.417 @ 1.

compliant; and
(b) The resultant/consequent damage.
It is thus constituted by the aggregate or bundle of facts which the law will recognize as giving the plaintiff a substantive right to make a claim remedy or relief against the defendant. The existence of cause of action is an indispensable prerequisite. See Onuekwusi vs R.T.C.M.Z.C (2011) 6 NWLR Pt. 1243 P.296 @ 341.

Cause of action has been defined as every factual situation the occurrence of which gives the claimant the right to sue.

Suit No.Kws/120/2013 instituted by the appellant against

the respondents before the lower Court was filed on the 19th of January 2018. See pages 1 to 3 of the printed record of proceedings of the lower Court. The statement of claim can be found on pages 3 to 7 of the record of appeal. In dismissing suit Kws/120/2013 for being statute barred by reason of the provisions of Section 4 of the Kwara State Limitation Law, 1987, the learned trial judge relied heavily on the averments contained in paragraphs 4 to 11 of the statement of claim. The averments contained in the aforesaid paragraphs are reproduced hereunder.
4. The Claimant avers that the first time his family experienced encroachment on the land in question was by late Issa Akano (former Baale of Oke–Oyi) who was also from Ile-Tuntun, around 1990, which prompted him to institute an action against him on behalf of the family.
5. The Claimant further avers that he instituted suit against the late Baale of Oke-Oyi (Issa Akano) sometimes around 1992, before the Upper Area Court II, Oloje, with Suit Number, CVF/36/92.
6. The Claimant avers that consequent upon paragraph 5 above, Judgment in the said suit was delivered in his favour and he was

accordingly appointed as trustee of the land in question for his family. The copy of the said judgment, dated 2/11/95 is hereby pleaded and shall be relied upon at the trial of this suit before this Honourable Court.
7. The Claimant avers that thereafter, one Mallam Sadiku Alabi (Magaji Ariyibi), the late Baale of Oke-Oyi (Issa Akano) and some other 3 persons conspired and went to the land in question to harvest the crops and economic trees on the said land without requisite knowledge, consent and approval of the claimant, who was adjudged the accredited trustee of the land in question for his family in suit, CVF/36/92.
8. The Claimant avers that consequent upon fact above, the claimant instituted another civil action with suit CVF/40/2000 against the said Sadiku Alabi, the then Magaji of Ariyibi, Issa Akano (the former Baale of Oke-Oyi) and other 3 persons at Upper Area Court II, Oloje to checkmate their excesses on the land in question, and that henceforth proper account in respect of the harvest made on the land in question should be made to him.
9. The Claimant avers thereafter that the judgment in the said suit No.CVF/40/2000, was delivered

in favour of the claimant on 7th of May, 2010, wherein the Court held that since there was no any appeal against the decision in suit CVF/36/92, between the claimant and Issa Akano (former Baale of Oke-Oyi), the said decision is still subsisting and same cannot be relegated upon against except on appeal. The copy of the judgment dated 7/5/2010 is hereby pleaded and same shall be relied upon at trial of this suit.
10. The Claimant avers that sometimes around the year 2010. The judgment in the said suit was accordingly delivered in favour of the claimant, which presupposed the fact his family had established long possession of collection of tribute and control of the said expanse of land.
11. The Claimant avers that the 1st Defendant in the suit CVF/40/2000, (now late) had previously testified in the suit between the Claimant and himself together with 4 other persons before Upper Area Court II, Oloje, Ilorin, wherein the said 1st Defendant testified that they were mere caretakers on the land in question for the Claimant’s family. The proceedings in the said suit with suit number CVF/40/2000 is hereby pleaded and shall be relied upon at the trial of

this case.”

The learned judge of the lower Court, in his ruling, did not advert his mind to the averments contained in paragraphs 12 to 21 of the statement of claim, which are as follows as recorded on pages 5 to 6 of the record of appeal:
12. The Claimant avers that sometimes in February, 2013, he visited the land in question and he met the 2nd and 3rd Defendants on the land erecting sign boards on his family land and when they were accordingly quizzed by him, the 2nd and 3rd Defendants maintained that they were acting according to the instruction of the 1st Defendant in the suit CVF/36/92. The copy of the photograph of the signboards put on the land in question is hereby pleaded and same shall be relied upon at the trial of this case.
13. The Claimant further avers that the attitude of the 2nd and 3rd Defendant together with the late Magaji of Ariyibi Village (Mallam Sadiku Alabi) prompted him to file an originating summons before the High Court of Justice, Ilorin in 2013 with Suit Number KWS/120/2013, against the 2nd and 3rd Defendant and the late Magaji of Ariyibi Village (Mallam Sadiku Alabi).
14. The Claimant avers that the

judgment in the said suit KWS/120/2013, was delivered on 2/12/2014, by Hon. Justice M. O. Adawara, in favour of the Claimant, while the 2nd and 3rd Defendant, together with the 1st Defendant in the said Suit, being dissatisfied with the said judgment appealed against same before the Court of Appeal; Ilorin, Kwara State.
15. The Claimant equally avers that at the Court of Appeal, Ilorin, while the Appeal was about to be heard, after the filing of the Appellant’s brief of Argument, the first Appellant i.e. Mallam Sadiku Alabi in the Appeal with Appeal Number: CA/IL/90/2015, died after a brief illness on 4th of January, 2016.
16. The Claimant avers further that the death of the 1st Appellant in the said Appeal, precipitated his substitution with Mallam Abdulsalam Aweda Okanla, at the Court of Appeal, who is now the current Magaji of Ariyibi village.
17. The Claimant avers that the judgment in the said appeal was delivered on 2nd of February, 2017, in favour of the Appellants with an order that the said Appeal should be remitted back to the High Court of Justice for retrial, on the ground that the originating summons of the Claimant was

incompetent and that suit should be by writ of summons and not originating summons. A copy of the order of the Court of Appeal is hereby pleaded and same shall be relied upon at the trial.
18. The Claimant avers that after the said judgment, the 1st Defendant together with 2nd and 3rd Defendant went back to the land in question to encroach on same and to further exercise control and management of the land, with the erroneous impression that their Lordships at the Court of appeal have pronounced them, the owner of the land in question.
19. The Claimant avers that the 1st, 2nd and 3rd Defendants have encroached on the land in question and giving every one impression that they are the on the land in question and giving every one impression that they are the rightful owner of the said expanse of land in question. A copy of the photographs showing that the land in question has been encroached upon is hereby pleaded and same shall be relied upon at the trial of this suit.
20. The Claimant further avers that the Defendants have no genuine claims to the said land because his family had been in possession for period of long time unchallenged and that the

1st Defendant in suit KWAS/120/2013 was one of the caretaker of the said land for the family of the Claimant.
21. The Claimant avers that the strange attitude of the Defendants prompted him to approach his counsel (Y.Y. Babatunde Esq.) and same precipitated this suit before this Honourable Court.”

In order to ascertain or determine whether suit No. Kws/120/2013 is statute barred or not, it is necessary to know when cause of action accrues generally. For an action to be statute barred, the cause of action must be first ascertained and properly determined, which forms the basis of whether an action before the Court is properly constituted and that which make an action possible, as espoused in the case of ADESINA V. OJO (2012) 10 NWLR (PT. 1309) 552 AT PAGES 569. 570. Paras B – C, wherein it was held that:
“Cause of action is that which makes an action possible, it is every fact which is material to be proved to entitle the plaintiff to succeed or a those things necessary to give a right of action whether they are to be done by the plaintiff or third party, cause of action is totality of the factual situation in a case which

entitled the plaintiff to a relief or reliefs, thus, cause of action will not exist where nothing happened to entitle a plaintiff to some reliefs or to sue someone”.

Had the learned judge of the lower Court adverted his mind to the averment contained in paragraphs 12 to 21 of the statement of claim, he would have realized that by the averments contained in paragraphs 12 of the statement of claim, the cause of action on which suit No. Kws/120/2013 was instituted arose in February 2013. Whereas, the cause of action in suits No. CVF/36/2000 and No.CVF/40/2000 arose before the event of February 2013. The subject-matter of suits Nos.CVF/36/2000 and CVF/40/2000, was the unauthorized harvest of crops and economic stress on the land in dispute as could be gleaned in paragraphs 4, 5, 7 and 8 of the statement of claim. It is significant to note that the subject-matter of the cause of action in suit No.Kws/120/2013 is the erection of sign boards on the disputed land by the respondents in February 2013, not the unlawful harvest of the crops and economic tress between 1992 to 1995 as pleaded in paragraphs 4 to 8 of the statement of claim.

The law is trite, a cause of action is every fact that would be necessary for the plaintiff to prove, if traversed in order to support his right to the judgment of Court. See Ibrahim vs Osim (1988) 3 NWLR Pt. 82 P.257 and Savage vs Uwechia (1972) 3 SC 214. A cause of action should be looked at or viewed from peculiar circumstances of any given case. Therefore, the date of accrual of cause of action varies from one case to the other that usually gives rise to a right of action as would entitle a person or complainant to seek judicial relief(s).
In Oke vs Oke (2006) 17 NWLR Pt.1008 P.224 @ 241, it has been stated that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs, which warrant the person thereby injured or the victim who is adversely affected by such breach to take a Court action in assertion or protection of his legal right that has been breached. The duration of a right to cause of action which is conferred on an injured party is necessarily limited and does not last till eternity. It lapses after the date the statute of limitation proclaims that no such legal or proceedings may lawfully be taken or commenced by an

injured party. See Woherem vs Emereuwa (2004) 13 NWLR Pt. 890.

Suit No.Kws/120/2013 instituted by the appellant which is predicated on the averment contained in paragraphs 12 to 21 of the statement of claim, particularly paragraphs 12 to 18 thereof. By the averments in paragraphs 4 to 11 of the statement of claim, suit No. CVF/40/2000 cannot be same with suit No. Kws/120/2013, having been predicated on a different cause of action, having regard to the averments contained in paragraph 12 to 21 of the statement of claim. The provisions of Section 4 of the Limitation Law of Kwara State, provides for the period of ten (10) years within which any suit or action for recovery of land ought to be commenced. The suit No.Kws/120/2013 filed by the appellant on the 9th of February, 2013 cannot therefore be statute barred by the provisions of Section 4 of the Limitation Law of Kwara State, 1987, which provides thus:
“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”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The learned judge of the lower Court was therefore not right in his decision that the said suit is statute barred. I resolve issue 1 in favour of the appellant.

ISSUE TWO (2)
Whether the lower Court had jurisdiction in adjudicating on the suit N. kws/120/2013? Y.Y Babatunde Esq, of learned counsel to the appellant did submit that by the averments contained in paragraphs 12, 13 and 14 of the statement of claim read together with the deposition in paragraphs 12, 13 and 14 of the statement of oaths of the appellant, the cause of action arose in February 2013, when the 1st respondent encroached upon the disputed land. It is also not in dispute, learned counsel, contended, that suit No.Kws/120/2013, was instituted on the 9th of January 2018, therefore, it cannot be statute barred under Section 4 of the Limitation Law of Kwara State, as held by the lower Court. That since the suit No. Kws/120/2013 is not statute barred, the lower Court had the jurisdiction in adjudicating same.

On Exh “AI”, it is learned counsel’s submission that, in view of the pleadings referred to supra, the cause of action in suit CVF/40/2000, arose in 2000.

That suit No. Kws/120/2013 can only be statute barred if same was commenced after the expiration or lapse of ten (10) years stipulated in Section 4 of the Limitation Law, 1987 of Kwara State. By simple arithmetic, it can be deduced that the period from 2013 to 2018, is less than ten (10) years. That, being position, learned counsel submitted, suit No.Kws/120/2013, is competent and the lower Court had the jurisdiction when it adjudicated upon same. In conclusion, learned counsel did urge that issue 2 be resolved in favour of the appellant because suit No. Kws/120/2013 is not statute barred having regard to the pleadings in the statement of claim filed together with the writ of summons on the 9th of January, 2018 as indicated on pages 2 of the record of appeal which was complied and transmitted to this Court on the 21st of January 2019.

Babatunde Olomu Esq, of learned counsel to the respondents, did submit that issue of jurisdiction of a Court of law to adjudicate on a matter can be raised at any stage of the proceedings, even on appeal as propounded in a litany of judicial decisions, including Fumudoh vs Ike (2018) All FWLR Pt. 934 P.1233 @ 1234 and

Elabanjo vs Dawodu (2006) All FWLR Pt. 328 P.604 @ 650-651. Learned counsel went on to submit that a Court of law has no jurisdiction to adjudicate upon a statute barred suit, which can be raised as a preliminary objection at the commencement of the trial or at any other time as held in Elabanjo vs Dawodu supra. That by provisions of Section 4 of the Limitation Law, 1987, Kwara State, any action filed for recovery of land, must be commenced within 10 years of the accrued of cause of action. That by paragraphs 7, 8 and 9 of the statement of claim, the cause of action in suit CVF/40/2000, arose in 2000, not in 2013 as contended by the appellant. Concluding, learned counsel did urge that issue 2 be resolved against the appellant, for the lower Court rightly held that suit No. Kws/120//2013 being statute barred, the lower Court had no jurisdiction in adjudicating same, and dismissed same.

appeal for the first time. See Fumudoh vs Ike (2018) All FWLR Pt. 934 P.1233 @ 1234, wherein, it has been enunciated that:
“Jurisdiction of Courts is very fundamental, and lack of jurisdiction robs a Court of the competence to hear and decide the matter. In other words, once a Court has no jurisdiction to adjudicate on a matter, its adjudication of the matter will be declared a nullity by an appellate Court. The issue of jurisdiction of Court can be raised at any stage of legal proceedings, be at the Court of Appeal or at the Supreme Court.”
Again, in Adetona vs Igele General Ent. Ltd (2011) 1 MJSC Pt. 1 P.102 @ 130-131, the Apex Court espoused thus:
“The issue of jurisdiction is fundamental and the law is trite that it can be raised by a party at any stage of Court’s proceedings, even at the level of Supreme Court. It is however ideal that it be raised at the earliest stage of proceeding to avoid unnecessary waste of time.”

Before a Court of law can arrive at a decision that it has no jurisdiction to adjudicate upon a matter or suit which is statute barred, that is, commenced outside the period provides for to

doing in the limitation Law, 1987, it must be shown by the writ of summons and the averments in the statement of claim, by examining same to determine when the said suit was filed and when the cause of action arose culminating in the filing of the same. In order to determine whether an action is statute barred or not, the yardstick to be used are:
a. The date when the cause of action accrued.
b. The date of commencement of the suit as indicated in the writ of summons.
c. Period prescribed for bringing an action to be ascertained from the statute in question.
See Ajayi vs Adebiyi & Ors (2012) 8 SCM 81 @ 20 Para; Asaboro vs Pan Ocean Oil (Nig) Ltd (2006) 4 NWLR Pt. 971 P.596 and Ogunko vs Shelle (2004) 6 NWLR Pt. 868 P.17.

Earlier in this judgment, I had resolved issue 1, dealing with what is a cause of action, when cause of action accrues and whether suit No. Kws/120/2013 is statute barred in view of Exh AI, (the suit No. CVF/40/2000) and resolved issues 1 for determination in favour of the appellant, that is the suit is not statute barred and that the lower Court had the jurisdiction in adjudicating same. I adopt the

reasonings leading to the resolution of the said issue 1 and “mutatis-mundantis” apply same in resolving issue 2.

By the writ of summons filed on the 9th of January, 2013, the statement of claim, especially paragraphs 11 to 18 thereof, the cause of action culminating in the commencement of suit No Kws/120/2013, the cause of action accrued in February 2013 when the suit was filed on the 9th day of January, 2018, a period of less than ten (10) years as provided for under Section 4 of the Limitation Law, 1987 Kwara State. I do not therefore subscribe to the decision of the learned judge of the lower Court as recorded on pages 197 to 198 of the printed record of appeal that:
“While issue 1 and 2 is resolved in favour of the claimant having regard to the fact that the writ of summons and statement of claim from 2000 to 2013 outside the limitation period, the action now filed in year 2013 became incompetent afortoiri rendering the Court powerless and without jurisdiction. On this score alone as the case is completely statute barred. See NASIR VS. CSS KANO STATE (Supra); AJAYI VS. MULTI ADMIN ONDO STATE (1997) 5 NWLR (part 504) 237 Page

627 Paragraphs A – D; TUKUR VS. GOVERNOR OF GONGOLA STATE No. 2 (Supra); NDIC VS. KOLEOSO (1996) ALL FWLR (Part 312) 289. I therefore sustain the objections raised by the Applicant’s counsel.”

Rather, I am in total agreement with the submission of Babatunde Esq, of learned counsel to the appellant, when he submitted on page 12 of the brief of argument that:
“It is our further humble position that from the submissions made so far in this brief, the suit of the appellant at the lower Court is competent and the trial Court has jurisdiction to entertain the writ of summons, statement of claim as ordered by the Court of Appeal on 2/3/2017 for trial and that pleadings filed by the parties i.e. the appellant and respondents, in other words, the suit of the appellant at the lower Court is not statute barred or caught by estoppel per rem jurdicata and we urge lordships to so hold.”

In the end result, I resolve issue 2 in favour of the appellant. Having resolved the 2 issues for determination in the appeal in favour of the appellant, the appeal succeeds. The judgment of the lower Court delivered in suit No. Kws/120/2013 on

the 23rd of October, 2018, is hereby set aside.

But, this is not the end of the matter. Learned counsel to the appellant did urge this Court to apply the provision of Section 15 of the Court of Appeal Act, to consider the said suit as if it were the lower Court and determine same on the materials placed before the Court. Broadly speaking the provision of Section 15 of the Court of Appeal Act confers jurisdiction on the Court of Appeal to make any order(s) which the Court below could have made in the interest of justice. This presupposes that the Court of Appeal must have been vested with jurisdiction to entertain the suit and the Court below also had the jurisdiction over the matter. The provisions do not confer on the Court of Appeal the power to make an order which the trial Court could not have made in resolving the dispute between the parties in the suit before it. The purpose of said Section 15 of the Court of Appeal Act is simply to obviate delayed justice.
There are conditionalities for the invocation of the powers vested in this Court under Section 15 of the Court of Appeal Act, which are:
a. The lower Court or trial Court must have the

legal power to adjudicate in the matter before the appellate Court can entertain;
b. The real issue raised up by the claim of the appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal;
c. All necessary material must be available to the Court for consideration; (Underlining for Emphasis)
d. The need for expeditious disposal of the case of the material presented; and
e. The injustice or hardship that will follow if the case is remitted to the Court below must clearly manifest itself.
In the case of Obi vs INEC (2007) 11 NWLR Pt. 1046 P.436 @ 639-640, the Apex Court, Per Aderemi JSC, had had a vivid elucidation of the provisions of Section 15 of the Court of Appeal Act (which is impari materia with S.22 of the Supreme Court Act, 1999) as to its essence, purport and import and its applicability by this Court in the adjudication process. The learned Noble Lord, enunciated that:
“I have taken a critical examination of the contents of the originating summons used in initiating the case; everything needed to enable the Court below (Court of Appeal) to invoke the

provisions of the aforesaid Section 16 and to proceed to determine the main issue in the case was present. The Court below erroneously failed to take the advantage of the aforesaid provisions of the Court of Appeal Act. Would this then be the end of the road for a citizen who has approached the citadel of justice seeking remedies for wrong done to him? I think not. The law must not and cannot be wanting in dispensing justice. And since justice according to law is the preoccupation of a judex, a Court must always rise up to such an occasion. It is to meet this exigency that Section 22 of the Supreme Court Act, Cap. 424, Laws of the Federation of Nigeria, 1999, was enacted to confer general powers on this Court to do all such things that will bring about unalloyed justice. I pause to say that the conditionalities which I have stated” above that must be in place for the invocation of the provisions of Section 16 of the Court of Appeal Act aforesaid are also the condition precedent for the invocation of the provisions of Section 22 of the Supreme Court Act.”
Ordinarily, I would have resorted to the provisions of Section 15 of the Court of Appeal Act,

if the pleadings in suit Kws/120/2013, were properly filed in accordance with the Rules applicable at the lower Court. Also, the statement on oath of the appellant and the defendants have not been properly taken and adopted before the lower Court as required under the Evidence Act. There are therefore no sufficient materials placed before this Court to invoke the provision of Section 15 of the Court of Appeal Act to determine suit No. Kws/120/2013, as urged by the learned counsel to the appellant.

On the 2nd of March, 2017, this Court, in Appeal No. CA/IL/90/2015, ordered the parties to file pleadings for the retrial of the suit by the lower Court as contained in the drawn-up order of this Court which can be located on page 77 of the record appeal which are follows:
“BETWEEN
1. ABDULSALAM AWEDA OKANLA
2. SULEIMAN SADIKU ALABI … … APPELLANTS
3. RAMONI IDRIS
AND
MALLAM ABUBAKAR ALAFIN … … RESPONDENT
On Appeal against the judgment of Hon. Justice M.O. Adewara of the Kwara State High Court delivered on the 2nd of December, 2014 in suit No. KWS/120/2013.
ON THURSDAY THE 2ND DAY OF

MARCH, 2017
UPON READING, the Record of Appeal and all relevant documents filed by the parties through their respective Counsel, and after Hearing Babatunde Olomu Esq with him AbdulFatai Salman Esq of Counsel for the Appellants: Y.Y Babatunde Esq with him A.S Gambari Esq and S.B Iyiola Usman (Mrs) of Counsel for the Respondent
MOJEED A. OWOADE IT IS HEREBY ORDERED
PRESIDING JUSTICE,
COURT OF APPEAL
1. That the Appeal is allowed
2. That the Judgment of the Kwara State High Court per M.O Adewara J. in suit No. Kws/120/2013 delivered on the 2nd day of December, 2014 is hereby set aside.
3. That the parties in the case are hereby ordered to file pleadings
4. That the suit is remitted to the Honourable, the Chief Judge of the Kwara State for assignment to another judge for trial.
5. That the sum of Thirty Thousand Naira (N 30,000.00) costs is hereby awarded to the appellants.”

The orders made by this Court on the 2nd of March, 2017 remain valid and the parties are to comply with same to enable the lower Court to adjudicate and determine suit No. Kws/120/2013, without further delay. I make no order as to

costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree

BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment of learned brother Ibrahim Shata Bdliya, JCA just delivered. The reasons and conclusion reached therein accord with my understanding of the law and I adopt same as mine in finding merit on this appeal and I allow it. Consequently, I set aside the judgment of the Kwara State High Court in respect of suit No: KWS/120/2013 delivered on the 23rd October 2018.
I abide by the consequential orders made in the lead judgment

Appearances:

Y.Y Babatunde, Esq. For Appellant(s)

Tunde Olomu, Esq. with him, Abdullahi Salman For Respondent(s)