ASHIGABU & ORS v. ADIGIZI & ORS
(2022)LCN/16293(CA)
In the Court of Appeal
(MAKURDI JUDICIAL DIVISION)
On Wednesday, February 23, 2022
CA/MK/146/2011(CONSOLIDATED)
Before Our Lordships:
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Olasumbo Olanrewaju Goodluck Justice of the Court of Appeal
Between
1. MR ANDREW ASHIGABU (Youth Representative Esha-Gaji) 2. MR. MUSA HONES KUDU (Chairman Esha-Gaji Community Development Association) 3. MR ELISHA KUMMAH TIGA (Secretary General Esha-Gaji Community Development Association) (For Themselves And On Behalf Of The Entire Members Of Esha-Gaji Community) APPELANT(S)
And
1. MALLAM MUSA ADIGIZI (Parading Himself As Mai Angwan Kagbu-Ero) 2. MR. AVRE NGBAKU (Representative In Wulko) 3. MALLAM AKU ANZAKU (Representative In Wulko) 4. MR. EMMANUEL EGBI (Representative Of Wulko) (For The Members And On Behalf Of The Rest Of Wulko People) 5. AKUN LOCAL GOVERNMENT AREA NASARAWA STATE 6. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE NASARAWA STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON LIMITATION OF ACTION LAW
One may ask what is a Limitation of Action Law? In the Black’s Law Dictionary, Eighth Edition, the word Limitation of Action is defined as a statutory period after which a lawsuit or prosecution cannot be brought in Court.
A cause of action is said to abate or is statute barred when no proceedings in respect therefore can be initiated became the time specified by the Limitation Law has expired or extinguished. After a period set by the law for commencing an action, a Plaintiff with a good cause of action cannot enforce same by judicial process because he has sat over his right for all time as the time stipulated by law for initiating such action has become extinct. See NASIR V CIVIL SERVICE COMMISSION KANO STATE & 2 ORS (2010) 1-2 SC 65 at 92.
By this definition of Limitation Action, which renders an action filed outside the time prescribed for instituting such action to be statute barred, it will warrant providing the meaning and effect of the word statute barred. KALGO JSC of Blessed memory) in the case of ARAKA V EJEAGWU (2000) 12 SC (Pt. 1) 99 at 130 said thus:
“Statute barred” simply means barred by a provision of the Statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid and the Court will treat as such.”
By the foregoing, it’s suffice to say that the general principle of law is that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribes by such statute. Any action that is instituted after the period stipulated by the statute is barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law. See EGBE V ADEFARASIN (1987) 1 SC 1, AREMO II V ADEKANYE (2004) 7 SC (Pt. 11) 28, OLAGUNJU AND ANOR V PHCN (2011) 4 SC (Pt. 1) 152. Therefore, a claim which is statute barred in my view becomes a mere shell which is of no utility value. PER ONIYANGI, J.C.A.
WHETHER OR NOT A SUIT THAT IS STATUTE BARRED CAN BE RESUSCITATED
Having concluded that the suit is statute barred, it is trite that when a suit is statute barred, it is dead on arrival, it cannot be resuscitated. In such situation, the Plaintiffs’ cause of action will have no veins to ventilate it. See NASIR V CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) LPELR 1943 (SC), ASABORO AND ANOR V PAN OCEAN OIL CORPORATION (NG) LTD & ANOR (2017) LPELR – 41558 (SC), EBOIGBE V NNPC (1994) 5 NWLR (Pt. 347) 649. When an action is statute barred it denies the Court of its jurisdiction and power to hear and determine it. See A.G. ADAMAWA STATE V A.G. FEDERATION (2014) 14 NWLR (Pt. 1428) 515 at 577. In the circumstance of the application of the Appellants before the Court which is interlocutory in nature, the lower Court ought not to have even entertained it because the taproot from which it sourced its right of existence has no legal base and the trial Court ought not to have heard the suit. In the circumstance of this appeal therefore wherein the main contest emanates from a statute barred action, I am left with no other option than to sniff out life from this appeal, put it in a coffin and nail it because it is dead on arrival “DOA”. PER ONIYANGI, J.C.A.
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): These consolidated appeals Nos. CA/MK/146/2011 and CA/MK/146A/2011 are against the Judgment and Interlocutory Ruling of the High Court of Justice Nasarawa State sitting in Lafia delivered on 17th day of December, 2010 and the Ruling delivered on 30th day of March, 2009 respectively in Suit No. NSD/LF102/2002 Coram Hon. Justice Isa A. Ramalan.
The two appeals were consolidated vide the order of this Court granted on 15th day of July, 2021. On that note, I will first proceed with the Appeal number CA/MK/146/2011 and thereafter with Appeal No. CA/MK/146A/2011.
APPEAL NO. CA/MK/146/2011
Dissatisfied with the judgment of the High Court of Justice Nasarawa State in Suit No. NSD/LF102/2002 delivered on the 17th day of December, 2010 wherein the suit by the Appellants as Plaintiffs against the Respondents in this appeal as Defendants was dismissed.
The case of the Appellants as Plaintiffs in brief before the trial Court is that, the plaintiffs before the trial Court and Appellants in this Court who are Esha-Gaji people of Akwanga Local Government Area of Nasarawa State claimed that their forefathers are the founder of the area known and called Gaji Land and that their forefathers granted the 1st-4th Defendants (Respondents in this Court) who are known as “WULKOS” the area they occupied within their domain for farming. The grant is with the condition that they will be paying taxes to the “Area Esha-Gaji” (Chief of Esha). It is their case that the Plaintiffs noted sometimes in 1980 that the Defendants started claiming ownership of the places they occupied and refused to pay taxes to the Area Esha Gaji and started renaming Streets, Schools, Churches and the like to “Kagbu Ero” and Kagbu WULKO. The Plaintiffs claimed that they reported the matter to the Local Government who in turn set up a committee of enquiry. But when they could not see any action coming out of the committee’s report, hence their action in Court against the Defendants (Respondents) claiming in paragraph 40 of their Joint Amended Statement of Claim as follows:
“PARAGRAPH 40”
“Whereof the Plaintiffs claim against the Defendants jointly and severally, for:
(i) A DECLARATION that all those pieces or parcels of land being variously referred (albeit erroneously and wrongfully by particularly the 1st to 10th Defendants) as “Kagbu-Ero”, “Kagbu Erroh”, Kagbu Wulko” and/or Kagbu Wulko “Ussu” are firmly within and fully comprised in Esha-Gaji community land, of Esha-Gaji Village Area, Akun Local Government Area of Nasarawa of Nigeria, and in various parts of Lakpa sub-village area thereof and variously bearing their original names or nomenclatures of Akun-Ango or Aku-Yango, Kpaben, Ichukubi, Ngbubulu, Akun-Agbon.
(ii) A FURTHER DECLARATION that the pieces or parcels of land aforesaid belong to the Esha Gaji Community as the customary landlords thereof to the Wulko residents and other settler farmers thereon.
(iii) AN ORDER directing the Defendants to revert, rename or cause to be renamed all institutions, whether of State or private in the Area (including schools, health centres, Churches et al) being presently erroneously and wrongfully called by or at instance of the Wulko residents as “Kagbu Ero”, “Kagbu-Wulko” Use”, et al to their proper original Esa-Gaji names and or nomenclatural appellations of Aku-Ango or Aku-Yango, Kapben, Ichukubi, Ngbukulu, Aku-Ango or Aku-Yango, Kapaben, Ichukubi, Ngbukulu, Aku-Gaji, Aku-Etsem or Aku-agbon as aforesaid.
(iv) A FURTHER ORDER directing the Defendants to hence forth give or accord full recognition to the Plaintiffs as the Customary landlords of the 2nd- 10th Defendants and all other co-Wulko residents in Esha-Gaji land aforesaid, and directing them accordingly to pay their taxes, royalties and full allegiance to the 1st Plaintiff as the overall Area (Chief) and Village Head of said entire Esha-Gaji land area inclusive the so called “Kagbu-Ero”, Kagbu-Wulko Ussu” parcels and cause to be removed forthwith all sign boards bearing such so called appellants and for the said Wulko residents to stop interfering with the Plaintiffs’ peaceful usage of the economic trees in such places or parcels, in their capacity as the rightful customary owners thereof.
(v) A PERPETUAL INJUNCTION restraining (particularly the 1st – 10th) Defendants from further parading, referring to, or portraying the said parcels of land as “Kagbu-Ero” “Kagbu-Erroh” “Kagbu-Wulko”, “Kagbu-Wulko Ussu” or any such or other appellations giving or tending to give impression other than that they are part and parcel of or fully firmly within Esha-Gaji community land in Esha-Gaji Village Area.
(vi) The sum of N1,000,000.00 (One Million Naira) being special and general aggravated exemplary damages against 1st to 10th Defendants for the embarrassment, odium, anguish, losses and expense suffered and incurred by the Plaintiffs as a result of the acts and posture of said 1st to 10th Defendants, leading to this action.
AND
All the cost of this action”.
The suit by the Appellants as Plaintiffs went through full trial. The respective party called witnesses and the Plaintiffs tendered one Exhibit. In the end, the suit by the Plaintiffs was dismissed for being statute barred pursuant to Section 28 of the High Court Law.
Miffed by the outcome of the trial, hence this appeal by the Plaintiffs which is predicated on the Notice of Appeal dated 16th February, 2011 and filed same date. By the order of this Court, an Amended Notice of Appeal filed on 22nd March, 2018 was deemed as properly filed and served on 16th day of April, 2018. It has four grounds.
RELIEF SOUGHT
An Order of the Honourable Court allowing this appeal and setting aside the judgment of the lower Court and substituting it with an Order entering judgment as per the reliefs claimed by the Appellants.
ALTERNATIVELY
An Order of the Honourable Court remitting the suit for hearing by another judge.
Consequent upon the transmission of the Record of Appeal, respective Counsel filed and exchanged their briefs of argument thus.
APPELLANTS’ BRIEF OF ARGUMENT
The Appellants’ Amended brief of argument filed on the 22/3/2018 was deemed as properly filed and served on the 16th day of April, 2018. Therein, he distilled the following two issues for the determination of the appeal:
(1) Was the trial Court right when he held that the Plaintiffs/Appellants’ claim was statute barred to dismiss same (Distilled from ground two).
(2) Was the appellant’s case as presented considered on its merit when the trial Court summarily dismissed same on the issue of statute bar. (Grounds three and four)
1ST TO 4TH RESPONDENTS’ ISSUES FOR DETERMINATION
The 1st – 4th Respondents filed their brief of argument dated 24th day of October, 2018 on the 25th day of October, 2018 but out of time. It was deemed as properly filed and served on the 20th day of May, 2019. He submitted the following two issues for determination of the appeal:
(1) Whether the suit of the Appellants/Plaintiffs was competent before the lower Court having regard to the circumstances of the suit.
(2) Whether the Appellants/Plaintiffs proved their case in accordance with law to warrant judgment be entered in their favour?
The 5th and 6th Respondents did not file any brief of argument.
Upon a careful reading of the respective issues, it is my humble view that they are same in content and targeted towards advancing the same objective goal. Therefore, I will adopt the issues formulated by the Appellants for the determination of the appeal. But before doing that I have equally observed that the Appellants did not distill any issue from his ground one. That ground is deemed abandoned and same be and is hereby struck out.
ISSUE ONE
Was the trial Court right when he held that the Plaintiffs/Appellants claim was statute barred to dismiss same (Ground two).
Reiterating that at the end of the trial, the learned trial judge invoked the provisions of the English Statute of Limitation of 1623 and dismiss the Plaintiffs/Appellants suit filed in 2002 and determined in 2010 by the trial Court. His contention on the foregoing is that since the trial Court faulted the case of the Plaintiffs/Appellants on 1923 received English Law on statute of limitation that have ceased to be in operation in Plateau State. He submitted that the judgment will and cannot stand and hence he urged the Court to so hold. He added that the Supreme Court held that there is no operative statute of limitation in Plateau State let alone to be received by Nasarawa State in YARE V. NUNKU (1995) 5 SCNJ pg. 102 H4. Where Ogundare JSC held thus:
“The position of the law is that although the limitation Edict of Plateau State exists it has not yet come into force and can therefore not be applied until the Attorney-General of the State has by an order published in the State Gazette brought it into force” (P. 108).
It is his argument that assuming without conceding that the statute of limitation of 1623, or any other law on limitation for that matter applies in the Plaintiffs/Appellants case, the trial judge followed a narrow approach to the case presented by the Appellants in coming to the conclusion that their suit is statute barred. He argued further that the trial judge after quoting same paragraphs in the Plaintiffs/Appellants Amended Joint Statement of Claim came to the following conclusion:
“Looking at these paragraphs the Plaintiffs are complaining that the Wulko settlers i.e. the Defendants more particularly 1st- 4th Defendants started challenging their customary lordships and cause to climax in 1980.” (see page 186 lines 7 to 10)
He argued that the foregoing conclusion was not the right inference from the paragraphs quoted. He referred to paragraph 28 of the Amended Statement of Claim. He submitted that the said paragraph accounted for the beginning of what later became the acts or chain of acts of the 1st to 4th Defendants/Respondents that gave rise to their action in 2002. He accused the trial Court of taking an aspect of the Plaintiffs/Appellants pleading and failed to consider other aspects where they narrated the subsequent acts that took place after 1980 before they decided to come to Court to complain on all these issues as clearly averred in paragraphs 26 to 36 of the Amended Statement of Claim. He submitted further that the position of the law is that the period of limitation in respect of any particular action will begin to run from the date the course of action accrues. He relied on the cases of BRITISH AIRWAYS PLC. V. AKINYOSOYE (1995) 1 NWLR (Pt. 374) pg. 724 H. 3, EGBE V. ADEFARASIN (1987) 1 NWLR (Pt. 47 pg. 1.
On when cause of action begins to run, he submitted that the apex Court has given a clear guide in the case of JALLCO LTD. VS. OWONIBOYS TECH. SERV. LTD. (1995) 4 NWLR (Pt. 391), ADIMORA V. AJUFO (1988) 3 NWLR (Pt. 180) 1 at 17. He added that it is certain that a cause of action will not be said to have arisen unless all facts have happened which are material to be proved to entitle the Plaintiff to succeed. He contended that the computation of time by the trial Court is only limited to a single paragraph where 1980 was mentioned while the Court did not consider other complaints like changing the names of their town, changing the name of institutions in their towns and failure to pay tax to their chief which were not limited to 1980. He also pointed to the failure of the 5th & 6th Defendants to take action on the committee’s report. All these chains of actions ought to have taken place in order to confer the right of action on the Appellants. He relied on the cases of P.N. UDOH TRADING CO. LTD. VS. ABERE (2001) 11 NWLR (Pt. 723) pg. 114 at 117 H. 1, PATKUN INDUSTRIES LTD. V. NIGER SHOES LTD. (1988) 5 NWLR (Pt. 93). Where it was held that cause of action means a combination of facts and circumstances giving rise to the right of action. He relied on PATKUN INDUSTRIES LTD. V. NIGER SHOES LTD. (1988) 5 NWLR (Pt. 93) (page not provided).
Finally, he submitted that the limitation law relied upon by the trial Court is not applicable to a situation where an individual come to Court to seek an order directing a government agent to perform its duty on a recommendation made to it by a Committee set up for a purpose. He added that this alone makes the case of the Appellants proper against not only the 1st to 4th Defendants/Respondents but also the 5th and 6th Defendants/Respondents.
He prayed the Court to allow the appeal and set aside the judgment of the trial Court on the issue of statute bar.
In response, the learned Counsel representing the Respondents answered the question in the negative and submitted that the suit of the Appellant before the trial Court was incompetent. He relied on paragraphs 19 and 20 of the 1st to 4th Respondents (Defendants) Joint Statement of Defence wherein they contended that the suit by the Appellants before the trial Court was statute barred. He argued that the major cause of action by the Appellants at the lower Court against the 1st – 4th Respondents as Defendants is that the 1st to 4th Defendants (Respondents) openly challenged the customary over lordship of Esha-Gaji by changing the original names of various villages in Esha-Gaji to Kagbu-Ero, Kagbu-Wulko and Kagbu Wulko Ussu and that the action started in 1980. He referred to paragraphs 24-28 of the Plaintiffs Amended Statement of Claim. He added that PW9 who is the 9th Plaintiff before the trial Court listed the Appellants (Plaintiffs) grievances against the 1st-4th Defendants and all people of Wulko in Kagbu-Ero to be the fact that they changed the names of the villages to Kagbu-Ero, claim ownership of the villages, refused to pay tax and royalties to the Chief of Esha-Gaji, removed the old sign boards and replaced same with new sign boards bearing Kagbu-Ero and that all these acts took place in 1980. It is his argument that this is a clear admission by the Appellants/Plaintiffs that the cause of action arose in 1980. By the foregoing admission, the cause of action was instituted. That is to say that the cause of action arose in 1980 and the suit was filed in 2002. He submitted that by virtue of Section 28 of the High Court Law of Northern Nigeria, the applicable Limitation Law in Plateau and Nasarawa States which is part of Northern Nigeria as at 1980 when the cause of action arose is the Statute of Limitation 1623. Therefore, by virtue of Section 28 of the High Court Laws of Northern Nigeria, the English Statute of Limitation 1623 is applicable to Plateau and Nasarawa States as at 1980 when the cause of action arose. By that law, the period of limitation for land matters is 10 years. Any suit on such matter filed after 10 years of when the cause of action arose is statute barred. He relied on the case of YUSUF V CO-OPERATIVE BANK (1994) 7 NWLR (Pt. 359) 676 at 691. He submitted that where an action is statute barred, a Plaintiff who might otherwise 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 law for instituting such action has elapsed and the suit becomes incompetent. He relied on SHELL DEVELOPMENT COMPANY VS F.B. FARAH & ORS (1996) 3 NWLR (Pt. 382) 148.
In addition to the foregoing, he contended that another issue that rendered the suit by the Appellants/Plaintiff incompetent before the lower Court is by the relief sought by the Appellants wherein they asked the trial Court to determine the boundary between the two communities. This is so by their claim requesting for a declaration that the disputed land falls within the territorial boundary of Esha-Gaji village not Wulko community. By that claim, the lower Court is being asked to determine the boundaries of Esha-Gaji and Wulko Villages. He submitted that this Court and the lower Court cannot determine boundaries of Esha-Gaji and Wulko villages. He added that it is only the Boundary Commission of Nigeria that can determine that. He urged the Court to resolve the issue against the Appellants and dismiss the appeal.
I have carefully read and considered the argument canvassed by the respective Counsel and in my humble view, the question that agitates the mind is whether or not the suit by the Appellants as Plaintiffs against the Respondents as Defendants before the trial Court is statute barred.
The contention of the Respondents before the trial Court is that the action by the Appellants against them filed after 22 years of the accrual of the Plaintiffs’ cause of action in 1980 is statute barred by virtue of the Statute of Limitation of 1623 applicable in Northern Nigeria and Plateau and Nasarawa States.
The reaction of the Appellants as Respondents to the contention of the Defendants is by relying on the decision of the Supreme Court rendered by Ogundare JSC of blessed memory in the case of YARE V NUNKU (1995) 5 SCNJ pg. 102 H. 4 which according to him the apex Court has decided that there is no operative Statute of Limitation in Plateau State let alone in Nasarawa State. In addition to this, it is also their case that the trial Court gave a very narrow interpretation to the case of the Plaintiff (Appellant) by not giving effect to the chain of complaints of the Plaintiffs (Appellants) before it.
In the light of the foregoing, the contention of the Respondents to my understanding is that since in Northern Nigeria which includes Plateau and Nasarawa State there is no limitation law, as at 1980 there was no statute of limitation in existence hence Section 28 of the High Court Law of Northern Nigeria rendered applicable the statute of Limitation 1623 (received English Law) applicable in Northern Nigeria, and in Nasarawa and Plateau States respectively.
One may ask what is a Limitation of Action Law? In the Black’s Law Dictionary, Eighth Edition, the word Limitation of Action is defined as a statutory period after which a lawsuit or prosecution cannot be brought in Court.
A cause of action is said to abate or is statute barred when no proceedings in respect therefore can be initiated became the time specified by the Limitation Law has expired or extinguished. After a period set by the law for commencing an action, a Plaintiff with a good cause of action cannot enforce same by judicial process because he has sat over his right for all time as the time stipulated by law for initiating such action has become extinct. See NASIR V CIVIL SERVICE COMMISSION KANO STATE & 2 ORS (2010) 1-2 SC 65 at 92.
By this definition of Limitation Action, which renders an action filed outside the time prescribed for instituting such action to be statute barred, it will warrant providing the meaning and effect of the word statute barred. KALGO JSC of Blessed memory) in the case of ARAKA V EJEAGWU (2000) 12 SC (Pt. 1) 99 at 130 said thus:
“Statute barred” simply means barred by a provision of the Statute. It is usually as to time i.e. the bar gives a time limit during which certain actions or steps should be taken, and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. The bar can be lifted or the limit extended only if the statute allows it to be done. Where there was no such extension, the action carried out will be invalid and the Court will treat as such.”
By the foregoing, it’s suffice to say that the general principle of law is that where a statute provides for the institution of an action within a prescribed period, the action shall not be brought after the time prescribes by such statute. Any action that is instituted after the period stipulated by the statute is barred as the right of the Plaintiff or the injured person to commence the action would have been extinguished by such law. See EGBE V ADEFARASIN (1987) 1 SC 1, AREMO II V ADEKANYE (2004) 7 SC (Pt. 11) 28, OLAGUNJU AND ANOR V PHCN (2011) 4 SC (Pt. 1) 152. Therefore, a claim which is statute barred in my view becomes a mere shell which is of no utility value.
Having said this, the next question is how is time computed to determine whether or not a suit is statute barred. For a Court to determine whether or not a suit is statute barred, a little arithmetic has to be done by the Court. The limitation period in the enabling statute as the base line. The time to be ascertained from the statement of claim of the Plaintiff and when the action was instituted which would be determined by confirming when the writ of summons was purchased (instituted). If the arithmetic is done and if the Court finds that from the time the cause of action was instituted is more than the time prescribed by the Limitation Law under consideration, then the action so instituted will be statute barred. Therefore, it is a matter of calculation of figures in the determination of whether an action is statute barred or not. See ADEKOYA V FEDERAL AUTHORITY (2008) 4 SC 167, CAMEROON AIRLINES V OTUTUIZU (2011) 1-2 SC (Pt. 111) 200.
In the light of all the foregoing and after considering the Amended Statement of Claim of the Plaintiffs, I am at one with learned trial Judge that the cause of action of the Plaintiffs arose in 1980 when they alleged the Plaintiffs started changing the names of Schools, Health Centres and the like from Esha Gaji to Kagbu Ero, Kagbu Wulko and Kagbu-Wulko Ussu. This is also buttressed by the evidence of PW9, who is one of the Plaintiffs in paragraphs 24-28 of the Amended Statement of Claim. The act of instituting the action which cause of action arose in 1980 in the year 2002, 22 years after the cause of action which accrued in 1980 is clearly in contravention of the Statute of Limitation 1623 applicable to Northern Nigeria by virtue of Section 28 of the High Court Law of Northern Nigeria and applicable to Plateau and Nasarawa States. The argument of the learned Counsel representing the Appellants relying on the decision of the Supreme Court per Ogundare JSC of blessed memory in the case of YARE VS NUNKU (1995) 15 SCNJ pg. 102, H. 4 is to say, a little misconception of the ratio decidendi in the judgment. Going by what the learned jurist of blessed memory said thus:
“The position of the law is that although the Limitation Edict of Plateau State exist, it has not yet come into force and can therefore not be applied until the Attorney-General of the State has by an order published in the State Gazette brought it into force”.
In my humble view, the foregoing does not support the argument of the learned Counsel representing the Appellants that the Statute of Limitation of 1623 applicable by virtue of Section 28 of the High Court Law of Northern Nigeria and applicable to Plateau and Nasarawa States is not applicable to Nasarawa State because there was in existence of a Limitation Statute in the State then. Rather, the decision is fully in support of the Respondents that as at the time the cause of action of the Appellants occurred, there was no other legislation on Limitation of Action in the State other than the Limitation Statute of 1623 applicable to Northern Nigeria and Plateau and Nasarawa States. Accordingly, I discountenance the argument of Appellants’ learned Counsel in its entirety. It is a calculated attempt to mislead the Court.
Based on all the foregoing, I am of the ardent view that the learned trial judge was right in his conclusion that the action of the Plaintiffs (Appellants) before the Court is statute barred.
Accordingly, I answer this question in the affirmative and resolve the issue against the Appellants.
Having come to that conclusion, it stands to reason that the need to consider issue two becomes otiose.
In consequence, the action of the Appellants is statute barred. I agree with the judgment of the trial Court that the right to enforce the cause of action by the Plaintiffs (Appellants) after 22 years of accrual of the cause of action had become stale, extinguished and unenforceable. I therefore endorse the judgment of the lower Court. See the case of OTERI HOLDINGS LTD V CHIEF MUKAILA KOLAWOLE OLUWA & ORS (2020) LPELR – 52395. The appeal is therefore adjudged meritless and is hereby dismissed.
The judgment of High Court of Justice Nasarawa State delivered on 17th December, 2010 in Suit No. NSD/LF102/2003 Coram Ramalan J. is affirmed.
No order for cost.
I am now left with the consideration of the Interlocutory Appeal registered as Appeal No. CA/MK/146A/2011.
INTERLOCUTORY APPEAL NO. CA/MK/146A/2011
The judgment is predicated on the Interlocutory Appeal by the Appellants who were the Plaintiffs in the substantive suit against the Interlocutory Ruling of the High Court of Nasarawa State in suit No. NSD/LF102/2002 delivered on 20th day of March, 2009.
By a Motion on Notice dated 22nd day of September, 2008 the Appellants as Plaintiffs in the aforementioned substantive suit sought for the following orders:
(1) AN ORDER OF THE HONOURABLE COURT granting leave to Applicants to reopen their case.
(2) AN ORDER OF THE HONOURABLE COURT allowing the Applicants to reopen their case and tender all the documents pleaded in their joint Statement of Claim.
(3) AND FOR SUCH FURTHER ORDER(S) the Honourable Court may deem fit to make in the circumstance.
Parties joined issues and in the end, the learned trial judge in his considered Ruling delivered on the 30th day of March, 2002 concluded as follows (see page 195 of the Record of Appeal):
“It is not for the Court to allow them prosecute their case in accordance with their whims and caprices. Justice is three-way for the party applying, for the other party and the Court since they decided to go to sleep from 2002- 2007. We should allow them continue with their slumber. We are urged by virtue of Section 74(1) (m) of the Evidence to take judicial notice of the proceeding. We have done so. We could not see where these documents were mentioned by the witnesses and express the difficulties they are finding it difficult to get the document certified.
It is therefore not open to them to rely on fair hearing to get the case re-opened. The application is therefore dismissed.”
The Applicants are not happy with the outcome of their application hence they sought leave of the Court to appeal against the Interlocutory Ruling vide their Amended Notice of Appeal dated 20th day of March, 2018 filed on 22nd day of March, 2018. It was deemed as properly filed and served vide the order of this Court granted on 16th day of April, 2018. It has two Grounds of Appeal. In paragraph 4 of the said Notice of Appeal, the Applicants sought for the following reliefs:
“An order of the Court setting aside the Ruling of the Court delivered on 30th March, 2009 and an order allowing the Appellants to re-open their case before a difference (sic) Judge.”
Respective Counsel filed and exchanged their briefs of argument.
APPELLANT(S) BRIEF OF ARGUMENT.
The Appellants’ brief of argument authored by O.C. Ucheaguma of Counsel dated 20th day of March, 2018 was filed on 22nd day of March, 2018. It was deemed as properly filed and served on 16th day of April, 2018. He submitted the following lone issue for the determination of the appeal.
“Was the trial Court right when he dismissed the application to reopen a case and tender pleaded documents sought by the Appellants having due regards to the facts presented in the affidavit in support of the application and the circumstances of the case”. (Distilled from Grounds 1 and 2).
RESPONDENTS’ BRIEF OF ARGUMENT
On behalf of the 1st – 4th Respondents, the brief of argument dated 3rd February, 2021 was filed 4th February, 2021 but out of time. Vide the order of this Court granted on 15th day of July, 2021 the said brief was deemed as properly filed and served. In the said brief authored by S.K. Sheltu of Counsel, the following lone issue was submitted for the determination the appeal.
“Having regard to the circumstances of this case, whether the lower Court was right when it refused to grant the application of the Appellants/Plaintiffs to reopen their case after the close of the case of the 1st to 4th Respondents and the sole witness of the 5th to 6th Respondents was taken”. (Grounds 1 & 2)
Having stated all the foregoing, the pertinent question that is yearning for an answer having regard to the conclusion reached in the main appeal No CA/MK/146/2011 that the Appeal is statute bar, whether it is necessary or it is of any probative value to consider this Interlocutory Appeal which principally is seeking for an order of the Court to reopen the case of the Appellants as Plaintiffs before the trial Court. Having concluded that the suit is statute barred, it is trite that when a suit is statute barred, it is dead on arrival, it cannot be resuscitated. In such situation, the Plaintiffs’ cause of action will have no veins to ventilate it. See NASIR V CIVIL SERVICE COMMISSION KANO STATE & ORS (2010) LPELR 1943 (SC), ASABORO AND ANOR V PAN OCEAN OIL CORPORATION (NG) LTD & ANOR (2017) LPELR – 41558 (SC), EBOIGBE V NNPC (1994) 5 NWLR (Pt. 347) 649. When an action is statute barred it denies the Court of its jurisdiction and power to hear and determine it. See A.G. ADAMAWA STATE V A.G. FEDERATION (2014) 14 NWLR (Pt. 1428) 515 at 577. In the circumstance of the application of the Appellants before the Court which is interlocutory in nature, the lower Court ought not to have even entertained it because the taproot from which it sourced its right of existence has no legal base and the trial Court ought not to have heard the suit. In the circumstance of this appeal therefore wherein the main contest emanates from a statute barred action, I am left with no other option than to sniff out life from this appeal, put it in a coffin and nail it because it is dead on arrival “DOA”.
Accordingly, the Notice of Appeal conveying this appeal dated 20th day of March, 2018 and filed on the same date but deemed as properly filed and served on 16th April, 2018 is hereby struck out.
Parties to bear their cost.
BOLOUKUROMO MOSES UGO, J.C.A.: I have earlier read in draft form the two judgments, final and interlocutory, in these consolidated appeals just delivered by my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A. I am in agreement with His Lordship’s reasoning and conclusion on both appeals. The plaintiffs/Appellants’ case in the lower Court, it is also my opinion, was statute barred as that Court held and so it was dead on arrival. That being the case, the interlocutory appeal which questioned the interlocutory ruling of the trial Court is academic and so liable to be struck out; so I also hold in agreement with my learned brother.
Parties are to bear their costs.
OLASUMBO OLANREWAJU GOODLUCK, J.C.A.: I have read in advance, the lead judgment delivered by His Lordship Mudashiru Nasiru Oniyangi, JCA and I align myself with his reasoning and decision on this appeal. The appeal is predicated on a statute barred action.
It is incompetent, hence the Court cannot adjudicate upon it, any decision made pursuant to a statute barred action is null and void. In effect, the Appellant has lost his right to seek any legal remedy from the law Court.
It is for the foregoing reasons and the fuller reasons espoused in the lead judgment that I associate myself with the attendant orders made by his lordship.
Appearances:
O. C. Ucheaguwa, Esq. For Appellant(s)
S.K. Sheltu, Esq., with him, Abigail Musa – for 1st- 4th Respondents
F.O. Ogbe, Esq., with him, Z.O. Oderanti, Esq. – for 5th & 6th Respondents. For Respondent(s)