BROSSA v. EXECUTIVE GOVERNOR (EDO STATE) & ORS (2020)

BROSSA v. EXECUTIVE GOVERNOR (EDO STATE) & ORS

(2020)LCN/14066(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/304/2010

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

ANDREW ADESHINA BROSSA APPELANT(S)

And

1. THE EXECUTIVE GOVERNOR (EDO STATE) 2. THE HON. ATTORNEY GENERAL (EDO STATE) 3. THE COMMISSIONER, MINISTRY OF LANDS, (EDO STATE) 4. THE REGISTRAR OF DEEDS (EDO STATE) 5. MR. THEOPHILUS O. M. LAWURU 6. MR. CLIFFORD OGIAMIEN RESPONDENT(S)

RATIO

THE IMPORTANCE OF JURISDICTION IN THE DETERMINATION OF A MATTER

Now, the issue of limitation of actions has over the years developed into a question of competence of an action and thus raises the issue of the jurisdiction of the Court to entertain such an action alleged to have been statute barred. In law, jurisdiction is both radical and fundamental. It is radical to the competence of any action or cause or matter before the Court. It is fundamental to adjudication of any action or cause or matter by the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It follows almost invariably therefore, that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding, if need be, to a determination of the merit of the substantive claim. Thus, once a Court lacks jurisdiction, that is indeed the end of the matter. To proceed on the face of absence of jurisdiction could be akin to the laborers, that is the litigants and their counsel on the one hand and the Court on the other hand laboring in vain. In AG Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC., (God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.” See also Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Adeyemi V. Opeyori (1976) 9 – 10 SC 31; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272. PER GEORGEWILL, J.C.A.

THE CONCEPT OF LIMITATION OF ACTION

The issue in contention are the principles of the law on limitation of actions. It is simply a rule of law, codified in most jurisdictions into statutes of limitation, which prohibits the commencement of stale claims. In its operation it extinguishes the right to action but not the cause of action itself, which is merely rendered bare and unenforceable in a Court of law. The rationale for limitation of action would seem to be that due to the length of time that must have elapsed, a Defendant, on being confronted with a stale claim, may have lost documents or material evidence due to death or unavailability of vital key witnesses, for no fault of his, necessary for his defense as would have otherwise been available if the claims were commenced timely within the period as allowed under the relevant applicable limitation law. However, it must be pointed out from the onset that for a Defendant to rely on limitation statue it must be duly pleaded, it being an equitable relief, failing which it can not avail a Defendant. See William O. Olagunju & Anor V. NIG Plc (2011) 46 NSCQR 583 @ p. 597. See also Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195. PER GEORGEWILL, J.C.A.

FACTORS TO DETERMINE WHETHER OR NOT THE CLAIM OF A CLAIMANT IS STATUTE BARRED

In determining whether or not the claim of a Claimant is statute barred, the principal document or process to be scrutinized by the Court is the writ of summons and or the Statement of claim where it has been filed. This is so because it is in the writ of summons and or statement of claim, that the date or period of accrual of the cause of action of the Claimant can be found and or determined. See Pere Roberto (Nig.) Ltd V. Ani (2008) LPELR – 4839 (CA) @ p. 13; Petel & Ors V. Maiturare (2014) LPELR -24164 (CA) @ p. 20.
Thus, the statement of defense even where filed is really of no moment in the determination of the date of accrual of the cause of action of the Claimant and this is understandably so because if it were otherwise Defendants would develop the niche or penchant for pleading the Claimant’s cause of action outside the limitation period so as to render the suit statute bared and thus incompetent. Authorities on this principle of law are legion. In Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1, the Supreme Court considered and simplified the duty of the Court when faced with the resolution of the issue whether or not a suit or claim or action is statute barred and had succinctly pronounced with finality inter alia thus: “How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”
Again, in Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416, the Supreme Court had revisted this issue and reiterated inter alia thus:
“The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiffs cause of action was committed and by computing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the action is statute barred.” See also Ikosi Industries Ltd v. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA); P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900; Williams V. Williams (2008) All FWLR (Pt. 433) 1245; Eboigbe V. NNPC (1994) 5 NWLR (Pt. 346) 649. PER GEORGEWILL, J.C.A.

WHETHER OR NOT IT IS THE AVERMENTS IN A CLAIMANT’S PLEADINGS THAT SHOWS HIS CAUSE OF ACTION

Now, in law it is the averments in the pleadings of a Claimant that would show his cause of action and define the case he intends to put forward against his adversary before the Court. See The Registered Trustees of the Apostolic Church V. Mrs Olowoleni (1990) SCNJ 69. See also Amaechi V. INEC (2007) 8 NWLR (Pt. 1065) 9 @ p. 100.PER GEORGEWILL, J.C.A.

DEFINITION OF “CAUSE OF ACTION”

In law a cause of action refers to the circumstances or state of facts that entitles a party to maintain an action in Court. The state of facts may be (A) a primary right of the Claimant actually violated by the Defendant; or (B) the threatened violation of such right, which violation the Claimant is entitled to restrain or prevent; or (C) it may be that there are doubts as to some duty or right or the right is beclouded by some apparent adverse claim or right, which the Claimant is entitled to have cleared up that he may safely perform his duty or enjoy his rights. See Savage V. Uwechia (1972) 3 SC 213; Ogoh V. Enpee Industries Ltd (2004) 17 NWLR (Pt. 903) 449; United Bank for Africa Plc V. BTL Industries Ltd (2004) 18 NWLR (Pt. 904) 180; Adesina V. Ojo (2012) 10 NWLR (PT 1309) 562; Akilu V. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 @ mp. 169; Gbadehan V. Kiladejo (2012) 16 NWLR (Pt. 326) 399. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling, though titled ‘Judgment’ of the High Court of Edo State, Coram: J. Aigbuloko Oyakhirome J., in Suit No. B/118/2009: Andrew Adeshina Brossa V. The Executive Governor (Edo State) & Ors., delivered on 26/1/2010, wherein the Appellant’s Suit was dismissed for being statute barred.

The Appellant was peeved with the said Ruling and had appealed against it to this Court vide his Notice of Appeal filed on 2/2/2010 on four grounds of appeal at pages 83 – 86 of the Record of Appeal. The Record of Appeal was deemed properly transmitted to this Court on 4/4/2017. The Appellant’s brief was filed on 11/4/2017. The 1st- 4th Respondents’ brief was filed on 9/5/2019 but was deemed properly filed on 27/1/2020. The 5th & 6th Respondent’s brief was filed on 16/5/2017 but was deemed properly filed on 27/1/2020.

At the hearing of this appeal on 27/1/2020, N. Obaozamowan Esq., learned counsel for the Appellant adopted the Appellant’s brief as their arguments and urged the Court allow the appeal and set aside the

judgment of the Court below. On their part, Oluwole Iyamu SAN., learned Solicitor General of Edo for the 1st- 4th Respondents, appearing with D. Y. Otengike Esq., adopted the 1st- 4th Respondents’ brief as their arguments and urged the Court to dismiss the appeal and to affirm the judgment of the Court below. On their part, R. O. Isanlumka Esq., learned counsel for the 5th & 6th Respondents, appearing with O. Obalowose Esq., adopted the 5th & 6th Respondent’s brief as their arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.

By a Writ of Summons filed on 18/2/2009, the Appellant as Claimant claimed against the Respondents as Defendants the following reliefs, namely:
1. A declaration that the certificate of occupancy No. BDSR 8951 dated 28/8/1988 registered as Instrument No. 42/42/B.114, Benin City over the parcel or land known and referred to as Plot 430, Etete Layout. Benin City containing an area of approximately 1878.098 square meters more particularly marked and delineated in survey plan No. BE 525 is still valid and subsisting.
2. A declaration that the Plaintiff is the one

entitled to the grant of statutory right of occupancy to that piece or parcel of land known and referred to as plot 430 Etete layout, Benin City containing an area of approximately 1878.098 square meters more particularly delineated in survey plan No. BE 525 and covered by a certificate of occupancy No. BDSR 8951 dated 28/8/1988 and registered as Instrument No. 42/42/B.114, Benin City.
3. An order that any purported revocation by the Defendants, particularly the 1st Defendant of the said certificate of occupancy and a grant of the said land to the 5th and 6th Defendants is unlawful and invalid, null and void and of no effect whatsoever.
4. An order setting aside certificate of occupancy No. EDSR 12870 dated 30/10/1997 and registered as No. 15 at page 15 in volume B.185. Benin and Deed of Assignment dated May, 2008 and registered as No. 44 at page 44 in volume 994, Benin granted to 5th Defendant.
5. N1 million general damages.
6. An order of perpetual injunction restraining the Defendants by themselves, their agents, servants, privies and workmen from further revoking the said certificate of occupancy.
See pages 1 – 6 of the Record of Appeal.

Upon service, the 1st – 4th Respondents entered conditional appearance, and with the leave of the Court below filed a joint statement of Defence on 11/6/2009. Subsequently, they filed a motion on Notice praying for the dismissal of the Appellant’s suit on the ground that it was statute barred by virtue of Section 6(2) of the Limitation Law, Cap 89 Laws of Bendel State of Nigeria. On their part, the 5th – 6th Respondents also filed their statement of Defense and Counter-claim on 1/7/2009. Subsequently, they also filed a Motion on Notice praying for the dismissal of the Appellant’s suit on the ground that it was statute barred. Both applications were consolidated and heard and on 26/1/2010, the Court below delivered its Ruling, though titled ‘Judgment’ dismissing the Appellant’s suit for being statute barred, hence this appeal. See pages 59 – 86 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
As can be garnered from the pleadings of the parties and the affidavit of the Respondents as in the printed record, the Appellant’s case was that his late father was granted a statutory right of occupancy with

certificate of occupancy No. BDSR 8951 dated 28/8/88 and registered as instrument No. 42/42/BI114 at the Land Registry in Benin City over all the land referred to as Plot 420, Etete Layout, Benin City and that he was paying the ground rent to the 1st – 4th Respondents. The Appellant’s late father began to develop the land and erected a concrete foundation and building up to window level on the land before his death on 26/9/1990 without completing the building. The Appellant performed his late father’s burial rite and the land was shared to Appellant by the family in accordance with the Sagbonra tradition of Bayelsa State. Thereafter the Appellant continued to pay the ground rent in respect of the land to the 1st – 4th Respondent who issued receipts to him till date, while the Appellant remained in possession. In 2009, Appellant instructed his attorney to fence the land with blocks and also to start work on the uncompleted structure erected by his late father. However, when the attorney started work on the land, the 5th Respondent arrested the workmen with police, where the Appellant was informed that the 5th Respondent bought the land from the

6th Respondent and that the 1st – 4th Respondents had granted the land to the 5th Respondent. The Appellant then came to know for the first time that his certificate of occupancy had been revoked but without any notification as required by law even when the 1st – 4th Respondents continually received ground rent from Appellant for the land. Consequently, the Appellant instituted an action against the Respondents claiming some declarations and injunction. See pages 1 – 8 of the Record of Appeal.

On their part, the case of the 1st – 4th Respondents was that the certificate of occupancy issued to the previous owner had long been revoked by the Government of Bendel State, the predecessor to the Edo State Government pursuant to the Land Use Act and reallocated to the 6th Respondent and that the Appellant’s suit was in the circumstances statute barred and thereby incompetent. See pages 9 – 16 of the Record of Appeal.

On their part, the case of the 5th & 6th Respondents was that the land was allocated to the 6th Respondent by the Government of Edo State, who in turn had sold the land to the 5th Respondent who is now the bona – fide owner of

the land, who also counter claimed for title to the land and that the Appellant’s suit was in the circumstances statute barred and thereby incompetent. See pages 28 – 34 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the four grounds of appeal, namely:
1. Whether in the circumstances of this case and the facts as pleaded in the Statement of Claim, Section 25 of the Limitation Law applied to postpone the limitation period and if the trial Court was right in law when the trial Court held that the action is statute barred under the Limitation Law of Edo State?
2. When the Court below decided substantive issue which was meant for the full trial at the interlocutory stage and if such occasioned a miscarriage of justice?

In the 1st – 4th Respondents’ brief, two issues were also distilled as arising for determination in this appeal, namely:
1. Whether the decision of the lower Court in holding that the Appellant’s case is statute barred is right in view of the provisions of the law? (Distilled from Grounds on and three).

Whether the lower Court had at the interlocutory stage, decided any substantive issue which should have been left for the trial and thus occasioned a miscarriage of justice? (Distilled from Ground two)In the 5th & 6th Respondents’ brief, two issues were also distilled as arising for determination in this appeal, namely:
1. Whether the trial Court was right when it held that the Appellant’s claim is statute barred having regard to Section S.6(2) of the Limitation Law, Cap 89, Laws of the defunct Bendel State, 1976.
2. Whether the trial Court decided substantive issue which was meant for the full trial at the interlocutory stage and if such had occasioned a miscarriage of justice.

I have taken time to review the pleadings of the Appellant and the affidavit evidence of the Respondents before the Court below. I have also considered the submissions of counsel for the parties in their respective briefs in the light of the findings in the judgment of the Court below, and it does appear to me that the proper issues for determination in this appeal are the two issues as distilled in the Appellant’s brief, which best represent

the real issues arising for determination in this appeal. It is my view that a consideration of these issues would involve the due consideration of the two issues as distilled in the 1st – 4th Respondents’ Appellant’s brief as well as the two issues as distilled in the 5th & 6th Respondents’ brief. Let me proceed anon to consider these issues ad seriatim.
ISSUE ONE
Whether in the circumstances of this case and the facts as pleaded in the Statement of Claim, Section 25 of the Limitation Law applied to postpone the limitation period and if the trial Court was right in law when the trial Court held that the action is statute barred under the Limitation Law of Edo State?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that in an application of which challenges the jurisdiction of the Court below to hear the Appellant’s suit on the ground that it is statute barred, it is only the writ of summons and statement of claim filed by the Appellant that will look at and contended that the determination of the period of limitation is done by looking at the writ of summons

and the statement of claim alleging when the wrong was committed which gave the Claimant a cause of action and comparing that date with the date on which the writ of summons was filed and urged the Court to hold that the Court below was wrong when it relied on the Gazette of 1991 annexed to the 1st – 4th Respondents’ further affidavit in arriving at when the Appellant’s cause of action arose and to allow the appeal and set aside the perverse ruling of the Court below. Counsel relied on Onuorah V. K.R.P.C. Ltd. (2005) 6 NWLR (Pt.921) 393 @ p. 404; P.A.S. & T.A. Ltd. V. Babatunde (2008) 8 NWLR (Pt. 1089) 267 @ pp. 289-290.

It was also submitted that the test of determining when a cause of action begins to run is when there exist in favor of the person who can sue, all the facts that have happened, which are required to prove that the Claimant is entitled to judgment and contended that a cause of action has to be looked at from the peculiar circumstances of any given case and varies from and urged the Court to hold that in law the limitation law becomes inapplicable in the case of fraud concealment of the cause of action or mistake until

the discovery of the fraud or concealment with reasonable diligence. Counsel referred to Sections 6(2) and 25(a), (b) and (c) of the Limitation Law of Bendel State and relied on Amede V. UBA (2008) 8 NWLR (Pt. 1090) 623 @ p. 656.

It was further submitted that where there is an allegation of fraudulent concealment of the cause of action, knowledge by the Claimant is relevant and contended that by paragraphs 11, 14, 15, 18 and 19 of the Statement of Claim the Appellant continued the payment of ground rent to the 1st – 4th Respondents without any service of any revocation notice, which smacks of fraud, and only became aware for the first time of any purported revocation of his late father’s interest in the land in dispute at the Police Station and urged the Court to hold that service of revocation notice on an holder of a statutory right of occupancy was mandatory and by its concealment the Appellant’s cause of action only arose when he became aware for the first time of the purported revocation at the Police Station and not in 1994 as alleged by the Respondents and to allow the appeal and set aside the decision of then Court below dismissing

the Appellant’s suit for being statute barred. Counsel referred to Sections 25(a), (b) and (c) of the Limitation Law of Bendel State; Sections 28(1), 28(6) and 44(a) – (c) of the Land Use Act 1978 and relied on P.A.S. & T.A. Ltd V. Babatunde (2008) 8 NWLR (Pt.1089) 267 @ p. 294; Davis V. Ajibona (1994) 5 NWLR (Pt.343) 234 @ p. 256; Admin/Exec. of the Estate of General Sani Abacha V. Eke – Spiff (2009) 7 NWLR (Pt. 1139) 97 @ p. 130.

It was also further submitted that from the averments of the Appellant, the 1st – 4th Respondents having failed to serve any revocation notice on the Appellant and concealed the fact of the revocation from the Appellant, it will be most unconscionable to allow the provision of the statute of limitation to apply in situation where the Appellant, an allottee, was fraudulently denied the service of notice of revocation and more importantly where he paid ground rent dutifully to the 1st-4th Respondents who received and acknowledged same without informing him of the revocation and contended that it is the Respondents that concealed the fact of the purported revocation from the Appellant that now want to reap the fruit of

their fraudulent misdeeds and urged the Court to hold that contrary to the perverse finding of the Court below, the Appellant’s cause of action was postponed by the fraudulent acts of concealment by the Respondents rendering the limitation law inapplicable and the action is therefore, not statute barred and to allow the appeal and set aside the ruling of the Court below.

1ST – 4TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned Senior Advocate for the 1st- 4th Respondents had submitted that in law where the jurisdiction of a Court in respect of a suit is challenged on the ground that the suit is statute barred, the document that would consider in determining whether or not the case is statute barred, is the originating process of the Claimant as was rightly done by the Court below and contended that while a Court has the duty to hear every applications filed and pending before it, in doing so it also has the duty to make use of the affidavit and other materials placed before it by the parties and urged the Court to hold that the Court was right when it compared the averments in the pleadings of the Appellant and compared the

date of accrual of his cause of action with the date of filing of the suit in coming to the impeccable finding that the Appellant’s suit was statute barred and dismissing the same as required by law. Learned SAN relied on Pere Roberto (Nig.) Ltd V. Ani (2008) LPELR – 4839 (CA) @ p. 13; Petel & Ors V. Maiturare (2014) LPELR -24164 (CA) @ p. 20.

It was also submitted that the Appellant’s contentions that the revocation was concealed was highly misconceived and preposterous in that in law an act gazetted and published is for the notice of the whole world and contended that the revocation having been gazetted and published by the 1st – 4th Respondents to the whole world, including the Appellant, cannot be said to have concealed the revocation from any person, including the Appellant, though not even the holder of the right of occupancy whose previous holder was one Capt. Humphrey Ademola Brossa and urged the Court to hold that on the pleadings of the Appellant the issues or allegations of fraud and concealment were never raised and cannot be raised merely in submissions of his counsel but since the case of the Appellant was that no notice was given of

the revocation, the Court below was right to have considered all the materials placed before it by the parties in arriving at its correct decision dismissing the Appellant’s suit for being statute barred, the Appellant having been found to be recklessly indolent. Learned SAN referred to Section 25 of the Limitation Law and relied on AG. Rivers State V. Ude (2006) 17 NWLR (Pt. 1008) 436 @ pp. 456 – 457

It was further submitted that the Appellant was at no time the holder of the right of occupancy over the land in dispute and therefore, was not entitled to be served with any notice of revocation and contended that not only has the Appellant no right to complaint about none service of notice of revocation on him, the Appellant also failed to show how the 1st – 4th Respondents became privy to his inheritance of the land in question from his father, alleged to be deceased, in the absence of any document evidencing the transfer of title in the property from his father to him as he had alleged but failed to prove. Learned SAN referred to Section 136(1) of the Evidence Act 2011 and relied on New Breed Org. V. Erhomosele (2006) 140 LRCN 2064 @ p. 2089;

Sunday & Ors V. Bank PHB & Ors (2016) LPELR – 41466 (CA) @ p. 23.

It was also further submitted that was no way notice of the revocation would have been served on the Appellant not being the recognized holder of the initial right of occupancy in the light of the fact that the 1st- 4th Respondents were not aware that the previous owner of the land was deceased and contended that in the circumstances of this case, the 1st – 4th Respondents having carried out their duty in a manner substantially regular, in law it is presumed that formal requisites for the validity of their actions were complied with and urged the Court to hold that in law the publication of the revocation in the government Gazette being notice to the whole world, the Appellant cannot be heard to plead ignorance as ignorance is no excuse before the law and to dismiss the appeal and affirm the ruling of the Court below. Learned SAN referred to Sections 148(a) and 168 (1) of the Evidence Act 2011 and relied on Saleh V. Muhammad (2010) 12 NWLR (Pt. 1209) 613 @ p. 630; Adighije V. Nwaogu (2010) 12 NWLR (Pt. 1209) 419 @ p. 461; Maduabum V. Nwosu (2010) 13 NWLR (Pt. 1212) 623 @ p. 661; SPDC Nig.Ltd V. Amadi

(2010) 13 NWLR (Pt. 1210) 82 @ p. 142; Imade V. Military Administrator of Edo State (2001) FWLR (Pt. 69) 1385 @ p. 1401.

It was also submitted that the Appellant’s allegation of failure to effect personal service of the revocation when he is not an holder of any right of occupancy over the land in dispute was misconceived and preposterous and contended that the revocation having been gazette and published to the whole world, the cause of action had arisen from the date of the publication of the gazette in 1991 and urged the Court to hold that in law, in the computation of when time begins to run, knowledge of the accrual of the cause of action is not a factor as rightly held by the Court below and to dismiss the appeal and affirm the ruling of the Court below. Learned SAN relied on Sobowale & Ors V. Governor of Ogun State & Ors (2018) LPELR – 43735 (CA) @ pp. 32 – 33; Ajibona V. Kolawole & Anor (1996) LPELR – 299 (SC); Mulima V. Usman (2014) 16 NWLR (Pt.1432) 160 @ p. 202.

It was further submitted that there is a time gap of 18 years from the time the Appellant’s father’s Certificate of Occupancy was revoked in 1991 as contained

in the Gazette to the time he instituted the suit in 2009 and contended that even if it is accepted that the revocation was done in 1994 as alleged by the Appellant in paragraph 17 of his Statement of Claim, that still leaves a time gap of 15 years and urged the Court to hold that in either case, the Appellant’s suit filed in 2009, having been filed outside the 12 years and 3 months limitation period respectively, was statute barred as rightly held by the Court below and to dismiss appeal and affirm the ruling of the Court below. Learned SAN referred to Section 6(2) of the Limitation Law, Cap 89, Laws of Bendel State of Nigeria, 1976 (applicable in Edo State), and Section 2(a) of the Public Officers Protection Law, Cap 137, Laws of Bendel State of Nigeria, 1976 (applicable in Edo State).

5TH – 6TH RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the 5th-6th Respondents had submitted that by paragraph 17 of the Appellant’s Statement of claim to the effect that he came to know as a fact that 3rd Respondent had in August, 1994 revoked his late father’s certificate of occupancy granted to him by the 1st

Respondent and had re-allocated it to the 6th Respondent on 30/10/1997, the Appellant’s cause of action arose in 1994 and contended that the Appellant’s suit having been filed in February, 2009, a space of 15 years, was clearly filed outside the 12 years limitation period and therefore, statute barred as rightly held by the Court below and urged the Court to so hold and to dismiss the appeal for lacking in merit and affirm the ruling of the Court below. Counsel referred to Section 6 (2) of the Limitation Law, Cap 89, Laws of the Bendel State, 1976.

It was also submitted that the issue of either fraud or concealment was never raised by the Appellant in the entire length and breadth of his statement of claim and was therefore, merely an afterthought and contended that the having not been pleaded it cannot form the basis of the Appellant’s contention that time did not begin to run in 1991 when his late father’s right of occupancy was revoked and urged the Court to hold that in law the publication of the revocation in the official gazette was sufficient notice to the whole world and therefore, the claim to ignorance of its

contents would go to no avail and the Appellant’s suit filed outside the 12 years limitation period remained statute barred as rightly found by the Court below and to dismiss the appeal for lacking in merit. Counsel referred to Section 6 and 25(a), (b) and (c) of the Limitation Law 1976 and relied on Imade V. Military Administrator of Edo State (2001) FWLR (Pt. 69) 1385 @ p. 1401;

It was further submitted that there was no record or document furnished by the Appellant showing that he is the holder of the right of occupancy which was previously in the name of his father, one Capt. Humphrey Ademola Brossa and contended that the issue of his inheritance being not within the knowledge of the Respondents in the absence of any document of transfer of title to the Appellant, he was not entitled to any personal or any service at all of notice of revocation as required by law and urged the Court to hold that with the admitted death of his father, it was impossible for the Respondents to personally serve the Appellant’s late father with a notice of revocation at his grave since the law does not compel or command the doing of impossibility. Counsel

referred to Section 28(6) and Section 44(a), (b) and (c) of the Land Use Act 1978 and relied on Lasun V. Awoyemi (2011) All FWLR (Pt. 577) 713 @ p. 746.

It was also further submitted that the Appellant’s cause or action arose in 1991 when the 1st Defendant pursuant to the powers conferred on him by Sub-section (5) Section 28 and Section 38 of the Land Use Act, 1978 revoked the certificate of occupancy No. EDSR 8951 of 1988 in respect of Plot 430 Etete Layout, Benin City but the Appellant waited until 18/2/2009 to file his suit, which was about 18 clear years after the revocation and contended that the Appellant’ suit having been filed outside the 12 years statutory period provided for within which an action in respect of land shall be commenced was clearly statute barred and urged the Court to hold that even if as pleaded in paragraph 17 of the Statement of Claim the cause of action had arisen in 1994, as he became aware of it at the Police Station in 2009, his suit was still statute barred when it was filed in 2009, which is 15 years after the cause of action arose and outside either the 12 years or 3 months limitation period and to dismiss

the appeal for lacking in merit and affirm the dismissal of the Appellant’s suit by the Court below. Counsel referred to Sections 5 and 28 of the Land Use Act, Cap 2002 Laws of the Federation 1990; Section 2 (a) of the Public Officer Protection Law, Cap 137 Laws of Bendel State 1976 and relied on Adeomi V. Governor of Oyo State (2003) FWLR (Pt. 149) 1444 @ p. 1466; Mrs. Comfort V. Almo Gases Nig. Ltd (2006) All FWLR (Pt. 335) 93 @ p. 106.

RESOLUTION OF ISSUE ONE
My lords, issue one deals frontally with the operation of the Limitation Law in Edo State, particularly Section 6(2) of the Limitation Law of Bendel State 1976, as applicable to Edo State, as well as Section 2 of the Public Officers Protection Laws of Bendel State 1976, as applicable to Edo State as to whether or not the Appellant’s suit when it was filed on 18/2/2009 was statute barred against the Respondents

radical and fundamental. It is radical to the competence of any action or cause or matter before the Court. It is fundamental to adjudication of any action or cause or matter by the Court. It is indeed the epicenter of the entire litigation process and thus, without it there can be no validity in any proceedings or resultant judgment or ruling of the Court. It follows almost invariably therefore, that once an issue of jurisdiction is raised it must be determined first one way or the other by the Court before proceeding, if need be, to a determination of the merit of the substantive claim. Thus, once a Court lacks jurisdiction, that is indeed the end of the matter. To proceed on the face of absence of jurisdiction could be akin to the laborers, that is the litigants and their counsel on the one hand and the Court on the other hand laboring in vain. In AG Lagos State V. Dosunmu (1989) 3 NWLR (Pt. 111) 552, the Supreme Court per Kayode Eso JSC., (God bless his soul) had put it so poetically thus:
“Without jurisdiction, the laborers that is the litigant and counsel on the one hand and the Court on the hand labor in vain.”

See also Madukolu V. Nkemdilim (1962) SCNLR 341. See also Tukur V. Gongola State Government (No. 2) (1989) 4 NWLR (Pt. 117) 517; Western Steel Works Ltd. V. Iron & Steel Workers Union (1987) 1NWLR (Pt. 49) 284; Adeyemi V. Opeyori (1976) 9 – 10 SC 31; NDIC V. CBN (2002) 7 NWLR (Pt. 766) 272.

Defendant to rely on limitation statue it must be duly pleaded, it being an equitable relief, failing which it can not avail a Defendant. See William O. Olagunju & Anor V. NIG Plc (2011) 46 NSCQR 583 @ p. 597. See also Christopher Obueke & 3 Ors V. Nsude Nwankwo Nnamchi & 2 Ors (2006) All FWLR (Pt. 313) 195.

On the one hand, by Section 6(2) of the Limitation Law, Cap 89, Laws of the Bendel State, 1976, as applicable to Edo State, it is provded thus:
“No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him, or if it first accrued to some other person through whom he claims, to that person.”

On the other hand, by Section 2 (b)of the Public Officers Protection Laws of Bendel State 1976, as applicable to Edo State, it is proveded inter alia thus:
(b). the action, prosecution, or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of or in case of a continuance of damage or, within three months next after the ceasing thereof.”

statute barred and had succinctly pronounced with finality inter alia thus:
“How does one determine the period of limitation? The answer is simply by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred.”
Again, in Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416, the Supreme Court had revisted this issue and reiterated inter alia thus:
“The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date the wrong in question which gave rise to the plaintiffs cause of action was committed and by computing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the limitation law, the

action is statute barred.”
See also Ikosi Industries Ltd v. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA); P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900; Williams V. Williams (2008) All FWLR (Pt. 433) 1245; Eboigbe V. NNPC (1994) 5 NWLR (Pt. 346) 649.

In the statement of claim, which by law is the document to be critically examined and analysed by this Court to determine when the Appellant’s cause of action arose for the puroposes of determining whether or not it is caught up by the limitation law applicable in Edo State when the Appellant suit was filed on 18/2/2009, the Appellant had averred inter alia thus:
9. The Plaintiff aver that his said father immediately after the grant began to develop the said land and erected a concrete foundation and building up to window level and which structure is still on the land but that he died on the 26/9/1990 before he could complete the building.
10. The Plaintiff aver that upon the death of his father. the Plaintiff who is his first son performed the burial ceremonies of his late father in accordance with Sagbonra tradition of Bayelsa State and the family shared

the properties and the Plaintiff inherited all the said parcel of land among other properties. The Plaintiff will at the trial rely on the certificate of sharing by the family.
11. The Plaintiff aver that he has been paying the ground rent on the land to the 1st – 4th Defendants dutifully till date. Plaintiff will at the trial rely on the receipts or payment of ground rent.
12. The Plaintiff aver that sometime in December 2008 and January. 2009 Plaintiff instructed his Attorney to fence the said land with cement block and to start work on the uncompleted structure erected by Plaintiff father, when to Plaintiff surprise the 5th Defendant came to arrest Plaintiff’s Attorney and the workmen on the land.
17. The Plaintiff aver that the police in the course of their investigation wrote to the Ministry of lands and the Ministry replied that the certificate of occupancy granted Plaintiff’s father was revoked on August, 1994 by the 1st Defendant and the plot was re-allocated to the 6th Defendant vide certificate of occupancy No. EDSR 12870 dated 30/10/97 and registered as 15115/B. 185. Benin City and that the 6th Respondent subsequently assigned

the unexpired term to the 5th Defendant on 30/5/2008 and it was registered as 44/44/994. Benin. Plaintiff will at the trial rely on a copy of the said letter and notice to produce the original is hereby given to Defendants.
18. The Plaintiff aver that it was at this time that Plaintiff knew for the first time that 1st – 4th Defendants had purportedly revoked Plaintiff’s certificate of occupancy and granted the said land to 5th and 6th Defendants even while Plaintiff paid the ground rent which was acknowledged by Defendants.
19. The Plaintiff aver that Plaintiff was never given any notice of revocation by the Defendants as mandated by law or the Land Use Act. 1978.
20. The Plaintiff aver that the revocation was not done for overriding public interest as provided tor by relevant laws and the Land Use Act, 1978.
21. The Plaintiff aver that Plaintiff never alienated the said land contrary to the provisions of the Land Use Act or any other law and that the Defendants never revoked the land for public purposes or for mining purposes or any purpose connected therewith.

I have noted earlier that for a Defendant to rely on the equitable relief of

limitation of action, it must be duly pleaded. It is for this reason I have also looked at the averments in the pleadings of the Respondents to see if it was pleaded at all.

In their Joint statement of defense, the 1st- 4th Respondents had avered inter alia thus:
5. The Defendants in further answer to the paragraphs above aver that this suit is statute barred.

In their statement of defense and counter claim, the 5th- 6th Respondents had averred inter alia thus:
36. The Defendants shall state at the trial that the Plaintiff’s father’s certificate of occupancy was revoked in 1991, a period of over 12 years.
37. The Defendants shall state at the trial that this action is statute barred.
See pages 2 – 6 of the Record of Appeal.

Sequel to the Appellant’s pleadings above, the

Respondents filed their respective Motions on Notice challenging the competence of the Appellant’s suit on the ground that it was statute barred. In the 7 paragraph affidavit in support of the 1st – 4th Respondents’ Motion on Notice, deposed to by one Mrs. Abiodun Igodan, a Clerk in the Ministry of Justice, Benin City, it was stated inter alia thus:
5. That I am informed by Mrs. C. A. Eboscle of Counsel for the Defendants/Applicants and I believe her as follows:- (a) That the suit is statute barred. (b) That the Plaintiff’s action against the Defendants/Applicants is to recover land. (c) That such action to recover land must commence within 1-2 years after the cause of action accrued. (d) That the cause of action in this suit arose in February, 1991. (e) That the plaintiff/Respondent filed this suit on the 18th day of February. 2009. (f) That the period between February, 1991 when the cause of action accrued and February, 2009 when this action was filed is 18 Years. See pages 19 – 20 of the Record of Appeal.

In a further and better affidavit in support of the said Motion on Notice, deposed by Mrs. Abiodun Igodan, it was stated

inter alia thus:
3. That I am informed by Mrs. C. A. Fbosele of Counsel for the Defendants/Applicants and I verily believe her as follows: (a) That the Plaintiff/Respondent’s father neither paid grand rent nor obtained a building approval before his Certificate of Occupancy was revoked along others. A copy of the Bendel State Gazettee revoking the Plaintiff’/Applicant’s rather statutory Right of Occupancy along with others is hereby attached and marked Exhibit ‘DI’. (b)That the said Bendel State Gazette revoking the Applicant’s father Statutory Right or Occupancy is dated 11th day of February, I 991. See pages 22 – 23 of the Record of Appeal.

It was on the state of the Appellant’s pleadings and the applications of the Respondents challenging the competence of the Appellant’s suit on the ground that it had become statute barred when it was filed on 18/2/2009, to enforce a cause of action which, they contend that by the Appellants’ own showing, accrued in either 1991 or 1994, the Court below, after taking arguments from the parties, had in its ruling, though titled ‘judgment’ delivered on 26/1/2010, dismissed

the Appellant’s suit for being statute barred, holding inter alia thus:
“…I take judicial notice of Extra-ordinary Gazette of Bendel State of Nigeria No. Vol. 28 of 11th February, 1991 revoking statutory rights of occupancy of land along Ugbor Road…including Plot 340 (Plaintiffs land). I also note that its commencement date is 8/2/1991….The present action was filed on 18/02/09. By simple arithmetical calculation between 08/02/91 when cause of action accrued and 18/02/09 when the Plaintiff invoked the jurisdiction of Court to adjudicate is a time lag of 18 years….Assuming the revocation of Plaintiffs statutory right of occupancy was done in August, 1994 as claimed by him in paragraph 17 of his statement of claim, the cause of action accrued in August 1994 as claimed by Plaintiff/Respondent….In computing time when the statute of limitation begins to run, the day the cause of action arose as a rule is excluded and the day of filing the action is included….. On lack of awareness…Ignorance of the law has never been an accepted excuse….The statute of limitation as with other such statutes begins to

run from the moment cause of action accrues, not when it is discovered. …I find as a fact that this action was instituted outside the period allowed by law….I hold that Plaintiffs action is statute barred….the proper order for the Court, to make is to order the dismissal of plaintiffs case….” See pages 59 – 86 of the Record of Appeal

Now, what is the Appellant’s cause of action and when did it accrue? This simply put is the fulcrum of this appeal. In law a cause of action refers to the circumstances or state of facts that entitles a party to maintain an action in Court. The state of facts may be (A) a primary right of the Claimant actually violated by the Defendant; or (B) the threatened violation of such right, which violation the Claimant is entitled to restrain or prevent; or (C) it may be that there are doubts as to some duty or right or the right is beclouded by some apparent adverse claim or right, which the Claimant is entitled to have cleared up that he may safely perform his duty or enjoy his rights. See Savage V. Uwechia (1972) 3 SC 213; Ogoh V. Enpee Industries Ltd (2004) 17 NWLR (Pt. 903) 449;

United Bank for Africa Plc V. BTL Industries Ltd (2004) 18 NWLR (Pt. 904) 180; Adesina V. Ojo (2012) 10 NWLR (PT 1309) 562; Akilu V. Fawehinmi (No.2) (1989) 2 NWLR (Pt. 102) 122 @ mp. 169; Gbadehan V. Kiladejo (2012) 16 NWLR (Pt. 326) 399.

So, on the averments in the Appellant’s statement of claim what is the Appellant’s cause of action and when did it accrue? I have calmly scrutinized the entire averments in the Appellant’s statement of claim, particular paragraphs 9, 10, 11, 12, 17, 18 and 19 thereof, in the light of the divergent contentions of the parties and the findings in the ruling of the Court below, and it is clear to me and I so find that the cause of action of the Appellant was the alleged revocation without notice to the holder of the statutory right of occupancy over the land in dispute, in the person of his late father who died in 1990 and for the recovery of the said land from the 5th and 6th Respondents.

So when did this identified cause of action accrued to the Appellant for the purposes of computing the limitation period in the light of the challenge to the competence of the Appellant’s suit and the decision of the

Court below? In other words, when does time begin to run for the purposes of the Limitation Laws of Bendel State 1976, as applicable in Edo State?

My lords, bearing in mind the limited scope of the applications challenging the competence of the Appellant’s suit on the ground that it was statute barred, I consider all the multitude of issues canvassed by the parties relating to who is entitled to personal service of notice of revocation, who has the power of revocation, who inherited the land from the late father of the Appellant and the validity or otherwise of the revocation as matters clearly outside the scope of the consideration whether or not the Appellant’s suit was statute barred. Indeed, these are issues clearly touching on the merit or otherwise of the substantive claims of the Appellant, which cannot be determined in the absence of any evidence merely on the averments of the Appellant at such at interlocutory stage.

On the one hand, the Appellant’s counsel had submitted that by the averments in the pleadings of the Appellant, it was clear that the Respondents fraudulently concealed the revocation of the right of occupancy

of the Appellant’s late father while continuing to receive his payment for ground rent and therefore, according to him, the cause of action did not accrue until the Appellant became aware of the revocation for the first time at the Police Station in 2009, when the cause of action arose and thus rendering the Appellant’s suit filed on 18/2/2009 competent having been filed within the 12 years limitation period and thereby making the decision of the Court below perverse and liable to be set aside. On the other hand, the Respondents’ counsel had submitted that from the averments of the Appellant, even without reference to the gazette introduced by way of Exhibit annexed to their further affidavit, the Appellant’s cause of action was clearly stated by the Appellant to have arisen in 1994, which going by the date of filing of the Appellant’s suit in 2009 rendered the Appellant’s suit incompetent having been filed outside the 12 years limitation period as prescribed by law and thereby statute barred as rightly found by the Court below.

Now, to resolve these divergent contentions, I shall at the risk of repetition but for the

sake of clarity reproduce the averments of the Appellant in paragraph 17 of the Statement of Claim as follows:
17. The Plaintiff aver that the police in the course of their investigation wrote to the Ministry of lands and the Ministry replied that the certificate of occupancy granted Plaintiffs father was revoked on August, 1994 by the 1st Defendant and the plot was re-allocated to the 6th Defendant vide certificate of occupancy No. EDSR 12870 dated 30/10/97 and registered as 15115/B. 185. Benin City and that the 6th Respondent subsequently assigned the unexpired term to the 5th Defendant on 30/5/2008 and it was registered as 44/44/994. Benin. Plaintiff will at the trial rely on a copy of the said letter and notice to produce the original is hereby given to Defendants.

Flowing from the averments by the Appellant and on his own showing is the indisputable fact that the right of occupancy of his late father was revoked in 1994. The question then is this? Did the cause of action accrue from that date in the light of the Appellant’s vehement contentions that there was fraudulent concealment of the revocation of the right of occupancy of his

late father by the 1st – 4th Respondents and therefore, that time should begin to run from the time the Appellant became aware of the revocation? It is settled law that in the computation of when time begins to run in the operation of limitation law, knowledge of the accrual of the cause of action, except were fraudulently concealed, is not a factor to be considered and is thus of no moment. In Ajibona V. Kolawole & Anor (1996) LPELR – 299 (SC), the Supreme Court had the opportunity to pronounce on this issue and had stated inter alia thus:
“All limitation laws have for their object the prevention of the rearing up of claims that are stale. To contend that the Defendant must prove Plaintiffs knowledge of such adverse possession for time to start to run, or the Defendants presence on the land is to import a strange condition into the Limitation law.”
Also in Mulima V. Usman (2014) 16 NWLR (Pt.1432) 160 @ p. 202, the Supreme Court had reiterated inter alia thus:
“From the decision of this Court, starting from Ajibonas in 1996, Akibus in 2003 and Elabanjos in 2006, knowledge of the plaintiff that his right or title to land has

been tampered with is immaterial in determining when cause of action arose.”
See also Sobowale & Ors V. Governor of Ogun State & Ors (2018) LPELR – 43735 (CA) @ pp. 32 – 33.
It follows therefore, that fraudulent concealment of cause of action is one of the exceptions to the operation and or application of the limitation laws. Thus, in cases of clear positive averments by a Claimant of fraud or concealment of the cause of action or mistake, time will not begin to run until the discovery of the fraud or concealment with reasonable diligence. This position of the law is even as recognized by most limitation statutes, including the Limitation Law as applicable in Edo State. See Section 25(a), (b) and (c) of the Limitation Law of Bendel State 1976, as applicable to Edo State. See also Amede V. UBA (2008) 8 NWLR (Pt. 1090) 623 @ p. 656; Admin/Exec. of the Estate of General Sani Abacha V. Eke – Spiff (2009) 7 NWLR (Pt. 1139) 97 @ p. 130.

However, as earlier noted the case of a party is as averred to in his pleadings and therefore, when the issue turns on as to what is the case of a party, it is to his pleadings and not the submissions of his

counsel that the Court would focus its attention to see what indeed is the case of the party. I have taken time to calmly read through the entire averments in the Appellant’s Statement of Claim to see if it was part of his allegation that there was any fraudulent concealment that denied him the opportunity to seek legal remedy against the revocation of the right of occupancy of his late father over the land in dispute in 1994. So, was there any allegation of fraudulent concealment in the entire pleadings of the Appellant against the Respondents?

In law, where a party intends to rely on an allegation of fraud, it would clearly not be enough for such a party to even merely allege fraud or to plead the facts from which fraud may be inferred. The law requires that the act alleged to be fraudulent must be stated fully and precisely with full particulars given in the pleadings. Thus, once a pleading is found lacking of such particulars, fraud would not be said to be in issue. See Halsbury’s Laws of England, 4th Ed. Vol.36 Para 36 @ p. 27; U.K Supreme Court Practice (White Book) 1997 Vol.1 Rule 18/12/7. See also Adenle V. Olude (2003) FWLR (Pt.

157)1074; Fabunmi V. Agbe (1985) 1 NWLR (Pt. 2) 299; Babatunde V. Bank of the North Ltd (2012) All FWLR (Pt. 608) 798; Olowofoyeku V. AG. Oyo State (1996) 10 NWLR (Pt. 477) 190 @ p. 214.

Having painstakingly gone through the entire averments of the Appellant in the Statement of Claim, it seems obvious to me that there were no single averments on fraudulent concealment and worse no facts were even pleaded from which fraud could be inferred against all or any of the Respondents. Having therefore not pleaded any facts of fraudulent concealment, does the issue of fraud arise in this case as would call into operation the exceptions provided for in Section 25 (a) – (c) of the Limitation Laws of Bendel State 1976 as applicable to Edo State as contended by the Appellant’s counsel? I think not. I find the contrary submissions by the learned Senior Advocate for the 1st – 4th Respondents that the issue of fraud does not arise and therefore, does not afford any exception to the operation of the Limitation law in favor of the Appellant as correct and unassailable.

My lords, having found as fact that the cause of action arose in 1994 and that there were no

issue of fraudulent concealment in the pleadings of the Appellant, was the Appellant’s suit statute barred as held by the Court below? In law, time for the computation of limitation period begins to run from the date or time the cause of action arose. Therefore, the time for the filing of the Appellant’s suit complaining of the revocation of his late father’s statutory right of occupancy begins to run from 1994. The Court below was therefore, right when it so held.

The 1st – 4th Respondents are undoubtedly public officers of the Government of Edo State. The power to revoke a statutory right of occupancy is one conferred by law on the 1st Respondent. Therefore, the carrying out of that function is clearly a public duty and such a public officer is protected by the provisions of the Public Officers Protection Law in appropriate and deserving circumstances depending on the peculiar facts of each case. In law, the protection afforded by the Public Officers (Protection) law is a defense available to a Public Officer who had acted in line with the duties imposed on him by law. Thus, in the absence of any allegation of bad faith or acting

outside the scope of its authority against all or any of the 1st – 4th Respondents by the Appellant, which would have taken away the protection afforded them by the Public officers Protection law, this protection is available to protect the 1st – 4th Respondents in this case. See Sections 5 and 28 of the Land Use Act, Cap 2002 Laws of the Federation 1990; See also Section 2 (b) of the Public Officer Protection Law, Cap 137 Laws of Bendel State 1976.
In Hassan V. Akilu (2010) 17 NWLR (Pt 1223) 547, Adekeye JSC, had puts this issue succinctly thus:
“A public officer can be sued outside the limitation period of three months if all time material to the commission of the act complained of, he was acting outside the color or scope of his office or outside his statutory or constitutional duty.”
See also Ibeto Cement Co Ltd V. AG. Federation (2008) 1 NWLR (Pt. 1069) 470 @ pp. 499 – 501; AG. Rivers State V. AG.Bayelsa State (2013) 3 NWLR (Pt. 1340) 123 @ p. 148; Offoboche V. Ogoja LG (2001) 16 NWLR (Pt. 739) 458; Lagos City Council V. Ogunbiyi (1969) 1 All NLR 197; Adeyemi V. Governor of Oyo State (2003) FWLR (Pt. 149) 1444 @ p.

1466; Mrs. Comfort V. Almo Gases Nig. Ltd (2006) All FWLR (Pt. 335) 93 @ p. 106.
Now, having found that time for the Appellant’s cause of action began to run from 1994, the Appellant had 12 years at best in relation to all the six Respondents and at worse 3 months in relation to the 1st – 4th Respondents, being public officers of the Government of Edo State in the exercise of their public duties in relation to the revocation of the Appellant’s late father’s statutory right of occupancy to file his suit. However, the Appellant’s suit was filed on 18/2/2009, which was clearly outside the limitation period and thus statute barred. The finding of the Court below to that effect was therefore impeccable and unimpeachable and cannot be disturbed but must be allowed to stand. See Section 6(2) of the Limitation Law, Cap 89, Laws of the Bendel State, 1976, as applicable to Edo State. See also Egbe V. Adefarasin (1987) 2 NWLR (Pt. 47) 1; Woherem V. Emereuwa (2004) 13 NWLR (Pt. 890) 398 @ p. 416; Ikosi Industries Ltd V. Lagos State Govt. & Ors (2017) LPELR – 41867 (CA); P. N. Udoh Trading Co. Ltd. V. Abere (2001) FWLR (Pt. 57) 900;

Williams V. Williams (2008) All FWLR (Pt. 433) 1245; Eboigbe V. NNPC (1994) 5 NWLR (Pt. 346) 649.
In the light of all the findings above, I hold that the Writ of Summons filed by the Appellant on 18/2/2009 was clearly statute barred. I find therefore, that the claims of the Appellant at the time it was filed against the Respondents had suffered a ‘still birth’ and had thus become stale and therefore, in law incapable of any enforcement by an action in a Court of law. See Hung V. E.C. Investment C. Nig. Ltd. (2016) LPELR – 42125 (CA). See also Onokomma V. Union Bank of Nigeria Plc (2017) LPELR – 42748 (CA).
Having arrived at the inescapable conclusion that the Appellant’s Writ of Summons filed on 18/2/2009 before the Court below was filed out of time and thus, statute barred, the issue of the perennial battle for supremacy between ‘substantial justice’ and ‘technical justice’ reared up its head at once to play on the conscience of this Court; should we jettison and discountenance substantial technicality bordering on incompetence of the Appellant’s Writ Summons or should we give effect to the settled principle

of law that nothing worth anything can ever come out from an incompetent Suit? In African Songs Limited & Anor V. King Sunday Adeniyi Adegeye (2019) 2 NWLR (Pt. 1656) 335 @ p. 365 – 366, I had cause to consider deeply the place of ‘substantial justice’ and ‘technical justice’ in the due administration of justice in this Country and had opined inter alia thus:
“My lords, while in today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway, yet it is truism that competence is the soul of adjudication. It is in this sense the issue of competence can no longer in law truly be regarded as ‘mere technicality’ but rather be seen as substantial issue of law. In other words while eschewing technicality for its sake, a Court can only exercise jurisdiction where all conditions precedent to the exercise of its powers have been fulfilled. See Dangana & Anor. V. Usman & Ors. (2012)2 SC (Pt. 1)3.”
I do not think I can improve on the statement of law I made above and therefore, I cannot but bow to it. I fully subscribe to its truism and so

it is with the Appellant’s Writ Summons filed before the Court below on 18/2/2009 that it was grossly incompetent in law and was rightly dismissed by the Court below.

In the light of all the above therefore, I hereby resolve issue one against the Appellant in favor of the Respondents.

ISSUE TWO
Whether the Court below decided substantive issue which was meant for the full trial at the interlocutory stage and if such occasioned a miscarriage of justice?
My lords, I have considered the totality of the submissions of counsel for the parties on issue two and it would appear that it was all mere dissipation of energy since the Court below was very careful, and happily took time, to put on record in the ruling appealed against that it would concern itself with and confine itself to only the relevant interlocutory issues in the application challenging the competence of the Appellant’s suit on the limited ground of limitation of actions and would therefore, not make any pronouncement on any issue touching on the claims in the substantive suit which was yet to be heard on the merit.
Now, this was what the Court below stated while

advising itself, and quite rightly too, against delving into discussing or determining any of the claims or issues in the substantive suit on the merit at such an interlocutory stage, thus:
The issue of modality or propriety of revocation relate to some of the triable issues for adjudication. The present application is not concerned with them. The Court must have competence before it can adjudicate on the merit of a case.
However, even on the face of the above wisdom displayed by the Court below in line with settled principles of law that Courts must desist from making pronouncements touching on issues or claims in the substantive suit while considering interlocutory applications or at an interlocutory stage, yet issue two found its way into this appeal.
Having considered the submissions of counsel to the respective parties in the light of the findings and decisions in the ruling of the Court below, I find that the Court below did not decide or make any pronouncement touching on any of the claims and or issues in the substantive suit as erroneously contended by the Appellant under issue two, when all the Court below did was simply to

confine itself to the pertinent issue of whether or not the Appellant’s suit was statute barred and coming to the inescapable conclusion, based on the facts as put forward by the Appellant in paragraph 17 of the Statement of Claim, that the Appellant’s suit was statute barred and thereby dismissing the said suit as enjoined by law.

Now, even without the gazette introduced as part of the affidavit evidence of the 1st -4th Respondents in support of their application, which was truly unnecessary in an application of the nature under consideration before the Court below since all that was required was to look at the writ of summons and the pleadings of the Appellant to see if the date of the accrual of the cause of action of the Appellant to the date of filing of his writ of summons was within or outside the limitation period, there were clear averments in paragraph 17 of the statement of claim, on which the Court below also found, and quite rightly too, that the Appellant’s suit was statute barred.

Thus, the conclusion reached by the Court below that the Appellant’s suit was statute barred is correct in the light of the

averments in paragraph 17 of the statement of claim unequivocally showing that the cause of action arose in 1994 and in law even where the reason adduced by a trial Court leading to its correct findings on the facts presented before it turns out to be wrong, so long as the findings and or conclusions reached are correct, this Court will not interfere. We do not have the power or the need to intervene to disturb or correct a correct finding. Rather, our duty as an appellate Court is to intervene to correct wrong findings and or conclusions not flowing from the facts or pleadings or evidence, as the case may be, before the Court below.
In the circumstances therefore, having found that the Court below was right in its finding that the Appellants’ suit was statute barred, in law this Court would have no business interfering with the correct findings of the Court below. This is so because, an appellate Court has no duty interfering with the correct findings of a trial Court even where the reason adduced and relied upon by the trial Court to arrive at the correct findings turns out to be wrong. See Alhaji Ndayoko & Ors. V. Alhaji Dantoro & Ors. (2004) 13

NWLR (Pt. 889) 187 @ p. 198, where Edozie, JSC., had pronounced with finality on this vexed issue, thus:
“An appellate Court is only concerned with whether the judgment appealed against is right or wrong not whether the reasons given are right or wrong. Where the judgment is right but the reasons given are wrong, the appellate Court does not interfere. It is only where the misdirection has caused the Court to come to a wrong conclusion that the appellate Court will interfere.”
See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.

In my finding therefore, issue two is not only highly misconceived and preposterous but also totally lacking in merit and it is hereby resolved against the Appellant in favor of the Respondents.

On the whole therefore, having resolved issues one and two for determination in this appeal against the Appellant in favour of the Respondents, I hold that the appeal lacks merit and is liable to be dismissed. Consequently, it is hereby so dismissed.

In the result, the ruling, though titled ‘judgment’ of the High Court of Edo State, Coram: J. Aigbuloko Oyakhirome

J., in Suit No. B/118/2009: Andrew Adeshina Brossa V. The Executive Governor (Edo State) & Ors., delivered on 26/1/2010, wherein the Appellant’s Suit was dismissed for being statute barred is hereby affirmed.
There shall be no order as to cost.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, Biobele Abraham Georgewill, JCA. I agree that the appeal lacks merit and I also dismiss it.
The parties shall bear their respective costs.

Appearances:

Obaozamowan Esq., For Appellant(s)

Oluwole Iyamu SAN., learned Solicitor General of Edo for the 1st- 4th Respondents, with him, D. Y. Otengike Esq.

R. O. Isanlumka Esq., learned counsel for the 5th & 6th Respondents, with him,O. Obalowose Esq. For Respondent(s)