CHIEF PAUL ADESHI v. CHIEF PATRICK ADE OKO & ANOR.
(2010)LCN/3722(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of April, 2010
CA/C/17/2009
RATIO
LIMITATION LAW: PURPOSE OF LIMITATION LAW
Indeed, Limitation Act or Law removes the right of the plaintiff of judicial relief leaving the plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is found to be statute barred. He has relied on the case of MILITARY ADMINSTRATOR, EKITI STATE VS. ALAYEDELU (2007) ALL FWLR (PT 369) 1195; 1219, FRIN VS. GOLD (2007) 11 NWLR (PT 1004) 1 AND OKITO VS. OBIORU (2007) ALL FWLR (PT 365) 568; 579. PER JAFARU MIKA’ILU, J.C.A.
JUSTICES:
JAFAARU MIKA’ILU Justice of The Court of Appeal of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Court of Appeal of Nigeria
JEAN OMOKRI Justice of The Court of Appeal of Nigeria
Between
CHIEF PAUL ADESHI – Appellant(s)
AND
CHIEF PATRICK ADE OKO & ANOR. – Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State Holden at Ogoja delivered by his Lordship Hon Justice Michael Edem on the 3rd day of November, 2008.
The background of the case is that the people of Ogboja prior to 1996 functioned as a single entity and dealt with their land in that capacity. The appellant in 1977 acquired land from the said community and proceeded to take possession of same by planting palms and other economic trees therein.
In 1996, the cross River State Government created additional clans and consequently split Ogboja community into clans, Ishirareb being one of the tow clans. The respondents misconceived the clan creation to mean the conferment of power to repudiate all land transaction entered into by the Ogboja community.
Thus predicated on their understanding of clan creation, the respondents took out an action in the High Court of Justice, Ogboja, claiming among other relief that the land in dispute is in Ishikareb clan.
In their statement of Claim the plaintiff’s pleaded that the defendant transposed into the land in dispute in 1979. The defendant filed a defence but failed to raise the defence of statute bar in view of when the cause of action arose.
At the end of the trial the trial judge entered judgment in faovur of the plaintiff and ordered the defendant to quit the land. He was also slammed with a perpetual injunction restraining him from further trespassing on the land.
In their statement of claim the plaintiffs pleaded that the defendant trespassed into the land in 1979. The defendant dissatisfied with the judgment of the High Court has appealed to this court in a notice of appeal filed on 12/11/08. The appellant also sought the leave and was granted the leave by this court to raise the defence of statute bar which was not raised in the lower court. In the appellant’s brief of argument the lone issue raised for determination reads as follows:-
“Whether in view of the fact that the cause of action (trespass) arose in 1979, the action is not statute barred, the right of action of the plaintiffs extinguished and the court drained of jurisdiction? (ground one).
The above lone issue formulated by the appellant has also been adopted by the respondents for the determination of this appeal but with modification. The respondent’s modified issue reads as follows:-
“Whether, in view of the state of the pleadings and the evidence before him, the learned trial Judge acted within his jurisdiction in entertaining the suit and in giving judgment in favour of the respondent?
Thus in this appeal the crux of the matter is the issue of jurisdiction of the trial court. The appellant counsel has argued correctly that the defence of statute bar is a radical defence that touches on the jurisdiction of the court and extinguishes forever the right of a party to approach the courts for a relief once the defence is successfully made out. Indeed, Limitation Act or Law removes the right of the plaintiff of judicial relief leaving the plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is found to be statute barred. He has relied on the case of MILITARY ADMINSTRATOR, EKITI STATE VS. ALAYEDELU (2007) ALL FWLR (PT 369) 1195; 1219, FRIN VS. GOLD (2007) 11 NWLR (PT 1004) 1 AND OKITO VS. OBIORU (2007) ALL FWLR (PT 365) 568; 579. He has also relied on the statement of the apex court in EGBE VS. ADEFARASIN (1987) 1 NWLR (PT 47) 1 which reads as follows:-
“A cause of action is said to be statute-barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Law or Act elapsed. How does one determine the period of Limitation. The answer is simple-by looking at writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. This can be done without taking oral evidence from the witnesses. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.”
With the above the learned appellant’s has argued that for the purpose of limitation of time for action, time begins to run from the moment the cause of action has arisen, that is when the facts which are material to be proved to entitle the plaintiff to success have arisen, referring to LASISI VS FADARE (1982) 4 SC 1; ADEKOYA VS. FHA (2008) 12 NWLR (pt 1099) and FRIN VS. GOLD (supra) at 18, 21 and 30.
The appellants counsel has maintained that the plaintiffs, in this case, commenced the action by a writ of summons and statement of claim all filed contemporaneously on the 27th March, 2008. That the action can be clear from the statement of claim which was to recover land allegedly trespassed into by the defendant/appellant. He has referred on this to paragraph 9-15 of the statement of claim reading as follows:-
“9. A sketch map of Ishikareb clan showing Ishikareb Clan boundaries, communities, road and the trespassed parcel of land is annexed hereto and marked exhibit DD11.
10. The parcel of land trespassed into by the defendant is marked xxx to the right side of Ndock road to High Way junction.
11. The defendant trespassed into the plaintiffs’ land covering an area of 1,774,697 sq meters.
12. The plaintiff’s parcel of land trespassed into by t he defendant is defined in Survey Plan No: MG/CRS/8/83 with beacons No:SE56957, SE56856, SE5695480?
13. The Plaintiff did not sell or lease any parcel of land within Ishikareb Clan to the defendant.
14. The plaintiff did not sell or lease any parcel of land shown in Survey Plan No: MG/CRS/8/83 to the defendant.
15. The defendant trespassed into the plaintiff’s parcel of ladn shown in Survey Plan No: MG/CRS/8/83 in 1979 and planted a few guelina tress.”
With the above the appellant counsel has maintained that the cause of action in this matter arose in 1979 while the action was commenced on 27th March, 2008. That the action was initiated 29 years after the cause of action accrued to the plaintiffs.
The appellant counsel has maintained that the Limitation Law Cap 114 Laws of Cross River State is the applicable law in this case and it provides under section 1 as follows:-
“Time limit for action to recover land.
No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him, or if it first accrued to some person through whom he claims to that person”.
The appellant counsel has argued that section 2 of the said Law has left us in no doubt about when a cause of action is deemed to have accrued as it provides as follows:-
“2. Accrual of right of action in case of present interests in land (1) where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance”.
The appellant counsel has maintained that the first consequence of the Plaintiffs bringing their action outside the ten years allowed by section 1 of the Limitation Law is that no matter how meritorious the cause of action of the Plaintiffs may be it has become barred, empty and not justifiable in a court of law. The second consequence is that the court has no jurisdiction to entertain the action as there is nothing to adjudicate upon. The third and final consequence is that the entire proceedings and judgment of the lower court are null and void and of no consequence whatsoever. The learned counsel has relied on ELABANJO VS. DAWODU (2006) 3 NWLR (pt 1001), AKIBU VS. AZEEZ (2003) 5 NWLR (pt 814) 643; 667-669, AJIBOWA VS. KOLAWALE (1996) NWLR (pt 476) 22, 35-36, SPDC NIG LTD VS. ISAIAH (2001) 11 NWLR (pt 723) 168 and PEENOK INVESTMENT LTD VS. HOTEL PRESIDENTIAL LTD (1983) 4 NCCR 122
With the above the learned counsel for the appellant urges this court to resolve the above lone issue in the negative, allow the appeal, set aside the judgment of the lower court and strike out the action of the plaintiffs for being a hallow ritual.
The learned counsel for the respondent has counter-argued that the appellant did not raise the issue of limitation of action in his statement of defence nor at any stage of proceedings at the trial court, yet the learned trial Judge before whom no such issue was raised is being accused of failing to consider an issue that was not placed before him. That the appellant cannot respect the trial court to make a case for him which he did not make both in his pleadings and the evidence before the court, or fill yawning gaps in his case. He has relied on UNOKAN ENT. LIMITED VS. OMUWIE (2005) 1 NWLR (pt 907) 293. He has added that the leave granted to the appellant by this court in this regard on 16/3/2009 does not solve his problem. That the leave does not in any way help the appellants case because the issue of statute of limitation he is raising for the first time in this court, is not one of such issues of jurisdiction that he can raise off the cuff and for the first time an appeal. That such a surprise or bewitching ambush is not permitted by the law. That the relevant statute of limitation as raised by the appellant herein is one of the points which our law insists that must be specifically pleaded by a defendat who intends to rely on it as a defence. He has referred to O 25 R6(1) and 3 (3) of the High Court of cross River State (Civil Procedure) Rules 1987, the applicable law as at the time the action was commenced on 27th day of March, 2008.
The learned counsel for the respondent has added also that the law is settled that statute of limitation as a special defence must be pleaded specifically by the defendant who intends to rely on it. That this court has held in CHIME VS. ATTORNEY GENERAL, FEDERATION (2008) ALL FWLR (pt.439) 550 that statute of limitation msut be specifically pleaded. That the court at p. 563 paras A-D the court stated as follows:-
“In views of the foregoing, it becomes clear that special defences such as limitation Act/Law must be specifically and expressly pleaded in the statement of defence otherwise it cannot be considered by the trial or appeal courts. The rules of court are made to be followed and their provisions binding on a party who is conducting a proceeding in court: Anwadike vs. administrator-General of Anambra State (1996) 7 NWLR (Pt.460) 315; 332 para D.
The respondent’s counsel has added that the appellant did not aver to any fact in his pleading alluding to the defence. That the Supreme Court in OYEBANJI VS. LAWANSON (2008) ALL FWLR (Pt.438) 236, while interpreting the provision of O 25 R6(1) and (2) of the High court (Civil Procedure) Rules of Oyo State, which is in pari-materia with O25 Rules 6(1) and (3) of the 1987 High Court Rules of Cross River state, reached the sale conclusion which this court reached in Chima’s case (supra). Ogebe JSC therein held at pages 243-244 as follows:-
These provisions are very clear that a party wish to rely on a statute of limitation or the administration of Estates law must specifically plead same. It is not true therefore that such defences should be left to speculation or inference. Apart from that, the respondents claim was far present trespass as at the time of the action, and the statute of limitation could not possible apply to it.
The respondent’s counsel has reiterated that nowhere did the appellant plead the statute of limitation or the limitation law of Cross River State That nowhere in the entire statement of defence and counter-claim did the appellant, even in a feeble manner, aver to any fact tending to show that the respondent’s suit is statute barred. That the appellant has not properly invoked the provisions of sections 1 and 2 of the Limitation Law cap 114, Laws of Cross River State, 2004.
The learned counsel for the appellant has drawn the attention of this court that the issuer of Limitation of action has been raised with the leave of his court. That this court having granted leave to raise the defence cannot turn around and refuse to consider the same.
It is to be reiterated that in all the authorities cited by, and relied on by the respondents are distinguishable and not applicable to this case since leave to raise the defence of Limitation has been sought and obtained before raising the same for the first time on appeal.
In the final conclusion the above lone issue is resolved in favour of the appellant. The appeal has merit and it is allowed, the judgment of the court below is set aside and the action before the trial court is struck-out.
Costs in the sum of N30,000:00 is awarded against the respondent in favour of the appellant.
NWALI SYLVESTER NGWUTA, J.C.A.: I have read before now the lead judgment just delivered by my Learned Brother Mika’ilu JCA and I entirely agree with the reasoning and conclusion therein.
Appellant’s lone issue is predicated on the Limitation Law Cap. 114 Laws of Cross River State which was not pleaded in the Court below. The issue raised and argued by Learned Counsel for the Respondent is based on the State of pleadings in the Court below which is not related to the issue based on the Limitation Law (Supra) and which is outside the issue before the Court.
Appellant filed a motion on notice to the Respondent for leave to raise and rely on the Limitation Law. He was granted leave without objection by the Respondent. It is therefore too late in the day for the Respondent to argue that the defence based on the Limitation Law was not raised before the trial Court.
For the above and the fuller reasons in the lead judgment I also allow the appeal and strike out the suit as time-barred.
I adopt the order for costs.
PROCLAMATION OF JUDGMENT OF HON. JUSTICE JEAN OMOKRI, J.C.A.: Hon. Justice Jean Omokri, JCA (of blessed memory) participated in this appeal and agreed in conference that the appeal should be allowed. Pursuant to the proviso to section 294 (2) of the Constitution I hereby pronounce his opinion dismissing the appeal.
Appearances
Mathew M. Ojua Esq. For Appellant
AND
Mba E. Ukweni Esq. For Respondent
