CLEMENT OYEGADE AKINSETE & ORS. v. HIS ROYAL MAJESTY OBA VICTOR KILADEJO (2013)

CLEMENT OYEGADE AKINSETE & ORS. v. HIS ROYAL MAJESTY OBA VICTOR KILADEJO

(2013)LCN/5974(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of February, 2013

CA/B/290/1999

RATIO

STATUTE OF LIMITATION: LEGAL ACTIONS CANNOT BE INSTITUTED AFTER THE PERIOD OF LMITATION HAS EXPIRED

It has been held in several decided authorities that where a statute of limitation provides a period within which an action must be commenced, legal proceedings cannot be instituted after the expiration of the prescribed period. An action instituted after the expiration of the period stipulated in the statute of limitation is not maintainable. It follows that where a statute of limitation applies, a claimant who might have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. See: Eboigbe Vs N.N.P.C. (1994) 5 NWLR (347) 649 at 658 F – A and 659 D-E; Odubeko Vs Fowler (1993) 7 NWLR (308) 637; Sanda Vs Kukawa Local Government (1991) 2 NWLR (174) 379; Oke Vs Oke (2006) 4 NWLR (1008) 224 at 242 C – D. A statute of limitation is usually couched in mandatory terms. It follows therefore that the provisions of the law must be strictly complied with in order to arm the claimant with an enforceable cause of action.PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

STATUTE BAR: HOW TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED

In order to determine whether an action is statute barred, all that is required is to examine the 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. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See: Aremo II Vs Adekanye (2004) 13 NWLR (891) 572 @ 592 – 593 H – A; Woherm Vs Emereuwa (2004) 6 – 7 SC 161; Savannah Bank of Nigeria Ltd. Vs Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (49) 212.PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

CAUSE OF ACTION: WHAT IS A CAUSE OF ACTION

Black’s Law Dictionary, Ss edition at page 1349 defines cause of action as:
“A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.”PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

CAUSE OF ACTION: WHAT AMOUNTS TO A CAUSE OF ACTION

CAUSE OF ACTION: WHAT IS A CAUSE OF ACTION AND WHEN DOES IT ACCRUE
Furthermore, in the case of: Adimora Vs Ajufo (1988) 1 NSCC 1005 @ 1018, the Supreme Court defined two important concepts: what is a cause of action? And when does it accrue? Oputa, JSC defined cause of action as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.” His Lordship stated further, “the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.”PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

CAUSE OF ACTION: TWO ELEMENTS THAT CONSTITUTE CAUSE OF ACTION

In Ojukwu Vs Yar’Adua (2009) 12 NWLR (1154) 50 @ 131 – 132 H – A, the Supreme Court per Niki Tobi, JSC identified two elements that constitute a cause of action, namely: (i) the wrongful act of the defendant which gives the plaintiff his cause of complaint; and (ii) the consequent damage. See generally the decision of this court in: the Gbadehan vs Kiladejo & Ors. (2012) 16 NWLR (1326) 392 @ 413 – 414 E – B.PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

JUSTICES

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

1. CLEMENT OYEGADE AKINSETE
2. SUBULADE OYEGADE AKINSETE
3. ADEWOLE OYEGADE AKINSETE
4. ADEMUJIMI OYEGADE AKINSETE
5. OLAMOJUBA OYEGADE AKINSETE
(For themselves and on behalf of Akinsete Family) Appellant(s)

AND

HIS ROYAL MAJESTY OBA VICTOR KILADEJO
(The Osemawe of Ondoland)
(For himself and on behalf of the Chiefs and people of Ondo)
(substituted by the order of court dated 1st February 2007) Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State, sitting at Ondo delivered on 25/7/1997 granting all but one of the plaintiff’s reliefs against the defendants. The appellants herein who were the defendants at the court below were dissatisfied with the judgment and originally filed a notice of appeal containing nine grounds of appeal. With leave of this court granted on 13/3/02 they filed nine additional grounds of appeal bringing the total grounds of appeal to eighteen. In compliance with the rules of this court the appellants originally filed a brief of argument dated 4/4/02 on 5/4/02. By an order granted on 10/12/02 the respondent was granted an extension of time within which to file his brief of argument. The brief was not filed within the time extended by the court. Subsequently the respondent filed a motion on notice dated 13/2/03 seeking an order further extending the time within which to file and serve his brief and for an order deeming the attached brief as properly filed and served.
The application was struck out on 21/10/03 for want of prosecution. Thereafter the appellant filed a motion on notice dated 1/11/06 for an order substituting the original respondent His Royal Majesty Oba F. I. Adesanoye who had died with the present respondent, Oba Victor Kiladejo. Pursuant to the substitution of the respondent the appellant filed another brief of argument dated and filed on 7/6/2007. The respondent although duly served with all the processes in the appeal, including hearing notices, failed to take any further steps herein. On 4/12/07, pursuant to an application filed by the appellant, this court ordered that the appeal should be heard on the appellant’s brief alone, the respondent having failed or neglected to file his brief of argument.
The facts that gave rise to this appeal may be summarised as follows: The property in dispute situate at No. 5 Oreretu Street, Ondo consisting of a house and 5 shops was originally part of the chieftaincy property belonging to the Jomulaja Chieftaincy of Ondo. It was the plaintiffs (now respondents) case at the court below that there are five senior chiefs in charge of the five quarters of old Ondo and each has an official chieftaincy house with appurtenances, which he occupies with his family until his death or elevation to a higher chieftaincy title. That under the native law and custom of Ondo an incumbent is not permitted to convert the chieftaincy property to his own use or alienate it. All communal chieftaincy property is under the trusteeship of the Osemawe of Ondo (the paramount ruler) and his council of chiefs. The council consists of five High Chiefs. According to the plaintiff, there was a slight change in the tradition when certain chiefs applied to the Osemawe-in-council for a grant of portions of the chieftaincy land attached to their particular chieftaincies. Some of the requests were granted. However it was the plaintiff’s contention that only the Osernawe-in-council, i.e.= the Osemawe in conjunction with the five High Chiefs could grant such requests. Also such requests would not be granted in a manner that would deprive any successor-in-title of the perquisites attached to the chieftaincy particularly the enjoyment of rents accruing from shops attached thereto, which are used for his upkeep and the performance of traditional obligations.
In December 1962 the then Osemawe of Ondo, Oba R. A. Aderele made an absolute grant of the property at No. 5 Oreretu Street, Ondo to the defendants’ (now appellants) father who exercised maximum acts of ownership over it. After his death his children continued to exercise acts of ownership thereon. The plaintiff contended that the grant by Oba Aderele was made in total disregard of the native law and custom of Ondo and that it was not made by the Osemawe-in-council, the recognised authority to do so but by the Osemawe and two Chiefs, one of whom was not even a member of the council. It was also his contention that the grant was made in respect of the house built by the defendants’ father only and did not include the five shops, which are for the upkeep of the incumbent. According to the plaintiff after the death of the defendants’ father the new Jomulaja, Chief Akinshehinwa was not allowed to enjoy the five shops in the property as the appellants maintained that by the grant of 1962 the entire property belonged to their family absolutely. The issue could not be resolved up till the time the then Osemawe, Oba Adesanoye ascended the throne upon the death of Oba Adekolurejo, who succeeded Oba Aderele. He (Oba Adesanoye) therefore instituted the instant action before the lower court vide a writ of summons dated 24/1/94 to have the matter judicially pronounced upon once and for all. By paragraph 29 of his statement of claim filed on 15/2/94 the plaintiff, for himself and on behalf of the Chiefs and people of Ondo, claimed against the defendants jointly and severally as follows:
“1. A declaration that the Jomulaja Chieftaincy house at No. 5, Oreretu Street, Ondo is the traditional Chieftaincy house only for the holder for the time being of the Jomulaja Chieftaincy title and cannot be converted to a Private freehold property nor can grant of it be made to or any part of it be alienated by former holder of the chieftaincy title.
2. A declaration that the purported conveyance of the Jomulaja traditional Chieftaincy house at No. 5, Oreretu Street, Ondo to the late Chief Jomulaja Oyegade Akinsete by Oba R. A. Aderele Tewogboye II, the Osemawe of Ondo land and three Chiefs who described themselves as “Grantors and BENEFICIAL OWNERS seized in fee simple” of the said traditional chieftaincy house is null and void and of no effect.
3. A declaration that the five shops in the Jomulaja traditional chieftaincy house at No. 5, Oreretu Street, Ondo are part of the perquisites traditionally attached to the Jomulaja Chieftaincy and in the absence of a holder of the title they are to be enjoyed beneficially by the Ondo Community and the shops cannot be alienated or converted to a private freehold property.
4. An order by the court that the defendants and the Oyegade Akinsete family, should surrender the five shops which they wrongfully withhold and detain from the plaintiff and that the tenants therein be ordered to vacate the shops.
5. An order by the court-that the defendants should render an account of the rents which they collected from the five shops from February 1988 to date and pay the total rents collected to the plaintiff for the benefit of the Ondo Community.
2.
ALTERNATIVELY, an order by the court that the defendants should pay to the plaintiff the sum of N90,000.00 (ninety thousand Naira) being the assumed total rents collected by the defendants from the five tenants in the five shops at the rate of N250.00 (two hundred and fifty Naira) per month per shop from February 1988 to date for the benefit of the Ondo Community.
6. A perpetual injunction restraining jointly and severally the defendants and the Oyegade Akinsete family, their agents, servants and privies from committing further acts of trespass in the five shops and on portions of the Jomulaja Chieftaincy land not allocated to the Oyegade Akinsete family.”
In reaction to the statement of claim the defendants filed a statement of defence dated 10/3/94 to which the plaintiffs filed a reply dated 114/94. The defendants subsequently filed an amended statement of defence dated 21/6/95. Two witnesses testified for the plaintiff while the 1st appellant herein testified on behalf of the defendants. Exhibits were tendered. At the conclusion of the trial, learned counsel for both parties addressed the court. In a considered judgment delivered on 25/7/1997 the learned trial judge entered judgment in favour of the plaintiff in respect of prayers 1, 2, 3, 4 and 6 and refused prayer 5. It is against this decision that the defendants now appellants have appealed to this court.
We heard the appeal on 14/1/2013. Upon being satisfied from our records that the respondent was duly notified of the hearing date, learned senior counsel for the appellant, C. O. ADUROJA, SAN, was allowed to argue the appeal. He adopted and relied on the appellant’s brief and urged the court to allow the appeal and set aside the judgment of the lower court. He formulated five issues for determination from grounds 1 and 9 of the original grounds of appeal and grounds 10 -17 of the additional grounds. He abandoned grounds 2, 3, 4, 5, 6, 7 and 8 of the original grounds of appeal and ground 18 of the additional grounds. The said grounds are hereby struck out. The issues for determination are as follows:
1. Whether or not the plaintiffs action, which was only instituted on 24th January 1994, that is thirty-two years after the absolute grant of the disputed land to the appellants father was/is not statute-barred.
(Additional Ground 10).
2. Does the plaintiff have the locus standi to institute this action against the defendants/appellants? (Additional Grounds 11 and 13).
3. Considering the long possession of the appellants of the disputed land and the acts of ownership exercised by them thereon coupled with the acquiescence of the plaintiff to all these acts and the fact that the parties to the grant of the land are all dead, whether the lower court was right to have entertained the action and or given judgment for the plaintiff. (Additional Grounds 12 and 14).
4. Does the lower court have jurisdiction over the subject matter of this action which is a stool land? (Additional Ground 15).
5. Considering the state of the pleadings, the admissible evidence led and the circumstances of this case, whether the findings, conclusions and the judgment of the lower court can be sustained? (Original Grounds 1 and 9 and additional grounds 16 and 17).
ISSUE 1
Whether or not the plaintiffs action, which was only instituted on 24th January 1994, that is thirty-two years after the absolute grant of the disputed land to the appellants’ father was/is not statute-barred.
In support of this issue, learned counsel for the appellants submitted that the suit before the lower court was filed on 24/1/94 while the grant complained of was made in 1962, He referred to pleadings of the parties where the date of the grant is not in dispute and prayers 1 and 2 of the plaintiff’s reliefs. He referred to Sections 6 (2), 16 and 17 of the Limitation Law, Laws of Ondo State and submitted that the combined provisions prohibit any action for the recovery of land or rents accruing thereof after a specific period i.e. a maximum period of twelve years in the case of an action for recovery of land upon the accrual of the cause of action and a maximum of six years for the recovery of rents. On when time begins to run for the purpose of the limitation law he referred to: Fadare Vs A.G. Oyo State (1982) 4 SC 4 @ 25; Obiefuna Vs Okoye (1961) 1 SCNLR 144. He submitted that in a case such as the instant one where it is clear and unambiguous when the grant complained of was made there is no need for oral evidence. He referred to: Grains Production Agency Vs Ezegbulem (1999) 1 NWLR (587) 399. Nonetheless he submitted that even upon a consideration of the evidence led by both sides at the trial, it is not in dispute that the grant was made in 1962 and therefore the cause of action accrued in 1962 at the time the grant was made.
He made an alternative submission that having regard to the fact that the learned trial Judge wrongly, in his view, concluded that the grant made to the appellants’ father came to an end in 1975 upon his death, more than twelve years had elapsed between 1975 and when the action was instituted. He submitted that in the circumstances the action was still caught by the Limitation Law, He submitted that the respondent having slept on his rights, the court could not help him. He referred to F.B.N. Plc. Vs Associated Motors Co. (Nig.) Ltd. (1998) 10 NWLR (570) 441 @ 452. He urged the court to resolve this issue in the appellants’ favour and dismiss the appeal.
It has been held in several decided authorities that where a statute of limitation provides a period within which an action must be commenced, legal proceedings cannot be instituted after the expiration of the prescribed period. An action instituted after the expiration of the period stipulated in the statute of limitation is not maintainable. It follows that where a statute of limitation applies, a claimant who might have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation law for instituting such an action has elapsed. See: Eboigbe Vs N.N.P.C. (1994) 5 NWLR (347) 649 at 658 F – A and 659 D-E; Odubeko Vs Fowler (1993) 7 NWLR (308) 637; Sanda Vs Kukawa Local Government (1991) 2 NWLR (174) 379; Oke Vs Oke (2006) 4 NWLR (1008) 224 at 242 C – D. A statute of limitation is usually couched in mandatory terms. It follows therefore that the provisions of the law must be strictly complied with in order to arm the claimant with an enforceable cause of action.

In the case of Egbe Vs Adefarasin (1987) 1 NWLR (47) 1 @ 20 Oputa, JSC explained what amounts to a cause of action thus:
“Now let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation that gives rise to judicial relief. A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In other words, a cause of action is the operative fact or facts (the factual situation), which give rise to a right of action, which it itself a remedial right..”
Furthermore, in the case of: Adimora Vs Ajufo (1988) 1 NSCC 1005 @ 1018, the Supreme Court defined two important concepts: what is a cause of action? And when does it accrue? Oputa, JSC defined cause of action as “every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment.” His Lordship stated further, “the accrual of a cause of action is the event whereby a cause of action becomes complete so that the aggrieved party can begin and maintain his cause of action.”

Section 6(2) of the Limitation Law of Ondo State provides inter alia:
“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 person through whom he claims, to that person.”
Section 16 of the Law provides:
“Subject to the provisions of section 9 of this Law at the expiration of the period prescribed by this Law for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.”
Following the dictates of the various authorities referred to above, recourse must be had to the statement of claim to determine when the cause of action accrued in this case.
In paragraphs 4, 14, 15, 16, 17, 18, 19; 20, 21 and 27 of the statement of claim, the respondents pleaded thus:
“4. The Chieftaincy house of the Jomulaja (Alias NOMINONE) is at No. 5 Oreretu Street, Ondo. It has five shops facing the Oreretu Street, which constitutes part of the prerequisites of the incumbent of the Jomulaja Chieftaincy title and the five shops are now in dispute between the plaintiff and the defendants.
14. After the death of Chief Oyegade Akinsete, his successor-in-title, Chief Jomulaja Yesufu Akinsehinwa, complained the Osemawe-in-Council that the defendants were disturbing his peaceful enjoyment of the perquisites attached to the Chieftaincy.
15. The Osemawe-in-Council therefore on 16/2/77 invited the defendant and Chief Yesufu Akinsehinwa and, after hearing evidence from the two sides decided and declared that the remaining Jomulaja Chieftaincy land measuring 20 feet in length and 71 feet in breadth with the five shops as the official Jomulaja Chieftaincy house for successive holders of the Chieftaincy title of Jomulaja.
16. Early in 1993, the plaintiff and his High Chiefs set up the Chieftaincy Committee Task Force to look into and locate the remaining vacant Chieftaincy houses in Ondo Township and make recommendations. The committee inspected many Chieftaincy houses among which was 5, Oreretu Street, Ondo which is the Chieftaincy house of Jomulaja.
17. The Chieftaincy Committee reported that the late Jomulaja Oyegade Akinsete built a storey house in the middle of the Jomulaja Chieftaincy land and that the defendant claimed the five shops in dispute as well as the storey house as their bonafide family property and supported their claim with a photocopy of an agreement purportedly signed by Oba R. A, Aderele, the then Osemawe of Ondoland and the late Chief Sasere E. A, Akinkugbe, the late chief Logbosere D. J. Adepetun and the late Chief Sama G. M. Akinsete,
18. The Chieftaincy Committee also reported that the then incumbent of the Jomulaja Chieftaincy title, Chief Yesufu Akinsehinwa (now dead) who succeeded Chief Oyegade Akinsete, also tendered an agreement signed by the late Oba R. I. Adekolurejo, the Osemawe of Ondoland and the five high Chiefs of Ondo who were the traditional trustees of Chieftaincy houses, granting the 5 shops to the incumbent Jomulaja and his successors-in-title.
19. The Committee therefore recommended that the five shops should be left as the official property of the present and subsequent Jomulajas.
20. The Osemawe-in-Council, that is, the traditional trustees of Chieftaincy houses in Ondo, accepted the recommendation of the Chieftaincy Committee and decided that: – (i) the five shops built on Jomulaja Chieftaincy house (sic) should be designated as Jomulaja Chieftaincy property and vested in Chief Akinsehinwa, the then holder of the Chieftaincy title of Jomulaja and his successors-in-title; (2) the building erected in the middle of the chieftaincy land by the late Jomulaja Akinsele, predecessor-in-title of Chief Akinsehinwa, should remain the bona fide property of the Jomulaja Akinsete family.
21. In reaction to the decision of the Osemawe-in-Council the defendants ejected the tenant whom Chief Akinsehinwa had put in one of the shops and sealed up all the 5 shops, spurned and defied the decision of the Osemawe-in-Council and offered a fight, threatening to injure with Juju anybody who dared come to the shops.
27. The defendants refused to surrender the 5 shops to the plaintiff for the benefit of the Ondo Community and they have refused to render an account of all the rent which they collected from the shops since February 1988 despite repeated demands.”
(Emphasis supplied).
It is pertinent to note that the issue of whether or not the action at the lower court was statute-barred was not raised at the trial. It was raised by way of the additional grounds of appeal filed with leave of this court on 13/3/02. In paragraph 29 (ii) of the statement of claim the respondent herein specifically sought a declaration that the “purported grant/conveyance of the Jomulaja Chieftaincy house at No. 5 Oreretu Street, Ondo, to late Chief Jomulaja Oyegade Akinsete by Oba R. A. Aderele, Tewogboye II, the Osemawe of Ondoland and three Chiefs who described themselves as “Grantors and Beneficial owners seized (sic) in fee simple” of the said Chieftaincy house is null and void and of no effect.” A careful perusal of the averments in the statement of claim, particularly the paragraphs reproduced above, reveals that the date on which the property in dispute was purportedly granted to the respondents’ father is not pleaded.
The onus of establishing that an action is statute barred lies on the person who asserts that position. In this appeal, that would be the appellants. See: Savannah Bank Vs. Pan Atlantic Shipping and Transport Agencies Ltd (supra) @ 259 C – H; Woherem Vs Emereuwa (2004) 6 – 7 SC 161. The appellants contend that the cause of action arose in 1962 when the grant was made to their father. However, as observed earlier the date of the grant in respect of which a declaration is sought was not pleaded.
In the case, of Savannah Bank Vs Pan Atlantic Shipping and Transport Agencies Ltd. (supra) at 259 F – H, Oputa, JSC stated inter alia as follows:
“Time will start to run when the cause of action arose. It is therefore absolutely necessary when dealing with limitation statute to determine the precise date upon which the cause of action arose. Without the basic fact it will be impossible to compute the time. Thirdly since the defendant is the party relying on the defence of limitation “the onus is on him to establish when the cause of action accrued to the plaintiff. It is not enough to plead a particular date for if that date is not admitted by any reply of the plaintiff to the defendant’s statement of defence, then there is nothing on which the necessary computation can be made. Fourthly, it is not permissible and it would be wrong for a court to compute time from a date pleaded in the statement of defence, not admitted in the reply and not proved by credible evidence,”
(Emphasis mine)
See also: Odubeko Vs Fowler (1993) 7 NWLR (308) 632 @ 660 D- E; Gbadehan vs. Kiladejo (supra) @ 417 – 419 G -C.
In Woherem Vs Emereuwa (supra) @ 169 lines 27-39, Iguh, JSC stated thus:
“…What needs to be emphasised is that the determining factor is the averment in the plaintiff’s writ of summons and statement of claim, This is the case however, where at the end of settlement and exchange of pleadings or after the plaintiff has filed his statement of claim, the defendant is obliged at that stage to contest in limine by way of a preliminary objection that the plaintiff’s action is statute barred and ought to be struck out. The position is different where issue is joined by the parties in their pleading as to the date the cause of action in a suit arose. In that case such an issue must be proved by the parties in the course of the hearing of the suit by credible evidence to be determined by the court. See Savannah Bank of Nig, Ltd, Vs Pan Atlantic (supra).”
(Emphasis mine).
It follows from the above authorities that while it is correct that it is the writ of summons and statement of claim that would be examined where the issue of limitation law is raised by way of a preliminary objection after pleadings have been settled with a view to having the action dismissed in limine, where the plaintiff has admitted the time of the accrual of the cause of action in his reply to the defendant’s pleadings the court is entitled to accept the date agreed upon by both parties. Where evidence has already been led in the case the court would have to determine the issue as established by credible evidence before it.
In paragraph 4 of their amended statement of defence, in answer to paragraph 4 of the statement of claim, the appellants pleaded that the grant was made to their father in 1962. In paragraph 26 (a) and (b) they pleaded thus:
“26. The defendants shall also rely on legal and equitable defences available to them at the trial e.g, waiver, estoppel, acquiescence and standing by.
PARTICULARS:
(a) The grant of the land to the defendant’s late father was made in 1962 by the then Osemawe of Ondo land and his Chiefs and there was no challenge to the grant or the usage of the premises by the late Chief Jomulaja Oyegade Akinsete and his family from the Community or from the Chiefs since then till the death of the defendant father in 1975.
(b) The defendant after the death of their father in 1975 have also been using the shops as the family property of their late father without let or hindrance until only recently when the plaintiff in June 1993 started to lay claim on the property as a stool land after he became the Osemawe of Ondo in 1992.”
The respondent denied paragraph 4 of the amended statement of defence and put the appellants to the strict proof thereof. In paragraph 27 (a), (b) and (d) of his reply to the amended statement of defence the respondent pleaded thus:
“27. The plaintiff denies all the averments in paragraph 26 of the statement of defence and will contend at the hearing of the suit that there was no waiver; that estoppel does not apply; that there is no acquiescence or stand-by –
PARTICULARS
(a) That the application of the defendant’s father was not discussed by the Osemawe-in-Council and the grant was not with the consent, knowledge and approval of 4 of the traditional trustees of Chieftaincy land. The grant was secretly made by Oba R.A. Aderele and the 3 Chiefs who falsely claimed to be beneficial owners of Ondo Chieftaincy and Community land and therefore did not make the grant on behalf of Ondo Community.
(b) A Chief who occupies a Chieftaincy house is enjoined by custom and tradition of Ondo Community to repair, renovate or rebuild it for the benefit of the Ondo Community and can occupy it with his family for as many years as he lives and until a successor is installed.
(d) It was when the late Chief Yesufu Akinsehinwa became Jomulaja in 1977 and demanded the rent from the tenants of the shops that the family of Chief Oyegade Akinsete claimed the shops as their bona fide private property and in February 1977, the Osemawe-in-Council declared the shops Chieftaincy property for successive incumbents of Jomulaja Chieftaincy title.”
From his pleadings, it is clear that the respondent did not deny that the grant was made in 1962. His grouse is that the grantors did not follow the procedure laid down by the custom and tradition of Ondo land. Therefore, in the present circumstances, since all the facts had been placed before the court below this court would be entitled to consider the plaintiffs case as made out on the evidence adduced to determine when the cause of action arose. As submitted by learned counsel for the appellants, the parties are ad idem as to the fact that a grant of the property in dispute was made to their late father vide Exhibit A dated 20th December 1962. The document was tendered through the 1st appellant herein. A substantial part of the evidence led by PW1 was devoted to explaining the custom and tradition relating to Chieftaincy property in Ondo land and showing why the grant made in 1962 by Oba R. A. Aderele and some of his Chiefs (and not the Osemawe-in-Council) in favour of the appellants’ father did not follow the tradition and was therefore illegal, null and void. It is my humble view that the cause of action arose on 20th December 1962 when the grant was made, as it is alleged that it was improper. Assuming, without conceding that the grant was made in error, the late Jomulaja and his family were entitled to enjoy the property and its appurtenances for the duration of his life or his elevation to a higher chieftaincy. The evidence before the court was that Jomulaja Oyegade Akinsete died in 1975. PW1 testified that according to custom, when a holder of the title dies members of his family are allowed to remain in occupation for a period of nine months in the case of a High Chief but in the case of Jomulaja, being a minor chief, the period is seven months. Thereafter the family must vacate the house and premises to make way for the next holder of the title and his family. (See page 45 of the record). It follows therefore that even if it could be said that no cause of action accrued until nine months after the demise of Jomulaja Oyegade Akinsete in 1975, the institution of the action in 1994 is still outside the twelve year period stipulated in the Limitation Law of Ondo State.
One might consider a third scenario based on the averments in paragraphs 15 and 16 of the statement of claim and paragraph 27 (d) of the reply to the amended statement of defence reproduced earlier in this judgment. It is evident from the averments therein that there was a pending dispute in respect of the property between the then Jomulaja, Yesufu Akinsehinwa, and the family of his predecessor-in-title, Jomulaja Oyegade Akinsete, which necessitated the intervention of the Osemawe-in-Council in 1977. PW1, Stephen Kolawole Adeyeye, High Chief Adaja Ondo testified at page 46 of the record that he was aware of attempts by the Osemawe to settle the dispute between Jomulaja Akinsehinwa and the appellants in 1977 although he was not a High Chief at the time. The effect of this averment and the evidence in respect thereof is that as at 16/2/77 there was in existence a factual situation (i.e. a dispute as to ownership) that could give rise to a judicial relief. See Egbe Vs. Adefarasin (supra). It is also evident from paragraph 17 of the statement of claim that the issue remained unresolved up till 1993 when the then incumbent Osemawe set up the Chieftaincy Committee Task Force. Thus even if one were to take 16/2/77 as the date when the cause of action arose, the suit filed in 1994 was filed more than twelve years from that date. I am therefore of the respectful view that having regard to the pleadings and the evidence led in this case, whichever way one looks at it the respondent was very much out of time in filing his action at the court below. I therefore agree with learned counsel for the appellants that the respondent’s claim was statute barred having been filed more than twelve years outside the period allowed by Section 6 (2) of the Limitation Law of Ondo State. This issue is accordingly resolved in favour of the appellants.
Having resolved issue 1 in favour of the appellants, a consideration of the other issues formulated for determination in this appeal would amount to an academic exercise. This is because once the period of time specified by law within which to institute an action has elapsed, the claimant who might otherwise have had a cause of action loses the right to enforce it by judicial process. See:. Section 16 of the Limitation Law of Ondo State; Eboigbe Vs N.N.P.C. (supra); Odubeko Vs Fowler (supra); Elabanjo Vs Dawodu (2006) All FWLR (328) 604 @ 654 A – B; Egbe Vs Adefarasin (supra).
In conclusion therefore this appeal succeeds and is accordingly allowed. The judgment of the High Court of Ondo State sitting at Ondo delivered on 25/7/1997 by Fawehinmi, J. is hereby set aside. The respondent’s suit filed on 24/1/1994 is hereby dismissed. Costs are assessed at N70,000.00 in favour of the appellants and against the respondent.

ALI ABUBAKAR B. GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother Kekere-Ekun, JCA. I fully agree with all the reasonings and conclusions of His Lordship. I adopt them as mine in allowing this appeal. I have nothing more to add. I also abide by the order for costs.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I have had the privilege to read in draft the lead judgment just delivered by my learned brother, Kekere-Ekun, JCA and l agree with him entirely that the respondent slept on his right when he failed to institute the action timeously at the lower court. By the provision of section 6 of the Limitation Law of Ondo State it is provided that:
“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, accrued to some person through whom he claims, to that person.”
Furthermore under section 16 of the same Law, it is stipulated that:
“Subject to the provisions of section 9 of this Law, at the expiration of the period prescribed by this law for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.”
In the construction of the foregoing it is evident that it is aimed at prohibiting the filing of any action relating to the recovery of land after a period of twelve years, or rents accruing therefrom after six years from the date the cause of action arose. See Fadere vs. Attorney-General of Oyo State (1982) 4 SC 25.
In Obiefuna vs. Okoye (1961) 1 SCNLR 144 the Supreme Court held that:
“Where a law provides for the bringing of an action within a prescribed period in respect of a particular cause of action accruing to the plaintiff, proceedings shall not be brought after that period prescribed by statute and any proceeding brought outside the prescribed period does not give rise to a cause of action.”
With the detailed computation of time done in the lead judgment it was found as a fact that the respondent slept on his right while it lasted. That being the case and taking cognizance of the fact that equity does not aid the indolent, the respondent had lost the cause of action by 1994 when he instituted the claim at the lower court.
Consequently, I also allow the appeal and set aside the judgment of the lower court delivered 25th July, 1997. I abide by the consequential order relating to cost as made in the lead judgment.

Appearances

C. O. Aduroja, SAN with O. Abudu Esq.For Appellant

AND

Respondent absent and unrepresented by counsel although served with hearing notice.
1st and 2nd Appellants present.For Respondent