DANMAIGONA & ANOR v. DANIYI (2020)

DANMAIGONA & ANOR v. DANIYI

(2020)LCN/14330(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, June 11, 2020

CA/K/582/2017

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

1. KELMA DANMAIGONA 2. UMAR DANMAIGONA APPELANT(S)

And

YONANA DANIYI ALIAS DUTSE RESPONDENT(S)

RATIO

WHETHER OR NOT CUSTOMARY EVIDENCE IS BEST ESTABLISHED BY A CREDIBLE EVIDENCE

Giving that customary law of a community is something that the community itself regards as their law, it stands to reason that proof of it will be far more credible where it is not merely the evidence of the person that asserts the existence of that customary law that is before the Court. Customary Law being a mirror of accepted usage as stated by Bairamian, FJ in the case of OWONIYI V. OMOTOSHO (1961) 1 ALL NLR 304; (1961) 2 SCNLR 57, in my view, its accepted usage which makes it law, is best established by a credible witness, preferably not a party in the case. A witness who gives such evidence and is a party in the case, more often than not, in my view, would give evidence that is self-serving. PER DANIEL- KALIO, J.C.A.

DEFINITION OF A CAUSE OF ACTION

A cause of action is defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. See JULIUS BERGER (NIG) PLC V OMOGUI (2001) LPELR- 1638 (SC). PER DANIEL- KALIO, J.C.A.

OBIETONBARA O. DANIEL- KALIO, J.C.A. (Delivering the Leading Judgment): The Respondent as the Plaintiff at the High Court of Kaduna State (the lower Court) sued the Appellants as the Defendants in that Court over a farmland. The case of the Respondent is that he is the owner, together with his siblings Ingla and Kauna, of that farmland by reason of inheritance of same from Busulmi their mother who inherited it from her father Regun who inherited it from Jurumai Arsana, the founder of the land. The land is situate at Periga Kahugu in Lere Local Government Area of Kaduna State. It is bounded on the East by Ishaya Gatarku; on the west by a rock; on the South by Tabawa’s farmland and on the North by Dabo’s farmland. The Respondent’s case at the lower Court is that the Appellants’ trespassed on the land in 2015. As a consequence of that trespass, the Respondent sought from the lower Court a declaration that he and his siblings are the owners of the farmland; a declaration that the Appellants are trespassers on the land; and a perpetual injunction restraining the Appellants, their agents, servants, representatives or anyone claiming through them, from

further acts of trespass on the land. The Appellants filed a statement of defense and counterclaim. Their case was that their father inherited the land from Kuchanku a brother of Rejun following their father’s adoption by the said Kuchanku. Their father was engaged to farm Kuchanku’s land because Kuchanku had no male child. The Appellants’ case was that Kuchanku bequeathed both his farmland and that of his brother Rejun who also had no male child, to their father Danmaigona. They further averred that in 1972 the Respondent’s mother encouraged the 1st Appellant not to allow the farmland to get into wrong hands or get lost and went further to sign a memorandum expressing that desire. The Appellants stated in their pleadings that they have exercised acts of ownership over the land by farming on it and letting it out for farming purposes. It is their case too that the Respondent’s action is statute barred as the cause of action arose in 1972 when the Respondent’s mother died. By way of counterclaim, the Appellants sought a declaration that female children do not inherit farmlands; a declaration that the Respondent whose father is of Aniru-Sayin clan though

was married to the Respondent’s mother of Anis-Bi clan, cannot inherit the farmland in Anis-Bi clan; a declaration that the Appellants are the lawful heirs of the disputed farmland, same having been bequeathed to them by Danmaigona who inherited it from Kuchanku; a declaration that the acts of the Respondent in harassing and intimidating the Appellants, their agents and tenants, constitute acts of trespass; and an order of perpetual injunction restraining the Respondent his servants, agents and or representatives and anyone claiming through him from further acts of trespass.

After hearing both parties, the Learned trial Judge M.L. Bello J, held that he did not think that the action was statute barred. He also held that it was only the 1st defendant (1st Appellant here) that gave evidence that under Kahugu custom, female children do not inherit farmlands. The Learned trial Judge held that the evidence of the 1st defendant was not corroborated and that an elderly person who is knowledgeable about Kahugu custom of inheritance ought to have been called to give evidence about the existence of a custom that gives no right of inheritance of farmlands to a

female child. He held that the Appellants failed to prove Kahugu customary law which entitled them to own the land that belonged to Rejun and that Rejun had nothing to pass to the father of the Appellants via an alleged adoption relationship. The Learned trial Judge therefore found in favor of the Respondent and granted him his claims against the Appellants. Dissatisfied with the judgment, the Appellants filed a Notice of Appeal in which they complained against the judgment on several grounds. Briefs of Argument were filed and exchanged by the parties. The Appellants Brief was settled by. Emmanuel A. Okunola, Esq. It was filed on 10/11/2017. That of the Respondent was settled by Abubakar A. Ashat, Esq. It was filed on 19/12/17 but deemed filed on 7/3/17. The Appellants’ filed an Appellants Reply Brief. Same was filed on 17/1/18 but deemed filed on 7/3/19. The Appellants distilled the following four issues for determination in this appeal, viz:
1. Whether in view of the state of the pleadings filed and exchanged as well as the evidence adduced by the parties, the identity of the farmland was made an issue in this case;
2. Whether the

onus of proof was not on the Respondent who relied on native law and custom of Kahugu in seeking a declaration of title to the land in dispute in this case and whether he discharged the burden;
3. Whether the Learned trial Judge was not in error when he failed to properly and adequately evaluate the evidence adduced in this action before arriving at his decision;
4. Whether the action initiated by the Respondent in these proceedings is not statute barred by virtue of the Limitation Law of Kaduna State, 1991, in view of the pleadings and the evidence adduced in this matter; and
5. Whether the Respondent proved a better title to the land in dispute to entitle him to judgment in the action.

The Respondent also formulated five issues for determination. They are:
1. Whether the Respondent has established the Kahugu Customary law that says female children can inherit their late father’s land or whether the Appellant had established the Kahugu Customary law that female children cannot inherit their late father’s farmland and therefore entitled to succeed or have judgment in their favor in respect of their counterclaim.

Assuming but not conceding that the Respondent has failed to establish that under the Kahugu Customary law female children can inherit their late father’s farmland, whether the Appellants position that under the Kahugu customary law women cannot inherit farmland is not repugnant to natural justice, equity and good conscience;
3. Whether or not the customary law that tends to disinherit persons of their inheritance on the basis of gender is not unconstitutional and therefore void;
4. Assuming without conceding that under the Kahugu customary law, female children cannot inherit their late father’s farmland, assuming that the customary law which says women cannot inherit their father’s farmland is not repugnant to natural justice, equity and good conscience, and assuming that the said customary law which says that women cannot inherit their father’s farmland is not unconstitutional and therefore void, can the Appellants father Danmaigona who is not related to Rejun (father of the Respondent’s mother) at all, inherit him such that upon his death, the farmland in dispute devolved on the Appellants?
5. Whether the Respondent’s case is statute barred as

posited by the Appellants.

A careful look at issues 1-4 formulated by the Respondent shows that the issues are more of hypothetical questions and have no direct bearing on the grounds of appeal except for ground 4 which reads:
“The Learned trial Judge erred in law when after shifting the onus of proof of the custom of the Kahugu people that female children do not inherit farmland to the Appellants, he went further to hold that there is no corroboration of the evidence of the Appellants DW1 on this issue and as such the custom was not proved..”

How the above ground of appeal has given rise to all the questions raised in the Respondent’s formulated issues for determination is hard to understand. This is more so since the judgment of the lower Court is unstintingly in favor of the Respondent. It would have been understandable if the Respondent had filed a Respondent’s notice under Order 9 of the Court of Appeal Rules 2016 contending that the decision of the lower Court should be affirmed on grounds other than those relied upon by that Court, specifying the grounds of that contention. But that is not the case. The issues formulated by the

Respondent therefore appear to be rootless or in nimbus. Even if the issues for determination relate to ground 4 of the grounds of appeal, Issues 1-4 for determination from the said ground 4 proliferate. It is settled law that a party is not allowed to formulate more than one issue for determination out of a ground of appeal. This is the principle against proliferation of issues for determination. See AMODU V. COMMANDANT, POLICE COLLEGE, MAIDUGURI & ANOR (2009) LPELR-467 (SC) Respondent’s Learned Counsel having submitted issue 1-4 for determination out of only ground 4 of the grounds of appeal, the said issues 1-4 formulated by him are incompetent.
I will now proceed to consider the issues formulated by the Appellants’ Learned Counsel.

On issue 1 which is whether on the state of the pleadings filed and exchanged as well as the evidence adduced by the parties, the identity of the farmland was made an issue in this case, the Appellants’ Learned Counsel referred to the pleadings of the parties at the lower Court and argued that the parties and the Court are bound by the said pleadings. He cited AKANINWO V. NSIRIM (2008) ALL FWLR Part 410 p. 610 at

676; ALHASSAN V. ISHAKU (2017) ALL FWLR Part 866 p. 209 at 265. He referred in particular to the description of the land in dispute by the Respondent in paragraphs 5 and 6 of his Statement of Claim and the description of the land as given by the Appellants at paragraph 5 of their Statement of Defence. The description of the land in dispute by Appellants he contended, was admitted by the responded in his Reply to the Statement of Defence. Learned Counsel submitted that although the parties described the land in dispute differently, they were nonetheless in agreement with regard to the identity of the land in dispute. Since the parties were agreed on the identity of the land, he submitted that the onus of proving the identity of the land does not arise. Learned Counsel then referred to a passage in the judgment of the Learned trial Judge, which reads:
“The Plaintiff has led evidence to show that Rejin, his grandfather and Kuchanko were brothers and children of Jurumai Arsana. Rejin inherited the land in dispute while Kuchanko inherited another land. To my mind this explained why the boundaries of the land as claimed by the Plaintiff is different from

the one claimed by the defendant in their counterclaim.”

He submitted that the above passage is erroneous in view of the state of the pleadings and the evidence adduced by the parties. He contended that the land that both parties lay claim to is one and the same. He urged us to resolve the issue in the Appellants’ favor.

The Respondent’s Learned Counsel as can be seen from the Respondent’s Brief of Argument, did not respond to this issue. It seems to me that that the Appellants Learned Counsel is making much ado about nothing. The statement of the Learned trial Judge that reads: “to my mind this explained why the boundaries of the land as claimed by the Plaintiff is different from the one claimed by the defendant” speaks merely to the description of the land in dispute as stated by the parties and not to the identity of the disputed land. As regards the identity of the land in dispute, the Learned trial Judge had no difficulty about it. In the sentence preceding the one I just quoted, the mind of the Judge about the identity of the land in dispute is clearly revealed. Said the Learned trial Judge in that preceding sentence:
“The Plaintiff has

led evidence to show that Rejin, his grandfather and Kuchanko were brothers and children of Jurumai Arsana. Rejin inherited the land in dispute”.

The land in dispute was therefore clearly identified by the Learned trial Judge as the land inherited by Rejin.

Appellants Learned Counsel stated the law correctly when he submitted that different descriptions of land will not matter where the parties are agreed on the land in dispute. The law is indeed settled that it is immaterial that different names are ascribed to an area where a disputed land is located or that the land is called by different names as long as the parties are referring to the same parcel of land. See CHUKWUEKE & ANOR V. OKORONKWO & ORS (1999) LPELR-857 (SC); MAKANJUOLA V. BALOGUN (1989) 3 NWLR Part 108 p. 192 at 204 and AROMIRE & ORS V. AWOYEMI (1972) 1 ALL NLR Part 1.P. 101 at P.113. Again as rightly pointed out by the Appellants Counsel, the parties are ad idem about the identity of the land in dispute. As I have pointed out, the Learned trial Judge was also very clear about the land in dispute and his Judgment related to that land and none other. The argument of

Learned Counsel on issue one is a mere storm in a teacup.

The Appellants’ Learned Counsel argued issues 2, 3 and 5 together. These issues are concerned with whether the onus of proof as regards the Kahugu native law and custom was not on the Respondent; the evaluation of evidence by the trial Judge; and whether the Respondent proved a better title to the disputed land. Learned Counsel referred to paragraph 3 of the Respondent’s reply to the Appellants counterclaim where he pleaded in reply to paragraphs 10, 14 and 16 of the Appellants’ statement of defence, that he would rely on the custom of the Kahugu people that a woman can inherit her father’s farmland. Learned Counsel submitted that a party that makes a positive assertion as done by the Respondent, that a female can inherit her father’s farmland, has the onus of proving that assertion. He contended that the Appellants assertion on a female inheriting her father’s farmland is a negative assertion. Learned Counsel submitted that Customary Law is required to be proved through witnesses that have personal knowledge of the customary law in question and that it is desirable that a person other than the

one asserting the custom should prove it. It was submitted that it was only the Respondent who gave evidence on the existence of the customary law in issue in his statement on oath made in response to the Appellants pleadings in their Statement of Defence. He argued that the Respondent did not subpoena any Elder or traditional title holder to establish the existence of such a custom. He argued that the Learned trial Judge was wrong when he held that the onus was on the Appellants to prove the existence of such a custom. He submitted that the assertion of the existence of such a custom by the Respondent was a positive one and that the Respondent failed to discharge the burden on him to prove it. Turning to the case of the Appellants, he submitted that the Appellants proved at the lower Court that they were in possession of the disputed land. It was argued that none of the witnesses of the Respondent gave evidence that Busulmi, the Respondent’s mother who was married to a man from another clan, can come back to her clan to inherit her late father’s farmland. It was submitted that although PW1 and PW2 gave evidence that the Respondent’s mother exercised

acts of ownership by having her agents Kadiri and Dabo farm on the land, the said Kadiri and Dabo were never called to testify. We were urged to invoke the provision of Section 167 (d) of the Evidence Act since the Respondent did not call the said Kadiri and Dabo to testify. We were also urged that the Learned trial Judge did not properly evaluate the evidence before him and thereby arrived at a perverse decision. It was submitted that the failure of the trial Judge to evaluate the evidence before him also extended to his finding that the boundaries of the land as claimed by the Appellant and the Respondent are different and also to his finding that the action was not statute barred. Let me state that in considering issue one I have addressed the question of the descriptions of the land in issue. Let me also say that the issue of whether the Respondent’s action was statute barred or not is the subject of issue 4 in this appeal and will therefore be robustly examined when that issue is considered in this Judgment.

Now it is trite law that parties and indeed the Court are bound by the pleadings of the parties. A quick look at the Statement of Claim

of the Respondent shows clearly that his claim simpliciter is that his mother Busulmi inherited the farmland in dispute from her father Rejun. The Respondent in his Statement of Claim never made an issue of female children inheriting farmlands that belonged to their father. It was the Appellants that made it an issue with large of it in their Statement of Defence and Counterclaim. A quick reference to the Appellants Statement of Defence and counterclaim reveals a voracious and vociferous pleading on the issue of female children not inheriting farmlands according to the native law and of the Kahugu people. Here are the relevant pleadings.
Paragraph 10:
“Defendants’ father Danmaigona inherited the farmland left behind by Kuchanku and neither Gabariya the daughter of Kuchanku nor her son Maigizo Bawandodo and the grandson Luka Maigizo ever laid claim to the said farmland because they all understood the custom of Kahugu people that female children do not inherit farmland and as such could not have laid claim to the farmland left behind by their maternal grandfather Kuchanku as they respected custom”
Paragraph 14
“Before and after her

marriage to the clan of AniruSayin and to the time of her death in 1997, Busulmi never owned the farmland in dispute as she knew and accepted the custom of the Kahugu people that female children cannot and do not inherit farmland and this was particularly so in her own case having left her clan of Ania-Bi and married into the clan of AniruSayin which is the clan of the Plaintiff’s father”
Paragraph 16
“Defendants aver that inheritance of farmland in their community is patrilineal in nature and not matrilineal- a child inherits through the father and not through the mother; and a female child does not inherit farmland. Accordingly, the children of Busulmi from her marriage into a different clan can only inherit from their paternal parent- their father (Dananyi whom they spelt Daniyi) and not from/through their mother Busulmi.”
Paragraph 19
“Defendants plead in response to paragraph 26 of the Statement of Claim that Busulmi the mother of the Plaintiff who died in 1997 never at anytime laid claim to the farmland as she sufficiently understood that the custom of the Kahugu people does not allow her as a female child to inherit farmland

and/or lay such claim.”
Paragraph 27 (1)
“A declaration that under the custom and tradition of the people of Kahugu District of Piriga Chiefdom of Lere Local Government Council of Kaduna State, female children do not inherit farmlands and the Plaintiffs being children of Busulmi a female child who died in 1997, could not have and did not inherit the piece/parcel of farmland left behind by Kuchanku (her uncle) who had in accordance with the same custom and tradition inherited the farmland from Rejun his brother and the father of Busulmi.”
From the above pleadings it can be seen that it is the Appellants who insisted that the Respondent’s mother Busulmi being a female, could not and did not, under the custom of the Kahugu people, inherit the farmland that belonged to her father. The fact of the existence of a custom that precludes a woman from inheriting farmland that belonged to her father is one therefore, that the Appellants had a burden to prove since that is their case. See Section 131 (2) of the Evidence Act, 2011. Further, by Section 132 of the Evidence Act, the burden to prove it is on the Appellants as it is they who would fail

if no evidence at all were given on either side. It is therefore futile for the Appellant’s Learned Counsel to have argued that the burden of proving the existence of the custom was on the Respondent on account of the Respondent’s pleading in paragraph 3 of his Reply to the Statement of Defence and counterclaim. The said Respondent’s pleading, I must emphasis, was in reply to the Appellant’s counterclaim. It is the law that a counterclaim is a cross action and subject to the same rules of Court as regards pleadings. See DABUP V. KOLO (1993) LPELR-905 (SC). The Appellants by their pleadings reproduced above, had the burden of proving their case that a female child cannot inherit the farmland of her father. It is where they have led evidence in discharge of that burden that the burden to prove the contrary will shift to the Respondent. See Section 133 (2) of the Evidence Act. The Appellants failed to discharge the burden on them to prove that a female child under Kahugu custom cannot inherit farmland that belonged to her father. Let me reiterate that the burden of proving the custom was on the Appellant’s and not on the Respondent to discharge.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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As regarding whether the Learned trial Judge properly evaluated the evidence before him, it is clear from his Judgment that the Learned trial Judge painstakingly reviewed the evidence of the three witnesses called by the Respondent and the four called by the Appellants. He also carefully considered the submissions of Learned Counsel of both parties. After weighing the evidence, he came to the conclusion that the farmland in dispute belonged to Rejun, the father of Busulmi, the mother of the Respondent and his siblings. His words at p. 154- 155 of the printed Record.
“The Plaintiff has shown that it was the land in dispute that the Defendants did enter into and not the one their father Danmaigona has gotten from Kuchanku whom they stated has adopted their father. There is no break in the claim of possession of the land from Jarumai Arsana to Rejin to Busulmi and then to the Plaintiff and his siblings. There is nowhere the Plaintiff has claimed that female children do not inherit their father’s farmlands. This they say is according to Kahugu custom. It is the Defendant that should call evidence to support their stance in their bid to prove Kahugu custom

in respect of inheritance of the landed property absolutely by a female child of the parents… Out of the 4 DW’s only the 1st Defendant gave evidence of the Kahugu custom as to female children not inheriting farmlands of their parents. The uncorroborated evidence of the person who asserts the custom is, in my mind, not sufficient. The Defendants should have called an elderly person who is versed in the alleged Kahugu custom on inheritance by a female. This will color their own Ipse dixit. In short, the Defendants have failed to prove Kahugu Customary Law which entitled them to own the landed property of Rejin also. Rejin has nothing to pass to the Defendants’ father via an alleged adoption relationship.”

The Learned trial Judge as can be seen from the above quote, did a proper evaluation of the evidence before him. I cannot fault his evaluation of the evidence. His conclusion that the Appellants failed to prove the Kahugu Customary law that entities them to the land in dispute is right. Giving that customary law of a community is something that the community itself regards as their law, it stands to reason that proof of it will be far more

credible where it is not merely the evidence of the person that asserts the existence of that customary law that is before the Court. Customary Law being a mirror of accepted usage as stated by Bairamian, FJ in the case of OWONIYI V. OMOTOSHO (1961) 1 ALL NLR 304; (1961) 2 SCNLR 57, in my view, its accepted usage which makes it law, is best established by a credible witness, preferably not a party in the case. A witness who gives such evidence and is a party in the case, more often than not, in my view, would give evidence that is self-serving. Considering that the Learned trial Judge accepted that the Respondent was able to trace his title to the land to the original founder, I cannot also fault the fact that Judgment was given in favor of the Respondent. Issues 2, 3 and 5 are resolved against the Appellants.

On issue 4 which is whether the Respondent’s action is not statute barred by virtue of the Limitation Law of Kaduna State, the Appellants’ Learned Counsel submitted that the Appellants in paragraphs 24, 25 and 26 of their statement of defense pleaded that the claim of the Respondent is statute barred by Section 4 of the Limitation Law Cap 89, Laws of Kaduna State.

He submitted that considering that a period of 19 years had elapsed between the time of the death of the Respondent’s mother in 1997 and the commencement of the action against the Appellants, the time for the commencement of the action had extinguished. He submitted that the time to commence the action extinguished in 2007. It was contended that the Respondent did not contest the Appellants’ pleadings that the action was statute barred in his Reply to the Appellants Statement of Defence and Counterclaim. He urged that the Respondent has therefore admitted that the action was statute barred. He relied on the case of ADELEKE V. ASERIFE (1986) 3 NWLR Part 30 P.575 at P.560. Admitted facts he further submitted, require no further proof. He cited the case of OLALE V. EKWELENDU (1989) 4 NWLR Part 115 P. 326. Learned Counsel submitted that in order to determine whether an action is statute barred, all that is required is that the Writ of Summons and the Statement of Claim be examined to know when the cause of action commenced and then compare that period with the date in the Writ of Summons. He cited EGBE V. ADEFARASIN (1987) 1 NWLR Part 47 p.1 at 26;

C.B.N. V AMAO (2007) ALL FWLR Part 351 p. 1490 at 1526. Learned Counsel submitted that by Section 4 of the Limitation Law of Kaduna State “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 persons through whom he claims, to that person”. Learned Counsel contended that the Respondent in paragraph 27 of his Statement of Claim averred that upon the death of Busulmi, the Respondent sought to take over the possession of the disputed farmland but he was resisted by the Appellants. He contended that the cause of action arose when the Appellants resisted the taking over of the land by the Respondent upon the death of Busulmi in 1997. Considering that the action was filed on 11/4/2016, that is, almost 19 years after the cause of action accrued, the action was statute barred. Learned Counsel also relied on Section 5 (2) of the Kaduna State Limitation Law and contended that by its provision an action to recover the land of a deceased person who was in possession or entitled to the possession of the land at the date of his death shall

be deemed to have accrued on the date of his death. It was submitted that by a community reading of Section 4 and Section 5 (2) of the Kaduna State Limitation Law, the Respondent’s action was statute barred. It was contended that the Learned trial Judge was in error when he held that the cause of action arose in 2015 and not in 1997 when Busulmi died as he did not advert his mind to the pleadings and evidence before him.

In his argument in response on this issue, the Respondent’s Learned Counsel submitted that in determining whether a case is statute barred, resort is made to the Statement of Claim. He referred to paragraphs 24-28 of the Statement of Claim and submitted that they show that the Appellants, particularly the 1st Appellant, entered into the land in dispute in 2015 through his agents. It was submitted that the Appellants Learned Counsel tried feebly to show that the Appellants entered the land when the Respondent’s mother died. He submitted that the year of death of the Respondent’s mother is not in evidence and cannot be gathered from the address of the Appellant’s Learned Counsel.

Now, in contending on when the cause of action arose,

the Appellants’ Learned Counsel referred to paragraphs 24, 25, and 26 of the Appellants Statement of Defence. His submission is that from those paragraphs of the Statement of Defence, the cause of action arose in 1997 when the Respondent’s mother died. That was the wrong approach. The law is very clear as even the Appellants Learned Counsel acknowledged in his latter submission and it is that in order to determine when the cause of action arose, what is to be looked at is the Writ of Summons and the Statement of Claim. A cause of action is defined as the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. See JULIUS BERGER (NIG) PLC V OMOGUI (2001) LPELR- 1638 (SC). The Respondent in his Statement of Claim clearly stated in paragraph 24 that the Appellants entered into the land ‘last year’. He also pleaded in paragraph 25 of the Statement of Claim that none of the Defendants i.e. the Appellants here, or their agents, had ever worked on the land in dispute except ‘last year’ when they trespassed into the land. He made similar averments in paragraph 27 of the Statement of

Claim. In paragraph 28 of the Statement of Claim he averred that he challenged the Appellants’ act in entering the land and that when he sought to restrain the Appellants and their agents from cultivating the land, the 1st Appellant filed a case of Criminal Trespass against him at the Chief Magistrate’s Court Saminaka. Reference to ‘last year’ in the Respondent’s pleadings could only have meant the year 2015. Therefore, the factual situation which gave the Respondent a right to judicial relief was the Appellants entry into the land in 2015. The Appellants’ case is that the cause of action arose when the Respondent’s mother died in 1997. The Appellants’ apparently hinged their contention on paragraph 27 of the statement of Claim where the Respondent pleaded as follows: “The Plaintiff avers that upon the death of Busulmi the Plaintiff sought to take possession but he was resisted by the Defendants and last year when the Defendants trespassed therein.” One cannot read into that pleading what is not contained therein. The Respondent’s averment that he sought to take possession of the land when Busulmi died but was resisted by the Appellants does not mean that

the resistance of the Appellants succeeded as to raise a cause of action. For emphasis, the Respondent never averred that the Appellants succeeded in their resistance. From the same paragraph 27 of the Statement of Claim, it was averred that the Appellants succeeded in trespassing into the land ‘last year’ i.e. in 2015. From the averments in the Statement of Claim, the cause of action arose in 2015 as rightly held by the Learned trial Judge.

Consequently, the action against the Appellants in 2016 was not caught by the Limitation Law of Kaduna State.
The Learned trial Judge was right to have so held. Issue 5 is also resolved against the Appellants. The result is that the appeal lacks merit. It is hereby dismissed.
N50,000 costs is awarded in favor of the Respondent and against the Appellants.

HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, Obietonbara O. Daniel-Kalio, J.C.A. I agree with the reasons therein and the conclusion that the appeal lacks merit and should be dismissed. I therefore dismiss the appeal and subscribe the order as to

costs.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I read in draft the judgment of my learned brother O.O. DANIEL-KALIO JCA, where the facts and issues in contention have been distinctly set out and resolved. I agree with my learned brother that this appeal lacks merit and also dismiss it, with the costs ordered.

Appearances:

EMMANUEL A. OKUNOLA, ESQ.
For Appellant(s)

ABUBAKAR A. ASHAT, ESQ. For Respondent(s)