DR. (MRS.) A.I. ONYEASO & ORS v. MR. MIKE IGWENMA & ANOR (2019)

DR. (MRS.) A.I. ONYEASO & ORS v. MR. MIKE IGWENMA & ANOR

(2019)LCN/13079(CA)

In The Court of Appeal of Nigeria

On Friday, the 12th day of April, 2019

CA/OW/53/2009

RATIO

TRESPASS: DEFINITION AND NATURE

Indeed, the position of law expressed in the case cited above, would appear to have been earlier stated by Nnaemeka-Agu, JSC; in the case of ADESANYA V. OTUEWU (1993) LPELR ? 146 (SC) in these words: –

LAND LAW: WHO HAS ASSESS TO VALID POSSESSION OF LAND
The position of the law as has been stated from ancient times as it were, is that proper or valid possession can only be ascribed to the party with better title. See the cases of ODUBEKO V. FOWLER (1993) LPELR ? 2235 (SC) and LAWSON V. AJIBULU (1997) 6 NWLR (Pt. 507) 14 amongst others. PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

LIMITATION OF ACTION: WHEN TIME BEGINS TO RUN
Suffice, it to say that the case ofMILITARY ADMINISTRATOR OF EKITI STATE V. ALADEYELU (2007) All FWLR (Pt. 369) 1195, (2007) 14 NWLR (Pt. 1055) 619, (2007) LPELR ? 1875(SC) eloquently decides amongst others that it is on the doing of an act or making an omission in respect of which an action could be initiated, that time under a limitation law starts to run. Indeed, see also the case of COLE V. IGI CO. LTD (2013) LPELR ? 22746 (CA) where this Court in dwelling on ?cause of action? per Oseji, JCA; stated thus: –
A cause of action is a factual situation that entitles one person to obtain a remedy in Court form another person. xxx PER AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

1. DR. (MRS.) A.I. ONYEASO
2. DR. NDUCHE ONYEASO
3. DR. OBINNA ONYEASO
(For themselves and as representing the beneficiaries of the Estate of Late Dr. Onyemara Nduche Onyeaso) Appellant(s)

AND

1. MR. MIKE IGWENMA
2. UGWUNAGBO LOCAL GOVERNMENT Respondent(s)

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment delivered on 6/3/2007 by the High Court of Abia State presided over by Hon. Justice L. Abai (hereafter to be simply referred to as the lower Court and learned trial Judge respectively).

The Appellants herein, as Plaintiffs before the lower Court initiated the instant action by a writ of summons dated 15/7/2005 but which issued on 26/7/2005. In the statement of claim filed in the case, the Appellants claim against the Defendants (Respondents herein) as follows:-
a) A declaration that the plaintiffs are entitled to the statutory certificate of occupancy over the land known as OVOROUBA EGBELU situate at OHABIAM in Aba South Local Government Area covered by a survey plan No MG/772/75 attached to the lease agreement registered as No 18, Page 18 in volume 79 dated 28/8/76 at the Lands Registry Umuahia Abia State.
b) A declaration that the following documents:-
i. Customary Right of Occupancy dated 27/10/1993 issued to the 1st defendant by the Obioma Ngwa Local Government (now Ugwunagbo

Local Government) registered as No. 89 at page 89 Volume 9 of the Lands Registry at Umuahia.
ii. Interim development permission dated 28/2/1994 issued to the 1st defendant by the Obioma Ngwa Local Government (now Ugwunagbo Local Government) and
iii. Notice of intention to revoke Right of Occupancy dated 17/12/2003 issued to the 1st defendant by the 2nd defendant are all null and void ab initio and cannot stand in the face of the plaintiffs earlier acquired interest in the land in dispute, the directives ofthe Abia State Government in the white paper on the panel of inquiry into the acquisition of land in Asa-Nnentu by Obioma Ngwa Local Government Council between 1988 and 1993, and that neither the then Obioma Ngwa Local Government Council nor the Ugwunagbo has the right and powers to issue these document (sic) to the 1st defendant as the land indispute is situate in Aba South Local Government Area.
c) An order of Court setting aside the documents itemized in paragraphs 30(b)(i)-(iii) ofthis statement of claim as being null, void and of no effect whatsoever.
d) An order of the Court on the defendants to quit or vacate forthwith the above stated piece of land

now in dispute.
e) The sum of N50,000,000.00 (Fifty Million Naira) being general damages for trespass into that piece of land known as OVOROUBA EGBELU situate at OHABIAM in Aba South Local Government Area property of the plaintiffs.
f) A perpetual injunction restraining the defendants their agents, servants, workers, representatives, privies and grantees from further trespassing and interfering with the plaintiffs right to the ownership and use of the land in dispute in any manner whatsoever inconsistent with the plaintiffs right to same.?

On being served with the statement of claim, the Respondents filed two separate notices of preliminary objection. The first notice of preliminary objection filed by the 2nd Respondent was supported by an affidavit and is on pages 53-56 of the record. The Appellants filed their counter affidavit in opposition to the 2nd Respondent?s notice of preliminary objection. See pages 61-63 of the record. In its notice of preliminary objection, the 2nd Respondent challenged the jurisdiction of the lower Court to entertain the instant suit on the ground of its incompetence and its un-maintainability.

The grounds of objection are: –
?1. That this Suit No. A/310/2005 is caught up by the limitation law.
2. By virtue of paragraph 1 above this Honourable Court lacks the requisite jurisdiction to entertain this Suit No. A/310/2005 as same is incurable defective.?

The second notice of preliminary objection filed by the 1st Respondent was not accompanied by an affidavit. See pages 66-67 of the record. Therein, this Respondent disclosed that it was challenging the competence of the instant suit on the following grounds: –
?1. That this case is caught up by the limitation law (sic) of Abia State.
2. That by virtue of paragraph 13 of the Plaintiffs? statement of claim this suit is statute barred, therefore this Honourable Court lacks jurisdiction to entertain same.?

On 7/8/2006, the 2nd Respondent moved his preliminary objection and in concluding the proceedings for the day, the lower Court recorded thus: –
?Court: The matter is adjourned to 19/10/2006 for submission by Mr. Odoemena and reply a date agreed upon by all counsel.?

By or before 19/10/2006, the notice of the preliminary objection filed by the 1st Respondent was before the lower Court and the lower Court informed the parties that it would now take the two preliminary objections filed by the Respondents together. This is because, in the view of the lower Court, the two preliminary objections are basically the same and that Appellants? counsel can thereafter reply to the same together, and this learned senior counsel to the Appellants, did. Equally, the Respondents delivered their respective replies on point of law on 6/11/2006 and the matter was adjourned till 22/1/2007 for ruling. However, it was on 6/3/2007 that the lower Court eventually delivered what it styled Ruling/Judgment. In its Ruling/Judgment, the lower Court after delving copiously into the statement of claim before it, stated thus: –
?The gravamen of the submission of counsel representing the defendant is that the action against the defendants is statute barred. Where a statute of limitation prescribes the period within an action must be commenced legal proceedings cannot be properly or validly instituted after the expiration of that period. Where an action is statute barred a plaintiff

who might otherwise have had a cause of action loses the right to enforce it by judicial process because the ….. (sic) period of time laid down by the limitation law for instituting the action has elapsed. See xxxxx
In order to determine the period of limitation the Court will look 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 that on which the writ was filed. This can be done without taking oral evidence. If the time on the writ is beyond the period allowed by the limitation law then the action is statute barred. See xxxxxxx. A cause of action is every fact which is material to be proved to entitle the plaintiff to succeed or all those things necessary to give a right to relief in law or equity. See xxxxx. The period of limitation begins to run from the date the cause of action accrued.
I will begin with the submission of learned counsel representing the 2nd defendant Mr. Max Iheukwu Njoku. S. 137 of the Local Government Law of Abia State Cap 25 provides:
?Where it is intended to commence a

suit against any local government for any act done in pursuance or execution or intended execution of any law or any public duty or authority or in respect of any alleged duty or authority or in respect of any alleged neglect or default in the execution of any such law, duty or authority, such suit shall not be instituted or commenced unless it is commenced or instituted within six months next after the act neglect or default complained of, or in the case of a continuance of damage or injury within six months next after the ceasing thereof?.
A look at the statement of claim shows that the act complained of against the 2nd defendant is the issuance of the certificate of occupancy dated 27th October, 1993 to the 1st defendant in the year 1993, an interim development permit in 1994 and notice of revocation dated 17th February 2003. See paragraph 37 of the statement of claim. The cause of action in respect of the 2nd defendant therefore clearly first arose or accrued in 1993, or at best 1999 (sic) and 2003. The suit was filed on 19th July 2005 as can be seen from the writ of summons clearly outside the period of 6 months provided for in

S. 137 of the Local Government Law. It was argued by the learned senior advocate that S. 137 refers to acts done in respect of public duties or under the law. I agree with him. It is clear that the grant of a customary right of occupancy by the Local Government is clearly part of the duties of the 2nd defendant under the Land Use Act so also the issuance of notice of revocation and are clearly done in pursuance or execution of the law and I am satisfied that the action of the plaintiffs against the 2nd defendant is statute barred having been brought outside the period provided for in the Local Government Law.
Section 3 of the Limitation Law of Abia State Cap 24 relied upon by learned counsel for the 1st defendant provides:
?No action shall be brought by any person to recover any land after the expiration of ten years from the date on when the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.?
A look at the writ of summons and statement of claim show that the plaintiffs claim several reliefs against the 1st defendant, these include a declaration that the plaintiff are entitled

to the statutory right of occupancy over the land in dispute called ?Ovorouba Egbelu?, an order that the defendants quit or vacate forthwith the above stated piece of land, the sum of N50,000,000.00 (Fifty Million Naira) damages for trespass and a perpetual injunction. See paragraph 37 of the statement of claim. From the statement of claim 1st defendant entered the land in dispute in 1994. See paragraph 13 of the statement of claim wherein the plaintiffs state as follows:
?The 1st defendant was known to the 1st plaintiff in 1994 when he unlawfully entered into the land in dispute by erecting a structure from foundation to window level.’
In paragraph 23 they however appear to contradict this averment as in that paragraph it is stated he first entered the land in 1995. According to the plaintiffs in their statement of claim when the then Obioma Ngwa Local Government entered into the land in dispute between 1988 and 1993 the Abia State Government constituted a panel of inquiry to look into the matter one of the recommendations of that panel was that the boundaries be re-established between Aba South Local Government and the

then Obioma Ngwa Local government area, and that 1st defendant forfeit the land in dispute, it is clear he did not do so as in paragraph 20 of the statement of claim the plaintiffs aver to the fact that ?the 1st defendant has till date not complied with the direction of the government white paper?. Apart from writing to the 1st defendant the plaintiffs took no further action against him. See paragraph (sic) 15 and 25 of the statement of claim.
It is the contention of Chief Amaechi Nwaiwu SAN that the act of trespass by the 1st defendant was recurring or continuous as the defendant entered the land in 1994, 1995 and 2003 and each act gives rise to a new cause of action. It is well known that time begins to run for the purpose of the limitation law when there is in existence a person who can sue and another who can be sued and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed. In the instant case it is clear that it is the entry of the 1st defendant into the land in 1994 and his erection of a structure up to window level thereon that clearly gave rise to the cause of action, the right to file

the claim. There is nothing in the statement of claim to show that the 1st defendant entered the land in 2003 as suggested by the learned Senior Advocate except an averment in paragraph 29 to the effect that the plaintiffs discovered that the 1st defendant filed an ex-parte application dated 24/2/2003 which ex-parte application was never disposed of, this in my view is not enough to show or support the contention that the 1st defendant re-entered the land in 2003. In construing the provision of the limitation law as regards land what is needed for the limitation period to commence is absence of possession by the plaintiff and possession acquired by the defendant the right accrues once possession has been lost to the other party. See xxxxxxx
From the averments in the statement of claim it is clear that the plaintiffs lost all interest in the land until sometime in 2005 when accordingly to them they received information that the 1st defendant had filed an ex-parte application at the High Court, Osisioma Judicial Division seeking to restrain them from entering the land. See paragraph 27 of the statement of claim. The reason given by

the 1st plaintiff for her inaction is that she was busy training her children. See paragraph 26 of the statement of claim. The failure of the plaintiffs to take positive steps appears to have resulted in the 1st defendant being in full possession of the land from 1994 to 2005. Being satisfied that the cause of action accrued in the year 1994 when the 1st defendant first entered the land and erected a structure thereon and after comparing this with the date when the suit was filed namely 26th July, 2005 it is clear that the plaintiff suit was clearly filed outside the ten year limitation period and I so hold the effect is that the plaintiffs action for title becomes extinguished together with the other reliefs and can no longer be maintained. This suit is therefore dismissed.?

Being dissatisfied with the entire decision of the lower Court, the Appellants initiated the instant appeal by lodging at the registry of the lower Court on 17/4/2007 a notice of appeal dated 19/3/2007. The said notice contains 5 grounds of appeal and the said grounds together with their respective particulars read thus: –

?GROUNDS OF APPEAL

GROUND ONE: ERROR OF MIXED LAW AND FACT

The learned Judge at the Court below erred in mixed law and fact by finding that the 1st defendant has been in possession of the land from 1994 to 2005 when he held thus:

The failure of the plaintiffs to take positive steps appear to have resulted in the 1st Defendant being in full possession of the land from 1994 – 2005.”

PARTICULARS

i. For purposes of deciding the Defendant?s? application in limine, the entirety of the plaintiffs? statement of claim must be taken as granted or admitted.

ii. The finding complained of is most perverse as it overlooked the pleadings in the statement of claim that after the Abia State Government?s white Paper, the 1st Defendant ceased to enter the land in dispute (vide paragraph 23 of the statement of claim).

iii. The plaintiffs learnt of the 1st defendant?s entry into the land again in 2005 when on investigation they discovered building under construction, concrete fence and electric Nepa installation on the land in dispute (vide paragraph (sic) 27 and 28 of the statement of claim)

iv. Plaintiff also discovered that by the 1st Defendant?s own showing the entry and intrusion were at the earliest made in 2003 (vide paragraph 29 of the statement of claim).
iv. The finding equally over looked the plaintiffs? pleading that they have been in possession of the land since 1976, farming same without any challenge from any body including the 1st defendant (vide paragraph 24 of statement of claim)
GROUND TWO: ERROR OF MIXED LAW AND FACT
The learned Judge at the Court below erred in mixed law and fact and consequently came to a perverse decision in finding that the 1st defendant did not re-enter the land in dispute in 2003 when he held thus:
There is nothing in the statement of claim to show that the 1st defendant entered the land in 2003 as suggested by the learned Senior Advocate except an averment in paragraph 29 to the effect that the plaintiffs discovered that the 1st defendant filed an ex-parte application dated 24/2/2003 which ex-parte application was never disposed of, this in my view is not enough to show or support the contention that the 1st defendant re-entered that land in 2003.”

PARTICULARS
i. For the purposes of deciding an application brought to be disposed in limine, the entire averment (sic) in the statement of claim is taken as admitted.
ii. The stage of objection in limine is not a forum for ascription of weight to facts in the statement of claim, as the Court below appeared to do in this matter.
iii. Paragraph 29 of the statement of claim, contrary to the learned Judge?s finding, is not the only place in the statement of claim where the 1st defendant?s re-entry is averred. That paragraph was assessed in isolation of other paragraphs of the statement of claim.
iv. The Court glossed over very salient pleading in paragraph 23 of the statement of claim that after the Government White Paper, the 1st Defendant ceased to enter the land in dispute. Instructive also are paragraph (sic) 18, 20 & 21 of the statement of claim in the run-up to paragraph 23.
v. Paragraphs 27, 28 & 29 of the statement of claim read together clearly establish prima facie that at the worst there was re-entry in 2003.
GROUND THREE: ERROR OF MIXED LAW AND FACT
The learned trial Judge at the Court below erred

in mixed law and fact when he held that the cause of action accrued in the year 1994 and that the plaintiffs have been out of possession of the land in dispute since 1994.
PARTICULARS
i. The plaintiffs have pleaded that they have been in possession of the land since 1976, farming the land without any challenge from anybody including the 1st defendant (vide paragraph 24 of the statement of claim).
ii. The plaintiffs have pleaded clearly in paragraph (sic) 18, 20, 21, 22, & 23 of the statement of claim that the 1st defendant having been challenged by the plaintiffs? predecessor-in-title in 1993 and 1994 and upon the publication of the Abia State Government White Paper, that the 1st defendant ceased to enter the land in dispute.
iii. At the stage of entertaining objection to suit on ground of being time barred in limine, it is not the business of Court to ascribe probative value to averments in the statement of claim, but to take them as granted.
iv. On the 1st defendant ceasing his trespass and entry into the land in dispute upon being challenged (see paragraph 15 of the statement of claim) and upon the publication of the White

Paper that cause of action abated.
GROUND FOUR: ERROR OF MIXED LAW AND FACT
The learned trial Judge at the Court below erred in mixed law and fact when he failed to appreciate that the property in dispute being a Deceased Estate and the plaintiffs being beneficiaries to the said Estate, time begins to run against them upon the interest in the property falling on them.
PARTICULARS
i. The property in dispute belonged to Late Dr. Onyemara Nduche Onyeaso and forms part of his Estate as copiously pleaded in paragraph (sic) 4-8 of the statement of claim.
ii. Paragraph 9 of the statement of claim pleaded that upon the death of Dr. Onyemara Nduche Onyeaso and pursuant to his will the probate Registrar approved certain persons as executors to the Deceased Estate.
iii. Paragraphs 10, 11 & 12 of the statement of claim pleaded that the said Executors to the Deceased Estate were by letter dated 22/3/2000 discharged from the Estate by the probate registrar. And the Deceased Estate was formally released to the plaintiffs via letter by the Executors? solicitors dated 15th day of April, 2000.

iv. The interest in the Deceased?s property consequently fell on the plaintiffs, the beneficiaries on the 15th day of April, 2000.
v. The learned trial Judge reckoned in oversight of S.17 of the Limitation Law of Abia State.
GROUND FIVE: OMNIBUS
The judgment of the learned Judge at the Court below is perverse and against the weight of evidence.?

The reliefs which the Appellants seek from this Court as contained in the notice of appeal are that: (i) the judgment of the Court below be set aside; (ii) the ?defendants? motions? (sic) be dismissed; and (iii) the plaintiffs? case be heard.

?The appeal was entertained 17/1/2019 and learned counsel, F.C. Ohajuruin urging the Court to allow the same, adopted and relied on the Appellants? brief of argument dated 5/2/2010 and filed on 18/2/2010 but deemed to have been properly filed and served on the Respondents on 23/4/2013. The 1st and 2nd Respondents respectively, never took any step in defending the appeal. They filed no briefs of argument at any time after the Appellants? brief of argument was deemed as having been properly filed and served on them.

Though learned counsel E.U. Iheanacho(holding brief for C.L. Iroka) appeared for the 2nd Respondent at the hearing of the appeal, he had nothing to urge to the Court as the said 2nd Respondent filed no brief of argument; while the 1st Respondent who equally filed no brief of argument was not present in Court or represented by counsel.

In their brief of argument, the Appellants formulated three issues for determination in the instant appeal. The grounds of appeal contained in the notice of appeal have been re-produced hereinbefore; and the issues which the Appellants presumably formulated from the grounds of appeal read thus: –
(i) Whether the beneficiaries of an estate con (sic: can) sue on behalf of the estate before a vesting assent is granted (Ground 4).
(ii) When does time for the purposes of limitation of actions, being to run in action for relief from the consequences of mistake
(iii) Whether the trial judge was correct when he held that the cause of action in this suit arose or accrued in 1994

I used the word presumably above most advisedly. This is because, I am of the considered

view that the Appellants by expressly tying or linking only their issue 1 to ground 4 of the grounds in the notice of appeal, have inferentially shown that the other issues formulated by them, i.e. issues 2 and 3 respectively, were not distilled from the other grounds of appeal or at the best, that they cannot make up their mind decisively as to the grounds of appeal from which their issues 2 and 3 respectively, were distilled. The situation therefore comfortably leaves it open for the Court to formulate the issue or issues it considers appropriate for the determination of the appeal. However, before doing this, I consider it expedient to observe that issue 2 formulated by the Appellants in any event, clearly does not arise from any of the grounds of appeal in the notice of appeal. This is against the backdrop of the fact that ?time for the purposes of limitation of actions being (sic: begin) to run in an action for relief from consequences of mistake ? was never an issue raised by the Appellants expressly or obliquely in the counter affidavit that they filed in response to the supporting affidavit of the preliminary objection of the 2nd Respondent

(the decision in respect of which there is no appeal as I will shortly demonstrate), and/or in the submissions of the Appellants before the lower Court in respect of the preliminary objections entertained by the said Court. Therefore, the issue never called for consideration by the lower Court in its ruling/judgment and a fortiori, any pronouncement. In my considered view, Appellants? issue 2 in the circumstances, not only amount to a fresh issue not founded on any ground of appeal but one that can only be validly raised for determination in the instant appeal after the Appellants had first procured the leave of this Court to raise and argue the same as a fresh issue. Seethe cases of STATOIL (NIG) LTD V. INDUCON (NIG) LTD (2018) LPELR ? 44387(SC); CGG (NIG) LTD V. AMINU (2015) LPELR ? 24463 (SC); and ONWUKA V. ONONUJU (2009) LPELR ? 2721 (SC) amongst many others. Accordingly, Appellants? issue 2 must be and is hereby struck out as it is glaringly incompetent.

Against the backdrop of all that has been said hereinbefore, the appeal in my considered view can conveniently be determined on the issue as to ?whether or not the

lower Court can be said to be wrong in its decision that the Appellants? suit as it relates to the 1st Respondent is statute barred given its finding that the cause of action against the said 1st Respondent arose or accrued in 1994.” I have restricted or limited the issue for determination, to the decision of the lower Court vis–vis the 1st Respondent as I have not seen any ground of appeal that has brought to the fore any complaint against the decision of the lower Court as it relates to the 2nd Respondent. The grounds of appeal as re-produced hereinbefore resonate with complaints the Appellants have against the decision of the lower Court as it relates to the 1st Respondent. It would appear that the Appellants lost sight of the basis upon which the lower Court found their action against the 2nd Respondent to be statute barred. It is that the Appellants? action as it relates to the 2nd Respondent is statute barred because it was brought outside the period of limitation of action provided for or stipulated for instituting an action against the said 2nd Respondent in the Local Government Law of Abia State. It would also appear that

the Appellants given their grounds of appeal vis–vis the reliefs which they seek from this Court have conveniently forgotten the immutable position of the law to be that a finding/decision of a lower Court not appealed against remains correct and valid; hence an appellate Court has no competence to touch the same. See the cases of SKYE BANK V. AKINPELU (2010) LPELR ? 3073(SC); and DURBAR HOTEL PLC V. ITYOUGH (2016) LPELR ? 42560 (SC) amongst many others.

Now to the issue formulated for the determination of the appeal, i.e. ?whether or not the lower Court can be said to be wrong in its decision that the Appellants? suit as it relates to the 1st Respondent is statute barred given its finding that the cause of action against the said 1st Respondent arose or accrued in 1994

Dwelling on the correctness or otherwise of the finding by the lower Court that the cause of action in the instant case accrued or arose in 1994, the Appellants having cited many decided cases in respect of the meaning or definition of cause of action and how an action that is statute barred is determined, in the main submitted that the instant

action which was commenced by a writ of summons filed on 26/7/2005, is not statute barred. This is against the backdrop of the averments in paragraphs 13 and 23 of the statement of claim vis–vis the provisions of Section 3 of the Abia State Limitation Law Cap 24 (hereafter to be simply referred to as ?Cap. 24?). The Appellants submitted to the effect that the holding or finding of the lower Court on pages 88-89 of the record that the cause of action first accrued in 1994 as pleaded by them (Appellants) in paragraph 13 of the statement of claim vis–vis the averment in paragraph 23 wherein it was disclosed that the 1st Respondent first entered the land, in dispute in 1995 is contradictory, and wrong. The Appellants accused the lower Court of unilaterally choosing or declaring that the initial entry into the land in dispute took place in 1994 as pleaded in paragraph 13 of the statement of claim instead of 1995 as pleaded in paragraph 23 of the same process. The Appellants submitted that the lower Court should have ordered the Respondents to file their statement of defence and to have proceeded to hearing after which it would have been

in a position to ascertain the actual date of initial entry into the land in dispute by the 1st Respondent. That the lower Court lacked the competence to pick between 1994 instead of 1995 as the date of the first entry into the land in dispute by the 1st Respondent without evidence or hearing from them (Appellants). It is the stance of the Appellants that if the lower Court had chosen 1995 as the date of the first entry by the 1st Respondent into the land in dispute, their case would not have been found to be caught by the ten-year limitation period. That their suit was therefore not statute barred as the initial entry took place in 1995 and was initiated in 2005. This Court was urged to hold this to be the position.

It is also the stance of the Appellants to the effect that the 1st Respondent continually or repeatedly broke into the land in dispute on diverse dates and reference was made to paragraphs 13, 16, 20, 23, 27, 28, and 29 of the statement of claim. They accused the lower Court of reading the paragraphs of the statement in isolation instead of reading all of them together and that the lower Court was wrong in law, in doing this.

The Appellants submitted that the lower Court should have ordered the Respondents to file their defence since it found it difficult (difficulty which the lower Court in my considered view, never expressed in its judgment) to ascertain the actual date the cause of action accrued. That they (Appellants) brought this suit because the Respondents were acting contrary to the Abia State Government white paper concerning the land in dispute, and that this position is borne out by the averments in paragraphs 23, 27, 28, 29, 30, 31, 23m (sic: 32),33 and 34 of the statement of claim. Stating that the cause of action in this suit arose in 2005 when they (Appellants) discovered that the Respondents were acting contrary to the white paper as evident from paragraphs 27-31 of the statement of claim, the Appellants again submitted that the lower Court was wrong when it held that the cause of action accrued in 1994 only. The Appellants urged the Court to resolve this issue in their favour.

Still on when the cause of action in the instant suit arose, and on the premise that they are beneficiaries of an estate, the Appellants submitted that they could not sue on behalf of the

estate before a vesting assent was granted to them and in support of this position, reference was made to the averments in paragraphs 9 and 12 of the statement of claim; and Sections 4 and 39 of the Administration of Estate Law Cap 10 of the Laws of Abia State of Nigeria 1991- 2000 Vol. 2, 1998-2000 which came into effect on the 21/5/1999 (hereafter to be simply referred to as Cap. 10 if need be). Stating that it is trite law that the beneficiaries of an estate cannot sue on behalf of the estate without a vesting assent, and having set out the provisions of Sections 4 and 39 of Cap. 10, and also citing cases which they considered relevant, the Appellants not only submitted that they lacked the locus standi to have sued on behalf of the estate while the estate was in the hands of the executors but also that as the legal estate vested in them (Appellants) as beneficiaries of the estate on the 15/4/2000; it was from the said date when they became competent to sue, that time for the purposes of limitation began to run against them. This is because it was from the said 15/4/2000 they became aware of the cause of action in this suit. That the lower

Court was therefore wrong when it held that the Appellants became aware of this suit prior to 15/4/2000. It is their stance that the instant action was not statute barred as held by the said Court and that the action was therefore not caught by the ten (10) years limitation period. That as far as they (Appellants) are concerned, the 10 years limitation period for recovery of land provided by Section 3 of Cap. 10 started running from 15/4/2000 and not from 1994 as held by the lower Court. The Appellants urged this Court to resolve this issue in their favour.

I am of the considered view that it is expedient to re-produce the averments in the paragraphs of the statement of claim which the Appellants have accused the lower Court of not reading together, in coming to the erroneous finding that their cause of action arose in 1994 and that their action is statute barred. The averments read thus: –
Paragraph 9
Pursuant to the directives given by the late Dr. Onyemara Nduche Onyeaso in his last Will a letter of administration dated 18/1/1982 was issued by the then Probate Registrar of Imo State (now Abia State) and the following

were appointed as executors of the estate of the head of family: –
i. xxxxx
ii. Mr. John Onwumere Onyeaso
iii. Mr. Richard Nduche Onyeaso
iv. xxxxxx
the letter of Administration or copy thereof is hereby pleaded and will be relied upon at the trial by the plaintiffs.
Paragraph 12
On 15th April, 2000 the solicitors to the Executors of the Estate of the head of family of the Plaintiffs CHIKEZIE O. A. AHANONU & ASSOCIATES formally released the estate to the plaintiffs through a letter captioned RELEASE OF LATE DR. O.N. ONYEASO?S ESTATE. IN THE LETTER THE LAND IN DISPUTE WAS LISTED AS No. 7. The letter of release dated 15th April, 2000 or a copy thereof is hereby pleaded and shall be relied upon at the trial.
Paragraph 13
The 1st defendant was known to the 1st plaintiff in 1994 when he unlawfully entered into the land in dispute by erecting a structure from foundation to window level.
Paragraph 16
Sometime between 1988 and 1993, the Chairman of the then Obioma Ngwa Local Government

entered into the area known as Asa-Nnetu (sic) including the land in dispute by bulldozing through and destroying crops survey beacons belonging to: –
i) xxxx
ii) xxxx
iii) xxxx
iv) xxxx
all within Aba South Local Government Area.
Paragraph 20
The Abia State Government also accepted the panel?s recommendation that the 1st defendant who was re-allocated the land of late Dr. Onyemara Nduche Onyeaso by the Obioma Ngwa Local Government should quit the land immediately and pay adequate compensation to the Administrator?s (sic) of late Dr. Onyemara Nduche Onyeaso ?s estate. The Abia State Government further directed that the 1st defendant should forfeit the land in dispute which should revert to the Administrators of late Dr. Onyemara Nduche Onyeaso ?s Estate and that Obioma Ngwa Local Government should re-allocate another piece of land to the 1st defendant. The 1st defendant has till date not

complied with the directives of the Government White Paper as stated above.
Paragraph 23
During the lifetime of the head of family of the plaintiffs the 1st defendant did not enter the land in dispute knowing it belonged to the plaintiffs. However, the 1st defendant first entered the land in dispute in 1995 without the consent and approval of the administrators to the estate. After the report, accepted recommendations and directives of the Abia State Government White Paper, the 1st defendant temporarily ceased to enter into the land in dispute.
Paragraph 27
Sometime in January 2005, the plaintiff received an information that the 1st defendant made an parte (sic) application to the High Court Osisioma Judicial Division seeking to restrain the first plaintiff from entering into the land in dispute.
Paragraph 28
The 1st Plaintiff then suspected some foul play on the part of the 1st defendant over the land in dispute. So she rushed to the land and with utmost disgust disbelief (sic) building under construction, concrete fence and NEPA installations all erected on the land in dispute.

Paragraph 29
?On further inquiry at the registry of the High Court Osisioma Judicial Division, the 1st Plaintiff obtained a certified true copy of the Ex-parte application dated 24/2/2003 by the 1st defendant seeking that the plaintiffs be restrained from disturbing the unlawful construction works being carried on by the 1st defendant on the land of the plaintiffs which is in dispute. There was no motion on notice filed thereafter and the Ex-parte application was never disposed off.
Paragraph 30
The 1st defendant in the Ex-parte application supported by an affidavit of urgency exhibited amongst others the following documents which he is parading as giving him title to the land of the plaintiffs which is in dispute: –
a) A Customary Right of Occupancy dated 27/10/1993 issued to the 1st defendant by the Obioma Ngwa Local Government.
b) Interim development permission dated 28/2/1994 issued to the 1st defendant by the Obioma Ngwa Local Government.
c) Notice of intention to revoke Right of Occupancy dated 17/12/2003 issued to the 1st defendant by the 2nd defendant.
Paragraph 31
?That by the Notice of intention to revoke the right of occupancy issued to the 1st defendant

by the 2nd defendant, it was clear to the Plaintiffs that the 2nd defendant had taken over the role played by the then Obioma Ngwa Local Government Council by issuing the first two documents in paragraph 32 and had empowered the 1st defendant to commit fresh acts of trespass on the land of the plaintiffs which is in dispute on or about 2003. The plaintiffs hereby pleads (sic) the certified true copy of the Ex-parte Motion with exhibits attached dated 25/2/2003 and the supporting affidavit of urgency all disclosing the documents referred to in paragraph 32 above among others, and shall rely on same at the trial. Notice is hereby given to the 1st defendant to produce same at the trial.
Paragraph 32
The Plaintiffs shall contend at the trial that all the documents being paraded by the 1st defendant including the customary right of occupancy, the interim development permission and the notice of intention to revoke right of occupancy are all void, ab initio and cannot stand in the face of plaintiffs earlier acquired interest and the Abia State Government directives in the White paper on the panel of inquiry into the acquisition of land in Asa-Nnentu by

Obioma Ngwa Local Government Council (now Ugwunagbo Local Government Council) between 1988 and 1993. Furthermore neither the then Obioma Ngwa Local Government Chairman nor the present 2nd defendant have any colour of right or power to issue customary right of occupancy to the 1st defendant in respect of the plaintiffs land in dispute which is situate in Aba South Local Government Area and not Ugwunagbo Local Government Area of Abia State. The Plaintiffs are entitled to the statutory right of occupancy in respect of the said land.
Paragraph 33
The Plaintiffs realized that it was the 1st defendant under the purported documents issued to him by the 2nd defendant that has been erecting all the structures on plaintiffs(sic) land in dispute.
Paragraph 34
By reason of the aforesaid, the plaintiffs have suffered loss and damage as a result of the trespass of the defendants into the plaintiffs land which is in dispute and the defendants ought to be restrained from further trespass to the said land.?

The Appellants expressly argued before the lower Court that the year the cause of action in the instant case arose could not be 1994, as it

was apparent from their case that their cause of action re-occurred or was renewed as it were, every time the 1st Respondent re-entered the land in dispute. The Appellants based their stance in this regard on the doctrine of continuing trespass. However, I cannot but note that the Appellants would appear not to have given pre-eminence to this stance in the instant appeal as it would appear from their arguments that have been highlighted hereinbefore that their present stance is that it was wrong of the lower Court to have unilaterally adopted 1994 (being the year the 1st Appellant discovered the unlawful entry into the land in dispute by the 1st Respondent) as the date their cause of action accrued. This is in the light of the averment in paragraph 23 of the statement of claim which also disclosed that the said 1st Respondent committed his act of trespass in 1995 and also as they (Appellants) only acquired the locus standi to sue as beneficiaries of the estate of the deceased Dr. O.N. Onyeaso (hereafter to be simply referred to as the ?deceased?) on 15/4/2000; being the date that they were granted a vesting assent by the executors of the estate of the

said deceased. In other words, the stance of the Appellants would now appear to be that their cause of action arose in 1995 as pleaded in paragraph 23 of the statement of claim and never arose in 1994 despite the averment in paragraph 13 of the same process, or on 15/4/2000 when they acquired the locus standi to sue as beneficiaries of the estate of the deceased.
It would appear to be settled law that the doctrine of continuing trespass renders the law of limitation of actions, inapplicable in appropriate situations. In this regard see the case of OBUEKE V. NNAMCHI (2012) LPELR ? 7810 (SC) wherein Onnoghen, JSC; (as he then was) said thus: –
?It is settled law that trespass, however long it remains in existence with reference to a portion/parcel of land, does not ripen or translate to title to the land in question ? see xxxxxx. Also settled is the principle of continuity of trespass or successive acts of trespass constituting separate and independent actionable wrongs in trespass. It follows that where there is continuity of acts of trespass, successive actions can be maintained by a plaintiff from time to time in respect of the

continuance of trespass ? see xxxx. It is from a combination of the above principles that emerged the doctrine of continuing trespass giving rise to actions from day to day as long as the wrong lasts. In such a situation/circumstance an action for trespass cannot be defeated by a plea of limitation of time xxx?
It would however appear that the Appellants conveniently lost sight of the fact that given the case which they set up in the statement of claim and the reliefs which they seek therein, the doctrine of continuing trespass in determining when their cause of action arose or accrued as contended by them before the lower Court, and ?somehow? in the instant appeal, is unfounded and is not valid in law. This is because the Appellants? case is not one in trespass simpliciter. Their claim in trespass is clearly hinged on, or predicated on their claim to title or ownership to the land in dispute and which they portrayed as being in their possession and of the 1st Respondent at diverse periods but on which land the said 1st Respondent had erected an uncompleted structure in 1994.

The settled position of the law is to the effect that a plaintiff who claims damages for trespass as well as injunction puts his title to the land in dispute in issue. See the case of OLANIYAN V. FATOKI (2013) LPELR ? 20936 (SC) wherein Ngwuta, JSC; stated thus:-
On the facts before the two Courts below, a claim for damages for trespass and injunction raised the issue of title to the land in dispute. It is the person in possession or who has a legal right to possession of a piece of land that can sue for damages for trespass and injunction xxxx. Also when a claim for damages for trespass is combined with a claim for injunction as in this case title to the land is in issue and the issue of title has to be resolved before the claims for damages for trespass and injunction could be determined. xxxx. He succeeds on proving that he has a better title to the land than the defendant. xxx.
Indeed, the position of law expressed in the case cited above, would appear to have been earlier stated by Nnaemeka-Agu, JSC; in the case of ADESANYA V. OTUEWU (1993) LPELR ? 146 (SC) in these words: –

It is true that as a matter of legal theory, every unlawful entry or unauthorized entry on land in the possession of another is trespass for which an action in damages lies, even if no actual damages is done to the land or any fixture in it. So where a person alleges bare possession and proves interference with it there is an actionable trespass. But also our law imputes possession to title. A person who has title can maintain an action in trespass against only (sic: any) one save one who can prove a better title. So, in a case such as this in which title was put in issue, the decisive question is who proves a better title: xxxxxxxx?
?The fact that title to the land in dispute is inexorably in issue in the case set up by the Appellants in the statement of claim and that the Appellants by putting their title to the land in dispute in issue are seeking to re-possess the said land in dispute, is also borne out by their case which goes to show that the 1st Respondent is also in adverse possession of the land in dispute by virtue of documents which they (Appellants) are seeking that the lower Court should set aside and the fact that the said 1st Respondent by

the year 1994 had an uncompleted structure on the land in dispute. The position of the law as has been stated from ancient times as it were, is that proper or valid possession can only be ascribed to the party with better title. See the cases of ODUBEKO V. FOWLER (1993) LPELR ? 2235 (SC) and LAWSON V. AJIBULU (1997) 6 NWLR (Pt. 507) 14 amongst others. Suffice it to say that both learned counsel to the 1st and 2nd Respondents respectively, would appear to have clearly appreciated the position of the law that the doctrine of continuing trespass has no application for the purpose of determining when the cause of action accrued or arose in the instant case, given their replies on point of law at the lower Court as recorded on pages 75 and 76 of the record of appeal. In this regard, learned counsel for the 1st Respondent in particular is recorded on page 75 of the record of appeal, having submitted thus: – ?On the issue of continuing trespass we urge the Court to distinguish the authority cited by learned SAN from the facts of this case because this case, is based on title to land while the case cited deals with damages for an act of trespass.

In this case, title is in issue. The Limitation Law Cap. 24 of Abia State is the only Law regulating the time an action for recovery of land accrues not trespass.”
Suffice, it to say that the case ofMILITARY ADMINISTRATOR OF EKITI STATE V. ALADEYELU (2007) All FWLR (Pt. 369) 1195, (2007) 14 NWLR (Pt. 1055) 619, (2007) LPELR ? 1875(SC) eloquently decides amongst others that it is on the doing of an act or making an omission in respect of which an action could be initiated, that time under a limitation law starts to run. Indeed, see also the case of COLE V. IGI CO. LTD (2013) LPELR ? 22746 (CA) where this Court in dwelling on ?cause of action? per Oseji, JCA; stated thus: –
?A cause of action is a factual situation that entitles one person to obtain a remedy in Court form another person. xxx
I am therefore inclined to agree with the submission of the learned counsel for the 5th Respondent that it was the alleged adverse possession or trespass by the 5th Respondent as pleaded in paragraphs 18 and 19 of the amended statement of claim that triggered or created the factual situation giving rise

to a cause of action and as such the learned trial judge was right to have found that the cause of action occurred in 1984.
In Black’s Law Dictionary 9th Edition at Page 62, adverse possession is defined as “the enjoyment of real property with a claim of right when that enjoyment is opposed to another person’s claim and is continuous, exclusive, hostile, open and notorious. xxxx Adverse Possession occurs when certain acts are done on the Land which are inconsistent with the claimants enjoyment of the land for the purpose for which he intended to use it. xxxxx It must be added here for emphasis that knowledge of the true owner of land, of the adverse possession of another person is not material under the Limitation Law unlike in the equitable defence of laches and acquiescence. xxxxxxxxxxxx?
The doctrine of continuing trespass therefore cannot be properly invoked in the instant case in which the 1st Appellant specifically averred that she came to know the 1st Respondent in 1994, when he unlawfully entered into the land in dispute by erecting a structure

from foundation to window level; and only to later aver that the 1st Respondent never entered the land in dispute during the lifetime of the deceased as the said 1st Respondent knew that the land in dispute belonged to the Appellants and that the 1st Respondent first entered the land in dispute in 1995 without the consent and approval of the administrators of the estate. It is in the light of these averments that the Appellants have submitted that the lower Court ought to have ordered the Respondents to file their statement of defence (as if co-defendants must in law file a joint statement of defence) for the purpose of resolving what the Appellants have termed ?contradictory averments? by calling oral evidence. I cannot but say that I see no contradiction in the averments in paragraphs 13 and 23 of the statement of claim as the Appellants have argued and which required the filing of a statement of defence by the 1st Respondent and calling of oral evidence before the lower Court could properly make a finding as to when the Appellants? cause of action arose. This is because in the said paragraph 13 the averment related to what the 1st Appellant

discovered in 1994; while the averment in paragraph 23 is in respect of what the 1st Respondent did in relation to the land in dispute as it concerns or concerned the executors of the estate of the deceased without the consent or approval of the said executors. Indeed, see the case of KARO V. SHAMAKI (2018) LPELR ? 46422 (CA) wherein this Court per Oho, JCA; stated thus: –
?xxx It is however clear from the Appellants own showing at paragraph 16 of his statement of claim as in page 6 of the records of Appeal that the Appellant was dispossessed of the parcel of land in 2002 and that the 1st Respondent has by then gone into possession, and was issued with a certificate of occupancy. I am unable to agree that this is a proper case for which the doctrine of continuing trespass can be applied as the cause of action arose in 2002 when the Appellant became aware that he has been dispossessed. I am unable to also agree that the dispossession of the Appellant was done continuously.?

In any event, as far back as 1996, the Supreme Court dealt at great length with

?limitation law? in the case of AJIBONA V. KOLAWOLE (1996) LPELR ? 299 (SC). Re-produced hereunder is what his Lordship Ogwuegbu, JSC; stated in the case under reference and it goes thus: –
?I am of the same view with Ayoola, J.C.A. The defendant has been in actual possession of this land for over twelve years and the plaintiff has been out of possession for the same period of time. xxx
Assuming that this parcel of land was originally the plaintiff?s, which I do not concede, it is clear to me that she lost it by the uninterrupted possession of the defendant. When one looks at the whole circumstances, and the unquestioned enjoyment of the land by the defendant by doing what I have referred to above on the land, I have no doubt that the defendant has been in possession to the exclusion of the plaintiff.
On the issue of knowledge by the plaintiff of the defendant?s adverse possession for time to start running, I will refer to Sections 17, 19 and 21 of the Limitation Law Cap 118 Laws of Lagos State. They provide:<br< p=””

</br<

?xxxxxx?
On the reading of the provisions of the Limitation Law of Lagos State as a whole, they do not merely deny the right of action. They completely extinguish an existing right at the expiration of twelve years front the accrual of the right of action. xxxx
On a cumulative reading of the entire provisions of the Limitation Law and in particular, Sections 16, 17, 19 and 21 thereof, knowledge on the part of the plaintiff is not a condition precedent. The knowledge of the plaintiff is immaterial. The words of the Limitation Law of Lagos State are clear and unambiguous and must therefore be accorded their ordinary meaning.
Apart from fraudulent concealment of right of action which itself furnishes a cause of action, knowledge cannot be said to be relevant. In order to constitute such fraudulent concealment as would, in equity, take a

case out of the law of limitation, it is not enough that there should be merely tortious act unknown to the injured party or the enjoyment of property without title while the rightful owner is ignorant of his right; there has to be some abuse of a confidential position some intention at imposition, or some deliberate concealment of facts. To enter a land without the knowledge of the owner does not constitute concealed fraud. Under the Limitation law, the right to land is extinguished, in the absence of fraud, after discontinuance of possession for the period enacted in the law, although the owner so discontinuing possession was unaware that adverse possession had been taken. See Rains V Buxton (1880) 14 Ch. D. 537. The question of fraudulent concealment did not arise in this case.
The Limitation Law and all laws of this description ought to receive beneficial construction. They should be construed liberally but not in such a way as to read into them words not intended by the law makers as the majority decision of the Court below portrayed. 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 plaintiff?s knowledge of such adverse possession for time to start to run, or the defendant?s presence on the land is to import a strange condition into the Limitation Law.xxxx
I therefore come to the conclusion that there has been a complete dispossession of the plaintiff by the defendant during the statutory period. The Court below in its majority view was with greatest respect, in error in holding that the Limitation Law did not extinguish the title of the plaintiff, Ayoola, J.C.A. was right in holding that it did.?
I am of the considered view that the Appellants cannot properly argue (and indeed they have not so argued) that the Limitation Law of Abia State is not applicable to the instant case. This is because their principal claim or relief which is clearly analogous to one for declaration of title to land is to re-gain possession of the land in dispute on which the 1st Respondent prior to the institution of the case already has a building under construction. And this in my considered view, is in apparent exercise of his (1st Respondent?s)

right to ownership of the said land. See the case ofKARO V. SHAMAKI (supra). This is more so as the Appellants have not pleaded fraudulent concealment in any guise or manner regarding the 1st Respondent?s presence on the land in dispute. The position of the Appellants in paragraph 23 of the statement of claim which disclosed that it was in 1995 that the executors of the deceased (in contradistinction to the beneficiaries or Appellants) knew of the unhidden or unmasked incursion or presence of the 1st Respondent on the land in dispute without the consent or approval of the said executors, is in my considered view of no moment in determining when the cause of action in the instant case arose. This is because the instant action is between the Appellants qua beneficiaries of the estate of the deceased and not between the executors of the estate of the deceased and the 1st Respondent and the cause of action as disclosed by the Appellants clearly arose in 1994 given the fact that the said 1st Respondent was known to have entered the land in dispute and started building thereon by the 1st Appellant (one of the beneficiaries) in the said year ? 1994. See the case of KARO V. SHAMAKI (supra).

The Appellants in my considered view and being very aware too, of the fact that their action was glaringly statute barred given the knowledge or notice they had in 1994 of the incursion of the 1st Respondent on the land in dispute through the 1st Appellant, simply want to log on to or hook up to the principles relating to the accrual of cause of action vis a vis accrual of right of action as it relates to of the executors of the deceased, particularly given their argument that they did not acquire the locus standi to sue in respect of the land in dispute until 15/4/2000 when the vesting assent in respect of the estate of the deceased was granted to them. The Appellants in my considered view would appear not to realise that given the averments in the statement of claim, it is clear that at all material times after the death of the deceased and prior to the executors of the deceased granting them (Appellants) the vesting assent in respect of the land in dispute, the said land had always been part of the real properties of the deceased bequeathed to them (beneficiaries) and that there had always been in existence

someone (i.e. the executors in whom the legal title to the estate resided) with the right of action to protect the interest of the beneficiaries in the land in dispute, particularly as the cause of action in relation to it (i.e. the incursion of the 1st Respondent thereon in 1994 as averred in paragraph 13 of the statement of claim was not depicted as being one of fraudulent concealment). It therefore goes without saying that the instant action having not been instituted by the executors of the deceased person who are different from the Appellants qua beneficiaries as per the decision of this Court in the case of UNOKA V. AGILI (2007) 43 WRN 168 and the two other cases referred to therein and cited by the Appellants, year 1995 as pleaded by the Appellants in paragraph 23 of the statement of claim as when the 1st Respondent entered on the land in dispute without the consent and approval of the said executors cannot be taken as the date the cause of action in the instant case arose. This is against the backdrop of the position of the law to the effect that to enter a land without the knowledge or awareness of the owner (in the instant case, the executors) did not

constitute concealed fraud and that the fact that the owner of the land was unaware of the adverse possession of his land cannot avail him. See the cases of AJIBONA V. KOLAWOLE and COLE V. IGI CO. LTD(both supra). In other words, the said executors though legally different from the Appellants (notwithstanding the fact that some members of the Appellants? family are amongst the said executors), were the ones that had the legal competence to have sued for the protection of the land in dispute by challenging the incursion of the 1st Respondent thereon as at 1994 as pleaded by the Appellants in paragraph 13 of the statement of claim irrespective of averment in paragraph 23 of the same process that it was in 1995 that the 1st Respondent entered the land without the consent and approval of the executors.
?I have painstakingly read the cases relied upon by the Appellants in support of their position that they lacked the locus standi to have instituted an action against the 1st Respondent until the executors vested the same in them by the assent given them on 15/4/2000 and that therefore the right of action against the 1st Respondent accrued on 15/4/2000 and I

cannot but say that the Appellants are clearly under a serious misapprehension of the position of the law as enunciated in the said cases vis a vis the instant case which is clearly not to protect their devise as beneficiaries from destruction or annihilation as it were by the 1st Respondent, but one to re-possess the land in dispute which belongs to them or has been released to them as their possession by virtue of the vesting assent made or given them by the executors and which assent related back to the death of the deceased. See Section 39(2) of Cap. 48 ? Administration of Estate Law of Abia State. The vesting assent given the Appellants by the executors of the deceased and which relates back to the death of the deceased, simply substituted or replaced them as legal owners of the land in dispute as it were, in place of the executors in which the legal title to the estate of the deceased including the land in dispute hitherto resided. In my considered view, it therefore cannot be said that what cloaked or vested the Appellants with locus standi to sue in connection with the land in dispute was the vesting assent from the date it was made but

their ownership of the said land in dispute which relates back to the death of the deceased. Law Reports are replete with the cases in which the difference between cause of action and right of action have been eloquently enunciated. In this regard, see the cases of EGBE V. ADEFARASIN (1987) LPELR ? 1032 (SC) and ADEKOYA V. FHA (2008) LPELR ? 105 (SC) amongst many others. What is clear from the authorities is that it is cause of action that gives birth to right of action or is the forerunner of right of action. Therefore, the Appellants who from the statement of claim, claim to be the owners as it were of the land in dispute and having averred that it was in the year 1994 that the incursion of the 1st Respondent unto the land which was theirs from the death of the deceased occurred, in my considered view cannot be heard to argue that the cause of action in the instant case arose at any other time and particularly on 15/4/2000 when they claimed to have acquired the locus standi to sue. This is because there was never a vacuum regarding the legal title to the land in dispute and the fact that the persons (executors) who had the legal authority to have

initially sued in respect of the 1st Respondent?s incursion on the land in dispute did not do so at anytime before they made a vesting assent in respect of the land in dispute to the Appellants did not create a new cause of action in favour of the Appellants and against the said 1st Respondent. All that I am saying could be better appreciated if the situation had been that the incursion to the land in dispute occurred 10 years before the Appellants got the vesting assent in respect of the land in dispute, without the executors suing to challenge the presence of the 1st Respondent thereon. Can the Appellants in such circumstance sue for the purpose of asserting their ownership to the land in dispute thereafter? Surely, they cannot as there is no way they could have gone around the fact that their right of action in respect of the land in dispute owners had expired ten year after it first accrued to some person through whom they claim. Indeed, what the Appellants ought to have done in the instant case was to have caused the executors to immediately exercise their power of protection of their interest in the land in dispute once the 1st Appellant discovered

the incursion of the 1st Respondent thereon in 1994, and definitely before the expiration of ten years from the date of the incursion; and the executors in the instant case having not taken any action in that regard before making a vesting assent in favour of the Appellants, it behoved them to have exercised their right of action as the owners of the land in dispute in respect of the incursion of the 1st Respondent in 1994, within the ten years period prescribed by the Limitation Act. And this they did not do.
Flowing from all that has been said and in answer to the issue formulated for the determination of the appeal is that I am of the considered view that the lower Court was very correct when it found that the cause of action of the Appellants arose in 1994 and that the said action was statute barred as at the time it was instituted. This is because, I am of the considered view that it has been sufficiently demonstrated that the Appellants who instituted the instant action as the legal owners of the land in dispute (in contradistinction to being beneficiaries under the Will of the deceased then being administered by the executors) pleaded only the year

1994 as the year the cause of action in the case which they have brought in their own right, accrued.

In the final analysis, the instant appeal in my considered view is devoid of merit and it fails. Consequently, the instant appeal is dismissed and the decision of the lower Court appealed against is affirmed.
I make no order as to costs as neither of the Respondents participated meaningfully at the hearing of the appeal.

RAPHAEL CHIKWE AGBO, J.C.A.: I agree.

ITA GEORGE MBABA, J.C.A.: I agree

Appearances:

F. C. OhajuruFor Appellant(s)

1st Respondent absent and not represented by counsel.

E.U. Iheanacho (holding brief for C.L. Iroka) for 2nd RespondentFor Respondent(s)

Appearances

F. C. OhajuruFor Appellant

AND

1st Respondent absent and not represented by counsel.

E.U. Iheanacho (holding brief for C.L. Iroka) for 2nd RespondentFor Respondent

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