IKHURE v. COLE & ANOR (2021)

IKHURE v. COLE & ANOR

(2021)LCN/15135(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Wednesday, May 05, 2021

CA/B/140/2013

Before Our Lordships

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

PASTOR GREG IKHURE APPELANT(S)

And

1. MS. RUTH OSAMUDIAME COLE 2. MR. OMORUYI EDEBIRI RESPONDENT(S)

RATIO

EFFECT OF LIMITATION LAW ON THE RIGHT OF ACTION OF A PLAINTIFF

Where a law prescribes a period of time for instituting an action, proceedings cannot be instituted after that period. The limitation law removes the right of action of a Plaintiff, his right of enforcement and the right to judicial relief leaving him a bare and empty cause of action which he cannot enforce in a Court of law. See AREMO II v. ADEKANYE (2004) 13 NWLR (PT. 891) 572 and AJAYI v. ADEBIYI (2012) 11 NWLR (PT. 1310) 37. PER JOSEPH EYO EKANEM, J.C.A.

ESSENCE OF LIMITATION LAW

The essence of limitation law is that legal right to enforce an action is not a perpetual right but a right generally limited by statute. The justification for it includes:- (i) that long dormant claims have more of cruelty than justice in them; (ii) that Defendant might have lost the evidence to disprove a stale claim; and (iii) that persons with good causes of action should pursue them within reasonable time – ADEJUMO v. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252. PER JOSEPH EYO EKANEM, J.C.A.

WHEN DOES TIME BEGINS TO RUN FOR THE PURPOSE OF LIMITATION LAW

Time begins to run for the purpose of limitation law from the date of the accrual of the cause of action. – ARAMO II v. ADEKANYE supra and AJAYI v. ADEBIYI supra. PER JOSEPH EYO EKANEM, J.C.A.

HOW TO DETERMINE WHETHER A SUIT IS STATUTE-BARRED

To determine if a suit is statute-barred, it has been settled that the Court is to determine:- (i) what the cause of action is; (ii) when it accrued; and (iii) when it became statute barred. This is done by examining in details the writ of summons and statement of claim only without the need to call oral evidence. By this, it would be easy to find out when the wrong was committed which gave the claimant his cause of complaint. That date is compared with the date when the writ of summons was filed. If the writ was filed outside the period provided for in the limitation law, the claim is statute-barred. See EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1, WOHERAM v. EMEREUWA (2004) 120 LRCN 4752, and ABUBAKAR v. MICHELIN MOTOR SERVICES LTD (NO. 1) (2020) 12 NWLR (PT. 1739) 503. PER JOSEPH EYO EKANEM, J.C.A.

MEANING OF CAUSE OF ACTION

A cause of action was defined in SAVAGE v. UWECHIA (1972) 1 ALL NLR 257 as the fact or combination of facts which give rise to a right to sue and it consists of two elements – (i) the wrongful act of the Defendant which gives the Plaintiff his cause of complaint and (ii) the consequent damage. PER JOSEPH EYO EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering The Leading Judgment): This appeal is against the judgment of High Court of Edo State, holden at Benin City, delivered on 20/12/2012 in Suit No. B/85/2009 by E. IKPONMWONBA, J. In the judgment, the trial Court found the case of the appellant not proved and that the action is statute-barred. It accordingly dismissed the same.

Aggrieved by the decision, the appellant lodged an appeal against the same by the means of a notice of appeal filed on 3/1/2013 which incorporates four grounds of appeal.

The facts of the case leading to the appeal are that it is common ground that the house in dispute in this matter, No. 31 Sokponba Road, Benin City, was owned by the late Pa. Enehizena Agbonghae. He died intestate on 22/6/1964. It is also common ground that the deceased married Madam Airienbuwa Enehizena. It is the case of the appellant that the said Madam Airienbuwa bore only three children for the deceased, namely: Mrs. Iyayi Ikhure, (appellant’s mother), Mrs. Rachael Agharese Izekor (original 1st Plaintiff) and Mrs. Patricia E. Sansa; that Madam Airienbuwa before the marriage had a

daughter, Mrs. Comfort Imuetinyan Cole for another man, namely: Oriokpayo Okundayo. Mrs. Comfort Imuetinyan Cole was the mother of 1st Respondent. The Appellant contended that the three children of the deceased had been in lawful possession of the house; that they saw an affidavit dated 12/3/2007 showing the sharing formula of the house by the daughter of Mrs. Comfort Imuetinyan Cole, laying claim to ownership of the house.

The Respondents contended that the union between the deceased and Madam Airienbuwa Enehizena produced four female children to wit: Mrs. Comfort Imuetinyan Cole and the other children earlier mentioned; that Mrs. Comfort Imuetinyan Cole married Mr. Cole (the father of the 1st Respondent) who single handedly performed the burial rites of the deceased; that the other children (Iyayi, Rachael and Patricia) did not contribute “a dime” to the burial, that after the burial, the “Okaegbe”, Mr. Eguibor, purported to share the last two rooms of the house to Rachael and Patricia. The matter was taken to the palace of the Oba of Benin, His Royal Highness Akenzua II. His Royal Highness handed over title deeds of the house to Mrs. Comfort

Imuetinyan Cole, informing her that since she carried out the burial rites, she was entitled to inherit the house. It is their further position that His Royal Highness settled the issue of the paternity of Mrs. Comfort Imuetinyan Cole. The 1st Respondent contended that she and her sister having buried their mother, Comfort, according to Benin Native Law and Custom jointly inherited the house.

The appellant and his aunt, Mrs. Rachael Agharese Izekor (now deceased) claimed against the 1st appellant, her sister (Ms. Mercy Imuwahen Cole) and the 2nd Respondent as follows:-
“(a) A declaration that House No. 31, Sokponba Road, Benin City is the bonafide property of the Plaintiffs and that 1st Plaintiff being the only surviving daughter of Late Pa. ENEHIZENA AGBONGHAE is the only person entitle to the right of INHERITANCE to the estate of her late father situate, lying and being at No. 31 Sokponba Road, Benin City.
(b) A declaration that the 1st Plaintiff and the Defendants are only of the same mother but different father and the Defendant’s mother was only brought to the 1st Plaintiff father’s house after she was given birth to late Pa

Oriokpayo.
(c) All documents, photostat and original of house No. 31, Sokponba Road, in the possession of the Defendants should be given to the 1st Plaintiff and 2nd Plaintiff or be declared NULL and VOID and of NO EFFECT.
(d) An order of perpetual injunction restraining the Defendants or their servants, privies agents or any other persons from selling or doing anything with the property or house known as No. 31, Sokponba Road, Benin City”

The Respondents not only pleaded facts in their further amended statement of defence denying the claim, they also pleaded that the suit was caught by Section 6 (2) of the Limitation Law of Bendel State, 1976, as applicable to Edo State.

After taking evidence and counsel’s addresses, the trial Court found and concluded as I have already stated.

Pursuant to the rules of this Court, the appellant filed:-
i. Amended Appellant’s brief of argument on 3/4/2018 which was deemed duly filed and served on 5/3/2019; and
ii. A reply brief filed on 27/5/2015, deemed filed on 17/2/2021.
<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>

The Respondents, on the other hand, filed their brief on 6/1/2020 and the same was deemed filed on 17/2/2021.

At the hearing of the appeal on 17/2/2021, O. F. Asemokhai, Esq. for the Appellant adopted and relied on the briefs filed on behalf of the Appellant in urging the Court to allow the appeal.

T. E. Ulinfoh, Esq, for the Respondents adopted and relied on Respondents’ brief of argument in urging the Court to dismiss the appeal.

Appellant’s counsel, in his brief of argument, formulated the following issues for the determination of the appeal:
“(i) Whether in the light of the Appellant’s pleadings and the evidence on the printed records and submissions of Counsel, the learned trial Judge was right in reaching a conclusion that the action was statute barred and therefore dismissed the Appellant’s action. (This issue is covered by ground 2),
(ii) Whether or not from the printed records of proceedings the Appellant has discharged the onus of evidence upon him to prove that Imuentiyan is not the daughter of Pa Nehizena. (This issue is covered by ground 1)
(iii) Whether the lower Court properly evaluated the evidence in the case (covered by grounds 3 and 4).”

The Respondents’ counsel presented the following issues for the determination of the appeal:
“(i) Whether the learned trial Judge was right when he held that the Appellant’s suit was caught by Section 6 (2) of the Limitation Law of Bendel State 1976 as applicable to Edo State. Ground 2.
(ii) Whether the Appellant led sufficient cogent and credible evidence to entitle him to the reliefs sought before the lower Court, ground 1, 3 and 4 of the Grounds of Appeal.’

The two issues formulated by counsel for Respondents are more precise and succinct than the three issues distilled by Appellant’s counsel. I shall therefore be guided by the two issues in resolving this appeal.
(i) Whether the learned trial Judge was right when he held that Appellant’s suit was caught by Section 6 (2) of the Limitation Law of Bendel State.

Appellant’s counsel submitted that for the purpose of limitation law, time begins to run for the filing of an action when the cause of action arises and therefore time begins to run 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. He contended that

in the instant case, the accrual of the cause of action was not in 1964 when the deceased (Pa Nehizena) died but in 2007 when Exhibits A1 — A3 were sought to be acted upon in dealing with his estate by the Respondents. He stated that it was in 2007 that the said exhibits were discovered and that the Appellant acted timeously in initiating the proceedings. He relied on several authorities including MILITARY ADMINISTRATOR, EKITI STATE v. ALADEYELU (2010) 10 SCMLR 55 and AREMO II v. ADEKANYE (2004) 8 SCM 9. He finally submitted that the statute of limitation cannot apply in this case.

Respondents’ counsel referred to Section 6 (2) of the Limitation Law of Bendel State 1976 as applicable to Edo State and stated that the issue of limitation was raised in Respondents’ pleading. He argued that from the writ of summons and statement of claim, the claims of the Appellant are as to:-
(i) Who is entitled to inherit the estate of the late Pa Nehizena Agbonghae
(ii) Whether or not the Respondents are grandchildren of the late Pa Nehizena Agbonghae.

He referred to the evidence of the appellant to the effect that the mother of the 1st Respondent began to lay claim to the house in dispute in 1964 and that the issue of the paternity of the 1st Respondent’s mother came up in 1964 at the Palace of the Oba. It was his submission that the cause of action accrued in 1964 while the suit was filed in 2008. He emphasized that the cause of action arose in 1964 when the 1st Respondent’s mother took the issue of the ownership of the house to the palace of the Oba of Benin. He contended that the Appellant and the three sisters were aware that the 1st Respondent’s mother who claimed ownership of the house was given the title deeds thereof in 1964. He lamented that the four sisters and other persons who could give evidence in the suit had died, only for the Appellant to wake up to sue now.

RESOLUTION
Section 6 (2) of the Limitation Law of Bendel State 1976 as applicable to Edo State provides:-
“No action shall be brought by any other person to recover land after the expiration of 12 years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims to that person.”

The essence of limitation law is that legal right to enforce an action is not a perpetual right but a right generally limited by statute. The justification for it includes:-
(i) that long dormant claims have more of cruelty than justice in them;
(ii) that Defendant might have lost the evidence to disprove a stale claim; and
(iii) that persons with good causes of action should pursue them within reasonable time – ADEJUMO v. OLAWAIYE (2014) 12 NWLR (PT. 1421) 252.

Time begins to run for the purpose of limitation law from the date of the accrual of the cause of action. – ARAMO II v. ADEKANYE supra and AJAYI v. ADEBIYI supra.

To determine if a suit is statute-barred, it has been settled that the Court is to determine:-
(i) what the cause of action is;
(ii) when it accrued; and
(iii) when it became statute barred.

This is done by examining in details the writ of summons and statement of claim only without the need to call oral evidence. By this, it would be easy to find out when the wrong was committed which gave the claimant his cause of complaint. That date is compared with the date when the writ of summons was filed. If the writ was filed outside the period provided for in the limitation law, the claim is statute-barred. See EGBE v. ADEFARASIN (1987) 1 NWLR (PT. 47) 1, WOHERAM v. EMEREUWA (2004) 120 LRCN 4752, and ABUBAKAR v. MICHELIN MOTOR SERVICES LTD (NO. 1) (2020) 12 NWLR (PT. 1739) 503.

The issue of limitation in the instant matter was raised in paragraph 28 of the further amended statement of defence of the Respondents. The trial Court ought to have immediately dealt with the issue since it touched

on the competence of the suit and consequently the competence of the Court to adjudicate on the matter. If it had done so, it would have looked only at the writ of summons and statement of claim of the Appellant. Going by the statement of claim, the matter in dispute is as to who is entitled to inherit the house in dispute, that it is a question of title to the house. The cause of the complaint and therefore the cause of action arose on or about 12/3/2007 when the Appellant saw an affidavit of authorization bearing that date by 1st Respondent and her sister, showing a sharing formula for the said house, and in which they laid claim to the house. Going by the processes alone, the cause of action arose on or about 12/3/2007 and the writ of summons was taken out on 29/2/2008. That was well within the time prescribed by the Limitation Law of Bendel State, that assuming that the law applies to the property.

The trial Court did not resolve the matter at that early stage; rather it did so in its final judgment. The appellants have not said anything on this and so I will hold my peace. I must however say that when it comes to the issue of competence of a Court,

the Court can resolve the same on the basis of the writ of summons and statement of claim or even evidence received. See APADI v. BANUSO (2008) 13 NWLR (PT. 1103) 284 and FEDERAL COLLEGE OF EDUCATION, OYO STATE v. AKINYEMI (2008) 15 NWLR (PT. 1109) 21.

So also where the time of the accrual of the cause of action is not reflected in the statement of claim and the Defendant in his statement of defence alleges a specific date, the Court is to proceed to trial. – SOBOWALE v. GOVERNOR OF OGUN STATE (2018) LPELR – 43735 (CA).

The trial Court held that the cause of action arose in 1964. The learned Judge reasoned as follows at page 84 of the record.-
“As at 1964, when Pa. Nehizena died, there did not seem to be any problem. The problem arose when according to the Plaintiff in 2007 when exhibit A1, A2 and A3 were discovered though before then, there is evidence from the Plaintiff that the issue of the paternity of Imuetinyan was taken to the palace. Plaintiff’s evidence is that after the death of Pa Nehizena in 1964, Imutinyan began to lay claim to the house and the matter was taken to the Palace of the Oba of Benin and the issue of paternity came up there. So to all intents and purposes, the cause of action did accrue in 1964.”

What the learned trial Judge seems to have missed is that the house in dispute is held under customary tenure, with both sides laying claim to it. Statutes of limitation generally do not apply to such tenures or holding. In AGBOOLA v. ABIMBOLA (1969) LPELR – 25473 (SC) the Registrar of Titles had held that the Statutes of Limitations 1833 and 1834 applied so as to bar the interest of Oloto Chieftaincy family in the land in dispute which was held under customary tenure. At page 9 of the electronic report, Coker, JSC, stated:
“We do not consider that any authorities are now needed to show the inapplicability of statutes of limitation to such tenures”
See also OGUNTADE v. ADELEYE (1992) 8 NWLR (PT. 260) 409 and OLUJOBADE v. OLALUSI (2011) LPELR – 8908 (CA). It is in my view, only where a limitation law is expressed to apply to land held under customary tenure that it can be held to apply to such land. This is not the case in this instance.

I therefore answer issue 1 in the negative and resolve it in appellant’s favour.

ISSUE 2
Whether the Appellant led sufficient, cogent and credible evidence to entitle him to the reliefs sought before the lower Court.

Appellant’s counsel contended that Appellant led sufficient evidence in proof of his assertion that Comfort Imuetinyan, the mother of the Respondents was not the biological daughter of Pa Nehizena. He referred to the oral evidence of PW 1 and Exhibits C1 to C5. He further contended that the Respondents did not lead evidence weighty enough to dislodge Appellant’s evidence. He submitted that the trial Court failed to properly evaluate evidence led by the Appellant and ascribe probative value to Exhibits C1 to C 15 and D1 and D2. He urge the Court to interfere.

Counsel argued that a combined reading of those exhibits would show that the trial Court erred in holding that there is no first name to the name “Arhibenbuwa” in the Exhibit C series to show that the person is the same as 1st Respondent’s mother. Again, he posited that the holding of the trial Court that there was evidence that Mr. Cole (1st Respondent’s father) paid dowry to Pa Nehizena was based on hearsay evidence. He further posited that if that evidence is expunged from the record, there

would be nothing left to support the assertion that Pa Nehizena sired 1st Respondent’s mother. He posited that the finding of the trial Court that there was evidence (Exhibit A) from the Respondents that the family shared the property to three children of the late Pa Nehizena including 1st Respondent’s mother, was wrong as the Respondents denied the documents.

Respondents’ counsel argued that since the claim of the Appellant was declaratory in nature, the burden was on him to establish his entitlement to the declaration by acceptable evidence and not by admission. He noted that the appellant, according to him, called no witness when the issue is the paternity of his aunt. He stated that the oral evidence of the Appellant was not sufficient to discharge the burden of proof on him in that regard. He noted that Appellant testified that his grandfather gave Exhibits C1 — C15 to the Oba of Benin but the man had died before then. He contended that the documents are dubious and were not pleaded. Counsel submitted that the trial Court was right in its position that it was not satisfied with the documents. He contend that the Appellant was unable to fault

this position. He again stressed that Exhibits D1 – D2 were not pleaded, referring to the pleadings of the parties and so they went to no issue.

Counsel posited that the evidence of DW1 that 1st Respondent’s father paid dowry to Pa Nehizena though may be hearsay was admissible as it relates to family history; this being an exception to the hearsay rule. He further posited that evidence of sharing of the property was uncontroverted.

Appellant’s counsel by way of reply submitted that the evidence of the Appellant that his grandfather gave Exhibits C1 — C15 was an accidental slip. He further submitted that Exhibits C1 — C 15 and D1 and D2 were duly pleaded and admitted without objection.

RESOLUTION
The Appellant asked for a declaratory relief relating to the house at No. 31, Sokponba Road, Benin City. The burden therefore was on him to establish his entitlement to the claim on the strength of his own case and not rely on the weakness, if any, of the defence. He had to satisfy the Court based on his pleading and evidence. See BELLO v. EWEKA (1981) 1 SC 101 and ONOVO v. MBA (2014) 14 NWLR (pt. 1427) 391.

Evaluation of evidence with the

attendant duty of ascribing probative value to it is primarily the function of the trial Court and an Appellate Court will not ordinarily interfere with the trial Court’s findings on evidence. This is especially so where there is evidence on record to support such finding in which case the appellate Court will not substitute its own view of the fact for the finding of the trial Court. The appellate Court can only interfere where there has been a miscarriage of justice as for example where the judgment is perverse or is the result of an improper exercise of judicial discretion, or where erroneous inferences are drawn from the evidence. See MOGAJI v. ODOFIN (1978) 4 SC 91, IKEM v. STATE (1985) 4 SC (PT. 2) 30 and OKALA v. UDEH (2019) 9 NWLR (PT. 1678) 562.

The trial Court made the following findings:
(i) that the Appellant is not in a position to know whether his aunt, Imuetinyan, was his grandfather’s child as he was not born then, that is, when she was born;
(ii) that there is no evidence that the single name “Arhibenbuwa” stated in Exhibits C1 — C15 refers to 1st Respondent’s grandmother’
(iii) that 1st Respondent’s mother,

Imuetinyan, was an illiterate and yet she signed “beautifully” Exhibits C2 and C15;
(iv) the issue of paternity is so volatile and fundamental that it needed concrete evidence in proof of it;
(v) that it was not satisfied that Exhibits C1 — C15 relate to Madam Airhienbuwa Enehizena;
(vi) that there is evidence from the Respondents that the family shared the property among three sisters; Imuentinyan, Rachael and Patricia (Exhibit A2). On this basis the trial Court wondered if Imuentinyan was not a daughter of the family would she have been included in the sharing?;
(vii) that even if she was not Pa Nehizena’s daughter, she was accepted by him and the custom is that once this is done, the child would also take his rightful position among other children; and
(viii) that there is evidence that Mr. Cole who married Imuentinyan paid dowry to Pa Nehizena and solely buried the old man.

Let me quickly state that contrary to the assertion of Respondents’ counsel, the appellant pleaded the native Court documents (Exhibits C1 — C 15) in paragraph 12 of the statement of claim though tersely as follows:-
“The Plaintiffs

hereby plead the said letter and other Court judgment, which disclaim the paternity of the Defendant and shall found all the documents and rely on them, are (sic) the trial of this case”

Exhibits D — D1 were also pleaded in paragraph 12 of the amended statement of defence. Exhibits C1 — C15 and D — D1 were admitted in evidence without objection by Respondents’ counsel. Where a document which is not inadmissible in the first place, is admitted in evidence by consent, it is not open to parties who so consented to complain about its admissibility on appeal. See ETIM v. EKPE (1983) 1 SCNLR 120, RAIMI v. AKINTOYE (1986) 3 NWLR (PT. 26) 29, AGBI v. OGBEH (2005) 8 NWLR (PT. 926) 40 and SANI v. KOGI STATE HOUSE OF ASSEMBLY (2019) 4 NWLR (PT. 1661) 172. It is too late in the day for Respondents’ counsel to object to the admissibility of the documents.

The fact that Appellant testified that his grandfather gave Exhibits C1 – C15 to the Oba when his grandfather had died before then does not detract from the authentically of those documents that are certified true copies of Public documents.

Now, when it comes to documentary evidence, an appellate Court is in as good a position as the trial Court to evaluate the same — OGUNDALU v. MACJOB (2015) 8 NWLR (PT. 1460) 94. I have therefore examined Exhibits C1 — C 15 and D and D1. Exhibits C and C 13 are certified true copies of Benin City Native Court proceedings. Which read:-
“J. O. Okundayo of Benin Claim — Guardianship of his sister idabie detained 5 months ago. Claim not admitted
Versus
Arhihenbuwa
Plaintiff SS:- In fact, Defendant is a wife to my brother Arinkpayo. She had the child by my brother and she divorced me in this month and I was already received my £10 dowry about 3 days now.
Defendant S.S. In fact, I am a lawful wife to Plaintiff’s brother. I had this child before I refunded £10 dowry to Plaintiff.
Judgment for Plaintiff for his sister and cost 10 years allowed. Plaintiff to feed the child until he grows up”

The other documents in the Exhibit C series are letters written by Arhihenbuwa through the illiterates office to the Resident, Benin Province, Benin City and the reply by the Acting Resident thereto etc. on the judgment in Exhibits C and C 13. The trial Court held that

there is no evidence that “Airhenbuwa” in the Exhibit C series refers to 1st Respondent’s grandmother. I have perused all the documents and I cannot also find any conclusive proof that the “Airhenbuwa” in Exhibit C series refers to 1st Respondent’s grandmother. This is not a matter that should be left to speculation or conjecture as the Court is not to engage in conjecture. Those exhibits cannot aid Appellant’s case. I therefore agree with the trial Court in this regard

The trial Court held that Mr. Cole who married Imuentinyan (1st Respondent’s mother) paid dowry to Pa Enehizena. This was apparently based on the evidence of DW1 but in cross-examination he (DW1) testified that she was told that his father paid bride price for her mother. Her evidence was hearsay and the trial Court ought not to have made the finding based on it. Though, by Section 44 (1) of the Evidence Act, 2011, statement relating to the existence of relationship is an exception to the hear-say rule, the person who gave the information to her is not stated and so it cannot be determined if the person had a special means of knowing the matter. The exception therefore does not apply in this matter.

Again, the learned trial Judge was not right in relying on Exhibit A2 to hold that there was evidence of sharing of the property to three children including 1st Respondent’s mother by the family. This exhibit was attacked by the Appellant and the Respondent who denied making the affidavit to which it was attached. The document was purportedly made in 2004 and yet none of its makers testified to give life to it.

This takes me to Exhibits D1 and D2. Exhibit D2 is a letter written on 9/6/1973 by G. I. Giwa-Amu, solicitor for Comfort Imuitinwa Nehizena (1st Respondent’s mother) to Madam Airiebuwa Nehizena, accusing her of intermeddling with the estate of her father, “your late husband …” Exhibit D2 is her reply through K, S. Okeaya — Inneh, Esq. her solicitor. In paragraph 3 thereof it is stated that:-
“My client has reliably informed me that your client Comfort Imoitinwa is the daughter of ORHIONKPAYO, who is now deceased. It is a notorious fact in the family that the said father of your client Orhionkpayo was a reckless man who neglected his paternal obligations to your client. My client was compelled to re-marry and that is NEHIZENA who in fact was a step father to her daughter Comfort Imuetinyan Orhionkpayo”

It is noteworthy that the exchange of correspondence above was the result of a bitter dispute between Imuetinyan and her mother. It is unsafe to use Exhibit D2 to determine the paternity of Imuetinyan. It is noteworthy that there is no evidence that the late Pa Nehizena ever complained or mentioned to any one that Imuetinyan was not his child. Furthermore, Pa. Nehizena maintained Imuetinyan in her childhood days. This is apparent from Exhibit D1 tendered by the Appellant wherein it is stated that “notwithstanding, the fact that Nehizena fed and clothed your client until she grow up…” The inference is that he accepted the child as his.

There is no evidence from the Appellant as to when Airiebuwa divorced or broke off from Oriokpayo (if the story is true), when Pa. Nehizena married her and when Imuetinyan was born to guide the Court to determine that she (Imuetinyan) was the child of Oriokpayo as claimed by Appellant.

It must be re-stated that in a claim for declaration, the burden is squarely on the Plaintiff to establish his entitlement to

the declaration he seeks and he must succeed on the strength of his own case and not on the weakness of the defence. He must prove his claim by credible and sufficient evidence. See BELLO v. EWEKA supra. The Appellant failed in this regard.

I therefore enter a negative answer to issue 2 and resolve it against the Appellant.

In sum the appeal succeeds only in part in respect of my holding that the suit of the Appellant is not statute-barred. In respect of the merit of the case, the appeal is without merit and I consequently dismiss the same in that regard. I affirm the decision of the trial Court dismissing the case of the Appellant on the merit.

In the light of the relationship between the parties, I order that they shall bear their respective costs.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: My learned brother, JOSEPH EYO EKANEM, JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.

I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.

I too hold that the appeal lacks merit and is accordingly dismissed.

I abide by all consequential orders in the lead judgment.

BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the judgment prepared by my learned brother Joseph Eyo Ekanem, JCA and I found that the reasoning and conclusion reached therein accord with my view on the appeal. I therefore adopt same as mine and also allow the appeal in part only as regards limitation law. I found no merit in the main appeal and it is dismissed by me. I abide by the order of no cost made in the lead judgment.

Appearances:

F. Asemokhai, Esq. For Appellant(s)

E. Ulinfoh, Esq. with him, J, Awala, Esq. For Respondent(s)