KENSAL FARMS LIMITED & ANOR. v. NIGERCAT CONSTRUCTION COMPANY
(2013)LCN/5945(CA)
In The Court of Appeal of Nigeria
On Thursday, the 21st day of February, 2013
CA/B/281/2006
RATIO
“Let me say that of course I agree with the general proposition of the law as stated in Trade Bank Plc. v. Chami supra that parties cannot during address stage raise issues not pleaded. Particularly when such issues raised are issues of law and/or facts.” Per OGUNWUMIJU, J.C.A.
“…The position of the Supreme Court now is as stated in Elabanjo v. Dawodu (2006) 15 NWLR Pt.1001 Pg.76 and (2006) 6 – 7 SC 24. In the lead judgment delivered by Mohammed JSC, the Supreme Court held that the issue of limitation is one of jurisdiction, since if an action is statute barred then the court has no jurisdiction to entertain same. His lordship stated emphatically that a trial without jurisdiction is a nullity. At page 116 of the NWLR, the Supreme Court held per Mohammed JSC that: “It is quite clear from these decisions of this court that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be any delay in raising it.” Per OGUNWUMIJU, J.C.A.
“In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at 693, Belgore JSC puts it plainly thus: Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity? This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the court of Appeal or to this Court, afortiori, the court can suo motu raise it” Per OGUNWUMIJU, J.C.A
JUSTICE
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
1. KENSAL FARMS LIMITED
2. PROF. O. N. OGBEIDE Appellant(s)
AND
NIGERCAT CONSTRUCTION COMPANY Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Honourable Justice P. I. Imoedemhe delivered on 15th June 2002. The facts giving rise to this appeal are as follows:
The Appellants at the trial court filed an action against the Respondent by a writ of summons dated 18th April 2002, claiming against the Respondent as follows:
The Plaintiffs claim from the Defendant who resides at Benin city within the jurisdiction of this Honourable Court the sum of N14,539,367.00 being special and general damages suffered by the Plaintiff in that sometime in 1988, the Defendant trespassed upon the Plaintiff’s farm and premises at Ayen Village, in Ohionmwon Local Government Area and destroyed Plaintiffs’ three fish ponds and ancillaries and other economic crops in the said farm.
The Appellants filed a statement of claim and led evidence in proof of their case and called two witnesses. The Respondent entered conditional appearance and filed a statement of defence on 29th March 2004 but called no witness in proof of its case. In his address filed at the close of pleadings and the Plaintiff/Appellants’ case, the Respondent’s Counsel referring to S. 4(1) of the Limitation Law, Cap 89, Laws of Bendel State of Nigeria, 1976, submitted that the action was statute barred as it was predicated on tort and ought to have been brought within 6 years of the accrual of the cause of action. Appellants’ Counsel argued that Respondent’s Counsel cannot rely on the Statute of Limitation which he did not plead and that S. 1(2) of the said Limitation Law exempts the instant case from the application of S. 4(1) since the land, subject matter of the suit is one governed by customary law. The trial court in its judgment dismissed the Appellants’ claims on the ground that the action is statute barred. Dissatisfied with this decision, the Appellants brought this appeal by a Notice of Appeal filed 21st August 2006 containing six grounds of appeal. The Appellants in the Appellants’ brief deemed filed on 27th September 2011, settled by Ayodeji Esan Esq. raised the following issues for determination.
1. Whether the learned trial judge was right in dismissing the Plaintiffs case as statute barred when the issue of barring of the action by the statute was not properly raised by the defendant as required by law and no issues joined in the Pleadings on commencement of the action outside the limitation period. (Grounds 3 and 4)
2. Whether the trial court was right to have held that the Plaintiffs action which was in respect of land proved to have been held under a customary tenure is caught by the statute of limitation in spite of the clear provision of the law on applicability of limitation law to such land. (Grounds 1 and 2)
3. Whether on a proper evaluation of the evidence of the parties, the conclusion that the Plaintiff’s case is statute barred was justifiable in all the circumstances of the case. (Grounds 5 and 6)
On its part, the Respondent filed its brief dated 28th February 2011 on 27th September 2011 and extracted only one issue for determination as follows:
Whether the learned trial judge was right in holding the Appellants’ action was statute-barred by virtue of section 4(1)(a) of the Limitation Law of Bendel State.
I shall adopt the three issues formulated by the Appellants’ Counsel as they are a detailed breakdown of the Respondent’s single issue and answer all the questions raised in this appeal.
Issue One
Whether the learned trial judge was right in dismissing the Plaintiffs’ case as statute barred when the issue of barring of the action by the statute was not properly raised by the defendant as required by law and no issues joined in the Pleadings on commencement of the action outside the limitation period. (Grounds 3 and 4)
The Appellants’ counsel argued that the Respondent raised the issue of the statute of limitation for the first time in its final address and thus failed to plead it or lead evidence in respect of it. The implication of this, he submitted, is that the issue was not properly raised and it was not right for the learned trial judge to have dismissed the Appellants’ case on the basis that it is statute barred. Counsel referred the Court to the case of Trade Bank Plc. v. Chami (2003) 13 NWLR (Part 836) 158 at 198.
Counsel also cited the cases of:
1) Katsina L. A. v. Makudawa (1977) 1 NMLR 200;
2) Oduka v. Kasumu (1968) NMLR 28;
3) Aderemi v. Adedire (1966) NMLR 398;
4) MOBIL Producing Nigeria Unlimited v. LASEPA (2002) 18 NWLR (Part 798) 1.
Appellants’ Counsel further contended that the learned trial judge ignored his reference to Order 25, Rule 6(1) of the High Court (Civil Procedure) Rules of Bendel State, which prevents a party from taking the other by surprise thus making reliance on any statute of limitation unavailable to the defendant having not pleaded same. Counsel cited the case of UBRBDA v. Alka (1998) 3 NWLR (Part 537) page 328 at 339 where the Court of Appeal in interpreting Order 25, Rule 6(1) of the Bauchi High Court (Civil Procedure) Rules, 1987 which is in pari materia with Order 25, Rule 6(1) of the High Court (Civil Procedure) Rules of Bendel State held that:
“No doubt where a defendant relies on a special defence like a statute of limitation, it is trite that such a defence has to be specifically pleaded. It therefore follows that the effect of it on the right to enforce a cause of action is that the onus is on the defendant who relies on such a defence to establish it. See Jimoh Adekoya Odubeko v. Victor O. Fowler & Anor. (1993) SCNJ 185, (1993) 7 NWLR (Part 308) 637. In the instant case, the Appellant failed to plead the Public Officers Protection Act as a defence and submitted to the jurisdiction of the court and such an issue cannot therefore be raised at this stage.”
Counsel further referred to the following cases:
1. Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport
Agencies Ltd. (1987) 1 NWLR (Part 49) 212;
2. Owosanya v. Anifowoshe (1950) SCLR 217;
3. Atunrase v. Sunmola (1985) 1 NWLR (Part 1) 105.
Appellants’ Counsel submitted that by allowing the Respondent to raise the defence of statute of limitation at the address stage, the learned trial judge had thus formulated issues not based on the pleadings filed by parties and that judgment based on facts neither pleaded nor testified to cannot stand. Counsel referred the court to the cases of Graham v. Esumai (1984) 11 SC 123, Okebola v. Momake (1975) 12 SC 61 and Ugochukwu v. Cooperative & Commerce Bank Ltd (1996) 6 NWLR (Part 456) 524 at 539.
In response to the contention of Appellants’ Counsel that the Respondent’s failure to plead the limitation law so as to enable parties join issues and lead evidence in respect of it, makes the learned trial judge dismissal of the Appellant case on the basis of the issue wrong, Respondent’s Counsel in the brief settled by Henry I. Yekovie, argued that though the Respondent raised the issue in his address, both parties had the opportunity to address the court on the issue. Counsel stated that from the record of appeal (pages 31-32), Appellants’ Counsel had over one month after the address of the Respondent’s counsel on 30/3/2006, to deliver her own reply and make her submissions on the issue of the application of Limitation Law when she addressed the court on 3/5/2006.
Counsel also submitted that the failure of the defence to plead the statute of limitation cannot invalidate the effect and application of the statute in this case. This is considering the fact that the Appellants themselves had already pleaded and led evidence on the date of accrual of the cause of action being February, 1988 while the writ of summons was filed on 18th April 2002, 14 years, 2 months later. The trial court was thus right in applying the statute of limitation to this case.
The Respondent’s counsel in further response to this issue argued that the issue of limitation affects the jurisdiction and competence of the court over a case and goes to the root of the action. Counsel referred to the case of Wema Bank Limited v. Intl. Fishing Company Limited (1998) 6 NWLR (Pt.555) 557 at 569 Para. D.
Counsel submitted that consequently, being an issue that concerns the jurisdiction and competence of the court, it can be taken based on the writ of summons and statement of claim of the Appellants alone without the need to file a Statement of defence. Counsel cited the Supreme Court decision in Aremo II v. Adekanye (2004) 13 N.W.L.R (Pt.891) 572 at 590, PARA. B.
Counsel further contended that in the circumstances, the limitation law will apply in its full effect even in the absence of a statement of defence. Counsel cited the case of Ibrahim v. JSC (1998) 14 N.W.L.R (Pt.584) 1 at 32 PARAS. A-B, where the Supreme Court held that any action brought outside the period stipulated by statute is totally barred as the right of the plaintiff has been extinguished by such law. Counsel also quoted extensively from the Supreme Court decision in the case of Eboigbe v. N.N.P.C (1994) 5 N.W.L.R (Pt.347) 649 at 659, PARAS. C – E and Klifco Nigeria Ltd. v. N.S.I.T.F.M.B. (2005) 6 N.W.L.R. (Pt.922) 445.
Counsel concluded that from the foregoing, the statement of defence is of no relevance and has no role to play in the determination of whether an action is statute barred under S. 4(1)(a) of the Limitation Law. Counsel referred to Klifco Nigeria Ltd v. N.S.I.T.F.M.B, supra similar to the instant case where the Plaintiff contended that the Defendant’s failure to plead the statute of limitation rendered the case inapplicable to the proceeding. Omage J.C.A. stated thus: “… but this is a general rule, because a matter of law need not be pleaded provided the facts upon which the law may be cited is before the court”.
Counsel submitted that the limitation law is superior to the rules of court and failure to specifically plead the law amounts to non-compliance with the rules and such non-compliance is regarded as an irregularity. (Order 2 of the Rule of Court).
Counsel submitted that it is the duty of the court of law to give effect to the laws of the country and that parties to an action cannot by agreement or subterfuge or default in pleadings, seek to defeat the law of the land. Counsel cited the case of Alashe v. Olori Ilu (1964) 1 ALL N.L.R 390 at 397 and Opia v. Ibru (1992) 2 N.W.L.R (Pt. 231) Pg.658.
Counsel stated that in Elabanjo v. Dawodu (2006) 15 N.W.L.R (Pt.1001) 76 at 129, the Supreme Court held that the defendant need not file a statement of defence before he can raise the issue of statute bar as a point of law because it is an issue of jurisdiction. The Supreme Court further held at Page 115 and 128 thereof that the issue of jurisdiction is very fundamental and can be raised at any stage of the proceedings in the High Court, Court of Appeal and suo motu by the court itself.
Counsel submitted that on the basis of the above authorities, the Respondent was quite right to raise the issue that the court lacks the jurisdiction to entertain the Appellant’s claims on ground that the action is statute barred and the trial court was in order to have so held.
I have considered the interesting arguments of both learned counsel on this issue. I must emphasise that the position of decision law has shifted dramatically from the days of UBRBDA v. Alka supra and Odubeko vs. Fowler supra where the courts including the supreme court have held that rules of court are meant to be obeyed and that the rule of court providing that where a Defendant relies on a special defence, that defence must be specifically pleaded, failure to do so by the Defendant estops the Defendant from raising that defence.
The attitude of the Supreme Court in Odubeko v. Fowler as shown by Onu JSC was that onus is on the Defendant to plead and prove that the action instituted against him is statute barred. His lordship went as far as to say that “In other words, the onus is on the Defendant who relies on such a defence of limitation of action to establish when the cause of action accrued to the Plaintiff.”
Let me say that of course I agree with the general proposition of the law as stated in Trade Bank Plc. v. Chami supra that parties cannot during address stage raise issues not pleaded. Particularly when such issues raised are issues of law and/or facts.
Facts are the fountainhead of law. Your facts are the basis of your legal sword or shield during the trial. Thus it is trite that facts not pleaded go to no issue. To the extent of the above stated principles, the law has not changed. However, the question here is whether or not in the circumstances, the Respondent was obliged to plead the limitation law of Bendel State in accordance with Order 25 Rule 6(1) of the High Court Civil Procedure Rules of Bendel State. (That was the extant law applicable at the time the cause of action arose).
Let me first say that some of the general propositions of law quoted copiously in the Appellants’ brief though relevant to the circumstances of the cases cited may not of necessity be relevant in the circumstances of this case. There was, in this case, no instance of the judge unilaterally arriving at conclusions based on evidence garnered from self calculations and not tested under cross-examination as deprecated in Ugochukwu v. CCB Ltd supra. Let us examine the circumstances of this case.
The Plaintiffs’ claim as set out in the writ of summons is stated as follows:
“The Plaintiff claim from the Defendant who resides at Benin city within the jurisdiction of this Honourable Court the sum of N14,539,367.00 being special and general damages suffered by the Plaintiff in that sometime in 1988, the Defendant trespassed upon the Plaintiff’s farm and premises at Ayen Village, in Ohionmwon Local Government Area and destroyed Plaintiffs’ three fish ponds and ancillaries and other economic crops in the said farm”.
At pages 37 – 39 of the Record, the learned trial judge held as follows:
“In this case there is evidence of the 2nd plaintiff that the damage in respect of which he filed this suit took place in 1988. It was the submission of the learned counsel that this action was commenced on 18/4/2002. I have also observed on the face of the writ of summons and taken judicial notice, as I am entitled to do, of the fact that it was commenced on that date in respect of a cause of action which arose in 1988. See Ideozu v. Ochoma (2006) 4 NWLR Part 970 page 364 at 396. It follows that the period between the accrual of the Plaintiffs cause of action and the commencement of this suit is at least eighteen years.
It is the submission of the Plaintiffs’ Counsel that by virtue of the provision of order 25 Rule 6(1) of the rules of this court (supra) the defence of limitation is a special defence which is required to be specifically pleaded and having not been so pleaded, cannot be relied upon by the Defendant. I agree that order 25 Rule 6(1) of the rules of this Court requires a party to plead any relevant statute of limitation, among other matters, which if not so pleaded, may take the other party by surprise. The question which in my view arises however, is whether non compliance with order 25 Rule 6(1) supra can operate to render the provision of the statute of limitation inoperative when the evidence before the Court shows that an action was commenced outside the limitation period. I think the answer to this question calls for an examination of the provision of Section 4(1)(a) of the Limitation aw cap 89 Laws of Bendel State of Nigeria 1976 applicable in Edo State relied upon by defence counsel. It provides as follows:-
4(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say –
(a) action founded on simple contract or tort.
It appears to me that by the use of the term “shall not be brought” the section imposes an absolute prohibition on the filing of such action after the expiration of the limitation period. The effect of this appears to be that where the period of time provided by the limitation law has elapsed, a person loses the right to enforce the cause of action by judicial process even though he has a cause of action. See Okere v. Amadi (2005) 14 NWLR part 945 page 545 at 556 and Onadeko v. UBN Plc (2005) 4 NWLR Part 916 page 440 at 460. In the case of Klifco (Nig.) Ltd. v. NSITFMB (2005) 6 NWLR part 922 page 445, it was the Respondent’s contention that the failure to plead the statute of limitation rendered the law inapplicable to the proceedings, Omage J.C.A in his leading Judgment held inter alia at page 456 as follows:
“… A matter of law need not be pleaded provided the facts upon which the law may be cited is before the court…
It is the duty of a court to give effect to the laws of the country. Parties to an action in court cannot by agreement or subterfuge of default in pleading seek to defeat the law of the land. See Alashe v. Olori Ilu (1964) 1 ALL NLR 390 at 399 Supreme Court. It behoves the presiding officer to ensure the observation of the law and not to defeat it. See Opia v. Ibru (1992) 3 NWLR Part 231 658″.
In this case it is not in dispute that Plaintiffs’ cause of action being trespass, sounds (sic) in tort and that the limitation period for therefore is six years. There is no evidence before the court that the action relates to any act of the defendant within the limitation period nor is it in respect of title to land under customary law as contended by the Plaintiffs’ Counsel”
I could not have stated the law better than the learned trial judge. As I said earlier, the position of the Supreme Court had changed since I delivered the judgment in Omotosho v. B.O.N (2006) 9 NWLR Pt. 986 Pg.573 where I relied on previous authorities to hold that the Defendant is obliged to plead the facts of the Plaintiff’s case being statute barred before it can rely on such a defence and that the rules of court in that regard must be obeyed.
The position of the Supreme Court now is as stated in Elabanjo v. Dawodu (2006) 15 NWLR Pt.1001 Pg.76 and (2006) 6 – 7 SC 24. In the lead judgment delivered by Mohammed JSC, the Supreme Court held that the issue of limitation is one of jurisdiction, since if an action is statute barred then the court has no jurisdiction to entertain same. His lordship stated emphatically that a trial without jurisdiction is a nullity. At page 116 of the NWLR, the Supreme Court held per Mohammed JSC that:
“It is quite clear from these decisions of this court that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be any delay in raising it.
In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at 693, Belgore JSC puts it plainly thus:
Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity… This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to the court of Appeal or to this Court, afortiori, the court can suo motu raise it”
It was also held that objection to jurisdiction can be taken on the basis of the writ of summons or statement of claim alone. The argument proffered by counsel in Elabanjo v. Dawodu supra is similar to the arguments proffered by Appellants’ Counsel here to the effect that the Respondent’s failure to plead the limitation law so as to enable parties join issues and lead evidence in respect of it makes the learned trial judge’s reliance on the limitation law to dismiss the action wrong.
Interestingly it was the same Onu JSC in Odubeko v. Fowler who made the definite pronouncement in Elabanjo v. Dawodu at page 127 paragraph B. of the NWLR that
“It is settled that even mandatory rules of court are not as sacrosanct as mandatory statute or an Act”.
He also said that Rules of Court cannot override statutory provisions of the law. In so far as there was enough material on the face of the writ of summons or in the statement of claim to determine when the cause of action arose, I have to agree as stated in Aremo II v. Adekanye supra where it was held at page 590 and at pages 592 – 593 respectively of the NWLR as follows:
“In considering whether the Court has jurisdiction to entertain an action, it is the Plaintiff’s claim as endorsed on the writ of summons and the statement of claim that the Court has to consider and not the defence…
To determine whether an action is statute barred all that is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed if the time on the writ is beyond the period allowed by the Limitation Law, then the action is statute-barred”.
I have to also agree with the conclusion of the learned trial judge that indeed, the action was statute barred for being outside the period within which the Appellant could file the action. The statement of claim shows that the tort was committed sometime in 1988 while the action was commenced on 18/4/2002, a period of over fourteen years. S. 4(1) of the Limitation Law provides that an action in founded in tort cannot be brought after six years from the date the cause of action accrued.
I do not think that in the light of the new attitude of the Supreme Court that the issue of limitation or statute bar being one of jurisdiction, there is need to specifically plead it as it can be raised at any time even viva voce before the judgment, the conclusion of the trial judge is wrong. The most important consideration is that the rule of natural justice: audi alteram partem has not been violated in that both parties were heard on the issue before the court determined it. In this case, learned Appellants’ Counsel in the address at the trial court replied copiously on the issue of the applicability of the limitation law and the propriety of the defendant’s raising it during address. Thus, the Appellants’ case on this point was heard and considered by the trial court. The first issue is resolved against the Appellants.
Issue Two
Whether the trial court was right to have held that the Plaintiffs’ action which was in respect of land proved to have been held under a customary tenure is caught by the statute of limitation in spite of the clear provision of the law on applicability of limitation law to such land.
(Grounds 1 and 2)
On the 2nd issue, the Appellants’ Counsel argued that the Appellants had pleaded the fact that the land in respect of which this matter was brought is held under customary tenure. In proof of this, the 2nd Appellant as PW1 had tendered a Certificate of Customary Right of Occupancy issued in respect of the land (see page 20 of the Record). Counsel submitted that since this averment and evidence was neither challenged nor rebutted by the Respondent, it is deemed to have been admitted as true and needs no further proof. Counsel cited of Imana v. Robinson (1979) 3 – 4 SC 1 and WAEC v. Oshionebo (2006) 12 NWLR (Part 994) 258 at 272-273.
Counsel submitted that S. 1(2) of Limitation Law, Cap 89, Laws of Bendel State of Nigeria, 1976 provides that the statute of limitation shall not apply in respect of land held under Customary Tenure. Counsel contended that the learned trial judge dismissed the Appellants’ case court without considering the 2nd Appellant’s uncontradicted and uncontroverted evidence which makes the subject matter of the suit subject to Customary Law.
Appellants’ Counsel further submitted that the Supreme Court in applying S. 68(1) of the Limitation Law of Lagos State which is in pari materia with section 1(2) of the Limitation Law of Bendel State held in Majekodunmi v. Abinu (2002) 3 NWLR (Part 755) 720 at 744 that the limitation law does not apply to land which is subject to Customary Law. Counsel also referred to the case of Oguntade v. Adeleye (1992) 8 NWLR (Part 260) 409 at 425; and Ogunko v. Shelle (2004) 6 NWLR Pt.868 pg.17.
Counsel concluded that the learned trial judge erred in law by failing to consider the uncontroverted evidence that the Appellants’ land was held under a customary tenure and thus excluded from the application of S. 4(1) of the Limitation law. He urged this court to resolve the issue in favour of the Appellants.
In reply to this issue, the Respondent’s Counsel argued that the Appellants’ counsel position that the limitation law is not applicable to appellants’ case is misconceived. He stated that Appellants’ case was for special damages, cost of farm land and imputs, cumulative interest on loan and general damages. He submitted that a claim for damages in respect of damaged property is a claim in tort and has nothing to do with title to land held under customary law.
Now let us look at the applicable law.
Section 1(2) of the limitation law provides:
“Nothing in this law affects actions in respect of title to land or any interest in land held by customary tenure or in respect of any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.”
In Oguntade v. Adeleye supra, the Supreme Court held as follows:
“In view of the provisions of Section 1(2) of the Limitation Law which excludes an action in respect of the title to land or any interest in land held by customary tenure from the operation of the law and as the interest in the land, subject matter of the action in the trial Customary Court was held under Customary Tenure, it follows that Section 4(4) would not apply to the present case. Consequently therefore, the defendant’s contention to the contrary and upon which he has now based his appeal to this court must fail.”
In view of the clear provisions of Section 1(2) of the Limitation Law, the matters clearly contemplated by the said provision are those dealing with interest in land held by customary tenure. I have to agree with Respondent’s Counsel that “interest in land” according to the Black’s Law Dictionary 6th Edition is “the most general term that can be employed to denote a right, claim title or legal share in something”. There is no doubt that the subject matter of Appellants’ claim has nothing to do with interest or title in land but deals solely with damages founded on tort. There is no dispute between the parties in respect of any rights to the land on which trespass was committed. This issue is resolved against the appellants.
ISSUE THREE
Whether on a proper evaluation of the evidence of the parties, the conclusion that the Plaintiff’s case is statute barred was justifiable in all the circumstances of the case.
On the third issue, Appellants’ Counsel argued that the 2nd Appellant had at the trial court given evidence that the damage to the fish ponds was a continuing damage and that the 1st Appellant suffered continuous loss of income that would have been generated from the farm proceeds. Counsel stated that this evidence was not controverted by the Respondent at any stage of the proceedings. Counsel further stated that there is also evidence that the defendant even admitted liability as he had begun a reconstruction of the damaged pond which he later abandoned and refused to pay any compensation. Learned Counsel also argued that the Appellants as plaintiffs successfully led evidence to prove both the special and general damages claimed during trial. The Respondent Counsel raised no objection to the admissibility of the evidence adduced nor did he cross-examine Appellants’ witnesses. Counsel submitted that these unchallenged evidence therefore remained proved and the court is duty bound to take the case as proved. Counsel cited the cases of Abuul v. BENSU (2003) 16 NWLR (Pt.845) 59 at 85, Durosaro v. Ayorinde (2005) 8 NWLR (pt.927) 407 at 427 among others.
Appellants’ Counsel argued that despite the uncontroverted evidence that the damages suffered by the Appellants was a continuing one and Appellants’ Counsel’s submission that the nature of the damages takes the case out of the statute of limitation, the learned trial judge failed to give consideration to these pieces of evidence. Counsel submitted that the learned trial judge by so doing committed an error of law. He cited the case of Overseas Construction Ltd v. Creek Ent. Ltd. (1985) 3 NWLR (Part 13) 407 at 419.
The Respondent did not respond to this point. However, from the evidence at the trial particularly as summed up by the learned trial judge on page 35 of the judgment, it is obvious that the tort of trespass took place in 1988 and the act of trespass was not a continuing one. What the Appellant claimed continued was the injury or damage he suffered as a result of the tort of trespass. That is, his failure to pay back his loan and to resuscitate his farm. It would have been continuance of damage or injury if the Respondent had up till the date of filing the claim engaged in trespassing on the land of the Appellants. The Appellants’ land was bulldozed in 1988. There was no evidence of further acts of trespass to enable this court hold that the injury was a continuous one to which the statute of limitation would not apply. See A.G. Rivers v. A.G. Bayelsa Suit No.S.C.106/2009 delivered on 10th July 2012 by the Supreme Court. The third issue is resolved against the Appellants. In the circumstances, this appeal fails. The judgment of the High Court of Justice, Benin City delivered on 15th June 2006 in Suit No.B/261/2002 is hereby affirmed. I make no order as to costs.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft the lead Judgment of my learned brother H. M. OGUNWUMIJU J.C.A., I am in complete agreement with the Judgment. I do not have anything more useful to add. In the circumstance therefore, this appeal fails. The Judgment of the High Court of Justice, Benin City delivered on 15th June 2006 in Suit No.B/261/2002 is also affirmed by me.
I abide with the order as to costs contained therein.
AYOBODE OLUJIMI LOKULO-SODIPE J.C.A.: I have read in advance the lead judgment of my learned brother, Ogunwumiju, JCA. I am in full agreement with the reasoning and conclusion reached therein that the appeal fails.
In the circumstance, I adopt the lead judgment as mine and affirm the judgment of the lower court delivered on 151612006 in Suit No.8/261/2002. I also abide by the order relating to costs.
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Appearances
Ayodeji Esan with Attorney General KolawoleFor Appellant
AND
Henry Yekevie with him Ikehime EhigheluaFor Respondent
