MAJOR GENERAL DAVID JEMIBEWON (RTD) V. SAMUEL KOSOKO & ORS. (2010)

MAJOR GENERAL DAVID JEMIBEWON (RTD) V. SAMUEL KOSOKO & ORS.

(2010)LCN/3634(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of March, 2010

CA/A/126M/2006

RATIO

LIMITATION LAW: HOW IS THE PERIOD OF LIMITATION DETERMINED

The law is that the period of limitation in any statute of limitation is determined by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the Writ of summons was filed, see POPOOLA ELABANJO & ANOR VS CHIEF (MRS.) GANIAT DAWODU (2006) ALL FWLR (PT328) 604 at 646. PER UWANI MUSA ABBA AJI, J.C.A.

WORDS AND PHRASES: MEANING OF A CAUSE OF ACTION

ACTION: EFFECT OF A STATUTE OF LIMITATION

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria

ABDU ABOKI Justice of The Court of Appeal of Nigeria

Between

MAJOR GENERAL DAVID JEMIBEWON (RTD) Appellant(s)

AND

1. SAMUEL KOSOKO
2. SHEM FANIWO
3. M. O. AIYEKU
(For themselves and on behalf of Omo-Agunni Family) Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice M.A. Medupin, of the High Court of Kogi State, Sitting at Kabba, delivered on the 16th day of November, 2005, whereby the learned trial Judge overruled the preliminary objection of the Appellant (Defendant at the lower court) challenging the jurisdiction of the court to entertain the suit, based on the contention that the Respondents’ (plaintiffs at the lower court) action was statute barred.
The Respondents as plaintiffs in the lower court, took out a Writ of Summons on the 6th day of May, 2004, and claims as per its paragraph 61 of the Statement of Claim, dated and filed on the 16th of December 2004, for the following reliefs:
i. A declaration that the Plaintiffs are the customary owners, occupiers, holders and users of Ibiti Land, situate and lying at Aiyetoro-Gbedde Ijumu L.G.A, bounded in the North by River Oruku in the south by Omidu Stream (Old Oda) in the East by Omo-Ogodo Land and the West by River Ajiwoku.
ii. An order setting aside the Right of occupancy issued to the Defendant by the Kwara state Government in 1974 under the Land Tenure Law of Northern Nigeria covering 200 acres on Ibiti land as irregular, null, void and of no effect whatsoever.
iii. One million naira (N1,000,000.00) as general damages for trespass.
iv. Perpetual Injunction restraining the Defendant either by himself, agents, servants or privies from trespassing, alienating or interfering in any manner howsoever with the Plaintiffs family ownership, use and enjoyment of the said Ibiti land.
The Defendant filed a 24 paragraph Statement of Defence, and in paragraph 12 thereof, he pleaded as follows:-
12- In answer to the Plaintiffs’ case, the Defendant avers that their action is statute barred.
Particulars:
1. The Defendant to the knowledge of the Plaintiffs has been in possession of the land at least since 1971 when the Defendant acquired his Right of Occupancy over the land, his possession of which land is adverse to their interest.
2. By virtue of the applicable statute of limitation (either the English Statutes of Limitation 1623, 1833 or 1874 or the Nigerian Statute of Limitation applicable in Kogi State), the Plaintiffs’ had only 12 years to bring their action from the date of such adverse possession,
3. The Plaintiffs did not file their action in this matter until 2004, which is 34 years later.
The Defendant/Appellant filed a notice of preliminary objection in the following terms:-
Take Notice that the Defendant shall raise preliminary objection in this suit in the following terms namely:-
a) That the suit is statute barred
b) That this court lacks jurisdiction to entertain the suit.
Particulars:
1. That the Defendant to the knowledge of the Plaintiffs had cleared the land and been in possession since 1970 and acquired the right of Occupancy in 1974, which possession is advise to their interests.
2. The Plaintiffs did not file their action in this matter until 2004, which is 34 years later.
3. By virtue of the applicable statute of limitation, the Plaintiffs had only 10 years to bring their action from the date of such adverse possession.
The trial court heard arguments on the preliminary objection and delivered its ruling on the 16th of November, 2005 to the effect that it was premature and that it had jurisdiction to proceed with the trial until such time as evidence was produced showing that the Plaintiffs action was indeed statute barred.
This is what the learned trial judge said in his ruling dismissing the application:-
“The Plaintiffs have filed a 61 paragraph statement of claim challenging among others, the right of Occupancy issued by the Kwara State Government. In my view, it would amount to judicial recklessness to strike out at this moment of time, the Plaintiffs suit on the ground that it is statute barred more especially when no evidence has been adduced before this court to justify same. In my view, this is a matter which should have been taken up at the address stage after evidence must have been proffered by parties. In the fight of the reasons adduced above, I am unable to come to the conclusion as the Defendant would like me to hold that this action is statute barred…” (Page 33 of Records).
The Appellant is aggrieved by this decision of the lower court and has appealed to this Honourable Court, vide a Notice of Appeal dated 13th April, 2006 and filed on the 18th of April, 2006 containing a lone ground of appeal.
The lone ground of appeal, with its particulars is hereby reproduced.
Ground of Appeal
1. The learned trial Judge erred in law in assuming jurisdiction after he had held that:
“The issue of whether or not an action is filed (sic) within the time stipulated law (sic) goes to jurisdiction. Any omission to institute proceedings within the statutory limit deprives the court of jurisdiction. In other words, the application of the provisions of a statute of limitation invariably curtails the jurisdiction of the court. Once an action is not filled (sic) within the prescribed period allowed by the statute, a person who tries to seek a relief is forever barred from approaching the seat of justice to seek a redress.”
Particulars of Error:
1.) The learned trial Judge in assuming jurisdiction after making this holding acted contrary to decision of the Court of Appeal and Supreme Court.
In compliance with the Rules and Practice of this court, parties filed and exchanged briefs of argument. In the Appellant’s brief of argument settled by P.A. Ayeni, Esq., a lone issue was formulated for the determination of this appeal to wit:
“Whether or not the trial judge was right in law in overruling the preliminary objection?”
The Respondents’ brief, settled by J.O. Ajewole, Esq., formulated two issues for determining this appeal namely:
i. Whether the appeal is competent
ii. Whether the trial court was right in assuming jurisdiction.
At the hearing of the appeal on the 27th January, 2010, learned counsel for the Appellant, P.A. Ayeni, Esq., adopted and relied on the Appellant’s Brief of Argument, filed on the 4th of October, 2006 and the Reply Brief, dated and filed on the 4th of June, 2009, and urged this Honourable Court to allow this appeal, set aside the ruling of the learned trial judge and dismiss the Plaintiffs/Respondents’ action before the lower court on the ground that it is statute barred.
J.O. Ajewole, Esq., learned counsel for the Respondents adopted and relied on the Respondents’ brief of argument dated 30th November, 2006 and filed on the same day, and urged this court to dismiss the appeal.
I have carefully considered the issues raised by both counsel and it is my view that this appeal can be determined by the lone issue formulated by the Appellant. The Respondents two issues amount to a proliferation of issues. His issue 1, for determination is not an issue in the real term of the word, but a challenge to the competence of the Appellant’s ground of appeal, which should have been challenged by way of preliminary objection. His issue I reads; ‘Whether the appeal is competent?’ Assuming without conceding that it is an issue in the real term of the word, it will still be discountenanced and struck out. This is because, a Respondent cannot formulate an issue not arising from any grounds of appeal filed by the Appellant in the absence of a cross-appeal by the Respondent. See EHIKHAMWEM VS ILUOBE (2002) FWLR (PT117) 1087 at 1096.

It is settled law that a Respondent wanting to formulate issue (s) for determination not flowing from the Appellant’s grounds of appeal must cross appeal or file a Respondents’ Notice of Contention. This issue not having emanated from the ground of appeal filed by the Appellant is incompetent and liable to be struck out along with the argument canvassed thereon.

See NEPA VS SAVAGE (2001) 9 NWLR (PT 717) 230, COP VS OMANUKWE (1999) 2 NWLR (PT59) 190, ONIFADE VS OLAYIWOLA (1990) 7 NWLR (PT161) 130, WILLIAMS VS DAILY TIMES (1990) 1 NWLR (PT124).
The Respondents’ issue one is hereby discountenanced and struck out along with the argument canvassed thereon.
Consequent upon the above, I adopt the lone issue as formulated by the Appellant in the determination of the appeal.
In arguing this lone issue to wit: “Whether or not the trial Judge was right in law in overruling the preliminary objection?” Learned counsel for the Appellant submitted that the learned trial Judge was in serious error of law when he held in effect that, it was premature at the stage reached in the proceedings before him to hold that the Plaintiffs’ action was statute barred.
He referred to the observation made by the learned trial Judge in his judgment at pages 33-34 of the Records of Appeal and submitted that what was left by the learned trial Judge was to follow the law, relying on the cases Of TEXACO PANAMA INCORPORATION (OWNERS OF THE VESSEL ‘M.V. STAR TULSA’) VS SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIGERIA LTD (2002) 5 NWLR (PT759) 209 and N.D.I.C. VS C.B.N. (2002) 7 NWLR (PT766) 272.
It is submitted that having made the correct observation on the law, the learned trial Judge should have let himself to be guided by the views expressed by the Supreme Court in the cases referred to. It is his view that, had the learned trial Judge done that he would have seen that all that he needed to do in resolving the question raised by the Appellant was to take a look at the materials already before him with a view to seeing whether or not they could sustain the Appellants contention that the Respondents’ action had been commenced outside the statutory period allowed by law. It is also his view that the learned trial Judge instead of concentrating on the Respondents’ Statement of Claim, erroneously embarked on an irrelevant course of action by taking an excursion into the Statement of Defence and found issue for himself to resolve where no issue needed arise for the purposes of enquiry at hand. He referred to pages 35-36 of the records and submitted that the learned trial Judge was in error in thinking that the difference in dates stated by the contending parties as the accrual of the cause of action was of any moment. He submitted further that, going by the authorities of the Supreme Court decisions referred to above, the Judge was not only entitled but was bound to accept date admitted by the Plaintiff as the date on which the Defendant allegedly wrongfully took possession of their land.
He further argued that, all the trial Judge needed to do in the circumstances was to compute the time from the latest of the three dates highlighted by him to see whether the period from that date to the date on which the writ was taken out exceeded the period allowed the Plaintiffs within which to make their complaint before the court.
He referred to paragraphs 17 to 59 of the Statement of the Claim and argued that from the Plaintiffs Statement of Claim, the date which they pleaded as the date the Defendant went into occupation of their land, to their knowledge was 1970. It is therefore his view that going by the Supreme Court decision in TEXACO PANAMA INC VS SHELL PDCN LTD (supra), the trial court ought to accept 1970 as the date on which the Plaintiffs cause of action arose. He opined further that all the relevant statutes of limitation, including the Kwara State Limitation Edict, no 27, 1991, now Cap 89, Laws of Kwara State, 1994, cannot avail the (Plaintiffs) Respondents because the action was instituted many years after the time allowed by the law. That by Section 4 of the said Edict, they had only ten years to do so.
He concluded by submitting that the learned trial Judge did not consider the Plaintiffs action against the relevant provisions of the statutes to ascertain the validity of the Appellant’s contention and urged this Court to allow the appeal, set aside the ruling of the learned trial judge and dismiss the Respondents’ action before the lower court on the ground that it is statute barred.
In his response, learned counsel for the Respondents submitted that by their pleadings, there is evidence that the Appellant renegotiated the sale of the land in dispute with them when he offered them the sum of two million, eight hundred thousand naira (N2.8million) vide a bank draft and a covering letter dated 19th November, 2001. It is submitted that this amounts to admission on the part of the Appellant of the Respondents’ ownership of the land in dispute. He therefore submitted that it is trite law that where there is a settlement of a dispute or where the Defendant admits liability as in this case, the time of limitation stops to run. In event of further disagreement thereafter, a fresh cause of action accrues. In aid of his submission, he cited and relied on these cases of: AKINOLA VS FASEUN AND ORS (1973) ALL NLR 146 AT 151, EGBOIGBE VS NNPC (1994) 6 SCNJ 71 AT 79.
He submitted further that, where a Plaintiff denies the issue of the period of limitation, for the Defendant, to succeed in his plea that the action is statute barred must prove his averment by evidence. He relied on the authority of TEXACO PANAMA INC VS SHELL PDCN LTD (2002) 2 SCNJ 102 at 117-11R. It is his further argument that, even if this case is caught up by the statute of limitation, the act of the Appellant in renegotiating the ownership of the land in dispute with the Respondents amounts to revival of the cause of action. The revival has taken the case out of the period of limitation. He relied on the authority of NPA PLC VS LOTUS PLASTICS LTD (2005) 19 NWLR (PT959) 158 at 180 as well as the DIGEST OF NIGERIAN CASE LAW BY OLISA CHUKWURA AT PAGE 416.
Learned counsel further submitted that the Respondents have shown through their pleadings that there was a renegotiation between the parties that culminated into the offer of the sum of N2.8 million by the Appellant to the Respondents with a covering letter in the year 2001, he therefore submitted that the case, having been taken out of the period of limitation, the trial court was acting within his powers when he assumed jurisdiction. He therefore urged this Court to dismiss the appeal.
In his reply to the Respondents’ Brief, learned counsel for the Appellant submitted that by paragraphs 50, 51 and 52 of the Plaintiffs/Respondents’ Statement of Claim, though an attempt was made by the Defendant/Appellant to renegotiate with an offer of N2.8 million naira, the negotiation broke down, the Appellant retrieved his offer and further consolidated his hold on the land. That in effect, there was no settlement on which to anchor a fresh cause of action. That the cases of AKINOLA VS FASEUN (SUPRA) and EGBOIGBE VS NNPC (SUPRA) were cited out of con. He referred to the case of PHILIP OLUSEYI ADEBANJO VS OGUN STATE SPORTS COUNCIL (2005) 4 FWLR (PT293) 2210 RATIOS 3, 5 and 6 and submitted that, in respect of a cause of action, the period of limitation begins to run, it is not broken and it does not cease to run merely because the parties engage in renegotiation. He therefore urged this Court to hold that the action is statute barred.
From the foregoing arguments, it is very clear that the crux of the appeal is whether or not this matter is caught up by the statute of limitation and if so, what then is the effect of the meetings and correspondences between the parties as per paragraph 60 of the Plaintiffs’ Statement of Claim?

What then is a cause of action? In AIYELABEGAN VS L.G. SERVICE COMMISSION ILORIN, KWARA STATE (2009) 22 WRN 108. It was held that, a cause of action is a set of facts which establish or give rise to the right to sue and or the factual situation which gives a party a right to judicial relief. The cause of action in a suit incorporates every fact which would support a party’s right to succeed or to have the judgment of the court in his favour. In the Appellant’s claim, his cause of action includes every act or omission on the part of the Defendant which gives the Plaintiff the cause for his complaints. See FADARE VS A.G. OYO STATE (1982) 4 SC 1. SAVANNAH BANK VS PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES (1987) 1 NWLR (PT 49) 212, UDQH TRADING CO LTD VS ABERE (2001) 11 (PT723) 14, NPA PLC VS LOTUS PLASTICS LTD (2005) 19 NWLR (PT959) 158.
In determining the date of accrual of a cause of action, the court must examine the Plaintiffs’ claim as expressed on the Writ of Summons and the Statement of Claim so as to identify the material incidents which constitute the cause of action and determine when they occurred. For the purpose of the limitation Law, time begins to run from the date of accrual of the cause of action. The court must begin to calculate when there is in existence a person who can sue or another who can be sued and all the facts have happened which are material to be proved to entitle the Plaintiffs to succeed. See FADARE VS A.G. OYO STATE (1982) 4 SC 1, OWONIBOYS TECHNICAL SERVICES LTD (1995) 4 NWLR (PT391) 534, NPA PLC VS LOTUS PLASTICS LTD (2005) 19 NWLR (PT959) 158; EGBE VS ADEFARASIN (NO.2) (2004) 35 WRN 23 (1987) 1 NWLR (PT47) 1.

The Court has to ascertain on the Writ and statement of Claim, the date on which the wrong complained of, giving rise to the Plaintiffs’ claim was committed or when the rights sought to be enforced accrued and to compare that date with the date on which the Writ of Summons was taken out or filed. If the date pleaded by the Plaintiff in his Writ of Summons and Statement of Claim as to when the right to sue accrued is beyond the limitation period enacted by the applicable statute, the action is not only statute barred but also incompetent. See WOHEREM VS ENEMWA (2004) 13 NWLR (PT890) 398, AREMO VS ADEKANYE (2004) 13 NWLR (PT391) 572.
In the instant case, the Respondent instituted this action on the 6th of May, 2004 and stated in its paragraph 17 of the Statement of Claim that it saw some people clearing a portion of its land on the left hand side of the old Ilorin Road in the heart of Ibiti Land an or about 1970, some 34 years ago.

The effect of a statute of limitation is that it removes the right of action, the right of enforcement, the right to judicial relief, and leaves the Plaintiffs with a bare and empty cause of action which he cannot enforce. See EGBE VS ADEFARASIN (2002) 14 WRN 57, (1987) 1 NWLR (PT47) 1, OBA AYENI VS THE A.G. EKITI STATE (2002) FWLR (PT110) 1781, ARAKA VS EJEAGWU (2000) 15 NWLR (PT692) 684, ADEKOYA VS F.H.A. (2008) 11 NWLR (PT1099) 539.
Section 4 of the Kwara State Limitation Edit No.27 of 1991 provides:-
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
See also section 4 Kwara State Limitation Law No.4 of 2006.
By paragraph 17 of the Plaintiffs’ Statement of Claim, it was averred thus;
Paragraph 17- The 1st Plaintiff states that in or about 1970 (34years) ago, he was going to his farm in Ibiti land when he saw some people clearing a portion of land on the left hand side of the old Ilorin Road in the heart of Ibiti land and he enquired from them who asked them to clear the land and the people told him that it was the Defendant.”
The case of the Appellant is that based on this averment by the Plaintiffs/Respondents, it was obvious to the Respondents that there was adverse possession of the said land since 1970 i.e. 34 years ago and so the suit which was instituted by 2004, was already statute barred, citing in support the case of TEXACO PANAMA INCORPORATION (OWNERS OF THE VESSEL M.V. STAR TULSA) VS SHELL PETROLEUM DEVELOPMENT CORPORATION OF NIGERIA LTD (2002) 5 NWLR (PT759) 209 at 234, wherein the Supreme Court held thus:
“When a Plaintiff specifically denies issue of the period of limitation, the Defendant in order to succeed, must prove his averment by evidence. However, where as in this case, the Plaintiff pleaded the actual date when the negligence or damage complaint of first occurred, he is bound by his pleadings…”
It is thus contended by the Appellant, that from the foregoing, the date pleaded by the Plaintiffs, as per paragraph 17 of the Statement of claims is in or about 1970 and the Writ of Summons was taken out on the 6th of May, 2004, and that by the authority of TEXACO PANAMA INC VS SHELL PDCN LTD (supra), as well as Sections 4 of the Limitation Law, 1991, the suit has been caught up by the statute of limitation.
With respect to the learned counsel for the Appellant, paragraph 17 of the Respondents’ Statement of Claim cannot just be considered in isolation without regard to the other averments contained in the preceeding paragraphs of the Statement of Claim. Paragraphs 18 to 60 of the Statement of Claim contain details of what transpired after the Respondents saw the people clearing the land in dispute in 1970 as averred in paragraph 17 thereof. Since that time and up to the time the Appellant was contacted and he acknowledged and recognized the Respondents’ right to the property being the Land in dispute, a series of negotiations and correspondences set in between the Respondents and the Appellant that culminated into an agreement between them, when the Appellant agreed to pay to the Respondents the sum of N2.8 million for the portion of land occupied by him as averred in paragraph 51 of the Statement of Claim.
It is clear from the circumstances of this case that even though the Appellant acknowledged the Respondents right to the land in dispute, but continued to remain in possession up to the time when negotiation between them failed sometime in 2001 when they rejected the offer of N2.8 million made by the Respondent. The Respondents averred in paragraph 52 of the Statement of Claim as follows:-
52 “The Plaintiffs states that thereafter, the Defendant said he would have nothing to do with the Plaintiffs’ family anymore and it was on this note that the meeting ended.”
The question now is, what is the effect of the meetings and correspondences between the parties that culminated to the issuance by the Appellant, of a bank draft to the tune of N2.8 million naira, in favour of the Respondents?
By paragraphs 47, 49, 50 and 51 of the Statement of Claim, the Plaintiffs averred thus:-
47- The Plaintiffs aver that their representatives at the meeting asked the Defendant to pay the sum of two million, eight hundred thousand naira (N442,800,000.00) for the area already occupied on the right side of the land on Kabba/Ilorin road and the Defendant accepted the offer without any qualification whatsoever and promised to raise the money not long from the date of the meeting.
49- The Plaintiffs aver that sometime later, Oba S.O. Olorunyomi, the Olugbedde of Gbadde invited the representatives of Plaintiffs’ family to a meeting at which the Defendant was presented. At the meeting, the Olugbedde presented a bank draft for the sum of two million, eight hundred thousand naira (442,800,000.00) to the representatives of the Plaintiffs’ family with a cover letter.
50- The Plaintiffs state that when the secretary of the Plaintiffs’ family who was present at the meeting read the Defendant’s cover letter with the bank draft which was written in English Language and interpreted same into Yoruba language for those who were present at the meeting, but who do not understand English language, it was to the effect that the Defendant was paying the aforesaid sum for the entire disputed land contrary to what was agreed at the meeting held in the house of chief Kehinde Raji earlier.
51- The Plaintiffs says that their representatives then told Oba Olugbedde that they could not grant the entire land presently occupied by the Defendant measuring about 200 acres to the Defendant for the sum of two million, eight hundred thousand naira (N2,800,000.00) and thereby refused to sign the cover letter while the Olugbedde also retrieved the bank draft from the representatives of the Plaintiffs’ family.
In his Statement of Defence, the Defendant/Appellant averred thus in his paragraph 7 thereof:
7- In further answer to paragraphs 47 and 49 of the statement of claim, the Defendant avers that his acceptance to pay the sum of N2.8 million was for the total land covered by his right of occupancy and not just a part thereof. The Defendant further stated that he agreed to pay the said sum, not as recognition of his liability to pay but to foster harmonious relationship between the Defendant and the Plaintiffs.
It is my view that the effect of these paragraphs of both the Statement of Claim and the Statement of Defence, made the trespass committed by the Appellant on the Respondents’ land a continuous one and ceases to be so after the negotiation fell into deadlock, that is, as averred in paragraph 52 of the Statement of Claim, that the Defendant said he would have nothing to do with the Plaintiffs’ family anymore. The cause of action in the instant case therefore arose after the Respondents’ rejected the offer of N2.8 million by the Appellant and not in 1970, when they noticed the presence of the Appellant on their land. The Respondent also averred in paragraph 53 as follows:-
53- “The Plaintiffs state that shortly after this meeting, the Defendant took bulldozer to the plaintiffs land and bulldozed considerable part of it both on the right and left side of the land along Kabba/Ilorin road in addition to the area he initially occupied without permission.”
The facts and circumstances of this case, made it clearly distinguishable with the facts and circumstances in the case of EGBOIGBE VS NNPC (1994) 6 SCNJ 71 even though cited by the Respondents’ counsel. This case ought to be considered on its own peculiar circumstances. The admission on the part of the Appellant of the Respondents’ ownership of the land in dispute has removed the strict liability imposed by the statute of limitation and opened up the case to renegotiation. The case of TEXACO PANAMA INC VS SHELL PDCN LTD (supra), heavily relied upon by the Appellant can be distinguished from the case at hand. There was nothing in the TEXACO PANAMA case that portrayed renegotiation or continuing wrong unlike in the present case. It is only concerned with the date of the accrual of the cause of action as stated by the Plaintiff in his Statement of Claim and admitted by the Defendant. By paragraph 60 of the statement of claim, there was a detailed reproduction of all the meetings, letters and correspondences that transpired between the parties. It is averred as follows:-
60- The Plaintiffs will tender letters, memoranda, minutes of meeting relating to this land dispute at the hearing of this suit particularly the following:
a) Omo-Agunni’s letter              dated 9/10/97
b) Defendant’s Solicitors letters           dated 27/10/97 & 15/12/97
c) Defendant’s letter              dated 31/10/2000
d) Omo-Agunni’s letter              dated 29/12/2000
e) Defendant’s letter              dated 14/2/2001
f) Omo-Agunni’s minutes of family meeting                     dated 17/3/2001
g) Defendant’s letter              dated 2/4/2001
h) Defendant’s letter with Bank
Draft for N2.8 million              dated 19/11/2001
i) Defendant’s letter              dated 18/2/2002
j) Omo-Agunni’s letter              dated24/l/2003
k) Defendant’s letter              dated 11/3/2003
I) Omo-Agunni’s letter              dated 2/7/2003
m) Right of Occupancy No.KW813 Issued by the Kwara State Government in 1974 in favour
of the Defendant.
The question that readily comes to mind is, why did the Appellant issue a bank draft to the Respondents to the tune of N2.8 million? In response to this question, the Appellant as per his paragraph 7 of his Statement of Defence said it was ‘to foster harmonious relationship between the Defendant and the Plaintiffs’. This is far from truth. This singular act by the Appellant is an acknowledgment and recognition of the Plaintiffs right to the land in dispute and therefore, for the purpose of Limitation Law, time will start to run after the negotiations had broken down which by paragraph 60 of the Plaintiffs’ Statement of Claim was sometimes in 2003. The cause of action in this case therefore accrues in 2003 as per the Appellant’s last letter to the Respondents and this suit was instituted in 2004. The action therefore is not statute barred. Once there is an express acknowledgement of the Plaintiffs’ claim by a Defendant or a question of fraud, it can renew the cause of action. See I.G.P. VS AKPAN (2008) ALL FWLR (PT427) 1782, OLUMIDE VS ALIU (2009) 23 WRN 13.
In view of all what I have said above, the finding of the learned trial Judge that it would amount to judicial recklessness to strike out at this moment of time, the Plaintiffs suit on the ground that it is statute barred cannot be faulted.
Consequently, this sole issue is resolved against the Appellant in favour of the Respondents. The appeal therefore lacks merit. It fails and same must be and it is hereby dismissed. The Ruling of the lower court delivered on the 16th November, 2005 is hereby affirmed. Parties are hereby ordered to go back to the lower court for trial of the substantive suit on the merit. The costs of this suit is assessed at N50,000.00 in favour of the Respondents against the Appellant.

MARY U. PETER-ODILI, J.C.A.: I agree.

ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the Judgment delivered by my learned brother, Uwani Mua Abba Aji, J.C.A. I agree with his Lordship that this Appeal lacks merit and I also dismiss it whilst abiding with the consequential orders made therein.

Appearances

P. A. Ayeni, Esq.For Appellant

AND

J. O. Ajewole, Esq., with R. O. OlaniyiFor Respondent