MR. DANIEL TEIBOGREN v. THE GOVERNOR OF DELTA STATE & ORS (2014)

MR. DANIEL TEIBOGREN v. THE GOVERNOR OF DELTA STATE & ORS

(2014)LCN/7162(CA)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of May, 2014

CA/B/171/2009

RATIO

JURISDICTION: COMPETENCE OF COURT

It’s trite, that for a court to be cloaked with jurisdictional competence to entertain, hear and determine an action, certain conditions must be satisfied, viz:
(a) The court is properly constituted as regards quorum and that no member thereof is disqualified for any reason whatsoever;
(b) The subject matter of the action is within the jurisdiction of the court and there is not any feature in the case which prevents the court from exercising its jurisdiction;
(c) The case is duly initiated by due process of law and upon fulfillment of any conditions precedent in exercising the jurisdiction thereof.
See the case of MADUKOLU V. NKEMDILIM (1962) 2 SCNLR 341 @ 348 paragraphs E – G.

The trite fundamental principle is that where a statute explicitly provides for institution of an action within a limited period, no action shall be filed after the expiration of the period so prescribed. And any action that is instituted after the expiration of the limited period prescribed by the statute shall be deemed barred, thus liable to be struck out. See MICHAEL OBIEFUNA VS. OKOYE (1961) 1 All NLR 357; EGBE V. ADEFARSIN (No.2) (1985) 1 NWLR (Pt.3) 549; FADARE V. AG OYO STATE (1982) NSCC 643. per Iguh, JSC @ 19. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

WORDS AND PHRASES: CAUSE OF ACTION

It is a trite principle, that a cause of action is an injury or wrong the plaintiff alleges the defendant has inflicted thereupon, thereby forming the basis of the relief being sought in the suit. Thus, by the very nature thereof, a cause of action arises from the date of the commission of the injury or wrong, which the plaintiff urges upon the trial court to redress.
See FOLAMI VS. OKEGE (2008) All FWLR (pt. 416) 1895 @ 1911 – 1912 paragraphs H – A; WOHEREM VS. EMEREUWA (2004) All FWLR (pt. 221) 1570; (2004) 13 NWLR (Pt. 890) 398; SAVANNAH BANK (NIG) LTD VS. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD (1987) 1 NWLR (Pt. 49) 212; ODUBERO VS. FOWLER (1993) 7 NWLR (pt. 308) 637. PER IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

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

Between

MR. DANIEL TEIBOGREN Appellant(s)

AND

1. THE GOVERNOR OF DELTA STATE
2. THE ATTORNEY-GENERAL OF DELTA STATE
3. MINISTRY OF WORKS, DELTA STATE
4. BOMADI LOCAL GOVERNMENT COUNCIL Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): In the instant appeal, the Court of Appeal is urged by the Appellant to set aside the Judgment of the High Court of Delta State, delivered on August 7, 2008 in Suit No. HCB/6/2005. By the said Judgment, the court below, Coram P. J. O. Anigboro, J; struck out the Appellant’s suit on the ground that the action was statute-barred.

FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL:
On April 7, 2005, the Appellant instituted the said action, vide a Writ of Summons, in the court below seeking various declaratory and injunctive reliefs against the Respondents. By paragraph 31 of the Further Amended Statement of Claim thereof, dated 04/01/07, the Appellant sought against the Respondents the following reliefs:

(i) A DECLARATION that the Plaintiff is the beneficial owner or the person rightfully entitled to a statutory right of occupancy or ownership in and over that piece or parcel of land measuring about 45 x 135 (Forty Five Feet by One Hundred and Thirty Five Feet) bounded on one side by the land of one MR. GONNI, that is the Western side, on the Eastern side the said land is bounded by the OHOROR-BOMADI ROAD, on the Northern side the land is bounded by a lake which was later filled and presently the Bomadi Motor Park is occupying same and on the Southern Part the land share a boundary with late PA. SIEN OKORODASE, lying, being and situate at a point near the Bomadi-Ohoro Road by the Bomadi-Forcados river at the Bomadi over side in Bomadi a place within the Jurisdiction of this Honourable Court.
(ii) A DECLARATION that the purported acquisition of the said land by the Bomadi Local Government Council was not in accordance with the laws and practice and same is unconstitutional and therefore null and void and of no legal effect whatsoever.
(iii) AN ORDER of the Honourable Court setting aside any acquisition of the said land by the Delta State Government from the Bomadi Local Government Council as same was unconstitutional.
(iv) AN ORDER of perpetual injunction restraining the Bomadi Local Government Council, her agents, servants, workmen or howsoever from further entering, trespassing upon the unacquired portion of the said land or in any way obstructing or destroying the Plaintiff’s right or interest over the said land which is in peaceful possession of the Plaintiff.
(v) THE SUM of N5,000,000.00 (Five Million Naira) being compensation for the loss and damages suffered by the Plaintiff as a result of the acts of Delta State Government through the Delta State Ministry of Work and the Bomadi Local Government Council.

On the other hand, by the (RE – ULTIMATE) AMENDED STATEMENT OF DEFENCE thereof, the Respondents not only denied the claim in its entirety, but also counter claimed against the Appellant. By paragraph 33 of the said Amended Statement of Defence thereof, the Respondents averred thus:

33. The Defendants reassert that the Plaintiff’s case (inter alia) is vexatious, unripe/premature for hearing,as Plaintiff did not exhaust Administrative Remedies, Lacks Reasonable Cause of Action, is statute-barred, patently incompetent, An Abuse of Court Processes – and accordingly divests the Honourable Court of Jurisdiction to entertain same. Defendant shall rely on and give evidence of every relevant and material facts/laws in proof of this assertion.

Consequent upon the settlement of the respective parties’ pleadings, the Suit proceeded to full trial. The Appellant and two other witnesses testified in support of the claim thereof. On the other hand, two witnesses testified for the defence. At the end of the hearing of witnesses, the learned counsel to the respective parties addressed the court, thus resulting in delivering the vexed Judgment on the said 07/8/08 to the conclusive effect, thus:

The effect of above consideration is that the right of action of plaintiff in this is statute barred and the action of the Plaintiff is incompetent. This court has no jurisdiction to entertain same. See the case of Madukoli V. Nkemdilim (1962) All NLR (Reprint) 581.
The court considers unnecessary to further consider the case of the Plaintiff on its merits as the court lacks jurisdiction to do so.
The effect of the above consideration is that the action of Plaintiff is incompetent and the same is struck out. The court hereby dismisses the counter claim of defendants as the defendants abandoned same at the trial…The court in the circumstances does not consider it appropriate to award any cost to the parties. The court makes no further order as to costs.

The notice of appeal against the vexed Judgment was filed on 22/09/08 in the court below. It is contained at pages 155 to 156 of the Record, which was deemed properly transmitted to this court on 25/5/09. The Appellant’s brief was settled by Emmanuel O. Jewo Esq. on 21/7/09. The Respondents’ brief was settled by N.W. Ogbogu on 31/5/13, but deemed properly filed on 26/09/13. On 05/02/14, the appeal lastly came up for hearing. Both learned counsel adopted the submissions contained in the respective briefs thereof. Thus, resulting in reserving Judgment for delivery. Most particularly, the Appellant’s brief spans a total of seven pages. At page 3 of the said brief the learned counsel has raised two issues for determination, viz:

1. Whether the learned trial judge was right in holding that the Plaintiff’s case is statute-barred and same was incompetent having regards to the weight of evidence adduced in support of the exceptions to the limitation law.
2. Whether the learned trial Judge was right in law by failing to consider or sufficiently consider the limitation law of Bendel State as applicable in Delta State.

Allegedly, the issue No. 1 encompasses grounds 1 & 2 of the Notice of Appeal and duly canvassed at pages 3 to 6 of the Appellant’s brief. In a nutshell, the Appellant’s submission on the said issue is that the decision of the court to the effect that the action was statute-barred is grossly against the weight of evidence adduced by the Appellant in support of the exceptional situations to the Limitation Law where the court below has failed to exercise its powers, so to say, to evaluate and consider the evidence adduced by both parties on certain relevant issues. Allegedly, the appellate court has to take that duty. For that proposition, the learned counsel cited and relied upon the cases of – ONYEIWELU vs. ELF PETROLEUM NIG. LTD (2009) AFWLR (pt. 469) 426; BASSIK vs. FAJEBE (2001) FWLR (Pt. 51) 1914.
Regarding the exceptions to the Limitation Law, which is the crux of this appeal, it’s postulated that where there is an admission of liability during negotiation, and all that remains is fulfilment of the agreement, then the demands of justice and equity will not allow the action of the Plaintiff to be barred after the statutory period of limitation, should the defendant resile from the agreement. See GODWIN IYANG VS. REGD. TRUSTEES OF THE FIRST CENTURY GOSPEL CHURCH (2006) AFWLR (Pt.314) 278.
The evidence of the Appellant (Plaintiff) vis-a-vis Exhibit F was referred to regarding the alleged promise made by 4th Respondent (4th Defendant) to compensate the Appellant, which was neither challenged nor controverted. The Chairman who made the offer to the Appellant was not called by the Respondents to challenge or controvert the Appellant’s evidence.
It is submitted that the Appellant’s case falls within the exceptions to the Limitation Law. See ODUNEYI VS. STATE (2000) FWLR (Pt. 13) 2289; GODWIN IYANG VS. REG TRUSTEES OF THE FIRST CENTURY GOSPEL CHURCH (Supra); ARMO II VS. ADEKANYE (2004) AFWLR (Pt.224) 2113.
It was finally contended on the first issue, that the act of the 1st Respondent in acquiring the land in 2001 while the rightful owner thereof (the Appellant) was yet to be compensated by the 4th Respondent, and the attempt by the 4th Respondent to eject the Appellant’s tenants on unacquired portion of the land, constitute a fresh injury or continuous damage. And that from 2001 till 2005, when this action was instituted was not up to 12 years, as such the action cannot be statute-barred, as the limitation period for the recovery of land is 12 years.
The issue No. 2 was summarily canvassed at page 6 of the Appellant’s brief. It was submitted that the lower court failed to sufficiently consider Section 25 (a), (b) & (c) of the Limitation Law of Bendel State, CAP 89, 1976 as applicable to Delta State.
Secondly, that Exhibit F amounts to an admission by the 4th Respondent to pay compensation to the Appellant. And the said Exhibit F was not controverted by the 4th Respondent. Therefore, the period of limitation started to run from 2001 when the Appellant discovered the alleged fraudulent act of the 4th Respondent.
The court is urged upon to resolve each of the two issues in favour of the Appellant, allow the appeal, set aside the vexed Judgment of the court below, and accordingly order for retrial to enable the Appellant prove his case on the merits.
On the other hand, the Respondents’ brief (though unpaginated) spans a total of thirteen pages. At page 4 of the said brief, a sole issue has been formulated, thus:

“WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN HOLDING THAT THE PLAINTIFF’S CASE IS STATUTE-BARRED (GROUNDS 2 AND 3).”

From the outset, the legendary locus classicus, MADUKOLU VS. NKEMDILIM (1962) 2 SCNLR 341, was cited and relied upon regarding the fundamental principles guiding court in determining its competence to hear a suit. The Respondents’ learned counsel submitted that, there is a feature in this case which prevents the lower court from exercising its jurisdiction, and that the subject matter of the action is not within its jurisdiction solely due to the provision of Section 6 (2) of the Limitation Law, 1976.
Referring to paragraphs 7, 8, 9, & 10 of the (Amended) Statement of Claim, it was submitted that the cause of action accrued sometime in 1990 when the 4th Respondent acquired the Appellant’s land. But he slept on his right; he failed, refused and neglected to sue within the limited time allowed by the law.
According to the Respondents’ counsel, the case was commenced on 07/4/05, that’s 15 years after the accrual of the cause of action. See Sections 6 (2), 7 (1) and 16 of the Limitation Law, 1976 (Supra). That, the provisions of the said law, especially Sections 7(1) & 16, are clear, simple and unambiguous. They must thus be given their ordinary, natural and grammatical meaning. See BUHARI VS. OBASANJO (2005) 18 NWLR (Pt. 956) 96; NPA PLC VS. LOTUS PLASTICS LTD (2005) 19 NWLR (Pt. 959) 158.
Regarding the case of GODWIN INYANG VS. REGD. TRUSTEES OF THE FIRST CENTURY GOSPEL CHURCH (Supra) relied upon by the Appellant, it’s submitted that the general principle thereof has exceptions. One of which is where in the course of negotiation, there is a binding admission or acknowledgement, then the accrual date of action will not affect the running of time. See ROAD CONSTRUCTION OF NIG. LTD. VS. PIERGORGIO BURATTO (1993) 8 NWLR (pt. 312) 508 @ 514 E – F; NWADIARO VS. SPDC LTD (1990) 5 NWLR (Pt. 150) 322 @ 338 – 339 H – B, et al.
It was further submitted, that the statute of limitation does not apply in cases of concealed fraud – so long as the defrauded party remains in ignorance of the fraud without any fraud of his own. See AROWOLO VS. IFABIYI (2002) 4 NWLR (Pt. 757) 356 @ 377 E – F; 378; BULU COAL MINING COY. V. PATRICKHILL OSBOURNE (1899) AC 351 @ 363.
Conclusively, it was submitted, that the Appellant being aware of the acquisition of his purported land before 1990, slept on his rights, failed, neglected and refused to institute an action. The allegation of fraud is not at large. The court is urged to dismiss the appeal, and affirm the decision of the court below.
Having carefully contrasted the issues raised in the briefs of argument of the respective learned counsel, the argument canvassed thereupon vis-a-vis the entirety of the record of appeal, I am appreciative of the fact that there is only one fundamental issue that calls for determination in this appeal, namely:-

Whether the lower court was right in striking out the Appellant’s case on the ground that the action was statute barred, thus incompetent by virtue of the provisions of the Limitation Law CAP. 89, Laws of Bendel State, 1976, as applicable to Edo State.

Afortiori, the principle is well settled, to effect that where a plea of statute-bar is raised at the trial of an action, as in the instant case, the trial court is duty bound to first and foremost consider and determine when the cause of action actually arose vis-a-vis the date of filing the suit. And like in all cases relating to jurisdictional competence, the court shall consider the originating processes (the writ of summons or originating summons vis-a-vis statement of claim) with a view to determining when the cause of action arose.

In the instant case, the writ of summons is contained at pages 1-2 of the Record of Appeal. It was dated and filed on 07/04/05. The statement of claim is contained at pages 7 – 11 of the Record. It was dated and filed on 26/04/05. There’s yet a further amended statement of claim, which is contained at pages 32 – 37 of the Record. It was dated and filed on 04/01/07.
With a view to determining the actual accrual date of the cause of action, the Appellant’s further Amended statement of claim, especially paragraphs 7, 8, 9 & 10 thereof, are most instructive, thus:

7. Plaintiff aver that as soon as he acquired the land he continued to exercise all acts of possession and ownership on the said land until sometime before 1990 when the Bomadi Local Government Council unlawfully and illegally acquired a portion of the land measuring about 135′ by 30′ (One Hundred and Thirty-Five Feet by Thirty Feet) upon which the Bomadi Motor Park and the Bomadi Local Government Council stalls were built. The said Local Government stalls built on plaintiff’s land by the 4th Defendant comprises three separate buildings which were broken down by agents of the 1st and 3rd Defendants as a result of the construction of the Bomadi Forcades bridge. Plaintiff avers that tenants and or squatters occupying the vacant space still pay rents to the Plaintiff till date.

8. Plaintiff aver that after he acquired the land from the late PA. SIEN OKORODASE and before the illegal and unlawful act of the 4th Defendant as stated in paragraph 7 above, the 4th Defendant declared its intention to compulsorily acquire the said land from the Plaintiff for purpose or purposes of purported public benefit with promises of paying fabulous amount of compensation to the Plaintiff. Plaintiff did not object to this proposal but only insisted on his right to compensation which the 4th Defendant firmly promised to pay to him. The plaintiff avers that the payment of the compensation was a condition precedent to the legal and lawful acquisition of the aforesaid land. Plaintiff shall contend that the said acquisition was for public benefit and every other use by the 4th Defendant was not in the contemplation of the parties i.e. the Plaintiff and the 4th Defendant.

9. Plaintiff further aver that after his oral understanding with the 4th Defendant in the preceding paragraph the 4th Defendant flagrantly refused and failed to pay to the Plaintiff the compensation due to him for the acquisition of his said parcel of land inspite of his persistent application to successive chairmen and administrators of the said 4th Defendant proceeded to build three long buildings consisting of stalls to numerous tenants and received rents from them regularly in total disregard of Plaintiff’s right of ownership.

10. Plaintiff also aver that immediately the said 4th Defendant acquired his said land, he protested and even petitioned the Bomadi Local Government Council and the said Council has refused and or failed to do anything about it. The Plaintiff has at various times protested to the 4th Defendant through the several Chairman of the said council.

From the above averments of the Appellant, as contained in the further Amended statement thereof, it’s obvious that the land in dispute was allegedly, “unlawfully and illegally acquired” by the 4th Respondent some time prior to the year 1990. Thus, by virtue of the said averments, the cause of action must have accrued before 1990 when the said 4th Respondent “unlawfully and illegally” acquired the land in dispute.
As alluded to above, the instant suit (action) was filed, vide a writ of summons, in the court below on 07/4/2005. That’s at least fifteen (15) years after the cause of action had accrued in 1990.
Conversely, under Section 7 (1) of the Limitation Law, CAP.89, Laws of Bendel State of Nigeria, 197 volume IV, applicable to Edo State, it’s provided thus:

7 – (1) Where a person bringing an action to recover land or some person through whom he claims has been in possession thereof, and has while entitled thereto been disposed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.

By virtue of Subsection (2) of Section 6 of the Limitation Law (supra), the period for instituting an action against any person regarding land is specifically limited to twelve (12) years, after the act of dispossession or discontinuance of possession of the land in dispute. What’s more, section 16 of the Limitation Law (supra) equally provides that:

16. Subject to the provisions of section 19 of this law, at the expiration of the period prescribed by this law for any person to bring an action to recover land … the title of that person to the land shall be extinguished.

Having considered the submissions of the respective learned counsel, the lower court held, inter alia, at page 154 of the Record, thus:

In this judgment, the court had hold (sic) that the cause of action accrued to the plaintiff sometime before 1990 as he averred at paragraph 7 of his further amended statement of claim. Plaintiff has failed to satisfy the court that the defendants further acquired the land after the acquisition by the 4th defendant which plaintiff in his evidence testified that he acceded to because he was interested in compensation.

Accordingly, the lower court proceeded to conclusively hold thus: –

The effect of above consideration is that the right of action of plaintiff in this (sic) is statute barred and the action of the plaintiff is incompetent. This court has no jurisdiction to entertain same…
The court considers it unnecessary to further consider the case of the plaintiff on its merits as the court lacks jurisdiction to do so.
The effect of the above consideration is that the action of plaintiff is incompetent and the same is struck out. The court hereby dismisses the counter claim of defendants as the defendants abandoned same at the trial … The court in the circumstances does not consider it appropriate to award any cost to the parties. The court makes no further order as to cost.

I am not unmindful of the exceptions to the general doctrine of statute – bar alluded to by the Appellant’s learned counsel in the brief thereof. Most particularly, at page 4 of the Appellant’s brief, it’s alluded, inter alia, thus:

(d) It is respectfully submitted that the decision of the learned trial Judge to hold that the plaintiff’s action was statute barred is grossly against the weight of evidence adduced by the plaintiff in support of the exceptional situations to the limitation law. The law is to the effect that where a trial court fails to exercise its powers to consider and evaluate the evidence adduced by both parties on certain relevant issues, the appellate court will have to take up that duty.

In view of the obvious facts on the records of appeal, I think it would be rather preposterous, to say the least, for the Appellant to allege that the lower court has failed to consider or evaluate the evidence on record. At pages 152- 153 of the Record of Appeal, the lower court was recorded to have stated, inter alia, thus:

By the further amended statement of claim and evidence of plaintiff, the court holds that the cause of action in this suit accrued before 1990. The court further holds that this suit was filed on the 7/4/2005 a period of over 15 years after the cause of action accrued.
Plaintiff in the address of his counsel canvassed exception to the application of law of limitation to this case as decided in the case of Pastor Godwin Nyang & 8 Ors V. Registered Trustees of the 1st Century Gospel Church (supra)…
It is quite obvious from the pleadings of parties that there was never admission by the defendants (even the 4th defendant) of liability. The purported offer of stores as compensation which the chairman of 4th defendant allegedly offered to the plaintiff was rejected by the plaintiff who rather demanded for compensation.

Instructively, one of the salient exceptions to the general rule of statute of limitation is that where there is an admission of liability in the course of negotiation between the respective parties, substantial and equitable justice demands that the action should not be allowed to be statute-barred after the expiration of the statutory prescribed period. See GODWIN IYANG VS. REGD. TRUSTEES OF THE FIRST CENTURY GOSPEL CHURCH (2006) AFWLR (pt. 314) 278.

Under paragraph (g) at pages 4 & 5 of the brief thereof, the Appellant’s learned counsel has submitted thus:

2) Plaintiff in support of his claim that the Defendant promised to pay him adequate compensation tendered several documents in the said Suit No. HCB/17/2001 which was marked as Exhibit F. These documents marked as Exhibit F can be found at pages 59 – 79 of the Records. The evidence of the Plaintiff that the 4th Defendant promised him compensation, was not challenged nor controverted as the Plaintiff was not cross-examined on this actual fact. Plaintiff was not also crossed (sic) examined as to the documents i.e. Exhibit which are in support of the said compensation.

Contrariwise, the Respondents’ learned counsel countered that assertion at page 8 second paragraph of the brief thereof to the following effect:

We submit that from the statement of claim there was no suggestion whatsoever that there was any admission of liability by the Respondents or was there any letter written by the 4th Respondent admitting that they are indebted to the Appellant that the 4th Respondent promised him compensation in his evidence in court sufficient to fall within the phrase “admission of liability” I do not think so. Thus, the question of the Respondent admitting liability during the purported negotiation does not arise at all regard being had to the facts and circumstances of this instant appeal and as a consequence there is nothing before this honourable court in the Records of Appeal to the effect of reviving the cause of action which was extinguished by operation of law. See page 152 – 153 of the Record of Appeal.

As alluded to above, the Respondents not only vehemently denied the said claim in the totality thereof, but equally counter claimed against the Appellant. See the Respondents’ Further Amended Statement of Defence and counter claim contained at pages 49 – 53 of the Record of Appeal.

With particular regard to the allegation of admission to the purported payment of compensation, the Appellant has heavily relied upon Exhibit F as a proof. I have deemed it expedient to reproduce the said Exhibit F, thus:

IN THE HIGH COURT OF JUSTICE, DELTA STATE OF NIGERIA
IN THE BOMADI JUDICIAL DIVISION HOLDEN AT BOMADI

BEFORE HIS LORDSHIP HON. JUSTICE G.E. GBEMRE (JUDGE)
ON TUESDAY, THE 4TH DAY OF MAY, 2004

Plaintiff is present.
First Defendant is represented by Engr. E.B. Aloku.
Others are absent
E.O. Jewo,
U.V. Awhenfada (with him) for plaintiff.
O.E. Suoware, Legal Officer for 1st Defendant/Respondent.
E.O. Jewo applies to withdraw this case.
O.E. Suoware: Does not oppose.
Court: This case is struck out with N500.00 cost in favour of the 1st Respondent.

(Sgd) HON. JUSTICE G.E. GBEMRE
(JUDGE)
4/5/2004

Thus, from the contents of Exhibit F, reproduced above, it’s so obvious that there is no evidence, whatsoever, to establish that any of the present Respondents had at any point in time promised to pay the Appellant adequate compensation regarding the acquisition of the land in dispute. As clearly and in most unequivocal terms depicted by Exhibit F, on the 04/05/04, when the said Suit No. HCB/17/2001 came up, E.O. Jewo Esq. was recorded to have applied to the court below to withdraw the case. Consequent upon which, the lower court ruled thus:

“O.E. Suoware: Does not oppose.
Court: This case is struck out with N500.00 cost in favour of the Respondent.”

Thus, in view of the above obvious and rather incontestable facts as depicted by Exhibit F heavily relied upon by the Appellant, there is no basis whatsoever for the lower court to hold that the alleged admission to pay compensation was established by the Appellant. The alleged admission by the Respondents to the purported agreement to pay compensation to the Appellant, is most certainly a product of the pigmentation of the Appellant’s imagination.
Thus, as painstakingly highlighted above, there is nothing in the record of appeal to lend credence to the revival of the cause of action which had long been extinguished by effluxion of time (statute-barred).

My reason is duly anchored upon the trite general principle, to the effect that the best possible option or cause for a person whom the right of action has accrued thereto, is to institute an action against the other party within the statutory time limit, so as to protect the interest thereof in case the negotiation fails. See GOODWILL COY LTD VS. CALABAR CEMENT COY LTD (2010) All FWLR (pt. 544) 34 @ 62 – 63 paragraphs E – C per Onionkri, JCA (of blessed memory). See also ADOBANJO VS. OGUN STATE SPORTS COUNCIL (2005) 4 FWLR (Pt. 279) 1319 @ 1337 paragraphs A – C; EBOIGBE VS. NATIONAL PETROLEUM CORPORATION (1994) 5 NWLR (pt. 347) 649; OLA VS. WILLIAMS (2002) FWLR (Pt. 121) 1996.

Hence, in view of the foregoing reasoning, I am satisfied that the sole issue ought to be, and same is hereby resolved against the Appellant.

I have deemed it expedient, at this point in time, to reiterate the trite elementary doctrine, to the effect that findings of a trial court that are obviously borne out of credible evidence and laid down rule of law, ought not be set aside by an appellate court. Unless they are either perverse or unsupported by credible evidence. See ENANG VS. ADU (1981) 11 -12 SC 25; THEOPHILUS VS. STATE (1996) 1 NWLR (Pt. 423) 19; IGBI VS. STATE (2000) 3 NWLR (Pt. 648) 169; AGBAJE VS. ADIGUN (1993) 1 NWLR (Pt. 269) 261; ANPP VS. REC. AKWA IBOM STATE (2008) 8 NWLR (Pt. 1090) 453; ANOUA VS. AG LAGOS STATE (2010) 15 NWLR (Pt. 126) 207 @ 243 – 244 paragraphs H – A.

Consequently, having resolved the sole issue against the Appellant, the appeal fails, and it’s hereby dismissed by me. The Judgment of the court below delivered by the Hon. Justice P.J.O. Anigboro on 07/08/08, striking out the Suit No. HCB/6/2005 on the ground that it was statute-barred is hereby affirmed.
Parties to bear their respective costs of litigation.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read in draft the judgment just delivered by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. His Lordship has exhaustively and painstakingly considered and determined with erudition all the issues in controversy. I have nothing useful to add. The sole issue being resolved against the appellant, I adopt His Lordship’s reasoning as mine and dismiss the appeal. The judgment of trial court is hereby struck out being statute barred. I abide by the order as to costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead Judgment prepared by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. I completely agree with the judgment to the extent that I have nothing to add thereto. I also abide by the order made therein in relation to costs.

Appearances

P.O. MANGOROFor Appellant

AND

N.W. OGBOGUFor Respondent