MR. FERDINARD EKPO MBANG V. MR. ELDRED E.U. OFFIONG (2012)

MR. FERDINARD EKPO MBANG V. MR. ELDRED E.U. OFFIONG

(2012)LCN/5641(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 6th day of November, 2012

CA/C/57/2011

RATIO

STRIKE OFF OR STRIKE OUT: WHAT IT MEANS TO STRIKE OUT A SUIT OR AN APPLICATION

To “Strike out”, ‘Strike off” or “Struck off” a suit or an application simply means to expunge them, example from the cause list or record of the Court; to remove from an active docket, usually perhaps because of a want of prosecution or jurisdiction; to amend by deleting the suit or an application from the record of the Court, etc. See Blacks Law Dictionary, 8th edition, page 1463.PER JOSEPH TINE TUR, J.C.A.

STRIKING OUT A SUIT FROM A CAUSE LIST: OPTIONS THAT ARE OPEN

LACHES, ACQUIESCENCE AND STANDING BY: THE PRINCIPLES GOVERNING THE APPLICABILITY OF THESE DEFENCES

The principles governing the applicability of equitable defences of laches, acquiescence and standing by etc, are enshrined in statutes of Limitation. But no equitable remedy may be granted if the delay amounts to a bar by any limitation Law. The Limitation Law or statute is not applied by the Courts as an equitable remedy; it is a remedy founded on Law or Statute. Equity follows the law or statute. In Amata vs. Omofuna (1997) 2 NWLR (pt.485) 93 Section 4(1) of the Limitation Law of Bendel State, cap 89 of 1976 trespass being a tortuous act was held not maintainable after six (6) years as prescribed under that Law. In British Airways Plc vs. Akinyosoye (1995) 1 NWLR (pt.374) 722 the Court applied the provisions of Section 8(1)(a) of the Limitation Law Cap 70 Laws of Lagos State to preclude an action founded in breach of contract to be brought at the expire of six years from the date on which the cause of action accrued. See also Adeasun vs. Jibesin (2001) 14 WRN 106.PER JOSEPH TINE TUR, J.C.A.

LAND LAW: ACTION FOR RECOVERY OF LAND: LIMITATION PERIOD

LIMITATION LAW: WHEN AN ACTION IS STATUTE BARRED, IT CANNOT LEAD TO A CAUSE OF ACTION
Therefore a cause of action is statute-barred in legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action.
The yardsticks to determine whether an action is statute-barred are:
(a) The date when the cause of action accrued.
b) The date of commencement of the suit as indicated in the writ of summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
Time begins to run for the purposes of the limitation law from the date the cause of action accrues…”
At page 172 of the judgment his Lordship continued as follows:
“Where a law prescribes a period for instituting an action, proceedings cannot be instituted after that period.
The plaintiff/respondent was out of time by five years.
Ekeogu vs. Aliri (1991) 3 NWLR (Pt.179) pg.258, Yabugbe vs. COP (1992) 4 NWLR (Pt.234) pg.152, Ibrahim v. J.S.C. (1998) 14 NWLR (Pt.584) pg.1.
Once again, where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the Limitation Law for instituting such an action had elapsed and the right to commence the action would have been extinguished by law.”PER JOSEPH TINE TUR, J.C.A.

LIMITATION LAW: WHETHER A COURT HAS THE JURISDICTION TO EXTEND THE LIMITATION PERIOD PRESCRIBED IN A LIMITATION LAW

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

MR. FERDINARD EKPO MBANG Appellant(s)

AND

MR. ELDRED E.U. OFFIONG Respondent(s)

JOSEPH TINE TUR, J.C.A.(Delivering the Leading Judgment): The appellant was the defendant and the Respondent the plaintiff before the High Court of Justice, Calabar, Cross River State. The appellant lodged an appeal against the ruling of Hon. Justice Idem Inyamba – J., (as he then was) delivered in favour or the Respondent on 18th December 2007. The Respondent founded his claim in trespass, damages and perpetual injunction. The writ of summons was filed on 21st December, 2004 supported by a statement of claim. The Statement of Claim was on diverse occasions amended with leave of the Court. The Respondent’s claim in the Further Amended Statement of claim of 22nd February, 2007 relates to plot No.30 Spring Road, also known as “Essien Etim of Offiong Avenue” Calabar, Cross River State. The appellant also filed a statement of Defence on 21st February, 2006 denying liability. The Respondent’s Reply to the statement of Defence was filed on 20th March, 2006. The Appellant was granted leave by the Court to file an Amended Statement of Defence on 19th February, 2007.
The Respondent pleaded that sometimes in 1971 the Essien Etim Offiong family made a grant of the piece of land to the plaintiff’s late father, Mr. Essien Ukpong Offiong who is a member of that family. Upon grant, the Respondent helped his father to survey the land. The survey plan was pleaded as No.8943 of 11th January, 1978.
When the late father could not build on the land, the Essien Etim Offiong family entered into another agreement with the Respondent in 1981 over the land. The Respondent’s father died shortly after this agreement of 1981. Being the first son of his deceased father, the grantor’s family allowed the Respondent to inherit the land. The Respondent performed all the traditional rites associated with the gift of the land in Essien Etim Offiong family.
There was no time limit within which the Respondent was to build on the land. The Respondent subsequently obtained letters of Administration over his late father’s Estate on 11th July, 1986. This was followed by an application for the grant of a statutory Right of occupancy over the land. The Certificate of Occupancy No.CA/3335/1989 dated 2nd June, 1989 and registered in Calabar was pleaded by the appellant. Since the Respondent was working outside Calabar he gave authority to his late uncle Francis Ukpong Offiong to take possession of the property and look after it. The Respondent pleaded the letter of authority dated 19th December, 1984 in paragraph 16 of the Further Amended Statement of Claim. The plaintiff’s uncle took over possession of the disputed land and cultivated seasonal crops such as maize, vegetables, yams, etc.
In the Further Amended Statement of claim, the Respondent pleaded that when the dispute arose he gave a power of Attorney to his uncle by name Francis Ukpong Offiong (deceased) who commenced action against the appellant in 1992 in suit No.C/12/1992. But when his attorney died and the case could not proceed it was struckout. The Respondent instituted another suit No. HC/345/2002 but this also could not be proceeded with and suffered the same fate. In the Further Amended Statement of Claim the actual date of trespass and the reliefs sought by the Respondent against the appellant were pleaded as follows:.
“18. Sometimes in 1991, the uncles of the plaintiff, Francis U. Offiong, Cyril U. Offiong and other members of the family noticed some encroachment on the land situate at No.30 Spring Road, Calabar whereupon the uncles of the plaintiff discovered the Defendant to be the person who has trespassed on the land at 30 Spring Road where he placed on the land sand, chips and other building materials in preparation for the construction of a building. He also removed beacon stones planted there by the plaintiff’s, surveyor.
19. The plaintiff’s uncle, Mr. Cyril U. Offiong approached the Defendant and warned him to vacate the property as it belongs to his nephew, the plaintiff in this case. He refused and claimed that he bought the land from one Mr. Dominic Edet Bassey. The plaintiff states that after the transfer of the land to the plaintiff by Essien Etim Offiong family after the death of the Plaintiff’s father, the family did nothing again in respect of the land or made grant of same to Mr. Dominic Edet Bassey or anybody at all. All efforts, to persuade the Defendant to see reason and vacate the property, including reporting to the parish priest of the church where the plaintiff’s uncle and defendant worship proved abortive. Letter dated 12th September, 1991 written to the defendant is hereby pleaded and will be relied upon at the trial. The Defendant is “given notice to produce the original copy.
xxxxxxx
22. As the Defendant persisted on his trespass on the plaintiff’s land, the plaintiff, by Attorney sued the Defendant for trespass. The plaintiff’s plan No.AMS/CR/ILD showing the initial area of trespass prepared by A.O. Amah, Licensed Surveyor dated 22nd May, 1992 filed with the statement of claim is hereby pleaded and will be relied upon at the trial of this suit.
23. The plaintiff states that the Defendant has since encroached upon the entire land beyond the extent shown in survey plan No. AMS/CR/ILD aforesaid.
24. The Defendant has trespassed on the plaintiff’s land, uprooted some beacon stones planted by the surveyor of the plaintiff and destroyed the economic crops planted on the land.
25. The Defendant is determined to continue his encroachment on the plaintiff’s land unless he is restrained by this Honourable Court.
26. The plaintiff has suffered damages as a result of the defendant’s encroachment on the plaintiff’s land situate at No.30 Spring Road, Essien Town, Calabar, whereupon the plaintiff claim as follows:
(a) A declaration that the plaintiff is the rightful and bona fide owner of the piece or parcel of land covered by Certificate of occupancy No.CA/3365/1989 and delineated on survey plan No.R/m/8945.
(b) 2,000,000.00 (Two million Naira) special and general damages for trespass in that the defendant, without any lawful excuse and/or consent and authority of the plaintiff or his agent, trespassed on the plaintiff’s piece or parcel of land situate and lying at No.30 Spring Road, Essien Town, Calabar, removed beacon stones, destroyed crops planted on the land and started construction work despite repeated warning from the plaintiff and his agents.
(c) Perpetual injunction to restrain the defendant by himself, his servants, workman, agents, assign and/or privies from doing any manner of work on the land or interfering with the plaintiff’s right over the land at No.30 Spring Road, Essien Town, Calabar.”
In the Amended Statement of Defence of 19th February, 2007 the appellant pleaded how he acquired the land in dispute. The appellant then gave notice of what he shall contend at the trial in the following paragraphs of the Amended statement of Defence as follows:
“20. At the trial the Defendant shall contend that the plaintiff’s claim is stale in that the cause of action arose in 1991 (a fact plaintiff which the plaintiff has admitted in paragraphs 18, 19 and 21 of the Amended statement of claim) but the plaintiff went into a slumber and only woke up on the 21st December, 2004, when the writ of summons in this case was filed. The Defendant avers that the cause of action, in this case extinguished in 2007. In other words the plaintiff filed this case more than 13 Years after the cause of action arose. The Defendant shall rely on Section 1 Part 1 of the Limitation Law of Cross River State of Nigeria, Cap.14, 2004.
21. The Defendant has not caused any damages to the plaintiff, and the plaintiff is not entitled to the claims contained in paragraph 17 of the Statement of Claim or any other claims at all.
22. WHEREOF the Defendant states that the plaintiff’s claim is frivolous, incompetent, embarrassing, and scandalous and amounts to an abuse of the process of the Court and ought to the dismissed with substantial cost.”
Hearing commenced on 11th April, 2006 with the Respondent testifying as PW1. The hearing was in progress when the appellant filed an application on 19th February, 2007 supported by an 8 paragraph affidavit seeking that the suit be dismissed in its entirety on the following grounds:
“1. In paragraphs 18, 19 and 21 of the Further Amended Statement of Claim, the plaintiff admitted that the cause of action in this case accrued in 1991, when the Defendant allegedly committed trespass on the land in dispute.
2. The Plaintiff also in his oral evidence in Court on 11th April, 2006 told the Court that the trespass committed by the Defendant accrued in 1991.
3. However, the plaintiff filed his writ of summons on the 21st December, 2004, more than thirteen years after the cause of action arose.
4. By Section 1 Part 1 of the Limitation Law of Cross River State of Nigeria, Cap.14, 2004, 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.
5. The claims of the plaintiff is stale and has been extinguished by the passage of time.
6. The action is incompetent and constitutes an abuse of the Court process.
7. By virtue of the fact that the action has become extinguished by the passage of time, this court has no jurisdiction to hear and determine the plaintiff’s claim.”
Learned Counsel argued the motion for dismissal. The learned Counsel to the Respondent replied. The learned trial Judge ruled on 1st December, 2007 dismissing the application as lacking in merit. His Lordship held that the suit was not caught by the Limitation Law of Cross River State.
Aggrieved with the ruling the appellant filed Notice of Appeal on 28th December, 2007 with a lone ground. On 28th November, 2011 the appellant filed a brief of argument out of time. However, with leave of court same was deemed properly filed and served on 15th May, 2012. The Respondent also filed a Brief of Argument on 14th May, 2012. When the appeal came up for hearing on 27th September, 2012 appellant’s learned counsel adopted the brief of argument. Learned counsel to the Respondent was absent on 27th September, 2012 though served hearing notice. The Respondent’s brief was deemed adopted and argued on 27th September, 2012. See order 18 rule 4 of the court of Appeal Rules, 2011.
The learned Counsel to the appellant formulated the following lone issue for determination:
“Whether the learned trial Judge was right in holding that the respondent’s action was not statute barred.”
Learned counsel to the Respondent adopted the lone issue for determination at page 2 of the Respondent’s Brief of argument.
In arguing the appeal learned counsel to the appellant cited section 1 and 2(1) of the Limitation Law cap L14 Laws of Cross River state of Nigeria; Ukiri vs. Federal civil service commission (2011) All FWLR (pt.577) 783 at 793; Duzu vs. Yunusu (2010) 10 NWLR (pt.1201) 80 at 111; NIPOST v. Mordi (2008) All FWLR (pt.424) 424; Obase vs. National Judicial Council (2008) All FWLR (Pt.434) 1637 at 1642 and Uzamere vs. Urhughide (2011) All FWLR (Pt.558) 839 at 857 to show that the cause of action arose sometimes in 1991 as pleaded in paragraph 18 of the Further Amended statement of claim and supported by the oral evidence of the Respondent.
That the suit was statute barred. It was canvassed by learned counsel that when a suit is caught by the period of limitation, a party who might have had a cause of action will loose the right to enforce the remedy through judicial process due to the expiration of the time prescribed by law. Reference was made to Ayonronmi vs, NNPC (2010) 16 W.R.N.P. 50 at 73; Eboigbe vs. NNPC (1994) NWLR (Pt.347) 649 at 659; NNPC vs. Iorshase (2008) All FWLR (Pt.403) 1299 at 1324.
Learned Counsel argued that in computing the time for instituting the suit the fact that the Respondent had attempted to file two suits in the High Court in 1992 which were subsequently struckout should not be taken into consideration as erroneously held by the learned Chief Judge in the Court of trial. That though the provisions of the Limitation Law supra appears rigid and uncompromising, nevertheless, the court is obliged to give effect to the law, citing Garba vs. Adua (2011) 13 NWLR (Pt.1263) 1 at 22; Obase vs. NJC (2008) All FWLR (Pt.434) 1637. Counsel urged that the appeal should be allowed.
The Respondent’s learned Counsel drew this Court’s attention to the fact that the Respondent had attempted to litigate the dispute twice in 1992 without success. The suits were usually struckout for one reason or the other.
Learned counsel, referred to the case of L.L.S.P.I.A. Ltd. vs. M/T- Tuma & Ors. (2011) 11 NWLR (pt.1271) 612 at 635 as enunciating that the whole purpose of the Limitation Law was to enable a party who has a claim against another, to pursue the remedy with reasonable diligence within the time allowed by law or by rules of Court. That the appellant was fully aware of the efforts the Respondent had been making to recover possession of the land hence the suit was not caught by the Limitation Law. Counsel cited Crutech v. Obetem (2011) 15 NWLR (pt.1271) 588 at 608 which defined what is a cause of action and when it accrued. Counsel contended that in Ume vs. Nigerian Renowned Trading Co. Ltd. (1997) 8 NWLR (pt.516) 344 at 347 the Court distinguished the legal difference between striking out and dismissing a suit. That since suits No.C/12/1992 and C/345/2004 were struck out but not dismissed they kept the rights of the Respondent alive until suit No. HC/4/420/2004 was eventually filed on 21st December, 2004. It was further argued that the principle enshrined in the statute of Limitation is in pari material with the equitable doctrine of laches, acquiescence and standing by. That the defence that a cause of action is statute barred, is a special defence which must be pleaded and proved at the trial by the party raising it. The case of F.R.I.N. vs. Gold (2007) All FWLR (pt.380) page 1444 at 1446 was cited in argument. Counsel however conceded at page 6 of the Respondent’s brief that the Limitation Law was smuggled into the purported amended statement of defence filed on 19th February, 2007.
Learned counsel cited Owie vs. Ighiw (2005) All FWLR (Pt.248) 1762 at 1786 as authority that the doctrines of laches, acquiescence, and standing by would not apply where the party pleading the defences was warned to stop the acts of trespass but failed to do so. If the party ignored the warning and proceeded with his building on the land unabated, a Respondent would not be caught by these equitable doctrines. Counsel urged this court not to allow the appellant to benefit from his own wrong doing. The Latin maxim “Exturpi Causa Non Oritur Actio” should be applied by this court in favour of the Respondent, citing Abacha vs- Eke-Spiff & Ors. (2001) 3 SC 1 at 25-26. It was then submitted that the Respondent derived title to the land in dispute from Essien Etim Offiong family under customary law. The Limitation Law had no application to lands subject to customary law, citing Majekodunmi vs. Abina (2002) 3 MJSC 41 at 53. Counsel contended that mere non-user of the land in dispute did not constitute discontinuance of possession, citing Littledale vs. Liverpool College (1900) 1 Ch.19 at 22; Norton vs. London & North Western Railway Co. (1897-80)13 Ch.268 at 273. That there must be an abandonment of the actual and legal possession of the land before the time prescribed in the Limitation Law can begin to run. In this case the appellant was aware that the Respondent did not abandon the land in dispute so as to make the Law to apply. On the whole the court was urged to dismiss this appeal.
In the determination of the lone issue in this appeal I have taken into consideration the fact that in paragraph 18 of the Further Amended statement of claim the appellant is said to have trespassed on the land in dispute “sometime in 1991.” In 1992 the Respondent, through his Attorney, uncle Francis Ukpong Offiong of blessed memory, commenced action in suit No. C/12/1992 against the appellant in trespass. The suit was eventually struck out. Another suit commenced as No. HC/345/2002 for the same acts of trespass by the appellant was again struck out. The effect is that both suits were not prosecuted to finality to enable the court determine the rights and interests of the parties over the land in dispute. From 1991 when the trespass was committed to 21st December, 2004 When the present suit No.HC/420/2004 now the subject matter of this appeal was brought is about thirteen (13) years, well outside the period stipulated under section 1 and 2(1) of the cross River state Limitation Law cap L.14 Laws of cross River state of Nigeria vol.4 page L-14-3 which reads as follows:
“1. TIME LIMIT FOR ACTION TO RECOVER LAND:
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.
2. Accrued of Right of action in case of present interests in land:
(1) Where the person bringing an action to recover, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.
xxx ”
Trespass is defined simply as “1. An unlawful act committed against the person or property of another; especially, wrongful entry on another’s real property… At common law, a legal action for injuries resulting from an unlawful act of this kind.” See Blacks Law Dictionary, 8th edition p.1541.

In 3 William Blackstone, commentaries on the Laws of England, 1768, page 209 to 210 it was clearly stated that:
“Every unwarrantable entry on another’s soil the law entitles a trespass by breaking his close; the words of the writ of trespass commanding the defendant to shew cause, quare clausum querentis freqit. For every man’s land is in the eye of the law enclosed and set apart from his neighbours: and that either by a visible and material fence, as one field is divided from another by a hedge; or, by an ideal invisible boundary, exisiting only in the contemplation of law, as when one man’s land adjoins to another’s in the same field. And every such entry or breach of a man’s close carries necessarily along with it some damage or other: for, if no other special loss can be assigned, yet still the words of the writ itself specify one general damage, viz. the treading down and bruising his herbiage.”
Also in street on Torts, 6th edition (Butterworth) page 64 the learned author stated that, “To enter another’s land is a trespass. Of course, such an entry may be an assertion of title, and then the suit in trespass will, in effect, determine who has title.” If a defendant has not entered into the land in the alleged possession of a plaintiff it will normally he impossible to found an action in trespass as a means of settling a dispute over land. In that wise it behoves the party suing in trespass to show when, how and where the defendant entered the land. Furthermore the plaintiff has to show the kind of acts complained of which constitute the trespass. One who intentionally and without consent or privilege enters another’s property is therefore called a “trespasser.”
On 11th April, 2006 the Respondent testified that the appellant was “…the man who encroached unto my land at No.30 Spring Road, Calabar now Essien Etim Offiong Avenue. The defendant encroached on my land in 1991. The encroachment was total, the entire land was encroached upon. I was in Lagos working when my late brother informed me that someone encroached on my land i.e. the defendant, he said he was going to handle that.”See page 111 lines 19-22 and page 112 lines 1-2 of the printed record. This is trespass.
However the Respondent instituted this action on 21st December, 2004.
In my humble judgment, the Respondent’s right or cause of action accrued from “sometime in 1991” when the appellant encroached unto the land in dispute. It seems to me that the most important phrase in Section 1 of the Limitation law supra is that “No action shall be brought… after the expiration of ten years from the date on which the right of action accrued to him…”
The question is, when was this present suit that has culminated in this appeal brought by the Respondent in the High court to recover No.30 spring Road, Calabar, cross River state? The answer is simple: The suit was brought on 21st December, 2004, namely, about thirteen years after the expiry of the time prescribed under Section 1 of the Limitation Law supra.
The time the suit was brought and when the cause of action accrued is what should have been determined by the learned trial Judge to arrive at a just decision. The fact that the appellant might not have raised a similar objection when the Respondent instituted suits NO.C/12/1992 or HC/345/2002 did not foreclose his right to raise the defence of Limitation when the Respondent brought suit No. HC/420/2004 on 21st December, 2004. The argument by learned Counsel to the Respondent concerning the applicability of the equitable defences of a laches, acquiescence or standing by are misplaced.
Equitable defences like the Limitation Law have to be pleaded by a defendant who seeks to rely on them. The appellant pleaded these in paragraph 20 of the Amended Statement of Defence. In paragraphs 21 and 22 thereof the appellant sought the dismissal of this suit. The Respondent’s learned Counsel did not controvert the facts presented by the appellant before the trial Court and this Court. Besides, the argument that suits No.C/12/1992 and HC/345/2002 were merely struck off or struck out and suit No.HC/420/2004 was not caught by the limitation period is not supported by decided authorities.
To “Strike out”, ‘Strike off” or “Struck off” a suit or an application simply means to expunge them, example from the cause list or record of the Court; to remove from an active docket, usually perhaps because of a want of prosecution or jurisdiction; to amend by deleting the suit or an application from the record of the Court, etc. See Blacks Law Dictionary, 8th edition, page 1463.

A party may bring an application for the Court to remove a suit or an application from the records or cause list of the Court. This prayer may, depending on the circumstances of each case, be granted by the court. In the alternative, the Court may suo motu order the striking out or off of a suit or application. When that happens the suit or application may, depending on the circumstances of each case, be relisted on the cause list by an application of any of the parties. When relisted it is not a new suit but is the old one that was struckout. In that case the relisted suit will not be caught by the Limitation Law or statute. See Kassim vs. Ebert (1966) NSCC 44 or (1966) NNLR 75.
But suits No. C/12/1992 and HC/345/2002 struck out by the Courts were never relisted on the application of the Respondent. Rather, the Respondent filed a fresh suit on 21st December, 2004. The Limitation period will start to run from “sometimes in 1991” to 21st December, 2004 when the suit was filed which makes it a period of about thirteen years. In Erlanger vs. New Sombrero phosphate company (1878) L.R. 3 A.C. 1218 at 1279 Lord Blackburn stated the law to be as follows:
“In Lindsay Petroleum Company vs. Hurd (1874) L.R. 5 P.C.221 it is, said: ‘The doctrine of laches in courts of Equity is not an arbitrary or a technical doctrine.
Where it would be practically, unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable.
The two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. I have looked in vain for any authority which gives a more distinct and definite rule than this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of the mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”

In Ajayi vs. Adebiyi (2012) 11 NWLR (Pt.1310) 137; Section 16(2) of the Limitation Law of Lagos State Cap 118, Laws of Lagos state, 1994 provided that “An action for recovery of land shall not be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through who he claims, to that person.”The plaintiff’s land was acquired by the Lagos state Government and the acquisition published in the Lagos state Government Notice No.140, Public Acquisition Law, cap 105, Gazette No.11 vol.7 of 16th April, 1974. The land was later sold to the 1st defendant/appellant on 7th July, 1977. The plaintiff/Respondent brought the action to declare the acquisition and revocation of his right of occupancy over the land by the Lagos state Government on 31st July, 1991, seventeen (17) years outside the period prescribed by the Limitation Law supra. At page 169 of the judgment of the Supreme Court, Adekeye, JSC held that:
“The essence of a Limitation Law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute. Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period.
Therefore a cause of action is statute-barred in legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period offends the provisions of the law and does not give rise to a cause of action.
The yardsticks to determine whether an action is statute-barred are:
(a) The date when the cause of action accrued.
b) The date of commencement of the suit as indicated in the writ of summons.
(c) Period of time prescribed to bringing an action to be ascertained from the statute in question.
Time begins to run for the purposes of the limitation law from the date the cause of action accrues…”
At page 172 of the judgment his Lordship continued as follows:
“Where a law prescribes a period for instituting an action, proceedings cannot be instituted after that period.
The plaintiff/respondent was out of time by five years.
Ekeogu vs. Aliri (1991) 3 NWLR (Pt.179) pg.258, Yabugbe vs. COP (1992) 4 NWLR (Pt.234) pg.152, Ibrahim v. J.S.C. (1998) 14 NWLR (Pt.584) pg.1.
Once again, where an action is statute-barred, a plaintiff who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of time laid down by the Limitation Law for instituting such an action had elapsed and the right to commence the action would have been extinguished by law.”

Jurisdiction is not conferred on any Court to extend the limitation period prescribed in a Limitation Law or statute except otherwise so provided in that law or statute. See Akinnuoye vs. Military Administrator, Ondo State (1997) 1 NWLR (pt.483) 564 at 566. The learned trial judge lacked the jurisdiction to have extended time for the Respondent to prosecute his claim founded in trespass after the expiration of the ten year period prescribed by Section 1 of the limitation Cap L.14 of Cross River State.
In Bakare Ajakaiye & Anor. vs. Lt-Governor, Southern provinces (1929) NLR 1 the Governor of the Colony and protectorate of Nigeria required land for public purposes in Ikoyi Island in Lagos under section 5 of the Public Lands, Acquisition ordinance. At the date of acquisition in 1924 much doubt existed as to the title to various lands in the Island of Lagos. The ordinance stipulated the procedure and time by which claimants could come forward and assert their rights and interests on the lands acquired by the Crown. The prescribed time for doing so under Section 2 of the Ordinance was twelve
months. Section 7 further provided that “All lands situated within the limits above described, to which no claim is made within the prescribed time, shall be deemed to be crown land, thenceforward.” The appellants did not bring their claims within the prescribed period. The lands in question were upon the expiry of the prescribed period, deemed to be crown lands. The appellant instituted an action claiming the land as the rightful owners. The claim was dismissed by the learned a trial Judge. The judgment was affirmed on appeal by the Full Court. On a further appeal to the Privy Council it was held that:
“As to the ordinance itself, it is a misnomer describe its operation in the sense adopted in the Courts below as “confiscation”. No doubt in its effect, if parties title concerned fail to assert in time a title which they might otherwise have established, they are divested of their property, but this is thanks to their own inaction. The same would have been the result of a statute of limitations or an ordinance making obligatory and effective a system of land registration and of proof of title by entries in the register. The ordinance itself must have been notorious to those concerned and community within which possible claimants could be found must have been small. The opportunity for claims appears ample, but in any case this is a matter of policy, not of interpretation.”
In my humble view, if the Respondent failed to assert within ten years a title which he might otherwise have established in a Court of law since “Sometime in 1991” when the appellant is alleged to have committed trespass on No.30 Spring Road, Calabar, Cross River State, he is divested of the property through his inaction. This is made clear in the speech, of Lord Blackburn in Erlanger vs. New Sombrero phosphate Company supra citing Lindsay Petroleum vs. Hurd supra and Bakere Ajakaiye & Anor. vs- Lt.-Governor southern provinces supra which I have already quoted extensively. That is the effect of a party successfully pleading the Limitation Law or statute as no action could be brought by the Respondent after the period prescribed by, the Limitation Law or Statute to recover disputed land from an leged trespasser. Bringing the suit after the limitation period will result into the Court determining a stale claim.
Learned counsel to the Respondent’s further argument is that the Limitation Law does not apply to land that is subject to customary Law. Section 42 of the Limitation Law supra defines land that is subject to the limitation Law to include “land held under a right of occupancy or any other tenure.” A “right of occupancy” could mean a statutory or customary right of occupancy as defined under the Land Use Act, 1978. The phrase “or any other tenure” used in section 42 of the Law supra could also apply to statutory or customary tenures. Section 41 of the Limitation Law cap L.14 of Cross River State reads as follows:
“41. APPLICATION:
(1) This law shall not apply to
(a) any proceedings for the recovery of any sum due in respect of a tax which is payable to the State Board of Internal Revenue; or
(b) any proceedings for the recovery of any fine or penalty incurred in connection with any such tax; or
(c) any proceedings by or on behalf of the State governor for the recovery of possession of land vested in him by virtue of the provisions of the Land Use Act; or
(d) any proceedings for the recovery of any rent due under any grant made under the provisions of the Land Use Act; or
(e) any matter which is subject to the jurisdiction of a customary court relating to marriage, family status, guardianship of children, inheritance of disposition of property on death;
(f) any proceedings in respect of easement and profits a prendre.
(2) Nothing in this law, shall affect any equitable jurisdiction to refuse on the ground of acquiescence or any other equitable defence.
(3) For the purpose of this law, any claim by way of set-off or counterclaim shall be deemed to be a separate action and to have been commenced on the date on which the set-off or Counterclaim is made.”
None of the reliefs sought under paragraph 26(a)-(c) of the Further Amended Statement of Claim comes within the provisions of Section 41(1)(a)-(f) of the Limitation Law supra. The draftsman needs to revisit Section 41(2) of the Limitation Law supra to make clear what the provision intends to convey else it is ambiguous and meaningless.
The Respondent pleaded in paragraph 15 of the Further Amended Statement of Claim that the land is covered by a statutory Right of occupancy No.CA/335/1989 dated 2nd June, 1989 and “registered in the Lands Registry in Calabar.” The Respondent has the onus of showing that the disputed land is excluded from the provisions of Section 1 of the Limitation Law supra of cross River state, of that it is subject to the jurisdiction of a customary court for the Law not to apply. Section 39(1) of the Land Use Act, 1978 reads as follows:
“39(1) The High Court shall have exclusive original jurisdiction in respect of the following Proceedings:
(a) proceeding in respect of any land the subject of a statutory right of occupancy granted by the Governor or deemed to be granted by him under this Act; and for the purposes of this paragraph proceedings includes proceedings for a declaration of title to a statutory right of occupancy;
b) xxx
2. xxx.”
The location of the dispute land in Calabar, Cross River State determines the jurisdiction of the High Court to entertain the claims. See Dweye VS. Iyomahan (1983) 2 SCNLR 135 at 138. In my humble view only the High Court but not a customary Court had original exclusive jurisdiction to determine the controversy over No.30 Spring Road, Calabar, Cross River State as the land is pleaded to have been covered by a statutory right of occupancy.
The learned Judge was aware of the fact that this suit was caught Limitation Law when he rightly held at page 134 lines 3-22 to page 135 lines 1-5 as follows:
“This application by the Defendant/Applicant is brought pursuant to order 24 Rule 2 High Court Procedures Rules), Section 1 Part 1 of the Limitation Law of Cross River state for the dismissal of this suit being statute barred. It is trite that a cause of action arises on a date an act occurs which necessitates a party adversely affected by such act to resort to litigation in assertion or protection of his legal right that has been so breached.
The duration of such a right or cause of action allowed an injured party is necessary limited and does not last forever. It lapses after the date the statute of limitation proclaims. see Woheren vs. Emeruwa (2004) 7 (supra) KLR P.1858 held 1 as per Iguh, JSC (as he then was) it is therefore necessary in matters dealing with statutes of Limitation to determine firstly the exact date the cause of action accrued as time nationally (sic) will commence from the moment the cause of action arose. See Eboigbe v. NNPC (1994) 5 NWLR Pt.347 page 649 at 663.
Time therefore is of the essence in particular as computed from the date the cause of action arose for the commencement of an action.
Gleaned from paragraphs 18, 19 and 21 of the Further Amended Statement of Claim and the testimony of the Plaintiff/Respondent referred to by in the Defendant/Applicant, there is no doubt that the cause of action in this suit arose in 1991 when the alleged trespass was said to have been committed by the Defendant. By our Limitation Law between 1991 and 2004 when the present action was brought on the surface, it is quite obvious that the time allowed has since expired and the matter could be said to extinguish by the passage of time. This issue therefore to be determined in the instant case is whether in the circumstances this action it can be said to be statute barred by virtue of the Limitation Law of Cross River State, 2004.”
The learned Judge however erred in law to have whittled down the effect of the ruling by holding at page 135 lines 6-22 of the printed record that:
“This action is merely a re-institution of the same action filed from suit No.C/12/1992 which was struck out because the donee of the power of Attorney to prosecute on behalf of the plaintiff died, hence plaintiff could not continue in the circumstances the Court struck out the action on the application of the defendant.
The plaintiff returned to Court when he re-filed the same action in suit No.C/345/2002 of same parties and same subject matter. The action suffered the same fate as the earlier one, it was struck out. The defendant complained of non-service of Processes.
The Plaintiff was constrained to re-file the Present suit No.HC/420/2004. In the circumstance, can the plaintiff be said to have run foul of the Limitation Law given the technical hitches this action suffered that led to it being twice struck out by the Court at various times…”
In Ajayi Adebiyi supra Adekeye, JSC held at pages 179 paragraph “H” to page 180 paragraph “A” that:
“…Limitation Law and locus standi are both threshold issues which can be raised anytime or for the first in the Court of Appeal or in the Supreme Court. It is not limited to being raised as a special defence and pleading them specifically as required by the Rules of Court under Order 22 rule 2 of the Lagos State High court (Civil Procedure) Law. It transcends any High court Rules. It can be raised by preliminary objection at any stage of the proceedings, before any court by any of the parties or even suo motu by the Court. It is therefore note worthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence.
The reason being that the issue of jurisdiction can be raised at any time. In addition, the relevant things to be considered by the Court in determining the issue of jurisdiction are the facts as deposed to in affidavits, the writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose.”
The learned trial, Judge had no jurisdiction to have entertained this suit which was filed outside the Limitation Law of Cross River State. Secondly, the Respondent lacked the locus standi to have sought to recover the land in dispute by bringing an action outside the Limitation period.
The appeal succeeds. The suit is accordingly struck out with N50,000.00 cost to appellant.

MOHAMMED LAWAL GARBA, J.C.A.: A draft of the read judgment just delivered by my learned brother Joseph Tine Tur, JCA was read by me before today. His Lordship has incisively considered the lone issue which calls for decision in the appeal and the views expressed by him on the issue are the same with mine. I  wish to emphasize that there is no dispute that the cause of the Respondent’s action in the case from which this appeal emanated, had occurred or arisen “sometime in 1991”. The Respondent had in paragraph 18 of the Further Amended Statement of Claim filed on the 22/02/2007 at the High Court, averted as follows:
“Sometime in 1991, the uncles of the plaintiff, Francis U. Offiong, Cyril U. Offiong and other members of the family noticed some encroachment on the land situate at No. 30 spring Road, Calabar, whereupon the uncles of the plaintiff discovered the Defendant to be the person who has trespassed on the land at 30, Spring Road where he placed on the land sand, chips and other building materials in preparation for the construction of a building. He also removed beacon stones planted there by the plaintiffs surveyor.”
Since the claims by the Respondent in the suit, filed on 21/12/2004, were for declaration of title, trespass and injunction, the case was one for recovery of the land in question to which the provisions of Section 1 of the Limitation Law, Cap L 14. Laws of Cross River State are applicable. In fact, this was acknowledged and found on by the High Court in the decision appealed against when it stated at page 134 – 5 of the record of  the appeal that:-
“Time therefore is of the essence in particular as computed from the date the cause of action arose for the commencement of an action.
Gleaned from paragraphs 18, 19 and 21 of the further amended statement of claim and the testimony of the   Plaintiff/Respondent referred to by the Defendant/Applicant, there is no doubt that the cause of action in this suit arose in 1991 when the alleged trespass was said to have been committed by the defendant. By our Limitation Law between 1991 and 2004 when the present action was brought on the surface, it is quite obvious that the time allowed has since expired and the matter could be said to extinguish by the passage of time. The issue therefore to be determined in the instant case is whether in the circumstances of this action it can be statute barred by virtue of the Limitation Law of Cross river State 2004.”
The provisions of section 1 of the aforementioned limitation law are thus:-
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.”
From the admitted facts of the Respondent’s suit, the cause of action arose sometime in 1991 and the action in respect thereof was initiated or commenced in 2004; a period outside the time specifically prescribed and limited by the limitation law, and has become known in judicial practice, as statute barred action over which the court would lack the competence to adjudicate. See ADIMORA v AJUFO (1986) 6 SCNJ 18, (88) 1 NSCC, 1005; EGBE V ADEFARASIN (1987) 1 SCNJ 1; SANDA v KUKAWA L-G. (1991) 1 NWLR (174) 374; SPDC v FARAH (1995) 3 NWLR (382) 148; AREMO II v ADEKAYE (2004) ALL FWLR (224) 2113 at 2131; ARABELLA v N.A.I.C. (2008) 32 WRN, 1 at 26. I should point out that once a court has determined that an action was filed outside or after the expiration of the time limited by the relevant statute or law save for recognized exceptions, such as the existence of fraud, that would be the end of the case. In such a situation, the only legally viable option opened to the court and indeed power, is to strike out the action for being barred by statute. Unless the law or statute makes provisions for extension of time or exceptions, the court has no competence or power and cannot extend the time or look for excuses to avoid the application of the limitation of time prescribed. See AKINMOUYE v MILITARY ADMINISTRATOR, ONDO STATE (1997) 1 NWLR (483) 564 at 566 – 7; ABUBAKAR v NASAMU (2012) 2- 3 MJSC 1 at 55.
In the decision appealed against, the High Court after finding that the Respondent’s action was filed outside the ten (10) years period of time limited by the limitation law, went ahead to say and eventually somersaulted by holding that the Respondents action was not caught by the law because he “the plaintiff did not sleep over his right. He persistently pursued his right to sue and on each occasion he acted within time frame of the law.” The reason for this latter position was that the Respondent had instituted an action in 1992 which was abandoned by him and struck out by the court. Again he had filed another action in respect of the land in 2002, which was also struck out of the High court cause list.
I am in complete agreement with the reasoning of my learned brother in the lead judgment that the fact that the Respondent had filed fresh actions in 2002 and 2004 and did not apply for the relisting of the case which he had initially filed in 1992, but abandoned and was struck out, shows that the later cases, were not continuation of that earlier case, through the parties and subject matter might have been the same. As can be observed from the record of the appeal, even the case filed in 2002, as a fresh suit, was commenced out of the ten(10) year period limited by the limitation law, no pretence was made at all that it was a continuation of an earlier case that was no longer on the High court cause list. It must be noted that even though ordinarily an order striking a matter from the court’s cause list is not a foreclosure, until it was ordered to be relisted on the cause list by the court, it would remain comatose and practically dead, until revived and brought back to judicial life by such an order. Filing a new or fresh suit by the use of different or separate initiating and other processes of the court in respect of which appropriate fees were paid by a party and in respect of which a new identity in term of the date of filing and suit number were assigned by the Registry, cannot be said to be a continuation of an earlier suit that was abandoned and struck out by the court. This is a matter of practical facts based on the Rules of practice and procedure of the High Court and not technically. By filling fresh or new actions in 2002 and 2004, the Respondent left no room for any judicious doubt that he did not continue or even intend to continue the action he filed in 1992 which was struck out. He had clearly by those actions, forgotten and characteristically, abandoned the action he had filed in 1992 which was struck out.
The law recognizes that although a cause of action may last for eternity in a party, but in its wisdom, the limitation law restricts the right of a party to enforce such a right of action through judicial processes. For a party therefore to employ the judicial processes of a court of law to enforce his right of action against another, he needs to act diligently and timeously, by initiating or commencing the process of enforcing the right of action within the limit of the time prescribed in the relevant limitation law.
Otherwise, the right to undertake the action, and not the right of the action, would be lost permanently or forever. It is either a party acts within the time prescribed by the limitation law or holds his peace forever. This is also where the principles of equity comes in by which it is said to aid the vigilant and not the   indolent.
For the above and the more cogent reasons adumbrated in the lead judgment which I adopt, I too find merit in the appeal. The appeal is allowed by me in the terms set out in the lead judgment.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Joseph Tine Tur, JCA.
I am in total agreement with his reasoning and final conclusions.
Where a statute of limitation prescribed a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period.
Thus, an action instituted after the expiration of the prescribed period is said to be statute barred.
Ogunko Vs. Shelle (2004) 6 NWLR Pt 868 page 17, Osun State Government Vs. Dalami Nig. Ltd. (2007) ALL FWLR Pt 365 page 438.

It is said that time begins to run for the purposes of Limitation Law from the date the cause of action accrued. B.A. Plc Vs. Akinyosoye (1995) 1 NWLR pt 374 page 722, Shell Pet. Dev. Co. (Nig) Ltd. Vs. Farah (1995) 3 NWLR Pt.382 page 148, Jallco Ltd (1995) 4 NWLR pt 391 Page 534, Asaboro Vs. Pen Ocean Oil (Nig) Ltd (2006) 4 NWLR pt 971 page 595.
However, at the expiration of the limitation period, the litigant still has a cause of action, but unfortunately has no where to a ventilate it. For, this and the fuller reasons in the lead judgment, this appeal is meritorious and is therefore allowed.
I abide by all the other consequential orders contained in the lead judgment including that as to costs.

Appearances

B. OlusegunFor Appellant

AND

N.O. Amah with Ita E. Aye; Mrs. B. ArikpoFor Respondent