MR. JOSEPH CHUKWUEMEKA MOSINDI & ORS v. MR IFEANYI ACHUSI & ORS (2014)

MR. JOSEPH CHUKWUEMEKA MOSINDI & ORS v. MR IFEANYI ACHUSI & ORS

(2014)LCN/7367(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 9th day of July, 2014

CA/OW/317/2011

RATIO

ACTION: CAUSE OF ACTION; WHAT CONSTITUTE A CAUSE OF ACTION AND WHEN IS A CAUSE OF ACTION SAID TO BE STATUTE-BARRED

The law is trite that it is the combination of facts which give a person a right to judicial relief that is the cause of action. It is the interest and circumstances giving rise to enforceable claim see: –
NIGERIA PORTS PLC VS. BEECHAM PHARMACEUTICAL PTE PLC (2012) 18 NWLR (PT. 1333) 454 AT 480H TO 481 A – B WHERE NGWUTA, JSC SAID;

“The phrase “cause” connotes the totality of all materials facts necessary to establish a legal right in a particular case. ROSENTHAL VS. ALDERTON & ORS (1946) KB 474″ the term “cause for action” has been stated in Read vs. Brown (1889) 22 QBD 128 at 131 per Lord ESHER M.R denotes every fact though not every piece of evidence) which would be necessary for the Plaintiff to prove, if traversed, to support his right to the judgment of the Court.” See LASIS FADARE & ORS V. ATTORNEY GENERAL OF OYO STATE (1982) 4 SC 1 AT 6 -7 PER ANIAGOLU JSC.”

“A cause of action is said to be statute – barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Law or Act had elapsed. How does one determine the period of Limitation? The answer is simple by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave the Plaintiff a cause of action by comparing that date with the date on which the writ of summons was filed, this can be done without taking oral evidence from witnesses. If the time on the writ is beyond allowed by the Limitation Law then the action is statute.”

See FRED EGBE VS. JUSTICE A ADEFARASIN (1987) LPELR – (1032) 1 AT 32 D – E PER OPUTA JSC of Blessed memory. See also (1) ALHAJI JIBRIN BALA HASSAN VS. DR. MUAZU BABANGIDA ALIYU & ORS (2010) 17 NWLR (PT 1223) 547 AT 595 AND 619H – 620A.

(2) DR. TOSIN AJAYI v. PRINCESS (MRS) OLAJUMOKE ADEBIYI & ORS (2012) 11 NWLR (PART 1310) 137 AT 169 A – E where

ADEKEYE JSC, said:
“The yardsticks to determine whether an action is statute barred are:
a) The date 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.
Times begins to run for the purposes of the limitation law from the date the cause of action accrues” per. PETER OLABISI IGE, J.C.A

COURT; JURISDICTION; THE APPROPRIATE ORDER TO MAKE WHEN A COURT HOLDS THAT IT HAS NO JURISDICTION TO ADJUDICATE

I am of the settled view that when a court holds that it has no jurisdiction to adjudicate on a matter, the appropriate order to make is an order striking out the action/Suit and NOT AN Order dismissing the suit/action. I therefore agree with the submission of the appellants Learned Counsel that the Learned Trial Judge erred in dismissing the action See-
LAKANMI v. ADENE (2003) 10 NWLR (Pt. 828) 353 at 367 Paragraphs F-H where the Supreme Court per KALGO, JSC, held that: “Where however a court is satisfied that it has no jurisdiction to try a matter for any reason whatsoever, the matter should there and then be struck out. A fortiori where an appellate Court, as in this case, is satisfied that a lower court which tried a case had no jurisdiction to try the case which came to it on appeal, the proper order the appellate Court should make is to allow the appeal, strike out the case before that lower Court and declare the whole proceedings a nullity ab initio.” The position was reiterated recently in the case of OCHEJA EMMANUEL DANGANA V. HON. ATAL AIDOBO ALI USMAN & ORS (2012) 4 SCM 55 at 76 H where ADEKEYE JSC who read the leading judgment said: “It is trite that where a Court finds that it lacks jurisdiction to adjudicate on any matter, the proper Order to make is an order of striking out. Saleh V. Munguwo (2003) 1 NWLR (Pt.801) Pg. 221. Okafor V. Nnaife (1973) 1 ALL NLR (Pt.1) Pg 238.” per. PETER OLABISI IGE, J.C.A

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. MR. JOSEPH CHUKWUEMEKA MOSINDI
2. MR GODWIN MOSINDI
3. MRS MARCELINA AZUH (NEE MOSINDI)
4. MRS ANGELINA MORAH (NEE MOSINDI)
5. MRS MAGDALENE ELUEM (NEE MOSINDI)
6. MRS PATRICIA UZOKA (NEE MOSINDI) Appellant(s)

AND

1. MR IFEANYI ACHUSI
2. MR CHIDOZIE UMEBOSI
3. MR MICHAEL MOSINDI Respondent(s)

PETER OLABISI IGE, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling of Honourable Justice O. A. Otisi (now JCA) of the High Court of Justice Abia State delivered on 8th day of March, 2011 dismissing the Suit of the Appellants.

The Appellants had by their writ of summons issued out of the said Court on 24th day of October, 2008 claimed against the Defendants as follows:

CLAIM

The Plaintiffs Claim against the Defendant: –

“1. A DECLARATION that all that parcel of land/bungalow House therein situate at No. 40 St. Michael’s Road, Aba, Abia State, otherwise known as CHIBUZO CHAMBERS, is the bona-fide property of the Plaintiffs, bequeathed to them by their late father, PA ROBERT EMENEM MOSINDI of HOPE Rising Villa, Umuolo Street, Onicha-Ugbo, Aniocha North L.G.A. Delta State, who died Testate on 16/11/1964 at Ocha-Ugbo and who in his WILL of 1/11/1960 instructed inter alia, that the said free-hold house be sold and the proceeds accruing therefrom to be shared amongst the Plaintiffs (the surviving beneficiaries named therein in the WILL to the exclusion of late Mr. peter Mosindi and his heirs).

2. AN ORDER of perpetual injunction restraining the Defendant by himself, his agents, servants, workmen, privies or otherwise howsoever so described from unlawfully dealing with/defacing the bungalow house No. 40 St. Michaels Road, Aba, Abia State, and from further committing acts of trespass on the said land or dealing with the property in any manner inconsistent with the ownership rights of the Plaintiffs (the beneficiaries)

3. AND ANY OTHER ORDER or ORDERS that this Honourable Court may deem fit to make in the circumstances of this case.”

The writ was accompanied by statement of claim which was later amended. The Amended Statement of Claim was filed on 10th day of May, 2010 but dated the 6th day of May, 2010.

“The Appellants added two reliefs to their claim viz:

3. N50,000,000.00 (Fifty Million Naira) as general damages for wanton trespass on the land by the Defendants.

4. AN ORDER that the 3rd Defendant should give account to Claimants for all rents that he has collected and payment over any rents, found due on the taking of the said account”

Before then and precisely on 20th February 2009 the 1st Defendant filed his Statement of Defence wherein by paragraph 28 he pleaded as follows: –

28. “The Defendant shall at the hearing of this suit urge the Honourable Court to dismiss this suit as being frivolous and speculative and shall raise all legal and equitable defences in urging the court to dismiss the suit. The Defendant shall also contend as follows:

a. That proper parties are not before the Court.

b. The Plaintiff have no locus standi to maintain the action.

c. That the Suit is statute barred especially by virtue of the provisions of Section 17 of the Limitation Law of Abia State 1999.”

This was followed up by the Respondents in a motion on Notice dated 10th day of November, 2010 and filed on 26th day of November, 2010 praying for the following Order: –

“AN ORDER dismissing the above Suit as the Honourable Court lacks jurisdiction to entertain same and/or for being incompetent.”

The motion was predicated upon the following grounds namely:

“(1) The said suit is statute barred in view of the provisions of section 3 and 4 (2) and 17 of the Limitation Law Cap 24 Lands of Abia State of Nigeria 1991 – 2000.

(2) The Claimants lack the locus standi to institute the said action.

(3) The Claimants do not have any letters of administration in and over the subject matter of the suit and/or to administer same.”

The said motion was duly heard and the lower court delivered its ruling on 8th day of March, 2011 wherein the Learned Trial Judge held thus:

“Furthermore, the provisions of Section 17 are very clear.
By virtue of the said Section 17 (a) and (b), no action in respect of any claim to the estate of a deceased person shall be brought after the expiration of ten years from the date on which the right to receive the share or interest accrued. And, no action to recover arrears of interest in respect of any legacy or damages in respect of such arrears shall be brought after the expiration of ten years from the date on which the interest became due. The facts as pleaded clearly show that the claimants as beneficiaries brought no action to protect their interest in the Estate of late Robert within the prescribed period.

I agree with Mr. Inegbu that, having regard to the facts as pleaded by the Claimants/Respondents and, by virtue of a combined effect of the provisions of Section 3 and 4(2) as well as Section 17 of the Limitation of Law, the Claimants’ right to action has been extinguished. This action is therefore statute barred.

It is also my respectful view that the facts as pleaded do not reveal that there was any fraud, concealment or mistake to suspend the cause of action accruing to the Claimants. The Claimants already knew the facts on ground as at 1967 when the Will was read. The provisions of Section 33 of the Limitation Law therefore do not apply. A claim for account against the 3rd Defendant is, in my respectful opinion, also statute barred, having regard to the provisions of Section 17 (b) of the Limitation Law. See also: WOHEREM V. EMERUWA (2004) ALL FWLR (PT 221) 1570 at 1581.

The Claimants by their pleadings kept quite till after the death of Peter because they “feared him and avoided him” due to his alleged diabolical disposition. Even so, the law must take its course. In MERCANTILE BANK NIG. LTD V. FETCCO (NIG) LTD (1993) 3 NWLR (PT 540) 143 at 156 – 157 the Court of Appeal, per Tobi JCA (as he then was) said that by a statute of Limitation,

“…a Plaintiff has not the freedom of the air to sleep or slumber and wake up at his own time to commence an action against a Defendant.

When an action is adjudged statute barred, a Claimant cannot maintain a suit on the basis of the action. A Claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation laid down by the Limitation Law for instituting such action has elapsed. The action cannot be maintained or be validly instituted. See: ADEOMI v. GOVERNOR OF OYO STATE (2003) FWLR (PT 149) 1444 at 1466 – 146; P. N. UDOH TRADING CO. LTD V. ABERE (2001) II NWLR (PT 723) at 114. This action has been adjudged statute barred and therefore cannot be maintained by the Claimants or at all. In this circumstance, this Court has no jurisdiction to entertain the claim. It is accordingly hereby dismissed.”

The Claimants now Appellants were aggrieved by the said decision. They filed Notice of Appeal of consisting of two grounds against the ruling of the Learned Trial Judge. The said Notice of Appeal dated the 5th day of April 2011 was filed the same day. The two grounds of Appeal therein contained with their particulars are as follows:-

GROUNDS OF APPEAL

GROUND 1

“The Learned Trial Judge erred in law in dismissing Claimants’ claim as being adjudged to be statute barred and therefore held that the Honourable Court has no jurisdiction to entertain the suit, whereas the proper order to make in the circumstance was to strike out the suit and not dismissal.

PARTICULARS

The Learned Trial Judge failed to pay regard to Claimants pleadings and argument that their suit is not statute barred because the cause of action accrued on 31/5/2000 when 3rd Defendant, not being a beneficiary of the Will or any executor of same, unlawfully granted to himself a Power of Attorney, and registered same as No. 32/32/762 at Ministry of Lands and Survey, Land Deed Registry, Umuahia, Abia State, purporting it to have been granted to him by Late Robert Emenem Mosindi who died in 1964, or accrued on 18/10/2007 when 3rd Defendant sold the house to 2nd Defendant.

GROUND II

The Learned Trial Judge misdirected herself when she gave undue regard to technicalities instead of doing substantial justice as the case before her demanded.

PARTICULARS

The Claimants in their Amended Statement of Claim pleaded that Peter Mosindi (3. Defendant father) merely occupied the house until he died on 16/6/2001. Thereafter, 3rd Defendant fraudulently prepared a Power of Attorney for himself on which basis he sold the house to 2nd Defendant.”

The Appellants filed their Brief of Argument dated 17th day of April, 2012 on the same date. The Respondents Brief of Argument dated 18th day of April, 2013 was filed on 2nd day of May, 2013. Appellants filed Appellants’ Reply Brief of Argument on 11th day of February 2014. It is dated same day.

The Appellants’ Learned Counsel, M. O. Aghaobodo Esq. formulated two issues for determination viz: –

1. WHETHER THE CLAIMANT’S (SIC) CLAIMS AGAINST THE DEFENDANTS IS STATUTE BARRED?

2. WHETHER WHEN A COURT HAS NO JURISDICTION, THE PROPER ORDER TO MAKE IS AN ORDER FOR DISMISSAL OR FOR AN ORDER STRIKING OUT THE SUIT.

The Respondent Learned Counsel C. I. Inegbu Esq. formulated three issues which are as follows: –

(a) WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE HELD THAT THE ACTION IS STATUTE BARRED AND THEREFORE CANNOT BE MAINTAINED BY THE CLAIMANTS.

(b) WHETHER HAVEN (SIC) HELD THAT THE ACTION IS STATUE BARRED, THE LEARNED TRIAL JUDGE WAS RIGHT IN DISMISSING THE SUIT.

I am of the view that this appeal can be determined on the two issues raised by the Appellants. They will be treated seriatim.

ISSUE 1

WHETHER THE CLAIMANT’S CLAIMS AGAINST THE DEFENDANT IS STATUTE BARRED.

The Learned Counsel to the Appellants drew the attention of this Court to Sections 3, 4 and 9 of the Limitation Law, Laws of Delta State Cap L 11 which he said are in pari materia with the Limitation Law of Abia State which he reproduced. In the same vein he drew attention to section 33 of Limitation Law.

That the 3rd Defendant/Respondent took adverse possession of the house being claimed on 31/5/2000 when according to Learned Counsel, 3rd Defendant/Respondent fraudulently granted himself a Power of Attorney with respect to the land in dispute. That adverse possession could also be deemed to accrue on 18/10/2007 when the 3rd Respondent according to the Appellants actually sold the house to 2nd Defendant. He therefore submitted that Section 33 of Limitation Law which postpones Limitation period applies to the facts of this case and that the Appellants have cause of action. He submitted that the Learned Trial Judge did not correctly apply, the principles guiding the interpretation of statutes before coming to the conclusion that Section 33 of the Limitation Law did not apply. He relied on the case of ABAYOMI BABATUNDE V. PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD (2008) II W.R.N.I ratio 13 thereof that the person the Claimants sued is Michael Mosindi (3rd Defendant/Respondent) and not Peter Mosindi. That what transpired in 1967 at the High Court of Justice Benin City was only the reading of the will and no more. The Appellants also made allusion to what they described as “Above all the Defendants have equally averred that there was no will whatsoever”.

That the conduct of Defendants clearly disclose sufficient cause of action in favour of the Claimants to enable the court to assume jurisdiction.
He relied on the cases of:

1. IKINE & ORS VS. EDJERODE & ORS (2001) 8 NSQCR 341 at 354 E – F.
2. ADEKOYA VS. FHA (2008) 28 WLRN at 11 paragraphs 35 – 40.

He submitted that nothing can be more fraudulent than 3rd Defendant fraudulently granting to himself a Power of Attorney purporting same to have been granted to him by a Robert Emenem Mosindi who died in 1964 which Appellants approximated to 36 years as at 2000. That, that presupposes that the Power of Attorney was made post humously which Appellants Counsel submitted is not possible.

M. O. Aghaobodo Esq. stated that the law is settled, that in determining the period of Limitation, the Court has to look at the time the cause of action arose and compare it with when the writ of summons was filed. He relied on the case of ADEKOYA VS. F.H.A (supra) per NIKI TOBI JSC. He also cited and relied on the case of BELLA VS. ATT. GENERAL OF OYO STATE (1986) 5 NWLR (PT 45) 828 at 876. That the Claimants have rightly pleaded that they discovered on enquiry at the Lands Deed Registry, Umuahia that 3rd Defendant registered a Power of Attorney purportedly granted to him by late Robert Emenem Mosindi on 31-5-2000 as No. 32/32/762.

That the Claimants equally discovered that 3rd Defendant had granted 2nd Defendant Power of Attorney with which the 2nd Defendant also registered the Land as No. 79/79/887 on 18/10/2007. He submitted that this suit is not statute barred and that the Learned Trial Judge has jurisdiction to try the case on its merits.

Replying on issue one, the Learned Counsel to the Respondents C. K. Inegbu Esq. submitted that the trial court was right in her decision. That for the purpose of determining whether or not an action is statute barred, the period of Limitation is determined by looking at the writ of summons and statement of claim to discover the date they were filed and that the court will compare the date on those processes with the date of the accrual of action. That if the action is found to have been instituted outside the period allowed by law, the action becomes statute barred and the Court would lack the jurisdiction to entertain same. He relied on the case of MIL. ADMINISTRATOR EKITI STATE V. ALADEYELU (2007) 14 NWLR (PT. 1055) 619. The Learned Counsel to the Respondents stated that the Appellants pleaded in their Amended Statement of Claim that since the death of their father Mr. Robert Mosindi on 16th November, 1964, they have been prevented from the control or management of the said property by 3rd Defendant and his father Mr. Peter Mosindi; that they (Appellants) took various action including writing of letters to 3rd Respondent and his father for them to release the property to them but to no avail. That that was the time their cause of action arose and that Appellants ought to have instituted their action since 1964. He cited the cases of P. N. UDOH TRADING CO. LTD. VS. SUNDAY ABERE & ORS (2001) 11 NWLR (PART 723) 114 at 116.
That the action or suit of the Appellants was instituted 40 years after the cause of action accrued to them and as such they are caught by Section 30, Limitation Law of Abia State Cap 24. The Respondent’s Learned Counsel referred to paragraphs 7, – 20, 27 – 29 of the Amended Statement of Claim and Section 4 (2) of the Limitation Law of Abia State to contend that the cause of action to right to recover property whether under a will or intestacy shall be deemed to have accrued on the date the deceased died for the purpose of determination of whether the action was initiated or commenced within the time prescribed by law. He relied on the case of HAJIYA DUZU & ORS V. ALHAJI YUNUSA (2010) 10 NWLR (PART 1201) 80 per GARBA, JCA, and WILLIAM VS. WILLIAM (2008) 10 NWLR (part 1095) 364 at 371.

In reference to Section 17 of the Limitation Law heavily relied upon by the Appellants, the Respondents’ Learned Counsel submitted that the deceased died in 1964; that the right to receive shares under the will from the property accrued in 1967 when the will was read. That the action is also caught under Section 17 of the Limitation Law as well as Sections 3, 4 and 9 thereof. That the Appellants were wrong to have waited till the property was sold to the 2nd Respondent before bringing an action. He relied on the case of U.B.A PLC VS. ABDULLAHI (2003) 3 NWLR (PART 807) 359.

On reliance placed on Section 33 of Limitation Law by the Appellants, the Respondents’ contended that allegation of fraud concerning Power of Attorney cannot avail Appellants relying on Section 33 (5) (6) of the Limitation Law and having regard to the fact that 3rd Party interest who innocently purchased the property had set in. He relied on the case of OKONKWO v. CCB (NIG) PLC (2003) 8 NWLR (PART 822) 347 at 362 and BELLO VS. A.G. OYO STATE (1986) 5 NWLR (PART 45) 828.

He finally submitted on this issue that by the combined effect of Sections 3, 4 (2) and 17 of the Limitation Law Cap 24 Laws of Abia State 1991 – 2000 the Appellants’ rights have been extinguished. He urged this court to hold that the suit is statute barred.

The Appellants in their Appellants Reply Brief went into what appears to me to be an argument on the merit of the action and academic issues.
Some of the arguments border on giving of evidence in the brief by Learned Counsel to the Appellants.

The thrust of this appeal or the central issue is whether the Learned Trial Judge was right when he held that the Appellants action or suit is statute barred. The main plank of the Respondents’ Defence as encapsulated in paragraph 28 of the 1st Defendant’s statement of Defence and the application of the Respondents at the lower court is that by virtue of Sections 3, 4(2) and 17 of the Limitation Law of Abia State the Appellants action cannot be entertained by the lower court. The Appellants relied on Sections 9, 17 and 33 of the said Law to contend the contrary.

The provisions of the said Sections 3, 4 and 9 of the said Limitation Law are as follows: –

Section 4(2) of the Limitation Law of Abia State provides as follows: –

“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 accrues to some person through whom he claims, to that person.”

Section 4(2) of the said Limitation Law further provides: –

“Where any person brings an action to recover land of a deceased person, whether under a will or an intestacy, and the deceased person was on the date of his death in possession of the land, and was the last person entitled to the land to be in possession thereof, the right of action shall be deemed to have accrued on the date of his death.

Section 9(1) No right of action to recover land shall be deemed to accrue unless the land is in possession of some person in whose favour the period of Limitation can run anywhere under the foregoing provisions of this law any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

The combined effect of the Sections just reproduced is that a person who becomes entitled or has any right in any landed property taken over or trespassed upon without his consent by another person, the person entitled must within 10 years of the alleged take over or trespass sue the trespasser or transgressor to vindicate his right of ownership or possession to the land. In other words, the person entitled to the land must timeously institute or commence his action against the trespasser within the period of time, prescribed or limited by the Limitation Law otherwise an action or suit instituted outside the 10 years statutory period prescribed will become stale thereby rendering the court impotent and devoid of jurisdiction to entertain the claims. The court will become statutorily prohibited and its jurisdiction ousted from adjudicating on the said suit. The right of the Claimant over such piece or parcel of land will thereby terminate and extinguished. The position has been prominently made clear in numerous cases and the means, method and manner or discovering an action or suit that is barred by statute have been espoused. See: –
(1) OBA J. A. AREMO II VS. S.F. ADEKANYE (2004) 13 NWLR (PART 891) 572 at 592 A – H, 593 A – F PER EDOZIE, JSC.

(2) EGBE VS. ADEFARASIN (1987) 1 NWLR (PART 47) 1 at 20 – 21.

(3) CHIEF O. CHUKWU & ORS VS. AMADE & ORS (2012) 3 NWLR (PART 289) 136 AT 157 G – H TO 158 A. PER MUHAMMAD, JSC.

(4) A.G. RIVERS STATE VS. A.G. BAYELSA STATE & ANOR (2012) 10 SCM 1 AT 13 G – H PER GALADIMA, JSC.

The Appellants took refuge on Section 33 of the Limitation Law as postponing the period of Limitation of action in their favour because according to them they were not aware of the fraud perpetrated by 3rd Defendant/Respondent, who they alleged took adverse possession of the house on 31/5/2000 and fraudulently sold the house to 2nd Defendant in 2007. That adverse possession could also be said to have accrued in 2007. In effect cause of action accrued to the Appellants either 2000 or 2007 and upon that pivot they claimed they were within time stipulated for institution of action by them when they sued in 2008. The portion of Section 33 of the Limitation Law stoutly relied upon by Appellants says: –

“33 subject to subsection (4) where in the cases of any action for which period of Limitation is prescribed by this law either.

(a) the action is based upon the fraud of the Defendant, or

(b) any fact relevant to the Plaintiffs right of action has been deliberately concealed or from him by the Defendant or,

(c) the action is for relief from consequences of a mistake, the period of Limitation shall not begin to run until the Plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.”

(2) DR. TOSIN AJAYI v. PRINCESS (MRS) OLAJUMOKE ADEBIYI & ORS (2012) 11 NWLR (PART 1310) 137 AT 169 A – E where

I have critically and calmly examined the amended statement of claim dated 6th May, 2010 and filed on 10/5/2010 particularly paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21 and 28(1) (2) (3) (4) thereof and I am satisfied that the findings of the Learned Trial Judge cannot be faulted based on the writ of summons and amended statement of claim filed by the Appellants.
Section 33 of the Limitation Law is clearly of no avail to the Appellants. The rights of Appellants (if any) to the property in dispute were well known to them concerning the property since 1967. Take for instance, by 1961 what they pleaded in paragraphs 12, 13, 15, and 16 of amended statement of claim the Appellants knew that cause action accrued to them over twenty years before they instituted this action. The said paragraphs read:

“12. The Claimants aver that when it became obvious that Peter Mosindi had no share in the WILL, Peter vowed to make it impossible for the will to be actualized either by the Executors or the beneficiaries, even though his own share of the bequest in the WILL is intact. Peter had always had diabolical disposition so the claimants feared him and avoided him until he died.

13. By a letter dated December 1974 from all the beneficiaries of the Estate of the Testator, addressed to Peter Mosindi, he was requested to surrender the title documents of the said house to the Claimants (beneficiaries) to facilitate the sale of the house. Claimants shall rely on the said letter at the trial.

15. That considering the neglect in Responding to the said letter by late Mr. Peter Mosindi, the Claimants acting through their solicitor, Sylvester Chuks Ehikwe Esq., wrote a letter to the Administrator General and Public Trustee c/o Ministry of Justice Benin City to intervene in the said usurpation of the Estate of Late Pa Robert Emenem Mosindi by Mr. Peter M. Mosindi and his two sons. Claimants shall at the trial of this act on rely on the said Solicitor’s letter dated 10/7/91.

16. The Claimants aver that after the death of Peter Mosindi, his sons 3rd Defendant and Benjamin Mosindi obtained the title documents to the aforementioned bungalow, continued with the usurpation of the estate exclusively, to their benefit and to the detriment of the Plaintiffs, who are lawfully entitled to the exclusive enjoyment/proceeds arising there from.”

The Learned Trial Judge was/is right in holding that the Appellants action is statute barred and that the Appellants cannot maintain the action against the Respondents. Consequently the lower Court lacked the jurisdiction to adjudicate on the Appellants suit. Issue 1 is resolved against the Appellants.

ISSUE 2

WHETHER WHEN A COURT HAS NO JURISDICTION, THE PROPER ORDER TO MAKE IS AN ORDER FOR DISMISSAL OR AN ORDER STRIKING OUT THE SUIT?

It is the submission of the Learned Counsel to the appellants that in as much as the lower Court did not delve into the merits of the Appellants case it was improper for the trial court to make an Order dismissing the appellants suit instead of striking it out upon its holding that the court lacked jurisdiction to adjudicate on the case. The Learned Counsel to the Appellants M.O. AGHAOBODO Esq. relied on the following cases to support his position viz:

1. MADUAFOKWA V. ABIA STATE GOV. (2010) ALL FWLR (PART 516) 563.

2. UDO V. AKPAN (2010) ALL FWLR (PART 538) 94 and

3. KOKOORIN V. FATIGI LOCAL GOVT. (2010) ALL FWLR (PT 533) 1977.

He urged this Court to set aside the order of dismissal of the action made by the lower Court. The Learned Counsel to the respondent strongly supported the order of dismissal made by the learned trial Judge. That the action having been caught by statute of limitation was rendered a nullity, void and of no legal effect or consequence. To him that is the more reason the order of the learned trial Judge ought to be sustained. He relied on the following cases:

1. ODUBEKO VS FOWLER (1993) 7 NWLR (PART 308) 637.

2. ABUBAKAR VS NASAMU (NO. 1) 17 NWLR (PT.1330) 407.

3. NPA PLC VS LOTUS PLASTICS LTD (2005) 19 NWLR (PART 959) 158.

4. OWNERS OF THE M.V. ARABELLA VS N.A.T.C (2008) 11 NWLR (Pt. 1097) 182 at 190 and

5. ANUKWU VS EZE (2012) 11 NWLR (PT 1310) 50.

He urged the Court to uphold the order of dismissal of the action.

“Where however a court is satisfied that it has no jurisdiction to try a matter for any reason whatsoever, the matter should there and then be struck out. A fortiori where an appellate Court, as in this case, is satisfied that a lower court which tried a case had no jurisdiction to try the case which came to it on appeal, the proper order the appellate Court should make is to allow the appeal, strike out the case before that lower Court and declare the whole proceedings a nullity ab initio.”

The position was reiterated recently in the case of OCHEJA EMMANUEL DANGANA V. HON. ATAL AIDOBO ALI USMAN & ORS (2012) 4 SCM 55 at 76 H where ADEKEYE JSC who read the leading judgment said:

“It is trite that where a Court finds that it lacks jurisdiction to adjudicate on any matter, the proper Order to make is an order of striking out.
Saleh V. Munguwo (2003) 1 NWLR (Pt.801) Pg. 221. Okafor V. Nnaife (1973) 1 ALL NLR (Pt.1) Pg 238.”

Issue 2 is resolved in favour of the Appellants. However, notwithstanding that issue two has been resolved in favour of the Appellants their appeal remained moribund. The Appellants appeal is hereby dismissed. The Appellants Suit No. A/351/2008 culminating into this appeal is hereby struck out for lack of jurisdiction on the part of the lower Court. There will be no order as to costs.

RAPHAEL CHIKWE AGBO, J.C.A: I agree.

FREDERICK O. OHO, J.C.A: I have had the opportunity of reading before now the judgment just delivered by my learned Brother, Peter Olabisi Ige, JCA and with which I agree entirely. I feel he has covered all the points raised before us and have nothing more to add. I would also dismiss the appeal.

Appearances

M. O. Aghaobodo Esq.For Appellant

AND

I.C. Inegbu Esq. with C.A.O. Metu Esq.For Respondent