MR. PAUL N. OKORO V. HON. ONYA E. OSIM & ORS (2012)

MR. PAUL N. OKORO V. HON. ONYA E. OSIM & ORS

(2012)LCN/5493(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 27th day of June, 2012

CA/C/34/10

RATIO

ACTION: MEANING OF A CAUSE OF ACTION

a) wrongful act or conduct of a defendant which gives the plaintiff right to complaint and
b) the consequent injury or damages.

See ODUNTAN v. AKOBU (2000) 7 SC 84 (Pt. II) 106; EGBUE v. ARAKA (1988) 3 NWLR 598; BELLO v. A-G, OYO STATE (1986) 5 NWLR (45) 828; ASABORO v. PAN OCEAN OIL (NIH) LTD. (2006) 4 NWLR (971) 595. PER MOHAMMED LAWAL GARBA, J.C.A.

ACTION: WHEN WILL A CAUSE OF ACTION BE SAID TO ARISE

The law is also known now that a cause of action is said to arise and accrue to a party when all the above facts which if proved, would entitle him to a judicial remedy, happened or are complete and there exist another against whom the remedy can be claimed. When all the facts on which a party relies in support of a claim are completed or complete against a defendant, then a cause of action would be said have arisen and accrued to the person entitled to claim a judicial remedy against another. SHELL PET. DEV. CO. (NIG) LTD. v. FARAH (1995) 3 NWLR (382) 148 at 154; A-G, LAGOS STATE v. EKO HOTELS LTD. (2006) ALL FWLR (342) 1398. PER MOHAMMED LAWAL GARBA, J.C.A.

ACTION: PRINCIPLE OF LIMITATION OF AN ACTION

The principle of limitation of an action is one that requires a party who has a cause of action that accrues to him, to by the operation of the relevant law as a matter of obligation, seek prompt remedy for the breach of his right through the judicial process within the time limited by the law otherwise the right to do so would become, unenforceable at the expiration of the time limited. Where an action for a judicial remedy was not commenced, initiate or brought within the time prescribed and limited by a limited law, it becomes time or statute barred and cannot thereby be commenced or maintained outside the period of the time so limited. When of action, loses the right to enforce it through the courts because the period of time laid down by the relevant limitation law, has lapsed or expired. In the case of AREMO II v. ADEKANYE (2004) 7 SC (Pt. II) 28; (04) 13 NWLR (891) 572 at 592, the Supreme Court had advanced reasons or justification for the provisions of limitation laws to include:-

1) that long dormant claims have more cruelty than justice in them.

2) That a defendant might have lost the evidence to disprove a stale claim and

3) That persons with good causes of action should pursue therein with reasonable diligence. See also EGBE v. ADEFERASIN (1987) 1 NWLR (47) 1 at 20 – 1.

“The issue of whether or not an action has been statute barred is one touching on jurisdiction of court for once an action has been found to be statute barred, although a plaintiff may still have his cause of action, his right of action, that is, legal right to prosecute the action has been taken away by statute. In the circumstance, no court has the jurisdiction to entertain his action.”

See also OFILI v. C.S.C. (2008) 2 NWLR (1071) 238; MIL. ADM. OF EKITI STATE (2007) 14 NWLR (1055) 619; W.A.P.C. PLC. V. ADEYERI (2003) 12 NWLR (835) 517. The legal effect of an action being statute barred by the operation of a limitation law is to render such an action not justiceable and the right of action barren. PER MOHAMMED LAWAL GARBA, J.C.A.

LIMITATION: WHETHER IGNORANCE OF THE PERIOD OF LIMITATION IS A DEFENCE

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

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

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

MR. PAUL N. OKORO Appellant(s)

AND

1) HON. ONYA E. OSIM
2) GOVT. OF CROSS RIVER STATE
3) A-G, CROSS RIVER STATE
4) MIN. OF LANDS/HOUSING
5) THE REGISTRAR OF DEEDS, CRS.
6) LAND USE & ALLOCATION COMMITTEE, CROSS RIVER STATE Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant had taken out a writ of summons from the Registry of the Cross River State High Court for himself and on behalf of the family of late chief Paul O. Okoro on which were endorsed, claims for declarations and injunction against the Respondents in respect of the property at No. 105 Calabar Road, Calabar.
After service of the writ which was accompanied with the statement of claim to which several copies of documents were annexed on the Respondents (as defendants), the 1st Respondent vide a motion filed on the 8/7/08, prayed the High Court for the following reliefs:
1) AN ORDER of this Honourable Court dismissing this present suit for being statute barred.
2) AN ORDER of this Honourable Court that the Plaintiff on record lack the standing to initiate this present suit.
3) And such further or other orders as this Honourable Court may deem fit to make in the circumstance.
In reaction to the said motion, the Applicant deposed to and filed a 12 paragraph counter-affidavit on the 30/7/08 to oppose it.
The High Court after hearing arguments from the learned counsel for the parties to the motion, delivered its ruling therein on the 24/4/09, dismissing the Appellants’ suit for want of locus standi on his part and for the suit being statute barred. Being aggrieved by that decision, a notice of 6 grounds of appeal was filed for the Appellant against it on the 15/7/09.
In line with the requirement of the Rules of court, briefs of argument were filed by the learned counsel for the parties to the appeal as follows: – Appellants’ brief on the 7/5/10, the 1st Respondent’s brief on the 11/5/12 but deemed on 22/5/12 and the 2 – 6th Respondents’ brief on the 9/3/12 but deemed on the 22/5/12.
The briefs were adopted by the learned counsel for the parties at the oral hearing of the appeal on 22/5/12 as their respective submissions in support of their positions in the appeal which they urged us to uphold.
Mr. George N. Neji, Esq., the learned counsel for the Appellant had said at paragraph 3.0. on page 4 of the Appellant’s brief, that the following issues fall for decision in the appeal:-
“1. Whether the learned trial judge was right in holding that the property in dispute was vested in Paul Okoro & Sons Ltd. so as to deprive the appellant of the requisite locus to sue as representative of the Chief Paul Okoro (grounds 1 and 2).
2. Whether the learned trial judge was right in holding that the plaintiff’s cause of action arose in 1972 without the benefit of evidence at a trial of what transpired between that time and when the case was filed (grounds 3 and 6).
3. Whether the learned trial judge property evaluated the allegations of fraud raised by the plaintiff in the statement of claim before dismissing the action on the ground that it was statute barred (grounds 4 and 5)”.

For Mr. E. E. Osim, Esq., for the 1st Respondent, two issues arise for determination in the appeal as follows:-
“1. Whether the Appellant’s document, a letter dated the 5th day of June, 1972, acted upon by the trial court to deprive the Appellant the standing to sue was not an admission against interest to be acted upon?
2. Whether taking a look at the Writ of Summons and the statement of claim vis-Ã -vis the 1st Respondent’s Notice of Preliminary objection, there are no fact entitling the trial court to hold that the suit as it were, was statute barred, albeit the allegation of fraud by the Appellant?”

The learned Director Civil Litigation, MOJ, Calabar, Ikoi E. Ikona, Esq., for the 2nd – 6th Respondents had set out two (2) concise issues for determination in the following terms:-
“1. Whether the trial court was right to hold that the Appellant lacked locus standi to institute the matter?
2. Whether it was right for the trial court to hold that the matter is statute barred?”

A calm reading of the grounds contained in the notice of appeal would show that the real grievances or complaints by the Appellant which run through all of them are two fold;
1) that the High Court erred in holding that he lacked the locus standi to institute the action and
2) that the High Court was wrong in law to hold that the action was statute barred.

These are the issues which I said were concisely put by the learned DCL for determination above. These issues for being precise in presenting the crucial complaints against the ruling of the High Court and more derivable from the grounds of the appeal, are the germane ones which require decision by the court in the appeal. They have been fully addressed by the learned counsel for the parties in their respective briefs and so I intend to use them in the determination of the appeal. In fact, the two issues are what were differently framed by the learned counsel for the Appellant and the 1st Respondent as could easily be discerned from their formulations.
I now review the submissions by learned counsel on the said issues:

ISSUE 1
Whether the trial court was right to hold that the Appellant lacked locus standi to institute the action. The submissions for the Appellant on the issue are to the effect that the finding by the High Court that the property in dispute belongs to Paul Okoro & Sons Ltd. was based on the contention of the 1st Respondent that Chief Paul Okoro had assigned the property to the said company as per the letter dated 5/6/72 written to the then Military Governor of South Eastern State wherein he said that it belonged to the company. It was argued that there was nothing in the statement of claim before the High Court to suggest the property in dispute vested in the said company as it was acquired by a deed of lease dated 1/6/03, registered as No. 68 at page 68 in volume 195 of the Register of Deeds, Lands Registry Office, Calabar. Further, that the only transactions in respect of the property were an equitable, mortgage dated 29/9/64, registered as No. 6 at page 6 of Volume 403 and a power of attorney dated 7/6/77 and registered as 52 at page 52 of Vol. 11, at the Land Registry, Calabar, which were pleaded by the Appellant and copies attached to the statement of claim. Learned counsel for the Appellant had argued that title to property can never be presumed, or implied, but must be based on an instrument which confers it and so the High Court erred when it relied on the contention of the counsel for the 1st Respondent to hold that the property belonged to the company which was said to be a stranger to the property. He said it was premature to make the finding because parties were yet to join issues in the case and maintained that it was based on address of counsel, which was said to be speculative. Cases of IVEIENAGBOR v. VAZUAYE (1999) 9 NWLR (620) 552 and OVERSEAS CONSTR. CO. (NIG) LTD. v. CREEK ENT. (NIG) LTD. (1985) 3 NWLR (13) 407 were referred to on the submissions. According to learned counsel, the High Court did not properly evaluate the letter dated 5/6/72 before finding that the property belonged to the company and this court can do so, relying on IWUOHA v. NIPOST LTD. (2005) 8 NWLR (822) 318 and OLAGUNJI v. ADESOYE (2009) 8 NWLR (1146) 225. In any event, he contended, where the court finds that a plaintiff lacks the locus standi to sue, the proper thing to make an order striking out and not dismissing the suit as was done by the court in the ruling appealed against. He urged us to hold that the finding that the property in dispute belonged to Paul Okoro and Sons Ltd. was perverse and set it aside.
The learned counsel for the 1st Respondent had submitted that the letter dated 5/6/72 was of the Appellants’ statement of claim and case which the High Court had properly used and relied in the determination of the objection, as an admitted fact which needed no further proof. Because the said letter was said to speak for itself, he argued that it was erroneous to insinuate that High Court ought to have disbelieve the content of the letter which is evidence of admission against interest that can be relied on by that High Court. Cases of ASIKA v. ATUANYA (2008) ALL FWLR (433) 1293 at 1319; ABAJE v. IDOWU (2011) 7 SCM 29 at 42 and FAGUNWA v. ADIBI (2004) 19 NSCQR, 415 at 434 were cited as authorities for the submissions and it was argued further that the letter was evidence which supported the finding by the High Court. We were urged to resolve the issue in favour of the 1st Respondent and against the Appellant.

For the 2nd – 6th Respondents, after defining the meaning of locus standi and what a plaintiff is required to show to prove same, it was submitted that the question whether a plaintiff has the locus standi to institute an action is determined by a consideration of all the facts deposed in a statement of claim. That for a person to have locus standi, he must show in his pleadings that inter alia, he has personal stake in the outcome of the case and a legal right or sufficient interest peculiar to him that is threatened by the Defendant. The letter dated the 5/6/72 at p. 22 of the record of the appeal, along with other correspondences at pp. 24, 25, 26 and 27 of the record were referred to and said to clearly show that the property in dispute belonged to Messrs P. O. Okoro & Sons Ltd. thereby supporting the finding by the High Court that the Appellant lacks the locus standi to sue for P. O. Okoro family.
I would as usual, tarry here to consider the merit of the submissions on the issue. I would start by saying that the issue of the legal capacity or standing, simply known as locus standi in latin, of a party to initiate or institute an action in a court of law, is of one of a fundamental nature and crucial effect in judicial proceedings because it goes to and touches not only the competence of the party to bring the action against whom it was raised but also that of the court to entertain the action in which it was raised. In the case of YUSUF v. KODE (2002) 6 NWLR (762) 231, it was held by the Supreme Court that:
“The issue of locus standi is fundamental to adjudication. It touches on the issue of jurisdiction. Where it is established that a plaintiff has no locus standi to sue, it means that the court had no jurisdiction to entertain the action, which would be liable to be struck out.”
See also AJAO v. SONOLA (1973) 3 SC, 119; SODA v KURINGA (1992) 8 NWLR (261) 632 at 638; EMEZIE v OSUAGWU (2005) 2 SC (11) 128 at 141. When a party’s standing or capacity to sue arises in an action, the question that needs to be determined is whether the party whose standing is in issue is a proper party to request an adjudication of the particular issues raised in the case and not whether the issues are justiciable. Where a party is found not to have the standing to sue, it means in effect that there is no proper plaintiff/party and that such a party is incompetent or incapacitated in law, to institute the action. As a consequence, the court’s jurisdiction to entertain the action would be lacking too; OLORIODE v. OYEBI (1984) 5 SC, 1; OWODUNNI v REG. TRUSTEES OF C.C.C. (2000) 6 SC (111) 60. The moment a court finds that a plaintiff lacks the legal standing to initiate an action filed before it thereby making the action incompetent in law, the proper step for it to take next would be to make an order striking out the action for want of proper constitution as to the parties. See REG. TRUSTEES OF IFELOJU FRIENDLY UNION v. KUKU (1991) 5 NWLR (189) 65; LADESOBI v. OGUNTAYO (supra); EMEZI v. OSUAGWU (supra); CBN v. KATO (1994) 4 NWLR (339) 446.

The learned counsel for the parties are right on the law that in the determination of whether a party has the legal standing to sue in an action, the relevant documents the court should look at and consider, are the writ of summons and the statement of claim filed by the party. The requirement is that the statement of claim should be examined in its entirety along with the writ and not isolated portions thereof or alone, without the writ. See ASILOWURA v. DISU (2000) ALL FWLR (333) 1613; CHRISTIAN OUTREACH MIN. INCORP. V. COBHAM (2006) ALL FWLR (310) 1675; LADEJOBI v. OGUNTAYO (2004) 7 SC, 159. It is also the law that in the determination of the standing or capacity of a party to sue, it is unnecessary for the court to take evidence outside the writ of summons and statement of claim. See OKON v. UBI (2006) ALL FWLR (328) 717 at 746 -7.
The complaint of the Appellant in the issue as reflected in the submissions of learned counsel above, is that the finding by the High Court that he lacks the locus standi to institute the action was based on the contention of the learned counsel for the 1st Respondent and not supported by evidence. Is that submission correct? The answer would be borne out by the relevant portion of the ruling by the High Court which is at page 92 – 3 of the record of the appeal. It is as follows:-
“The defendants further contend that Late Chief Paul O. Okoro had assigned the property in issue to Paul Okoro and Sons Ltd., so the family of Late Chief Paul O. Okoro have no nexus to it to take out this action (Refers to paragraph 5 of a letter dated 5/6/72 attached to the Statement of Claim). That letter was written by late Chief Paul O. Okoro to the Military Governor of Cross River State in 1972.
It is thereon stated that the property belongs to Paul Okoro and Sons Ltd. In fact, the writer wrote and signed the letter as Managing Director of Paul Okoro & Sons Ltd. That was the position as at 5/6/72. There is no evidence before me that title to the property left Paul Okoro & Sons Ltd. It is elementary that Paul Okoro is a different entity from Paul Okoro & Sons Ltd. This action is not taken for Paul Okoro & Sons Ltd., the owner of the property as at 5/6/72. I have said that the title has not been shown to me to have moved back to late chief Paul O. Okoro on behalf of whose family this action is taken. It would have made a difference if the company was just Paul Okoro & sons but being a Limited Liability Company it gives rise to serious incidences. I find and hold therefore that the Plaintiff (s) on record lack the locus standi to institute any action over the property of a limited liability company like Paul Okoro & Sons Ltd. This action is in consequence dismissed.”

It is clear that what the High court did in the above extract was to make reference to the submissions by the Respondents on their objection that the Appellant lacked locus standi to institute the action and then considered the basis of the submissions; i.e. the letter dated 5/6/72, which was part of the Appellant’s statement of claim and case before it, before the finding that the contents of the letter had stated that the property in dispute belonged to Paul Okoro & Sons Ltd., which was a different legal entity from Paul Okoro, on whose behalf the Appellant had brought his action. The basis of the finding by the High Court was therefore not the submission of counsel but the letter which was part of the Appellant’s case. The Appellant had not at any stage suggested that the letter in question was not written by P.O. Okoro and Sons Ltd. or that the letter did not expressly state that the property in dispute was assigned by the said P. O. Okoro to his company: P.O. Okoro & Sons Ltd. It may be recalled that the law is that in the determination of the legal standing of a party to sue, the court is require to look at and consider, in particular, the statement of claim filed by the party. Like I said before now, the letter in question was part of the statement of claim filed by the Appellant and so in the determination of the question of the Appellant’s standing to institute the action before the High court was not only entitled but had the duty, to consider the Appellant’s statement of claim in its entirety and then decide the issue. This was all that the High Court did in the finding above and it would be a clear misconception to say that the High Court had relied on the contention of counsel for the finding or that there was no evidence to ground it. Learned counsel had argued that it was the deed of lease by which P. O. Okoro acquired the property in question that should be used in the determination of title to the property in dispute. He needs to be reminded that it was the same beneficiary of the deed of lease in question who admittedly was the author of the letter dated the 5/6/72 in which he said he had assigned the property acquired by him in the lease, to his own company; P. O. Okoro & Sons Ltd. Both the lease and the letter dated the 5/6/72 are part of the Appellant’s case and he cannot be seen to dispute or refute any one of them. The fact that one of them turns out not in his favour does not mean that the High Court should close its eyes to it or discountenance it in the determination of the objection challenging the legal standing of the Appellant to sue in the case. The High Court had properly and rightly used and relied on evidence, which was placed before it by the Appellant himself in the statement of claim to make its finding on the objection to the Appellants standing to institute the action before it and did not go outside the recognized parameters in law, in the process. Its finding cannot in the circumstances be said to be perverse since it was supported by the unchallenged evidence that was before it.
The learned counsel for the Appellant had also contended on the Issue that it was premature for the High Court to have determined that the property in dispute vested in Paul Okoro & Sons Ltd., without determining whether there was a valid deed transferring the property to it and because parties did not join issues yet.
I would like to point out that because the objection or issue of a plaintiff’s legal standing to sue goes to the jurisdiction of a court to entertain the action in which it was raised, the law requires that the moment it arises, the court should decide it first before taking further steps in the action. This is to avoid what might turn out to be an exercise in futility in the event that the action was not properly constituted as to the parties, thereby rendering it incompetent and robbing the court of the requisite jurisdiction to entertain it. See METILELU v. OLOWO-OPEJO (2006) ALL FWLR (337) 418; OWODUNNI v REG. TRUSTEES OF C.C.C. (supra); COMM. FOR L.G. v EZEMUOKWE (1991) 3 NWLR (181) 615. In the premises of the law, it was not premature for the High Court to determine the objection raised by the 1st Respondent to the legal standing of the Appellant to sue at the stage it did. Let it be remembered that the basis of the objection was the letter dated 5/6/72 by which the property in dispute was stated to belong to P. O. Okoro & Sons Ltd., the foundation on which the challenge to the Appellant’s standing was predicated. It was the letter rather than the High Court that determined in who the property in dispute vested for the purposes of the objection to the Appellant’s standing to institute the action. The High Court only spoke for the letter by making the pronouncement on the contents which were not disputed by the Appellant howsoever and it was not premature for the High Court to have done so at that stage.
Furthermore, the High Court did not have to wait for issues to be joined in the case by the parties before determining, the issue of the Appellant’s standing to sue because like I restated the law earlier, it was required to confine itself for the determination of the issue, to the Appellant’s writ and statement of claim. So even if the Respondents had filed statements of defence to join issues with the Appellant in the case, the High Court could not have properly made use of the statement of defence in its consideration of the issue. In the case of ADESOKAN ADEGOROLU (1993) 3 NWLR (179) 293 at 305 – 6, it was held that:-
“In an application to determine whether a plaintiff has locus standi or not, the Judge is bond to confine himself within the four walls of the writ of summons and the statement of claim and no more, as the issue of locus standi is a matter of law. Even if the statement of defence has been filed at the time the objection was made, the Judge would still be bound to confine himself to the statement of claim of plaintiff to decide whether he have a locus standi.”

For the above reason, once again, it was not premature for the High Court to have made its finding on the objection before it at the stage it did. Because the Appellant’s statement of claim shows that the property in dispute belonged to P.O. Okoro & Sons Ltd; and not the late Chief Paul O. Okoro in whose stead the instituted the action before the High Court, that court was right in holding that the Appellant lacks the requisite legal standing in law; locus standi, to sue for declaration of title and injunction in respect of the property on behalf of the family of the late Chief. The fact that the late P.O. Okoro was the “Managing Proprietor” of the limited liability company and therefore its “alfa and omega” would not ipso facto vest in him, the capacity to, alone, sue in respect of the property belonging to the company. Consequently, the Appellant and family who claim through him, lack such capacity. In the result, I find no merit in the submissions for the Appellant on the issue which I resolve in the affirmative and against the Appellant.
Ordinarily, this outcome on the issue 1 would have been sufficient to dispose the appeal because since the Appellant lacks the standing to institute the action before the High Court whether or not the action was statute barred would no longer be of any moment for the purpose of the action and the appeal. It is the law as set down by the Supreme Court in cases such as BALOGUN v. LABIRAN (1988) 3 NWLR (80) 66 at 80 and COOKEY v. FOMBO (2005) 5 SC (Pt. 11) 102 at 111, that where an issue or other issues have been subsumed in the one decided, there would be need to consider the other issues. The position was very recently restated in the case of UZUDA v. EBIGAH (2009) 15 NWLR (1163) 1 at 27, para F – G by the apex court when it said:-
“The Court of Appeal, being an intermediate appellate court whose judgment is not final as the decision of the Supreme Court, has the duty to decide all issues submitted to it for adjudication unless issues can be subsumed under another one or where the court frames its own issues that encompasses all the issues placed before it, or where the issue is hypothetical or an academic issue.”
In this appeal the issue of lack of locus standi on the part of the Appellant and my resolution of the issue against him, has clearly subsumed the other issues in the appeal.
The submissions for the Appellant on the issue 2, after definition of what a cause of action was, are that the facts and circumstances that enable a plaintiff to make a claim against a defendant can only be garnered from the writ of summons and the statement of claim, to which the court was to restrict itself. The case of 7UP BOTTLING CO. LTD. v ABIOLA & SONS BOTTLING CO. LTD. (2001) 13 NWLR (730) 469, among others, was cited on the submission. Learned counsel also cited the case of MOBIL v. UWEMEDIMO (2006) ALL FWLR (313) 116 where it was said to have been held that the approach in determining the period of limitation by looking at the statement of claim to determine when the wrong that gave rise to the cause of action was committed and when the action was filed, may not be amenable where more is needed by way of evidence at a trial to determine the date of the wrong that has given rise to the rise the cause of action. According to learned counsel for the Appellant, the facts in the Appellants statement of claim show that the cause of action was not limited to the confiscation of the property in dispute but also the purported sale thereof by the Abandoned Properties of Committee, to Chief E. O. Onya which the Appellant had pleaded he did not know about until after the death of his father in 2002. It was his contention that there was therefore no clear indication of when the cause of action arose and it should be determined at the trial, saying that it was unfair to tie the Appellant to 1972 without giving him an opportunity to present evidence. He cited the case of HENRY STEPHENS ENG. LTD. v. S. A. YAKUNU NIG. LTD. (2009) 10 NWLR (1149) 416 on the point. In further argument, counsel said that the Governor of Cross River State had published in Gazette No.50 Vol. 4 of 1971, that the property in dispute was required for public purposes under the Public Lands Acquisition Law, and to deprive the Appellant’s family of the benefit in it, there must have been strict compliance with the provisions of that law. The case of OGUNLEYE v. ONI (1991) 2 NWLR (135) 745 was cited and it was submitted that the grant of the property to Chief E. O. Onya could not be construed as being for public purpose and that where land was not properly acquired for a public purpose, the acquisition would be invalid notwithstanding the lapse of time between it and the transfer to a third party. Reliance was placed on LAWSON v. AJIBULU (1991) 6 NWLR (195) 44 and ONONUJU v. A-G, ANAMBRA STATE (2009) 10 NWLR (1148) 182 as authorities for the position. The Appellant’s case was said to be a proper one for the court’s intervention by setting aside the decision of the High Court and remitting the case for full trial. We were urged to do so.
The learned counsel for the 1st Respondent submitted on the issue that the Appellant is writ of summons and statement of claim had made it clear that he started pursuing his claim in 1972 and so there was no need to suggest the fishing for further evidence. Paragraphs 15 -20 and 22 -25 of the Appellant’s statement of claim as well as pages 2-8 and 19 of the record of the appeal were referred to and it was argued that the time when the cause of action accrued was ominous to call for oral evidence, and that the case of MOBIL v UWEMEDIMO (supra) was inapplicable. It was the further argument of learned counsel that the Abandoned Property Act Laws of the Federation 2004 takes the Appellants action outside the pale of the case of OGUNLOYE v. ONI (supra) under section 1(1) and (2) thereof. In addition, it was submitted that the Appellant was aware of the part played by the Abandoned Properties Committee but did not make it a party to the action and so cannot effectively raise the issue of fraud against it because Section 16 of the Limitation Law does not avail him as the action did not fall within the exception therein. We were urged to resolve the issue in favour of the Respondents.
For the 2-6th Respondents’ after stating the general principles on the application of limitation law and citing authorities thereon, section 1 of the Limitation Law, Cap 14, Laws of Cross River State was quoted and it was submitted that the Appellant’s writ and statement of claim have sufficiently disclosed that the cause of action arose in 1972 when the Government of South Eastern State acquired the property in dispute. Paragraphs 16 – 21 of the statement of claim were referred to and it was contended that the Appellant’s action was statute barred as at the 23/4/8 when it was filed, relying on BANK OF THE NORTH LTD. v. GANA (2006) ALL FWLR 185.
On the application of Section 31 (a) – (c) of the limitation law, it was submitted that the 2 – 6th Respondents did not commit any fraud or conceal any fact from the Appellant because his father was aware of the acquisition of the property in question in 1972 and has even put up his claim of f30,000.00 in respect thereof as borne out at page 19 of the record of appeal. Pages 20, 28, 29, 31 and 40 of the record of appeal were cited and it was said that the 2- 6th Respondents cannot in the faces of the correspondences between the Appellant’s father and them, be said to have concealed information or committed fraud in respect of the property in dispute. It was then submitted that where a court finds that an action is statute barred, that would, be the end of the action and the proper order is one of dismissal. We were urged to so hold.

As a foundation for the consideration of the issue, I would say that learned counsel are right that simply put, a cause of action has been judicially defined to mean the fact or combination of facts which if proved, would entitle a plaintiff to a judicial remedy against a defendant. Put another way, a cause of action is the factual situation which a plaintiff relies upon to support his claim, recognized by law as giving a substantive right capable of being enforced against defendant. It consist of two elements;
a) wrongful act or conduct of a defendant which gives the plaintiff right to complaint and
b) the consequent injury or damages.
See ODUNTAN v. AKOBU (2000) 7 SC 84 (Pt. II) 106; EGBUE v. ARAKA (1988) 3 NWLR 598; BELLO v. A-G, OYO STATE (1986) 5 NWLR (45) 828; ASABORO v. PAN OCEAN OIL (NIH) LTD. (2006) 4 NWLR (971) 595.

Another consequence of an action being statute barred is that the court would lack the requisite jurisdiction to entertain the action. This was restated in the case of AJAYI v. MIL. ADM. OF ONDO STATE (1997) 5 NWLR (504) 237 at 254 where Supreme Court said:-
“The issue of whether or not an action has been statute barred is one touching on jurisdiction of court for once an action has been found to be statute barred, although a plaintiff may still have his cause of action, his right of action, that is, legal right to prosecute the action has been taken away by statute. In the circumstance, no court has the jurisdiction to entertain his action.”
See also OFILI v. C.S.C. (2008) 2 NWLR (1071) 238; MIL. ADM. OF EKITI STATE (2007) 14 NWLR (1055) 619; W.A.P.C. PLC. V. ADEYERI (2003) 12 NWLR (835) 517. The legal effect of an action being statute barred by the operation of a limitation law is to render such an action not justiceable and the right of action barren.
In the present appeal, the case of the Appellant here is that the cause of action was not limited to the acquisition of the property in dispute by government but also to the transfer to Chief E. O. Onya by the Abandoned Properties Committee which he did not know until 2002, when his father Died. According to Counsel, the statement of claim in the above circumstances did not contain a clear indication of when the cause of action arose. The relevant pleadings in respect of when the Appellant’s late father’s cause of action arose are contained in paragraphs 14, 15, 16, 17, 19, 21 and 25 of the Appellant’s statement of claim and as follows:-
“14. After the civil war the government of the South Eastern State (the predecessor of the 3rd defendant) enacted the Deserted property (Control and Management) (South Eastern State) Edict No. 10 of 1970 by which a number of properties including No. 105 Calabar Road, Calabar, belonging to people of Ibo extraction were categorized as abandoned or deserted property.
15. On the 2nd of January 1971, the plaintiff’s father wrote to the Custodian Deserted Properties Commission to state his ownership of the property at No.105, Calabar Rd., Calabar and to inform him that the property was pledged to Standard Bank of Nigeria Limited. The said letter is hereby pleaded.
16. By the South Eastern State Notice No. 646 published in Gazette No. 50 Volume 4 of 9th December 1971 the public was notified that the deserted property contained in the schedule thereto was required by the 3rd defendant for public purpose in accordance with the provisions of the Public Lands Acquisition Law. Notice was also given to person claiming any right or interest in a deserted property should do so within six weeks of the publication.
17. The plaintiff’s father promptly wrote to the principal Lands officer to re-state his claim of ownership of No. 105, Calabar Road, Calabar. The said letter dated 18th January 1972 is hereby pleaded.
19. The plaintiff avers that after his father received the above letter, he entered into a spate of correspondence with the government and its agencies concerning the property at No. 105 Calabar Road, Calabar. At the hearing the plaintiff shall found and rely upon the following documents which are hereby pleaded:
i) Letter to the Principal Lands officer dated 22nd January 1972.
ii) Letter to the Military Governor dated 5th June 1972
iii) Letter to the Military Governor dated 4th July 1974
iv) Letter No. GH/5/82/S.1/Vol. III/424 dated 19th July 1974
v) Letter No. MEDR/S/74/S.2/273 dated 26th August 1974
vi) Letter to the Prin. Sec to the Mil. Governor dated 5th October 1974
vii) Letter No. MEDR/S/74/S.2/808 dated 13th January 1975
viii) The Plaintiff’s father’s reply dated 15th April 1975
ix) Letter to the Mil. Gov. dated 18th August 1976
x) Letter to the Mil. Gov. dated 26th September 1977
xi) Letter No. GH/S/82/S.1/V.VII/465 dated 17th October 1977
xii) Letter No. GH/S/82/S.1/Vol.VII/434 dated 28th February 1978.
xiii) Letter to the Mil. Governor dated 1st March 1978
xiv) Letter No. GH/S/82/S.1/Vol. VIII/730 dated 5th June 1978
xv) Letter from the Prin. Sec to the Mil. Governor dated 11th July 1978
xvi) Letter No. GH/S/82/S.1/Vol. VIII/785 dated 1st August 1978
xvii) Letter to the Governor dated 9th December 1979
xviii) Letter No. GO/SSG/AD/S.1/Vol. IX/64 dated 19th March 1980
xix) Letter to the Governor dated 13th February 1983
xx) Letter to the Mil. Governor dated 19th June 1984
xxi) Letter No. MGO/S/82/S.1/Vol. XI/812 dated 13th February 1985
xxii) Letter No. MGO/S/82/S.1/Vol. XI/824 dated 15th May 1985
xxiii) Letter to the Prin. Sec to the Mil. Governor dated 16th August 1985
xxiv) Letter to the Commissioner for Lands & Housing dated 8th March 1991.
21) The plaintiff avers that his late father did not acquiesce to the acquisition of his property by the government and rejected all overtures to pay him compensation in respect of the said property.
25) By its letter referenced APC/GC/CRS/208 and dated 18th, June 1993, the Abandoned Properties Committee purportedly released some of the abandoned properties including 105, Calabar Road, Calabar to “their new owners” and the so called owners were thereby “instructed to sell their property only to indigenes of Cross River State.

Put briefly, the facts in the above paragraphs are the effect that the Appellant’s father had rejected all overtures by the Government to pay him compensation for the property in dispute which was acquired in 1971 and released by the Abandoned Properties Committee to “their new owners” by the letter dated 18/6/1993, pleaded in paragraph 25. It can easily be seen that the first incident with which the Appellant’s father was aggrieved, in respect of the property in dispute, was the categorization of being abandoned or deserted and later acquired by the government. It was because he felt that his right to the property in dispute was breached by that action of Government that the Appellant’s father decided to engage the Government in several correspondences that were pleaded in paragraph 19 of the statement of claim, the last of which was in 1991 as indicated therein. The facts which formed the basis of the Appellant’s claim and which if proved by him would entitle him to a judicial remedy therefore occurred and were complete with the acquisition by the Government in the first instance and the transfer of the property by the Abandoned Properties Committee to their new owners, in the second instance. The acquisition was in 1971 while the transfer, after all overtures to pay compensation were rebuffed by the Appellant’s father, was done or happened in 1993. By each of these events, the facts and circumstances which if proved would have entitled the Appellant’s father to a judicial remedy have completely occurred or happened and the Respondents were in existence to have been sued over them by him. The cause of action in respect of those facts and circumstance therefore arose, and accrued to the Appellant’s father in both 1970 and 1993. The law is that the fact that parties are or were engaged in negotiations in respect of the property in dispute would not stop the limitation law from applying except where the defendant reneged on an admission made during negotiations. See NWADIARO v. S.P.D.C. (NIG) LTD. (1990) 5 NWLR (150) 322 at 339; UNIBADAN v. ADETORO (1991) 4 NWLR (185) 375.

Similarly, in law ignorance of the period of limitation or knowledge of the plaintiff are immaterial and no defence to the application of a limitation law. SANDA v. KUKAWA LG (1991) 2 NWLR (174) 379; AJIBONA v. KOLAWOLE (1996) NWLR (476) 22. It is now a matter of common knowledge that in order to determine whether an action was caught up by a statute of limitation, all that the court does is to look at the statement of claim, or writ of summons or other originating process for the date on which or when the cause of action was said to have arisen or accrued and then compare it with the date the initiating processes were filed to commence the action. If the period of time between the date the cause of action arose and the date the action was commenced exceeds the time limited or prescribed by a limitation law, the action is time and statute barred. Put another way, if the date the action was initiated or brought was outside the time limited by the limitation law, from the date the cause of action accrued, then the right to bring the action would have been lost automatically by application of law as the action would be statute barred. The purport of a limitation law is that a party must exercise his right of action through the courts timeously as required by it, or hold his peace forever and for all times as far as the judicial process is concerned Section 1 of the Limitation Law of Cross River state applicable to the Appellant’s action provides as follows:-
“1. No action shall be brought by any person to recover any land after the expectation of ten years from the date of which the right of action accrued to him or, if it accrued to some person through whom he claims, to that person.
These provisions are clear and straight forward and so they are to be construed by the court in its interpretation duty, without interpolations or glosses and be given their ordinary and plain meanings.
Plainly, the provisions have barred any action to recover any land in Cross River State, by a person, after ten (10) years from the date his right was breached and his right of action in respect of same, accrued to him, either directly or through some other person. Because of the word “shall”, in the provisions, the clear intention was to leave no room for options or discretion, but expressly outlaw and prevent such actions from being initiated or where initiated anyway, to abort them in limine. There are no two ways about the manifest intention behind the provisions.

For our purposes in this appeal, the Appellant is affected by the last part of the provision which say if the cause of accrued to some other person through who he claims, since he is claiming through his late father.
I have found above that the right of action in respect of the property in disputed to the Appellant’s late father in 1971 and 1993 and the Appellant who claims through him, filed the action leaving to this appeal, on the 23/4/2008 as borne out by the writ of summons and the statement of claim at pp 1 – 2 and 3 – 9 of the record of appeal respectively. If the date of the commencement of the action is compared with any of the dates on which or when the cause of action arose and accrued to the Appellant’s father, i.e. 1971 and 1993, “it is clear as crystal” that the period of time between the respective dates was more than the ten (10) years limited by the above provisions of the Limitation Law applicable to the action.
For being filed, initiated or commenced outside the period of time, prescribed and mandatorily limited by that law, the Appellant’s action would appear to be caught up by the provisions of the law.
However, in his issue 3, the learned counsel for the Appellant had, relying on the provisions of Section 31 of the same Law, argued that there was fraud and concealment as pleaded in paragraphs 23, 24, 25, 29, 30 and 31 of the statement of claim, and so the period of limitation did not run during that period. According to him, the release of the property in dispute was concealed from the Appellant’s father and the fraud vitiated even the most solemn of transactions, placing reliance on UGO v. OBIEKWE (1989) 1 NSCC 295. Learned counsel said it was pleaded in paragraphs 29, 30 and 31 that the purported agreement dated the 5/6/78 between the Appellant’s father and the 1st Respondent’s father, was a forgery noting that by the 1st Respondent’s affidavit in support of the motion filed on 8/7/08, the Certificate of Occupancy on the property was issued in September, 2001 in the name of the 1st Respondent’s father who was said to have died in 1992.
It was his submission that the High Court did not make any pronouncement on the issue of fraud and concealment as it was bound to do by the authorities of OKONJI v. NJOKANMA (1991) 7 NWLR (202) 131 and OKOTIE-EBOH v. MANAGER (2005) ALL FWLR (241) 277. In such a situation, an appellate court was said by counsel to have no alternative but remit the case for trial de novo, once again relying on UGO v. BIKWE (supra). It was the submission of counsel that the ruling of the High Court ought to and should be set aside.
It may be recalled that I have reviewed the submissions by the learned counsel for their Respondents on the allegation of fraud and concealment under the issue 2 above. The first point to be considered here is whether the High Court had the duty to make a pronouncement on the fraud and concealment alleged in the pleadings by the Appellant in its ruling. Let me point out that the agreement between the late fathers of the Appellant and the 1st Respondent which was said to be a forgery, had nothing to do with the time or when the cause of action accrued to the Appellant’s father. Like I pointed out earlier, the facts, events and circumstances which gave rise to the cause of action for the Appellants father were acquisition of the land in dispute by the 1971 notice issued by the government in respect of which he rejected all overtures by the government to pay him compensation, and the transfer of the property by the Abandoned Properties Committee in 1993 which he also resisted. The agreement said to be of forgery was not and did not form part of any of these two events from which the cause of action arose and accrued to the Appellant’s father. So even though raised in the pleadings, the issue was of no moment in the determination of whether the Appellant’s action was filed within the time prescribed by the limitation law and the High Court owed no duty to decide it in the circumstances. It should be noted that the duty of the High Court in the determination of the objection before it was to consider only. The depositions of facts relevant in the statement of claim for decision of the objection and not the merit or otherwise of the pleadings.
On the issue of concealment, it was argued that the Appellants father did not know that the government had issued a Certificate of occupancy in respect of the property to 1st Respondent’s father in 2001 or the earlier transfer of the property to him. However by his own pleadings particularly in paragraphs 19, 21 and 25 the Appellant had prima facie indicated that his father had been aware of the acquisition of the property and of the activities of the Abandoned Properties Committee over it. As a result, whether or not he knew about the issuance of certificate of occupancy by the government was no concealment on the part of any of the 2 – 6th Respondents so as to stop the time limited by the limitation law from running.

In the above circumstances, although the High Court did not specifically say so, the provisions of Section 31 of the limitation Law do not avail the Appellant.
In the result, I see no merit in the submissions by the learned counsel for the Appellant on the issue which is resolved in favor of the Respondents and against the Appellant.
In the final result, having resolved all the issues in the appeal against the Appellant, it is my finding that the grounds from which they were distilled, fail. The appeal is dismissed accordingly.
Parties to bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form; the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA and agrees with his reasoning and conclusion.
S. 1 of the Limitation Law of Cross River 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 of which the right of action accrued to him or, if it accrued to some Person through when he claims, to that person.”
The cause of action accrued in 1971 and 1993 to the Appellant’s father. The appellant claiming through his father the cause of action accrued at that time also.
By virtue of the Limitation Law of cross River State a right of action for land is extinguished 10 years after the date on which the cause of action accrued. Egbe v. Adefarasin (1987) 1 NWLR pt 47 page 20 British Airways v. Akinyosoye (1995) 9 NWLR pt 574 page 722, Yakuba v. NITEL Ltd. (2006) 9 NWLR pt 985 page 376.
As a general rule, the limitation period shall not begin to run where there is a case of fraud. The period of limitation will not begin to run until the plaintiff has discovered the fraud, or could with reasonable diligence have discovered it. Arowolo v. Fabiyi 8 NWLR pt 414 page 490.
This is not the case here. Fraud was not in anyway proved by the appellant.
For this and the more robust reasons in the lead judgment I concur with my learned brother that this appeal is without merit.
It is therefore dismissed. I abide by all the other consequential orders contained in the lead judgment including that as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading before now the lead judgment of my learned brother, Mohammed Lawal Garba, JCA just delivered. I agree with the conclusion that the appeal lacks merit based on the reasons eloquently set out in the judgment. I therefore dismiss the appeal with no order as to costs.

Appearances

Mr. George N. Neji, Esq.For Appellant

AND

Mr. E. E. Osim, Esq., for the 1st Respondent
Mr. Ikoi E. Ikona, Esq. for 2nd-6th RespondentsFor Respondent