MR. PETER IMARHIAGBE v. MR. ROBINSON OMORODION & ANOR
(2019)LCN/12709(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of February, 2019
CA/B/136/2011
RATIO
STATUTE: LIMITATION STATUTE
“Thus, where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot properly or solidly be instituted after the expiration of the prescribed period. Consequently, an action instituted after the expiration of the period prescribed by law is said to be statute barred because time begins to run for the purpose of limitation law from the date the cause of action accrues. See ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT. 971) 595; AJAYI VS. ADEBIYI (2012) 11 NWLR (PT. 1310) 137; STERLING PLANTATION AND PROCESSING CO. LTD VS. AGBOSU & ORS. (2013) LPELR 22146 (CA); OGUNKO VS. SHELLE (2004) 6 NWLR (PT. 868) 17.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
MR. PETER IMARHIAGBE Appellant(s)
AND
1. MR. ROBINSON OMORODION
2. M.T.N. COMMUNICATION LTD Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the High Court of Edo State sitting in Benin City and delivered on the 1st day of December, 2010 wherein the preliminary objection raised by the Appellant was overruled and struck out.
In the trial Court, the Appellant herein was the plaintiff while the Respondent was the 1st defendant. By a writ of summons filed on the 22nd of April, 2009 the Appellant commenced an action against the Respondents as the 1st defendant wherein as per the statement of claim dated 30/9/2009 he claimed against them as follows:
1. A declaration that the Plaintiff is the proper person entitled to apply for and be granted a statutory Right of Occupancy over all that property measuring 100feet by 100feet lying, being and situate at Efosa Street, behind Guinness Nigeria Plc, which formed part of a larger property measuring 100feet by 200feet and covered by Oba?s approval dated 4/2/72.
2. N2,000,000.00 (Two Million Naira) general damages for trespass.
3. An order of perpetual injunction restraining both defendants, their servants, agents and or privies from any further acts of trespass on the Plaintiff’s said piece or parcel of land.
A summary of the facts as per the Appellant’s case is that he inherited a parcel of land at No. 10 Efosa Street measuring 100ft by 100ft from his father and retained one Mr. Moses Asibor who had hitherto been managing all his father’s land during his life time as caretaker to manage his own portion. The said Moses Asibor is said to be his friend and a co-worker with Guinness Nigeria Plc, Benin City.
Upon being transferred to the Guinness office in Aba, he left Mr. Asibor to continue to look after his land. But sometime in 1993 information reached him that one half of the said parcel of land measuring 100feet by 50feet was being developed by the Respondent and upon being confronted, the Respondent told him that Mr. Asibor permitted him to do so.
The Respondent then pleaded with the Appellant to allow him use the land and in the spirit of friendship he allowed him to continue with the use of the land but did not collect any money or enter into any sales transaction with him. This continued until 2007 when the Respondent told him that the MTN Communication Ltd wanted to use the other half of the land to erect a telecommunication mast and needed to see the Title Deed but he told the Respondent that the company should rather come to him directly for negotiation but this was not done until he discovered that the Respondent was dealing secretly with the company over the said parcel of land. As a result he caused a letter to be written to the Respondent and subsequently commenced an action at the lower Court.
Upon the exchange of pleadings by the parties, the Respondents’ counsel filed a motion on notice on 28/4/2010 wherein he sought for an order to strike out the suit on the basis that the Court has no jurisdiction to entertain it.
The grounds for the preliminary objection was stated thus:
(i) That the suit is statute-barred and therefore not maintainable same not having been commenced within twelve years after the plaintiff became aware of the alleged trespass committed on his land by the 1st defendant.
(ii) That by reason of being statute-barred, this suit does not disclose a reasonable cause of action, against 1st defendant and this honourable Court has no jurisdiction to entertain it.
The said motion on notice was supported by a 13 paragraph affidavit sworn to by the Respondent and four Exhibits were attached to it.
The Appellant did not file any counter-affidavit. The said motion was moved and argued by counsel for the parties at the proceedings of the trial Court on 12/10/2010. In a Ruling delivered on 1/12/2010, the Court in overruling the preliminary objection held at pages 70 ? 71 of the record of appeal as follows:
‘According to the Plaintiff in paragraph 12 of the statement of claim, it is this alleged entry into the land by the 1st defendant and the 2nd in 2008 that prompted him to file this action. This is the 2nd half of the land he described as 100ft by 50ft. Going by the date of initial entry into the first half of this land in 1993 to the year 2008 when this action was filed one would say this land is caught by the limitation law of Bendel State Cap. 89, vol.10, Laws of Bendel State of Nigeria as applicable in Edo Sate which provides that no action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him. See Section 6(2).
However there is the alleged trespass into the other half of the land in 2007. This act on its own is actionable and 2007 to 2008 when this action was filed is barely one year. Time started to run from the 2007. I am unable to find for the Defendant that this action is caught by the statute of limitation, with the entry into the other half of the land in 2007, the Plaintiff has a right of action for which a remedy may be sort. This is as it pertain to the 2nd half of the land, the 1st half l hold that it is caught by the statute of limitation.’
Inspite of the outcome of the above set out ruling of the trial Court striking out the preliminary objection against the Respondent, the Appellant was dissatisfied and consequently filed a notice of appeal on 2/2/2011.
He followed it up with a brief of argument filed on 3/11/2015 by order of this Court made on 20/10/2015 wherein he formulated the following three issues for determination.
(1) Whether the Appellant’s title over the entire aforesaid parcel of land held under Benin Customary Law of inheritance upon the death and burial of his father can be affected by the statute of limitation given the provisions of S. 1(2) of the Limitation Law which excludes land held under the customary law in this regard.
(2) Whether the cause of action said to have arisen in 1993 was not intervened upon or postponed given the understanding reached between the Appellant and 1st Respondent over the 1993 incident and another cause of action or the earlier one revived by the consequent breach of the understanding by the Respondent in 2007 regarding the said half of the parcel of land.
(3) Whether it was not premature to dismiss the proceeding with regard to the aforesaid part of the parcel of land when issues on the entire parcel of land are so intertwined that only elicited evidence can bring a just hearing and determination of the subject matter.
The Respondents did not file any brief of argument and upon an application filed by the Appellant on 23/10/2017, this Court vide an order made on 1/6/2018 granted leave for this appeal to be heard on the Appellant’s brief alone, the Respondent having failed to file any brief of argument.
At the hearing of the appeal on 22/11/2018, the Appellant’s counsel adopted and relied on his brief of argument.
In the absence of any Respondent?s brief of argument, I will consider this appeal on the basis of the three issues as raised in the Appellant?s brief of argument.
ISSUE 1
Herein, learned counsel submitted that in the statement of claim it was pleaded that the Appellant came into possession of his land by Benin customary law of inheritance and the Respondent acknowledged this in paragraph 3(a) of the counter claim and this means that the Appellant?s title to the land is under customary law of Benin by way of inheritance and even if it is conceded that the Respondent bought the one half of the land from the Appellant, his counter claim shows that the purported transaction was done under customary law.
It was then contended that the entire 100feet by 100feet parcel of land in dispute is covered by a customary title and consequently cannot be caught by the limitation law, by virtue of Section 1(2) of the Limitation Law, Cap 89, Vol. 4, laws of Bendel State 1976 as applicable to Edo State.
ISSUE 2
Dwelling on this issue, learned counsel posited that whatever cause of action that might have accrued in 1993, abated upon the understanding reached by the parties during the encroachment on one half of the land by the Respondent to the effect that the Respondent shall be caretaker over other parcels of land belonging to the Appellant in Benin City. He added that it was later in 2007 when the Respondent acted in breach of the condition imposed that the cause of action arose. Therefore, he argued, the lower Court erred in law when it did not take cognisance of the effect of the breach the condition had on the entire course of events. On this, reliance was placed on the case of A.G. FEDERATION VS. AG ABIA STATE (2001) 40 WRN 1 at 77; ANDREW JOSEPH OKITO VS. VINCENT EYETAN OBIORU (2007) All FWLR (PT. 1365) 568; Sections 10 and 12(1) (2) of the Limitation Law Cap 89 Vol. 4 Laws of Bendel State 1976 as applicable to Edo State.
ISSUE 3
Herein, it was submitted that going by the parties pleadings, the issues joined with regard to the entire land in dispute cannot be properly addressed going by the Ruling of the lower Court, because the evidence relating to the entire land cannot be torn into bits and pieces in which case the justice of the case will be adversely affected.
Having read the record of proceedings in the lower Court with particular reference to the Ruling appealed against and given the three issues as summarised above which in my view are interrelated. It will be more appropriate to consider them seriatim.
Issue 1, the Appellant’s contention is that he acquired the land in dispute by way of inheritance from his father under Benin customary law and even if it is conceded that the Respondent actually bought the land from him as per his counter-claim, it goes to prove that the transaction was done under customary law in which case Section 1(2) of the Limitation Law will apply.
Now Section 6(2) of the Limitation Law Cap 89 Vol. 4, Laws of Bendel State 1976 as applicable to Edo State provides that no action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him.
Section 1(2) of the said Law provides:
‘Nothing in this Law affects actions in respect of the title to land or any interest in land held by customary tenure or in respect of any matter which is subject to the jurisdiction of a customary Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.’
It follows therefore that by virtue of Section 6(2) of the Limitation Law applicable to Edo State that any action to recover land after a period of twelve years from the date the right of action accrued cannot be sustained having become statute barred.
Thus, where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot properly or solidly be instituted after the expiration of the prescribed period. Consequently, an action instituted after the expiration of the period prescribed by law is said to be statute barred because time begins to run for the purpose of limitation law from the date the cause of action accrues. See ASABORO VS. PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT. 971) 595; AJAYI VS. ADEBIYI (2012) 11 NWLR (PT. 1310) 137; STERLING PLANTATION AND PROCESSING CO. LTD VS. AGBOSU & ORS. (2013) LPELR 22146 (CA); OGUNKO VS. SHELLE (2004) 6 NWLR (PT. 868) 17.
Where it is apparent in the statement of claim that the period is beyond the time allowed by Section 6(2) of the Limitation Law as applicable to Edo State, it renders the suit incompetent for being statute barred. See ODEBIYI VS. WEMA BANK PLC & ORS. (2014) LPELR 22993 (CA) and ELABANJO VS. DAWODU (2006) 15 NWLR (PT. 1001) 76.
However, by virtue of Section 1(2) of the said Limitation Law, a land which is subject to customary law is exempted from the effect of Section 6(2). That is to say that by virtue of Section 1(2) of Limitation Law of Bendel State 1976 as applicable to Edo State, the issue of an action relating to recovery of land being statute barred if not instituted within the period of twelve years from the time the cause of action accrued is not applicable to land held under customary law. See MAJEKODUNMI VS. ABINA (2002) 1 SC page 92, where the Supreme Court in interpreting a similar provision under Section 68(1) of the Limitation Law of Lagos State held that the Limitation Law does not apply to land which is subject to customary law. See also AGBOOLA VS. ABIMBOLA (1969) 1 All NLR 287 and LAWANI & ANOR. VS. GRILLO & ORS. (2018) LPELR 44914 (CA).
The question then is whether the land in dispute in the instant case is subject to customary law. For the Appellant this fact was pleaded in his statement of claim that he came into possession of same by Benin Customary Law of inheritance and still holds same. However, he seemed to have ignored the fact that as between him and a third party as in this suit, any transaction relating to land in Benin City which is in the state capital and a designated urban area, the issue of disposition of land under customary law cannot arise.
Section 2 of the Land Use Act 1978 provides that from the commencement of the Act all lands in urban areas shall be under the control of and management of the Governor of each state, while all other lands shall subject to the Act, be under the control and management of the Local Government within the area of jurisdiction of which the land is situated. I must quickly clarify here and it is important to so state that no land is vested in the Local Governments of the states. All land was by Section 1 vested on the Governor of a State. The Local Governments are only vested with power to control and manage all other land subject to the Land Use Act within the area of jurisdiction of which the land is situated. In other words, they can control and manage all land within their jurisdiction, not urban land or land so designated under the powers conferred by Section 3 of the Act. See ABIOYE & ORS. VS. YAKUBU & ORS. (1991) 5 NWLR (PT. 190) 130.
Now the Appellant has sought the following reliefs in his statement of claim dated 30/9/09.
1. A declaration that the Plaintiff is the proper person entitled to apply for and be granted a statutory Right of Occupancy over all that property measuring 100feet by 100feet lying, being and situate at Efosa Street, behind Guinness Nigeria Plc, which formed part of a larger property measuring 100feet by 200feet and covered by Oba?s approval dated 4/2/72.
2. N2,000,000.00 (Two Million Naira) general damages for trespass.
3. An order of perpetual injunction restraining both defendants, their servants, agents and or privies from any further acts of trespass on the Plaintiff?s said piece or parcel of land.’
The import of the above set out claim by the Appellant seeking a declaration for a statutory right of occupancy is that he acknowledged that the land in question is in an urban area, that is to say at Efosa Street, Behind Guinness Nigeria Plc, Oregbeni, Benin City. In this regard, his insistence that the land in dispute is subject to customary law cannot in my view, be sustained.
In this regard, I find support in the case of IROH & ANOR. VS. ENWEREUZO (2017) LPELR 42854 (CA), where this Court held thus at page 25:
‘I am of the considered view that it is clear from the provisions of the land Use Act that the grant of customary right of occupancy is not determined by the customary law of the area the land in question is situated. What determines the propriety or appropriateness of a claim of a party for customary right of occupancy is basically whether or not the land in dispute is located within a non urban area of the state. And it must always be borne in mind that the power to designate any part of the state as an urban area resides in the Governor of a State or whoever the power in that regard has been delegated to by him.’See also SADIKWU VS. DALORI (1996) LPELR 2972 (SC).
In the circumstance, the conclusion derivable thereof is while the law is clear that by virtue of Section 1(2) of the Limitation Law applicable to Edo State, a land subject to customary Law cannot be caught by Section 6(2). The said Section 1(2) does not however avail the Appellant because by the relief sought in his statement of claim and the location of the land is in Benin City, the State capital which is a prime urban area.
Whether a land is held under customary law is seemingly not by mere assertion but by operation of law given the provisions of Section 2 and 3 of the Land Use Act.
In this regard, the issue is resolved against the Appellant.
ISSUE 2.
That is whether the cause of action said to have arisen in 1993 was not intervened upon or postponed given the understanding reached between the Appellant and 1st Respondent over the 1993 incident and another cause of action or the earlier one received by the consequent breach of the understanding by the Respondent in 2007 regarding the said half of the parcel of land.
In the case of A.G. ADAMAWA STATE & ORS. VS. A.G. FEDERATION (2014) LPELR 23221 (SC), the Supreme Court in defining cause of action posited thus:
‘The definition that has been followed on a cause of action is that cause of action is the fact or facts which establish or give rise to a right of action. It is the factual situation which gives a person a right to judicial relief. Thus when an action is said to be statute barred, what it connotes is that the plaintiffs may have an actionable cause of action, but their recourse to judicial remedy is voided. No proceedings could be brought to prosecute the action.’See also EGBE VS. ADEFARASIN (1987) 1 NWLR (PT. 47) 1; OMOMEJI & ORS. VS. KOLAWOLE & ORS. (2008) 14 NWLR (PT. 1106) 180 and AMODU VS. AMODE & ANOR (1990) 5 NWLR (PT. 150) 356.
In the instant case, the Appellant did not dispute the fact that the cause of action in this suit accrued in 1993 when he noticed an encroachment on one half of the land in dispute by the Respondent, but that the cause of action abated or was postponed based on the understanding or promise reached by the parties that the Respondent shall remain on the land subject to the condition that he shall oversee the Appellant?s other parcel of land in Benin City as caretaker.
Therefore, it was later when in 2007 the Respondent acted in breach of the condition that a new cause of action arose.
In resolving this issue, the learned trial Judge held in the judgment at pages 69 to 70 of the record as follows:
‘The 1st Defendant contends that this cause of action arose in 1993 when the 1st Defendant started to erect a building on the land. The learned Plaintiff’s counsel submitted that the cause of action did not arise in 1993 but in 2007 when the 1st Defendant breached the condition of his stay on the land. That the 1st Defendant remained on the land at the pleasure of the Plaintiff.
It is not in doubt that this Plaintiff had a cause of action against this 1st Defendant in 1993 when he alleged to have started the erection of his building on one half of the land in dispute but he said in paragraph 9 of his statement of claim that for the sake of their friendship after many entreaties from the 1st Defendant he decided to allow him remain on the land on the ground that he oversees the other parcels of land for the plaintiff. In Okito v. Obioru (2007) All FWLR 568 Aderemi JCA said that an owner of a landed property is not under any obligation as to commence litigation against a trespasser to his land at once, it is sufficient that he has warned the trespasser and if the trespasser persists in his act of trespass, he does so to his own peril.
I am indeed inclined to endorse the above findings of the learned trial Judge, moreso given the averments of facts in paragraphs 7 to 12 of the statement of claim which I am inclined to hereinbelow set out.
7. Sometime in 1993, or thereabout, the 1st Defendant started to erect a building on part of the land in dispute measuring 50ft by 100ft when Plaintiff got wind of this development he challenged 1st Defendant who pleaded that MR. MOSES ASIBOR gave him the go ahead. Plaintiff bluntly refused 1st Defendant?s plea, and insisted that he must leave the land. This breach of trust prompted plaintiff to eject Moses Asibor from his house.
8. 1st Defendant made series of entreaties he also volunteered to oversee the parcel of land for Plaintiff since he had now dispensed with the services of Moses Asibor. Plaintiff did not want to resort to self-help to evict 1st Defendant from the land then.
9. Plaintiff avers that 1st Defendant never paid him for the said parcel of land but he merely allowed him remain on the land because of their friendship and subject to his good faith in overseeing the said parcel of land for plaintiff. He never purchased nor did he ever pay any purchase price for the said parcel of land till date.
10. Plaintiff states that sometime in November, 2007 while on leave and in Benin, 1st defendant came to plead with him that 2nd defendant are seeking to take the other half of land in dispute measuring 50ft by 100ft to erect there MAST and that plaintiff should please give him the approval covering the land because 2nd defendant want to see it. Plaintiff there and then asked 1st Defendant to refer 2nd defendant to him for the negotiation, which 1st defendant agreed he will do.
11. Later, 1st defendant phoned plaintiff in Aba, that the 2nd defendant only want to sight the document after which he will bring them to Plaintiff, but plaintiff insisted on dealing directly with 2nd defendant.
12. Plaintiff states that he never heard from 1st Defendant again until about February, 2008, when he got information that the 2nd Defendant had finalized plans with 1st defendant to take the said other half of the land in dispute. Plaintiff then filed this action against the 1st defendant and caused his solicitors to write to the 2nd defendant vide letters dated 31st March, 2008 and 8th May, 2008 which letters are hereby pleaded.
The summary of the above set out averments is that sometime in 1993 the Appellant got to know that the Respondent broke into a part of the land in dispute measuring 100feet by 50feet and erected a building on it. The Respondent was his friend and co-worker. When he confronted the Respondent over the encroachment he pleaded that it was one Mr. Asibor that gave him the go ahead and it was subsequently agreed that he could continue to stay on the land on the condition that he (the Respondent) shall oversee the Appellant’s other parcel of land in Benin. But sometime in 2007 the Respondent came to him to plead that the former 2nd defendant, (MTN) wanted to make use of the other part of the land measuring 100feet by 50feet to erect a mast on it and that the company need the title document for sighting only. But inspite of his refusal of the request and insistence that the company should deal with him personally, he later got information that the said company continued and finalized plans with the Respondent to use the land hence he commenced an action against them in 2008.
To my mind, the whole issue is much ado about nothing. Having conceded to the Respondent the use of the part of land measuring 100feet by 50feet and upon which the Respondent have built a house since 1993, it follows that the Appellant waived his right of action over the cause of action that accrued in 1993 given that the mere promise of overseeing his other parcel of land in Benin cannot rationally be held to constitute postponement or abatement of the cause of action in the absence of any genuine or concrete agreement as to forfeiture or reversion of the said land measuring 100feet by 50feet to the Appellant.
In other words, by the Appellant’s own story, he lost his right to enforce any act of trespass into the said land in 1993 and cannot successfully or wittingly seek to merge it with any action associated with the other half of the land as rightly found by the lower Court.
Therefore by operation of law his right to sue for the recovery of the said land has been forfeited having exceeded the period of twelve years prescribed by the provisions of Section 6(2) of the Limitation Law of Bendel State 1976 as applicable to Edo State. See AJAYI VS. ADEBIYI & ORS (2012) 11 NWLR (PT. 1310) 137; ABIOLA VS. OLAWOYE (2006) LPELR 8222 (CA).
Accordingly, this issue is also resolved against the Appellant.
ISSUE 3
This borders on whether it was not premature to dismiss the proceeding with regard to the aforesaid part of the parcel of land when issues on the entire parcel of land are so intertwined that only elicited evidence can bring about a just hearing and determination of the subject matter.
Given the reasoning and conclusion reached while considering issues 1 and 2 above, the answer to issue 3 is clearly blowing in the wind, that is to say that it is clearly in the negative.
Furthermore, for purposes of elucidation, authorities abound to the effect that in determining whether an action is statute barred, the main legitimate source of information is the writ of summons and statement of claim. In MILITARY ADMINISTRATOR OF EKITI STATE & ORS. VS. ALADEYELU & ORS. (2007) 4 ? 5 SC 201, the Supreme Court made the clarification as follows:
In the case of Woherem Vs. Emereuwa (2000) 6 ? 7 SC 161; (2004) 13 NWLR (Pt. 890) 398 at 417, this Court decided 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 the statement of claim only. I will however add, where one had been filed. It is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed, thereby giving rise to the plaintiff?s cause of action. When that ascertained date is compared with the date in the writ of summons or originating process was filed in Court, it can then be determined whether the action is said to be competent and the Court has jurisdiction to entertain same but where it is found to have been instituted outside the period allowed by law the action is said to be statute barred and consequently, the Court is without jurisdiction to entertain same. See Savannah Bank Nigeria Ltd. Vs. Pan Atlantic Shipping and Transport Agency Ltd. ((supra); Araka Vs. Ejeagwu (2000) 15 NWLR (pt. 692) 684: Egbe Vs. Adefarasin (1987) 1 NWLR (pt. 47) 1; Ibrahim Vs. Judicial Service Commission (1998) 12 SC 20; (1998) 14 NWLR (pt. 584) 1. See also OLUSEYE & ORS. VS. OTUN & ANOR. (2011) LPELR 4052 (CA); OGU VS. ANYANWU (2018) LPELR 44805 (CA). In the case of ODEBIYI VS. WEMA BANK PLC (2014) LPELR 22993 (CA) this Court held inter alia at page 34 to 36 of the report that:
“In OLAGUNJU VS PHCN supra, the Supreme Court per Onnoghen JSC held thus at page 126:-
‘I hold the considered view that a defendant who plead the defence of statute of limitation need not call or adduce evidence if facts needed to establish the defence can be gleaned or contained or apparent in the case presented by the plaintiff’s case to successfully establish the defence as in the instance case.’
Aloma Mukhtar (JSC) (as she then was) added strength to this view by positing thus at page 129:-
‘It is a fact that evidence was not adduced by the defendants but it is also a fact that the materials required to determine the issue of limitation have already been supplied by the plaintiffs in their statement of claim and other Court processes.’
In Kolo Vs. FBN Plc (2003) 3 NWLR (Pt. 806) 216. It was held that statement of claim is recognised as a matter of law as the first place to look at to determine if there be a cause of action and when it accrued…’
In the instant case, the facts as averred to in the Appellant?s statement of claim provided enough materials required by the lower Court to determine the issue of limitation of action and this is evident in the Ruling as various paragraphs of the statement of claim were variously referred to and relied upon in coming to the conclusion as contained in the Ruling.
Consequently, the issue of eliciting evidence for a just hearing and determination of the matter as argued by learned counsel for the Appellant does not arise.
This issue also did not favour the Appellant.
On the whole, this appeal is found to be lacking in merit and it is hereby dismissed.
The Ruling of the High Court of Edo State delivered on the 1st day of December, 2010 is hereby affirmed.
The case file is to be returned to the trial Judge for accelerated hearing and determination of the suit.
I make no order as to costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment of my learned brother SAMUEL CHUKWUDUMEBI OSEJI JCA and I am in complete agreement that this interlocutory appeal should be dismissed. The refusal of the learned trial judge in the circumstances of this case to find that the suit was not statute barred even on an examination of only the Appellant’s claim was quite justified. There is no merit in this ill advised appeal brought by the Appellant in whose favour the ruling of the trial Court was given. All it has achieved is that this appeal entered in this Court in 2011 has delayed his claim filed on 2/4/08 further. I abide by the orders in the lead judgment. Appeal Dismissed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading in advance the judgment of my learned brother, Samuel Chukwudumebi Oseji, JCA just delivered.
I agree that the appeal is devoid of any merit and I hereby dismiss it.
The parties are to bear their respective costs.
Appearances:
O.B. ILEBODE Esq.For Appellant(s)
Respondents not represented.For Respondent(s)
