NOKU & ANOR v. COMMISSIONER FOR WORKS, HOUSING AND TRANSPORT, TARABA STATE & ANOR (2020)

NOKU & ANOR v. COMMISSIONER FOR WORKS, HOUSING AND TRANSPORT, TARABA STATE & ANOR

(2020)LCN/14823(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/YL/166/19

RATIO

LIMITATION LAW: THE RATIONALE IN SUPPORT OF STATUTES OF LIMITATION

The rationale in support of Statutes of Limitation include the following:
(1) That long dormant claims have more of cruelty than justice in them.
(2) That a defendant might have lost the evidence to disprove a stale claim.
(3) That persons with good causes of action should pursue them with reasonable diligence.
See, AREMO II VS. ADEKANYE & ORS. (2004) LPELR – 544 (SC) PP. 17 – 18, PARAS. F – B, MURMANSK STATE STEAMSHIP LINE VS. KANO OIL MILLERS LTD (1974) LPELR – 1927 (SC) P. 8 PARAS. E – F and INEC VS. OGBADIBO LOCAL GOVERNMENT & ORS. (2015) LPELR – 24839 (SC) PP. 30 – 31, PARA. D. PER UWA, J.C.A.

ACTION: CRITERIA TO DETERMINE WHETHER AN ACTION IS STATUTE BARRED

The criteria to determine whether an action is statute barred or not is 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. It does not need hearing oral evidence, it is simply calculating the years, months and days to the smallest detail. If in calculating the date, there is a plus on the baseline year, the action is statute barred but, if it is less, the action is not statute barred. In the two situations above, the Court has no discretion to exercise in the matter. On the effect of a statute barred action, see NPA PLC VS. LOTUS PLASTICS LTD. & ANOR. (2005) LPELR – 2028 (SC) PP. 26 – 27, PARAS. G – F, YARE VS. NUNKU & ORS (1995) LPELR – 3514 (SC) PP. 22 – 23, PARAS. E – B and BUREMOH VS. AKANDE (2017) LPELR – 41565 (SC) P. 40, PARAS. B – D. The law is that an action commenced after the expiration of the period within which an action must be brought as stipulated in the statute of limitation is not maintainable. See, EKEOGU VS. ALIRI (1991) 3 NWLR (PT. 179) 258, SANDA VS. KUKAWA LOCAL GOVERNMENT (1991) NWLR (PT. 174) 379 and ODUBEKO VS. FOWLER (1993) 7 NWLR (PT. 308) 637. PER UWA, J.C.A.

ACTION: WHEN WILL A CAUSE OF ACTION ACCRUE AND TIME BEGIN TO RUN

A cause of action accrues and time begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. PER UWA, J.C.A.

LIMITATION LAW: EFFECT OF FAILURE OF A PERSON WHO IS AWARE OF HIS RIGHT TO UTILIZE IT

A person who is aware of his rights but allows them to go stale should not be allowed to revive the said stale action to the detriment of an adversary, as equity aids only the vigilant and not the indolent. See NWADIARO vs. SHELL DEV. CO. LTD (supra) PER UWA, J.C.A.

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. BAKO PHILIP NOKU 2. JOHN PHILIP NOKU APPELANT(S)

And

1. COMMISSIONER FOR WORKS, HOUSING AND TRANSPORT, TARABA STATE 2. ATTORNEY GENERAL, TARABA STATE RESPONDENT(S)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Taraba State High Court, delivered on 24th June, 2019 by J.F. Agya, J. (hereafter referred to as the trial Court). The Appellants as plaintiffs at the trial Court instituted the action against the Respondents as defendants in which the following reliefs were claimed:
i. “A DECLARATION that the entry and continuous use of the plaintiffs’ land measuring 1.43 hectares lying and situates along Jalingo-Numan Highway at the Old Airstrip Jalingo by the Defendants, their agents, assigns, tenants or any unauthorized person(s) without paying rent to the plaintiffs or acquiring same as required by law is wrongful, oppressive, illegal and unconstitutional.
ii. AN ORDER compelling the Defendants to immediately vacate and hand over the vacant possession of the plaintiffs’ land lying and situate along Jalingo-Numan Highway at Old Airstrip Jalingo, Taraba State.
iii. AN ORDER of perpetual injunction restraining the Defendants, by themselves, their agents, representatives or whomsoever and howsoever acting on

their behalf or with their authority from trespassing and/or encroaching into the said parcel of land or doing anything that might in a way be prejudicial to the rights, interest and ownership of the plaintiffs over the said parcel of land.
iv. The sum of Five Million Naira (N5,000,000.00) being general damages.
v. Cost of this suit.”

The background facts on the part of the Appellants are that the Appellants are the traditional owners of a parcel of land lying and situate along Jalingo-Numan Highway at the Old Air Strip, Jalingo, Taraba State. It was made out that the Vehicle Inspection Officers (V.I.O.) (a department under the 1st Respondent) with the permission of the late father of the Appellants erected a small temporary structure over a portion of the land in dispute measuring less than 50ft by 50ft.

It was alleged that without the permission of the Appellants and without acquisition of the said land, the Respondents erected a permanent structure for the said Vehicle Inspection Officers (V.I.O.) on the land, thereafter, gradually encroached into more of the Appellants’ land to an area of 1.43 hectares and renting out some

portions without the consent and authority of the Appellants. It was alleged that the Respondents brought tipper operators and other business units to the land and collected revenue from those they put on the land. The Appellants were aggrieved by the Respondents’ action approached the trial Court for the reliefs sought.

At the close of the trial, the Respondents raised and argued in their final written address that the case of the Appellants is statute barred, having not been filed within twelve (12) years as provided by the Limitation Act. The trial Court upheld the objection and dismissed the Appellants’ case as being statute barred and declined to make findings on the merit of the case.

Dissatisfied with the decision of the trial Court, the Appellant appealed to this Court. The following three issues were formulated for the determination of the appeal thus:
1. “Whether the trial Court was wrong when it held that the case of the Appellants is statute barred and consequently dismissed same? (Distilled from Grounds 1 and 2 of the Grounds of Appeal)
2. Whether the trial Court was in error and consequently breached the

Appellants’ right to fair hearing when it failed to consider and pronounce on the merit of the case? (Distilled from Ground 3 of the Grounds of Appeal)
3. Whether having regards to the pleadings and evidence on record the Appellants have proved their case to warrant the grant of all the reliefs sought?” (Distilled from Ground 4 of the Grounds of Appeal).

The Respondents on their part distilled the following three issues for the determination of the appeal thus:
1. “Whether from the pleadings and evidence adduced by the parties, the Trial Court was right when it held that the Appellant’s action is statute barred and proceeded to dismiss same? (Distilled from grounds 1 & 2 of the grounds of appeal).
2. Whether from the evidence adduced by the parties, the trial Court had in any way breached the Appellant’s right to fair hearing by dismissing their case on ground of non-compliance with the provision of Section 18(4) of the English Limitation Act 1939? (Distilled from ground 3 of the ground of appeal).
3. Whether having regard to the evidence adduced before the Trial Court, the Appellant had proved their case against the Respondents to be entitled to the reliefs sought?” (Distilled from ground 4 of the ground of appeal).

In arguing the appeal, the learned counsel to the Appellants W.N. Bello Esq. holding the brief of Martin Milkman Esq. adopted and relied on his brief of argument filed on 28/10/19 as his argument in this appeal in urging us to allow the appeal, set aside the judgment of the trial Court and grant the reliefs sought by the Appellants.

In arguing his first issue, it was submitted that if the trial Court had considered the case of the Appellants, it would have arrived at a different decision; reliance was placed on the case of UBA PLC VS. EZE (2014) LPELR 24057 (CA) 17 PARAGRAPHS D – A. It was argued that the trial Court was in error when it relied on the evidence of the Respondents’ witness and some selected paragraphs of the statement of claim to arrive at the conclusion that the Appellants’ case was statute barred. Further, that where the Defendants raised the limitation of an action as a defence, in resolving same, the Court ought to have examined the totality of the case before it, that is: the pleadings and

the entire evidence led by the parties. See, ZANGO VS. SAWOE CONSTRUCTION NIGERIA (2015) LPELR 25898 (CA) 47 – 53, PARAGRAPHS C – F. It was argued that the cause of action was continuous therefore that the Limitation Act ought not to have been applicable. See,AKWA IBOM STATE UNIVERSITY & ANOR VS. IKPE (2015) LPELR 25830 (CA) PAGES 14-15, PARAGRAPHS F-F, NWANKWO & ANOR VS. NWANKWO (2017) LPELR 42832 (CA) 21 – 23, PARAGRAPHS D – A; A.G. RIVERS STATE VS. BAYELSA STATE (2012) LPELR 9336 (SC) 20 – 21, PARAGRAPHS B – C and AREMO II VS. ADEKANYE (2004) ALL FWLR (PT. 224) 2113 at 2132.

In arguing his issue two, the learned counsel submitted that the trial Court breached the Appellants’ right to fair hearing when it failed to pronounce on the merit of the case after resolving the issue of jurisdiction. See,UDUMA VS. ARUNSI & ORS (2010) LPELR – 9133 (CA) PAGES 97 – 98, PARAGRAPHS D – C. AFRICAN REINSURANCE CORPORATION VS. ITF & ANOR (2019) LPELR – 46891 (CA), PAGE 45, PARAGRAPHS D – F, HONEYWELL FLOUR MILLS PLC. VS. ECO BANK (2018) LPELR – 45127 (SC) at

PAGES 33 – 34; PARAGRAPHS E – D and ALI VS. UZOIGWE & ORS. (2016) LPELR – 40972 (CA) PAGES 56 – 59, PARAGRAPHS B – A amongst others.

In arguing his issues three, it was submitted that we should assume jurisdiction, hear and determine the case on the merit as if we were the Court of first instance or remit the case back to the lower Court for retrial. On determining the matter on the merit, it was submitted that the Appellants proved their case as required by law and should be granted the reliefs sought in their statement of claim. It was argued that there is no dispute that the Appellants were the original owners of the land in dispute. It was submitted that at paragraphs 7, 8, 9, 10, 12 and 13 of their statement of claim at pages 11 and 12 of the record of appeal the Appellants pleaded that their land was never acquired by the Taraba State Government and no compensation was paid to them. It was argued that the V.I.O was put on a small portion of the land measuring less than 50 ft. by 50 ft. to occupy temporary but, the V.I.O later claimed that he was put on the land by the Respondents, including other business units found on

the land. The evidence of the PW1 – PW4 was reviewed to the effect that the Appellants discharged the burden of proof placed on them. See,J.A.A. MAKANJUOLA & ANOR. VS. CHIEF J.O. AJILORE (2001) 12 NWLR (PT. 727) 416; (2000) LPELR 6853 (CA) PAGE 20, PARAS. E – G. It was submitted that the law is well settled that the burden of proof rests on the party who asserts the positive and not the negative, in this case proof that the Taraba State Government acquired the land in dispute. See, NSEFIK VS. MUNA (2007) 10 NWLR (PT. 1043) 502 PAGE 514, PARAGRAPHS D – F, BUHARI VS. OBASANJO (2005) 7 SCNJ 1 at 47. It was argued that the burden of proof shifted to the Respondents to prove their assertion at paragraph 3 of the Respondents’ Joint Statement of Defence that the disputed land was acquired by the Taraba State Government and compensation paid to the Appellants’ father. Further, that the Respondents failed to produce the Notice of Acquisition of the land served on the father of the Appellants. It was submitted that Exhibits “B1” and “C” alleged to be the proof of payment of compensation to the father of the

Appellants did not indicate that they relate to the disputed land. It was submitted that the DW1 under cross examination testified that Exhibit “C” is only evidence of assessment and not payment of compensation. It was argued that the burden was also on the Respondents to prove that the land was not only acquired but, that they strictly followed all the procedures laid down by law. See, BABA – IYA VS. SIKELI & ORS. (2005) LPELR 7448 (CA) 33 – 35, PARAGRAPHS B – G, C.S.S. BOOKSHOPS LTD. VS. THE REGISTERED TRUSTEES OF MUSLIM COMMUNITY IN RIVERS STATE & ORS. (2006) LPELR 824 (SC) 51 – 52, PARAGRAPHS E – A and GOLDMARK NIGERIA LIMITED & ORS VS. IBAFON COMPANY LTD. & ORS. (2012) LPELR 9349 (SC) 97, PARAGRAPHS C – F. It was argued that failure to serve a notice of acquisition of the land by Government on the owner of a land as required by law renders the acquisition invalid. See, ONONUJU & ANOR. VS. A.G. ANAMBRA STATE & ORS. (2009) LPELR 2692 (SC) 36 – 38, PARAGRAPHS C – C, ALIYU VS. ITAUMA (2010) ALL FWLR (PT. 510) 765 at 777 – 778. Further, that for there to be a valid

acquisition of immovable property in Nigeria, there must be prompt payment of compensation. See,ELF PETROLEUM NIG. LTD. VS. UMAH (2006) ALL FWLR (PT. 343) 1761 and KANO VS. GOVERNMENT OF ADAMAWA STATE (2015) ALL FWLR (PT. 775) 308 at 337 amongst others.

It was argued that the Respondents having admitted the title of the Appellants over the land, the burden of proving that the Appellants have been lawfully divested of that title lies on them. See, ORLU VS. GOGO – ABITE (2010) 1 SCM 161 at 180, PARAS. C – D. The Appellants agreed that the government can compulsorily acquire citizen’s land for overriding public purpose, but, in strict compliance with the statutory procedure of doing same. See, PROVOST, LACOED VS. EDUN (2004) 6 NWLR (PT. 870) 476 at 506, PARAGRAPH H; ONONUJU VS. A – G ANAMBRA STATE (2009) 10 NWLR (PT. 1148) 182 at 187 and IMPRESIT BAKOLORI PLC. (2011) ALL FWLR (PT. 598) 827 at 838 – 839, PARAGRAPHS F – C. It was argued that in the present case, the Appellants’ land was not acquired by the Taraba State Government but, encroached upon continuously on gradual basis. It was argued that if the

Appellants’ land had been acquired, they would have been served with a Notice of Revocation of their Right of Occupancy in accordance with the provisions of Section 28 and 44 of the Land Use Act before the Appellants’ right on the land could be extinguished. See, BOYE INDUSTRIES LTD. & ANOR VS. SOWEMIMO (2009) 3 N.M.L.R. PAGE 266 at 267, WUYAH VS. JAMA’A LOCAL GOVERNMENT, KAFANCHAN (2013) ALL FWLR (PT. 659) 1171 at 1192 PARAGRAPHS C – D and MILITARY GOVERNOR. It was reargued that no compensation was paid to the Appellants because their land was not acquired by the government. See, MAKUN VS. F.U.T. MINNA (2011) ALL FWLR (PT. 549) 1 at 7 R. 4 and YAKUBU VS. IMPRESIT BAKOLORI PLC. (supra).

The learned counsel to the Respondents A.D. Mustapha Senior State Counsel Taraba State Ministry of Justice with C.R. Shaki, Senior State Counsel I, in response, Mr. Mustapha adopted and relied on his brief of argument filed on 2/6/2020, deemed properly, filed and served on 7/9/2020 in urging us to dismiss the appeal in its entirety. In arguing his first issue, it was submitted that where a law stipulates a period within which to institute an

action, such action cannot be commenced after the expiration of the statutory period prescribed by law. See, CRUTECH VS. OBETEN (2011) 15 NWLR (PT. 1271) 588 at 594, PARAS. 4, WILLIAMS VS. WILLIAMS (2008) 10 NWLR (PT. 1095) P. 364 at 369. ADEKOYA VS. F.H.A. (2008) 11 NWLR (PT. 1099) 539 at 544 – 555, PARA. 7. On when a cause of action accrues, reliance was placed on OGBA VS. B.D.U. (2001) 3 NWLR (PT. 701) 579 at 582, PARA. 5. It was submitted that a look at the writ of summons and pleadings filed by the parties before the trial Court and the evidence led in support shows that the cause of action is deemed to have accrued on the date the Appellants’ father was dispossessed of the land in 1991 while the Appellants filed the action on 31st October, 2016. On the other hand, that the Appellants’ right of action accrued in 1992 the final year when the PW4 was said to have worked on the land which elapsed in 2004 in line with the provisions of Section 18(4) of the Limitation Act, 1939. See, DAVIES VS. AJIBONA (1994) 5 NWLR (PT. 343) 234 at 256, PARAS. A – B.

It was further submitted that the Appellants did not point out any new developments on the land or the actual size of the land when the trial Court visited the locus in quo on the 18th day of August, 2018. The trial Court was said to have been right to have held that the suit of the Appellants was statute barred. See, OMISORE & ANOR VS. AREGBESOLA & ORS (2015) VOL. 246 LRCN 44 at 85. It was submitted that the PW1 – PW3 testified to the effect that the VIO’s office had been on the land in dispute since the 1980’s in the defunct Gongola State. It was argued that on long possession and enjoyment of ownership over the land in dispute, the evidence of the DW1 (Emmanuel Bernard Binga) was unchallenged to the effect that the land in dispute had been acquired by the Taraba State Government that paid compensation to the Appellants’ family in 1992. On unchallenged evidence, see, FATILEWA VS. STATE (2009) ALL FWLR (PT. 347) 495 at 721 – 722 PARAS. F – B and STATE VS. OLADOTUN (2011) ALL FWLR (PT. 586) 399 at 410, PARA. E. It was the contended that, the only exception is concealed fraud or disability of a Plaintiff from infancy or unsoundness of mind to be entitled to a defence to the statute of

limitation. It was reargued that the land in dispute has been in occupation by the Respondents since the 1980’s in the defunct Gongola State before the creation of Taraba State and adequate compensation was paid to the Appellants’ father Philip Noku. Further, that the Appellants were wrong to have relied on continuous trespass as there was none proved. It was submitted that a Defendant would be guilty of trespass where he interferes with the plaintiff’s possession. See, ORIORIO VS. OSAIN (2012) 16 NWLR (PT. 1327) P. 564 at P. 565.

In arguing issue two, it was submitted that a complaint based on denial of right of fair hearing is an invitation to the appellate Court to consider whether there was denial of fair hearing during trial. See, ZAKARI VS. NIGERIAN ARMY (2012) 5 NWLR (PT. 1294) P. 478 and PAM VS. MOHAMMED (2008) 16 NWLR (PT. 1112) 1 SC 2. It was argued that there were no features in the proceedings to show that the Appellants were denied right to fair hearing throughout the trial. Further, that the trial Court was right not to have determined the case on the merits after holding that it was statute barred. It was argued that once a

Court lacks jurisdiction in a matter, any other step taken in the proceedings amounts to an exercise in futility. See, KAYILI VS. YILBUK & ORS. (2015) VOL. 244 LRCN PAGE 108 at 118 PARA. 1, MADUKOLU VS. NKEMDILIM (1962) SCNLR 31 and AKPAMGBO – OKADIGBO & ORS VS. CHIDI & ORS (2015) VOL. 247 LRCN, PAGE 45 at 60, PARA. 8. It was argued that commencing the action within the period of twelve (12) years after the accrual of action is a condition precedent to the exercise of jurisdiction by the trial Court. See, NIGERCARE DEVELOPMENT CO. LTD VS. ADAMAWA STATE WATER BOARD & ORS (2008) 9 NWLR (PT. 1093) P. 498 at 504 PARA. 6, OLAGUNJU VS. POWER HOLDING COMPANY OF NIGERIA PLC (2011) 10 NWLR (PT. 1254) P. 113 at 116, PARA. 4. It was concluded that once the issue of jurisdiction is raised, it must first be heard and resolved one way or the other. Also, that the case was heard fully with both sides participating therefore, there was no denial of fair hearing.

On the third issue, it was submitted that the burden of establishing facts upon which legal rights and liability exist, depends on the provisions of Section 131 and 132 of the Evidence Act, CAP. E14, 2011,

reference was made to the pleadings of the Appellants, paragraphs 16, 17 and 18 of the Appellants’ statement of claim and the evidence of the PW1 (Bako Philip Noku) which was at variance with the pleadings. It was not pleaded that Philip Noku gave the land in dispute in the 1980’s to the V.I.O. on temporary basis. Where evidence is at variance with the pleadings, reliance was placed on the case of ADDAH & ORS VS. UBANDAWAKI (2015) VOL. 241 LRCN P. 1 at 9 PARA. 7. It was submitted that the PW2 and PW3 testified to the effect that the V.I.O. had been on the land before the creation of Taraba State. It was submitted that evidence obtained under cross examination on matters that are pleaded (where issues are joined) is admissible in evidence. See, OMISORE & ANOR VS. AREGBESOLA & ORS. (2015) VOL. 246 LRCN P. 44 at 72, PARA. 20. Also, that the evidence of the PW1 and the PW2 is contradictory and the Court cannot pick and choose which one to believe. See, KAYILI VS. YILBUK & ORS (2015) (supra) at 124 PARA. 16.

Further, that Exhibits B & C indicating photograph and signature acknowledging receipt of N6,940.00 from the Respondents shows that the Appellants’ father Philip Noku was compensated and the Respondents’ acquisition legal; the Exhibits were said to have been made in 1992 which evidence was not shaken under cross examination, therefore, deemed admitted by the Appellants. See, FATILEWA VS. STATE (2009) ALL FWLR (PT. 347) 495 at 721 – 722, PARAS. F – B and THE STATE VS. OLADOTUN (2011) ALL FWLR (PT. 586) 399 at 410, PARA. E.

In their reply brief of argument filed on 21/9/2020, it was submitted that since the property in question was held under customary title, it is not subject to Limitation Act. See, LAWANI VS. GRILLO & ORS (2018) LPELR – 44912 (CA) PAGES 18 – 20, PARAGRAPHS G – C.

The issues as formulated by the parties are similar but, differently worded. I will utilize those of the Appellants in determining the appeal. In respect of issue one, the trial Court relied on the provisions of Section 18(4) of the Limitation Act 1939 which is applicable to Taraba State pursuant to Section 28 of the High Court Laws of Taraba State 1997. Section 18 (4) provides thus:

18 (4) “No action shall be brought to recover any land after the expiration of twelve years from the date of which the right of action accrued to the plaintiff or to the person through whom he claims.”

Where the law provides a period within which to commence an action accruing to the plaintiff, the action cannot be commenced after the period prescribed by law, it is said to be statute barred. In such a situation, a plaintiff may have a cause of action but, loses the right to enforce it by judicial process because the period of time laid down by the Limitation Law for bringing such action had elapsed.

(2015) LPELR – 24839 (SC) PP. 30 – 31, PARA. D.

statute of limitation is not maintainable. See, EKEOGU VS. ALIRI (1991) 3 NWLR (PT. 179) 258, SANDA VS. KUKAWA LOCAL GOVERNMENT (1991) NWLR (PT. 174) 379 and ODUBEKO VS. FOWLER (1993) 7 NWLR (PT. 308) 637.

In the present case, the question is: when did the Appellants’ cause of action arise against the Respondents which ordinarily would have given rise to the right of action against the Respondents entitling them to the reliefs sought but, it has not? A cause of action accrues and time begins to run when there is in existence a person who can sue and another who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. From the Writ of Summons, pleadings filed by the parties and the evidence led in support shows that the Appellants’ cause of action is deemed to have accrued on the date the Appellants’ father was dispossessed of the land before the creation of Taraba State in 1991, in the defunct Gongola State in the year 1991, a period of more than twenty (20) years, while the action was filed on 31st October, 2016. Further, as rightly argued by the learned counsel to the Respondents, the PW4

(Peter Laiyu) who testified that he farmed on part of the land in 1992, given to him by the Appellants’ father, farmed on part of the land in dispute that same year; the Appellants’ right of action accrued in 1992 which elapsed in 2004 in line with the provisions of Section 18(4) of the Limitation Act, 1939, which extinguished the Appellants’ right to recover the land in dispute from the Respondents through an action in Court. The Appellants’ Writ of Summons and other accompanying processes were filed on 31/10/16, over twelve (12) years after the period, the cause of action arose against the Respondents. Once possession is lost to the defendant, the limitation period commences and a right of action accrues.

The learned counsel had argued that the new developments on the land in dispute by the Respondents was a continuous one even though the action to dispossess the Respondents of the land was in 2016 when this action was taken out. Further, at the visit to locus in quo, the Appellants failed to show the trial Court the actual size of the land, the new developments and the date they were put up. It is not enough for the Appellants

to have pleaded and given evidence on oath to the effect that the Respondents have continued to expand on the land in dispute. On the trial Court’s evaluation, the trial Court did not find as credible or reliable the Appellants’ version of the story that the development is continuous. In the evidence of the PW1 (Bako Philip), PW2 (Christopher Tanko) and the PW3 (Alipis Swakkei) all admitted that the VIO’s office had been on the land in dispute before Taraba State was created in 1991. The PW4 (Peter Laiyu) testified under cross examination that the VIO’s office was on the land in dispute while the Appellants’ father (Peter Noku) was alive. The DW4 (Emmanuel Bernard Binga) also testified that the VIO’s office had been on the land in dispute before the creation of Taraba State in 1991 following which compensation was paid to the father of the Appellants in 1992 and that the VIO’s office had been on the land for over twenty (20) years while the Appellants’ father was alive and on creation of Taraba State, part of the land that housed the VIO’s office was partitioned and given out for a filling station, motor

park, hotel, offices and residential purposes while the Appellants’ father was alive and did not protest or challenge the Respondents. The Respondents’ exclusive possession of the land in dispute was not challenged until the present action was filed at the lower Court on 31st October, 2016, well over the stipulated period of twelve (12) years within which the action ought to have been brought. From the pleadings and evidence led in support, the Appellants’ action accrued more than twenty (20) years from the date the action was taken out, therefore statute barred. The Appellants failed to counter the fact that their grouse leading to the present action accrued more than twenty (20) years before action was taken out, it was not controverted through their pleadings and evidence adduced before the trial Court.

By virtue of the Limitation Act (supra) any claim related to interest in land has a limitation period of twelve (12) years within which an action for the recovery of the land must be brought.
At page 206 of the printed records of appeal the trial Court held thus:

“It is therefore my view and I so hold that the cause of action in this case accrued for the benefit of the Plaintiffs and/or their father in 1991 when the Government of Taraba State entered into the land in dispute marked out, assessed and allocated same to the general public without first paying compensation to the Plaintiffs or their father.”
Further at page 207:
“…the Writ of Summons in this case was filed on 31st October, 2016 almost 25 years after the accrual of the cause of action in 1991”

The above view of the trial Court cannot be faulted. I am at one with same. At page 210 – 211 of the records of appeal the trial Court rightly held thus:
“There is no iota of doubt that from the evidence the Defendants have been in possession of the land in dispute for over twelve (12) years, before this action was brought. What is needed for the limitation period to commence is absence of possession by the Plaintiffs and possession by the Defendants. The right of action accrues once possession has been lost to the other party. See DAVIES VS. AJIBONA (1994) 5 NWLR (PT 343) 234. In the instant case the Plaintiff’s father was dispossessed of the land in dispute in

1991 upon the creation of Taraba State when the government went into the land, marked and assessed same. The Plaintiffs and their father before them were aware of this but they did nothing for 25 years. A person who is aware of his rights but allows them to go stale should not be allowed to revive the said stale action to the detriment of an adversary, as equity aids only the vigilant and not the indolent. See NWADIARO vs. SHELL DEV. CO. LTD (supra) from the foregoing reasons the English Statute of Limitation 1623 applies in this case and the claim of the Plaintiffs is statute barred. Once an action is statute barred and is so declared by the Court that is the end of the case and the cause of action is incapable of relitigation and should therefore be dismissed. In LAMINA VS. IKEJA LOCAL GOVERNMENT (1993) 8 NWLR (PT 314) 758 the Court of Appeal held that where a Court finds that an action is statute barred such finding is an end to the action as at that stage the cause of action is not capable of litigation and that the proper order is one of dismissal. Accordingly the claim of the Plaintiffs is hereby dismissed. Having come to the conclusion that the claim of

the Plaintiffs is statute barred and having dismissed same I do not see the need to consider the other issue for determination as that will amount to an academic exercise, an exercise which I am not prepared to undergo.”

The above view and decision of the trial Court is unassailable.
The learned counsel to the Appellants had argued that the act of the Respondents complained of was a continuous one to which the Limitation Act is inapplicable but, the Appellants at the lower Court did not prove the alleged continuous acts of trespass on the part of the Respondents. The only exception to the Limitation Act is where concealed fraud or disability of a Plaintiff from infancy or unsoundness of mind has been proved, which is not the case here. The Appellants did not make out a case of concealed fraud or any disability in the present case to entitle them to the defence available to the statute of limitation. I hold that the trial Court was right to have held that the Appellants’ action at the trial Court was statute barred and proceeded to dismiss same. See, KAYODE & ORS VS. REGISTERED TRUSTEES OF UNITED AFRICAN METHODIST CHURCH (2018) LPELR

– 44539 (CA) PP. 28 – 30, PARAS. C-B, EGBE VS. ADEFARASIN (1987) 1 NWLR (PT 47) 1 at 20 – 21 and AREMO II VS. ADEKANYE & ORS (2004) LPELR – 544 (SC) P. 18, PARAS. B-D. I resolve issue one against the Appellants.

Having resolved issue one against the Appellants there would be no need to look into issues two and three as the resolution of same would not be of any benefit to any of the parties, but rather an academic exercise. The trial Court was right not to have gone into resolution of the case on its merits. The dismissal order stands, I affirm same.
In sum, the judgment of the trial Court is hereby affirmed.
Parties to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA. My learned brother has exhaustively dealt with the issues for determination. I agree with the reasoning and conclusions reached in dismissing the appeal and also dismiss the appeal for lacking in merit.

I abide by the orders made in the judgment including the order as to costs.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.

Appearances:

N. BELLO, ESQ. holding the brief of MARTIN MILKMAN For Appellant(s)

D. MUSTAPHA, Senior State Counsel, Taraba State Ministry of Justice, with him, C. R. SHAKI, Senior State Counsel I For Respondent(s)