OFUBU & ORS v. EREBULU & ORS (2021)

OFUBU & ORS v. EREBULU & ORS

(2021)LCN/15521(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Monday, May 31, 2021

CA/AS/311/2018

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. PA. JOEL GENTLEMAN OFUBU 2. PRINCE BERNARD OFUBU 3. PRINCE LAWRENCE BABODOR (For Themselves And On Behalf Of The AMISAIN Kindred Of OKURUWAREOWE Ruling House Of KABOWEI Clan) APPELANT(S)

And

1. MR. EBIAKPO EREBULU 2. MR. ELLA EREBULU (For Themselves And On Behalf Of The Purported ADUWOR (Aduo) Kindred Of OKOURUWAREOWE Ruling House Of KABOWEI Clan) 3. CHIEF VICTOR EKIYE 4. CHIEF FREEMAN AKPEDI 5. CHIEF EDWARD BRIBEBE (For Themselves And On Behalf Of Kabowei Regency Council Of Kabowei Clan) 6. THE ATTORNEY GENERAL OF DELTA STATE 7. DELTA STATE GOVERNMENT 8. HRM PEREMOBOWEI SHADRACK EREBULU (JOINED BY ORDER OF COURT OF 8/01/2018) RESPONDENT(S)

 

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal was heard on 8/2/2021 when judgment was reserved. Judgment was prepared and ready within the period stipulated but it could not be delivered within the stipulated time because of the strike action of Judiciary Staff Union of Nigeria (JUSUN.) The strike is yet to be called off but the facility to deliver the judgment online has just been made available to this Court. This is why the judgment is being delivered through zoom today.

The appeal is against the ruling of the High Court of Delta State, in the Bomadi Judicial Division (the lower Court) delivered on 2/3/2018 in suit No. HCB/8/2016 by M. N. OBI, J. In the judgment, the lower Court ruled that the action of the appellants was statute-barred and it accordingly dismissed the same.

Aggrieved by the decision, the appellants filed a notice of appeal to this Court against the same on 15/5/2018 which notice was amended by the order of this Court.

​The facts of the case leading to this appeal are that the appellants sued the respondents at the lower Court for the following reliefs:-

“a. A Declaration that under and by virtue of Bendel State Legal Notice (B.S.L.N.) No. 7 of 1990 it is only male descendants of Aduwor, Amisain and Agidigbo Kindreds of Okuruwareowe ruling house of Kabowei kingdom that can produce the Pere of Kabowei kingdom.
b. A Declaration that Pere Enetimi of Kabowei kingdom having died without a male offspring the Aduwor kindred of Okuruwareowe ruling house of Kabowei kingdom has gone extinct particularly as it relates to its right to the succession to the title of Pere of Kabowei kingdom.
c. A Declaration that Section 5 of the Bendel State Legal Notice (B.S.L.N.) No. 7 of 1990 regulating the secession to the title of Pere of Kabowei kingdom to the extent of the inclusion of the Aduwor kindred of Okuruwareowe ruling house as one of the kindred families qualified to produce the Pere Kabowei kingdom is void ab initio.
d. A Declaration that the Aduwor kindred of the Okuruwareowe ruling house of Kabowei clan having gone extinct, the claimants Amisain kindred of Okuruwareowei ruling house of Kabowei kingdom is next in line to produce the Pere of Kabowei kingdom.
e. An order of injunction restraining the 1st, 2nd & 8th Defendants from parading and/or presenting themselves and/or the purported Aduwor kindred of Okurewareowe ruling house to the 3rd–7th Defendants as persons entitled to occupy the vacant stool of the Pere of Kabowei kingdom and/or produce the next Pere of Kabowei kingdom.
f. An order of injunction restraining the 3rd–5th Defendants from selecting/appointing the 1st, 2nd & 8th Defendants and/or any member of the purported Aduwor kindred of Okuruwareowe ruling house of Kabowei clan as the next Pere of Kabowei kingdom.
g. An order of injunction restraining the 6th & 7th Defendants either by themselves and/or their agents from giving recognition to any selection and/or appointment (including the handing of staff of office of Pere of Kabowei kingdom) of the 1st, 2nd & 8th Defendants and/or any member of the purported Aduwor kindred of Okuruwareowe ruling house of Kabowei clan as the next Pere of Kabowei kingdom”

​The facts of the case as stated by the appellants in their statement of claim are that the Okuruwareowe (also called Okuruware) ruling house is the only ruling house in Kabowei kingdom, a sub-clan in Oproza clan. The first (King) of the kingdom was Okuruwareowe and succession to the throne of Pere of Kabowei kingdom is hereditary passing to the first son of the last Pere provided that such a son has no disability or disqualification. Where the first son is not suitable, it passes to the most suitable son in order of seniority and females are absolutely excluded from ascending the throne. When the Pere dies without a male child, succession passes to a suitable member of Aduwor, Amisain or Agidigbo kindred of Okuruwareowe ruling house. The first Pere sired three sons-Aduwor, Amisain and Agidigbo. The appellants are direct male descendants of Okuruwareowe through Amisain.

​Following the death of Okuruwareowe, his first son Aduwor succeeded him and he (Aduwor) had only one son, Enetimi, who succeeded him. Enetimi died without having a son and so the Aduwor lineage became extinct in regard to succession to the stool of Pere of Kabowei kingdom. After years of agitation, the Government of old Bendel State set up a commission of inquiry into the Pere of Kabowei chieftaincy with A. S. Iriah as the sole commissioner. The commission delivered its report to the government which by Legal Notice (B.S.L.N.) No. 7 of 1990 approved the Declaration stating the customary law on the title of Pere of Kabowei. The appellants complained that the inclusion of Aduwor kindred in the said notice as one of the kindreds of the Okuruwareowe ruling house was fraudulent.

The late Major L. M. Erebulu who purported to belong to Aduwor kindred was purportedly appointed Pere of Kabowei kingdom. The appellants sued him in suit No. HCB/13/2015 for the setting aside of his appointment. Upon the demise of Major L. M. Erebulu, the appellants discontinued the suit. The appellants posit that their Amisain kindred have a right to produce the Pere but that the 1st, 2nd and 8th respondents have been parading themselves and the purported Aduwor kindred as being entitled to produce the Pere. The appellants sued them along with the other respondents for the reliefs that had earlier been set out in this judgment.

In response, the respondents filed their statements of defence. The 3rd–5th respondents also filed a motion on notice for an order of the lower Court dismissing the suit for lack of jurisdiction. The grounds for the application were that:-
i. The suit was statute-barred.
ii. It violated Section 18 of the Limitation Law of Delta State.

After taking addresses from counsel, the trial Court, as earlier stated, ruled in favour of the 3rd–5th respondents, dismissing the action.

At the hearing of the appeal on 8/2/2021, C. N. DIKE, ESQ. for the appellants urged the Court to allow the appeal and remit the case back to the trial Court for trial by another Judge. He relied on appellants’ brief of argument filed on 25/6/2019, and the reply brief filed on 15/8/2019.

BETTY OTOBOH, ESQ. for 1st, 2nd and 8th respondents adopted and relied on the brief of argument filed on their behalf on 8/6/2020 and deemed duly filed and served on 9/6/2020 in urging the Court to dismiss the appeal.

O. N. IWEMA, ESQ. for 3rd–5th respondents urged the Court to dismiss the appeal, relying on the brief of argument filed on their behalf on 30/7/2019.

In the appellants’ brief of argument, the following issues have been formulated for the determination of the appeal:-

ISSUE 1
Whether the Claimants’ case is base (sic) on Section5 of the Bendel State Legal Notice No. 7 of 1990 and as such affected by Section 18 of Limitation Law of Delta State rather than on the Kabowei native law and Custom governing succession to the Pere stool of kabowei kingdom. (grounds 1, 2 and 3)
ISSUE 2
Whether the failure of the 3rd–5th Defendants/Respondents to comply with the provisions of Order 22 Rule 1 and 2 of the Delta State High Court (Civil Procedure) Rules, 2009 did not affect the competence of the motion on notice objecting to the jurisdiction of the trial Court to entertain the Claimants claim without first raising and pleading same in their statement of defence. (ground 4)

Counsel for the 1st, 2nd and 8th respondents decocted from the grounds of appeal the following issues for the determination of the appeal:-
“1. Was the learned trial Judge wrong in holding that the suit of the Appellants is statute barred by virtue of Section 18 of the Limitation Law of Delta State?
2. Was the learned trial Judge wrong in holding that the failure of 3rd to 5th Defendants to plead the statute of limitation did not defeat the preliminary objection bothering (sic: bordering) on jurisdiction” For the 3rd–5th respondents, the following issues have been distilled for the determination of the appeal:-
“Whether the 3rd to 5th Respondents need to specifically plead a statute of limitation in their statement of defence before they can be entitled to raise it to challenge the jurisdiction of the Court.
ISSUE 2
Whether the suit of the Appellants is statute barred”

The issues formulated by counsel are in substance the same but it seems to me that the issues formulated by counsel for the 1st, 2nd and 8th respondents are more precise and concise than the other two sets of issues. I therefore shall be guided by them. I propose to consider the two issues together since they relate to the same general point, to wit: the applicability of the Limitation Law of Delta State to the case of the appellants.

​Appellants’ counsel gave a synopsis of the case of the appellants. He submitted that in considering an issue of jurisdiction on the ground that an action is statute-barred, what the Court looks at is the writ of summons and statement of claim and not the construction given to the claimant’s case by defendant’s counsel. He submitted that the trial Court acted to the contrary by relying on paragraph 6 of the respondents’ affidavit in support of the preliminary objection. He contended that the appellants relied on the native law and custom of chieftaincy succession of Kabowei Kingdom and that the custom is confirmed by Section 5 of the B.L.S.N. No. 7 of 1990. He emphasized that the case of the appellants is based on native law and custom and that they (appellants) do not challenge the validity of the BSLN No. 7 of 1990 nor is their action founded on it.

​Counsel submitted that the cause of action did not arise or accrue when the said legal notice was gazetted or when a person from Aduwor family was installed, as Pere of Kabowei in 1990 as held by the trial Court. This, he stated, is because the action of the appellants is based on customary law and that it is trite that customary law is never caught by limitation law. He further submitted that appellants’ cause of action accrued when they discovered that the late Major Erebulu was not a male descendant of Aduwor and not when he was installed. He noted that the appellants filed an action against the retired Major immediately they discovered that he was not a male descendant of Aduwor branch.

He contended that assuming but without conceding that the cause of action accrued when the late Major Erebulu was installed as the Pere of Kabowei in 1990, the installation and his continuance in office constituted a continuing injury or damage which he stated was an exception to the law of limitation of action. He cited and relied on INEC v. OGBADIBO LOCAL GOVERNMENT (2016) 3 NWLR (PT. 1598) 167. It was his further contention that since the 1st, 2nd, 3rd respondents and their late father, Major Erebulu are/were not direct male members of Aduwor branch or kindred, they can not avail themselves of the provision of BSLN No. 7 of 1990 or Section 18 of the Limitation Law.

It was his final argument that having not raised the point of limitation of action in their statement of defence, their motion was incompetent.

Counsel for 1st, 2nd and 8th respondents, citing the case of MADUKOLU v. NKEMDILIM (1962) ALL NLL (PT. 2) 581, argued that in highlighting those features in the case which prevented the trial Court from exercising jurisdiction, the 3rd–5th respondents relied on the averments in the claim of the appellants and took the objection by motion on notice. He contended that nothing prevented them from raising the objection by motion, relying on ELABANJO v. DAWODU (2006) 15 NWLR (PT. 1001) 76. Counsel submitted that chieftaincy matters fall within the purview of Section 18 of the Limitation Law.

Counsel posited that the cause of action accrued in 1990 when the BSLN No. 7 of 1990 was published. He noted that the claim and relief are targeted at the validity of the said BSLN. He stated that it was on the basis of the appellants’ pleading that 3rd–5th respondents prayed the Court to dismiss the claim. He added that the BSLN NO. 7 of 1990 created a statutory right and duty binding on the parties and that by the limitation law, the action filed in 2016 is statute-barred. He argued that the legal injury which was the cause of action occurred in 1990 with the making of the BSLN No. 7 of 1990 distinct from the continued legal injury. AREMO II v. ADEKANYE (2004) 13 NWLR (PT. 891) 572 and INEC v. OGBADIBO LOCAL GOVERNMENT supra were cited in support.

Counsel further argued that the argument that the 1st, 2nd and 8th respondents and the late Major Erebulu could not avail themselves of the limitation law not being direct male members of Aduwor Branch amounted to going into the substance of the claim which he said could only be done if the claim is not statute-barred.

Citing the cases of ELABANJO v. DAWODU supra and AJAYI v. ADEBIYI (2012) 11 NWLR (PT. 1310) 132, he submitted that since the issue of jurisdiction is radical and can be raised at any stage, failure to raise the defence of limitation of action in the statement of defence cannot confer jurisdiction upon a Court which does not have it.

Counsel for 3rd–5th respondents proffered substantially the same arguments as counsel for 1st, 2nd and 8th respondents. It is unnecessary to re-state them except I will highlight points that were not covered by the latter’s argument. Counsel contended that demurrer proceedings are totally different from challenge of the power of the Court to adjudicate. The cases of NATIONAL DEPOSIT INSURANCE CORPORATION v. CENTRAL BANK OF NIGERIA (2002) 7 NWLR (PT. 766) 272 and ATTORNEY-GENERAL OF THE FEDERATION v. ATTORNEY-GENERAL OF ANAMBRA STATE (2017) LPELR – 43491 (SC) among other cases were cited in support of the contention. He conceded that the position of the apex Court on this point seems to be in conflict but posited that the position in ATTORNEY-GENERAL OF THE FEDERATION v. ATTORNEY-GENERAL OF ANAMBRA STATE supra is now the law to follow.

Counsel posited that the entire claim of the appellants rests on the trial Court’s determination that Section 5 of the BSLN No. 7 of 1990 to the extent of inclusion of the Aduwor kindred of the ruling house as one of the kindreds qualified to produce the Pere of Kabowei kingdom is void. He further posited that the suit filed in 2016 was statute-barred by virtue of Section 18 of the Limitation Law of Delta State.

Appellants’ counsel by way of reply cited the case of ESUWOYE v. BOSERE (2017) 1 NWLR (PT. 1564) 266 in stating that Section 18 of the Limitation Law of Delta State could not have referred to actions founded on customary law.

RESOLUTION
Counsel for the appellant submitted that the 3rd–5th respondents ought to have raised the point as to the suit being statute-barred in their statement of defence as provided for in Order 22 Rule 2 of the Delta State High Court (Civil Procedure) Rules, 2009. He further submitted that failure of the 3rd–5th respondents to do so rendered the entire proceeding on the application objecting to the jurisdiction of the Court a nullity.

Order 22 Rule 2 of the Delta State High Court (Civil Procedure) Rules, 2009 provides that:-
“Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the cause at or after the trial provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, it may be set down for hearing and disposed of at any time before the trial.”
The provision above gives a party the right to raise in his pleading, any point of law that may determine a case substantially or any distinct cause of action. It however does not apply where the point raised borders on jurisdiction nor does it mean that a party must raise a point of law in his pleading. See ELABANJO v. DAWODU (2006) 15 NWLR (PT. 1001) 76, 114–115 and 135-136. Respondents’ counsel contended that the issue of limitation of action is a jurisdictional issue. This then takes me to Order 15 Rule 4 (1) of the same rules which states:-
“A party shall plead specifically any matter (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) which, if not specifically pleaded might take the opposite party by surprise”
In the case of KETU v. ONIKORO (1984) 10 SC 265, 261 – 269, Obaseki, JSC, held that:-
“It is a cardinal rule of pleading that such specific matters as the Limitation Law must be expressly set out or pleaded in the statement of defence once it is not pleaded the defendant cannot be granted the protection of that Law.” see also OYEBAMAJI v. LAWANSON (2008) 15 NWLR (PT. 1109) 122, 133.
However, in recent times, the apex Court has held that though a defence of limitation ought to be pleaded, it still can be raised at any stage in the proceeding without being pleaded. See ABUBAKAR v. MICHELIN MOTOR SERVICES LIMITED (NO 1) (2020) 12 NWLR (PT. 1739) 553, 567–570 and AJAYI v. ADEBIYI supra.
The latter position of the apex Court was based on the consideration that the issue of limitation of action is a jurisdictional issue. In his dissenting judgment, in ELABANJO v. DAWODU supra 150 and 151 Onnoghen, JSC, as he then was, held the view that issue of limitation of action is not a jurisdictional issue but a legal defence. However, the majority judgment was that the issue is an issue of jurisdiction.
There is a distinction between substantive jurisdiction and procedural jurisdiction. While a litigant can waive procedural jurisdiction, no litigant can confer jurisdiction on the Court where the constitution or a statute or any provision of the common law says that the Court should have no jurisdiction. A litigant may submit to procedural jurisdiction of Court. An example is where a writ has been served outside jurisdiction without leave (see ODU’A INVESTMENT LTD v. TALABI (1991) 1 NWLR (PT. 170) 761) or where pre-action notice has not been served when it is required (see MOBIL PRODUCING (NIG) UNLIMITED v. LASEPA (2002) 18 NWLR (PT. 789) 1, NDAYAKO v. DANTORO (2004) 13 NWLR (PT. 889) 187 and BELGORE v. FRN (2021) 3 NWLR (PT. 1764) 503.) Any statute that prescribes time for doing of a thing is procedural and the issue of jurisdiction arising therefrom is procedural and generally speaking can be waived. In CHIGBU v. TONIMAS (NIG) LTD (2006) 138 LRCN 1551 it was held that limitation law is a procedural law. Again, it has been held that issue of limitation may be waived by failure to specifically plead and proffer evidence on it –CHUKWU v. AMADI (2009) 3 NWLR (PT. 1127) 56, 77 – 78. Limitation law is made to protect a person from defending a stale claim. It is made for the benefit of the person and so he can waive its application.
In spite of what I have said above, the current position of the Supreme Court is that issue of limitation of action is such a jurisdictional issue that can be raised at any stage, even without raising it in a statement of defence. I am bound to follow it though with misgiving.

​Where a statute of limitation prescribes the period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. A plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down by the limitation statute for such an action has elapsed. See AREMO II v. ADEKANYE supra.
To determine if an action is statute-barred, what is required is for one to examine the writ of summons and the statement of claim alleging when the wrong was committed which gave the plaintiff a cause of action and comparing that date with the date on which the writ of summons was filed. If the time on the writ is beyond the period allowed by the limitation law, the action is statute-barred. See AREMO II v. ADEKANYE supra. It needs to be emphasized that the Court is not permitted by the law to decide the issue of limitation based on a date pleaded by the defendant in his statement of defence or in his supporting affidavit, except the plaintiff admits it.

It was the contention of appellants’ counsel that the case of the appellants is based on native law and custom and that it is trite law that customary law is never caught by limitation law. The bottom line is that the case of the appellants is a chieftaincy matter. In the case of IBRAHIM v. LAWAL (2015) 17 NWLR (PT. 1489) 490, 537, Okoro, JSC, answered a similar contention as follows:-
“Finally, the learned counsel for the 1st–4th respondents submitted that the statute of limitation does not apply to chieftaincy matters. This is not correct as there is no law which supports that position.”

A period of limitation begins to run from the date on which the cause of action accrued. The question then is, when did the cause of action accrue in this instance? In answering that question, it is necessary to state that a cause of action entails the fact or combination of facts which gives rise to a right to sue and it consists of two elements:-
(a) The wrongful act of the defendant which gives the plaintiff his cause of complaint; and
(b) The resultant/consequent damage – ESUWOYE v. BOSERE (2017) 1 NWLR (PT. 1546) 256, 296.

​The case of the appellants in the instant matter is that the Aduwor kindred of Okuruwareowe ruling house of Kabowei kingdom had become extinct in respect of succession to the stool of Pere of Kabowei kingdom because Pere Enetimi from that kindred died without a male child. The appellants also pleaded that as a result of agitation over the chieftaincy, the then Military Government of Bendel State in 1975 set up the A. S. Iriah Commission of Inquiry into the chieftaincy title dispute. The report of the Commission was approved by the Government of Bendel State by Legal Notice (B.S.L.N.) No. 7 of 1990. The customary law regulating succession to the title of Pere of Kabowei regulates succession to the title of Pere of Kabowei kingdom.; By paragraph 5 of the said Legal Notice:-
“Should the Pere die without a surviving male issue, succession passes to a suitable member of Aduwor or Amisain or Agidigbo kindred of the ruling house in that order provided that brothers are preferred to uncles and uncles are preferred to grandsons and grandsons are preferred to other relations”

The appellants averred that the inclusion of Aduwor kindred (the 3rd–5th respondents’ kindred) in the Legal Notice as one of the kindreds of Okuruwareowe ruling house is fraudulent because, inter alia, the Aduwor kindred had become extinct to the knowledge of the deceased erstwhile Pere, the late Major Erebulu and his cohort who smuggled and introduced that kindred into the declaration to enable the late Pere have a platform to ascend to the throne of Pere of Kabowei kingdom.

The first point to be made is that, once there is a chieftaincy declaration, its provisions prevail until amended and it has the force of law. It obviates the necessity of proof by oral evidence of the tradition concerned. It is deemed to be the only customary law regulating the selection of a person to the office covered by it. See OYEFOLU v. DUROSINMI (2001) 16 NWLR (PT. 738) 1, 18 which was followed in DANESI v. YERIMA (2003) 10 NWLR (PT. 827) 165, 183.

Where there is a chieftaincy declaration and subsequently the selection of a person to occupy the stool relating thereto on the basis of the declaration, the cause of action arises not when the declaration was made but when the person was so selected. In ESUWOYE v. BOSERE supra, the question was as to when the cause of action accrued. The cross-appellant posited that it accrued in 1969/1970 when Exhibit J, the relevant chieftaincy declaration, was made. The 1st–5th cross-respondents contended that it accrued in 2010 when the immediate past occupier of the stool died. Onneghen, JSC, as he then was, at page 298 answered the question as follows:-
“I agree with the lower Court that the cause of action of the cross-respondents did not accrue, in 1969/1970 when exhibit J was promulgated but in 2010 when both the cause of complaint and consequent/resultant damage became crystallized. I agree with the submission of learned senior counsel for the 5th cross-respondent that though exhibit “J” gave the cross-respondent a cause for complaint when it was made in 1969/1970, the complaint remained in abeyance until the “consequent damage” which occurred in 2010 when the provisions of exhibit “J” were invoked to fill the vacancy in issue”.

The trial Court was therefore right in part in holding at page 130 of the record of appeal that:-
“The cause of action thus accrued when the legal notice was gazetted in 1990 and when a person from the said Aduwor family was installed as Pere of Kabowei also in 1990”.

I have said that the trial Court was right in part in the above finding. This is because, it was right in holding that the cause of action arose in 1990 when the declaration was gazetted and when a person from Aduwor family was installed as Pere of Kabowei. Nevertheless, I am unable to agree with it as to the last part of the finding, namely: that the said Pere was installed in 1990. The question is where did the trial Court get the date from? I have read the amended statement of claim and it is nowhere averred therein that the person referred to (the late Pere Major L. M. Erebule (Rtd) was installed in 1990. Infact there is no date given in the amended statement of claim as to when he was installed. The trial Court got that date from the affidavit of the 3rd–5th respondents in support of their motion on notice for the dismissal of the suit for lack of jurisdiction. The depositions in the said affidavit were not countered by a counter-affidavit. On this account, the trial Court held as true the evidence contained in the said affidavit. It consequently held that:-
“As earlier stated, the claimants in not filing a counter-affidavit have conceded that they were aware of the legal notice being challenged since 1990 and that in fact, it was pursuant to the said legal notice that the deceased erstwhile Pere of Kabowei kingdom His Royal Majesty, Major L, M, Erebulu (RTD) a member of the Aduwor family was chosen and given the staff of office in 1990 – Page 129 of the record of appeal”

With due respect, the trial Court erred in relying on the date expressed in the said affidavit in determining when the cause of action arose. This is because, as I have already stated, in determining if a claim is statute-barred it is only the writ of summons and statement of claim that the Court is to consider. The Court is not permitted to factor in the statement of defence or affidavit in support of the motion raising the question of limitation. See AREMO II v. ADEKANYE supra, and WOHEREM v. EMERUWA (2004) 13 NWLR (PT. 890) 398, 416.
In the case of REGISTRAR, COLLEGE OF EDUCATION, KATSINA-ALA v. GBANDE (2014) 5 NWLR (PT. 1401) 589, the Court relied on affidavit evidence filed in respect of the motion raising the issue of limitation to determine that the suit was statute-barred. At page 608, Oseji, JCA, as he then was, held:-
“The reliance on affidavit evidence by the parties and the Court constitutes a procedural abnormality which cannot be allowed to stand”

I have already stated that the date of the selection or installation of the late Major Erebulu (Rtd) is not stated in the amended statement of claim so as to enable the Court safely determine when the cause of action accrued. In that circumstance, the matter must go to trial where evidence would be led or elicited on, inter alia, the relevant date. In KASANDUBU v. ULTIMATE PETROLEUM LTD (2008) 7 NWLR (PT. 1086) 274, 302 Ogunwumiju, JCA, as he then was, reasoned thus:-
“The learned trial Judge clearly went outside the writ of summons and statement of claim to gather the facts from which he concluded that the action was statute-barred… Since there was no clear indication of when the cause of action arose or when possession was lost by the appellants in their statement of claim, the issue of time frame on which issues are joined in the pleadings must go to trial and a proper finding of fact made by the trial Court after considering evidence before him. With respect, the learned trial Judge ought not to have upheld the plea of limitation when there was no clear evidence of when the cause of action arose from the writ of summons
and statement of claim — the only process he was obliged to consider.”

Before I conclude, let me quickly state that the argument by appellants’ counsel that the injury in this matter is a continuing injury is not well founded. This is because, the legal notice was published on a specific date or in a specific year and the selection and installation of Pere Erebulu took place as events though the date(s) is/are not specified in the amended statement of claim. The cause of action arose upon the occurrence of those events. The legal injury occurred once and must not be confused with the impact of the legal injury. See AREMO II v. ADEKANYE supra and INEC v. OGBADIBO LOCAL GOVERNMENT supra.

On the whole, I enter a positive answer to issue 1 and resolve it in favour of the appellants.

In respect of issue 2, I enter a negative answer and resolve it against the appellants.

​Consequently, I find that the appeal succeeds in part. I set aside the decision of the trial Court that the suit of the appellant is statute-barred. In its stead, I direct that the case be sent back to the High Court of Delta State to be tried before another Judge where evidence will be led on the issue(s) in controversy.
The parties shall bear their costs.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: The trial Court was not right in relying on the date – disclosed in the affidavit evidence of any party to reckon whether a suit was statute barred.

Neither the statement of defence nor affidavit in support of motion raising the question of limitation shall determine the question of the application of the limitation law.

In this matter, it was nowhere stated in the statement of claim when the defendant/appellant was installed as the Pere of Kabowei and therefore; the relevant date being also the gazzetted date was not pleaded in the statement of claim but only alleged or brought out in the affidavit evidence of the 3rd-5th respondents in their motion on notice for the dismissal of the suit for lack of jurisdiction. There being no counter-affidavit by the plaintiffs/appellants disclosing any date, it means that the plaintiff/appellants still stood by the situation of a non-disclosed date of a cause of action; upon which computation of the period of limitation for the purpose of the suit to be held to be statute barred could be reckoned.

The trial Court was therefore wrong in reckoning based on the affidavit evidence as it did. The appeal is allowed on this ground.

I abide by the consequential order made in the lead judgment by my brother, Joseph Eyo Ekanem, JCA that the case be remitted to the trial Court for evidence to be led in determining whether the suit was statute barred. There was no legal basis for the dismissal on that ground. Appeal is allowed on this issue, the only basis for the dismissal of the appeal in the first instance.

ABIMBOLA OSARUGUE OBASEKI–ADEJUMO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, JOSEPH EYO EKANEM, JCA in this appeal. I agree with the reasoning and conclusion of my learned brother.
The appeal succeeds in part.

It is a trite principle of law that to determine the period of limitation the Court would rely on only the writ of summons and the statement of claim; see IBRAHIM v LAWAL & ORS (2015) LPELR – 24736 (SC); where it thus;
“Let me add that in order to determine the period of limitation, one has to look at the writ of summons and the statement of claim to see when the wrong was committed which gave the plaintiff a cause of action and comparing that date with date on which the writ of summons was filed. This in my view, can be done without taking oral evidence from witnesses. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute barred. See Egbe v. Adefarasin & Anor (supra).” Per OKORO, JSC (PP. 36 – 37, PARAS. F – B)
See also; ADEJUMO & ORS v OLAWAIYE (2014) LPELR-22997 (SC); WILLIAMS v WILLIAMS (2008) LPELR-3493 (SC); P. N UDOH TRADING CO LTD v ABERE & ANOR (2001) LPELR-2893 (SC).

The lower Court erred when it relied on the date expressed in the affidavit of the 3rd-5th Respondents in support of their motion on notice for the dismissal of the suit for lack of jurisdiction.

Furthermore, the date of the selection or installation of the Late Major Erebulu (Rtd) was averred in the statement of claim, therefore this necessitated that the matter proceeds to trial where evidence to that respect would have been tendered.

​For the eloquent reasons appraised in the judgment, I agree that the appeal succeeds in part and also hold that the decision of the trial Court that the suit of the Appellant is statute barred be set aside.

​I abide by all other consequential orders in the lead judgment.

Appearances:

C. N. DIKE, ESQ. For Appellant(s)

BETTY OTOBOH, ESQ. for 1st, 2nd and 8th respondents
O. N. IWEMA, ESQ. for 3rd – 5th respondents.
C. O. AGBAGWU, ESQ. for 6th and 7th respondents. For Respondent(s)