OKOJIE v. ORIASOTIE & ANOR
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Wednesday, May 05, 2021
Before Our Lordships:
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Balkisu Bello Aliyu Justice of the Court of Appeal
PRINCE P. O. OKOJIE APPELANT(S)
1. MR. SATURDAY OZIEGBE ORIASOTIE 2. MRS. ISEMIONABHOR ONIHA RESPONDENT(S)
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering The Leading Judgment): This appeal is against the ruling delivered on 17th July, 2013 by Honourable Justice J, Aigbuloko Oyakhirome of the Edo State High Court sitting at Uromi, wherein the Appellant’s claim was dismissed.
The Appellant/Claimant claimed against the Respondents/Defendants jointly and severally as follows.
“1. A declaration of this Honourable Court that the Claimant is the proper person entitled to apply for and be granted statutory rights of occupancy in respect of the piece/parcel of land measuring approximately 134ft by 212ft lying and situate at Umokhomon quarters, Efandion Uromi, an area within the jurisdiction of this Honourable Court.
2. The sum of N900,000.00 (Nine Hundred Thousand Naira) only being general damages for acts of incursion by the defendants unto the said piece/parcel of land without the consent of the plaintiff.
3. A perpetual injunction restraining the defendants, their agents, servants, privies and/or workmen from further acts of trespass into the said parcel of land.”
The 1st Respondents/Defendant on the other hand also counter claimed thus;
“a. A declaration by this honourable Court that the 1st defendant is entitled to the statutory right of occupancy under the Land Use Act to the land measuring approximately 134 feet by 212 feet situate at Umhonkhonmon and part parcel of the 1st defendant land which the claimant is trespassing upon since 2010, which is within the jurisdiction of this honourable Court.
b. N1,000,000 (One Million Naira) damage for trespass.
c. Perpetual injunction restraining the claimant his servants agents and/or privies from further trespass on the said piece/ parcel of land.”
And further filed a motion to dismiss the suit in limine on the ground that the action is statute barred.
The facts in this case is; the Appellant’s claim is for a declaration of his statutory rights of occupancy, injunction and damages over his piece of land measuring 137ft by 212ft situate at Umonkhomon Quarters, Efandion Uromi. The facts gleaned from the statement of claim in the record are that; Appellant said he inherited the land from his late father Pa. Okodudu Okojie on 3rd November, 1990 after performing the final burial rites as the eldest surviving son, in accordance with Esan native law and custom prevailing at Ewoyi Uromi.
The land in dispute is part of a larger parcel of land deforsested by the maternal great grandfather of the Appellant, late Agemonmhen Usen and he later gave the piece of land as a gift intervivos to his eldest daughter late madam Osukhon Ogbidi the wife of Zaiki Ogbidi, the then Onogie of Uromi when he was getting old.
Madam Usukhon Ogbidi was the mother of the Appellant’s father, late Pa. Okodudu Okojie, she farmed extensively on the land before she died in 1930 without any challenge from any person which was later inherited by the Appellant’s late father who erected a mud house on part of the land where he lived with his family and farmed on the other part. In 1946, he became sick and had to relocate to Benin with his family for medical treatment. He stayed in Benin City with his family until 1951.
Before the Appellant’s father left for Benin City in 1946, the grandmother of the 1st Respondents, late Madam Iwa (a relation of Appellant’s father) pleaded with the Appellant’s father to permit her and her son Oriasotie (father of the 1st Respondents) to live in the mud house as tenant at will. This request was readily granted and they lived in the mud house and started farming on the land in dispute as tenants at will.
In 1984, the Appellant erected a building of ten rooms on the land dispute for his father which he let out to tenants from time to time. Upon the demise of the 1st Respondent’s grandmother and later his father, the Appellant’s father instructed the 1st Respondents to vacate the land but he refused. The Appellant’s father then sued him to the Area Customary Court, Ubiaja for declaration of title Appellant was substituted as Plaintiff in the suit, upon death of his father in 1990.
In 1991, the 1st Respondents led some members of Umonkhomon Community Uromi, to plead with the Appellant for an out of Court settlement which the Appellant accepted on the condition that 1st Respondents should stop further acts of trespass on the Appellant’s land in dispute. The 1st Respondents then acknowledged the ownership of the land in dispute and stopped further acts of trespass on Appellant’s land in dispute since 1991 to 2010.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
However, on 29th June, 2010 the Respondents surprisingly chased away one of the Appellant’s tenants called Christopher Imoisili and also chased away the Appellant from the land in dispute when he visited same upon complaints of his said tenant, Mr. Imoisili.
The lower Court in entering judgment relied on the 1st Respondent’s statement of defence and counter claim and the affidavit in support of a motion on notice filed by the 1st Respondent which alleged that the Appellant’s suit was statute barred to wrongly dismiss the suit in limine.
Dissatisfied with the lower Court’s judgment the Appellant filed a Notice of appeal on 29th July, 2013, his brief of argument on 13th September, 2018 but deemed 29th October 2018, alongside deemed 29th October, 2018 both were settled by S. O. Eimiuhi, Esq. of SOLOMON O. EIMIUHI & CO wherein a sole issue was formulated for determination;
Whether the learned trial Judge was right when he relied heavily on 1st Respondent’s statement of defence and counter claim and his affidavit in support of motion, to dismiss Appellant’s suit in limine for allegedly been statute barred?
The 1st Respondents in accordance with the rules of this Court also filed his brief of argument on 7th February, 2019 and it was settled by L. E. Asirawede, Esq of AITUAJE CHAMBERS wherein a sole issue was also formulated for;
Whether or not the trial Judge was right in dismissing the Appellant’s claim as being stale, statute — barred and therefore, unmaintable.
It is the submission of the Appellant that the law is well settled where the issue before a trial Judge is whether a claim is statute barred, the Judge should resolve the issue by examining the applicable limitation period provided in the enabling statute to see the period stipulated therein when the cause of action arose by examining carefully only the writ of summons and the statement of claim and then compare that date with the date the writ of summons was filed. If the time from when the cause of action arose to when the writ of summons was filed is beyond the period allowed in the enabling statute, then the action is statute barred; JFS INVESTMENT LTD. v BRAWAL LINE LTD. & 2 ORS (2011) 17 WRN 1 AT PAGE 43 (LINES 25 – 38); FRED EGBE v HON. JUSTICE J. A. ADEFARASIN (2002) 14 WRN 59; MILITARY ADMINISTRATOR EKITI STATE v ALADEYELU (2007)) 40 WRN 158 AT 183 (LINES 5 – 30).
That the law doesn’t make room for a trial Judge to look at other processes to elicit when a cause of action arose;
AYEDELE & ORS v AJAYI & ORS (2014) 30 WRN 145 AT PAGES 155 – 156 (LINES 35 – 38, 48 – 8).
The Appellant made reference to the paragraphs 22, 23, 24, 25, 26, 27 28, 29, 30, 31 and 32 of the Statement of claim In submitting that it shows that the initial suit at the Area Customary Court Ubiaja came to an end, consequent upon a plea for an out of Court settlement by the 1st Respondents and members of the Umonkhomon community, Efandion Uromi. The 1st Respondent also acknowledged Appellant’s title to the land in dispute from 1991 to 29th June, 2010. That it was when the 1st Respondents drove the Appellant and his tenant out of land in dispute in June/July 2010 that a fresh cause of action arose.
Citing Section 6 (2) of the Limitation of Action Law Cap. 89 Laws of Bendel State (as applicable to Edo state), Counsel submits that from June 2010 when the cause of action arose to 28th November, 2012 when the suit was filed about two years and six months, a date that is clearly within the limitation period of 12 years.
However, the learned trial Judge wrongly relied on the 1st Respondent’s statement of defence and counter claim and his affidavit in support of motion to dismiss the action.
It is the argument of the Appellant that had the lower Court not limited himself to the Appellant’s statement of claim alone as required by law and emphasized in a plethora of authorities by the Court of Appeal and the Supreme Court, he would have had no difficulty in coming to the inevitable conclusion that the cause of action arose in June/July 2010, when the 1st Respondents and his agents drove away the Appellant and his tenant from the land in dispute;AYEDELE & ORS v AJAYI & ORS (2014) 30 WRN AT PAGES 155 – 156 (SUPRA); MILITARY ADMINISTRATOR EKITI STATE v ALADEYELU (2007) 40 WRN 158 AT 183.
NARINDEX TRUST LTD & ANOR v NIGERIAN INTER – CONTINENTAL MERCHANT BANK LTD (2001) 86 LRCN PAGE 1291 AT PAGE 1314 BC was cited in submitting that a counter claim is a cross action, separate and independent claim of a Defendant, tried together with the main action, which the learned trial Judge failed to do.
On whether or not a case is statute barred and when a cause of action arises, the Appellant relied on P. N UDOH TRADING CO. LTD. v ABERE & ANOR (2001) 87 LRCN PAGE 1815 AT PAGE 1833BD; YARE v NSWIC (2013) 219 LRCN (PT. 2) PAGE 53 AT PAGE 63 PJJ; ADEKOYA v F.H.A (2009) 168 LRCN PAGE 205 AT PAGE 214; UBN v UMEODUAGU (2004) 35 WRN PAGE 1 AT PAGES 10 – 11 (LINES 10 – 35); AREMO II v ADEKANYE (2004) 42 WRN 1 AT PAGES 19 – 20, (LINES 45 – 10); BAKARE v N. R. C. (2002) 22 WRN PAGE AT PAGE 68 (LINES 25 – 45); LABODE v OTUBU (2001) 7 NWLR (PT. 712) 256 AT PAGE 276.
1ST RESPONDENTS’S ARGUMENTS
Counsel submits that the lower Court was perfectly in order in dismissing the Appellant’s claim as being stale, statute barred and grossly not maintable, that even with regards to the pleadings of the Claimant, the suit itself was statute – barred and the doctrine of laches and acquiescence applies; Section 6 (2) of the Limitation of Action Law Cap. 89, Laws of Bendel State 1976 (as applicable to Edo State) was referred to.
KOLO v FIRST BANK OF NIGERIA PLC (2002) FWLR PT. 116 P. 992 AT P. 996; EGBE v ADEFARASIN (1987) 1 NWLR PT. 47, PAGE 1; N. P. A v LOTUS PLASTICS (2006) VOL. 134 LRCN PAGE 549 AT 568 was relied on in submitting that to determine the period of limitation, the writ of summons and the statement of claim would be considered in order to decipher when the alleged wrong complained was committed. That the finding of the trial Court that the Appellant’s cause of action accrued on 21st January, 1993 when the claimant’s case was struck out by the Area Customary Court, Ubiaja is correct and unassailable.
It is the contention of the 1st Respondents that a Plaintiff is bound by his pleadings; ESURUOSO v OGIDI (2002) FWLR PART 112, P. 85 AT 92, RATIO 12 was cited in aid and that a case is effectively brought to an end by a final judgment therefore the lower Court was right holding that the facts of settlement leading to the case being struck out of the Area Customary Court, Ubiaja is not supported by records of Court.
However, what is evident is that the case at the Area Customary Court, Ubiaja was abandoned and accordingly struck out on 21st January, 1993, and referencing page 109 of the record submits the lower Court was right in holding that the Appellant/Claimant slept on his right, SOSAN v ADEMUYIWA (1986) 3 NWLR 427, P. 2411 AT P. 23 was cited in aid.
The Appellant in response submits that the Appellant was not duly bound to exhibit any terms of settlement or record of Court for the trial Court to determine when the cause of action arose. That from the pleadings in paragraphs 27, 28, 29 and 32 of the statement of claim, these facts are sufficient in proving that the cause of action in this suit arose on 29th June, 2010.
Furthermore, the Appellant submits that the terms of settlement and record of Court are evidence which will only be necessary at the full blown trial and certainly not at the preliminary hearing objection to the suit, Order 15 Rule 2 of the Edo State High Court (Civil Procedure Rules) 2012; A.I.E v ADEBAYO (2006) 134 LRCN 455 AT PAGE 492 EE & 493 A — P were cited in aid. And in conclusion reiterated his position that the trial Court erred in law when it failed to locus on the writs of summons and statement of claim to determine when the cause of action arose; NIG. STORED PROD. RESEARCH INST. v UGWU (2013) 15 WRN 49 AT PAGE 83 (LINES 10 -35) was relied on.
The parties’ sole issues are quite similar save for semantics. The Appellant’s issue would be adopted for the determination of this appeal being the aggrieved party.
In deciding whether a matter is statute barred it is a trite principle of law that the Court would consider the writ of summons and the statement of claim solely to determine when the cause of action arose and thereafter decide whether the Court has jurisdiction to entertain the matter. See;NIGERIAN BOTTLING COMPANY PLC v CHIEF ATIM MAIBER & ORS (2013) LPELR – 22848 (CA), this Court held on how to determine whether an action is statute barred thus;
“Therefore, to determine whether an action is statute — barred, all that is required is to examine the Writ of Summons and the statement of claim or if the action is commenced by originating summons, the affidavit in support, alleging when the wrong, which gave the plaintiff a cause of action was committed and compare that date with the date on which the writ of summons or originating summons was filed. If the time on the writ is beyond the period allowed by the limitation law, then the action is statute — barred. See the cases of; (1) Egbe Vs Adefarasin (1987) 1 NWLR (Pt. 47) P. 1 at Pgs. 20 — 21; (2) Aremo II vs Adekanye supra and (3) Gbadehan Vs. Kiladejo (2012) 16 NWLR (Pt. 1326) P. 392. It is therefore from the perspective of the plaintiff’s originating process and never from that of the defendant that the accrual of cause of action is ascertained, except the date of the cause of action pleaded by the defendant is admitted in the plaintiff’s reply to the defendant’s pleadings. However, it is equally settled law that, where issue is joined by the parties in their respective pleadings as to the date the cause of action in the suit arose such an issue must be proved by the parties by credible evidence in the course of the hearing of the suit and resolved appropriately by the Court.”
per OMOLEYE, JCA (PP. 13 – 14, PARA D).
This Court further held in MUHAMMAD & ORS v GANI (2019) LPELR – 47190 (CA);
“‘Where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted at the expiration of the prescribed period. The yardstick to determine whether an action is statute barred are: (a) The date when the cause of action accrued; (b) The date of commencement of the suit as indicated in the Writ of Summons; (c) Period of time prescribed in bringing an action to be ascertained from the statute in question.” (Underlining Mine)
per HASSAN, JCA (P. 26, PARAS. A – C).
See also; GOMNA v MORRIS (NIG.) LTD. (2019) (CA); AJOKU v OHIRI & ORS (2018) LPELR – 46251 (CA); IKONNE & ORS v NWACHUKWU & ORS (2017) LPELR – 42449 (CA); UNICAL & ORS v BASSEY (2015) LPELR – 40311 (CA).
In this instant case, the writ of summons is dated 28th November, 2012 and the Appellant/Claimant in his statement of claim pleaded as follows;
“3. The claimant avers that he is the owner of a piece/parcel of land measuring approximately 134ft by 212ft lying and situate at Umonkhomon Quarters. Efandion – Uromi.
13. The Claimant avers that on the death of his maternal grandmother, Madam Osukhon Ogbidi, the plaintiff’s father, Pa. Okodudu Okojie inherited the land and continued with the farming activities of his own mother. Madam Osukhon Ogibidi by planting more kolanut, mango, pear, banana, ducanut, rubber trees and plantain.
14. The Claimant avers that while his father was farming on a part of the land, he erected a mud house on the other part where he lived with members of his family until 1946 when he became sick and was taken to Benin- city for medical treatment.
15. The Claimant avers that before his father left for Benin City in 1946, the 1st defendant’s grandmother, late Madam Iwa who related to plaintiff’s father, approached the plaintiff’s father to allow her and her son, Oriasotie, the 1st defendant’s father live in the said mud house, a request which was promptly granted by the plaintiff’s father.
21. The Claimant avers that during the period of litigation between the deceased father and late Pa. Okokhue Ohamen, the 1st defendant’s grandmother and father were living in the mud house on the land in dispute which said mud house later dilapidated thereby necessitating the 1st defendant’s grandmother and father to erect a small hut on part of the land.
22. The Claimant avers that in the year 1984, he erected a building of ten rooms on the disputed land for his father whereupon he leaded out the said building to tenants who occupied same from time to time.
23. The Claimant avers that upon the death of the 1st defendant’s grandfather and later the 1st defendant’s father, the plaintiff’s father instructed the 1st defendant to vacate the land to enable him develop same property for personal use.
24. The Claimant avers that 1st defendant refused to vacate the land in dispute maintaining that he is owner of same.
25. The claimant avers that his deceased father sued the 1st defendant to the Area Customary Court Ubiaja for declaration of title.
26. The Claimant avers that during the pendency of the said suit, his father, Pa. Okodudu Okojie died in the year 1990 and he was subsequently substituted by his deceased father as the plaintiff in the said suit.
27. The Claimant avers that before the commencement of hearing in the said suit, the 1st defendant in company of some members of the Umonkhomon Community of Efandion Uromi appealed to him for an out of Court settlement which he accepted on the condition that the 1st defendant should desist from further acts of trespass.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
28. The Claimant avers that since 1991, the 1st defendant has always acknowledged his title as the owner of the said parcel of land until 29th day of June, 2010 when the 1st defendant chased away one of his tenants maintaining that the land now in dispute belongs to him.
29. The Claimant avers that based on the tenant’s complaint, he visited the land in dispute to find out from the 1st defendant in conjunction with the agents, chased the plaintiff out of the disputed land with axe and cutlasses.
31. The Claimant avers that the 1st defendant gave part of the disputed land to the 2nd defendant who erected a building thereon.
32. The Claimant avers that since July, 2010, the defendants have been laying ownership claim to the land in dispute. (Underlining Mine)
See paragraphs 3, 13 -16, 21- 29, 31 & 32 of the Statement of Claim at pages 3 — 5 of the record.
In accordance to the principle of law, the first thing to ascertain is when the cause of action arose; a cause of action was defined in ZUBAIR v KOLAWOLE (2019) LPELR – 46928 (SC) thus
“A cause of action has been defined as consisting of “every fact which it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to judgment.” “See: Adimora Vs Ajufo (1988) 3 NELR (Pt. 80) 1. It has also been defined as “the fact or facts which establish or give rise to a right of action. It is the factual situation which give a person a right judicial relief.” Egbe vs Adefarasin (1987) 1 NWLR (Pt. 47) 1 a 20; Adekoya vs. F.H.A (2008) 11 NWLR (Pt. 1099) 539; Oshoboja vs Amuda (1992) 6 NWLR (PT. 250) 690.”
per KEKERE – EKUN, JSC (P. 19, PARAS. D – F).
This Court also define a cause of action in GOMNA v MORRIS (NIG) LTD (2019) (CA) thus;
“The term cause of action has been defined “The facts or combination of facts which give rise to a right to sue.” The phrase is of importance chiefly with reference to the Limitations Act, and the jurisdiction of certain Courts. Thus, time begins to run when the cause of action arises (unless postponed by reason of fraud, mistake, acknowledgment etc) … See JULIUS BERGER (NIG.) PLC v OMOGUI (2001) LPELR 1638 (SC). In EGBE V. ADEFARASIN (1987) 1 NWLR (PART 47) 1 at page 20 paragraphs D — E, Oputa JSC said: “Now let us examine the meaning of cause of action. It is admittedly an expression that defies precise definition. But, it can safely be defined as the fact or facts, which establish or give rise to a right of action. It is the factual situation which gives rise to a right of action. It is the factual situation which gives a person a right to judicial relief. “(Underlining Mine).
See also A. G ADAMAWA STATE & ORS v A. G. FEDERATION (2014) LPELR 23221 (SC); ONOITA v TEXACO (NIG) PLC (2016) LPELR 41483 (CA).”
per ABOKI, JCA (PP. 28 – 29, PARAS. B – A)
See also; ADU & ORS v LAGOS STATE TASK FORCE ON ENVIRONMENT AND SPECIAL OFFENCES UNIT & ORS (2016) LPELR – 40060 (CA); FABUNMI v UI & ANOR (2016) LPELR – 41132 (CA); SOCIETY BIC S.A & ORS v CHARZIN INDUSTRIES LTD (2014) LPELR – 22256 (SC); UNIJOS v IKEGWUOHA (2013) LPELR – 20233 (SC); AKIBU v AZEEZ (2003) 5 NWLR (PT. 814) 643 & MOSOJO v OYETAYO (2003) 13 NWLR (PT. 837) 340.
From the above reproduced paragraphs of the Statement of oath, especially the underlined paragraphs 28 – 29 the Appellant/Claimant stated that the cause of action arose in July, 2010 when the Respondents threw one of his tenants and subsequently him from the land in dispute, this is when the Respondents began to challenge his ownership of the land.
However, the Appellant/Claimant also averred in his statement of claim that his father after the death of the 1st Respondent/Defendant’s father asked the 1st Respondent/Defendant to leave the property and even took him to the Area Customary Court, Ubiaja for declaration of title but during pendency of the said suit, Pa Okodudu Okojie died in the year 1990 and the Appellant/Claimant was subsequently substituted by his deceased father as the plaintiff in the said suit. The Appellant/Claimant further stated that before the commencement of hearing in the said suit, the 1st Respondents/Defendant in company of some members of the Umonkhomon Community of Efandion Uromi appealed to him for an out of Court settlement which he accepted on the condition that the 1st Respondents/Defendant should desist from further acts of trespass and that since 1991, the 1st Respondent/Defendant had always acknowledged his title as the owner of the said parcel of land until 29th day of June 2010 when the 1st Respondent/Defendant chased away one of his tenants maintaining that the land now in dispute belongs to him.
This from the Appellant’s pleadings is when the cause of action accrued.
The Issue of limitation was raised by the 1st Respondent/Defendant in paragraph 29 of his statement of defence/counter claim; and he further filed a motion on notice for an order of the Court to set down for hearing and determination on the points of law so raised in the 1st Defendant/Applicant’s statement of defence and statement of oath and an order dismissing the suit on the ground that the suit is statute barred and attached a certified true copy of the judgment of the Area Court in suit no: UBACC/4/88, between; OKODUDU OKOJIE v SATURDAY OZIEGBE ASOTIE where the suit was struck out with cost for lack of prosecution. This is the same suit referred to in the Appellant/Claimant’s statement on oath.
The Appellant/Claimant in his counter affidavit stated thus;
“4. That although there was dispute between the claimant and 1st defendant over ownership of the land in dispute, the 1st defendant approached the claimant for settlement hence the suit at Ubiaja Magistrate Court, was struck out.
That since the said suit was struck out, the 1st defendant has always acknowledged the ownership rights of the claimant in respect of the land in dispute until the 29th day of June, 2010 when the 1st defendant challenged the claimant’s title which resulted in this suit.”
The Appellant pleaded that the elders of the community lead a delegation to settle the matter out of Court. From the attached Court proceedings, the Appellant had testified before series of adjournment, at page 60 of the record which meant hearing had commenced.
The Court was informed on 14th September, 1992 of settlement moves by parties and on 21st of January, 1993 the case was struck off for absence of Appellant and counsel based on non-diligent prosecution of case. This tallies with the averment that there was amicable settlement by elders.
Therefore, based on the statement of claim, the cause of action arose in 2010 when there was a challenge but the Respondents, contend that it was always a challenge and cited the Customary Court striking out of the action in respect of the land, what was therefore important for the lower Court at this stage to deal with is the statement of claim only, a Court is bound by this should there be doubts as to whether the striking out of the case it meant the cause arose then in 1993 or after?
For a Court to deal with this issue, clearly it calls for more evidence on the record which cannot be found in the counter affidavit or affidavit of the parties. The law states that the guide is in the statement of claim and to be clear on this, I am of the firm opinion that in the light of irreconcilable conflicts it must be resolved by evidence and not by speculations and arithmetic reasoning.
It is not in every case that a straight forward answer is found in determining a cause of action it may be resolved at the end of the trial when the picture is clearer, therefore, with the circumstances of this case, a Court cannot deal with it immediately and but wait for the hearing/trial to commence before resolving the issue of limitation, finally.
Furthermore, the key word in ascertaining when a cause of action accrues is every fact or combination of acts which gives rise to the right of action; every fact that need to be proved by the plaintiff if traversed in order to support his right to judgment, see ZUBAIR v KOLAWOLE (SUPRA).
The lower Court was therefore hasty in reaching its conclusion when it went beyond the statement of claim to determine when the cause of action arose.
Section 6 (2) of the Limitation Law of Bendel State, 1979 as applicable to Edo State provides;
“No action shall be brought by any other person to recover land after the expiration of 12 years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims to that person”
It simply implies that no action shall be brought for recovery of any land after the expiration of 12 years from the date on which the right of action accrued.
The issue is when did the fact and the cause of action arose? From the peculiar facts of this case, it cannot be answered until fuller facts emerge such as facts that acts of acknowledgment of the Appellant’s ownership even after the striking out of the case which is exposed by the reasoning of the lower Court where it held thus;
“It was like claimant on 28/12/12 suddenly remembered the case he abandoned and was struck out on 21/1/93 and came to Court to institute fresh proceedings.
In my view, the cause of action accrued after claimant’s case was struck out on 21/1/93 at the Area Customary Court Ubiaja.
It is the law that the period of limitation in any limitation statute is determined by looking at the writ of summons and when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed.
In the instant case the period between 21/1/93 and 28/11/12 when writ was filed is about 19 years. It is clearly beyond the 12 year period allowed by the limitation law.”
See page 109 of the record.
The lower Court went beyond its scope of the statement of claim by relying on the absence of a term of Court settlement which was brokered by elders of the community with conditions and inferring that “Appellant did not relist the suit and that Respondents continued to be in possession adversely”
I agree with the contention of the Appellant’s counsel that the reasoning of the Court which ignored the averments of the Appellant in the statement of claim and relied heavily on the counter affidavit, was against the interest of justice and fair play, and it should have been set down the matter for trial.
I resolve the issue in favour of the Appellant.
The appeal is meritorious and is allowed.
The ruling of the Edo State High Court sitting at Uromi per Honourable Justice J. Aigbuloko Oyakhirome delivered on 17th July, 2013 is hereby set aside.
Cost of N200,000 is awarded in favour of the Appellant.
JOSEPH EYO EKANEM, J.C.A.: I read in advance, the lead judgment of my learned brother, Obaseki-Adejumo, JCA, which has just been delivered. I agree with the reasoning and conclusion therein that the appeal is meritorious and I also allow the same.
The case shall be sent back for hearing before another Judge of the Edo State High Court.
BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother A. O. OBASEKI – ADEJUMO, JCA. I agree with his reasoning and conclusion and I adopt same as mine. I too allow this appeal. I abide by the order of cost made therein.