PRINCE K. ADEYEMI OSUMA V. JOINERY CRAFTS AND MOULDING NIGERIA LIMITED (2013)

PRINCE K. ADEYEMI OSUMA V. JOINERY CRAFTS AND MOULDING NIGERIA LIMITED

(2013)LCN/6398(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of July, 2013

CA/B/56/2008

JUSTICES

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria

CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria

Between

PRINCE K. ADEYEMI OSUMA (Suing for himself and on behalf of the children of Chief Adeyemi Osuma (deceased) Appellant(s)

AND

JOINERY CRAFTS AND MOULDING NIG. LTD. Respondent(s)

RATIO

WHETHER OR NOT A LIMITATION LAW REMOVES THE RIGHT OF ACTION OR RIGHT TO JUDICIAL RELIEF

It is a basic principle of law that a limitation law removes the right of action or right to judicial relief and leaves the plaintiff with a bare and empty cause of action which he cannot enforce if such cause of action is statute barred. Accordingly, where the law provides for the bringing of an action within a prescribed period in respect of a cause of action accruing to the plaintiff, proceedings shall not be brought after the time prescribed by such a statute See OBIEFUNA V. OKOYE (1962) All NLR 375 and EGBE ADEFARASIN (Supra). In WILLIAMS v. WILLIAMS (Supra) it was held that the period of limitation is only determinable by looking at the writ of summons and statement of claim alone to ascertain the alleged date of the wrong in question which gave rise to the Plaintiff’s cause of action and by comparing that date on which the writ was filed.If the time pleaded in the Statement of Claim is beyond the period allowed by the limitation law, the action is statute-barred. PER GUMEL, J.C.A.

THE POSITION OF LAW ON WHEN TIME BEGINS TO RUN IN LAND CASES

ALI ABUBAKAR B. GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Owo Division of the High Court of Ondo State delivered on 18th October, 2007 in Suit No. HOW/33/2005, pursuant to a notice of preliminary objection against the competence of the Appellant’s suit against the Respondent and the jurisdiction of the Court to entertain it as constituted.
By paragraph 51 of his amended statement of claim, the Appellant as the Plaintiff sought for the following reliefs against the Respondent, as the 4th Defendant, along with 5 other Defendants, including some unknown persons. They are:
(i) A declaration that the Plaintiff is still the person that is entitled to the statutory Right of Occupancy to the piece and/or parcel of land situate, lying and being at Agunka, Owo which is bounded on the eastward by Agunka stream, on the southern side by the old Owo/Akure (Trunk ‘A’ Road), on the westward side by the Abolodi family land on the Northwest side by (a) the Ayan family land (b) Atorungbuwa family land on the Northern end by the land called Gbogbo Osuporu in pursuance of the judgment of me Customary Court, Owo Grade 1 in Suit No. 202/78 which said judgment was delivered on the 2nd day of March, 1979 and which was also upheld in Appeal No. AK/86A/79 decided by the High Court of Justice, Akure, Ondo State on the 5th day of June, 1980.
(ii) A sum of N10 million Naira only being special and general damages for trespass committed and still being committed by the defendants since 1995 till date by their illegal occupation and exploitation of the said land without the consent of the plaintiff and also for the value of all the economic crops illegality destroyed on the said land,
(iii) An injunction restraining the defendants, their agents, privies, assigns and whosoever is taking by or through them from any further acts of trespass, using or continue to use, occupy and/or exploit the said land henceforth.
The Respondent (4th Defendant) in a statement, of defence dated 27th July, 2007, but filed on 30/7/07 denied all the material averments in the amended statement of claim and by its paragraph 22 thereof, the Respondent urged on the lower Court to dismiss the claim for being speculative, irrational, a gold digging exercise and statute barred. In a reply to the statement of defence of the 4th Defendant, the Appellant filed a reply dated 26/9/2007 to further join issues on the claim. This reply was filed on 28/9/2007. By its paragraph 20, the statement of defence of the Respondent/4th Defendant states thus:-
20 “The 4th Defendant shall raise by way of preliminary objection that this Honourable Court lacks jurisdiction to entertain this action as same is already statute barred.”
Sequel to this paragraph of its statement of Defence, the Respondent filed a notice of preliminary objection dated 30th July, 2007. It was brought pursuant to sections 4(4) and 6(2) of the Limitation Law, CAP 61, Laws of Ondo State, 1978. It is predicated on the following grounds. They are:-
“1. That the 4th Defendant having purchased the land in 1987 from the 5th Defendant. The 4th Defendant built thereon between 1987-89 which is a period of about 15 years before the Plaintiff instituted this matter in December, 2005.
2. The Plaintiff admitted in paragraph 16 of the Amended Statement of Claim that the 4th Defendant had been on the land since 1989.
3. That it is more than 12 years since the judgment was delivered without it been executed.”
Oral submissions of counsel were taken on the notice of preliminary objection. In its ruling the Lower Court decided that the Plaintiff/Appellant cannot maintain Suit No. HOW/33/200S against the 4th Defendant/Respondent for same being statute-barred and out of the statutorily prescribed period of 12 years. And upon this, it proceeded to dismiss the action against the 4th Defendant/Respondent only, with N2000 costs against the Plaintiff/Appellant.
The Appellant was dissatisfied with this decision and appealed to this Court in a notice of appeal dated 31/10/2007 but filed on 1st November, 2007.It is predicated on 7 grounds of appeal with very copious particulars. The grounds of appeal and their particulars are hereby reproduced. They are:-
“(1) The learned trial judge erred in law in holding that he has no jurisdiction on the grounds that the case of the plaintiff is statute barred.
PARTICULARS
(a) The plaintiff never averred that 4th defendant was the company visited by Late Pa Osuma in the year 1989 as erroneously held by the learned trial judge in his ruling.
(b) The learned trial judge ignored completely the averments contained in the reply to the statement of defence of the Plaintiff/Appellant filed to the statement of defence of the 4th defendant/respondent before arriving at his decision.

GROUND 2
The learned trial judge erred in law by holding that:
“I therefore have no hesitation in holding that the period of 16 years between the time the cause of action accrued between the 4th defendant and the plaintiff and the time when the writ of summons in this case was filed is clearly outside the period allowed by the limitation law.”
PARTICULARS
(a) The learned trial judge erroneously equates the Forestville Industries Ltd. With the 4th defendant when in actual fact they are two different entities in law,
(b) The 4th defendant came into existence in the year 1996, there is no way they could have been on the land in the year 1989.
GROUND 3
The learned trial judge erred in law by not taking into consideration the averments of the plaintiff as contained in the amended writ of summons and the amended statement of claim that the defendants trespassed on the land in the year 1995.
PARTICULARS
(a) The plaintiff averred that the defendants trespassed to the land in dispute in the year 1995 and not 1989 as held by the trial judge.
(b) The trial court misread the averments contained in paragraphs 16 and 17 of the amended statement of claim and concluded that the 4th defendant came on the land in the year 1989.
GROUND 4
The learned trial judge erred in law in holding that;
“Suffice it to say therefore that in considering this preliminary objection, this court restrict itself only to the amended writ of summons and amended statement of claim filed by the plaintiff in this case.
PARTICULARS
(a) The peculiar circumstances of this case permits the court to look at other processes, more importantly where the 4th defendant did not file an affidavit in support of his preliminary objection so as to allow the plaintiff file a Counter/Affidavit so as to supply other facts.
(b) It was the 4th defendant who brought an application to join the 5th defendant to the plaintiff case on the ground that the 4th defendant derived title through the 5th defendant.
(c) The uncertain in the actual year the 4th defendant got to the land ought to impress it on the learned trial judge to listen to evidence and to consider the statement of defense of the 4th defendant and the affidavit in support of motion filed to bring in the 5th defendant to join the suit,
(d) The 4th defendant in the motion with which he used to join the 5th defendant to the case stated that the 4th defendant got the first aspect of the 5 Hectares of land in the year 1989 and other 1.882 hectares in the year 1995, which the 5th defendant vehemently denied.
GROUND 5
The learned trial judge misdirected himself when he held that
“It is therefore safe to infer that contrary to what the averment in paragraph 17 would want to portray, the company, Forestville Industries Limited, never left the land but became joinery crafts and moulding Nigeria Limited, the 4th defendant”.
PARTICULARS
1. The learned trial judge without taking evidence from the parties resolved a matter that ought to be resolved by calling on the parties to testify before him.
2. The learned trial judge ignored the fact that the 4th defendant is a different legal entity from Forestville Industries Nig. Ltd.
GROUND 6
The learned trial judge misdirected himself when he held that:
It follows therefore that the year 1995 cannot be taken as the dated when the cause of action of the plaintiff accrued especially between the plaintiff and the 4th defendant
PARTICULARS
(a) The learned trial judge completely ignored the averments in reliefs (ii) of the amended writ of summons which states the defendants committed the trespass in the year 1995 together with the averment in paragraph 39 of the amended statement of claim.
(b) The learned trial judge ignored the facts that the 4th defendant got title to the 1,882 hectare of land from the 5th defendant in the year 1995 and obtained the 2nd Certificate Of Occupancy in the year 1996,
GROUND 7
The learned trial judge erred in law when he dismissed the plaintiff’s case against the 4th defendant who claimed to have derived title through the 5th defendant without giving the 5th defendant an opportunity to present his own case.
PARTICULARS
(a) The 4th defendant brought an application to the court to join the 5th defendant on the premise that he derived title through the 5th defendant
(b) The 4th defendant averred that the 5th Defendant granted 5 hectares to the Forestville Industries Ltd. In the year 1987, which he built on the year 1987 – 1989 and additional 1.882 hectares in the year 1995.
(c) The 4th defendant is no more a party to the suit while the 5th defendant remains a party.
(d) The 5th defendant denied ever granting additional land to the 4th defendant in the year 1995, therefore it is a matter that could only be resolved by evidence from the parties.”
To argue the appeal, respective learned counsel filed briefs of argument. For the Appellant, learned counsel Mr. Rotji Emmanuel filed an amended brief. It is dated and filed on 16/7/12 but deemed properly amended by order of this Court made on 7th May, 2013. The Respondent’s brief was settled by Mr. Owoyemi, of Counsel. It is dated 13/8/12 but filed on 14/8/12. Against the Respondent’s brief of argument, Mr. Emmanuel, of Counsel filed a reply brief on behalf of the Appellant. It was filed on 28/9/12.
In the Appellant’s brief of argument, learned counsel Mr. Emmanuel formulated and argued a single issue for the determination of this appeal. The issue was formulated out of grounds 1, 2, 3, 5, 6 and 7. No issue was therefore formulated out of ground 4 of the grounds of appeal. It is deemed as abandoned and is hereby struck out. The only issue formulated on behalf of the Appellant is:-
“Whether from the totality of the Plaintiff’s claim at the lower Court as contained in his writ of summons and the statement of claim, the learned trial judge was right in holding that the suit of the Plaintiff was statute-barred.”
Learned counsel Mr. Owoyemi adopted the single issue formulated for the determination of this appeal by Mr. Emmanuel, of counsel.
At the hearing of the appeal learned Counsel to the Respondent drew the attention of the Court to a notice of preliminary objection he raised and argued at pages 3 to 5 of his brief of argument. He adopted and relied on all the arguments and submissions made therein and urged on the Court to uphold the preliminary objection and strike out the Appellant’s brief of argument for being incompetent and go further to dismiss this appeal for want of prosecution. Learned Counsel to the Appellant referred to paragraph 2.00 to 2.06 of the reply brief and adopted and relied on same in urging the Court to discountenance the preliminary objection and proceed to determine this appeal on the merit.
The notice of preliminary objection is predicated on the main ground that the Appellant’s brief of argument deliberately omitted to set out all the parties contained on the face of the notice of appeal.
In arguing the preliminary objection, learned counsel Mr. Owoyemi for the Respondent drew the attention of the Court to the notice of appeal dated 31/10/2007. He referred to it as the foundation of this appeal and pointed out that there are 6 Respondents on it. He listed them out as they appear on the face of the notice of appeal. While also referring to the Appellant’s extant brief of argument, Mr. Owoyemi observed that there is only one Respondent on it. Against this background, he suggested that the other 5 Respondents ought not to have been excluded by the Appellant without the leave of Court.
According to learned counsel the failure to set out all the parties as it ought to be is not proper in the circumstance. He added that this failure to fully allow the participation of the other respondents in the hearing of this appeal will amount to the violation of their fundamental right to fair hearing. He referred to the decisions in DINGYADI V. INEC ALL FWLR (Pt.550) 1204 at 1249 and BELLO V. INEC (2010) All FWLR (Pt.526) 397 as well as SHINNING STAR & ANOR V. AKS STEEL & ORS. (2011) 3 SCM 196 at 219 in support of the principle that on the issue of parties, it is not the choice of any party to change the parties on a notice of appeal by way of alteration, substitution or otherwise without the leave of Court. Learned counsel submitted that this failure or omission is more than a simple procedural irregularity, it rendered the brief of argument incompetent. He urged on the Court to strike it out and dismiss this appeal for want of prosecution pursuant to 0.18 r.10 of the Court, of Appeal Rules, 2011.
In his reply, learned Counsel Mr. Emmanuel for the Appellant began by a remark that the notice of preliminary objection is no more than a total misconception of the facts and circumstances in this appeal. In order to do what I consider as setting the records straight, learned counsel pointed out that the appellant did not just exclude the names of the other parties as it is being erroneously believed by learned Counsel Mr. Owoyemi. According to learned counsel the decision in SHINNING STAR & ANOR V. AKS STEEL & ORS (Supra) is not applicable to the facts in this appeal. He quoted from the judgment of the Supreme Court in that case where it was held that with respect of notice of appeal and briefs of argument the parties in both processes should be the same and none should be excluded unless it has been formerly withdrawn.
Against the backdrop of this, Mr. Emmanuel of counsel pointed out that on 13th July, 2011, the Appellant in open Court sought leave of this Court to discontinue this appeal against all but the 4th Respondent (now the sole Respondent). He pointed out that this oral application was not opposed and it was accordingly granted. Mr. Emmanuel of Counsel emphatically went on to say that it is erroneous and misleading for the Respondent to suggest that the Appellant omitted or excluded the names of the other Respondents on his own. While referring to S.15 of the Court of Appeal Act, learned Counsel argued that this Court has the power to grant leave to the Appellant to discontinue an appeal against all or some of the parties thereto. He added that because the suit before the lower Court was only dismissed against the 4th Respondent, the remaining parties are not affected by this appeal. He added further that the matter went to full trial against the other parties and the Appellant got judgment against them. In conclusion, he submitted that the exclusion of names of the other Respondents was neither a slip nor an irregularity, rather it was done pursuant to an order of Court upon the application of the Appellant. He urged this Court to so hold and dismiss the notice of preliminary objection for being unmeritorious.
I have carefully considered all the foregoing arguments and submissions of respective learned counsel and I wish to quickly point out that a simple observation of the brief of the Respondent shows that it ex facie has a single Respondent on it. It also has endorsed on it at page 13 a single address for service and it is the address of the Appellant through his counsel. It can also be seen that on the face of the Appellant’s amended brief of argument filed on 16/7/12, there is only one address for service and it is the address of learned counsel Mr. Micheal Owoyemi.
Against the explanation of learned counsel to the Appellant that he was granted leave to withdraw the appeal against some of the Respondents on 13/7/2011, it could not have been otherwise on a brief of argument that was filed more than a year later. If there was anybody to complain about being omitted from the processes in this appeal, it cannot be the current Respondent on record. There are many reasons for this remark. I will point out some of these reasons in due course.
During the proceedings of this Court of 13/7/11; His Lordship, Agbo, JCA presided. The Appellant was represented on record by Mr. Rotji Emmanuel leading one Mr. Johnbull. Mr. C. Obiaghanwa represented the 4th Respondent (the current sole Respondent). In, the course of the proceedings Mr. Emmanuel, of counsel was recorded to have applied to the Court for leave to withdraw the appeal against all but the 4th Respondent as the only party to be affected by it. He also applied for the names of the other parties to be struck out. Learned counsel Mr. Obiaghanwa was recorded to have had no objection to this oral application and it was granted. This is at page 51 of the Record Book of Agbo, JCA (presiding Justice, Akure Division). This record is binding on all the parties herein. Mr. Owoyemi should know better. The facts and circumstances in the Supreme Court case of SHINNING STAR (Supra) are therefore clearly distinguishable and totally inapplicable to the facts and circumstances, in the instant appeal.
Added to the foregoing, learned Counsel Mr. Owoyemi has not shown to this Court that he has any express or ostensible authority to complain on behalf of any of those parties who he claimed were deliberately omitted as parties to this appeal. To that extent he is crying more than the bereaved. Need I say he is being a busy body and a meddlesome interloper. This preliminary objection totally lacks substance or foundation and it ought to be accordingly dismissed. Preliminary objection is hereby dismissed.
In arguing the appeal, learned counsel to the Appellant referred to the lone issue he formulated and said by way of a preliminary remark that the learned trial judge was wrong to have held that the Appellants suit against the Respondent was statute-barred. He added that the state of the Appellant’s claim would not allow such a decision to have been so made.
While referring to the case of NPA PLC. V. LOTUS PLASTICS LTD. (2006) NSLR (Pt.8) 46 at 61C, learned Counsel pointed out that in determining whether a case is statute barred or not, it is the writ of summons and the statement of claim alone that the Court must look at and consider. The purpose of this determination, according to learned counsel, is to see whether there is a cause of action and when it arose. Learned counsel further referred to the case of EGBE v. ADEFARASIN (No.2) (1987) 1 NWLR (Pt. 47) 1 and 2 other cases on what amounts to a cause of action. According to learned counsel the Courts have consistently settled it that a cause of action means the factual situation which gives a person a right to judicial relief.
Learned Counsel went further to outline what a Court should do when called upon to determine whether there is any cause of action and when it could be said to have accrued in any particular civil matter. According to learned counsel the proper course to follow by a Court in the circumstance is to carefully study and consider the writ of summons and statement of claim only. Against this background, Mr. Emmanuel suggested that, with respect to the facts in this appeal, there is no dispute that there is a cause of action but the issue that remained to be determined is the crucial question of when did it arise or accrue to the claimant. Learned Counsel suggested further that the most relevant facts to be considered for the determination of when the cause of action arose are contained in paragraphs 16 and 17 of the amended statement of claim. He also pointed out that the learned trial judge additionally considered paragraphs 31(C) and 48 of the amended Statement of Claim in the determination of this crucial question. He thereafter reproduced all these paragraphs in full and did what he believed is the proper evaluation and effect of the facts contained therein. Against this analysis and evaluation, learned counsel submitted that the learned trial judge was wrong in holding that the cause of action giving rise to this action, as it affects the Appellant and the 4th Defendant/Respondent, arose in 1989 and urged on this Court to so hold.
Further to this, Mr. Emmanuel, of Counsel referred to and reproduced a finding of the Lower Court at page 51 of the record of appeal on the relationship between Forestville Industries Ltd and the Respondent Company. He typified this finding as premature and speculative. He also added that same is perverse because it was not based on any evidence before the Court. He urged on the Court to set aside this unwarranted finding.
In a further effort, learned Counsel maintained that the averments in paragraphs 16 and 17 are clear and unequivocal as to who was on the land in dispute in 1989. He further referred to and reproduced more of the findings of the Lower Court at pages 50 and 51 of the record and submitted that they were speculative and not based on any evidence on record. Learned counsel took the liberty to challenge these findings based on the legal principle that a court must not substitute its own views for issues in contention not based on evidence and must not also engage in speculations. He referred to the cases of IVIENAGBOR V. BAZUAYE (1999) 9 NWLR (Pt. 620) 552 at 561 E-F and KATTO V. CBN (1991) 9 NWLR 216 at 145 – 146 G-A for illustration and support.
All said and done, learned counsel came to the conclusion that with respect to the facts and circumstances in this appeal, there is no indication of the date when the cause of action arose against the 4th Defendant/Respondent. Sequel to this, learned counsel argued that the proper step to take in the circumstance was for the learned trial judge to order the matter to proceed to trial. He relied and quoted from the judgment of this court in KASANDUBU & ANOR. v. ULTIMATE PETROLEUM LTD (2008) All FWLR (Pt. 417) 155 at 180 D-F per Ogunwumiju, JCA as well as ANSA V. ETIM (2010) All FWLR (Pt. 541) 1555 at 1567 A-D in urging the Court to hold that the learned trial judge erred in determining in limine the time when the cause of action in this case arose without first taking evidence on the pleadings and by going into the merits of the case. He urged the Court to also resolve this issue against the Respondent and in favour of the Appellant.
In his reaction, learned Counsel Mr. Owoyemi began with a submission that whenever a statute-prescribes a period for doing an act, failure to follow the specific procedure laid down by the statute rendered such action null and void. He also referred to the case of CHUKWU V. AMADI (2009) All FWLR (Pt. 472) 1189 at 1203 where the court held that the period of limitation starts to run from the very date the cause of action accrued. He also followed the approach of learned counsel to the Appellant when he too referred to the cases of NPA V LOTUS PLASTICS LTD. (Supra) and EGBE V. ADEFARASIN (No. 2) (Supra).
In his suggestion of what should be the correct approach, learned Counsel referred to WILLIAMS V. WILLIAMS (2008) All FWLR (Pt.433) 1245 at 1257 where the Court held that in determining the period of limitation in a particular case a Court must do so 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 and by comparing that date with the date on which the claim was filed. According to this decision, this can be done without taking oral evidence. And if the time on the writ is beyond the period allowed by the limitation, then the action is statute-barred.
In another similar trend and approach, learned Counsel also referred to and reproduced paragraphs 16, 17, 31(c) and 48 of the amended statement of claim and suggested that a community reading of these would show that the cause of action arose in 1989 when the predecessor in title of the Appellant discovered the predecessor of the 4th Defendant/Respondent on the land in dispute and yet stood by and waited until after 12 years before he woke up from his legal recess. Against this suggestion, learned counsel reproduced and analysed the provisions of Sections 4(4) and 6(2) of the Limitation Law of Ondo State (Supra) and submitted that the position of the law is certain as to what happens when an action is statute-barred. He further referred to WILLIAMS V. WILLIAMS (Supra).
With respect to paragraph 48 of the amended statement of claim, learned counsel argued that it is beyond per adventure that this paragraph puts it beyond speculation that it states that Forestville Industries Ltd is the predecessor of the 4th Defendant/Respondent. He also added that there were enough facts of evidential value to establish that the cause of action arose in 1989 as the judgment of the Ondo State High Court of 5/6/1980 purportedly vesting title on Pa Adeyemi Osuma was subsisting. According to learned Counsel all the arguments and submissions of learned counsel Mr. Emmanuel that the Lower Court relied on speculation and not evidence were baseless, an afterthought and lacking in substance, He urged on the Court to so hold. In conclusion, Mr. Owoyemi pointed out that the case of KASANDUBU V. ULTIMATE PETROLEUM LTD (Supra) was quoted out of con and its facts are distinguishable and totally inapplicable in the instant appeal. He urged on the Court to so hold and resolve this issue against the Appellant.
I have carefully considered all the foregoing arguments and submissions of respective learned counsel together with some of the decided cases, statutory provisions and relevant and material processes of Court. For a start let me reproduce what both learned counsel and the trial Court saw and found as the most crucial and cardinal parts of the pleadings that must be considered in the determination of when the cause of action arose in this appeal. They are paragraphs 16, 17, 31(c) and 48 of the amended statement of claim. i.e.-
“(16) – Plaintiff avert, that also a wood processing company came unto the land and occupied a portion of it sometimes in 1989, As at then Chief Osuma was alive but was old and well stricken in age. Pa Osuma on his own personally visited the company to protest its presence thereat and also wrote to the said company a letter in 1989 asking that it should quit the land which is his as the company sought no permission from him before occupying the land.”
(17)1 “The company did not reply the letter of Pa Osuma (deceased) but left the place after a while. However, the 4th defendant is now in occupation albeit illegally. Plaintiff addressed a letter to 4th Defendant on 29 September 2003 through this then counsel, Olagoke O. Fakunle Esq. now SAN and dispatched same vide courier which it received, Plaintiff shall rely on the said letter/courier document i.e. Fed Ex used for dispatch.”
(31)(c) “The 4th defendant by reason of occupation of the land realizes a sum of N100 Million averagely per annum from the occupation. It sells wood planks thereon locally and exports wood there from also”
(48)- “The 4th defendant also trespassed into the plaintiff land and when challenged it claimed title through the 5th defendant who had been a former director of Forestville Industries Limited, the predecessor in business of the 4th defendant. “See pages 8, 12 and 18 of the Records of Appeal”
Further to this the provisions of S.4(4) and S.6(2) of the Ondo State Limitation Law (supra) are relevant. The sections provide:-
Section 4(4) of the Limitation Law (supra) provides:
“An action shall not be brought upon any judgment after the expiration of twelve years from the date on which the judgment became enforceable, and no arrears of interest, in respect of any judgment debt shall be recovered after the expiration of two years from the date on which the cause of action accrued.” (Underlining mine for emphasis).
“No action shall be brought by any person to recover any land after the expiration to twelve 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” (Underlying, mine for emphasis).

If the time pleaded in the Statement of Claim is beyond the period allowed by the limitation law, the action is statute-barred.

Also, 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.
Against these parameters and with respect to the facts herein, the learned trial judge observed, remarked and held as follows:
“from paragraph 16 of the amended statement of claim that the cause of action of the plaintiff accrued in 1989 when the predecessor of the 4th defendant got on the said land to the knowledge but protest of Pa Osuma whom the plaintiff himself has now succeeded. The plaintiff’s father merely protested and had a letter written to the 4th defendant’s predecessor in the same year, 1989.
A look at paragraph 51(ii) of the amended statement of claim dealing with the reliefs claimed shows that the plaintiff made reference to the year 1995 at the date when the defendants committed acts of trespass on the said land.
I have searched all the paragraphs contained in the amended statement of claim and the only reference to the year 1995 is in paragraph 39 which relates to the date when properties were allegedly destroyed on the land and paragraph 11 which states thus:-
“11. Plaintiff avers that Chief Osuma exercised acts of ownership in respect of the land which he owned exclusively. He planted crops thereon and built on part of the land. He died in 1995 at a very old age of 100 years”
It follows therefore that the year 1995 cannot be taken as the date when the cause of action of the plaintiff accrued especially between the plaintiff and the 4th defendant.
In paragraph 17 of the amended statement of claim already reproduced above, the plaintiff referred to 29th September, 2003, as the date when the plaintiff through his counsel wrote a letter to the 4th defendant.
In paragraph 18 of the amended statement of claim, the plaintiff averred that the 4th defendant responded to the letter from his counsel on 10/11/2003.
From these two dates, the question now is; can the year 2003 be taken as the date when the cause of action of the plaintiff accrued in view of the fact that there was a correspondence between the plaintiff and the 4th defendant.
I am afraid the answer must be in the negative. The simple reason being that the period between 1989 when the presence of the predecessor of the 4th defendant was noticed on the land and the year 2003 when the said correspondence took place between the plaintiff and the 4th defendant, a period of 14 years, is clearly outside the period permitted by the limitation law, which is 12 years.
Having held that the cause of action in this suit between the plaintiff and the 4th defendant (as successor to Forestville Industries Limited) accrued in 1989, what is now left to consider is to compare this date with the date the writ of summons in this case was filed.
The original writ of summons in this case dated 15/12/2005 was filed on the same date i.e. 15/12/2005, while the amended writ of summons dated 19/06/2007 was filed same day.
It therefore follows that the period between 1989 when the cause of action accrued between the 4th defendant and the plaintiff in this suit and the date when the original writ of summons was filed i.e. 15/12/2005 is about 16 years.
The period of limitation begins to run from the date on which the cause of action commences. To determine whether an action is statute barred, all that is required is for one to examine the writ or 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, then the action is statute barred. See the case of Aremo II Vs. Adekanye (Supra) 2131 – 2132 paras H-A.
I therefore have no hesitation in holding that the period of 16 years between the time the cause of action accrued between the 4th defendant and the plaintiff and the time when the writ of summons in this case was filed is clearly outside the period allowed by the limitation law. This has thus made this suit statute barred as, between the defendant and the 4th defendant, depriving this court of the jurisdiction to entertain this suit.”

While applying the decision of the Supreme Court in AJIBONA V. KOLAWOLE (1996) 12 SCNJ 270, this Court in ALHAJI I.S. KASANDUBU & ANOR V. ULTIMATE PETROLEUM LTD. & ANOR held that time begins to run in land cases when possession is lost and where there was no indication of when the cause action arose or when possession was lost by a claimant in the 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 it. Learned Counsel to the Appellant had argued that the Lower Court in this appeal ought not to have determined the crucial question of when the cause of action accrued in this matter without the benefit of a full trial of the matter. However, learned Counsel to the Respondent reacted by maintaining that the issue can be determined in limine because there were abundant uncontestable facts cogent enough to enable the Court to decide as it did. Just before that learned Counsel to the Appellant had submitted that the Lower Court speculated on unestablished facts to anchor and support its most crucial findings, while Mr. Owoyemi for the respondent had insisted that facts abound to warrant the approach to the issue in the manner employed by the learned judge of the Lower Court.
Having focused on the foregoing, and upon my simple analysis of paragraph 16 of the amended statement of claim a clear fact stands out like a shining star. This fact is that a wood processing company came unto the land in dispute and occupied a portion of it sometimes in 1989. It is because of this occupation of land and seeming loss of possession that a person who considered himself as the rightful owner of the land wrote a letter to the Company that it should vacate that land as its occupation was not with his permission. All these events happened in 1989. By paragraph 17, the Company was said to have vacated the land after a while only to return to it and had since remained in possession. While paragraph 16 is very clear as to the events of 1989, paragraph 17 is evasive and without specificity. I believe that because there was a seeming unauthorized occupation of land by a party and a letter directed to it to vacate the land by the beneficiary of an Ondo State High Court judgment delivered in June 1980 then, without any doubt, there was in existence a person who could be sued and another who could sue.
By the rules of pleadings what is admitted needed not to be proved. The procedure involving challenging the competence of the jurisdiction of the Lower court to entertain the suit of the Appellant appears to be in the nature of proceedings in lieu of demurer. By this procedure, the Respondent was deemed to have fully admitted all the material averments in all the paragraphs of the amended statement of claim without more.
In view of all the foregoing, I am unable to see how this Court can in the circumstance find any fault with any of the steps taken by the learned trial judge and all the reasonings behind and in support of his conclusion that the cause of action in this matter arose against the 4th Defendant/Respondent in 1989. Because there is a clear finding as to when the cause of action accrued, the decision in KASANDUBU, (Supra) is wholly inapplicable. I do not see anything speculative, unreasonable or unwarranted in this finding. This issue must therefore be resolved against the Appellant. Appeal is dismissed for lacking in merit. The ruling of Adebusoye, J. in Suit No. HOW/33/2005 delivered on 18/10/2007 is hereby affirmed. No order as to costs.

PRONOUNCEMENT by ALI ABUBAKAR B. GUMEL, J.C.A.: My learned brother Kekere-Ekun, JCA (as he then was) presided over the panel that heard this appeal. He also presided over and participated at the conference leading to the judgment just delivered. He agrees that this appeal be dismissed and abide by all the consequential orders made.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was privileged to read in draft before now the lead judgment just delivered by my learned brother ALI A. GUMEL JCA and I totally agree with his reasoning and conclusion thereon.
I too shall dismiss the appeal and it is so dismissed for lacking in merit.

Appearances

Mr. Rotji EmmanuelFor Appellant

AND

Mr. Michael OwoyemiFor Respondent