Chief Paul Adeshi V. Chief Patrick Ade Oko & Anor. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Cross River State Holden at Ogoja delivered by his Lordship Hon Justice Michael Edem on the 3rd day of November, 2008.

The background of the case is that the people of Ogboja prior to 1996 functioned as a single entity and dealt with their land in that capacity. The appellant in 1977 acquired land from the said community and proceeded to take possession of same by planting palms and other economic trees therein.

In 1996, the cross River State Government created additional clans and consequently split Ogboja community into clans, Ishirareb being one of the tow clans. The respondents misconceived the clan creation to mean the conferment of power to repudiate all land transaction entered into by the Ogboja community.

Thus predicated on their understanding of clan creation, the respondents took out an action in the High Court of Justice, Ogboja, claiming among other relief that the land in dispute is in Ishikareb clan.

In their statement of Claim the plaintiff’s pleaded that the defendant transposed into the land in dispute in 1979. The defendant filed a defence but failed to raise the defence of statute bar in view of when the cause of action arose.

At the end of the trial the trial judge entered judgment in faovur of the plaintiff and ordered the defendant to quit the land. He was also slammed with a perpetual injunction restraining him from further trespassing on the land.

In their statement of claim the plaintiffs pleaded that the defendant trespassed into the land in 1979. The defendant dissatisfied with the judgment of the High Court has appealed to this court in a notice of appeal filed on 12/11/08. The appellant also sought the leave and was granted the leave by this court to raise the defence of statute bar which was not raised in the lower court. In the appellant’s brief of argument the lone issue raised for determination reads as follows:-

“Whether in view of the fact that the cause of action (trespass) arose in 1979, the action is not statute barred, the right of action of the plaintiffs extinguished and the court drained of jurisdiction? (ground one).

The above lone issue formulated by the appellant has also been adopted by the respondents for the determination of this appeal but with modification. The respondent’s modified issue reads as follows:-

“Whether, in view of the state of the pleadings and the evidence before him, the learned trial Judge acted within his jurisdiction in entertaining the suit and in giving judgment in favour of the respondent?

Thus in this appeal the crux of the matter is the issue of jurisdiction of the trial court. The appellant counsel has argued correctly that the defence of statute bar is a radical defence that touches on the jurisdiction of the court and extinguishes forever the right of a party to approach the courts for a relief once the defence is successfully made out. Indeed, Limitation Act or Law removes the right of the plaintiff of judicial relief leaving the plaintiff with a bare and empty cause of action which he cannot enforce if such a cause of action is found to be statute barred. He has relied on the case of MILITARY ADMINSTRATOR, EKITI STATE VS. ALAYEDELU (2007) ALL FWLR (PT 369) 1195; 1219, FRIN VS. GOLD (2007) 11 NWLR (PT 1004) 1 AND OKITO VS. OBIORU (2007) ALL FWLR (PT 365) 568; 579. He has also relied on the statement of the apex court in EGBE VS. ADEFARASIN (1987) 1 NWLR (PT 47) 1 which reads as follows:-

“A cause of action is said to be statute-barred if in respect of it proceedings cannot be brought because the period laid down by the Limitation Law or Act elapsed. How does one determine the period of Limitation. The answer is simple-by looking at 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. This can be done without taking oral evidence from the witnesses. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.”

With the above the learned appellant’s has argued that for the purpose of limitation of time for action, time begins to run from the moment the cause of action has arisen, that is when the facts which are material to be proved to entitle the plaintiff to success have arisen, referring to LASISI VS FADARE (1982) 4 SC 1; ADEKOYA VS. FHA (2008) 12 NWLR (pt 1099) and FRIN VS. GOLD (supra) at 18, 21 and 30.