Kensal Farms Limited & Anor. V. Nigercat Construction Company (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Honourable Justice P. I. Imoedemhe delivered on 15th June 2002. The facts giving rise to this appeal are as follows:

The Appellants at the trial court filed an action against the Respondent by a writ of summons dated 18th April 2002, claiming against the Respondent as follows:

The Plaintiffs claim from the Defendant who resides at Benin city within the jurisdiction of this Honourable Court the sum of N14,539,367.00 being special and general damages suffered by the Plaintiff in that sometime in 1988, the Defendant trespassed upon the Plaintiff’s farm and premises at Ayen Village, in Ohionmwon Local Government Area and destroyed Plaintiffs’ three fish ponds and ancillaries and other economic crops in the said farm.

The Appellants filed a statement of claim and led evidence in proof of their case and called two witnesses. The Respondent entered conditional appearance and filed a statement of defence on 29th March 2004 but called no witness in proof of its case. In his address filed at the close of pleadings and the Plaintiff/Appellants’ case, the Respondent’s Counsel referring to S. 4(1) of the Limitation Law, Cap 89, Laws of Bendel State of Nigeria, 1976, submitted that the action was statute barred as it was predicated on tort and ought to have been brought within 6 years of the accrual of the cause of action.

Appellants’ Counsel argued that Respondent’s Counsel cannot rely on the Statute of Limitation which he did not plead and that S. 1(2) of the said Limitation Law exempts the instant case from the application of S. 4(1) since the land, subject matter of the suit is one governed by customary law. The trial court in its judgment dismissed the Appellants’ claims on the ground that the action is statute barred. Dissatisfied with this decision, the Appellants brought this appeal by a Notice of Appeal filed 21st August 2006 containing six grounds of appeal. The Appellants in the Appellants’ brief deemed filed on 27th September 2011, settled by Ayodeji Esan Esq. raised the following issues for determination.

1. Whether the learned trial judge was right in dismissing the Plaintiffs case as statute barred when the issue of barring of the action by the statute was not properly raised by the defendant as required by law and no issues joined in the Pleadings on commencement of the action outside the limitation period. (Grounds 3 and 4)
2. Whether the trial court was right to have held that the Plaintiffs action which was in respect of land proved to have been held under a customary tenure is caught by the statute of limitation in spite of the clear provision of the law on applicability of limitation law to such land. (Grounds 1 and 2)
3. Whether on a proper evaluation of the evidence of the parties, the conclusion that the Plaintiff’s case is statute barred was justifiable in all the circumstances of the case. (Grounds 5 and 6)

On its part, the Respondent filed its brief dated 28th February 2011 on 27th September 2011 and extracted only one issue for determination as follows:

Whether the learned trial judge was right in holding the Appellants’ action was statute-barred by virtue of section 4(1)(a) of the Limitation Law of Bendel State.

I shall adopt the three issues formulated by the Appellants’ Counsel as they are a detailed breakdown of the Respondent’s single issue and answer all the questions raised in this appeal.

Issue One

Whether the learned trial judge was right in dismissing the Plaintiffs’ case as statute barred when the issue of barring of the action by the statute was not properly raised by the defendant as required by law and no issues joined in the Pleadings on commencement of the action outside the limitation period. (Grounds 3 and 4)

The Appellants’ counsel argued that the Respondent raised the issue of the statute of limitation for the first time in its final address and thus failed to plead it or lead evidence in respect of it. The implication of this, he submitted, is that the issue was not properly raised and it was not right for the learned trial judge to have dismissed the Appellants’ case on the basis that it is statute barred. Counsel referred the Court to the case of Trade Bank Plc. v. Chami (2003) 13 NWLR (Part 836) 158 at 198.

Counsel also cited the cases of:

1) Katsina L. A. v. Makudawa (1977) 1 NMLR 200;