MR. Kenneth Nwogu V. Prof. Emmanuel Nwanekezi (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment)

On 26-6-12, the Respondent filed suit no. HON/24/2012 against the Appellant claiming declaration of title and damages for trespass on ?Obubu Ede? land situate at Umulowe village Nkwerre in Imo State. Upon service on the Appellant of the plaintiff?s statement of claim, he filed a motion on notice in Court seeking an order striking out the suit for want of jurisdiction. The 1st ground of the objection was that the suit was statute barred having been filed 12 years after the cause of action arose.

This objection was founded on Sections 3 and 4(1) of the Imo State Limitation Law 1994 which provide for the exercise of the right of action within 10 years of the accrual of the cause of action.

The trial judge declined to strike out the suit on the ground that Paragraphs 19 and 20 of the statement of claim stated when what he considered the first disturbance on the land occurred but that the final disturbance which lead to the filing of the suit was not pleaded in the statement of claim and therefore cannot be determined by the Court unless evidence is adduced. This is

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preposterous. A cause of action not set out in the statement of claim cannot a suit. The sole disagreement between the parties is as set out in the Paragraph 19 of the statement of claim. It pleased the defendant?s disturbance of the plaintiff?s possession in June 1999, i. e. 12 years before the plaintiff went to Court. This clearly runs of Sections 3 and 4(1) of the Imo State Limitation Law 1994. The effect of these provisions is that after ten years the plaintiff lost the right to enforce the cause of action by judicial process. The action becomes statute-barred.

The yardsticks to determine whether an action is statute barred are (a) the date when the cause of action accrued, (b) the date of the commencement of the suit as indicated in the writ of summons and (c) the period of time prescribed to bring an action to be ascertained from the statute in question.

Time begins to run for the purposes of the limitation law from the date the cause of action accrued. See Osun State

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Government v. Danlami Nig. Ltd (2007) 9 NWLR (Pt. 1038) 66 and Ajayi vs. Adebiyi (2012) 11 NWLR (Pt. 1310) 137.

A successful plea of limitation law avoids an action and denies the Court the jurisdiction to entertain it. The plaintiffs case was clearly statute-barred. This appeal succeeds on this point. It is unnecessary to go into other issues having been determined that the trial Court had lost jurisdiction to entertain the suit. Suit No. Hon/24/2012 pending at the Imo State High Court is hereby struck out.

N50,000.00 costs to the Appellant.

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Other Citation: (2016)LCN/9227(CA)

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