Prince K. Adeyemi Osuma V. Joinery Crafts And Moulding Nigeria Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.

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