KARO v. SHAMAKI & ORS

CITATION: (2018) LPELR-46422(CA)

In the Court of AppealIn the Sokoto Judicial Division

Holden at Sokoto

ON WEDNESDAY, 28TH NOVEMBER, 2018Suit No: CA/S/126/2017

Before Their Lordships:

HUSSEIN MUKHTAR Justice, Court of AppealAMINA AUDI WAMBAI Justice, Court of AppealFREDERICK OZIAKPONO OHO Justice, Court of Appeal

BetweenNASIRU BALA KARO(For himself and as Representative of the heirs ofLate Bala Karo)

- Appellant(s)

And1. ALH. MUHAMMADU SHAMAKI2. HIS EXCELLENCY THE EXECUTIVE GOVERNOR,KEBBI STATE3. MINISTRY OF LANDS, SURVEY, TOWN ANDCOUNTRY PLANNING KEBBI STATE4. ATTORNEY GENERAL & COMMISSIONER FORJUSTICE KEBBI STATE

- Respondent(s)

RATIO DECIDENDI1. ACTION - CAUSE(S) OF ACTION: Definition of cause of action

"Indeed, the expression; "cause of action", is defined at page 43, Nigerian Judicial Lexicon, as:"...the fact or combination of facts which gives rise to the right to sue. This right to sue consists of wrongful act of theDefendant which gives the Plaintiff the right to complain and the damage consequent to the wrongful act: ECOBANK (NIG.)PLC vs. GATEWAY HOTELS LTD. (1999) 11 NWLR (pt.627) 397 at 418 (CA) citing the Supreme Court in EGBUE vs. ARAKA(1988) 3 NWLR (pt. 84) 598 at 613 (SC)..."Per OHO, J.C.A. (P. 30, Paras. D-F) - read in context

(201

8) LP

ELR-46

422(

CA)

2. LIMITATION LAW - LIMITATION LAW: Essence of limitation law and how to determine if an action is statute barred"The position of the law is that whenever an objection to the Court's jurisdiction is raised by a party to an action, under theStatutes of Limitation just like it was at the Court below in the instant case, there are usually three (3) factors at play. The oneis the date the cause of action arose; the other is the date of the commencement of action and the third is the period of timeprescribed for the commencement of the said action by the relevant piece of legislation. The relevance of the Statute oflimitation is to prevent tardiness and indolence in the litigation process. The situation, where a litigant decides to wake upfrom an undeserved slumber and remembers he has a cause of action to pursue, usually at his whims and even at suchsituations where human memory may seem to have faded and failed must not be encouraged. Besides this, the necessity forlimitation of actions carries the birth-marks of what is best for all of society and social interactions among people. PublicPolicy demands that at some point, there must be an end to all litigation. The imposition of time limits beyond which adispute can no longer be validly contested is indeed meant to give effect to a basic idea of our legal thinking; that in theinterest of society as a whole, not all disputes must necessarily end up in litigation. The Statute of Limitation which is thepoint of reference in this case, is Sections 3, 4(1) and 9(1) of the Limitation Law Cap. 80 Laws of Kebbi State of Nigeria 1996.Section 3 of the said Limitation Law provides thus:"No action shall be brought by any person to recover any land after the expiration of ten years from the date on which theright of action accrued to him or, if it accrued to some other persons through whom he claims, to that person."Section 4(1) of the Law provides thus:"Where the person bringing an action to recover land, or some person through whom he claims, has been in possessionthereof, and has while entitled there to been dispossessed or discontinued his possession, the right of action shall be deemedto have accrued on the date of the dispossession or discontinuance".In the immortal words of TOBI, JSC (OBM) in the case of MERCANTILE BANK Nig. LTD. vs. FETECO LTD. (1998) 3 NWLR (PT.540) 142 AT 156-157; "The statutes of Limitation removes the right of action, the right of enforcement and the right of judicialrelief in a Plaintiff and leaves him with a bare and empty cause of action which he cannot enforce if the alleged cause ofaction is Statute Barred; that is to say if such cause of action is instituted outside the three months statutory period allowedby such law".The Objection raised by the 2nd to 4th Respondents in the lower Court as Defendants is that the suit instituted by theAppellant challenging the acquisition of their lands by the Respondents was Statute Barred. The 2nd to 4th Respondents hadcontended that the lower Court was right to have held that the action filed by the Appellant was caught by the Limitation Lawof Kebbi State, 1996 and that this clearly robbed the Court below of its jurisdiction to entertain the matter. By whateverarithmetic or mathematical formula by which the period of limitation is calculated, if this is accepted as correct, the answer tobe derived from any such exercise, will definitely and most certainly point to the fact that the Appellant's case as Claimanthad been caught by the period of Limitation. It would be recalled that the learned Counsel for the 2nd to 4th Respondentsdrew attention of Court to the pleading in paragraph 16 of the Appellant's statement of claim. The said paragraph containedan averment stating the Appellant's father became aware of the 1st Respondent presence on the disputed parcel of land inthe year 2002; as a result of which he filed the Suit No: KB/HC/4/2002. By taking a closer look at paragraph 31 of the saidAppellant's statement of claim, the Appellant pleaded that the Suit No: KB/HC/4/2002 was struck out by High Court IV andthat in his wisdom he chose to file a fresh suit in the year 2014. By Appellant's own showing, when a calculation is done aboutthe number of years in between the year 2002 and the year 2014, it will be realized that a total of twelve (12) solid years hadlapsed. As a corollary to this argument, from the unambiguous letters and intent of Section 3 of the Limitation Law definedabove, I simply find myself unable to disagree with learned 2nd to 4th Respondent's Counsel that the Appellant did not losehis right of action over the cause of action in the year 2014. See the case of DR. TOSIN AJAYI vs. PRINCESS (MRS.) OLAJUMOKEADEBIYI (Supra) cited by learned 2nd to 4th Respondents' Counsel. See also KOTOYE vs. SARAKI (1992) 9 NWLR (PT. 264)156; YAR ADUA vs. YANDOMA (2015) 4 NWLR (PT.1448) 123. On the Appellant's claims to having a subsisting right of actionbased on the doctrine of continuous trespass, this Court having agreed that the Appellant cause of action arose in the year2002 and that he did not sue until 2014, the provision of Section 4(1) of the Limitation Law clearly applies to this case wherethe person bringing an action to recover land has been dispossessed of the land, his right of action shall be deemed to haveaccrued on the date he was dispossessed of the land. This is a statutory enactment. It is however, clear from the Appellant'sown showing at paragraph 16 of his statement of claim as in page 6 of the records of Appeal that the Appellant wasdispossessed of the parcel of land in 2002 and that the 1st Respondent has by then gone into possession, and was issuedwith a certificate of occupancy. I am unable to agree that this is a proper case for which the doctrine of continuing trespasscan be applied as the cause of action arose in 2002 when the Appellant became aware that he has been dispossessed. I amunable to also agree that the dispossession of the Appellant was done continuously. On the question of whether the trialCourt did not take into consideration the originating processes of the Appellant before striking out the case, the simpleanswer is that there is no way Appellant's Counsel can say with any amount of assurance that the Court below did not makeuse of the Originating Processes of the claimant. The requirement of the law does not state that the trial Court must declarethat it made use of the contents of the writ of summons and statement of claim or not. The most important thing is that thetrial Court arrived at the right decision and this does not necessarily require the Court stating how it arrived at the decision.So long as the Court, having appropriately determined when a cause of action has accrued going by the averments in thestatement of claim and the writ of summons, it is not obligatory or compulsory on the part of the Court to state that it tookinto consideration the contents of the statement of claim or writ of summons in its judgment. It will always be clear from theCourt's decision whether it took into consideration the averments of these processes or not from its decision. A cause ofaction is simply no more than the factual situation relied upon by a Plaintiff and which entitles him to a remedy against theDefendant. The only processes to look at in order to properly determine when the cause of action has arisen are the writ ofsummons and statement of claim."Per OHO, J.C.A. (Pp. 24-30, Paras. B-D) - read in context

(201

8) LP

ELR-46

422(

CA)

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the

Leading Judgment): This Appeal is against an

interlocutory decision of the High Court of Kebbi State

sitting at Birnin Kebbi delivered on the 9-3-2017 in Suit No:

KB/HC/27/2014 CORAM: BASHIR H. ISMAILA, J. wherein

the lower Court dismissed the Appellant's claim before it

for want of jurisdiction. See Pages 295-297 of the record of

Appeal.

By paragraph 34 of the Statement of Claim the Appellant as

Claimant claimed against the Respondents as follows;

WHEREOF the Claimant is aggrieved and claims against

the Defendants as follow:

a. A Declaration that the heirs of late Bala Karo are

by devolution the beneficial owners of all that piece

or parcel of land lying and situate along Birnin Kebbi

– Jega Road, Opposite DFFRRI, measuring from East

to West 314ft and from North to South 345ft, and

shares boundary to the East with Shehu Waziri farm,

to the West with Birnin Kebbi –Jega Road, to the

North with Alhaji Sule Basaura AP11 and to the South

with ‘Cattle Burtali’.

b. A Declaration that the land in dispute has never

been the property of the Kebbi State Government nor

1

(201

8) LP

ELR-46

422(

CA)

was it compulsorily acquired by the Kebbi State

Government at any time for overriding public

purpose.

c. A Declaration that any letter of grant or certificate

of occupancy purportedly issued by the 2nd and 3rd

Defendants to the 1st Defendant over the said piece

of land or any part thereof is null and void and of no

effect.

d. A Declaration that the Defendants, particularly the

1st Defendant, are trespassers.

e. An Order of the Hon. Court to the 1st Defendant to

remove forthwith all structures erected or caused to

be brought upon the Claimant’s land.

f. A perpetual injunction restraining the Defendants,

their agents, servants, assigns or privies from

committing further acts of trespass on Claimant’s

land.

g. General Damages for trespass and cost of this

action.

Upon the filing of this suit, it was initially assigned to

ABBAS AHMAL, J who dismissed same upon a preliminary

objection filed by the 1st Respondent based on the Public

Officers’ Protection Law. However, this Court remitted the

suit back to the High Court of Kebbi State for hearing on

the merits in a judgment delivered on 4th March, 2016 in

Appeal

2

(201

8) LP

ELR-46

422(

CA)

No.CA/S/29/2016 filed by the Appellant. See pages

122-149 of the record of appeal. The matter was

consequently assigned to BASHIR H. SAMAILA, J.

At plenary, the Appellant as Claimant called three (3)

witnesses and closed his case (See pages 273-294 of the

records of appeal). After the closure of the case for the

Appellant at the Lower Court, 2nd - 4th Respondent filed a

notice of preliminary objection along with a written address

challenging the decision of the court based on the

limitation laws of Kebbi State (See pages 172-195 of the

records of appeal). The Appellant filed his counter affidavit

and written address opposing the preliminary objection

filed by the 2nd - 4th Respondents vide a motion on notice

(See pages 227-272 of the records of appeal).

On the 21-2-2017 learned Counsel adopted their respective

written addresses in respect of the preliminary objection

and the matter was adjourned to 7-3-2017 for ruling (See

pages 292-294 of the records of appeal). However, the

ruling was delivered on 9-3-2017 (See pages 295- 297 of

the records) wherein the trial judge dismissed the

Appellant's claim for want of jurisdiction and at page 297 of

the record

3

(201

8) LP

ELR-46

422(

CA)

held thus:

“I therefore must confine myself to the recent

judgment of the Court of Appeal delivered on the 7th

day of December 2016, I adopt the reasoning and

conclusion and finding of the Court of Appeal Sokoto

as mine I am also bound by that decision in the light

of all said I hereby dismiss this case.”

Dissatisfied with this Ruling, the Appellants have Appealed

to this Court vide their Notice of Appeal filed on the 30th

May, 2017 containing three (3) grounds of Appeal (See

pages 299-301 of the records). These grounds of Appeal

have been reproduced, shorn of their particulars as follows;

GROUNDS OF APPEAL:

1. The lower Court erred in law when it determined

the issue of jurisdiction based on statute bar without

considering the writ of summons and statement of

claim as filed by the Appellant before it, thereby

occasioning miscarriage of justice.

2. The lower Court erred in law when it dismissed the

claim of the Appellant relying on the judgment of this

Court delivered on 7th December, 2016 when such

judgment is distinguishable from the case before it,

thereby occasioning miscarriage of justice.

4

(201

8) LP

ELR-46

422(

CA)

3. The lower Court erred in law when it dismissed the

claim of the Applicant for being statute bar based on

the limitation law of Kebbi State, thereby occasioning

miscarriage of justice.

ISSUES FOR DETERMINATION:

The Appellant nominated two (2) issues for the Court’s

determination of this Appeal as follows:

1. Whether the Lower Court was right to have dismissed

the Appellant's case before it on the issue of jurisdiction

based on limitation laws of Kebbi State without reference

to the writ of summons and statement of claim as filed by

the Appellant before it? (Grounds 1 and 3)

2. Whether the Lower Court was right to have dismissed

the Appellant case before it relying on the judgment of this

Court delivered on 7th day of December 2016? (Ground 2)

On the part of the Respondents, the two issues nominated

for the determination of this Appeal by the Appellant was

adopted by the Respondent and which issues they argued

seriatim. Learned Counsel to the parties addressed Court in

extenso, citing a plethora of cases in the process. The

Appellant’s Amended brief of Argument filed on the 8-12-

2017, and deemed filed on the 22-10-2018 was settled by

SANUSI GARBA ESQ., while the 2nd to 4th Respondents’

5

(201

8) LP

ELR-46

422(

CA)

brief of Argument filed on the 16-3-2018 and deemed filed

on the 22-10-2018 was settled by AHMADU RUFA’I

AMINU, ESQ.,. At the hearing of the Appeal on the

19-11-2018 learned Counsel adopted their briefs of

Argument on behalf of their respective clients and urged

the Court to decide the Appeal in their favour.

SUBMISSIONS OF COUNSEL:

APPELLANT:

ISSUE ONE:

Whether the Lower Court was right to have dismissed

the Appellant's case before it on the issue of

jurisdiction based on limitation laws of Kebbi State

without reference to the writ of summons and

statement of claim as filed by the Appellant before it?

(Grounds 1 and 3)

In arguing this issue, learned Appellant’s Counsel

contended that the Court below did not consider the writ of

summon and statement of claim filed by the Appellant

before it before dismissing the Appellant's claim before it

due to reason of lack of jurisdiction. Counsel drew attention

to the lower Court’s ruling as contained at pages 295-297

of the records which show clearly that the Court made no

references to the writ of summons and statement of claim

filed by the Appellant before it.

6

(201

8) LP

ELR-46

422(

CA)

It was further contended that the clear contravention of the

position of the law as outlined by chain of judicial

authorities occasioned miscarriage of justice at the

instance of the Appellant, as the Court below did not avail

itself of the opportunities of looking at the writ of summons

and statement of claim before delivering its ruling. Counsel

pondered how the Court below could have come to the

conclusion on the question of whether the suit was statute

barred or not when it did not look at the originating

process of the Claimant.

Counsel argued that the limitation law of Kebbi State does

not apply to the case of the Appellant as same was filed

within the ten (10) years period required, since the cause of

action from the writ of summon and statement of claim

filed in the year 2014 by the Appellant accrued when the

1st Respondent trespassed into the land from 2002 to at

least 2006 (See page 6 of the records of appeal). He said

that the Court below did not avail itself of the above and

went ahead to dismiss the Appellant's claim before it

thereby occasioning miscarriage of justice. Counsel further

argued that even if the last entry was made by the 1st

Respondent

7

(201

8) LP

ELR-46

422(

CA)

in 2004, the Appellant is still within the ten (10) years

period prescribed by the limitation laws of Kebbi State.

It was also argued that the 1st Respondent trespassed into

the land up to the year 2016 and the Appellant only became

aware of the purported accusation (sic) after the 1st

Respondent has trespassed into the land. (See pages 6-7 of

the records of appeal).

Arising from the foregoing, Counsel submitted that if the

Court below had looked at the statement of claim and the

writ of summons as filed by the Appellant before it, it would

have seen that the Appellant's claim before it was based on

trespass to land. See page 6 of the record and paragraph

34(k) of the statement of claim as filed by the Appellant at

the Court below. Counsel also submitted that in civil

actions based on trespass or continuous trespass are not

caught by any statute of limitation. Counsel cited the cases

of OYEBAMIJI & ORS vs. LAWANSON & ORS (2008)

35 NSCQLR PAGE 647 AT 662, see also CHRISTOPHER

OBUEKE &ORS vs. N. N. NNAMCHI & ORS (2012)

LPELR - SC 106/2006, where the Supreme Court per

MARY PETER ODILI, JSC had this to say on the subject:

8

(201

8) LP

ELR-46

422(

CA)

"…where there is continuity of acts of trespass,

successive actions can be maintained by a Plaintiff

from time to time in respect of the continuance of

trespass. See ADEPOJU vs. OKE (1999) 2 NWLR (PT.

594) 154 AT 169. It is from a combination of the

above principles that emerged the doctrine of

continuing trespass giving rise to actions from day to

day as long as the wrong las ts . In such a

situation/circumstance, an action for trespass cannot

be defeated by a plea of limitation of time…”

See also the unreported case of MAL. MANSUR UMAR

TAMBUWAL vs. SAIDU TAMBUWAL decided by this

Court on 1st day of July, 2015 in Appeal No: CA/S/35/2014.

Counsel therefore urged this Court to resolve this issue in

favour of the Appellant and hold that failure by the Lower

Court to examine the writ of summons and statement of

claim filed by the Appellant before it has occasioned

miscarriage of justice as the limitation laws of Kebbi State

is not applicable to the case of the Appellant.

ISSUE TWO:

Whether the Lower Court was right to have dismissed

the Appellant case before it relying on the judgment

of this Court delivered on 7th day of December 2016?

(Ground 2)

9

(201

8) LP

ELR-46

422(

CA)

In arguing this issue, Counsel contended that the Court

below erred in dismissing the Appellant's claim before it

whilst relying on the judgment of this Court delivered on

7th December, 2016. He argued that the Court below in

relying on the judgment of this Court in delivering its ruling

on 9th March, 2017 did not give the particulars of the

judgment it relied upon. He also said that the no Suit

number and no names of parties were supplied; that the

Court only referred to the date of the judgment (See pages

275- 276 of the records). This ruling, Counsel therefore

submitted is devoid of the qualities of a good ruling and

gives room for speculators as to which judgment the Court

is referring to.

The submission of Counsel is that the only judgment

delivered on 7th December 2016 by this Court, which

affects the parties is the one in the sister case of the

present case in Appeal No. CA/S/62/2016 – Nasiru Bala

Karo vs. (1) Alh. Sahabi Na Balki (2) Governor of Kebbi

State, (3) Ministry of Lands, Survey, Town and Country

Planning, Kebbi State, (4) Attorney General and

Commissioner for

10

(201

8) LP

ELR-46

422(

CA)

Justice Kebbi State, (5) Nasiru Idris (Alias Nasiru N.U.T.)

wherein this Court dismissed the Appellant's appeal before

it and affirmed the decision of Hon. Justice Asabe Karatu,

which also dismissed the Appellant's Claim before it based

on the limitation law of Kebbi State. The judgment is

contained at pages 150-169 of the records.

The contention of Counsel is that the facts of the judgment

used in determining the instant case is clearly

distinguishable from the facts of the case determined by

the Court of Appeal in number CA/S/62/2016. According to

Counsel, the main reason the Court of Appeal in

CA/S/62/2016 upheld the decision of ASABE KARATU, J in

Suit No: KB/HC/21/2014 is that the Appellant did not

dispute the fact that the cause of action arose sometime in

1991 as pleaded by the 2nd - 4th Respondents in their joint

statement of defence. He drew attention to page 12 of the

judgment contained at page 161 of the records, where this

Court observed thus;

“…in the instant case, the plaintiff had done nothing

to controvert the date when the cause of action arose

and such default amounted to an admission of the

accrual date...”

11

(201

8) LP

ELR-46

422(

CA)

See also page 13 of the judgment contained at page 162 of

the records. However, in the instant case, the Counsel

contended that the Appellant filed a Reply to the 2nd to 4th

Respondents' amended statement of defence contradicting

the date of accrual of cause of action as pleaded by the

Defendants. He drew attention to the Appellant's reply to

the 2nd - 4th Respondents' amended statement of defence

contained at pages 220- 221 of the records. According to

Counsel for the avoidance of doubt, paragraphs 1 and 2 of

the said Reply contained at page 220 of the records are

reproduced as follows:

1) The claimant denies paragraph 3 to 41 of the 2nd

defendant's amended statement of defence and puts them

to the strictest proof of averments contained therein.

2) In answer to the aforementioned denied paragraphs, the

claimant states that the land in dispute was never acquired

by Kebbi State Government on 4/10/1991 or any other date

as alleged.

The argument of Counsel here is that the above paragraphs

clearly show that the Appellant disputed the facts pleaded

by the 2nd - 4th Respondents that the land in dispute was

acquired in 1991 and therefore joined

12

(201

8) LP

ELR-46

422(

CA)

issues with the Respondents on same. Counsel referred

Court to pages 6-7 of the records, wherein the Appellant

avers in paragraph 22 of the statement of claim that the

land in dispute was never at any time acquired by the Kebbi

State Government. With this, Counsel submitted that this

paragraph clearly distinguishes the judgment of the Court

of Appeal in Appeal No: CA/S/62/2016 from the case at

hand; but that the Court below overlooked same, despite

the fact that its attention was drawn to it. See page 293 of

the judgment.

The position of learned Counsel is that since the two (2)

cases are distinguishable, it was wrong for the Court below

to have used the judgment of the Court of Appeal as basis

for dismissing the claim of the Appellant. For this reason,

Counsel urged this Court to resolve this issue in favour of

the Appellant and hold that the Court below erred to have

used its judgment delivered on 7th December, 2016

without giving particulars of same and that such judgment

is distinguishable from the case before the Lower Court.

RESPONDENTS:

ISSUE ONE:

Whether Lower Court was right to have dismissed the

Appellant's case before it on the issue of jurisdiction

13

(201

8) LP

ELR-46

422(

CA)

based on limitation laws of Kebbi State without

reference to the writ of summons and statement of

claim as filed by the Appellant before it? (Grounds 1

and 3)

In arguing this Appeal, learned Respondent’s Counsel

prefaced his arguments with the decision of this Court in

the case of AKINRIMADE vs. BELLO (2005) 37 WRN 47

AT 65 where TSAMMANI, JCA aptly observed that time will

begin to run when the causes of action arose, when

calculating or determining the applicability of the Statutes

of Limitation to any particular matter before Court. Counsel

further argued that in compliance with the Court’s

injunctions in the said case, that the 2nd to 4th

Respondents had to exhibit evidence of memo of acquisition

dated the 4th day of October, 1991; evidence of payment of

compensation for land and economic trees; evidence of

allocation to the 1st Respondent and certificate of

occupancy see pages 177-188 of the record.

It was the further argument of Counsel that a community

and dispassionate reading of paragraphs 9, 11, 12, 13 and

in particular 34 of the statement of claim will show the

Appellant's claim is an action for recovery of land as

14

(201

8) LP

ELR-46

422(

CA)

envisaged by Sections 3, 4(1) and 9(1) of the Limitation

Law Cap. 80 Laws of Kebbi State of Nigeria 1996, upon

which the preliminary objection was based.

Counsel therefore submitted that the substantive claim of

the Appellant before the Court below is for declaration of

title to land; see paragraph 34(1)(11) and (111) and that

the claim for abetment of trespass is ancillary and clearly

consequent upon that of declaration of title to land. He

emphasized that the true nature of the Appellant’s suit

before the lower Court is for recovery of land, and not

trespass, and therefore that the limitation law cited above

therefore clearly applies to the suit.

It was also submitted that paragraphs 16, 17, 18, 19 and 20

of the Appellants' statement of claim on page 6 of the

record settles the matter, for ease of reference, Counsel

took his time to reproduce the said paragraphs thus;

“16. The claimant avers that the 1st defendant sometimes

in 2002 trespassed unto the portion of the land facing Jega

road by the east by connecting pipe borne water on the

land, this action of the 1st defendant gave rise to suit No,

KB/HC/4/2002 filed by the claimant's late father Bala Karo.

15

(201

8) LP

ELR-46

422(

CA)

17. That while suit No KB/HC/4/2002 was pending, the 1st

defendant further trespassed into the land in the year 2003

by digging foundation on same and in the year 2004 he

erected a fence on the said land, and thereafter farmed on

the land for two to three years through his errand boy-one

Nayaya Bazabarme before he subsequently stopped.

18. The claimant avers that when the 1st defendant was

accosted by the claimant and his brothers he claimed to

have been allocated the land by Kebbi State Government as

compensation for his land acquired.

19. The plaintiff further avers that the 1st defendant

further claimed to be in possession of a certificate of

occupancy granted by the 2nd defendant over the portion

of land.

20. The claimant states that he make enquiries at the office

of the 3rd defendant and astonishingly he was informed

that the land was acquired by Kebbi State Government for

the purpose of building mechanic village, and that Maccido

Jikan Magaji signed and collected compensation in respect

of the land, to which he vehemently disagreed."

16

(201

8) LP

ELR-46

422(

CA)

Arising from the foregoing, the contention of the learned

2nd to 4th Respondents is that the pleading in paragraph

16 of the Appellant's statement of claim puts it beyond

doubt that the Appellant’s father became aware of the 1st

Respondent presence on the disputed parcel of land in the

year 2002, in fact even filed Suit No: KB/HC/4/2002. It was

further contended that in the Appellant’s paragraph 31 of

the statement of claim, the Appellant pleaded that Suit No:

KB/HC/4/2002 was struck out by High Court IV and that in

his wisdom he chose to file a fresh suit in the year 2014

rather than relisting the one struck out. The submission of

Counsel therefore is that from the year 2002 to the year

2014, it is twelve (12) solid years and he urged this Court

to so hold.

In his further contention, Counsel submitted that by the

unambiguous letters and intent of Section 3 of the

Limitation Law cited above, the Appellant lost his right of

action over the cause of action in the year 2014. He cited

the case of DR. TOSIN AJAYI vs. PRINCESS (MRS.)

OLAJUMOKE ADEBIYI (2012)50 (PT.1) NSCQR 492.

17

(201

8) LP

ELR-46

422(

CA)

On the Appellant’s arguments that he has sued based on

the Respondents’ continuous trespass, Counsel submitted

that the Appellant is a non-starter as the truth is that his

cause of action arose in the year 2002 and he urged the

Court to so hold and dismiss this Appeal.

Still on the issue, Counsel submitted that the Appellant’s

suit at the Court is caught by Section 4(1) of the Limitation

Law cited above, which provides, thus:

"4(1) where the person bringing an action to recover

land, or some person through whom he claims, has

been in possession thereof, and has while entitled

there to been dispossessed or discontinued his

possession, the right of action shall be deemed to

have accrued on the date of the dispossession or

discontinuance".

Counsel contended that the Appellant, from his pleading in

paragraph 16 of his statement of claim as in page 6 of the

records of Appeal was dispossessed of the parcel of land in

the year 2002 and the 1st Respondent has by then gone

into possession, and was issued certificate of occupancy,

the cause of action, having arisen in 2002 when the

Appellant became aware that he has been dispossessed. He

said that the possession of the Appellant was done once

and for all,

18

(201

8) LP

ELR-46

422(

CA)

it was not a continuous action, rather was done once and

for all times.

On the question of whether the trial Court did not take into

consideration the originating processes of the Appellant

before striking out the case, Counsel argued that this was

far from the truth as the Court did consider the statement

of claim and writ of summons of the Appellant, at pages

296 lines 27 to 29 where the learned trial Judge stated

thus:

"I have gone through the argument of both Counsel

and find that the subject matter the land in dispute is

the same land litigated in both Courts, the

contentious issue is the delay presenting this case not

...”

Counsel urged this Court to resolve this matter in favour of

the Respondents.

ISSUE TWO:

Whether the Lower Court was right to have dismissed

the Appellant case before it relying on the judgment

of this Court delivered on 7th day of December 2016?

(Ground 2)

In arguing this issue, learned 2nd to 4th Respondents

identified the grouse of the Appellant under this issue

which he itemized thus;

(a) The lower Court did not give the particulars of the

decision of this Hon. Court in a sister/related

(201

8) LP

ELR-46

422(

CA)

19

(201

8) LP

ELR-46

422(

CA)

Appeal on which it relied to dismiss his Appeal and;

(b) The facts of the case relied on in the (sister case) earlier

dismissed by this Hon. Court are distinguishable from those

of his case now on Appeal.

Counsel thereafter submitted that the trial Court relied

upon the judgment of the Court of Appeal delivered on the

7th day of December, 2016 see page 296 of the record. The

contention of Counsel is that the Appellant's Counsel and

Counsel to the 2nd - 4th Respondents were both on the

sister case and a copy of the judgment referred to with its

particulars was presented in Court; and that mentioning of

the suit number or not has not in any way occasioned any

miscarriage of justice as both Counsel referred to the

judgment of the Court of Appeal delivered on the 7th day of

December, 2016 in their addresses before the trial Court

and the judgment of the Court of Appeal forms part of the

record of the trial Court. See page 150 of the record of

proceedings.

Learned Counsel drew attention to the case ofLARMIE vs.

DATA PROCESSING LTD (2005) 24 NSCQR 321 AT

342 in stating when a conduct of a party to an action would

amount to miscarriage of justice. See alsoOLUBODE &

ORS vs. ALH. AKINSOLA SALAMI (1985) 2 NWLR (PT.

7) 282 AT 284. The contention of Counsel here is that the

Appellant

20

(201

8) LP

ELR-46

422(

CA)

has not complained of any miscarriage of justice from the

ruling of the lower Court and thereafter cannot complain

against the ruling. It was further submitted that the trial

Court dismissed the Appellant's suit for being statute

barred and nothing more he urged this Court to so hold and

resolve Issue two (2) against the Appellant and dismiss the

Appeal. The appellant has failed to establish any

miscarriage of Justice.

RESOLUTION OF APPEAL

The matter culminating in this Appeal has truly suffered a

chequered history. The Appeal is a fall out of an

Interlocutory decision, against the ruling of the High Court

III, Birnin Kebbi delivered on the 9th day of March, 2017 in

Suit No: KB/HC/27/2014 wherein the Court below struck

out the Appellant’s Claim for want of jurisdiction. See

pages 229 – 297 of the Record of Appeal.

The whole matter began with the creation of Kebbi State in

the year 1991, when a memo was written for the

acquisition of 200 hectares of land East of Jega Road from

AP II to Bulasa, down to Race Course, Birnin Kebbi and the

memo

21

(201

8) LP

ELR-46

422(

CA)

for acquisition was approved by the then Military

Administrator on the 4th day of October, 1991. Sequel to

this acquisition, the parcel of land in dispute fell under item

6(e) of the memo of acquisition. See page 178 of the record.

After the acquisition, the Kebbi State Government then set

up a Committee for payment of compensation and one

Maccido Jikan Magaji, now deceased was found in actual

possession of the land in dispute and the said Maccido

Jikan Magaji signed the compensation list and was paid

compensation by the Committee at the District Head of

Gwandu (Ubandoman Gwandu) Palace, Birnin Kebbi. See

pages 180-181 of the record.

The land in dispute was subsequently allocated to the 1st

Respondent with plot No. B1/G/4495 Alh. Shamki Gado

Birnin Kebbi Plot No. 2, TPR/95 in the year 1998. See page

183 of the record. The 1st Respondent was also issued with

a Certificate of Occupancy. After the demise of Maccido

Jikan Magaji, the Appellant’s progenitor, Bala Karo initiated

an action against the 1st - 4th Respondents in the year

2002 in suit No: KB/HC/4/2002; the said Bala Karo, himself

later died intestate and the matter was struck out by High

Court IV, Birnin Kebbi.

22

(201

8) LP

ELR-46

422(

CA)

The Appellant filed a fresh Suit No: KB/HC/27/2014 which

was assigned to ABBAS AHMAN, J of the High Court IV.

Again, Counsel to the 2nd - 4th Respondents filed a

preliminary objection based on Public Officer's Protection

laws of Kebbi State, 1996. Counsel to the 1st Respondent

also filed a preliminary objection on Public Officers

Protection Law. See page 38 of the record. The trial Court

dismissed the Appellant’s suit. See pages 122-130 of the

record. This Counsel, however, soon remitted this suit back

to the Chief Judge Kebbi State for re-hearing following the

outcome of an Appeal filed by the present Appellant.

The suit was assigned to BASHIR H. ISMAILA, J wherein

the Appellant called three witnesses and closed his case

and Counsel to the 2nd - 4th Respondents filed a Notice of

Preliminary Objection challenging the jurisdiction of the

lower Court to entertain the Appellants suit based on

Limitation Law of Kebbi State Cap. 80 Laws of Kebbi State

(see page 172-195). The Appellant responded by filing a

counter affidavit. Learned Counsel adopted their respective

written

23

(201

8) LP

ELR-46

422(

CA)

addresses and on the 9th day of March, 2017 the trial

Court, based on the judgment of the sister case of NASIRU

BALA KARO vs. ALHAJI SAHABI NA-BALKI Appeal No:

CA/S/62/2016 which was delivered on the 7th day of

December, 2016 affirming the judgment of ASABE

KARATU, J dismissed the Appellant’s Suit (See pages

296-297 of the record).

The position of the law is that whenever an objection to the

Court’s jurisdiction is raised by a party to an action, under

the Statutes of Limitation just like it was at the Court below

in the instant case, there are usually three (3) factors at

play. The one is the date the cause of action arose; the

other is the date of the commencement of action and the

third is the per iod of t ime prescr ibed for the

commencement of the said action by the relevant piece of

legislation.

The relevance of the Statute of limitation is to prevent

tardiness and indolence in the litigation process. The

situation, where a litigant decides to wake up from an

undeserved slumber and remembers he has a cause of

action to pursue, usually at his whims and even at such

situations where human memory may seem to have faded

and failed must not be encouraged. Besides this, the

24

(201

8) LP

ELR-46

422(

CA)

necessity for limitation of actions carries the birth-marks of

what is best for all of society and social interactions among

people. Public Policy demands that at some point, there

must be an end to all litigation. The imposition of time

limits beyond which a dispute can no longer be validly

contested is indeed meant to give effect to a basic idea of

our legal thinking; that in the interest of society as a whole,

not all disputes must necessarily end up in litigation.

The Statute of Limitation which is the point of reference in

this case, is Sections 3, 4(1) and 9(1) of the Limitation Law

Cap. 80 Laws of Kebbi State of Nigeria 1996.

Section 3 of the said Limitation Law provides thus:

“No action shall be brought by any person to recover

any land after the expiration of ten years from the

date on which the right of action accrued to him or, if

it accrued to some other persons through whom he

claims, to that person.”

Section 4(1) of the Law provides thus:

“Where the person bringing an action to recover land,

or some person through whom he claims, has been in

possession thereof, and has while entitled there

25

(201

8) LP

ELR-46

422(

CA)

to been dispossessed or discontinued his possession,

the right of action shall be deemed to have accrued

on the date of the dispossession or discontinuance".

In the immortal words of TOBI, JSC (OBM) in the case of

MERCANTILE BANK Nig. LTD. vs. FETECO LTD.

(1998) 3 NWLR (PT. 540) 142 AT 156-157;

“The statutes of Limitation removes the right of

action, the right of enforcement and the right of

judicial relief in a Plaintiff and leaves him with a bare

and empty cause of action which he cannot enforce if

the alleged cause of action is Statute Barred; that is

to say if such cause of action is instituted outside the

three months statutory period allowed by such law”.

The Objection raised by the 2nd to 4th Respondents in the

lower Court as Defendants is that the suit instituted by the

Appellant challenging the acquisition of their lands by the

Respondents was Statute Barred. The 2nd to 4th

Respondents had contended that the lower Court was right

to have held that the action filed by the Appellant was

caught by the Limitation Law of Kebbi State, 1996 and that

this clearly robbed the Court below of its jurisdiction to

entertain the matter.

26

(201

8) LP

ELR-46

422(

CA)

By whatever arithmetic or mathematical formula by which

the period of limitation is calculated, if this is accepted as

correct, the answer to be derived from any such exercise,

will definitely and most certainly point to the fact that the

Appellant’s case as Claimant had been caught by the period

of Limitation. It would be recalled that the learned Counsel

for the 2nd to 4th Respondents drew attention of Court to

the pleading in paragraph 16 of the Appellant's statement

of claim. The said paragraph contained an averment stating

the Appellant’s father became aware of the 1st Respondent

presence on the disputed parcel of land in the year 2002; as

a result of which he filed the Suit No: KB/HC/4/2002.

By taking a closer look at paragraph 31 of the said

Appellant’s statement of claim, the Appellant pleaded that

the Suit No: KB/HC/4/2002 was struck out by High Court IV

and that in his wisdom he chose to file a fresh suit in the

year 2014. By Appellant’s own showing, when a calculation

is done about the number of years in between the year

2002 and the year 2014, it will be realized that a total of

twelve (12) solid years had lapsed.

27

(201

8) LP

ELR-46

422(

CA)

As a corollary to this argument, from the unambiguous

letters and intent of Section 3 of the Limitation Law defined

above, I simply find myself unable to disagree with learned

2nd to 4th Respondent’s Counsel that the Appellant did not

lose his right of action over the cause of action in the year

2014. See the case of DR. TOSIN AJAYI vs. PRINCESS

(MRS.) OLAJUMOKE ADEBIYI (Supra) cited by learned

2nd to 4th Respondents’ Counsel. See also KOTOYE vs.

SARAKI (1992) 9 NWLR (PT. 264) 156; YAR ADUA vs.

YANDOMA (2015) 4 NWLR (PT.1448) 123.

On the Appellant’s claims to having a subsisting right of

action based on the doctrine of continuous trespass, this

Court having agreed that the Appellant cause of action

arose in the year 2002 and that he did not sue until 2014,

the provision of Section 4(1) of the Limitation Law clearly

applies to this case where the person bringing an action to

recover land has been dispossessed of the land, his right of

action shall be deemed to have accrued on the date he was

dispossessed of the land. This is a statutory enactment. It is

however, clear from the Appellant’s own showing at

paragraph 16 of his statement of claim as in page 6 of

28

(201

8) LP

ELR-46

422(

CA)

the records of Appeal that the Appellant was dispossessed

of the parcel of land in 2002 and that the 1st Respondent

has by then gone into possession, and was issued with a

certificate of occupancy. I am unable to agree that this is a

proper case for which the doctrine of continuing trespass

can be applied as the cause of action arose in 2002 when

the Appellant became aware that he has been dispossessed.

I am unable to also agree that the dispossession of the

Appellant was done continuously.

On the question of whether the trial Court did not take into

consideration the originating processes of the Appellant

before striking out the case, the simple answer is that there

is no way Appellant’s Counsel can say with any amount of

assurance that the Court below did not make use of the

Originating Processes of the claimant. The requirement of

the law does not state that the trial Court must declare that

it made use of the contents of the writ of summons and

statement of claim or not. The most important thing is that

the trial Court arrived at the right decision and this does

not necessarily require the Court stating how it arrived at

the decision.

29

(201

8) LP

ELR-46

422(

CA)

So long as the Court, having appropriately determined

when a cause of action has accrued going by the averments

in the statement of claim and the writ of summons, it is not

obligatory or compulsory on the part of the Court to state

that it took into consideration the contents of the statement

of claim or writ of summons in its judgment. It will always

be clear from the Court’s decision whether it took into

consideration the averments of these processes or not from

its decision. A cause of action is simply no more than the

factual situation relied upon by a Plaintiff and which

entitles him to a remedy against the Defendant. The only

processes to look at in order to properly determine when

the cause of action has arisen are the writ of summons and

statement of claim.

Indeed, the expression; “cause of action”, is defined at page

43, Nigerian Judicial Lexicon, as:

“…the fact or combination of facts which gives rise to

the right to sue. This right to sue consists of wrongful

act of the Defendant which gives the Plaintiff the

right to complain and the damage consequent to the

wrongful act: ECOBANK (NIG.) PLC vs. GATEWAY

HOTELS LTD. (1999) 11 NWLR (pt.627) 397 at 418

(CA) citing the Supreme Court in EGBUE vs. ARAKA

(1988) 3 NWLR (pt. 84) 598 at 613 (SC)…”

30

(201

8) LP

ELR-46

422(

CA)

In the final analysis, this Appeal is devoid of any merits and

it is accordingly dismissed. There shall be no orders as to

cost.

HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of

reading, in draft, the judgment of my learned brother

Frederick O. Oho, JCA and I fully agree with the reasons

therein for the conclusion that the appeal is bereft of merit.

It therefore has to be and is hereby dismissed. I subscribe

to the consequential orders as made in the judgment.

AMINA AUDI WAMBAI, J.C.A.: I was obliged a copy of

the judgment just delivered. I agree with my learned

brother, Fredrick O. Oho, JCA that the appeal is devoid of

any merit. I too dismiss the appeal.

31

(201

8) LP

ELR-46

422(

CA)

Appearances:

SANUSI GARBA, Esq.For Appellant(s)

AHMADU RUFA’I AMINU, Esq.For Respondent(s)

(201

8) LP

ELR-46

422(

CA)