CASE SUMMARY OF:
Rosemary Nkese Nakanda v. Lady Theresa Ekei Nya & Ors (2019) - CA
by NSA PaulPipAr
Rosemary Nkese Nakanda
Lady Theresa Ekei Nya & Ors
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Mojeed Adekunle Owoade, J.C.A.
* FOR THE APPELLANT
- Ekpenyong Ndiyo
* FOR THE RESPONDENT
- Mrs. E. O. Onah
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FACT (as relating to the issues)
The case borders on who is the administratrix to the property at 8 Shanahan Street, Calabar, Calabar South Local Government Area of Cross River State.
The Respondent (as claimant) in the trial court sued for a declaration that the property is part of properties she is to administer, while the Appellant (as defendant) disagreed stating that the property belongs to the both (parties involved in this suit) of them.
The trial judge gave judgement in favour of the Respondent, hence, this further appeal by the Appellant.
1. Whether the suit is not statute barred?
2. Whether the judgment is not against the weight of evidence?
HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. By the above and the Respondent’s counsel concession that the cause of action in the suit arose in 1987, it is settled that the Respondent’s claimant’s action indeed arose in the year 1987. It is of course not in dispute that the Respondent claimant instituted this action in year 2013, which truly is 26 years after the cause of action arose... The instant suit which was instituted in year 2013 when the cause of action arose in year 1987 is caught by the Limitation Law of Cross River State and the trial Court lacked the necessary vires/jurisdiction to have entertained the suit.
ii. It is trite that where a statute of Limitation as in the instant case prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Thus, an action instituted after the expiration of the prescribed period is said to be statute – barred.
Having resolved a threshold issue of jurisdiction in favour of the Appellant, I do not find it any longer necessary to consider any other issue(s) in this appeal. This appeal is meritorious and it is allowed.
Section 1 of the Limitation Law of Cross River State 2004 provides as follows: "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 first accrued to some person through whom he claims to that person".
AJAYI V. MILITARY ADMINISTRATOR OF ONDO STATE  5 NWLR [Pt. 504] 237 @ 254, that: The issue of whether or not an action has been statute barred is one touching on jurisdiction of Court for once an action has been found to be statute-barred, although a plaintiff may still have his cause of action, that is legal right to prosecute that action has been taken away by statute. In that circumstance, no Court has the jurisdiction to entertain the action.
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Time begins to run for the purposes of the Limitation Law from the date the cause of action accrues. - Owoade, JCA. Nakanda v. Nya (2019)
The end of this brief.
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