The Court of Appeal, Enugu Judicial Division, has delivered a judgment of considerable significance for the law of limitation, adverse possession and the relationship between a main claim and a counter-claim, holding that where a suit is dismissed as statute-barred, the court is equally divested of jurisdiction to entertain and grant a counter-claim predicated upon it.
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Judgment was delivered on Tuesday, July 21, 2026, in Appeal No. CA/E/215/2023 by Hon. Justice Zainab Bage Abubakar, JCA, with Hon. Justice Joseph Eyo Ekanem, JCA, and Hon. Justice Nehizena Idemudia Afolabi, JCA, concurring.
The Parties and the Properties
The Appellants, Obiora Ude, Chukwu Ezoka Ude, Ejiofor Ude, David Ude and Chukwudi Ude, sued for themselves and the entire family of the late Gabriel I. Ude of Nawfia, Njikoka LGA, Anambra State.
The Respondents were Anene Okonkwo, suing for himself and the entire Ben Okonkwo family; Michael Ikechukwu Anyafuna, suing for himself and the family of the late Zachius Aniafuna of Abakaliki, Ebonyi State; and the Probate Registrar of the High Court of Justice, Ebonyi State.
The properties in dispute were No. 8 Ogoja Road, No. 8 New Market Road (also known as No. 7 Old Market Road), No. 4 Owerri Street, Abakaliki, and an empty plot at Inyimaju layout.
The Facts
The Appellants claimed the properties were acquired and developed by their father, Gabriel I. Ude, before his death in 1960, and that he lived at No. 8 Ogoja Road with his entire family, including his first wife, the late Eunice Ude, who was the maternal grandmother of the 1st Respondent.
After his death in 1960, Eunice Ude took over the management of the properties as her own, to the absolute exclusion of the deceased’s seven other wives and their children, including the Appellants, who were young at the time.
The Appellants pleaded that when they became old enough to challenge the exclusive possession, they could not do so because Eunice Ude had hidden the title documents from them; that after her death in 1984 her eldest daughter continued to conceal the documents; and that it was only in 2003, when the documents were handed over to them, that they discovered what they described as fraudulent alterations to the title documents.
They filed a suit in 2003 which they later withdrew, and instituted the present action in 2005.
The trial court, the High Court of Ebonyi State, dismissed the suit on November 15, 2022, on the ground that it was statute-barred, but granted the 1st Respondent’s counter-claim. The Appellants appealed.
ISSUE ONE: WAS THE SUIT STATUTE-BARRED?
When the Court May Look Beyond the Originating Process
The court first restated the general rule that in determining whether an action is statute-barred, the court looks at the originating process and the statement of claim, and has no recourse to the statement of defence or to evidence, citing Abdulazeed v. State (2023) 14 NWLR (Pt. 1904) 293.
However, it identified the exception that applied here, relying on Karshi v. Gwagwa (2022) 9 NWLR (Pt. 1834) 139:
“Where the objection that the suit is statute barred is considered and determined after the conclusion of evidence by both sides, then the court cannot ignore the evidence before it and pretend it does not exist and determine the objection only on the basis of the originating processes. At that stage, all the processes and evidence before the court must be considered, especially where the objection is determined as part of or along with the final judgment on the merit.”
The court therefore held that the pleadings and evidence of the 1st Respondent were properly reckoned with.
1960, Not 2003
The decisive finding was on when the cause of action accrued.
“In my view, as found by the trial court, the Appellants’ cause of action arose in 1960 after the death of Gabriel Ude (their father) and late Eunice Ude started exercising exclusive and adverse possession over the properties, to the knowledge of the Appellants’ mothers, that is the seven co-wives of their late father, and did nothing since that 1960, even after the demise of Eunice Ude in 1984 and the 1st Respondent started managing the property, until 2003,” Justice Abubakar, JCA, held.
“Undoubtedly, the grouse or complaint of the Appellants which led to the institution of this suit at the trial court is the exclusive adverse possession of their late father’s listed properties by late Eunice Ude and those who claimed through her since the demise of their father in 1960.”
“There Was No Misrepresentation Regarding the Exclusive and Adverse Possession”
The court rejected the fraud and concealment arguments as inapplicable.
“The possession of the properties in dispute by late Eunice Ude and those who claimed through her, including the 1st Appellant, was not hidden. There was no misrepresentation regarding the exclusive and adverse possession and influence over the properties,” the court held.
“The co-wives and the Plaintiffs who came of age before 1984 were aware of acts of possession over the properties by the late Eunice Ude and those who claimed through her, and were also aware that they were making adverse claims over the properties, yet they did nothing to challenge or stop them in court until 2003.”
Critically: “Fraud, concealment, misrepresentation do not apply in the instant case, as what the Appellants are challenging is the exclusive adverse possession by Eunice Ude and those claiming through her of the properties in dispute which was to their knowledge, and not the alleged falsification of documents which they were not even aware of until they were allegedly made available to them in 2003.”
Section 3 of the Limitation Law
The court applied Section 3 of the Limitation Law, Cap 102, Laws of Ebonyi State 2009: “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 up to some person through whom he claims, to that person.”
Citing Buremoh v. Akande (2017) 7 NWLR (Pt. 1563) 74, in which the Supreme Court interpreted the identical Kwara State provision, the court noted: “Being clear and unambiguous, the section does not brook of any subtle, clever or deviant interpretation. It is an undoubted fetter to a court’s assumption and exercise of jurisdiction.”
The court found from the documentary evidence, Exhibits R to U, that the acts of adverse possession “had by the year 1970 exceeded 10 years before the institution of this suit by the Appellants in 2005.”
“They Stood By and Failed to Challenge”
The court then drew on the equitable dimension, invoking Ayorinde v. Kuforiji (2022) 22 NWLR (Pt. 1843) 43:
“Where a person has expended money on land of another in the expectation, induced and encouraged by the owner of the land, that he would be allowed to remain in occupation, an equity is created, such that the court would protect his occupation.”
The court found that the Appellants stood by while Eunice Ude sold part of the land to the father of the 2nd Appellant, who built a house on it in which the 2nd Appellant still lives with his family; and while the 1st Appellant expended money renovating No. 8 New Market Road, where he lives to date.
“Their adverse and exclusive possession of the properties in question has ripened to ownership, since the Appellants who assert or claim ownership of the properties were all the time material aware of the adverse possession of the Respondents but never took any step to quit them from the properties or demand payment of any sort from them of rent,” the court held, citing Akinbade v. Babatunde (2018) 7 NWLR (Pt. 1618) 366.
The issue was resolved against the Appellants.
Issue Two Not Considered
“Having determined Issue No. 1 in the affirmative, this court is precluded from considering issue No. 2, because it has no jurisdiction to do so in view of the fact that the action of the Appellants is statute barred, which means the right to institute same ab initio was extinguished by operation of law,” the court held.
ISSUE THREE: THE COUNTER-CLAIM
The General Rule and Its Exception
The court restated the settled position that a main claim and a counter-claim are separate and distinct actions tied together for convenience and to avoid multiplicity of suits, and that a counter-claim must be considered separately with a separate judgment.
But it then identified the exception, relying on Fidelity Bank Plc v. Sagecom Concepts Ltd (2025) 9 NWLR (Pt. 1994) 435, per Jauro, JSC:
“Although it is indisputable that a counter claim has a life of its own and the decision therein is not dependent on the decision in the main claim, these principles are however not without exceptions. For instance, where a counter claim is predicated on a claim that was incompetent ab initio by reason of the fact that it was not commenced by due process of law, the incompetence of the main claim will rub off on the counter claim which will itself be rendered incompetent.”
The Application
“The breach of substantive law renders an action not having been properly instituted by due process of law, a nullity ab initio,” the court held, citing Braithwaite v. Skye Bank Plc (2013) 5 NWLR (Pt. 1346) 1.
“Certainly the suit of the Appellants upon which the counter claim of the 1st Respondent was rested or predicated was incompetent, having not been commenced by due process of law. The incompetence of the said suit or main claim of the Appellants has rubbed off on the counter claim of the 1st Respondent and rendered it incompetent as well, which divested the trial court of jurisdiction to entertain same,” Justice Abubakar, JCA, held.
“Since the trial court lacked jurisdiction to entertain the main claim, it also lacked jurisdiction to entertain the counter claim since it cannot stand on its own. Furthermore, since the trial court had no jurisdiction to entertain the counter claim, the question of whether it properly evaluated the counter claim does not arise.”
The issue was resolved in favour of the Appellants.
“PROCEDURAL BOOTSTRAPPING”
In a concurring judgment that has attracted particular attention, Justice Nehizena Idemudia Afolabi, JCA, added what he described as a few words “to underscore the importance of the principles of jurisdictional competence applied herein.”
“The core of our judicial authority is rooted in the procedural competence of the proceedings. The competence of an originating process serves as the bedrock upon which all subsequent proceedings, including counter-claims, must rest. It is a well-settled principle of our law that jurisdiction is the life-blood of a trial; where the foundation is removed, as is the case here, the entire proceeding is rendered incompetent, losing its legal character,” he held.
“A party cannot claim that a suit is ‘alive’ enough to support a counter-claim for title, while simultaneously acknowledging that the court lacks the jurisdiction to entertain the process itself. By seeking to uphold the counter-claim, the 1st Respondent is attempting to extract a right from a proceeding that the law has already rendered legally barren,” Justice Afolabi held.
“Jurisdiction is either present or it is not; it cannot be partitioned to suit the convenience of a party. To permit the survival of a counter-claim within a suit that the law has deemed unenforceable would invite a dangerous practice of ‘procedural bootstrapping.’ If a court lacks jurisdiction to entertain a suit because it is statute barred, it then follows logically that it lacks the jurisdiction to adjudicate any ancillary claims derived from the same originating process,” he stated.
“The Limitation Law is not merely a technicality; it is a substantive statutory policy designed to ensure the repose of title and the finality of litigation. By failing to initiate their action within the prescribed period, the Appellants have effectively foreclosed the court’s power to intervene. It would be a contradiction in terms for this Court to dismiss the main suit for want of jurisdiction while simultaneously asserting jurisdiction to grant reliefs on a counter-claim arising from that same voidable foundation,” Justice Afolabi concluded.
THE ORDERS
“Having resolved issue No. 1 in favour of the Respondent while issue No. 3 in favour of the Appellants, it means this appeal succeeds only in part, as it affects the judgment of the trial court on the counter claim of the 1st Respondent,” Justice Abubakar, JCA, held.
“The judgment of the trial court on the counter claim of the 1st Respondent is hereby set aside, having been granted by the trial court without jurisdiction, while the decision of the trial court that the suit of the Appellants is statute barred is affirmed.”
Parties were ordered to bear their own costs.
Justice Joseph Eyo Ekanem, JCA, concurred: “For the reasons stated therein, I agree that the appeal succeeds in part and I allow it in part as specified in the leading judgment. I abide by the consequential orders.”
WHAT THE JUDGMENT MEANS
The decision leaves both sides without the declaratory relief they sought.
The Appellants lose their claim to the four Abakaliki properties, the court having held that their cause of action accrued on their father’s death in 1960 and expired ten years later, and that the possession of Eunice Ude and those claiming through her has ripened into ownership.
The 1st Respondent loses the counter-claim judgment that would have formally declared his title, because the court that granted it had no jurisdiction to do so once the main claim was found statute-barred.
For practitioners, the judgment carries three practical lessons. First, that in cases of open and known adverse possession, time runs from the moment the adverse possession begins, not from the later discovery of documents alleged to have been altered. Second, that concealment of title documents does not postpone the running of time where the substance of the complaint is adverse possession that was always visible. And third, and most significantly, that a defendant who counter-claims in a suit which may be statute-barred takes a substantial risk: success on the limitation objection may destroy the counter-claim along with the claim, leaving the counter-claimant to commence a fresh, independent action.
Appearances
Mohammed Danjuma, Esq., appeared for the Appellants. C.A. Okeke, with Nwigwe, Esq., appeared for the 1st Respondent. E.E. Anosike, Esq., appeared for the 2nd Respondent.
Judgment was delivered on July 21, 2026, in Appeal No. CA/E/215/2023 by the Court of Appeal, Enugu Judicial Division.
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