MR. ISAIAH O. KUDAISI & ORS v. THE GOVERNOR OF OGUN STATE & ORS
(2019)LCN/13088(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of April, 2019
CA/IB/180/2014
JUSTICE
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
1. MR. ISAIAH O. KUDAISI
2. MR. SOLOMON OLUSEGUN KUDAISI
3. MR. RAMONI OLAGESIN
(For themselves and on behalf of the Kudaisi family of Laderin Village, Abeokuta)Appellant(s)
AND
1. THE GOVERNOR OF OGUN STATE
2. BUREAU OF LANDS & SURVEY, OGUN STATE
3. THE ATTORNEY GENERAL OF OGUN STATE Respondent(s)
RATIO
WHETHER OR NOT AN ACTION INSTITUTED AFTER THE EXPIRATION OF THE PRESCRIBED PERIOD IS STATUTE BARRED
It is settled principle of law that an action instituted after the expiration of the prescribed period is statute barred. See Osun State Government v. Dalami Nigeria Ltd (2007) All FWLR (pt. 365) 438. It is also settled law that time begins to run for the purpose of Limitation Law from the date the cause of action arises. See Jallico Ltd v. Owoniboys Tech Service Ltd (1995) 4 NWLR (pt. 391) 534. PER TALBA, J.C.A.
WHETHER OR NOT A CAUSE OF ACTION GIVES RISE TO AN ENFORCEABLE CLAIM
A cause of action is the entire set of circumstances giving rise to an enforceable claim. See Adesokan v. Adegorolu (1997) 3 NWLR (pt. 493) 261 and Oduntan v. Akibu (2000) 7 SC (pt. 11) 106. A cause of action is a factual situation which enables one person to obtain a remedy from another in Court in respect of the injury. SDPC v. X.M. Federal Ltd (2006) All FWLR (pt. 339) 822. PER TALBA, J.C.A.
DUTY OF THH COURT WHERE AN ISSUE ARISES AS TO WHETHER OR NOT AN ACTION IS STATUTE BARRED
It is trite law, that when an issue arises as to whether or not an action is statute barred, Courts have been enjoined, when the issues arises as a preliminary point, to restrict themselves to the Writ of Summons and Statement of Claim. Where the issue has been raised by way of a motion supported by affidavit, it will be expected that a counter affidavit will be filed thereby raising conflicting issues in the affidavit. In such a situation it will be necessary to defer the issue to the trial where evidence will be led to resolve the issue. Generally, however, it is the Plaintiff’s pleadings in the Statement of Claim that will be examined in order to determine in limine whether the action is statute barred. See NNPC v. Eshiet (2018) LPELR – 43681 (CA); JFS Investment Ltd v. BRAWAL Line Ltd & Ors (2010) 18 NWLR (pt.1225) 495; Military Administrator (Ekiti State) & ors v. Aladeyelu & Ors (2007) 1 FWLR (pt.403) 7845 and Adekoya v. F.H.A. (2008) 11 NWLR (pt.1099) 539. PER TSAMMANI, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the High Court of Justice Abeokuta Ogun State, delivered on 10/02/2014 upholding a preliminary objection challenging the suit for lack of jurisdiction on the ground that the suit is statute barred. The Claimants now Appellants by a Writ of Summons and a Statement of Claim dated the 14th day of December 2012, claimed against the Defendants now Respondents jointly and severally as follows:
a. A Declaration that our family, the Kudaisi family of Laderin Village behind workers Estate Obafemi/Owode Local Government, Ogun State is entitled to the certificate of occupancy in respect of all the parcel of land being at Isa Laderin Village, behind workers Estate, Obafemi/Owode Local Government Ogun State measuring approximately 7059.569 square meters and marked AREA A in the survey plan prepared by a Registered Surveyor F.A. Ogunbadejo with NO: ASC/OG/026 A&B/2001.
b. A Declaration that any purported alienation or reallocation of the above-mentioned parcel of land and any certificate of occupancy purportedly granted
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in respect of same by the 1st to 3rd Defendants to the 4th Defendant is unconstitutional unlawful, and therefore null and void and of no effect.
c. An order setting aside any certificate of occupancy purportedly granted by the 1st to 3rd Defendants in favour of the 4th Defendant over the parcel of land mentioned above.
d. An order of perpetual injunction restraining the defendants by themselves, their agents servants and or privies from re-allocating or transferring in any manner whatsoever to another person or persons or dealing with in any manner whatsoever inconsistent with the right of our family all that parcel of land being at Isa Laderin Village behind workers estate Obafemi/Owode Local Government Ogun State measuring approximately 7059.569 square meters and marked AREA A in the survey plan prepared by a Registered Surveyor F.A. Ogunbadejo with No: ASC/OG/026/A&B/2001.
e. The sum of N1,000,000:00 being damages against the Defendants jointly and severally for their acts of trespass in respect of the above-mentioned land.
The Respondents on being served with the Writ of Summons containing these claims of the Appellants,
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reacted by filing a preliminary objection on the 7th day of June, 2013, along with their statement of defence, and other front loaded documents.
The Defendants/Respondents sought for an order dismissing the suit for lack of jurisdiction on the grounds that it is statute barred having been instituted 35 years after the land was acquired by Ogun State Government in 1977. And by virtue of statute of limitation Section 6(2) of the Limitation Law, laws of Ogun State 1978.
The preliminary objection was supported by a 13 paragraph Affidavit deposed on 7/6/2013. On the other side in opposing the preliminary objection the Respondents/Appellants also filed a Counter Affidavit of 8 paragraphs. After hearing arguments from the learned counsel on both sides of the preliminary objection, the learned trial Judge A.A. Akinyemi J. in his ruling delivered on 10th day of February, 2014 upheld the preliminary objection by concluding thus:
This suit was filed on the 31st December, 2012, thirty five (35) years after the cause of action arose, and more than twenty three (23) years after the right of action had become extinguished and no longer enforceable by
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judicial process. See Odubeko v. Fowler (1993) NWLR (pt. 308) 637. See also Section 16 of the Limitation Law of Ogun State on the unenforceability of an extinguished right of action consequently, I find and I hold that this suit is caught by the Limitation Law of Ogun State and is therefore no longer maintainable by the Respondents. This court has no jurisdiction to hear it. There is therefore merit in the preliminary objection. The suit is hereby struck out.
Dissatisfied with the Ruling, the Claimants now Appellants have appealed to this Court by their notice of appeal filed on 21/2/14.
The notice of appeal contain six grounds of appeal. It is at pages 75 77 of the records. The Appellants brief was filed on 13/2/15 and it was deemed properly filed and served on 17/4/18. The Respondents brief was filed on 17/4/18. The Appellant Counsel adopted his brief of argument and he urged the Court to allow the appeal. Equally the Respondents counsel adopted his brief of argument and he urged the Court to affirm the ruling of the lower Court.
From the six grounds of appeal the Appellant distilled four (4) issues for determination thus:
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(a) Whether it is not contrary to the established principles of law for the trial Court to have used the date pleaded by the Defendants in their statement of defence (which fact was not admitted by the Claimants in their Statement of Claim or any other pleadings) as basis for determining the date on which cause of action arose.
(b) Whether the finding of the trial Court that the cause of action arose on 6th October, 1977 is not erroneous and perverse.
(c) Whether or not the action of the Appellant is statute barred.
(d) Whether non consideration of the depositions in the Appellants Counter Affidavit is not a breach of the Appellants right to fair hearing.
The learned counsel for the Respondents also identified a sole issue for the determination of the appeal, thus:
Whether in the circumstances of the case, the learned trial Judge was wrong in upholding the preliminary objection that the lower Court lacks jurisdiction to entertain the subject matter on the ground that the action is statute barred because the cause of action arose on the 6th October, 1977.
Upon a careful consideration of all the issues raised by both
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parties, I am of the strong view that the issue formulated by the Respondent is apt for the determination of this appeal. I therefore adopt the sole issue formulated by the Respondent.
Argument On The Issue
The Appellants counsel argued and submitted that in determining when a cause of action arose, the Court can only look at the Writ of Summons and the Statement of Claim. On this principle of law he relied on the Supreme Court decision in Elabanjo v. Dawodu (2006) 15 NWLR (pt. 1001) 132 and Egbe v. Adefarasin (1987) 1 Sc 1. In Egbes case he referred to the dictum of Oputa JSC (of blessed memory) on page 36, he posed a question thus, How does one determine the period of limitation? And he answered thus:
The answer is simple by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date on which the Writ of Summons was filed.
The Appellants counsel submitted that the learned trial Judge admitted this fact when he ruled that:
By a long line of authorities, it is settled that in deciding when
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a cause of action arose in a matter the Court should limit itself to the originating processes of the Claimant namely his Writ of Summons and Statement of Claim.
See page 69 of the records.
He submitted further that the learned trial Judge made a U-turn when he held that: the Supreme Court appears to have expanded the scope in Elabanjos case.
He submitted that the principle of law established in Egbe v. Adefarasin (Supra) has always been followed since then by the Courts, the Apex Court and this Court in a plethora of cases.
He cited the following cases to buttress his argument:
1. JFS INVESTMENT LTD V. BRAWAL LINE LTD & ORS (2010) 44 NSCQR 243 at 298.
2. EMEKA V. OKADIGBO (2012) 51 NSCQR 220.
3. WOHEREM V. EMEREUWA & 4 ORS (2004) ALL FWLR (pt. 221) 1570 at 1581.
4. ELABANJO V. DAWODU (SUPRA)
5. MILITARY ADMINISTRATOR, EKITI STATE V. ALADEYELU (2007) ALL FWLR (pt. 369) 1195 at 1218.
6. WILLIAMS V. WILLIAMS (2008) ALL FWLR (pt. 433) 1245.
7. ADEKOYA V. F.H.A (2008) ALL FWLR (pt. 434) 1452.
8. IBRAHIM V. KATIKAWA (2004) ALL FWLR (pt. 723) 1925.
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In order to amplify his argument the Appellants counsel relied on the case of Savanah Bank v. Pan Atlantic Shipping & Transport Agencies Ltd (1987) 1 SC 198 where the Supreme Court Stated that it is wrong to compute or determine the issue of whether an action is statute barred or not based on the date pleaded in the statement of defence Oputa JSC (of blessed memory) succinctly stated the position thus:
It is not enough to plead a particular date in the statement of defence as the date a cause of action arose because if the date is not admitted by any of the Plaintiff to the Defendant statement of defence it will be impossible to compute the limitation period it being not permissible, indeed it is wrong for a Court to compute time from the time pleaded.
The learned counsel submitted that the position of law stated in Savannah Banks case was restated and followed in the following cases: Odubeko v. Fowler (1993) NWLR (pt. 308) 666; Woherem v. Emereuwa (2004) All FWLR (pt. 221) 1570 at 1581 and Dawodu v. Ajose (2011) All FWLR (pt. 580) 1334.
The learned counsel referred to pages 69 70 of the record and he submitted that the correct
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position of the law based upon the part extracted by the Court from ELABANJO s case and the case of Liverpool & London Steamship Protection & Indemnity Association Ltd v. M. T. Tuma & Sons (2011) LPELR 8979 is that in determining the application bordering on jurisdiction of the Court like in the instant case, the trial Court may consider the affidavit evidence and the documents attached to them (if any) in addition to the Statement of Claim.
The learned counsel submitted that the learned trial Judge was wrong when he relied on the date pleaded by the defence and which date was not admitted to by the Claimant.
The learned counsel submitted further that the learned trial Judge finds in his ruling that the Appellants in paragraph 27 of their Statement of Claim alluded to an acquisition. He said with respect the learned trial Judge read and interpreted the said paragraph out of context. He said it is a well-established principle of interpretation that in order to determine whether there was an admission in a pleading, the whole pleading must be considered and not a paragraph of it. He cited the following cases to buttress his
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argument:Titiloye v. Olupo (1991) 9 10 SCNJ 122 and Adebiyi v. Kolawole (2008) All FWLR 9pt. 428) page 234 at 252.
He also referred to the Statement of Claim at pages 3 5 of the record with emphasis on paragraphs 21 29.
Learned counsel submitted that a compound reading of the Appellants Statement of Claim shows that the case of the Appellants is that they are ignorant of any acquisition. And that they observed strange development sometimes in September, 2010. And that their family members have been in possession of the land since time immemorial. And that their possession has never been disturbed.
He submitted further that there is nowhere in the Statement of Claim wherein the Appellants admitted, pleaded or inferred that the land was ever acquired at any time or that the cause of action arose on the 6th October, 1977. He said illusion is not part of our law of evidence. And for an admission to be worthy of attaching or given any evidential value such admission must be direct, clear and equivocal. He relied on the case of IMB Plc v. Comrade Cycle Co Ltd (1998) 11 NWLR (pt. 574).
Learned counsel submitted that the trial Court
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erred when it failed to consider the Statement of Claim as a whole and when it finds that the cause of action arose on 6th October, 1977. While arguing on the Affidavit in support and in opposition to the preliminary objection, the learned counsel submitted that in paragraphs 5, 6 and 12 of the Affidavit in support of the preliminary objection, the deponent deposed that the land in dispute forms part of the land acquired in 1977 by the Government of Ogun State. But no survey plan is attached to the affidavit. See paragraphs 30 31 of the records.
Learned counsel further submitted that in paragraphs 5 and 7 of the counter affidavit deposed to by the 3rd Appellant; the Appellants denied the fact that the land forms part of the land acquired by Government. And therefore the state of the affidavit evidence before the trial Court is that there is conflict in the affidavit of the parties. In which case the Court must call for oral evidence to resolve the conflict in the affidavit evidence. He said an exception to the general rule is where there is/are document(s) attached to one or both of the affidavits that resolved the conflict.
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He said the Respondent attached two documents to their Affidavit in support to wit Ogun State Government Gazette and a notice of acquisition. He said the question to ask is whether the documents are capable of resolving the conflict in the Affidavit evidence before the trial Court and thus exempt the Court from calling oral evidence.
The learned counsel submitted that the issue needs to be clarified, that the conflict before the trial Court is not whether the Ogun State Government acquired land in 1977 but whether or not the piece of land now being claimed by the Appellants forms part of the parcel of land acquired by the Ogun State Government in 1977.
The learned counsel submitted that the two documents had failed to resolve the conflict having failed to clearly show that the land claimed by the Appellants in this action forms part of the land acquired by the Ogun State Government in 1977. He argued that from the Writ of Summons and the Statement of Claim the piece of land claimed by the Appellants in this action is situated at Obafemi/Owode Local Government while from the two documents attached to the Affidavit the land purportedly acquired by the
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Ogun State Government is at Abeokuta Local Government. And there is no evidence before the trial Court that the Obafemi/Owode Local Government and Abeokuta Local Government are one and the same Local Government. He said it is also not established that the land described by the documents attached is the same as the one claimed by the Appellants. Therefore the learned trial Judge should have called for oral evidence of an expert a surveyor who will assist in determining if the land claimed and the one acquired are one and the same. There was no credible evidence before the trial Court to justify its finding that the cause of action arose on 6th October, 1977. The circumstance of this case presents an instance where the trial Court ought to have called oral evidence. He relied on the case of Ansa v. Etim (2010) ALL FWLR (pt. 541) 1555 at 1556.
On whether or not the action of the Appellant is statute barred the Appellant counsel submitted that the Limitation Law of Ogun State is an extant law and that the effect of Section 6 (2) of the Limitation Law of Ogun State is that a party i.e the Claimant who has hitherto had a right to institute an action for
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recovery of a piece of land against the Defendant will lose such right at the expiration of twelve years from the day upon which such right of action arose. He submitted further that Section 6 (2) of the Limitation Law of Ogun State refers to the date of accrual of right of action and not the date on which the cause of action arose. Therefore in determining whether an action is statute barred or not the relevant date is the date upon which the right of action accrued and not the date on which the cause of action arose. On the difference between the right of action and cause of action he cited the following cases to drive home his point. Egbe v. Adefarasin (Supra) Amope v. Gambari (2013) LPELR 22096 and Adekoya v. F.H.A (2008) 11 NWLR (pt. 1099) 539.
The learned counsel poused a question, thus when did the right of action in this matter accrued. He then referred to Section 7(1), 12(1) and 14 of the Limitation Law of Ogun State. He submitted that the effect of the provisions of the Ogun State Limitation Law is thus:
(a) The right of action will not accrue where there is no adverse possession, dispossession or discontinuance of possession.<br< p=””>
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(b) The possession that will cause accrual of right of action must be actual and physical possession not a formal entry.
Learned counsel submitted further that possession or time of lost of possession is germane to the issue of when the limitation will begin to be running. It is only when there is adverse possession that time can start running. And for possession to be adverse it must be actual, physical and incompatible with the possessory right of the person in favour of whom the right of action accrues. Learned counsel referred to paragraph 26 29 of the Appellants Statement of Claim on page 5 of the record. And he submitted that the effect of the compound reading of those paragraphs is that it is part of the claim of the Appellants that their possessory rights have never been disturbed. Their family has been in actual possession of the land since time immemorial and that they are still in possession of the land, which the Respondent never denied at any time. Learned counsel referred to paragraph 1 of the Respondents statement of defence on page 14 of the records. He said the Defendants/Respondents did not deny paragraphs 26 29 of the
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Statement of Claim in their statement of defence. Therefore the state of the pleadings before the trial Court is that the Appellants possession of the land was never disturbed, the Appellants never lost their possessory right not being dispossessed by anyone. And the Respondents did not plead any date on which the Appellants were disposed or when the State Government or its privy took actual and adverse possession of the land. Learned counsel urged the Court to hold that there is no evidence of adverse possession and hence the right of action cannot accrue let alone being statute barred. He cited the following cases: Ukpanah v. Ayaya (2010) LPELR 8590 and Udechukwu & Anor v. George (2012) LPELR 14247 CA.
The Appellants counsel submitted that the publication of notice and gazetting same is not adverse possession for the purpose of the law. An adverse possession must be actual and physical possession of the land which is inimical to the interest of or possessory right of the Appellants.
On non-consideration and or non-evaluation of the Appellants counter affidavit, the Appellants counsel submitted that the Appellant (then Respondent) adopted their
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counter affidavit dated the 18th June, 2013 at the trial Court but the learned trial Judge failed to consider same. That the learned trial Judge only referred to the written address and no mention was made of the counter affidavit. He said the Appellants were denied fair hearing hence the learned trial Judge failed to consider or refer to their counter affidavit in his ruling. He said if the learned trial Judge had considered or evaluated the counter affidavit he would have appreciated better the position of the Appellants and would have reached a different decision in his ruling. He referred to paragraphs 5 and 7 of the counter affidavit wherein the Appellants deposed that the land in dispute was never acquired by the Government at any point in time to their knowledge and that the Appellants have been and are still in possession of the land.
The Respondents counsel on the other hand argued and submitted that the cause of action in this suit arose in 1977 when the Government of Ogun State acquired a large expanse of land measuring about 299, 619 hectares along Muritala/Kobape Road in the Abeokuta Local Government Area of Ogun State. At the time of the
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acquisition notices were served on the affected land owners and in line with the provisions of the Public Land Acquisition Law, the acquisition notice was published in the Ogun State Gazette No. 28 Vol. 2 of 6th October, 1977. The Gazette was attached as Exhibit A, in the notice of preliminary objection. Exhibited alongside the said Gazette is a notice of acquisition served on the land owners.
The Respondents counsel submitted further that the Court is bound to make its decision based on the evidence before it. He said the Appellants in their counter affidavit in opposition to the notice of preliminary objection they merely denied knowledge of the acquisition and service of the acquisition notice without more. The learned counsel said the lower Court was right in upholding the Respondents notice of preliminary objection based on the evidence before it.
On the definition of a cause of action the learned counsel cited the following cases: Egbe v. Adefarasin (1987) 1 NWLR (pt. 120) and Aliu Bello & Ors. v. AG Oyo State (1986) 2 SC 43. As to when a cause of action will arise, the learned counsel referred to the case of Elabanjo v. Dawodu (2006) 15 NWLR
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(pt.1001) 76 where the Court held that the Court need not only restrict itself to the Claimants Writ of Summons and Statement of Claim rather the Court can also look at other processes filed before it such as the statement of defence and other processes filed. Although it is true that the excursion to unravel the date of accrual of the cause of action must always begin with the Claimants Writ of Summons and Statement of Claim, it does not have to end there especially in situation where the said processes of the Claimant do not provide sufficient information for the Court to determine the issue. In that case the Court has the right to look into other materials before the Court, such as the statement of defence, affidavit evidence and exhibits filed by the Defendant. The learned counsel referred to paragraphs 5, 6, 7 and 8 of the affidavit in support of the notice of preliminary objection wherein the Respondents deposed to the fact that the land was acquired by Ogun State Government in 1977 and notice of acquisition was served on the affected land owners including a publication in the Gazette. See pages 30 31 of the record.
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Learned counsel submitted that the Court was right in holding that the cause of action arose in 1977 and not 2010 when the Claimants became aware of the 4th Defendants presence. Learned counsel referred to Sections 6(2), 7(1) and 16 of the Limitation Law of Ogun State 1978 and he submitted that not only is the Appellants action statute barred, whatever title the Appellants might have had on the land in dispute has also completely extinguished. He relied on the case of Odubeko v. Fowler (1993) 7 NWLR (pt. 308) 637.
He submitted further that from the wording of the Limitation Law knowledge on the part of the Appellants is neither material nor a condition precedent for time to start running. He also relied on the case of Ajibona v. Kolawole (1996) 10 NWLR (pt. 476) 22.
From the submissions of both parties, I have no doubt that what calls for determination in this appeal is whether the Appellants suit is statute barred by virtue of the Limitation Law of Ogun State 1978, and in view of the acquisition of the land in dispute by Ogun State Government in 1977.
The issue as to whether or not the piece of land now being claimed by the Appellants forms part of the
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parcel of land acquired by Ogun State Government in 1977, does not arise at this stage, it is for another day in the cause of full trial. Equally the issue as to whether there was conflicts in the Affidavit which require calling oral evidence to resolve the issue as to whether or not the land in dispute forms part of the land acquired in 1977 by Ogun State Government, does not arise. It is also for another day in the cause of full trial.
It is settled principle of law that an action instituted after the expiration of the prescribed period is statute barred. See Osun State Government v. Dalami Nigeria Ltd (2007) All FWLR (pt. 365) 438.
It is also settled law that time begins to run for the purpose of Limitation Law from the date the cause of action arises. See Jallico Ltd v. Owoniboys Tech Service Ltd (1995) 4 NWLR (pt. 391) 534.
A cause of action is the entire set of circumstances giving rise to an enforceable claim. See Adesokan v. Adegorolu (1997) 3 NWLR (pt. 493) 261 and Oduntan v. Akibu (2000) 7 SC (pt. 11) 106. A cause of action is a factual situation which enables one person to obtain a remedy from another in Court in respect of the injury.
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SDPC v. X.M. Federal Ltd (2006) All FWLR (pt. 339) 822.
Now it is apt to look at what the Limitation Law provides Sections 6(2), 7(1) and 16 of the Limitation Law of Ogun State 1978 provides thus:
6(2) No action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or if it first accrued to some other person through whom he claims to that person.
7(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 thereto been disposed or discontinued his possession the right shall be deemed to have accrued on the date of the dispossession or discontinuance.
16. Subject to the provisions of Section 9 of this law, at the expiration of the period prescribed by this law for any person to bring an action to recover land (including a redemption action) the title of that person to the land shall be extinguished.
On the canons of construction or interpretation of a statute particularly where the wordings of an act is plain and unambiguous is to give it its ordinary and
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plain meaning. See Ehuwa v. Ondo State I.E.C. & Ors (2006) 10 NWLR (pt. 1012) 544 and Yusuf v. Obasanjo (2005) 18 NWLR 119 and in Alale v. Olu (2001) 7 NWLR (pt. 711) 119 at 127 the Court held:
In the interpretation of statutes, Court is obliged to adhere strictly to the interpretation only intended by the legislature even if such strict construction appears punitive to the litigant. Courts do not administer justice in the abstract and the justice administered by the Courts is justice in accordance with the law. It is only by the orderly administration of law and obedience to the rules that the legal justice can be attained.
In this instant case the wordings in Section 7(1) of the Limitation Law of Ogun State 1978 is very clear, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance. And Section 6(2) of the Limitation Law is equally crystal clear. It states that no action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him.
Section 12(1) of the Limitation Law is also relevant, it
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provides thus:
12(1) No right of action to recover land shall be deemed to accrue unless the land is in possession of some persons in whose favour the period of limitation can run (hereafter in this section referred to as Adverse Possession and where under the foregoing provisions of this law any such right of action is deemed to accrue on a certain date and if no person is in adverse possession on that date, the right of action shall not be deemed to accrue and until adverse possession is taken of the land.
The effect of these provisions is that the right of action will not accrue until when there is an adverse possession, dispossession or discontinuance of possession. And the adverse possession must be actual and physical possession. In the application of Limitation Law or statute of limitation time begins to run when there is an existence a person who can sue and another person who can be sued and when all the facts have happened, which are material to be proved to entitle the plaintiff to succeed. See Jallico Ltd v. Owoniboys Tech Services Ltd (Supra).
In the determination of the period of limitation the Court must have resort to
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the Writ of Summons and the Statement of Claim which must contain averments as to when the wrong giving rise to the plaintiffs cause of action was committed and containing the date the writ was taken out. See Egbe v. Adefarasin (supra).
Time of accrual of cause of action is an issue of fact which must be proved and not just pleaded. See Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping & Transport Agencies Ltd (supra) and Odubeko v. Fowler (supra).
In paragraph 21 of the Statement of Claim, the Appellants as claimants aver that sometime in September 2010, the Kudaisi family noticed strange developments on the land in dispute whereby some unknown persons were visiting the land, depositing sand and some other building materials on same and upon being challenged they claim to be working for the 4th defendant.
And in paragraph 28 of the Statement of Claim the Appellants as claimants aver that the Kudaisi family is still in actual possession of the land with one Engr. Femi Kudaisi a member of the family farming on it presently.
There is no denial of this averment in the defendant/respondent statement of defence.
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From the Statement of Claim it shows that adverse possession of the land commenced in September 2010 and therefore the right of action to recover the land accrued in September 2010 and not on the 6th October, 1977. In the case of Udechukwu & Anor v. George (supra) the Court of Appeal held that:
It is significant to determine the date the possession or adverse possession of the premises commenced as right of action to recover land only accrues on the day adverse possession of the premises commenced as right of action to recover land only accrues on the day adverse possession of land commences.
Equally in the case of Ukpanah v. Ayaya (2010) LPELR-8590 (CA) the Court of Appeal held that there is no right of action to recover land when the land is not taken in adverse possession by any one.
Section 14 of the Limitation Law gives further clarification as to what constitute possession it provides:
14. For the purpose of this law, no person shall be deemed to have been in possession of any land by reason only of having made a formal entry thereon and no continual or other claim upon or near any land shall preserve any right of action to recover the land.
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Now the wisdom behind this principle of law is that even where there is an acquisition of land by the Government, the owner of the land so acquired cannot have a right of action so long as he is in actual possession of the land. He can only have a right of action when there is adverse possession.
In this instant case the Ogun State Government acquired the land in dispute on the 6th October 1977 but there was no adverse possession until in September 2010. The right of action commenced in September 2010 in line with Section 7 (1) of the Limitation Law of Ogun State 1978. The learned trial Judge was wrong in upholding the preliminary objection that the lower Court lacks jurisdiction to entertain the suit on the ground that the claim/action is statute barred, because the cause of action arose on the 6th October, 1977.
The issue is resolved in favour of the Appellant.
The appeal succeeds. The ruling of the lower Court delivered on 10/02/2014 in Suit No. AB/359/2012 is hereby set aside.
The case is remitted back to the Honourable Chief Judge of Ogun State for trial de novo before another Judge.
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HARUNA SIMON TSAMMANI, J.C.A.: My learned brother A. M. Talba gave me the benefit of reading in advance the judgment just delivered. The lone issue in this appeal has been adequately determined by my learned brother; and I agree with his reasoning and conclusion thereon.
It is trite law, that when an issue arises as to whether or not an action is statute barred, Courts have been enjoined, when the issues arises as a preliminary point, to restrict themselves to the Writ of Summons and Statement of Claim. Where the issue has been raised by way of a motion supported by affidavit, it will be expected that a counter affidavit will be filed thereby raising conflicting issues in the affidavit. In such a situation it will be necessary to defer the issue to the trial where evidence will be led to resolve the issue. Generally, however, it is the Plaintiff’s pleadings in the Statement of Claim that will be examined in order to determine in limine whether the action is statute barred. See NNPC v. Eshiet (2018) LPELR – 43681 (CA); JFS Investment Ltd v. BRAWAL Line Ltd & Ors (2010) 18 NWLR (pt.1225) 495; Military Administrator (Ekiti State) & ors v. Aladeyelu & Ors
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(2007) 1 FWLR (pt.403) 7845 and Adekoya v. F.H.A. (2008) 11 NWLR (pt.1099) 539.
In the instant case, the pleadings of the Plaintiffs/Appellants disclose unequivocally that the adverse possession of the Appellants arose in September, 2010. The learned trial Judge therefore erred in relying on the pleadings of the Defendants/Respondents to hold that the cause of action arose in 1979.
I therefore agree with my learned brother that the Court below, erred when it upheld the Preliminary Objection of the Respondents. This appeal therefore has merit. It is accordingly allowed. The Ruling of the Ogun State High Court delivered on the 10th day of February, 2014 in Suit No: AB/359/12 is hereby set aside. I abide by the consequential order made by my learned brother.
NONYEREM OKORONKWO, J.C.A.: Section 12(1) of the Limitation Law of Ogun State 1978 is clear on when the right of action is deemed to accrue. It is when the land has come into the possession of the person in whose favour the period of limitation can run. In other words, it is when there is an adverse possession by virtue at which the claimant has a
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cause of action. This period may not correspond with the legal act of acquisition under some enactment.
In this respect, I agree with the exposition giving in the lead judgment of my brother Abubakar Mahmud Talba, JCA that the time begins to run for purposes of the limitation of action from the date the cause of action accrued being the date the land owner was dispossessed and not the date of acquisition as in this case.
I agree with the final order made in the lead judgment.
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Appearances:
S.T. AlausaFor Appellant(s)
O.O Adejumo, Esq.For Respondent(s)
>
Appearances
S.T. AlausaFor Appellant
AND
O.O Adejumo, Esq.For Respondent
