ALHAJI BOLA YUSUF v. ALH. RAFIU OGUNLEYE & ORS
(2019)LCN/13288(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/IB/1/2013
JUSTICES
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
ALHAJI BOLA YUSUF – Appellant(s)
AND
ALH. RAFIU OGUNLEYE & ORS – Respondent(s)
RATIO
MEANING OF LIMITATION OF ACTION
An action instituted after the expiration of the prescribed period is said to be statute barred. That means an action brought outside the prescribed period offends the provision of the statute and does not give rise to a cause of action. See N. P. A. Plc. v. Lotus Plastics Ltd. (2005) ALL NLR 322, Congress For Progressive Change (CPC) VS. INEC & 41 Ors. (2011) 12 SC (pt. 5) 80. Limitation of action is the principle of law requiring the Plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a Court of law within the time limited by the law, otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. See Bakare v. N. R. C. (2007) 7 SCNJ 131 and Odubeko v. Fowler (1993) 9 SCNJ 185. PER TALBA, J.C.A.
WHETHER OR NOT A LITIGANT’S RIGHT OF ACTION IS REGULATED BY THE CONSTITUTION AND STATUTORY PROVISIONS
It is trite that a litigant’s right of action is regulated by relevant Constitutional and Statutory Provisions. Limitation Laws prescribe the period within which a litigant may exercise his or her right of action. This belief is necessitated by the public policy that there must be an end to litigation. Once the period provided by a Limitation Law within which a litigant may initiate legal proceedings expires, no legal proceedings may be validly instituted. Any action instituted outside the time limited by law is said to be statute barred. see CENTRAL BANK OF NIGERIA & ORS. VS AITE OKOJIE (2015) LPELR 2474 SC; JULIUS BERGER NIGERIA PLC VSE OMOGUI (2001) 6 SC 185; CHIGBU VS. TONIMAS (RIG) LTD (2006) LPELR 846(SC) and EBOIGBE VS. NNPC (1994) SCRJ 71. Where the claim of a Plaintiff is statute barred, the Court is robbed of the requisite jurisdiction to hear and determine such action. PER OJO, J.C.A.
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice A.A. Akinyemi of the High Court of Justice Ogun State, delivered on the 9th day of July, 2012 in suit No: AB/19/2008.
The Appellant as Claimant at the lower Court commenced an action against the 1st to 5th Defendants now Respondents, claiming the following reliefs:
(A) A DECLARATION that the Plaintiff is the rightful owner of the piece or parcel of land lying situate and being at along Lagos – Ibadan Expressway, Asese Village, Ogun State measuring approximately one acre and which is more particularly described and delineated on plan No: OY/800/2007 drawn by S.O. Adekunle (licensed surveyor) and therefore entitle to the certificate of occupancy over and above the said piece or parcel of land.
(B) A DECLARATION that the purported acquisition (if any) of the Plaintiff land situate at along Lagos ? Ibadan Express-Way, Asese Village measuring approximately one acre and which is particularly described and delineated on plan NO:OY/800/2007 drawn by S.O. Adekunle (licensed surveyor).
?(C) A DECLARATION that
1
the issuance of the statutory right of occupancy dated 30th day of September, 1991 and registered as NO: 40 at page 40 in volume 439 at the Land Registry Abeokuta to the 3rd Defendant which purportedly include the Plaintiffs land by 4th Defendant is illegal, null and void and same should be set aside.
(D) AN ORDER nullifying the Deed of Lease registered as No. 59 at page 59 in volume 598 at the lands registry Abeokuta, Ogun State or any other Deed purportedly registered by the Defendants in respect of the Plaintiffs parcel of land.
(E) Five Thousand Naira only being special and general damages for the willful and malicious destruction of Plaintiffs wall fence by the Defendants, their servants, agents, privies and any other person holding through or under them upon the said land.
(F) A PERPETUAL INJUNCTION restraining the Defendants their agents, servants, privies or any other person holding through or claiming thought or under them from further acts of trespass malicious and willful destruction over the said piece or parcel of land.
The 1st and 2nd Respondents filed their statement of defence. And on 8th day of July, 2008 the 3rd ?
2
5th Respondents were joined by an order of the trial Court. In the course of proceedings the 1st and 2nd Respondents filed a notice of Preliminary Objection dated 10th day of May, 2012. It is contained in pages 33 ? 36 and 44 ? 47 of the records of appeal. The Claimant/Appellant filed a written address dated 2nd day of April, 2012. See pages 246 ? 254 of the record of appeal. After hearing arguments on the Preliminary Objection, the learned trial judge delivered a ruling on the 9th day of July, 2012 and stated inter alia in conclusion:
?The Respondent in his pleading is challenging the acquisition. Under the Limitation Law of Ogun Sate, an action of this nature must be filed within 12 years of the accrual of the cause or right of action. From the facts before me the subject land was acquired in 1986 which this suit was filed 22 years later in 2008. In my view the claim is caught by the Limitation Law. This Court lacks jurisdiction to hear it. The case is therefore dismissed in it?s entirely.”
Being aggrieved by the decision of the lower Court, the Appellant lodged an appeal vide a notice of appeal dated the 4th day
3
of October, 2012 and filed on the 5th day of October, 2012. See pages 295 ? 297 of the record of appeal.
A summary of the facts of the case is that the Plaintiff claims to be the owner of a track of land along Lagos – Ibadan Express ? Way, situate at Asese Village, Ogun State measuring approximately one acre. The land originally belongs to Onifade family of Ibafo under the Native Law and Custom of inheritance. The representatives of Onifade family granted the land to Alhaji Tajudeen Jimoh (now deceased), Alhaji Tajudeen Jimoh took possession and sold the land to some other people including the Plaintiff/Appellant. The Plaintiff/Appellants possession and title remained unchallenged on the land until sometimes in November, 2007.
The Defendants/Respondents are contending that the land in dispute was acquired by the Ogun State Government vide legal Notice contained in the official Ogun State Government Gazette No. 47, vol. 11 of 20th November, 1986. The land formed a portion of land leased to Ogun State property and investment corporation (OPIC) by the Ogun State Government.
?
The Appellant who had been on exclusive possession of the land
4
in dispute after purchasing same from Alhaji Jimoh, partitioned the one acre of land into layout and has been carrying out farming activities, planting various crops and erected a perimeter fence round the land as well as surveyed the land without any let or hindrance from the Defendants or anybody whatsoever since year 2005.
Equally the Appellants predecessor-in-title, Alhaji Tajudeen Jimoh (deceased) did not leave possession of the land since he purchased the expanse of land from the original family owners (the Onifade family of Iboto compound Oloke Asese village, Ibafo, Ogun State). He had been cultivating various foods and cash crops and was never once disposed of the land. And neither the Onifade family not Alhaji Tajudeen Jimoh was served with any quite notice of acquisition or revocation of their interest on the land and never collected compensation for acquiring their land.
?
The Appellant became aware of the claims of the 1st and 2nd Respondents sometime in November, 2007, on one of his routine visits to the land, where he met some workmen on his land clearing and demolishing the perimeter fence. Upon inquiry he was informed that they were
5
working for the 1st and 2nd Respondents.
The Appellant was not allowed to visit his land and was chased away by the thugs employed by the 1st and 2nd Respondents. The Appellant reported the matter to the police at Ibafo, where it was revealed to him by the 1st and 2nd Respondents that they had obtained a deed of sub lease from the 3rd and 4th Respondents, registered as No. 59 at page 59 in Volume 598 of 23rd May, 2003.
After the negotiation to resolve the matter failed the Appellant instituted this action on the 15th January, 2008.
The notice of appeal contain three (3) grounds of appeal. The Appellants brief of argument was filed on the 4th day of January, 2018 and it was deemed properly filed on the 9th day of January, 2018. At the hearing of the appeal on 21/2/19, the Appellants counsel Isiaka Abiola Olagunju adopted his brief and he urged the Court to allow the appeal.
The 1st and 2nd Respondents brief of argument was filed on 20/02/2018 and it was deemed properly filed and served on the 30/10/2018. The 1st and 2nd Respondents counsel A. O. Kaka adopted his brief and he urged the Court to dismiss the appeal.
?
The 3rd ? 5th
6
Respondents brief of argument was filed on the 13/03/2018 and it was deemed properly filed and served on the 30/10/2018. The 3rd ? 5th Respondents counsel adopted his brief and he urged the Court to dismiss the appeal.
In the Appellants brief, a sole issue was distilled for the determination of this appeal thus:
Whether the action of the Appellant is statute barred and caught by the Sections 16, 17, 18, 19, 20 and 22 of the Limitation Laws of Ogun State in view of the fact that there is no acquisition known to law in 1986 and when the certificate of occupancy issued was fraudulently procured and subsequent transactions on the land were void.
In their brief of argument, the 1st and 2nd Respondents equally formulated a sole issue for the determination of this appeal thus:
Whether the land in dispute fell within Government Acquisition Appellant caught by the limitation law of Ogun State and the learned trial judge rightly declined jurisdiction to entertain the suit.
Also in their brief of argument, the 3rd ? 5th Respondents formulated a sole issue for the determination of this appeal thus:
?Whether the learned judge of
7
the lower Court was right in his findings that the cause of action in this suit arose in 1986 when the land was acquired and the action was filed in 2008 as such the suit was statute barred therefore the Court lacks jurisdiction.
A closer look at the issues formulated by the parties shows that the issue formulated by the Appellant is not dissimilar with the two issues formulated by the 1st and 2nd Respondents and 3rd to 5th Respondents. I am of the firm view that the grievance of the parties to this appeal will be adequately addressed by giving consideration to the issue formulated by the 3rd ? 5th Respondents, it is more apt and precise. I adopt the issue for determination in this appeal.
The issue is whether the learned judge of the lower Court was right in his findings that the cause of action in this suit arose in 1986 when the land was acquired and the action was filed in 2008 as such the suit was statute barred therefore the Court lacks jurisdiction.
?
The Appellants counsel submitted that by virtue of paragraph 11 of the amended statement of claim the Claimant purchased the land subject matter of this suit from Alhaji Tajudeen Jimoh
8
deceased on the 15th day of April, 2005. And by virtue of paragraphs 3 ? 7 of the amended statement of defence of the 3rd ? 5th Respondents, the landed property subject matter of this suit was acquired by the 4th Respondents as contained in the Ogun State Gazette No. 47 vol. 11 of 20th November, 1986. A period of 19 years had elapsed from the time of acquisition and the time of the purported sale of the land to the Claimant. And a period of 22 years before the presentation of the suit in respect of the matter.
The action as constituted offends Sections 16, 17, 18, 19, 20 and 22 of the limitation law of Ogun State. See pages 33 ? 34 of the record.
The learned trial judge in a ruling delivered on 9th July, 2012 dismissed the case in it?s entirely and he held thus:
?From the facts before me the subject land was acquired in 1986 while the suit was filed 22 years later in 2008. In my view, the claim is caught by the limitation law this Court lacks jurisdiction to hear it. The case is therefore dismissed in it?s entirely.”
See pages 290 ? 294 of the record.
?The Appellant counsel submitted that
9
in determination of whether the Court has jurisdiction to entertain a suit the Court must only look at the Plaintiffs statement of claim. He cited the case of Micheal Egbuziem v. Ambassedoe R. I. Egbuziem (2005) All FWLR (pt 279) 1312 at 1367. He also submitted that the Court cannot look at the statement of defence or consider the defence of the Defendant. The Writ of Summons and Statement of Claim is the only paramount interest of the Court. He cited the case of Samuel Oyetoki v. Nigeria Postal Services (2010) All FWLR (pt 504) 1572 at 1575.
Learned counsel submitted that the learned trial judge erred when he relied on the Official Ogun State Government Gazette No: 47 vol. 11 of 20th November, 1986. And he failed to consider the claims of the Plaintiff learned counsel referred to paragraph 19 of the amended statement of claim at page 53 of the record and paragraph 3 of the reply of the Defendants statement of defence at page 132 of the record.
?
He submitted further that the Appellant became aware of the trespass in November, 2007 and the Writ of Summons dated 14th day of January, 2008 was filed on the 15th day of January, 2008 which is less than a
10
period of (3) three months.
He said mere publication of a notice of revocation in a Gazette be it federal or State is not compliance with the requirement of service of notice under Section 44 of the land Use Act. This is because a publication in the Gazette is a constructive notice to the whole world and not a substitute for personal service by the enabling legislation i.e Sections 28 and 44 of the land Use Act. He cited the case of Ononuju v. AG Anambra State (1998) 11 NWLR (pt 573) 304 and Olatunji v. Military Government of Oyo State (1995) 5 NWLR (pt 79) 586.
Learned counsel submitted that for a revocation of a right of occupancy under the land Use Act to be valid the right to revoke shall be signed by a public officer duly authorized by the Governor, notice of such revocation must be served on the holder personally and prior payment of compensation to the holder personally, which is a sine qua non. He relied on the case of Adole v. Boniface. B. Gwar (2008) 8 SCM 18.
He summited further that in revoking a right of occupancy for public purpose or for any purpose or reason the Governor should accord all those aggrieved or likely to be aggrieved
11
by the revocation fair hearing as enshrined in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria. He cited the case of Ononuju v. AG Anambra State (Supra) and Nigerian Engineering Works Ltd v. Denap Ltd (2001) 18 NWLR (pt 746) 726.
Learned counsel submitted that in this instant case, there was no evidence of service of notice of revocation on the Appellant nor his predecessor in title. The proof of which could only be led in evidence at the trial of the suit. He cited the case of Dr Tosin Ajayi v. Oba John Ojomo & Ors. (2000) 14 NWLR (pt. 688) 447, Sani Abacha v. Samuel David Eke Spiff & Ors. (2009) 3 SCM 14 and Gold mark (Nig.) Ltd v. Ibafon Co Ltd (2012) 10 NWLR (pt. 1308) 219 at 418.
Learned counsel submitted further that the failure of the 4th Respondent to serve adequate notice on the Appellant or his predecessor in title as required by the land Use Act prior to the revocation of the right of occupancy which means the power of revocation was not exercised in compliance with the provisions of the Act. He cited the case of LSDPC v. Banire (1992) 5 NWLR (pt. 243) 620.
Learned counsel submitted that where the
12
acquisition of the land by the acquiring authority is void, the question as to whether or not an action arising therefore is statute barred become non-sequitor. The Jurisdiction of the Court should be examined not when it is invoked but when the cause of action arose. He cited the case of Uwaifo v. AG Bendel State (1982) 7 SC 124.
He submitted that the learned trial judge erred when he failed to consider when the cause of action arose and having also not found that the Plaintiffs action was filed within the period allowed by the limitation law of Ogun State, which state that action in respect of land shall be instituted not later than 12 years from the accrual of the cause of action.
?
Learned counsel for the 1st and 2nd Respondents in his brief of argument he submitted that while it is the general rule that consideration of limitation period is confined to the Statement of Claim, the principle permits of exceptions particularly under the front loading system and having regard to the stage of proceedings when the issue of limitation arises in a proceeding. In this case the pre-trial conference had commenced and issues for determination filed and
13
exchanged between the parties before the consideration of whether this action is caught by statute of limitation. In such a situation the Court can go outside the statement of claim and consider other documents in the case file particularly the acquisition notice.
The learned counsel referred to the ruling of the learned trial judge at pages 292 to 293 of the record and he submitted that this appeal hinged on the interpretation and application of Section 16 (2)(a), 19 (1) and 21 of the limitation law of Ogun State. By the operation of Section 16 (2) (a) and 19 (1) of the limitation law a claim to an acquired land must be made within 12 years failing which the alleged interest in the acquired land becomes extinguished and thereby unenforceable. He relied on the following cases Ajibona v. Kolawole (1996) 10 NWLR (pt. 476) 22 and Texaco Panama Plc. v. Shell Petroleum Dev Corp of Nig. (2000) 4 NWLR (pt. 653) 484.
Learned counsel submitted that in the case of acquisition of land cause of action arises when the land was acquired and not when the Appellant had knowledge of the acquisition. He relied on the case of Ajibona v. Kolawole (Supra), Learned Counsel
14
submitted that the Appellant in this case did not plead fraud or concealment of the acquisition. The Appellant acquired his alleged interest in the land years after the acquisition. As such, he is not the person to be served with the acquisition notice. The Appellant is not the person entitled to receive compensation or notice of acquisition.
The learned counsel for the 3rd to 5th Respondents relying on the case of Savannah v. Pan Atlantic (1987) 1 NWLR (pt. 49) 212 and Dairo v. Union Bank of Nigeria Plc. (2002) 12 SCM (pt. 2) 276, he submitted that the lower Court must examine, go thought and/or inspect all the documents frontloaded by the Claimant/Appellant to determine when the cause of action arose.
?
Learned counsel submitted that by virtue of paragraph 27B and 27C of the amended statement of claim it is affirmed that the cause of action arose in 1991 when a certificate of occupancy was issued by the 4th Defendant to the 3rd Defendant. But the Claimant/Appellant was silent on the year the land in dispute was acquired. Learned Counsel submitted further that it is the general rule that consideration of limitation period is confined to the statement
15
of claim, the principle permits of exceptions particularly under the front loading system and having regard to the stage of proceedings when the issue of limitation arises in a proceeding. In this case pre-trial conference had commenced and issues for determination filed and exchanged between the parties before the consideration of whether this action is caught by statute of limitation. In such a situation the Court can go outside the statement of claim and consider other documents in the case file particularly the acquisition notice.
The learned counsel referred the ruling of the learned trial judge at pages 292 ? 293 of the record of appeal and he submitted that this appeal is hinged on the interpretation and application of Section 6(2) (a), 19(1), 21 of the limitation law of Ogun State. By the operation of Section 6(2) (a) and 19 (1) of the limitation law a claim to an acquired land must be made within Twelve (12) years failing which the alleged interest in the acquired land become extinguished and there by unenforceable. He relied on the case of Ajibona v. Kolawole (1996) 10 NWLR (pt. 476) 22 at 35 ? 36, Texaco Panama Plc. v. Shell
16
Petroleum Dev Corp of Nigeria (2000) 4 NWLR (pt. 653) 484 at 492 and The Administrator of Estate of Abacha v. Diet Spiff & Anor (2003) FWLR (pt. 144) 531 and Davies v. Ajibona (1994) 5 NWLR (pt. 343) 234.
Learned counsel submitted further that the Appellant did not plead fraud or concealment of the acquisition. The Appellant acquired his alleged interest in the land years after the acquisition and he is definitely not the person to be served with acquisition notice. The Appellant is not the original owner of the land and so the original owner of the land are the persons entitled to receive compensation or notice of acquisition the title of the Appellant predecessor in title if any had been extinguished and unenforceable before the sale to the Appellant the trail judge was right to hold that the cause of action arose in 1986 and that the Claimant/Appellant were aware of the acquisition.
Learned counsel further submitted that the cause of action is said to be statute barred when its Claimant who might have had a cause of action loses the right to enforce the cause of action by judicial process because the period of limitation had elapsed. He relied
17
on the following cases: Hassan v. Babangida (2010) LPELR ? SC 170/2009, Egbe v. Adefarasin (1987) 1 NWLR (pt 47) 1 and FRN v. Gold (2007) 10 SCM 32.
Learned counsel also relied on Section 6 (2) of the Limitation Law Cap 61 Laws of Ogun State 2006, which provides:
?No action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him.?
Learned counsel submitted that the cause of action arose in 1986 when the land was acquired and the Appellant knew that a certificate of occupancy was issued by the 4th Defendant to the 3rd Defendant which is over 12 years prescribed by Section 6 (2) of the Limitation Law. He cited the case of Williams v. Williams (2008) 10 NWLR (pt. 1095) 234 at 369 ? 370.
Learned counsel submitted that Section 28 of the land Use Act 1978 authorize the state to acquire land upon the issuance of the appropriate notices, and failure of the 3rd ? 5th Respondents to make use of the acquired land does not render the acquisition void. He submitted that once a cause of action is statute barred it robs the Court of its
18
jurisdiction. He relied on the following cases: Olagunju & Ors. v. Power Holding Company of Nigeria (2011) LPELR SC 140/2004, Osun State Government v. Dalami (Nig.) Ltd (2007) All FWLR (pt. 365) 438, Ibekwe v. Imo State Education Migt Board (2009) All FWLR (pt. 488) 297 and Bakare v. Nigerian Railway Corp (2007) 12 SCM (pt. 2) 217.
Learned Counsel submitted that the trial Court can rely on any document of fact already before it or forming part of its record in the determination of any issue before it. He cited the case of Niger Gate v. Niger State Govt. (2008) All FWLR (pt. 406) 1938 at 1967.
The learned counsel urged the Court to hold that the learned trial judge was right in coming to the conclusion that the suit was statute barred upon his finding and reliance on the document pleaded by the Appellant.
Now having considered the submissions of the learned counsel on both side it is apt to mention that what is before this Court arising from the grounds of appeal is not whether the land in dispute has been properly acquired by Ogun State Government and whether notice of acquisition and revocation was properly served on them by the Government
19
under the Public Lands Acquisition Law. The simple issue is whether the cause of action in this suit arose in 1986 when the land was acquired and the action was filed in 2008 as such the suit was statute barred. It is therefore necessary at this stage to refer to the findings and conclusion of the learned trial judge at pages 292 ? 294 of the records of appeal, it reads:
?Learned Counsel for the Respondent is certainly right in his submission that to determine the issue of jurisdiction, the proper recourse should be to look at the claim of the Claimant namely the Writ of Summons and the Statement of Claim. However there are exceptions to the general rule. The nature of the case or the objection and the stage at which the objection is being raised may sometimes warrant that the Court looks beyond the Claimants claim and look at the defence or where the case has gone through trial at the evidence before the Court. In a case such as the present one where the objection is founded on limitation and both parties have not only pleaded dates in their respective pleadings but have also front loaded relevant documents on the issue, it is my view
20
that it will not serve the interest of justice for the Court to shut its eyes to these relevant materials and simply restrict itself to the Claimants Claim.
Be that as it may, I will commence my examination from the Claimants Claim. In the amended statement of claim, the Respondent Claimed to have bought the land on 15th April 2005. In paragraph 27C of the same amended Statement of Claim, the Respondent acknowledged the fact that a Certificate of Occupancy was issued by the 4th Defendant to the 3rd Defendant on the 30th September, 1991, also in paragraph 27B of the same process the Respondent is praying for nullification of the acquisition of the said land though he did not state the date of the acquisition.
Going strictly by the pleadings of the Respondent the Certificate of Occupancy issued to the 4th Defendant by the 3rd Defendant on the 30th September, 1991 on the subject land was already almost 17 years old when this suit was filed on 15th January, 2008. It also predated or preceded the interest of the Respondent in the land which was obtained in 2005. Based on this alone, it is obvious not only that the right of action of the Respondent is
21
either nebulous or non-existent but that whatever cause or right of action he may have has become statute barred under the Limitation Law. The Certificate of Occupancy of the 3rd Defendant was being challenged 19 years after it was issued in 1991 which was when the cause of action arose. All this is based purely on the Statement of Claim.
Furthermore, the copy of the official Ogun State Government Gazette No. 47 Vol II of 20th November, 1986 filed before this Court is entitled to look at being part of its record confirms that the subject land was acquired in 1986. The Respondent in his pleading is challenging the acquisition under the Limitation Law of Ogun State an action of this nature must be filed within 12 years of the accrual of the cause or right of action. From the facts before me the subject land was acquired in 1986 while the suit was filed 22 later in 2008. In my view, the claim is caught by the Limitation Law. This Court lacks jurisdiction to hear it. The case is therefore dismissed in its entirety.?
?
The crux of this matter lies on the application of the Limitation law of Ogun State where a statute of limitation prescribes a period
22
within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute barred. That means an action brought outside the prescribed period offends the provision of the statute and does not give rise to a cause of action. See N. P. A. Plc. v. Lotus Plastics Ltd. (2005) ALL NLR 322, Congress For Progressive Change (CPC) VS. INEC & 41 Ors. (2011) 12 SC (pt. 5) 80.
Limitation of action is the principle of law requiring the Plaintiff as a matter of obligation to seek prompt remedy for the breach of his right in a Court of law within the time limited by the law, otherwise his right of action or cause of action becomes unenforceable at the expiration of the period allowed for commencing an action by the law. See Bakare v. N. R. C. (2007) 7 SCNJ 131 and Odubeko v. Fowler (1993) 9 SCNJ 185.
The question or issue of whether or not an action is statute barred is one touching on or goes to jurisdiction therefore when a Defendant contends that the action of the Plaintiff is statute barred, he is
23
raising an issue of jurisdiction of the Court concerned on points of law because where an action is found to be statute barred it means that the Court has no jurisdiction to entertain it however meritorious the case may be. The success of that point of law takes away the right of action from the Plaintiff leaving him with an empty unenforceable cause of action. See Owners of MV ?Arabella? v. Nigeria Agricultural Insurance Corporation (2008) 4 – 5 SC (pt. 11) 189, Williams O. Olagunju & Anr. v. P.H.C.N. Plc. (2011) 4 SC (pt. 1) 152 and also Ibrahim v. JSC (1998) 14 NWLR (pt. 584) 1.
The period of limitation in any limitation statute is determined by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the Writ of Summons was filed. If the time on the Writ of Summons is beyond the period allowed by the Limitation Law, the action is statute barred. See Mr. Popoola Elabanjo & Anor. v. Chief (Mrs.) Ganiat Dawodu (2006) 6 SCNJ 204 and Alhaji Jibrin Baba Hassan v. Dr. Muazu Babangida Aliyu & 2 Ors. (2010) 7
24
? 12 SC 21.
In order to determine whether an action is statute barred or not the Court must be involved in the exercise of calculation of years, months and days to the minutest details. It is really an arithmetic exercise which needs a most accurate answer. See Mrs. O. Adekoya v. F.H.A. (2008) 4 SCNJ 151.
In this instant case, the Plaintiff/Appellant stated in paragraph 11 of the Amended Statement of Claim that:
?The Plaintiff avers that vide a receipt dated 15th day of April, 2005, he purchased one acre being part of the afore described land from the said Alhaji Jimoh.?
And in paragraph 21(C) of the Amended Statement of Claim the Plaintiff/Appellant seeks for the following:
?A declaration that the issuance of a Certificate of Statutory Right of Occupancy dated the 30th day of September, 1991 and registered as No. 40 at page 40 in Volume 439 at the Land Registry Abeokuta to the 3rd Defendant which purportedly includes the Plaintiff land by 4th Defendant is illegal null and void and same should be set aside.?
Based on these averments in the Amended Statement of Claim, the learned trial Judge found
25
that from the time the 3rd Defendant issued to the 4th Defendant a Certificate of Occupancy on 30th September, 1991, to the time this Suit was filed on the 15th January, 2008, 17 years had lapsed. It also predated or preceded the interest of the Respondent/Appellant on the land which was purchased in 2005.
The learned trial Judge went further in his findings that the copy of the official Ogun State Government Gazette No 47 Vol. 11 of 20th November, 1986 filed before the lower Court confirms that the subject land was acquired in 1986.
The Respondent/Appellant in his pleadings is challenging the acquisition. Under the Limitation Law of Ogun State, an action of this nature must be filed within 12 years of the accrual of the cause or right of action. This suit was filed in 2008, 22 years after the acquisition.
It is beyond doubt that once there is an acquisition of land the title of the former owner becomes extinguished by the reason of the acquisition. And it is the decision of the apex Court that, land which is under acquisition cannot be validly sold by its original owner. See Yusuf v. Oyetunde (1998) 12 NWLR (pt. 579) 483. The Appellant was not
26
the owner of the land in dispute neither was he in possession of the land in dispute as at the time of acquisition. In Alhaji Arafat Akibu & Ors. v. Azeez & Anor. (2003) SCM 13, the Supreme Court held that knowledge of trespass or adverse possession is not a precondition to a successful plea of the Limitation Law of Lagos State.
In other words, a party who pleads the defence that an action is Statute barred need not satisfy the Court that the Plaintiff had knowledge of the trespass of adverse possession. See Ajibona v. Kolawole (Supra) and Davies Vs. Ajibona (Supra). The Appellant in this instant case purchased the land in dispute in 2005 while the land was acquired in 1986. As at the time the Appellant purchased the land, title in property was in Ogun State Government. The title of the original owner had been extinguished and unenforceable before the sale to the Appellant. There was no valid title which the original owner could pass to the Appellant.In sum, I hold the view that the learned trial Judge was right in his finding that the claim is caught by the Limitation Law. The issue is resolved against the Appellant in favour of the
27
Respondents. The appeal fails and is accordingly dismissed parties to bear their cost.
NONYEREM OKORONKWO, J.C.A.: The fact in this appeal showed that the land in dispute was acquired in 1986 while the action was filed in 2008 – a period of 22 years later. The limitation Law of Ogun State stipulates a period of 12 years during which such action must be brought. At the end of that period, the cause of action becomes extinguished and unenforceable. All previous rights also become extinguished and no longer transferable.
The lead judgment of my learned brother Abubakar Mahmud Talba JCA, has provided clearer details of the law as they appertain to the facts of this case. I have nothing more to add.
FOLASADE AYODEJI OJO, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother, Abubakar Mahmud Talba JCA, I agree with his Lordship that the claim of the Appellant before the lower Court is caught by the Limitation Law of Ogun State and therefore statute barred.
?It is trite that a litigant’s right of action is regulated by relevant Constitutional and Statutory Provisions.
28
Limitation Laws prescribe the period within which a litigant may exercise his or her right of action. This belief is necessitated by the public policy that there must be an end to litigation. Once the period provided by a Limitation Law within which a litigant may initiate legal proceedings expires, no legal proceedings may be validly instituted. Any action instituted outside the time limited by law is said to be statute barred. see CENTRAL BANK OF NIGERIA & ORS. VS AITE OKOJIE (2015) LPELR 2474 SC; JULIUS BERGER NIGERIA PLC VSE OMOGUI (2001) 6 SC 185; CHIGBU VS. TONIMAS (RIG) LTD (2006) LPELR 846(SC) and EBOIGBE VS. NNPC (1994) SCRJ 71. Where the claim of a Plaintiff is statute barred, the Court is robbed of the requisite jurisdiction to hear and determine such action.
?In the instant appeal, the Appellant filed an action before the lower Court seventeen years after the cause of action arose, Details of when the cause of action arose was adequately dealt with in the lead judgment. By the Limitation Laws of Ogun State the action must be filed within twelve years after the cause of action arose. The Appellants suit was thus statute barred. He has lost his
29
right to challenge the acquisition of the disputed land which he sought to do by the suit before the lower Court. In the case of ATTORNEY GENERAL ADAMAWA STATE vs ATTORNEY GENERAL OF THE FEDERATION (2014) 14 NWLR (PT.1428) PG, 515 AT 577 PARAGAPHS C- D, the Supreme Court per Ogunbiyi JSC held thus:
“An action which is Statute barred cannot confer any jurisdiction on a Court, This is obvious because such action has lost its right of initiation as it no longer comes within recognition but is an empty cause of action which cannot confer any right to judicial relief.”
?I agree that this appeal is unmeritorious and should be dismissed. I also dismiss it. I abide by the consequential order as to costs made by my learned brother in the lead judgment.
30
Appearances:
Isiaka Abiola Olagunju with him, L.A. OlagunjuFor Appellant(s)
A.O. Kaka for the 1st & 2nd Respondents.
F.E. Bolarinwa Adebowale (Chief State Counsel, Ogun State Ministry of Justice Abeokuta) for the 3rd-5th Respondents
For Respondent(s)
Appearances
Isiaka Abiola Olagunju with him, L.A. OlagunjuFor Appellant
AND
A.O. Kaka for the 1st & 2nd Respondents.
F.E. Bolarinwa Adebowale (Chief State Counsel, Ogun State Ministry of Justice Abeokuta) for the 3rd-5th RespondentsFor Respondent
