ALHAJI LASISI OLADIPO & ORS v. GBOLAHAN S. IFALEYE
(2013)LCN/6598(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of December, 2013
CA/I/250/2010
RATIO
JURISDICTION: GUIDING PRINCIPLES TO DETERMINE WHETHER OR NOT AN ACTION IS STATUTE BARRED
It is settled law that an issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an appeal by the highest court of the land. See Adegoke vs. Adibi (1992) 5 NWLR part 242 p.410. Since the lower court did not consider the issue of jurisdiction to hear the matter before it and since the issue has been raised in this court, I am satisfied on the strength of judicial authorities that this court can deal with the issue. The power of the court to deal with it is also conferred by Section 15 of the Court of Appeal Act, 2004.
After studying the authorities on the subject, I have come to the view that there are two guiding principles to determining whether or not an action is statute barred. The first is that the court will look at the Writ of Summons and the Statement of Claim and compare the dates therein as to when the cause of action accrued and when the Writ of Summons was filed. The comparison of the two will show the time that has elapsed. Once the time that has elapsed is beyond the statutory limit set, the action is statute barred. If not, the court can hear the case as the action has not been caught up by the statutory limit. The second guiding principle is where the defendant states when the cause of action accrued. Where the defendant states such a date, it cannot be relied upon by the court except where the claimant in a Reply, accepts it. In this instance, the date stated by the defendant as the date in which the cause of action accrued cannot be said to be definitive as the claimant did not accept the date in his Reply.
My deductions above are based on settled legal authorities. On the first principle see the case of Military Administrator, Ekiti State and Ors. vs. Aladeyelu (2007) 14 NWLR part 1056 p.619 where the Supreme Court per Onnoghen JSC stated thus:
“In the case of Woheren vs. Emereuwa (2004) 6-7 SC 161 (2004) 13 NWLR Part 890 P. 398 at 417, this court decided that for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the Writ of Summons and the Statement of Claim only. I will however add, where one has been filed. It is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed thereby giving rise to the plaintiffs cause of action. When that ascertained date is compared with the date the Writ of Summons or originating process was filed in court, it can be determined whether the action was instituted within the period allowed by law or outside it. When it is found that the action was instituted within the Period allowed by law, the action is said to be competent and the court has the jurisdiction to entertain same but where it is found to have been instituted outside the period allowed by law, the action is said to be statute barred and consequently, the court is without jurisdiction to entertain same”.
See also Williams vs. Williams (2008) 10 NWLR part 1095 p.364.
On the second principle, see the case of Odubeko vs. Fowler (1993) NWLR part 308 p.637 where the Supreme court per Onu JSC stated thus:
“It is also an established principle found in Savannah Bank vs. Pan Atlantic case (supra) that it is not enough to plead a particular date in the Statement of Defence as the date the cause of action arose because if the date is not admitted by any reply of the plaintiff to the defendant’s Statement of Defence, it will be impossible to compute the limitation period it being impossible, indeed wrong for a court to compute time from the date pleaded”. PER OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
ALHAJI LASISI OLADIPO & ORS Appellant(s)
AND
GBOLAHAN S. IFALEYE Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over the ruling of the High Court of Ogun State which refused an application to consider in limine whether the action before it was statute barred.
The Defendants in the lower court (the Appellants in this appeal) had in their Statement of Defence pleaded that the Claimant’s action – a land matter – is statute barred. Having so pleaded, the Appellants filed a Motion on Notice before the lower court which raised the question of the matter being statute barred as a point of law. The trial court heard the Motion on Notice and delivered its ruling on 13/8/2009. In the said ruling, the trial court decided that Order 22 rule 2 of the Ogun State High Court (Civil Procedure) Rules 2008 allows for points of law raised on the pleadings to be disposed of at or after the trial of a case and that there is no compulsion that a Judge must hear such point of law before trial. The court also decided that justice will be better served by allowing the case to proceed to trial.
Dissatisfied with the ruling, the Appellants on 27/5/2010, filed a Notice of Appeal. In it they faulted the ruling of the lower court on two grounds.
The parties filed their Briefs of Argument. The relevant Briefs are the Appellants Amended Brief of Argument dated and filed on 12/11/12 while that of the Respondent is the Respondent’s Amended Brief of Argument dated 11/3/13, filed on 19/3/13 but deemed as properly filed and served on 6/11/2013.
The appeal was heard also on 6/11/2013. The Appellants’ case was argued by Taiwo Ajiboye, while Peter Ilegogie who appeared with Leke Benwaze argued the case of the Respondent.
The Appellants identified two issues for determination in this appeal, viz –
1. Whether the trial court was right in refusing to determine the point of law raised by the Appellants to wit, that the Claimant/Respondent’s action is statute barred by force of section 16 (2) of the Limitation Law of Ogun State and whether the Claimant/Respondent’s action is statute barred. (Ground 1 of the Notice of Appeal).
2. Whether the trial court erred in law when it found that a conflict exists as to whether the subject land forms part of the Ogun State Government acquisition in 1994 and that the only way to resolve it was by having evidence thereon, notwithstanding credible and uncontradicted documentary evidence presented before it by the Appellants to the contrary. (Ground 2 of the Notice of Appeal).
The Respondent’s Counsel was in complete agreement with the two identified issues and therefore adopted them without any modification.
In arguing Issue 1, Appellants’ Counsel sub-divided the issue into two as follows:
(a) Whether the trial court was right in refusing to determine the point of law raised by the Appellants, to wit, that the Respondent’s action is statute barred by force of Section 16(2) of the Limitation Law of Ogun State.
(b) Whether the Respondent’s action is statute barred.
On Issue 1(a), Appellants’ Counsel referred us to paragraphs 5 and 8 of the Statement of Defence at page 14 of the Record of Appeal and submitted that rather than deal with the issue of jurisdiction raised in the application before it, the trial court evaded the issue and instead interpreted Order 22 rule 2 of the Ogun State High Court (Civil Procedure) Rules 2008 in a skewed manner and without any support of case law.
It was submitted that the Supreme Court in the case of Elabanjo vs. Dawodu (2006) ALL FWLR part 328 p.604 at 649 considered the provision of Order 23 of the High Court of Lagos State (Civil Procedure) Rules, 1994 which is in pari materia with Order 22 of the High Court of Ogun State (Civil Procedure) Rules 2008 and held that the apparent conflict between Order 23 of the High Court of Lagos State (Civil Procedure) Rules (1994) and Section 16 of the Limitation Law Cap. 118 Laws of Lagos State must be resolved in favour of the Limitation Law which has overriding effect. Learned Counsel submitted that the trial court had no discretion to defer the determination of the issue of the challenge of its jurisdiction. He contended that it is legally untenable that a point of law challenging the jurisdiction of the court can be deferred to trial, adding that once there is a challenge to a court’s jurisdiction, it must be determined by the court. He cited the case of Alfa vs. Zakari (2010) ALL FWLR part 515 p.283. It was contended that when as issue of limitation of time to institute an action is raised, it becomes a preliminary and fundamental issue that touches both the competence of the action and the court hearing it.
With regard to the second sub-issue, Learned Counsel contended that the trial court in its ruling did not determine the sole issues presented to it vide the Motion on Notice dated 9/4/2009. We were therefore urged to consider the issue in exercise of the powers of the Court of Appeal under Section 15 of the Court of Appeal Act and determine it. We were referred to Adebayo vs. Shogo (2005) ALL FWLR part 253 p.739; Azbek (Nig.) Ltd. vs. ALRD. C.L. (2003) FWLR part 180 p. 1441 at 1443; Moses vs. State (2003) FWLR part 141 P.1969 at 1977.
Learned Counsel referred to the pleadings of the parties before the lower court and contended that the land in dispute was compulsorily acquired by the Ogun State Government for public purpose through a Notice of Acquisition published in an official Gazette of Ogun State dated 24/2/94 and that the respondent’s action was instituted on 4/3/2009, a period of 15 years and 8 days from the date of the publication of the acquisition, which date, he submitted is the date that the Cause of action arose.
Learned Counsel noted that the Respondent in paragraph 2 of his Reply dated 8/5/2009 claimed that the land, the subject matter of this action was not within the area of land acquired by the Ogun State Government in 1994. It was submitted strenuously that the cause of action accrued on 24/2/94 when the Ogun State Government compulsorily acquired the land. The Respondent’s position that the land did not fall within the land acquired by the Ogun State Government was put down as an indirect way of the Respondent saying that he had no knowledge of the acquisition. It was submitted that whether the Respondent had knowledge of when the cause of action arose or not is not a consideration in an action that is statute barred. The cases of Ethiopian Airlines vs. Afribank Plc. (2007) ALL FWLR part 373 p.185; Ajibona vs. Kolawole (1996) 10 NWLR part 476 p.221, Abiku vs. Azeez (2003) FWLR part 149 p.1490 were cited in support. In any case, the Respondent as a member of the public had a constructive notice of the official Gazette of Ogun State Government on the acquisition, he argued.
Learned Counsel maintained that the Ogun State Government acquired the land on 24/2/94 and that the beacons, pillars, points and marks planted in the land are judicially accepted as acts of possession. He referred to Aideyan vs. Bendel State (1989) 4 NWLR part 118 p.646. He urged us to strike out the Respondent’s action for being statute barred.
Following the lead of the Appellant’s Counsel, the Respondent’s Counsel also took a bifocal view of issue 1. With regard to issue 1(a) which is whether the trial court was right in refusing to determine the point of law raised by the Appellants that the Respondent’s action is statute barred, Respondent’s Counsel argued that the 5th Appellant admitted that he was issued with a certificate of occupancy by the Ogun State Government on 28/7/2008 in respect of part of the land claimed by the Respondent, thereby supporting the position of the Respondent in his pleading that the trespass by the 1st Appellant on the land began in 2009. It was submitted that the root of title of the 5th Appellant is traceable to the 1st – 4th Appellants and not the Ogun State Government that is claimed to have acquired the land for overriding public purpose.
It was contended that it does not lie in the mouth of the Appellants to claim that the right of the Appellants had been extinguished or statute barred by reason of a purported acquisition of the land by the Ogun State Government as that would amount to raising a claim that the land belonged to a third party that was not in court, that is, jus tertii. He contended that the lower court was right to have concluded that the case be heard on the merits.
Learned Counsel referred to Order 22 rule 2 of the Ogun State High Court (Civil Procedure) Rules, 2008 and submitted that the lower court did not breach any statutory provision by ordering that the suit be set down and determined on the merits.
Learned Counsel submitted that it is not the averments of the Appellants that a suit is statute barred that makes it so. Instead, it is the Writ of Summons and the Statement of Claim. He cited the case of Yare V. Vunku (1995) 5 NWLR part 394 p.129 at 148. It was submitted that reliance on the Ogun State Notice of Acquisition would be premature since there is a denial that the land in dispute formed part of the land acquired. It was also submitted that the onus is on the Appellants to prove before the lower court that the Notice of Acquisition came to the notice of the Respondent. The case of A.G. Lagos State vs. Sowande (1992) 8 NWLR part 261 p.188 was cited in support.
We were urged to discountenance all the arguments of the Appellants’ Counsel and uphold the ruling of the lower court.
On issue 1(b) which is whether the Respondent’s action is statute barred, Learned Counsel submitted that it is trite law that where an allegation is made that a claim is statute barred, the court will concern itself with the Writ of Summons and the Statement of Claim only in order to determine the question. It was submitted that the Respondent having denied that their land was ever acquired and having maintained that they were in possession of their land until the Appellants trespass in 2009, the wrong complained about is the trespass of the Appellants and not the acquisition of land.
On the submission with regard to constructive notice, it was submitted that the courts have held that before a private property is acquired, the acquiring authority must give notice of intention to acquire the property before publishing same in the Gazette. We were referred to the case of Provost Lagos State College of Education vs. Edun (2004) ALL FWLR part 201 p.1628. It was submitted that the Respondent’s claim is not caught by the limitation law.
Since issue 1 was sub-divided into two and argued by both counsel along the line of the sub-division, it makes sense to consider issue 1 as sub-divided.
Issue 1(a) as will be recalled is whether the trial court was right in refusing to determine the point of law raised by the Appellants, to wit, that the Respondent’s action is statute barred by force of Section 16(2) of the Limitation Law of Ogun State.
The position of the Appellants’ Counsel is that the lower court contrary to the position it took on Order 22 rule 2 of the Ogun State High Court (Civil Procedure) Rules that it had discretion to defer determining whether the action is statute barred, the lower court actually had no discretion in the matter and should have determined the issue right away – particularly since the issue bordered on jurisdiction. The Respondent’s Counsel took a contrary view and argued that the lower court was right to have concluded that the case be heard on the merits.
Now Order 22 rule 2 of the, High Court of Ogun State (Civil Procedure) Rules 2008 upon which the lower court hinged its decision, reads:-
“Any party shall be entitled to raise by his pleading any point of law, and any point so raised shall be disposed of by the Judge who tries the Cause at or after the trial.
Provided that by consent of the parties, or by order of the court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial”.
In my respectful view, the, above provision is translucent. What it says is simply that a party can by his pleadings raise a point of law that can be tried by the court either at the trial or after the trial. However where an application is made in respect of a point of law and both parties agree that it be set down for hearing or the court itself orders that it be so set down for hearing, then the application will be heard and decided before trial and not after trial
The trial Judge correctly interpreted Order 22 rule 2 when he stated thus:
“The provision of the Rules of Court is to the effect that if the court finds it desirable, it can order that the point be heard before the trial.”
See at page 58 of the Record.
Indeed in compliance with Order 22 rule 2 under reference, the trial court set down for hearing and disposal of the application dated 9th April, 2009. But that is where compliance with the rule seems to have stopped. The lower court did not proceed to hear and dispose of the point of law raised in the application, to wit, that the action is statute barred. Instead the court disposed of the application in the following manner.
“I therefore believe that the end of justice can only be met by allowing this case go to trial on merit and I so order”.
It seems to me that the lower court from the above comment, contrary to its earlier interpretation of Order 22 rule 2, turned around to read into it discretionary latitude that permitted it to dispose of the point of law set down for hearing at some point in the future. It had no such latitude. Its duty having set down the point of law for hearing was to hear and dispose of it, period. That the court did not simply do that is particularly galling considering that the point of law in question is not an ordinary point of law but one that has to do with the jurisdiction of the court to hear and determine the case. I cite in aid the comment of the Supreme Court on the provision of Order 23 of the High Court of Lagos State (Civil Procedure) Rules, 1994 which though not identical with Order 22 of the High Court of Ogun State (Civil Procedure) Rules has the same tenor. Said the Supreme Court per Mohammed JSC in the case of Elabanjo vs. Dawodu (2006) ALL FWLR part 328 p.604 at p.638.
“… the law is trite that an objection that a court has no jurisdiction to entertain a matter or action is certainly not an ordinary point of law contemplated under Order 23 rules 2 and 3 of the Lagos State High Court (Civil Procedure) Rules. Issue of jurisdiction is very fundamental….
It is now beyond argument that because issue of jurisdiction is regarded as a threshold issue and a lifeline for continuing any proceedings, objection to it ought to be taken at the earliest opportunity…… and a decision reached on it before any other step in the proceedings is taken because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted.”
See also Kalio vs. Daniel-Kalio (1975) 12 SC 175; Barclays Bank of Nigeria vs. Central Bank of Nigeria (1976) 6 SC 175; Odofin vs. Agu (1992) 3 NWLR part 229 p.353; Anon Lodge Hotels Ltd. vs. Merchantile Bank (1993) 3 NWLR part 284 p.721 at 732.
In my respectful view, the lower court was wrong not to have considered the point of law on the question of statute bar upon the application before it pursuant to Order 22 rule 2 of the Ogun State High Court (Civil Procedure) Rules. It was also wrong not to have considered it in view of the avalanche of case law that require an issue of jurisdiction to be determined at the earliest opportunity since such issue is a threshold matter.
I now turn to issue 1(b) which is whether the Respondent’s action is statute barred.
Appellants’ Counsel urged us to decide the issue since the trial court did not decide it. He argued that this court has power to decide it pursuant to Section 15 of the Court of Appeal Act. It was contended that the land in dispute was compulsorily acquired by the Ogun State Government in 1994 and that the Respondent’s action came too late, having been filed 15 years after the cause of action arose. The denial of the Respondent to the effect that the land in dispute is not within the area acquired by the Ogun State Government did not impress the Appellants’ Counsel as he insisted that there were beacons, pillars and marks in the land.
The Respondent’s Counsel in his own submission argued that it is trite law that where there is an allegation that an action is statute barred, the court will look at the Writ of Summons and the Statement of Claim to determine if indeed it is statute barred.
It is settled law that an issue of jurisdiction can be raised at any stage of the proceedings up to the final determination of an appeal by the highest court of the land. See Adegoke vs. Adibi (1992) 5 NWLR part 242 p.410. Since the lower court did not consider the issue of jurisdiction to hear the matter before it and since the issue has been raised in this court, I am satisfied on the strength of judicial authorities that this court can deal with the issue. The power of the court to deal with it is also conferred by Section 15 of the Court of Appeal Act, 2004.
After studying the authorities on the subject, I have come to the view that there are two guiding principles to determining whether or not an action is statute barred. The first is that the court will look at the Writ of Summons and the Statement of Claim and compare the dates therein as to when the cause of action accrued and when the Writ of Summons was filed. The comparison of the two will show the time that has elapsed. Once the time that has elapsed is beyond the statutory limit set, the action is statute barred. If not, the court can hear the case as the action has not been caught up by the statutory limit. The second guiding principle is where the defendant states when the cause of action accrued. Where the defendant states such a date, it cannot be relied upon by the court except where the claimant in a Reply, accepts it. In this instance, the date stated by the defendant as the date in which the cause of action accrued cannot be said to be definitive as the claimant did not accept the date in his Reply.
My deductions above are based on settled legal authorities. On the first principle see the case of Military Administrator, Ekiti State and Ors. vs. Aladeyelu (2007) 14 NWLR part 1056 p.619 where the Supreme Court per Onnoghen JSC stated thus:
“In the case of Woheren vs. Emereuwa (2004) 6-7 SC 161 (2004) 13 NWLR Part 890 P. 398 at 417, this court decided that for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the Writ of Summons and the Statement of Claim only. I will however add, where one has been filed. It is from either or both of these processes that one can ascertain the alleged date when the wrong in question is said to have occurred or been committed thereby giving rise to the plaintiffs cause of action. When that ascertained date is compared with the date the Writ of Summons or originating process was filed in court, it can be determined whether the action was instituted within the period allowed by law or outside it. When it is found that the action was instituted within the Period allowed by law, the action is said to be competent and the court has the jurisdiction to entertain same but where it is found to have been instituted outside the period allowed by law, the action is said to be statute barred and consequently, the court is without jurisdiction to entertain same”.
See also Williams vs. Williams (2008) 10 NWLR part 1095 p.364.
On the second principle, see the case of Odubeko vs. Fowler (1993) NWLR part 308 p.637 where the Supreme court per Onu JSC stated thus:
“It is also an established principle found in Savannah Bank vs. Pan Atlantic case (supra) that it is not enough to plead a particular date in the Statement of Defence as the date the cause of action arose because if the date is not admitted by any reply of the plaintiff to the defendant’s Statement of Defence, it will be impossible to compute the limitation period it being impossible, indeed wrong for a court to compute time from the date pleaded”.
Going by the first principle, is the action statute barred? I have looked at the writ of Summons at page 1 – 2 of the Record of Appeal. It was filed on 5/3/2009. I have also looked at the Statement of Claim. It indicates in paragraph 6 at page 4 of the Record of Appeal that the cause of action arose sometime in January 2009 when the Claimant made a shocking discovery that the defendants entered the land, demolished a fence, pulled down buildings, cut down economic trees etc. The period that elapsed between January 2009 and 5/3/2009 when the action was instituted is well within the period of limitation. It is not outside it, not by a long shot.
Going by the second principle, it was pleaded in the Statement of Defence that the cause of action arose when the Ogun State Government compulsorily acquired the land and gazette the acquisition on 24/2/94 (see paragraph 2 of the Statement of Defence at page 13 of the Record of Appeal). Paragraph 2 of the Statement of Defence was outrightly denied in the reply to the Statement of Defence. (See at page 26 of the Record of Appeal). Applying the second principle, reliance cannot be placed on the 24th of February, 1994 as the date that the cause of action arose since that date was not admitted in the Reply. The result is that it has not been established that the action is statute barred. That being the case, it will be proper to determine the case on the merits.
The second issue as will be recalled is whether the trial court erred in law when it found that a conflict exists as to whether the subject land forms part of the Ogun State Government acquisition in 1994 and that the only way to resolve it was by hearing evidence thereon, notwithstanding credible and uncontradicted documentary evidence presented before it by the Appellants to the contrary.
It is apposite to state here that the appeal here is an interlocutory one. It is therefore not proper in my view to entertain issue 2 since it has not gone through the crucible of trial. In A. G. Anambra State vs. Okeke (2002) 12 NWLR part 782 p.575 the Supreme Court per Iguh JSC held thus:
“A court is not while dealing with preliminary or interlocutory matters, entitled to make pronouncements which would prejudice the fair hearing of the issues to be decided at the hearing of the substantive suit”.
I will stay clear of Issue 2.
In concluding, I find that the appeal is devoid of merit. The case at the lower court should be heard and determined on the merits. The appeal is dismissed with N20,000 costs awarded in favour of the Respondent.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading before now the judgment just delivered by my learned brother, OBIETONBARA DANIEL-KALIO, JCA.
I agree with his reasoning and conclusion arrived at in holding that the appeal is lacking merit. I also dismiss same and abide by the order made therein as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: My learned brother, O. Daniel-Kalio, JCA gave me the advantage of reading in advance, the judgment he has just delivered.
The two issues that were formulated in this appeal were adequately considered by my learned brother. I agree with him therefore, that the appeal has no merit and that it should be dismissed. I accordingly dismiss same.
I abide by the order on costs.
Appearances
TAIWO AJIBOYE Esq.For Appellant
AND
PETER ILEGOGIE Esq.
LEKE BEN-WINZE Esq.For Respondent
