KALU NDUKA AGBAI v. AJANDU KALU UKPABI & ORS
(2013)LCN/6215(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of May, 2013
CA/E/115/2008
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
KALU NDUKA AGBAI – Appellant(s)
AND
1. AJANDU KALU UKPABI
2. NGOZI KALU UKPABI
3. PATRICK UDE
(As personal representatives of late Joseph Kalu Ukpabi) – Respondent(s)
RATIO
WHETHER OR NOT LIMITATION OF ACTION IS A MATTER OF JURISDICTION
It is true as commonly said that limitation of action is a matter of jurisdiction. However a plea of limitation which is in the nature of a procedural defence by a defendant to the case of a plaintiff is not in that direct sense synonymous to jurisdiction.
Jurisdiction is secondary or collateral to the Issue of limitation.
Jurisdiction only comes into play in the matter of limitation if and when the defence of limitation is properly and successfully raised. There can be no question of jurisdiction when limitation as in the instant case is not properly raised.
The provisions of order 9 Rules 12 and 16 of the High court Rules of Anambra State 1988 read as follows:
“12. The defence must allege any fact not stated in the statement of claim on which the defendant relies in defence, as establishing for instance, fraud on the part of the Plaintiff, or showing that the Plaintiff’s right to recover or to any relief capable of being granted has not yet, accrued or is released, or barred, or otherwise gone.
16. A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality – which, if not pleaded might take the opposite party by surprise”. Learned counsel for the Respondent pointed out rightly that the operative word in the provision of order 9 Rule 16 of the Anambra State High court Rules 1988 is the mandatory word “shall”. The implication of this is the expression of a command which is mandatory.
See Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) P.65 at 89.
In the instant case, the Appellant did not raise the issue of limitation in his statement of defence as mandated by order 9 Rule 16 of the High court Rules, the learned trial Judge was right to have held that raising such Issue at the address stage amounts to springing surprise on the other party who had no opportunity to plead facts in rebuttal.
I do agree with the learned counsel for the Respondent, that the Rules relating to pleadings especially as they relate to notice to the other party are derivates of the wider principle of audi alteram partem which is an integral part of the constitutional principle of fair hearing. PER OWOADE, J.C.A.
WHETHER OR NOT RULES OF COURT MUST BE OBEYED
In any event, it is equally trite that rules of court are meant to be obeyed. They are indeed guide to the parties and any violation of the provisions may not likely lead to the attainment of Justice according to law for which the courts are established.
See Solanke v. (1974) 1 S.C. 141 of 148, 150 – 151.
William v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C. 145, (1982) 1 ALL NLR (Pt. 1) Musa v. Hamza (1982) 7 S.C. 118.
In Nonye v. Anyichie (2005) ALL F.W.L.R. (Pt. 253) 604 (2005) 2 NWLR (Pt. 910) 623 Oguntade, JSC held thus:
“Rules of Court are in the nature of beacon lights to the parties to a dispute illuminating the path leading to justice. It would in the end result in injustice if it were open to the court to hold one party bound by the rules while allowing the other to ignore them without good reasons”. PER OWOADE, J.C.A.
WHETHER OR NOT THE PROCEDURE IN RAISING THE ABSENCE OF JURISDICTION IN A COURT TO HEAR A MATTER MUST BE DULY FOLLOWED
This is because as was held, again, by Oguntadem, JSC in the case of Nnonye v. Anyichie (supra) at p. 630.
“It must be borne in mind that even in raising the question of absence of jurisdiction in a court to hear a cause or matter, the procedure laid down in the rules of court must be followed. It seems to me that an insistence that the applicable rules of court must be followed in raising a challenge to the jurisdiction of a court to determine a cause or matter is not a diminution of the importance of the question of jurisdiction but only an adherence to the Rule of Law”.
Much earlier or, in the case of Ishola Balogun Ketu v. Chief Wahabi Onikoro (1984) 10 S.C. 265, the Supreme Court had held similarly that a defendant who wishes to rely on the defence of time bar to an action must specifically plead it, otherwise he will not be allowed to rely upon it.
His Lordship Obaseki, JSC held at pages 267-268 of the Report, as follows:-
“It is a cardinal rule of pleading that such specific matters as limitation law must be expressly set out or pleaded in the statement of defence. Once it is not pleaded, the defendants cannot be granted the protection of that law. In this case, it is not pleaded and even if it is applicable, the court cannot grant the defendants the benefit of limitation law contrary to the rules of pleadings and the principle of avoidance of surprises”.
Therefore, the courts have generally held that a limitation statute must be specifically pleaded because the word “shall” which denotes a command in used in the various High court Rules.
See Agric Dev. Corp. v. Okedi (2004) 11 NWLR (Pt. 884) P. 369 at p. 383. That, a limitation statute is not to be used to ambush the other party.
See N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. (Pt. 1018) 246 at 263, Kano v. Oyelakin (1993) 3 N.W.L.R. (Pt. 282) 399.
Yassin v. Barclays Bank (1968) 1 ALL NLR 171
Mobil oil (Nig.) Ltd. v. Coker (1975) S.C. 175.
Oline v. Obodo (1958) 5 SCNLR 298.
F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281.
Anyaorah v. Anyaorah (2001) 7 N.W.L.R. (Pt. 711) 158.
That, a plea of limitation will not be allowed if not pleaded because it is elementary that parties are bound by their pleadings and will not be allowed to set up a case at variance with their pleadings.
See Michael Oluwole Ademola v. Joel Adenipekun (1999) 1 NWLR (Pt. 587) P. 440.
Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177.
George v. Dominion Flour Mills Ltd. (1963) 1 ALL NLR 71, (1963) 1 SCNLR 117.
Ochonna v. Unosi (1965) NMLR 321.
Total (Nigeria) Ltd. v. Nwako (1978) 5 S.C. 1.
And, finally, that a limitation law does not operate in vacuo.
To be raised effectively, it has to be specifically pleaded by the defendant.
See Savannah Bank Ltd. v. Pan Atlantic (1987) 1 N.W.L.R. (Pt. 49) 212 at 259.
Bright v. Bright (1943) 9 W.A.C.A. 48.
Nigeria National Shipping Lines Ltd. v. Bilbert Emenike (1987) 4 NWLR (Pt. 63) 77. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the leading Judgment): This is an appeal against part of the judgment of A. O. Onovo, J. delivered at the Enugu Judicial Division of the High court of Enugu State delivered on 7th day of October, 2005.
The Respondents as Plaintiffs commenced this action at the High court of Enugu State by a writ of summons dated 18/9/1998.
On 18/11/98, the Respondents filed a joint statement of claim in which they sought in paragraph 10 thereof:
“(a) A declaration that the piece/parcel of land situate and lying at No. 16 Umunevo Street, Ogui New Layout, Enugu together with the buildings thereon was the bonafide property of the late Joseph Kalu Ukpabi until it was sold and conveyed to the 3rd Plaintiff by the 1st and 2nd Plaintiffs as personal representatives of their late father.
(b) A declaration that only the children of the late Joseph Kalu Ukpabi are the proper beneficiaries of his estate.
(c) A declaration that the defendant’s claim against the estate of the late Joseph Kalu Ukpabi is not only baseless and borne out of greed but also is insupportable (unsupportable) as being repugnant to natural justice, equity and good conscience.
(d) A declaration that the 1st and 2nd Plaintiff as children and personal representatives of the late Joseph Kalu Ukpabi have the legal right to sell and convey the said property to the 3rd Plaintiff in the course of their administration of their late father’s estate.
(e) A declaration that by the said sale and conveyance as aforesaid the 3rd Plaintiff has acquired proper title to the said property as its present owner.
(f) An order for the defendant to account to the Plaintiff for all rents and profits received by the defendant in respect of the said property.
(g) Possession of the said land and premises by the 3rd Plaintiff. (h) Perpetual injunction restraining the defendant whether by himself, his agents, servants, or privies or otherwise howsoever from remaining on or continuing in occupation of the said property or any Part thereon.
(i) Payment to the Plaintiffs as appropriate of the sums found due, upon the taking of the said account”.
Upon service on him of the statement of claim, the defendant/appellant on 16/12/98 filed his statement of defence in which he pleaded that the Plaintiff Respondents are not entitled to any of the reliefs claimed. The Plaintiffs Respondents filed a 19 Paragraph reply to the statement of defence on 4/2/99.
The above three documents, namely, the statement of claim, statement of defence and the reply constitute the pleadings of the parties.
In the course of the proceedings, on 19/9/2002, the defendant/appellant filed a document captioned (OBJECTION S. 6(6)(b) 1999 constitution) wherein he urged the court to dismiss the suit for the underlisted reasons.
(i) The Plaintiff has not disclosed any case that warrants a defence in this suit.
(ii) Plaintiff has not disclosed any cause of action.
(iii) The court has no jurisdiction to continue entertaining the suit.
The process/objection was not formally moved in the court. Parties called witnesses tendered documents and addressed the court.
It was at the address stage that the learned counsel for the defendant/appellant raised the issue of limitation period or that the action is statute barred for the first time.
On the said issue, learned counsel for the defendant submitted that the issue of limitation goes to jurisdiction and being an issue of jurisdiction can be raised at any time even on appeal.
Learned counsel for the defendant appellant referred in his address to the document filed on 19/9/02 titled “Objection S. 6(6)(b) 1999 constitution” although he never formerly moved the “Objection” .
In his judgment, starting from page 66 of the Record, the learned trial judge had this to say on the submissions of the learned counsel for the defendant/appellant on the subject matter of limitation.
First, “that objection was not moved. It was not supported by any affidavit and so there were no facts to buttress the contention of the defendant on the issue at hand. As can be seen, aside from raising the issue of lack of jurisdiction, it did not expressly raise the issue of limitation of action or limitation law. That is the complaint of counsel to the Plaintiffs that considering the stage at which the Issue was raised, it was meant to spring a surprise on the Plaintiffs. He referred to order 9 Rules 12 and 16 of the High Court Rules 1988….”
At pages 66-67, the learned trial judge continued:
“From the above provisions of the High Court Rules, it is pertinent for a defendant who intends to rely on the statute of limitation as a defence to an action to plead such limitation of action before the same can be raised in argument.
In the instant case counsel only raised it during addresses.
Counsel had sought to rely on the objection dated 19/9/2003 (sic) 19/9/2002 which he referred to as Motion on Notice. It is true that ground three thereof referred to jurisdiction and the issue of limitation of action goes to issue of jurisdiction……….. I however wish to reiterate that though Issue of limitation of action goes to jurisdiction not all issues of jurisdiction relate to limitation of action.
Having considered the facts of this case and the law on the subject matter especially the provisions of Order 9 Rules 12 and 16 of the High court Rules 1988, I am of the humble but firm view that Issue of limitation of action was not properly raised in this case. Therefore S. 38 of the Action Law 1986 does not arise for determination also”
Finally, from the tail end of page 67 to page 68 of the Record, the learned trial Judge concluded on the matter thus:-
“Therefore, raising the issue of limitation of action as provided by the limitation statute, as the defendant had sought to do, at final address stage was aimed at springing a surprise on the Plaintiffs who therefore had no opportunity to plead facts in rebuttal thereof.
The issue of limitation of action is required by the rules of court to be pleaded in the defendant’s statement of defence. In the instant case, it was not so pleaded.
The document filed on 19/9/2002 is not the defendant’s statement of defence and is therefore of no consequence……………….”
Dissatisfied with the above portion of the judgment of the court, the Appellant filed a Notice of Appeal (containing two (2) grounds of Appeal before this court on 7/12/2005.
Learned counsel for the Appellant filed his brief of argument dated 3/11/2010 on 10/11/2010.
The Respondents brief of argument dated 10/2/2011 was filed on 11/02/2011.
Learned counsel for the Appellant nominated only one (1) issue for determination to wit:
“Whether the Issue of jurisdiction having been raised, the court below determined that issue before proceeding to decide other issue in the same action”
Learned counsel for the Respondent also formulated a sole issue for determination, that is:
“Whether the learned trial judge was right in holding that the issue of limitation of action does not fall for consideration because same was not raised or pleaded in the Appellant’s statement of Defence and was only raised for the first time in the final address of the Appellant’s counsel”.
Learned counsel for the Appellant pursued his arguments on the sole issue for determination by outlining the basic principles of the concept of jurisdiction. He submitted that the issue of jurisdiction can be raised at any stage of the proceedings,at the stage of the final address even on appeal.
Jurisdiction can be raised viva voce and can be determined on the claim endorsed on the writ of summons.
On the above, learned counsel for the Appellant referred to the cases of State v. Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 54. A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 at 553. Jeric v. Union Bank (2000) 4 NS CQR 254 at 263. Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 ALL NLR. 409 at 421.
P.E. LTD. v. Leventis Trading Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 at 693.
Swiss Air v. A.C.B. (1971) 1 ALL NLR 37.
Bronik Motors v. Wema Bank (1983) 1 SCNLR 296.
Obikoya v. Registrar of Companies (1975) 4 S.C. 31.
Alhaji Shehu Bello v. National Bank of (Nig.) Ltd. (1992) 6 NWLR (Pt. 246) 206 at 213.
Adeyemi v. Opeyeri (1976).
Learned counsel for the Appellant submitted further that a court is said to be competent to adjudicate upon an action when:
(i) It is properly constituted as regards numbers and qualification of the members of the bench and no member is disqualified for one reason or the other.
(ii) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction and
(iii) The case comes before the court initiated by due Process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. Any defect in the competence of the court is fatal and the proceedings are a nullity as such defect is extrinsic to the adjudication.
He referred to the case of Madukolu v. Nkemdilim (1962) 2 S.C.N.L.R. 341.
Skenconsult v. Ukey (1981) 1 S.C. 6
Rossek v. A.C.B. (1981) 8 NWLR (Part 312) 382 at 473 and 487 Araka v. Ejeagwu (2000) 4 N.S.C.Q.R. 308 at 334.
Learned counsel submitted that it is with the above mentioned second condition that the present action is concerned.
The question is whether there is any feature in the application of the respondent which prevents the court from exercising its jurisdiction over the cause.
Learned counsel submitted that paragraph 4 of the claim endorsed on Respondent’s writ of summons showed that the suit was statute barred.
That, Section 22(2) of the Actions Law 1986 upon which the appellant’s objection was based provided 12 years within which action involving land matter shall be brought was referred to by the appellant’s counsel during the hearing of the objection, stating that the action was brought 14 years after the 1st Plaintiff was fully aware the property was that of his father and 4l years after death of his father.
Finally, learned counsel for the Appellant submitted that the decision was in breach of the express provision of Section 6(6)(b) of the constitution, it is therefore incompetent, null and void.
On this, he referred to the cases of Ejike v. Ifeadi (1998) 60 LRCN 3980 at 3999 and A/E E.G.S.F. v. Eke Spiff (2009) 2 M.J.S.C. (Pt. 1) 61 at 96.
Learned counsel for the Respondent reiterated the facts of the case and opened up his submissions by saying that in our civil jurisprudence, the use of pleadings in the High court is based on the audi alteram partem principles.
The general purpose of pleadings is to ensure that litigation between parties is conducted fairly, openly without the parties springing surprises on each other at the trial. That, consistent with the need to avoid springing surprises at the trial, there are certain facts which are required by the rules and by practice to be specifically pleaded. One of such facts is statute of limitation. Learned counsel referred to the provisions of order 9 Rules 12 and 16 of the High Court Rules of Anambra State 1988 and submitted that by those Rules it is mandatory for a party relying on any relevant statute of limitation to specifically plead same.
On the mandatory purpose of the word “shall” as used in order 9 of Rule 16 of the High Court Rules, Anambra State 1988, counsel referred to the case of Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65 at 89.
Learned counsel submitted that it is not in doubt that the Appellant did not plead the defence of limitation of action i.e. that the Respondent suit was statute barred in his statement of defence which he filed on 16th day of December 1998 as required by the afore-stated provisions of order g Rules 12 and 16 of the High Court Rules 1988 and that the Appellant only raised the issue in the final address of his counsel.
Learned counsel for the Respondent referred to the cases of Agril Dev. Corp. v. Okedi (2004) 11 NWLR (Pt. 884) 369 at 385. Ishola Balogun Ketu v. Chief Wahabi Onikoro (1984) 10 S.C. 265.
N.I.I.A. v. Ayanfulu (2007) 2 NWLR (Pt. 1018) 246 at 263.
Michael Oluwole Ademolaju v. Joel Adenipekun (1999) 1 NWLR (Pt. 587) 440 and submitted that having failed to raise or plead the Issue of limitation in his statement of defence as required by the Rules of court, raising the Issue at the stage of final address by learned counsel for the Appellant, was as held by the learned trial Judge “aimed at springing a surprise on the Plaintiffs who therefore had no opportunity to plead facts in rebuttal thereof”.
Clearly, said counsel, the Appellant was in breach of the mandatory provisions of order 9 Rules 12 and 16 of the High Court Rules 1988 and the learned trial Judge was right in holding that section 38 of the Actions Law 1986 does not arise for determination.
Learned counsel for the Respondent submitted that the Appellant cited the decision of the Supreme Court (per Oputa, J.S.C.) in the case of A.G. Lagos State v. Dosunmu (1989) 3 N.W.L.R. (Pt. 111) 552 as saying that “when a court’s jurisdiction is thus challenged in a Statement of Defence, I think it is neater and far better to settle that Issue one way or another before proceeding to hear the case of the merit……………………….”
On this, learned counsel submitted that the above authority relied upon by the learned counsel for the Appellant supports the Respondents case rather than the case of the Appellant. This is because the Issue of limitation of action which should have been pleaded in the statement of defence was not so pleaded by the Appellants. That, it therefore cannot be said that the trial court’s jurisdiction is thus challenged in the statement of Defence.
Rather, as it was raised, at the stage of final addresses, after the conclusion of the evidence by the parties, there was no way that Issue would have been settled one way or another before proceeding to hear the case on the merit, as admonished by Oputa, J.S.C., in the A.G. Lagos State v. Dosunmu case (supra) relied upon by the learned counsel for the Appellant.
Learned counsel, further submitted that the ‘objection’, motion filed by the Appellant in the court below on 19/9/2002, did not in any way raise the Issue of limitation of statute. This, apart from the fact that the said motion was never moved and was only referred to during the final address stage by the Appellant.
On Section 6(6)(b) of the 1999 Constitution alluded to by the Appellant, learned counsel for the Respondents submitted that the import of Section 6(6)(b) of the 1999 Constitution is that a court of law is bound to determine all matters and civil rights and obligation of parties which are properly placed before it. The court will not have the jurisdiction to determine an issue which was not properly placed before it.
Learned counsel submitted that the view of the learned Appellant’s counsel in paragraph 29 of the Appellant’s brief that the court did not refer to Section 22 of the Actions Law and paragraph 4 of the claim endorsed on the writ of summons is misconceived.
That, the learned trial judge had held that since the Issue of limitation was not pleaded as mandatorily required by the Rules of Court, that Issue does not call for determination. In that circumstance, said counsel, it would be preposterous for the court to do a summersault and turn around to undertake a consideration of the provisions of Section 22 of the Actions Law vis-a-vis paragraph 4 of the claim endorsed on the writ of summons.
In any event, said counsel, there is nothing contained in paragraph 4 of the claim to suggest that the suit was statute barred. The 1st and 2nd Respondents became aware of the property in dispute in 1997 and in the same year began to express rights of ownership over the property. They obtained letter of administration of the property in the same year (1997). That, the following year (1998) they sold the property in dispute to the 3rd Respondent and wrote a letter through their counsel to the tenants of the change of ownership. This suit, was commenced in 1998, just a year, after the 1st and 2nd defendants became aware of the property.
He concluded that the learned trial judge was right in holding that the Issue of limitation of action does not fall for consideration because same was not raised or pleaded in the Appellant’s statement of Defence and was only raised for the first time in the final address of the Appellant’s counsel.
In deciding the sole issue in this appeal, I do not have any hesitation in agreeing with the learned counsel for the Respondent that from the facts and circumstances of the case, the learned trial judge was right to have held that the Issue of limitation of action was not properly raised in accordance with the mandatory provisions of the High Court (civil Procedure) Rules of Anambra State 1988.
The present case raises once again a commonly misconceived point of law. It is true as commonly said that limitation of action is a matter of jurisdiction. However a plea of limitation which is in the nature of a procedural defence by a defendant to the case of a plaintiff is not in that direct sense synonymous to jurisdiction.
Jurisdiction is secondary or collateral to the Issue of limitation.
Jurisdiction only comes into play in the matter of limitation if and when the defence of limitation is properly and successfully raised. There can be no question of jurisdiction when limitation as in the instant case is not properly raised.
The provisions of order 9 Rules 12 and 16 of the High court Rules of Anambra State 1988 read as follows:
“12. The defence must allege any fact not stated in the statement of claim on which the defendant relies in defence, as establishing for instance, fraud on the part of the Plaintiff, or showing that the Plaintiff’s right to recover or to any relief capable of being granted has not yet, accrued or is released, or barred, or otherwise gone.
16. A party shall plead specifically any matter for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality – which, if not pleaded might take the opposite party by surprise”. Learned counsel for the Respondent pointed out rightly that the operative word in the provision of order 9 Rule 16 of the Anambra State High court Rules 1988 is the mandatory word “shall”. The implication of this is the expression of a command which is mandatory.
See Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) P.65 at 89.
In the instant case, the Appellant did not raise the issue of limitation in his statement of defence as mandated by order 9 Rule 16 of the High court Rules, the learned trial Judge was right to have held that raising such Issue at the address stage amounts to springing surprise on the other party who had no opportunity to plead facts in rebuttal.
I do agree with the learned counsel for the Respondent, that the Rules relating to pleadings especially as they relate to notice to the other party are derivates of the wider principle of audi alteram partem which is an integral part of the constitutional principle of fair hearing.
In any event, it is equally trite that rules of court are meant to be obeyed. They are indeed guide to the parties and any violation of the provisions may not likely lead to the attainment of Justice according to law for which the courts are established.
See Solanke v. (1974) 1 S.C. 141 of 148, 150 – 151.
William v. Hope Rising Voluntary Funds Society (1982) 1-2 S.C. 145, (1982) 1 ALL NLR (Pt. 1) Musa v. Hamza (1982) 7 S.C. 118.
In Nonye v. Anyichie (2005) ALL F.W.L.R. (Pt. 253) 604 (2005) 2 NWLR (Pt. 910) 623 Oguntade, JSC held thus:
“Rules of Court are in the nature of beacon lights to the parties to a dispute illuminating the path leading to justice. It would in the end result in injustice if it were open to the court to hold one party bound by the rules while allowing the other to ignore them without good reasons”.
In the instant case, the learned trial judge was right to have further held at page 68 of the Record that:
“The Issue of limitation of action is required by the rules of court to be pleaded in the defendant’s statement of defence. In the instant case, it was not so pleaded. The document filed on 19/9/2002 is not the defendant’s statement of defence and is therefore of no consequence”.
This is because as was held, again, by Oguntadem, JSC in the case of Nnonye v. Anyichie (supra) at p. 630.
“It must be borne in mind that even in raising the question of absence of jurisdiction in a court to hear a cause or matter, the procedure laid down in the rules of court must be followed. It seems to me that an insistence that the applicable rules of court must be followed in raising a challenge to the jurisdiction of a court to determine a cause or matter is not a diminution of the importance of the question of jurisdiction but only an adherence to the Rule of Law”.
Much earlier or, in the case of Ishola Balogun Ketu v. Chief Wahabi Onikoro (1984) 10 S.C. 265, the Supreme Court had held similarly that a defendant who wishes to rely on the defence of time bar to an action must specifically plead it, otherwise he will not be allowed to rely upon it.
His Lordship Obaseki, JSC held at pages 267-268 of the Report, as follows:-
“It is a cardinal rule of pleading that such specific matters as limitation law must be expressly set out or pleaded in the statement of defence. Once it is not pleaded, the defendants cannot be granted the protection of that law. In this case, it is not pleaded and even if it is applicable, the court cannot grant the defendants the benefit of limitation law contrary to the rules of pleadings and the principle of avoidance of surprises”.
Therefore, the courts have generally held that a limitation statute must be specifically pleaded because the word “shall” which denotes a command in used in the various High court Rules.
See Agric Dev. Corp. v. Okedi (2004) 11 NWLR (Pt. 884) P. 369 at p. 383. That, a limitation statute is not to be used to ambush the other party.
See N.I.I.A. v. Ayanfalu (2007) 2 N.W.L.R. (Pt. 1018) 246 at 263, Kano v. Oyelakin (1993) 3 N.W.L.R. (Pt. 282) 399.
Yassin v. Barclays Bank (1968) 1 ALL NLR 171
Mobil oil (Nig.) Ltd. v. Coker (1975) S.C. 175.
Oline v. Obodo (1958) 5 SCNLR 298.
F.C.D.A. v. Naibi (1990) 3 NWLR (Pt. 138) 270 at 281.
Anyaorah v. Anyaorah (2001) 7 N.W.L.R. (Pt. 711) 158.
That, a plea of limitation will not be allowed if not pleaded because it is elementary that parties are bound by their pleadings and will not be allowed to set up a case at variance with their pleadings.
See Michael Oluwole Ademola v. Joel Adenipekun (1999) 1 NWLR (Pt. 587) P. 440.
Ehimare v. Emhonyon (1985) 1 NWLR (Pt. 2) 177.
George v. Dominion Flour Mills Ltd. (1963) 1 ALL NLR 71, (1963) 1 SCNLR 117.
Ochonna v. Unosi (1965) NMLR 321.
Total (Nigeria) Ltd. v. Nwako (1978) 5 S.C. 1.
And, finally, that a limitation law does not operate in vacuo.
To be raised effectively, it has to be specifically pleaded by the defendant.
See Savannah Bank Ltd. v. Pan Atlantic (1987) 1 N.W.L.R. (Pt. 49) 212 at 259.
Bright v. Bright (1943) 9 W.A.C.A. 48.
Nigeria National Shipping Lines Ltd. v. Bilbert Emenike (1987) 4 NWLR (Pt. 63) 77.
In paragraphs 24-26 of the Appellant’s brief, learned counsel for the Appellant made reference to the provision of Section 6(6)(b) of the 1999 Constitution as saying that a court of law is bound to determine matters before it. I must say that the reference to Section 6(6)(b) of the 1999 constitution by the learned counsel for the Appellant in this regard is inapposite to the consideration of his case and the argument based on the Section is with respect non-sequitor. The import of Section 6(6)(b) of the constitution of the Federal Republic of Nigeria 1999 (as amended) is that a court of law is bound to determine all matters and the civil rights and obligations of parties which are properly placed before it. Indeed, the court will not have jurisdiction to determine an issue which was not properly placed before it.In the instant case, the learned trial judge was right to have held that the issue of limitation of statute was not properly raised and was not properly placed before him for determination.
The sole issue in this appeal is resolved against the Appellant.
The appeal lacks merit and it is accordingly dismissed.
There shall be costs of N30,000.00 in favour of the Respondent.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading in its draft form the judgment of my learned brother, MOJEED ADEKUNLE OWOADE JCA just delivered. I agree with the reasoning therein and the conclusion that the appeal lacks merit. I dismiss the appeal and abide by the award of costs in favour of the respondent.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had read the draft of the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE JCA, I agree with his reasoning and conclusions. I also hold that the appeal lacks merit and is accordingly dismissed. I abide by all the order made therein including the order as to costs.
Appearances
Chief M. O. Okologbu-Njoku For Appellant
AND
Tochukwu Maduka with Miss Joy Inya-Agha For Respondent
