MR. AKANNI OYEDELE & ORS v. MR. WASIU AJAYI & ORS
(2014)LCN/7222(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of May, 2014
CA/I/101/2012
RATIO
THE MAIN MATERIAL FOR CONSIDERATION WHILE RAISING A PRELIMINARY OBJECTION TO DETERMINE A SUIT IN LIMINE
It is the law and practice that when a preliminary objection is raised to determine a suit in limine, the main material for consideration is the originating process; in this appeal, it was a writ of summons. As stated in the lead judgment, the learned trial Judge went outside the writ and statement of claim in search for materials with which to address the application placed before the court. (See Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) 1 NWLR (Pt.47) Pg. 3). The obvious result is a wrong conclusion. per MONICA B. DONGBAN-MENSEM, J.C.A.
POSITION OF THE LAW IN DETERMINING A STATUTE BARRED ACTION
The state of the law is very clear about what is to be considered in arriving at when an action is statute barred. The law on the subject is not recondite. It has indeed ossified as numerous decisions show. Let me mention a few decisions. Fred Egbe vs. Hon. Justice J.A. Adefarasin (1987) 1 SC p.1 (1987) 1 NWLR part 47; Military Administrator Ekiti State vs. Aladeyelu (2007) 4 – 5 SC 2001 also reported in (2007) 14 NWLR part 1055 p.618; Williams vs. Williams (2008) 10 NWLR part 1095 p.364 also reported in (2008) 34 NSCQR part 11 p.864; Adekoya vs. FHA (2008) 11 NWLR part 1099 p.539 also reported in (2008) 34 NSCQR part 11 p.952; Hassan vs. Aliyu (2010) 17 NWLR part 1223 p.547.
The position of the law as stated in the above cases and numerous others in my humble view was admirably summarized by Rhodes-Vivour JSC in the case of JFS Investment Ltd vs. Brawal Line Ltd. & Ors. (2010) 18 NWLR part 1225 p.495 at 543 thus:
“When the issue for determination is whether a claim is time barred, the trial judge resolves the issue, first by examining the applicable limitation period provided in the enabling statute to see the period stipulated therein for the claim before him. Secondly, the judge determines when the cause of action arose by examining carefully the Writ of Summons and statement of claim. Thirdly, when the judge is satisfied as to when the claimant/plaintiff had a cause of action, he compares that date with the date the writ of summons was filed. If the time from when the cause of action arose to when the writ of summons was filed is beyond the period allowed in the enabling statute, then the action is statute barred”. per OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
M.B. DONGBAN-MENSEM 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
MR. AKANNI OYEDELE & ORS Appellant(s)
AND
MR. WASIU AJAYI & ORS Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over a Ruling of the lower court that the matter before it, a land case, is statute barred. The matter before the lower court was commenced by a Writ of Summons. The Claimants also filed a statement of claim. However the 2nd defendant (the 2nd respondent in this appeal) found it necessary to fife a Notice of Preliminary Objection. By the Notice of Preliminary Objection, the 2nd Respondent wanted the lower court to dismiss the suit for lack of jurisdiction in that the action was statute barred by virtue of the provisions of Section 6 (2) of the Limitation Law of Ogun State, 2006.
After hearing the submissions of the learned counsel to the parties and considering the affidavit evidence before it, the trial judge delivered his Ruling on the 28th of July 2010. He upheld the preliminary objection and ruled that the right of action of the claimant (the appellant in this appeal) has been extinguished by virtue of the Limitation Law of Ogun State.
Dissatisfied with the Ruling, the appellant filed a Notice of Appeal challenging the Ruling of the learned trial judge on three grounds, namely-
GROUND 1
The learned trial judge erred in raw when he herd that the cause of action of the claimants/appellants arose in 1986 when the Ogun State Government acquired the land in dispute for the 2nd defendant.
Particulars
The Claimants had copiously pleaded in paragraphs 6-11 of the Amended Statement of Claim dated 14th April 2010 that the acquisition of heir land by the Ogun State Government led to a series of litigation which were mutually settled and relied on Suit No. CA/I/m231/1990 and 2nd defendant’s letter dated 30th October, 1990 confirming that the cause of action which arose in 1986 was pursued and laid to rest by the parties amicably.
GROUND 2
The lower court erred in law by making recourse to the Amended statement of Defence of the 1st Defendant in holding that the land in dispute has been allocated to the 1st defendant.
Particulars
It is trite law that a court of law is to have recourse to the statement of claim and the Writ of Summons of the Claimants in determining when a cause of action arose and the recourse of the learned trial judge in going into the Amended Statement of Defence of the 1st defendant amounts to exceeding its jurisdiction and perverse justice.
GROUND 3
The learned trial judge misdirected himself in holding that the incidence of adverse possession which gave rise to the cause of action arose in 1986 rather than when the 1st defendant was illegally allocated the claimants land by the 2nd defendant.
It has to be said for the umpteenth time that on appeal the nomenclature of the parties change. The parties who were before the lower court as claimants and defendants for example, become appellants and respondents depending on who is appealing. It is improper to keep referring to parties on appeal by their designation at the lower court. It can also be quite confusing.
The Appeal was argued on 26/2/2014. In the written Brief of Argument prepared on behalf of the appellants, the appellants learned counsel ALA Abimbola Esq., identified a single issue for determination in this appeal. The issue reads:
“Whether the learned trial judge was right to have held that the cause of action in this case arose in 1986”.
The Appellants Brief of Argument was filed on 28/6/2012. The 1s Respondent’s Learned Counsel Bolarinwa Odeyale Esq. in his Brief of Argument on behalf of the 1st respondent, which Brief was filed on 14/11/12 but deemed as properly filed and served on 26/2/14, agreed that the issue formulated in the Appellants Brief of Argument is indeed the sole issue for determination in this appeal. The 2nd Respondent’s learned counsel Deinde Dipeolu also agreed that the issue for determination is as shown in the Appellants Brief. He however introduced a few words of his own in expressing the said issue. The 2nd Respondents Brief was filed on 20/11/12 but deemed as properly filed and served on 26/2/14.
In his submission on the sole issue for determination, the appellants learned counsel referred us to the case of Dr. (Mrs.) Gloria Abiola vs. Mrs Grace Aramide Olawoye (2006) 13 NWLR Part 996 P.1 at P.22 and submitted that in order to determine the period of limitation, the court has to look at the Writ of Summons and the Statement of Claim and compare the averments therein as to when the wrong was committed with the date when the Writ of Summons was filed. He submitted that where the period between the two events is longer than the period prescribed by the relevant law as to the period of limitation, the action is statute barred. He referred also to Grains Production Agency vs. Ezelbulem (1990) 1 NWLR Part 587 P.399; Egbe vs. Adefarasin (1987) 1 NWLR Part 47 P.1.
Appellants learned counsel submitted that although the Amended Statement of Claim stated that the 1st defendant trespassed on the land in the 1990’s, a fact he argued was affirmed by the learned trial judge at page 142 – 144 of the Record of Appeal, the learned trial judge all the same, went on to say that the Claimants neither addressed the issue of the acquisition of the land by the Ogun State Government nor the vesting of the land in the 2nd defendant. It was argued that by having the view that it did, the lower court misdirected itself.
The appellants learned counsel contended that the incident of adverse possession in 1986 which gave rise to suit No. CA/I/m23/1990 was conclusively dealt with since it was settled out of court. It was argued that a court of law cannot look at a statement of Defence for the purpose of determining when a cause of action arose. We were referred to the case of Dr. (Mrs.) Gloria Abiola vs. Mrs. Grace Aramide Olawoye (supra) at page 22. We were urged to set aside the Ruling of the lower court.
In the 1st Respondent’s Brief of Argument, the 1st Respondent’s Learned Counsel contended that it is a cardinal principle of law that parties are bound by their pleadings. It was argued that the Notice of Preliminary Objection was premised on the 1986 acquisition of the land. Learned Counsel submitted that the appellants in their counter-affidavit at page 120 – 122 of the Record of Appeal did not deny the specific averment in paragraph 5 of the affidavit in support of the preliminary objection and are therefore deemed to have admitted the fact stated therein. We were referred to the case of Stephen Lawson-Jack vs. SPDC NL (2002) 7 SCNJ 121 at 134; Adesina vs. Commissioner Ifon/Ilobu Boundary Commission Oshogbo & Ors. (1996) 4 SCNJ 112 at 119. Learned Counsel referred us to paragraph 4.2, 4.3, 4.4 and 4.5 of the appellants’ brief of argument and submitted that arguments were made by the appellants’ learned counsel with reference to those paragraphs on when the cause of action arose. It was submitted that the facts stated in paragraph 4.5 in the appellants brief were not raised during the hearing of the preliminary objection. The trial judge, it was argued, had no power or jurisdiction to go beyond the issues formulated for determination before the court. It was submitted that the fact that the appellants attached Exhibits OYE 1 – OYE 5 to their counter-affidavit in opposition to the affidavit in support of the preliminary objection is an admission that the land in dispute had been validly acquired by the Ogun State Government. It was therefore submitted that the jurisdiction of the lower court to entertain the matter had been ousted considering the time that the land was acquired. We were referred to the case of Yekini Abbas & Ors. vs. Olatunji Solomon & Ors. (2001) 7 SCNJ 546 at 564.
It was submitted that assuming though not conceding that the issues about the land were settled by the judgment in suit No. CA/I/m231/1990, such settlement could not have set aside the acquisition of the land in 1986 by the Ogun State Government.
Deinde Dipeolu Esq. in the Brief filed on behalf of the 2nd Respondent submitted that the trial court was right in holding that the cause of action arose in 1986. It was contended that an examination of the Amended Statement of Claim will show that the appellants are no longer in possession of the land in dispute. We were referred to the case of Egbe vs. Adefarasin (No.2) (1987) 1 NWLR Part 47 P.1 on how to determine when an action has become statute barred. It was contended that going by paragraphs 6 and 7 of the Statement of Claim the appellants’ land was actually acquired by the Ogun State Government, although the date of acquisition was not stated in the Statement of Claim. It was argued that the date of acquisition was supplied in paragraph 5 of the affidavit in support of the 2nd Respondent’s Notice of Preliminary Objection, which date is sometime in 1986. Learned counsel submitted that in the Ruling of the trial judge under appeal, the trial judge concluded that the land in dispute formed part of the land acquired by the Ogun State Government in 1986. It was contended that the cause of action arose in 1986 when adverse possession occurred. We were referred to the case of Akibu vs. Azeez (2003) 5 NWLR Part 814 P.643 at 668.
Learned Counsel argued that the cause of action could not have arisen in 1996 or 1998 when the 1st respondent was allocated the land in dispute as the allocation in 1996 or 1998 was based on the earlier acquisition made in 1986 by the Ogun State Government.
It was contended that contrary to the position taken by learned counsel for the appellants, the lower court did not look at or make reference to the 1st defendant’s Amended Statement of Defence in determining when the cause of action arose. Instead, it was argued, the lower court referred to the Amended Statement of Claim and the affidavit evidence of the 2nd Respondent in support of the Notice of Preliminary Objection. It was submitted that the lower court is entitled to refer to those processes. We were referred to the case of Elabanjo vs. Dawodu (2006) FWLR Part 328 p.640 – 641.
I have gone through the Ruling of the lower court appealed against with a fine-tooth comb and I find that the only place where the lower court made reference to the Writ of Summons and the Statement of Claim was at the beginning of the Ruling when the court was making reference to the claims in the case before it. In determining the pivotal issue of when the cause of action arose, no mention whatsoever was made to either the Writ of Summons or the Statement of Claim. No reference was made to the Amended Statement of Defence either as correctly pointed out by Deinde Dipeolu Esq. for the 2nd Respondent. Instead, the lower court clearly made copious use of the affidavit evidence before it which were filed in support of and opposition to the Notice of Preliminary Objection. The finding of the lower court is palpably clear on how it arrived at when the cause of action arose. At page 143-144 of the Record of Appeal, the lower court stated thus:
“From the fact before the court, the cause of action had arisen even before the land was allocated to the 1st defendant. The land was originally vested in the 2nd defendant before it eventually allocated same to the 1st defendant – thus there had been adverse possession since the land was acquired in 1985. By the acquisition in 1986 adverse possession occurred then and thus the cause of action arose then. There was no possession in the claimants as at the time the 1st defendant was allocated the piece of land by the 2nd defendant so the cause of action could not have arisen then”.
It is obvious from the above pronouncement that the lower court used a totally different matrix in arriving at when the cause of action arose or did not arise. The state of the law is very clear about what is to be considered in arriving at when an action is statute barred. The law on the subject is not recondite. It has indeed ossified as numerous decisions show. Let me mention a few decisions. Fred Egbe vs. Hon. Justice J.A. Adefarasin (1987) 1 SC p.1 (1987) 1 NWLR part 47; Military Administrator Ekiti State vs. Aladeyelu (2007) 4 – 5 SC 2001 also reported in (2007) 14 NWLR part 1055 p.618; Williams vs. Williams (2008) 10 NWLR part 1095 p.364 also reported in (2008) 34 NSCQR part 11 p.864; Adekoya vs. FHA (2008) 11 NWLR part 1099 p.539 also reported in (2008) 34 NSCQR part 11 p.952; Hassan vs. Aliyu (2010) 17 NWLR part 1223 p.547.
The position of the law as stated in the above cases and numerous others in my humble view was admirably summarized by Rhodes-Vivour JSC in the case of JFS Investment Ltd vs. Brawal Line Ltd. & Ors. (2010) 18 NWLR part 1225 p.495 at 543 thus:
“When the issue for determination is whether a claim is time barred, the trial judge resolves the issue, first by examining the applicable limitation period provided in the enabling statute to see the period stipulated therein for the claim before him. Secondly, the judge determines when the cause of action arose by examining carefully the Writ of Summons and statement of claim. Thirdly, when the judge is satisfied as to when the claimant/plaintiff had a cause of action, he compares that date with the date the writ of summons was filed. If the time from when the cause of action arose to when the writ of summons was filed is beyond the period allowed in the enabling statute, then the action is statute barred”.
The above view of his lordship in my humble view can be reduced to a simple formula. To arrive at whether an action is statute barred, subtract the date when the cause of action is claimed to have arisen as shown in the writ of summons or the statement of claim from the date when the writ of summons was filed in court. Where the figure arrived at is greater than the figure of the limitation period disclosed in a relevant statute, then the action is statute barred. If on the other hand the figure arrived at after the subtraction referred to above is less than the figure of the limitation period disclosed in the relevant statute, then the action is not statute barred. The only proviso in all of this is that before the calculation is made, the court must be satisfied as to when the cause of action arose after carefully examining the writ of summons and the statement of claim.
It is important to re-emphasize that the law makes no room for looking at other processes such as affidavit in support or counter-affidavit in opposition to a Notice of Preliminary Objection as in this case, to elicit when the cause of action arose. The learned trial judge was therefore wrong to have arrived at his decision based on the affidavit evidence before him. I am satisfied therefore that the appeal has merit. The Ruling of the lower court is hereby set aside. The Chief Judge of Ogun State is advised to remit the case to another judge of the High Court of Ogun State for trial.
MONICA B. DONGBAN-MENSEM, J.C.A.: I agree with the lead judgment prepared by my learned brother Obietonbara Daniel-Kalio, JCA.
It is the law and practice that when a preliminary objection is raised to determine a suit in limine, the main material for consideration is the originating process; in this appeal, it was a writ of summons. As stated in the lead judgment, the learned trial Judge went outside the writ and statement of claim in search for materials with which to address the application placed before the court. (See Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) 1 NWLR (Pt.47) Pg. 3). The obvious result is a wrong conclusion.
The appeal is allowed. I adopt the consequential order made in the lead judgment.
HARUNA SIMON TSAMMANI, J.C.A.: I read before now the judgment just delivered by my learned brother Obietonbara Daniel-Kalio, JCA. I agree that this appeal is meritorious and should be allowed. I accordingly allow same.
I abide by the consequential order made therein.
Appearances
A.L.A. AkinbolaFor Appellant
AND
Bolarinwa Odeyade Esq. with him T. Adekoya for the 1st respondent
Dehinde Dipeolu with T. Benson for the 2nd respondentFor Respondent
