Miss Christianah Ebun Folami V. Joseph Adewale Okege (2007)
LawGlobal-Hub Lead Judgment Report
M.D MUHAMMAD, J.C.A.
The Appellant in this appeal, being the Plaintiff in suit No. 1/435/2004 at the lower court, Oyo State High Court, claimed some declaratory and injunctive reliefs against the Respondent herein who was the Defendant. The action was in respect of the piece of land situate and lying near Crown Chemist Ltd building opposite Kejide Hospital Road at Challenge Ibadan. A further relief the said action was for a N1,000:00k damages for the Respondent’s trespass into the land in dispute occasioned sometimes in August 2002.
Paragraphs 3, 4, 6 and 7 of Appellant’s statement of claim are crucial to our understanding of the issues canvassed at the lower court and by extension of this appeal. The paragraphs are for that reason hereunder reproduced.
“(3) The Plaintiff purchased the said land in dispute from Kure Awojobi family of Isale-Osi, Ibadan with Deed of Conveyance dated 1st June, 1973 and registered as No. 18, page 18 volume 1591 which is hereby pleaded.
(4) The accredited members of Kure Awojobi family who signed the said Deed of Conveyance in favour of the Plaintiff are Alhaji Saibu Ghadamosi, the current Mogaji of Kure Awojobi family and Yinusa Akanji respectively.
(6) The land in dispute situate, lying and being near Crown Chemist limited Building. Opposite
Kejide Hospital Road, Challenge, Ibadan which its area will be shown on the disputed Survey
Plan to be filed later in this Suit and be referred to as ANNEXTURE “A”.
(7) Sometimes in August. 2002, the Defendant without the authority and consent of the Plaintiff entered into the land in dispute, placed building materials on it with a view of embarking on the
Construction of building thereon”,
On being served with Appellant’s Writ and Statement of Claim, the Respondent on 9-7-04 filed and served the Appellant his Statement of Defence. Paragraphs 31, 32 and 33 of which being germane, are hereunder supplied:-
“(31) Defendant shall contend that from 1973 when Plaintiff’s rights (if any) accrued till 2004 is a period of 31 years. From 26th February, 1987 when Saibu Gbadamosi’s (who sold the land to Plaintiff) suit was struck out till 1st June, 2004 when Plaintiff took out her Writ of Summons in this present suit is a period of 17 years.
(32) Defendant shall contend that this case is statute barred as it offends against Section 6 (2) or the (33) limitation Law CAP. 64 Laws of Oyo State of Nigeria 1978 or Section 3 Limitation (Edict) Law 1989 dated 20th March, 1989 not having been commenced within 12 years of 10 years from 1973 when Plaintiff knew she was prevented from claiming the land by Chief Coker.
(33) WHEREOF Defendant avers that Plaintiff’s Claim is speculative, is statute barred and therefore unmaintenable and should be dismissed with substantial costs “. (Underlining supplied for emphasis)
The Appellant further joined issues with the Respondent in her reply to the latter’s statement of defence. Hereunder reproduced are paragraphs 3,4,5,6,7,9,11,16,17 and 18 of the reply to the statement of defence.
“(3) In further denial to paragraphs 3 and 4 of the statement of defence of the defendant, the Plaintiff says and will contend at the trial of the action that the said Alhaji Saibu Gbadamosi, the Plaintiff in suit 1/792/2002 withdrew the said suit having realized that the Plaintiff is still the legal owner of the land in dispute having realized that although, the said Saibu Gbadamosi has refunded the money of the Plaintiff in this case, but the Plaintiff has not been able to effect the change of legal title to title name of the said Saibu Gbadamosi.
(4) The Plaintiff was not aware of any state of land between Folarin Coker and Stephen Binuyo Adewumi in 1956 as the said land is a vacant land up till the time the Plaintiff purchased it and thereafter, and as such paragraph 6 of the statement of defence is hereby denied.
(5) The Plaintiff will contend at the trial of this action that in further denial to paragraph 23 of the statement of defence will say that no judgment was delivered in suit 1/326/73, but a ruling and the said Folarin Coker has never been in possession of the land in dispute. The said ruling delivered by Justice Apara in suit 1/326/73 on 2nd April, 1986 is hereby pleaded among other judgments to be tendered in this case.
(6) The Plaintiff will contend at the trial of this action that in further denial to paragraph 24 of the statement of defence, Says that Nathaniel Coker could not transfer what does not belong to him as the land in dispute does not belong to him.
(7) The said Saibu Gbadamosi filed an action in suit 1/792/2002 immediately the defendant started digging the foundation on the land in dispute with a view to embarking on the building construction thereon, and withdrew it later having realized that the legal title remains with the Plaintiff in this case.
(9) The Plaintiff will contend at the trial of this action that Chief Coker has never been in possession of the land in dispute and paragraph 29 of the statement of defence is hereby denied.
(11) The Plaintiff will say that in further denial to paragraph 32 of statement of defence says that her legal title on the land in dispute has not been set aside by any court, and it was a vacant land until 1975, and as such this action is not statute barred.
(12) In 1975, the then Ibadan Municipal Government Council temporarily relocated the transporters who ply Ibadan-Lagos, and Ibadan to Ijebu in Challenge area. Ibadan on the land in dispute in order to reduce the go slow of vehicles in the Challenge area, and it was the defendant who ejected them when he wanted to embark on the building constructions on the land in dispute in the year 2001. The Photographs with their negatives taken by the Plaintiff’s Photographer at various stages of the said constructions on the land in dispute by the defendant are hereby pleaded.
(16) About 60 years, later, Alase Oddo, came from Oyo and joined him at lsale-Osi, Ibadan and Kure Awojobi granted the said Afase Dodo some parcel or piece of land around Gege River, Ibadan which is not far from Isale-Osi, Ibadan where the Alase Dado has no land of his own at Gege Adero, but it was Kure Awojobi who granted them when they are near Gege River, Ibadan, and he is not a relation of Kure Awojobi, he is his guest from the same Oyo.
(17) The Plaintiff will contend at the trial of this action that Kure Awojobi did not at anytime grant any piece or parcel of land on his land at Old Lagos Road, starting from lyana Felele left and right up to Agunbelewo now Adelabu market, Ibadan to any of Alase Dado family of Gege Adero, Ibadan.
(18) The purported sale of a piece or parcel of land including the land in dispute by people who claimed to be members of Alase Dado family of Gege Adero of Ibadan or members of Alase Dado family of Gege Adero of Ibadan to Emmanuel Ayodele Aboderin or to any other persons in fraudulent as Alase Dado has no land in the area where the land in dispute is situated “.
Pursuant to Order 24 Rule 2 of the Oyo State High Court (Civil Procedure) Rules 1988, the Respondent by a motion dated 1st November, 2004 prayed the lower court for:-
“(a) An Order setting down for hearing the Preliminary Objection raised in paragraphs 32 and 33 of the Statement of Defence filed by the Defendant;
(b) An Order dismissing the Plaintiff’s action on the ground that it is statute barred not being commenced within 12 years or 10 years from 1973 when Plaintiff/Respondent was prevented from claiming the land by Defendant’s predecessor in title”.
An eighteen paragraph affidavit supported Respondent’s motion on notice.
Paragraphs 1, 7 and 16 of the supporting affidavit being important are hereunder supplied:-
“(1) I am the defendant in this suit in which Plaintiff is claiming declaration of title to my land situate lying and being near Crown Chemist Limited Challenge, Ibadan, He is also claiming damages and an order of injunction.
(7) Mrs Christianah Ebun Adaramaja (Nee Folami) claimed to have bought the land from Saibu Gbadamosi and another person and supported her claimed with a Deed of Conveyance dated 1st June 1973 and register as No. 18 at page 18 in volume 1591 in the Lands Registry at the office in Ibadan.
(16) Plaintiff is asking for damages of only N10,000:00k in respect of a parcel of land I have spent millions of naira to develop. It reveals how indigent they are”.
A six paragraph Counter Affidavit was filed in opposition to the Respondent’s Application. Paragraph 5 (i), (ii), (iii), (iv), (v), (vii), (viii), (ix), (x), xi), (xii), (xiii), (xiv), (xxiv) and (xxv) being relevant are reproduced hereunder:-
“(5)(i) That the plaintiff purchase the said piece or parcel of land from Kure Awojobi family of Isale-Osi, Ibadan with a Deed of Conveyance dated 1st June 1983 prepared in favour of the Plaintiff by the accredited members of Kure Awojobi family
(ii) That the certified Photostat copy of the said Deed of conveyance is herein attached and marked as Exhibit “A”.
(iii) That the said Deed of Conveyance has not been set aside by any court since then and up till today.
(iv) That the said Deed of Conveyance dated 1st June, 1973 was registered as No.18 page 18 in volume 1591 of the Register of Deeds.
(v) That the Plaintiff is still the Legal owner of the said piece of land in dispute notwithstanding that the Kure Awojobi family has refunded her purchased money to her when she was prevented from embarking on the building construction on the said land.
(vii) That since then Kure Awojobi family and the Plaintiff has been in possession of the said land until sometimes in the year 2002 when the Defendant started building construction thereon without the authority of the Plaintiff or Kure Awojobi family.
(viii) That immediately the Mogaji of Kure Awojobi family filed legal action against the Defendant in suit 1/792/2002.
(ix) That the said suit was withdrawn by the Saibu Gbadamosi having realized that the legal title still remains with the Plaintiff in this case notwithstanding that her purchase price has been refunded to her by Kure Awojobi family.
(x) That the said Folarin Awojobi did not go to the said land again, hence there is no basis to file legal action against him.
(xi) That the photograph of the building foundation embarked upon by the Defendant in the year 2002 is herein attached and marked as Exhibit “C”.
(xiii) That it was the Defendant who ejected the aforementioned transporters when the Defendant wanted to embark on the construction thereon in the year 2002.
(xiv) That the said act complained of against the Defendant by the Plaintiff started in the year 2002.
(xxiv) That the Plaintiff built a small fence round the said land which were destroyed by the Defendant when the Defendant wanted to embark on the construction on the land in dispute in the year 2002″. (Underlining supplied for emphasis)
The lower court heard arguments of counsel and subsequently in a considered ruling dated 20th December 2004 sustained Respondent’s objection and dismissed Appellant’s action. The court held that the action was statute barred.
Being dissatisfied, the Plaintiff has appealed against the court’s decision on an amended Notice containing eight grounds.
Respondent has challenged, by way of preliminary objection, the jurisdiction of this court to hear and determine this appeal. Arguments regarding the prelimlllary objection as well as Respondent’s reply to those advanced by the Appellant in support of the appeal are contained in Respondent’s brief of argument. The brief has been adopted and relied upon by the Respondent at the hearing of the appeal. It is argued therein that all the grounds in the Notice of this appeal had not arisen from the ruling being appealed against. The complaints articulated in the grounds are not in relation to the issues raised in and determined by the court which decision is being appealed against. This submission particularly relates to grounds 1, 3, 4, 7 and 8 which Learned Respondent’s Counsel insists raise complaints in respect of matters that were never considered by the trial court. Learned Counsel referred to ground 1 and contends that the lower court did not, as complained by the Appellant, make use of Exhibits A – E which are photocopies of certified public documents. Pages 75 and 81 line: 40 of the record of proceeding, Respondent’s Counsel further contends, bears out the trial court. In the same vein, Counsel has contended that ground 3 is incompetent since it raises the issue of who the rightful owners of the land in dispute was rather than the issue whether such a person had timeously approached the lower court with the reliefs that were claimed.
Further challenging the competence of the appeal, Learned Respondent Counsel submits that ground 4 is incompetent since it is a complaint that the trial court had failed to address the issue of fraud raised against the Respondent. It is contended that Appellant’s claim as adumbrated in paragraph 40 (1-3) of the statement of claim does not include a relief for fraud committed by the Respondent. The issue of fraud occurred only in paragraph 18 of Appellant’s reply to Respondent’s statement of defence. Since Appellant had neither pleaded the issue in her claim, nor placed same for consideration by the lower court, the issue remains unavailing to the Appellant.
Grounds 5 and 6 on the Appellant’s notice should also be struck out as same are affected by the same malaise. Ground 5 is the omnibus ground of appeal. The decision of the court being appealed to the effect that Appellant’s cause of action arose in 1973, submits learned Respondent Counsel, rests squarely on the Appellant’s claim. The complaint that the decision is not supported by the evidence placed before the court does not, therefore, also avail the Appellant. Ground 6 alleges that the lower court had failed to call for oral evidence in the face irreconcilable conflicts in the evidence of the parties. Learned Respondent’s contends that the ground is equally incompetent. The lower court did not make use of the affidavit of parties let alone be confronted by the conflicts Appellant alleged were irreconcilable. In support of all the foregoing arguments, learned Respondent Counsel has relied on Saraki vs. Kotoye (1992) 9 NWLR (Pt. 264) 156; Egbe Vs. Alhaji (1990) 1 NWLR (Pt. 128) 546 at 590 and Adesanya vs. President of Nigeria (1981) 1 NCLR 358 and reiterates that the grounds be struck out.
Learned Counsel finally attacks the 8th ground of Appeal. The ground, he argues, is incompetent because it neither incorporated the passage in the judgment wherein the misdirection or error of law occurred nor specified the nature of the error and its particulars as required by Order 3 Rule (2) of the 2002 rules of this court. On the authority of Ijeaka vs. Erisi (1988) 2 NWLR (Pt. 78) 563 and Amadi vs. Okoh (1977) SC 57. Learned Counsel urges that the preliminary objection be up held and the appeal struck off.
The Appellant’s reply brief sequel to her being served with the Respondent’s brief with arguments on the preliminary objection raised by the latter, was deemed properly filed on 11/4/07 pursuant to the order of this court. The reply brief contains feeble reply to arguments proffered in respect of Respondent’s preliminary objection. Learned Appellant’s Counsel submits in the reply brief that all the grounds of appeal in their notice are neither vague nor is the submission that they had not drawn from the lower court’s decision correct. It cannot be disputed, Appellant’s Counsel submits that Exhibits A, AI, B C, D and E annexed to the affidavit in support of Respondent’s preliminary objection are photocopies of public documents. The exhibits had been relied upon by the Respondent and were alluded to by his Counsel to press the objection raised against the competence of Appellant’s suit. The lower court’s conclusion that Appellant’s action is statute barred draw from these Exhibits rather than the Appellant’s claim and thus the complaint in Appellant’s first ground of appeal.
It cannot be Learned Respondent’s Counsel is correct in his submission that the record of appeal does not bear out Appellant’s claim that her first ground of appeal draw from the decision being appealed against. At page 81 lines 40-41 of the record, the lower court states as fol1ows:-
“I am not mindful of Mr. Onifade’s Objection to the Exhibits attached to the application. These exhibits were not used or considered by the court in arriving at its decision. The objection is therefore of no consequence to this application.” (Underlining supplied/or emphasis)
The foregoing finding abides. The complaint articulated in ground I of this appeal cannot, therefore, be said to have arisen from the court’s decision. The court did not rely on the exhibits in its decision. It cannot be accused of having wrongly used the exhibits it never had recourse to let alone use same in the manner complained of by the Appellant in her first ground of appeal. A ground of appeal that is at large having not arisen from the judgment appealed against is incompetent and ground 1 herein being such ground is hereby struck out. See Okpala vs. Okafor (1991) 7 NWLR (Pt. 204) 510 and Simetequip Ltd. vs. Omega Bank Plc. (2001) 16 NWLR (Pt. 739) 324.
One further agrees with the Learned Respondent’s Counsel that the malaise which affected Appellant’s first ground of appeal does affect grounds 2, 4, 5, 6 and 7 as well. Learned Counsel maintains that their objection was determined by the lower court completely within the con of Appellant’s statement of claim and that the court did not refer to the affidavit in support or opposition to the objection or the documents annexed thereto.
It is clear to me that the ruling appealed against has evolved entirely from the Plaintiff’s statement of claim. Any assertion that the court’s decision has wrongly arisen from evidence in support of the application raising the preliminary issue, having not been borne out by the record, is incorrect. It is to that extent incompetent and must be discountenanced. It is for this reason that grounds 5, 6, and 7 of Appellant’s notice of appeal must and are hereby jettisoned. In particular, ground 5 alleges that the decision being appealed against is against the weight of evidence. This is the omnibus ground that have repeatedly been adjudged inappropriate in civil cases and all the more so when the decision in the instant case is not one that rests on the lower court’s consideration of evidence be it affidavit or viva voce. See Aku vs. Aneku (1991) 8 NWLR (Pt. 209) 280 at 287.
It must again be stressed in relation to ground four, and this point has also been alluded to by the Respondent’s Counsel, that the issue of fraud was raised in the Appellant’s reply to the statement of defence and same did not feature in the ruling of the lower court. Appellant’s feeble reply to Respondent’s devastating challenges to these grounds has not advanced Appellant’s cause.
This appeal survives on the basis of ground 3 and more so ground 8 of the notice of appeal. These grounds read:-
“(3) The lower court erred in law when he failed to consider the fact that the Plaintiff is still the legal owner notwithstanding that she has collected back her purchased price from Kure Awojobi family.
Particulars:
(i) The Plaintiff is a registered owner and legal owner of the and in dispute and until there is contrary to that effect which is until when her Deed of Conveyance dated 1st June, 1973 is set aside by the court. The said Deed of Conveyance is registered as No, 18 page 18 Volume 1591.
(ii) That all efforts of the Plaintiff to recover this land in dispute to Awojobi Family has been frustrated by the Defendant, who has registered the land in his name and placed caution on it”.
“(8) The Learned trial Judge erred in law when he determined the substantive suit in the interlocutory application. Particulars:
(i) The Supreme Court has warned in many cases that the lower courts should do away in determining the substantive suit in an interlocutory matter before the court in the same case.
(ii) That such by the lower court prejudice the issues in contention between the parties in the substantive suit “.
These two grounds clearly draw from the decision appealed against and are not bedeviled by other shortcomings under the law. The two are not vague. They convey, in compliance with Order 3 Rule 2 (2) of the Court of Appeal Rules, in very crystal term, the lapses which in Appellant’s view should form the basis of setting aside the lower court’s ruling dismissing Appellant’s suit for being statute barred. Appellant’s appeal is accordingly competent having endured on the basis of these two grounds. The objection raised by the Respondent regarding the competence of the appeal has for this reason failed and is hereby dismissed.
This appeal must be determined within very narrow boundaries. Grounds 1, 2, 4, 5, 6 and 7 in the Appellant’s notice of appeal have just been adjudged incompetent as same had wrongly accused the lower court for unlawfully or insufficiently using evidence, affidavit evidence, in the determination of Respondent’s objection. The position canvassed by the Respondent and eventually upheld by this court in arriving at its decision to declare these grounds of appeal incompetent has been that Appellant’s supposition could not be borne out by the record of appeal. Indeed the record has shown that the decision of the trial court had evolved purely on the basis of Appellant’s statement of claim rather than the affidavit evidence for or against Respondent’s objection as asserted by the Appellant. Since grounds 3 and 8 in the Appellant’s notice have survived, the appeal shall have to be detennined on the basis of those issues distilled from these surviving grounds and the arguments under those issues, It must be stressed at this point that Appellant’s issues which are distilled from grounds 1, 2, 4, 5, 6 and 7 that have been adjudged incompetent are necessarily incompetent too, As it is impossible to place something on nothing, only competent grounds of appeal give rise to live and competent issues for the determination of an appeal. See Macfoy vs. U.A.C Ltd. (1962) 5 SCNLR 152 and Skenconsult (Nig.) Ltd. & Ors vs. Ukey (1981) 1 SC at 9. The live issues in the Appellant’s brief appear to be her 1st and 4th issues. The 1st issue distilled from grounds 2, 3, 4 and 7 read as follows:
“Whether having regard to the writ of summons, statement of claim, reply to the statement of defence of the defendant filed in his suit. Counter Affidavit filed by the Plaintiff/Appellant with the exhibits attached to it and address of the Plaintiff/Appellant’s Counsel before the lower court, the learned trial judge was right to have dismissed the Plaintiff’s case on the ground that the action of the Plaintiff is statute barred “.
Appellant’s 4th issue distilled from the 8th ground of appeal reads:-
“Whether it is proper for the court below to have determined the substantive suit in the interlocutory application contrary to the decisions of the Higher Courts “.
On Respondent’s part a lone issue for our consideration in the determination of the appeal reads:-
“Was the learned trial judge not correct to conclude as he did that Appellant’s case was statute barred based on the pleadings filed by the Appellant “,
Now, Respondent’s further objection relates to the Appellant’s brief so far as it contains issues and arguments based on incompetent grounds of appeal. We have already held some of Appellant’s grounds of appeal, given learned Respondent Counsel’s submission in that vein, incompetent. Appellant’s first issue for determination is said to have been distilled from grounds 2, 3, 4 and 7.
Of these grounds only the 3rd ground of appeal endures, others have been adjudged incompetent. The question learned Respondent Counsel still asks is whether a single issue can be distilled from competent as well as incompetent grounds of appeal. The simple answer is no.
It is trite that an Appellant who distills and argues a single issue for the determination of his appeal from more than a single ground of appeal some of which is/are competent and other(s) incompetent would have such issue and arguments struck out. It is never the duty of the Appellate court to separate arguments in respect of the competent ground(s) of appeal from the incompetent one(s). See Nwadike vs. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Korede vs. Adedokun (2001) 15 NWLR (Pt. 736) 483 and Kadzi Int’l Ltd. vs. Kano Tannery Co. Ltd. (1004) 4 NWLR (Pt. 864) 545 at 563. Applying the foregoing rule of practice to the facts of the instant case, Appellant’s first issue for the determination of the appeal is distilled from more grounds than one: 2, 3, 4 and 7. Of these only the 3rd ground has endured with grounds 2, 4 and 7 having been adjudged incompetent. The first issues as well as the arguments advanced under the issue are on the authorities, incompetent. Both are therefore discountenanced.
Appellant’s only surviving issue is her 4th issue distilled from the 8th ground of appeal. The issue challenges the propriety of the trial court’s determination of the substantive issue before it at interlocutory stage. The Respondent’s lone issue asks whether the trial court’s conclusion that Appellant’s suit is statute barred is correct. Both issues can be married given the provision of Order 6 Rule 5 of the 2007 Rules of this court to ensure that substantial justice is done to the parties to the appeal. What this court would consider in the determination of the instant appeal is whether the lower court is empowered to and has applied correct principles in its dismissal of the suit before it for being statute barred.
Learned Appellant’s Counsel is right in his submission that on the authorities a court must refrain from determining a substantive matter at the interlocutory stage. And the authorities here are legion. They include: U.B.A. PLC. vs. ACN (Nig.) Ltd. (2005) 12 NWLR (Pt. 939) 232; SCGA (Ltd.) Plc. Vs. Mohammed (2004) 4 NWLR (Pt. 862) 20; Odunmeru Vs. Adenuga (2000) 4 NWLR (Pt. 651) 124 and Jabre (1999) 3 NWLR (Pt. 596) 606. The principle of law Learned Counsel seems to canvass is however inapplicable to the facts of the case at hand. Order 24 Rules 2 and 3 of the lower court’s adjectival laws provides as follows:-
“2. Any party shall be entitled to raise by his pleading any point of law, and any points 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.
3. If in the opinion of the court or a judge the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action or make such other therein as may be just”. (Underlining supplied for emphasis)
The foregoing certainly entitled the Respondent to raise in his pleadings and formally thereof apply for the preliminary point to raised by the Respondent substantially has disposed Appellant’s whole cause of action, the Rule empowered the Court to dismiss the cause of action. And this precisely was the procedure employed by the lower court which by its Rules of practice as gleaned from judicial decisions it was entitled to employ. See Nnonye vs Anyichie (2005) 1 SC (Pt.20) 96. The critical question to answer here is whether the court had in the course of deciding whether or not Appellant’s action was statute barred, considered the correct determinants. From our determination of Respondent’s objection to the competence of this appeal and perusal of the record of appeal, the lower court, the Respondent has averred and we sustained the view, had limited its consideration of Respondent’s preliminary point to the Appellant’s claim. That is the correct approach. See Woherem vs Emereuwa (2004) 13 NWLR (Pt. 890) 398.
Where a court is called upon to determine whether or not a party’s cause of action is statute bared it discharges this duty by looking at the writ of summons and the statement of claim only to ascertain the date when the party’s cause of action arose against the background of the writ of summons was filed. A cause of action is the wrong or injury the Plaintiff alleges the defendant had committed and on which basis the relief in the suit was asked for. A cause of action, therefore, arises from the date or time the injury which the Plaintiff approaches and asks the court to redress occurred. The right of the Plaintiff which has been breached and which he seeks to enforce does not endure forever.
Legislations are often in place necessarily curtailing the injured Plaintiffs right of action.In the instant case the Respondent had asked the lower court to decline jurisdiction over Appellant’s case because Appellant had commenced her action outside the time the law provided that such actions must be commenced.
Appellant’s cause of action as encapsulated in paragraph 7 of her claim accrued sometimes in August 2002 even though the land in dispute had devolved on her in 1973. Appellant’s complaint is against the conduct of the Respondent in August 2002 and not targeted at the wrong caused by Respondent’s predecessor in title as contended by Respondent and wrongly upheld by the lower court. Whether or not Appellant’s action was statute barred, therefore, depended on whether Appellant had commenced her suit within the time the law allowed that the action could be brought from the date when the conduct complained of occurred. By Section 6(2) of the Limitation Law CAP 64 Laws of Oyo State of Nigeria 1978 and/or Section 3 Limitation (Edict) Law 1989 of Oyo State, Appellant’s action must be commenced within a maximum period of twelve years from the date her cause of action accrued. The cause of action from Appellant’s writ and statement of claim accrued in August 2002 when Respondent trespassed onto the land. The writ of summons against the Respondent was filed on 1st June 2004.
The lower court’s finding that Appellant’s cause of action had accrued in 1973, the date the land in dispute was conveyed to the Appellant, is irredeemably wrong. The court’s further finding that Appellant’s cause of action was statute barred not surprisingly, is equally wrong. Where the statute of limitation provides twelve years within which the Plaintiff must seek redress and the Appellant in the instant case commenced action for such a redress within two years after the accrual of her cause of action, it is wrong for such a cause to be adjudged statute barred, See Woherem vs. Emereuwa Supra Savannah Bank of Nigerian Ltd. vs. Pan Atlantic Shipping & Transport Agencies Ltd. (1987) 1 NWLR (Pt. 49) 212 and Odubeko vs. Fowler (1993) 1 NWLR (Pt. 308) 637. In the event therefore, one finds merit in this appeal and it is accordingly allowed.
The decision of the lower court striking Appellant’s cause of action for being statute barred and incompetent is hereby set-aside. The suit is remitted back to the Oyo State Chief Judge for same to be assigned to another judge who would determine the suit on the merits. Appellant is entitled to costs of this Appeal Ordered at N20,000:00k against the Respondent.
Other Citations: (2007)LCN/2545(CA)
