Hajiya Aisha Aliko Mohammed V. The Executive Governor of Kaduna State & Ors (2016)
LawGlobal-Hub Lead Judgment Report
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
This is an appeal against the Ruling of the High Court of Kaduna State delivered by Hon. Justice Balogun on the 13th day of March 2012, dismissing the suit of the Appellant (Plaintiff therein) on the ground that it was statute barred, consequent upon a Motion filed by the Respondents. Aggrieved by the Ruling, the Appellant filed a Three Ground Notice of Appeal dated and filed on the 12th day of April 2012.
In prosecution of the appeal, the Appellant filed a Brief of Arguments dated 12/6/15 and filed on 13/6/15, settled by Ogbeni Biola Oyebanji of Biola Oyebanji & Co. The Respondents, in spite of service on them of the Appellant’s Brief filed no Briefs of Argument. Following an application by the Appellant, leave was granted for the hearing of the appeal solely on the Appellant’s Brief.
Learned Counsel to the Appellant formulated a sole issue for determination to wit:
Whether or not from the totality of facts deducible from the file of the land marked EXH ?A?, the action instituted by the Appellant was statute barred.
On the lone issue formulated, learned
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Counsel submitted that a cause of action has been judicially stated to be a sets of facts which gives a person a right to judicial relief and that a cause of action is said to have arisen on the date of the occurrence, neglect or default. He referred this Court to the case of Mosojo v Oyetayo (2003) 13 NWLR part 837 Page 340. This presupposes that where a statute of limitation prescribes a period within which an action could be brought, legal proceedings cannot properly and validly be brought or instituted after the prescribed period. Citing the cases of Ogunko v Shelle (2004) 6 NWLR Part 858 Page 17 and Osun State Govt. v Dalami Ltd (2007) 9 NWLR Part 1038 Page 66 at 81/82, he submitted that an action brought after the expiration of the period is said to be barred. Time, he said, begins to run, for the purposes of determination of the limitation period, from the date the cause of action arose. The law is settled, he submitted, that it is only the Writ and the Statement of Claim and not the defence that shall be considered. The Court, he said, is precluded from considering any facts pleaded by the defence.
?Counsel alleged that the trial judge, who stated
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the principles of law correctly, later misapplied the said legal principles, referring to affidavits filed by the parties.
The issue for determination formulated by the Appellant, to wit, whether or not from the totality of facts deducible from the file of the land marked EXH “A”, the action instituted by the Appellant was statute barred, is inappropriate, I hold. This is because, as held in the case of Attorney General Of Adamawa State & Ors V. Attorney General of the Federation (2014) LPELR-23221(SC) per Mary Peter-Odili JSC “..in the consideration of whether an action is caught by the statute of limitation, what is of paramount consideration is the determination of:
(a) the cause of action;
(b) when the cause of action accrued; and
(c) when the action become statute-barred.
To determine the conditions above, what the Court would look at are the Writ of Summons and the Statement of Claim alleging when the wrong which gave the Plaintiff a cause of action was committed and by comparing that date with the date on which the Writ of Summons was filed.” Underlining Mine.
Thus, it is to the writ of Summons and not the affidavit that
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the Court has recourse to.
The issue that accordingly arises for consideration, is simply the following:
Whether the claim of the Appellant was statute barred.
In holding in the affirmative, the lower Court held as follows, at Pages 153-154 of Record:
“It is also trite that a cause of action is a factual situation that gives a person a right to judicial relief. See Okehenwa v. Mill Gov. Imo State Supra at pages 153 and 167 Section 4 of the Limitation Law of Kaduna State 1991, states thus:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the right of action accrued to him, or if it firs accrued to some persons through whom he claims, to the person.”
From the above, once a suit for recovery of land is instituted more than 10 years after the cause of action arose, a Court is robbed of jurisdiction to entertain the suit.
It is also trite that in such a case, it is the plaintiff’s case that should be considered and not the defence since the defence is usually a contradiction of the case put up by the plaintiff.
The plaintiffs case is that she was given a
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right of occupancy only in 2007 and it was after this she noticed the encroachment of some unknown persons who had been allocated part of her land in 2007.
The defendant’s contention is that the allocation was done since 1995.
If this was all the plaintiff presented, I would have held that the date for the accrual of the cause of action is in dispute and would have proceeded to hear evidence as suggested by learned counsel to the plaintiff B. Oyebanji Esq in his address.
The plaintiff is however relying on the land file which was relied upon in his application.
I have seen the land file and especially pages 15 – 48 of same and I see that the issue of the land forming part of layout No. 426 arose since 1986. And on page 28, it was clearly shown that the plaintiff was notified of the overlap.
The file further shows that the grant of the applicant’s application is subject to removal of any overlaps with the government layout during final survey and there is evidence that the area granted excluded the area of overlaps.
There is nothing in the file or in the plaintiff’s case to show that the plaintiff protested when the defendants
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in 1986 informed the plaintiff that part of the area she applied for falls within their TPO 462.
In the circumstance, I hold that by the plaintiffs document, the issue of overlaps of part of the plaintiffs plot with TPO 462 arose over 10 years ago. I am therefore robbed of the jurisdiction to entertain this claim by virtue of Section 4 of the Limitation Law of Kaduna State 1997.
In the circumstance, this matter is dismissed.
The effect of a limitation law has been given in numerous decisions of the Court. In the recent decision of Independent National Electoral Commission V Ogbadibo Local Government (2075) LPELR-24839(SC), It was held by the Supreme Court, per Kekere Ekun JSC that the effect is that:
?….it deprives the Court of jurisdiction to entertain a matter instituted outside the limitation period and it also forecloses a litigant’s right to enforce a cause of action, which he might otherwise have had, once the stipulated time for bringing the action has elapsed. The right becomes extinguished by effluxion of time…”
Reading the lead judgment, in the case of INEC V Ogbadibo LC Supra, Galadima JSC held as follows:<br< p=””
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?….In ATUNRASE v. SUNMOLA (1985) 1 NWLR (Pt.1) 105 at 120, this Court giving reasons why persons with good causes of action should pursue them with reasonable diligence, this Court stated thus; “In all actions, suits and other proceedings at law and in equity, the diligent and careful actor or suitor is favoured to the prejudice to him who is careless and slothful, who sleeps over his rights. The law may therefore deny relief to a party who by his conduct has acquiesced or assented to the infraction of his rights, or has led the opposite party responsible for or guilty of such infringement to believe that he has lived (sic) or abandoned his right.” It was Abbott C.J in BATTLEY v. FAULKNER 106ER, 668 at 670 who had this to say: “The statute of limitation was intended for the relief and quiet of the defendants and to prevent persons from being harassed at a distant period of time after the committing of the injury complained of.” In the case of BOARD OF TRADE V. LAYSER IRVINE & CO. LTD (1927) A.C. 610 at 628, Lord Atkinson said: “The whole purpose of the Limitation Act is to apply to persons who have good causes of action which they could if so
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disposed, enforced (sic) and to deprive them of power of enforcing them after they have lain by for a number of years respectively and omitted to enforce them. They are thus deprived of the remedy which they have omitted to use.” This Court, in the case of AJAYI v. ADEBIYI (supra) on the essence of statute of limitation stated as follows:- “The essence of a limitation law is that the legal right to enforce an action is not a perpetual right but a right generally limited by statute where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. Therefore a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had lapsed. An action which is not brought within the prescribed period, offends the provisions of the law and not give rise to a cause of action. The yardsticks to determine whether an action is statute-barred are: (a) The date when the cause of action accrued.
(b) The date of commencement of the suit as indicated in the writ of
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summons. (c) Period of time prescribed to bringing an action to be ascertained from the statute in question. Time begins to run for the purposes of the limitation law from the date the cause of action accrues.?
See also Egbe v Adefarasin (1987) 1 NWLR (pt. 47) at 20.
As pointed out in the case of A/G Adamawa State v A/G Federation Supra and Independent National Electoral Commission v Ogbadibo Local Government Supra, in the determination of whether an action is caught by the statute of limitation, it is to the Writ of Summons and the Statement of Claim that one looks, in ascertaining when the wrong which gave rise to the cause of action complained of by the Appellant, arose. This date is then compared with the date the Writ was filed.
The lower Court, while correctly giving the principles that apply in the determination of when a case is statute barred, was, however in grave error, to have jettisoned those principles and resorted to a consideration of various affidavits filed by the parties and contents of files, in the determination of the date of accrual of the cause of action.
?In the determination of the date of accrual of a cause
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of action, the Court cannot, I hold, go outside the pleadings filed by the plaintiff, not even to the Statement of Defence of the Defendant. See Mulima v Usman (2014) 16 NWLR Part 1432 Page 160 at 199 Para A per Okoro JSC.
?Proceeding now to the Statement of Claim, contained at Pages 3-6 of the Record, the Appellant has averred that she is the Proprietress and Chairperson of the Trustees of Aisha Mohammed International School and had embarked over the years in the purchase of land from the customary holders of the land for the purpose of a permanent site for the school. She subsequently applied for the allocation of a Statutory Right of occupancy over the land on the 7th day of March 1984.
Following a series of correspondence between herself and the various Respondents and the payment of the required fees, she was granted a provisional offer of Grant by the 3rd Respondent and later granted a Statutory Right of Occupancy on 13/11/2007. Sometime in December 2008, persons unknown encroached on the land and were speedily erecting buildings thereon. She wrote in vain to the 3rd Respondent and when there was no response, instituted an action claiming, by
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Paragraph 19 of her Statement of Claim, the following reliefs against the Respondents jointly and severally:
a. A DECLARATORY order of this Honourable Court that the piece or parcel of Land measuring 5.778 Hectares or 14.28 Acres situate at Malali and as depicted in Kaduna belongs to the Plaintiff at all times prior to the trespass sheets which committed by other persons unknown upon the authority of the Defendants which 35 & 35 a it had not been able to sustain.
b. AN ORDER of perpetual injunction against the defendants, their agents and those claiming authority and on or behalf from the Defendant jointly and severally from interfering with the possession of the plaintiff which suit had acquired more than 30 years ago.
c. AN ORDER of this Honourable Court restraining the Defendants from perfecting any Title, beneficial, tenurial and of whatever form in favour of any other person, corporate or incorporate except to formalize and specifically to conclude the issuance of the statutory C of O in favour of the Plaintiff..
d. AN ORDER of this Honourable Court declaring NULL and VOID any other title in favour of any person(s), corporate or
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incorporate which covers is or super imposed on the piece or parcel of land already vested in the plaintiff and as was being issued to her by the expressed Grant.
e. AN ORDER of this Honourable Court setting aside ALL or ANY of the Title created in favour of any person corporate or incorporate which title runs contrary to the pre-exiting and subsisting Title of the Plaintiff.
f. The Cost of this suit
A cause of action is defined as a combination of facts and circumstances giving rise to the right to file a claim in Court for a remedy. It normally arises as soon as the combination of acts giving a right to complain accrues or happens. See Mulima v Usman Supra at 199 Para F-H per Okoro JSC; Sulgrave Holdings Inc. v FGN (2012) 17 NWLR Part 1329 page 309 at 338; Mosojo v Oyetayo Supra; Labode v Otubu (2001) 7 NWLR Part 712 Page 256 at 280 Para D-F per Onu JSC.
In the instant case, the date of accrual of the cause of action is stated in Para 17 of the Statement of Claim, as follows:
17. Sometime in December 2008, persons unknown have sporadically embarked upon and encroached over the land of the Plaintiff, speedily constructing building
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over same. Realizing this, the plaintiff wrote a letter of petition to the office of the 3rd defendant to kindly assist with any useful information, She waited in vain as this was not forthcoming despite her numerous visits and calls to the office and staff of the 3rd defendant.
From this averment, the cause of action arose in December 2008. The date of filing of the Writ of Summons, as seen on Page 2 of the Record, is one year later, in 17/4/2009, well within the period stipulated in the Section 4 of the Limitation Law of Kaduna State 1991. The Appellant’s case is thus not statute barred, I hold. The lower Court was accordingly seised of jurisdiction to determine the Appellant’s claim.
This appeal succeeds. The Ruling of the lower Court delivered on 13/3/12 by Balogun J of the Kaduna State High Court dismissing the Appellant’s claim, is hereby set aside. The case is remitted to the Chief Judge of Kaduna State for reassignment to another Judge of the Kaduna State High Court, for determination on its merits. Each party shall bear its own costs.
Other Citations: (2016)LCN/8774(CA)
