Mr. Popoola Elabanjo & Anor V. Chief (Mrs.) Ganiat Dawodu (2006)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
This is an appeal from the decision of the Court of Appeal Lagos Division, delivered on 21-3-2001, allowing the appeal brought to it in this case from the ruling of the Lagos State High Court of Justice given on 15-10-1999, in which that court struck out a preliminary objection to its jurisdiction brought under section 16(2)(a) of the Limitation Law, Cap. 118, Laws of Lagos State, 1994. The Court of Appeal in its judgment allowing the appeal, set aside the ruling of the trial High Court, sustained the preliminary objection and dismissed the plaintiffs’ suit as being statute barred. The appellants who were the plaintiffs at the trial High Court filed their action on 5-12-1996 against the respondent who was the defendant and claimed in their statement of claim paragraph 17 as below:
“17. Whereof the plaintiffs claim as follows:
(a) The plaintiff (sic) claim against the defendant is for possession of two and half plots of land situate, lying and being at Ifako, Bariga, Gbagada, Lagos State the land already adjudged as the property of late David Taiwo Elabanjo (the plaintiffs (sic) father) by the Supreme Court of Nigeria in suit No. SC/85/1985 Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952.
(b) Perpetual injunction restraining the defendant, her servants, agents and privies from further trespassing on the land.
(c) N50.000.00 damages for acts of trespass.”
On being served with the plaintiffs’ statement of claim, the defendant without filing a statement of defence to highlight the points of law in her defence to the action, filed a notice of preliminary objection challenging the jurisdiction of the trial court to entertain the suit and specifically claimed:
“1. An order dismissing this suit as the Honourable Court lacks the jurisdiction to entertain the suit.”
This relief was claimed by the defendant in her preliminary objection on the ground that:
“The action is statute barred having been brought in 1996, more than 12 years after the cause of action accrued and outside the prescribed statutory period within which the suit ought to have been instituted.”
After hearing the learned counsel on both sides on the defendant’s preliminary objection, the learned Judge struck out the objection for being incompetent in the following words:
“I refer to Order 23 rule 1 that demurrer shall not be allowed and hold that in the absence of statement of defence, the notice of preliminary objection based on statute bar (sic) is incompetent. The notice of preliminary objection dated 14-6-99 is struck out being incompetent.”
This decision was reached by the trial court without even looking into the merit of the preliminary objection clearly challenging its jurisdiction to entertain the action.
Aggrieved by this decision of the trial court, the defendant headed to the Court of Appeal, Lagos Division and filed her appeal against the ruling and raised the following two issues in her appellants’ brief of argument for the determination of the court.
“i. whether failure to file a statement of defence disentitles or disqualifies an applicant to raise an objection as to the jurisdiction of a court of law to entertain a suit.
ii. whether the respondent’s as plaintiff’s action against the appellants was not statute-barred having been commenced more than twelve (12) years after the cause of action arose.”
After hearing the appeal, the Court of Appeal resolved these issues in its judgment delivered on 21-3-2001 and allowed the appeal holding that the plaintiffs’ action was statute-barred and consequently dismissed the same. The plaintiffs who faulted this decision of the Court of Appeal terminating their suit against the defendant have now appealed to this court seeking a final decision in the matter.
The plaintiffs who are now the appellants in this court have raised two issues in their appellants’ brief of argument which read-
“1. Issue One
Whether the Judgment of the lower court was not entered in total disregard of the provisions of Order 23 rules 1, 2 & 3, of the High Court of Lagos State (Civil Procedure) Rules 1994.
- Issue No.2
Whether the lower Court was right in holding that the action of the appellants was statute-barred;
The defendant now respondent in this court also raised two similar issues as identified in the appellants’ brief through differently framed. The two issues in the repondents’ brief of argument are:
(a) Whether the learned justices of the Court of Appeal were right in holding that a defendant can raise an objection as to jurisdiction of a court without first filing its statement of defence; (arising from ground one of appeal);
(b) Whether the learned Justices of the Court of Appeal were right in holding that the suit of the appellant was statute-barred; (arising from ground two of appeal).”
The issues as identified in the appellants’ brief of argument shall serve as the basis for the determination of this appeal. Starting with issue one, learned appellants’ counsel referred to the provision of Order 23 rules 1, 2 and 3 of the Lagos State High Court (Civil Procedure) Rules, 1994 and argued that the respondent as the applicant before the trial High Court clearly failed to comply with the provisions of the rules in filing her preliminary objection by failing to file a statement of defence. Learned counsel cited and relied on the decision of the Court of Appeal in the case of Disu v. Ajilowara (2001) 4 NWLR (Pt.702) 76 which according to him represents the law on the application and effect of Order 23 rules 1, 2 and 3.
On practice under demurrer proceedings, learned counsel quoted passages from the judgment of this court in Fadare v. A.-G., Oyo State (1982) 1 All NLR (Pt.1) 24 which was referred to in Onibudo v. Akibu (1982) 1 All NLR (Pt.1) 194 at 199-200, and submitted that demurrer proceedings having been specifically abolished by Order 23 rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1994, the respondent ought to have filed a statement of defence wherein the point of law could have been raised and later canvassed in the notice of the preliminary objection. Other cases relied upon by the learned counsel on how preliminary objection in lieu of demurrer is raised include Mobil Oil (Nig.) Plc. v. I.A.L 36 Inc. (2000) 6 NWLR (Pt.659) 146 at 175-176 and Brawal Shipping (Nig.) Ltd. v. F. I. Onwadike & Co. Ltd. (2000) 11 NWLR (Pt.678) 387 at 407. Counsel therefore urged this court to allow the appeal and restore the decision of the trial court. As for the respondent, her learned counsel also referred to the 8 provisions of Order 23 rules 1, 2, and 3 of the Lagos High Court (Civil Procedure) Rules, 1994 and pointed out that the objection of the respondent to the appellants’ action was not brought under the provisions of the rules but under section 16(2)(a) of the Limitation Law, Cap. 118, Laws of Lagos State, 1994, which enjoined the appellants to file their action against the respondent within 12 years after the cause of action had accrued. Learned counsel pointed out that the steps taken by the respondent/applicant in raising her preliminary objection before filing her statement of defence were in line with the decisions in Egbe v. Alhaji (1990) 1 NWLR (Pt.128) 546 at 591; Onibudo & Ors. v. Akibu & Ors. (1982) All NLR 207 at 214; Odiye v. Obor & Anor. (1974) NSCC 103 at 107, (1974) 2 SC 21; Kotoye v. Saraki (1994) 7 NWLR (Pt.357) 414 at 466; and State v. Onagoruwa (1992) 2 NWLR (Pt.221) 33 at 48, because the preliminary objection was challenging the jurisdiction of the trial court. Counsel observed that issue of jurisdiction needed not to have been pleaded in a statement of defence before it could be raised provided the objection is supported by enough material on which a decision could be taken by the court. With regard to the cases of Fadare v. A.-G., Oyo State (supra); Mobil Oil (Nig.) Plc. v. I.A.L. 36 Inc. (supra) and Brawal Shipping Ltd v. Onwadike & Co. Ltd. (supra) cited and relied upon by the appellants, learned counsel believed that the decisions were made per incuriam and that in any case the failure of the respondent to comply with Order 23 rules 1,2 and 3 is a mere irregularity which had been cured by the provision of Order 5 Rule 1 of the same Lagos High Court Rules.
In the reply brief, the appellants maintained that rules of court are meant to be obeyed and that the respondent having regard to the decisions in several cases particularly the case of Ekpan v. Uyo (1986) 3 NWLR (Pt. 26) 63 at 73, is bound to comply with Order 23 rules 1, 2 and 3 of the Lagos High Court Rules, stressing that it is not correct that the decisions of this court on the interpretation of Order 23 rules 1, 2 and 3, were given per incuriam. Learned counsel concluded that it is settled law that statute of limitation must be pleaded and proved if the decision of this court in the case Savannah Bank v. Pan Atlantic (1987) 1 NWLR (Pt. 49) 212 at 259, is taken into consideration because objection on statute of limitations does not amount to a challenge of the jurisdiction of court. The case of Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR (Pt. 4) 587 at B 589-590, (1962) 2 SCNLR 341 was also relied upon.
The complaint of the appellants in their first issue in this appeal is that the court below in its judgment entered in favour of the respondent in allowing her appeal, was in complete or in total disregard of the provisions of Order 23 rules 1, 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994. These rules which are relevant in this respect are:
” 1. No demurrer shall be allowed.
- Any party shall be entitled to raise by his pleading any point of law and, unless the court or Judge in chambers other wise orders, any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.
- If in the opinion of the court or a Judge in chambers, the decision of such point of law substantially disposes of the whole action, or of any distinct cause of action, ground of defence, set off, counter-claim, or reply therein, the court or Judge may there upon dismiss the action or make such other order therein as may be just.”
By these rules quoted above, there is no doubt whatsoever that proceedings by way of demurrer have been abolished by rule 1 and in its place rules 2 and 3 are to be used by parties in raising any point of law in their pleadings, namely, statement of claim, statement of defence, counter-claim or reply to a counter-claim for determination and disposal by the learned trial Judge in the cause of the hearing of the matter or in the judgment at the end of the trial. The rules plainly deal with the procedure to be followed by parties wishing to rely on points of law to raise issues for determination in the course of the trial of the action or after the trial in the final judgment of the trial court. Indeed, the application of Order 23 rule 1 of the Lagos State High Court (Civil Procedure) Rules, 1994 was explained by this court in Mobil Oil (Nig.) Plc. v. I.A.L. 36 Inc. (2000) 6 NWLR (Pt. 659) 146 at 175-176 relied upon by the appellants where Iguh, JSC said:
“I think I should point out that an application by way of demurrer under the Federal High Court (Civil Procedure) Rules, 1976 must not be confused with or mistaken for an application in lieu of demurrer applicable presently in Lagos and the Western State the latter class of applications, the points of law desired to be raised by the defendant as a preliminary issue were required to be set out in the statement of defence before such application in lieu of demurrer is raised.”
By this dictum, all what is being explained is that a defendant wishing to rely on points of law to raise a preliminary issue, is required to set out such points of law in the statement of defence before the preliminary issue is regarded as properly raised. Returning to the present case, it is important to examine the application of the respondent at the trial High Court reproduced at page 5 of the record of this appeal. It reads:
“Notice of preliminary objection brought pursuant to:
(i) Section 16(2)(a) Limitation Law, Cap. 118, Laws of Lagos State, 1994
(ii) Inherent powers of the Honourable Court.
Take notice that this Honourable Court will be moved on Monday the 5th day of July, 1999 at the hour of 9.00 O’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the defendant/applicant for:
(i) An order dismissing this suit as the Honourable Court lacks the jurisdiction to entertain the suit.
(ii) And for such further order(s) as the Honourable Court may deem fit to make in the circumstances.
Ground for the application
This action is statute barred having been brought in 1996, more than 12 years after the cause of action accrued and outside the prescribed statutory period within which the suit ought to have been instituted.
And further take notice that the defendant/applicant in addition to the affidavit in support intends to rely on all processes already filed before the Honourable Court in the determination of this preliminary objection.
Dated this 14th day of June, 1999.”
On the face of this application, one cannot but agree entirely with the learned counsel to the respondent that the point of law raised by the respondent in the application before the trial High Court is not an ordinary point of law that could have been raised under Order 23 of the Lagos State High Court (Civil Procedure) Rules, 1994.
The application was plainly brought under the provisions of the Limitation Law, Cap. 118 of the Laws of Lagos State, 1994 to challenge the jurisdiction of the trial court that it has no jurisdiction to entertain the appellants’ action for their failure to bring the action within the period of 12 years prescribed by the law. As the respondent being defendant had perceived that the action as constituted before the trial court against her was not worth defending, was perfectly justified in refusing to avail herself of the provisions of Order 23 of the High Court Rules, by filing her statement of defence before raising her objection against the jurisdiction of the trial court. This is because the law is trite that an objection that a court has no jurisdiction to entertain a matter or action is certainly not an ordinary point of law contemplated, under Order 23 Rules 2 and 3 of the Lagos State High Court Civil Procedure Rules. Issue of jurisdiction is very fundamental.1t can be raised at any stage of the proceedings in the High Court, the Court of Appeal and in this court by the parties or suo motu by the court itself. See Oloriode v. Oyebi (1984) 1 SCNLR 390; (1984) 5 SC 1; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508 and Kotoye v. Saraki (1994) 7 NWLR (Pt.357) 414 at 453-454. Therefore it was perfectly in order for the trial court which heard the preliminary objection to have ruled on it one way or the other, rather than striking it out on the ground that no statement of defence was filed before it was brought. The trial court was wrong in taking this stand as found by the court below whose judgment was not given in total disregard of the provisions of Order 23 of the Lagos High Court Rules as assumed by the appellants because being an issue of jurisdiction, these rules cannot dictate when and how it can be raised.
It is now beyond argument that because issue of jurisdiction is regarded as a threshold issue and a lifeline for continuing any proceedings, objection to it ought to be taken at the earliest opportunity as was done in the present case if there are sufficient materials before the court to consider it and a decision reached on it before any other step in the proceedings is taken because if there is no jurisdiction, the entire proceedings are a nullity no matter how well conducted. See Ndaeyo v. Ogunnaya (1977) 1 SC 11; Chacharos v. Ekimpex Ltd. (1988) 1 NWLR (Pt.68) 88; Oloba Akereja (1988) 3 NWLR (Pt.84) 508; Bakare v. Attorney-General of the Federation (1990) 5 NWLR (Pt.152) 516 and jeric (Nigeria) Ltd. v. Union Bank of Nigeria Plc. (2000) 15 NWLR (Pt.691) 447. It is quite clear from these decisions of this court that at any stage sufficient facts or materials are available to raise the issue of jurisdiction, or that it has become apparent to any party to the action that it can be canvassed, there is no reason why there should be any delay in raising it. In Petrojessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt.244) 675 at 693, Belgore JSC put it plainly thus:
“Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity… This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this court; afortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.”
In the instant case, all the circumstances and attributes outlined in the Petrojessica v. Leventis Technical (supra), were on the ground when the respondent filed her preliminary objection at the trial court which erroneously refused to rule on it on the alleged ground that it was not competent having been filed before filing a statement of defence. To say, as did the trial court and canvassed by the appellants in their arguments before this court, that objection to jurisdiction should only be taken after the filing of a statement of defence, is indeed a misconception. This entirely depends on what materials were available. Objection to jurisdiction could be taken on the basis of the statement of claim as in Izenkwe v. Nnadozie (1953) 14 WACA 361 at 363; Adeyemi v. Opeyori (1976) 9-10 SC 31 and Kasikwu Farms Ltd. v. Attorney-General of Bendel State (1986) 1 NWLR (Pt. 19) 695. it could be taken on the evidence received as was the case in Barclays Bank of Nigeria Ltd. v. Central Bank of Nigeria (1976) 1 All NLR 409; or by a motion on notice supported by affidavit giving the facts upon which reliance is placed as in National Bank (Nigeria) Ltd. v. Shoyoye (1977) 5 SC 181 at 194. In fact it could be taken even on the face of the writ of summons before filing statement of claim. See Attorney-General, Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 at 674 – 675 and the recent decision in Arjay Ltd. v. Airline Management Support Ltd. (2003) 7 NWLR (Pt. 820) 577 at 601 where Onu, JSC was confronted with the issue of raising preliminary objection on jurisdiction before a Federal High Court before filing a statement of claim as required by Order xxvii, of the Federal High Court Rules, Cap: 134, Laws of the Federation of Nigeria, 1990, had this to say –
“I agree with the appellants to the effect that the preliminary objection in question challenged the jurisdiction of the trial court to entertain the action. This is not a demurrer application in which case there should be a statement of claim in place, the facts of which the appellants would be required to admit before bringing their objection. I agree with the appellants’ submission that there is a ‘difference between an objection to the jurisdiction and a demurrer. I also agree with them that an objection to the jurisdiction of the court can be raised at any time, even when there are no pleadings filed and that a party raising such an objection need not bring application under any rule of court and that it can be brought under the inherent jurisdiction of the court. Thus, for this reason, once the objection to the jurisdiction of the court is raised, the court has inherent power to consider the application even if the only process of court that has been filed is the writ of summons and affidavits in support of an interlocutory application, as in the case in hand.” Taking into consideration that at the time the respondent filed her preliminary objection to the jurisdiction of the trial court to entertain the appellants’ suit, not only the writ of summons and the statement of claim had been filled and served but that the preliminary objection was also supported by affidavit with a number of relevant documents exhibited to it together with a counter-affidavit filed in opposition thereof, the fact that no statement of defence was filed at that stage would not have prevented the trial court from determining the objection which is quite competent on the adequate materials already before ,the court. For this reason, the trial court was wrong to have struck out the application as rightly found by the court below.
The cases of Fadare v. A.-G. of Oyo State (supra), Mobil Oil (Nig) Plc v. I.A.L. 36 Inc. (supra) and Brawal Shipping Ltd. v. Onvadike & Co. Ltd. (supra) cited by the appellant are not decisions given per in curiam as erroneously assumed by the learned counsel to the respondent. However, the circumstances under which those decisions were given are not present in the present case where the point of law involve objection to jurisdiction. Furthermore, the case of Savannah Bank v. Pan Atlantic (supra) relied upon by the appellants was decided on its own peculiar facts where the defence under limitation statutes generally was considered. In the present case however, a challenge to the jurisdiction of court was involved under specific provisions of the Limitation Law of Lagos State, 1994 whose provisions are not the same as other Limitation Laws generally.
The second issue is whether the court below was right in holding that the action of the appellant was statute-barred. In his argument in support of this issue, the learned counsel to the appellants observed that when the appellants sighted the respondent on the land in dispute in 1984, there was already a litigation between the predecessor-in-title of the appellants and the predecessor-in-title of the respondent over a large area of land, portion of which is in dispute in the present case. Learned counsel pointed out that the suit which originated from the Lagos High Court, came on appeal to the Court of Appeal and then to this court where judgment was delivered on 12-12-86. On the facts pleaded in the appellants’ statement of claim, stated the learned counsel, the question of the doctrine of lis pendens was raised regarding the conduct of the respondent in acquiring the property in dispute but the court below refused to consider it in its judgment now on appeal. With regard to the date the appellants’ action accrued in the present case, learned counsel argued that although the respondent was sighted on the land in dispute in 1984, the right of action did not accrue to the appellants until 12-12-1986, when the case on the dispute relating to the title on the larger portion of the land was concluded. This, according to counsel, turned the respondent into a party who acquired title to a piece of land while litigation over the control of the land was going on in court. Relying on the cases of Bamgboye v. Olusoga (1996) 4 NWLR (Pt. 444) 520; Osagie v. Oyeyinka (1987) 3 NWLR (Pt.59) 144; Clay Ind. (Nig.) Ltd. v. Aina (1997) 8 NWLR (Pt.516) 208 and Alakija v. Abdulai (1998) NWLR (Pt.552) 1 at 17, counsel submitted that the Deed of Transfer executed by the respondent and her vendor for the transfer of title to the land in dispute having been caught by the doctrine of lis pendens, is null and void and did not transfer any title in the land in dispute to the respondent. Learned counsel finally concluded that as pending litigation over the portion of the land incorporating the land in dispute was not concluded until 12-12-1986, the action of the appellants filed at the trial court on 6-12-1996 was not statute-barred. For the respondent, it was argued by her learned counsel that the appellants suit against the respondent related to land and that under section 16(2)(a) of the Limitation Law, Cap. 118, Laws of Lagos State, no such suit shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it. Quoting paragraphs 7 to 11 of the appellants’ statement of claim, learned counsel said it is clear from these paragraphs, particularly paragraph 7, that the appellants’ cause of action had accrued in August 1984 when the respondent was sighted on the land in dispute; that on the face of the writ of summons the action was not filed until 5-12-1996, a period of twelve years and four months; that this means the appellants have lost their right of action and cannot enforce any right whatsoever on the land. In support of this contention, the respondent’s counsel placed reliance on Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1; Sosan v. Ademuyiwa (1986) 3 NWLR (Pt. 27) 241 at 243; Ajibona v. Kolawole (1996) 10 NWLR (Pt. 476) 22 at 35-36 and Akibu v. Azeez (2003) 1 SC (Pt.11) 71 at 86; (2003) 5 NWLR (Pt.814) 643 and urged this court to affirm the decision of the court below that the action of the appellants was statute-barred and dismiss the appeal. In a short reply in the appellants’ reply brief, the appellants insisted that their action was not statute-barred because the principle of law that time does not run when litigation on a matter has not ended, applied to their case to shift the date the cause of action arose from August 1984 as pleaded in paragraph 7 of their statement of claim, to 12-12-1986 when litigation on the larger portion of the land containing the smaller portion of the land in dispute came to an end.
The second issue under consideration now is whether the court below was right in holding that the action of the appellants was statute-barred. What has to be determined in this issue is whether the action of the appellants was filed within the time prescribed by the Limitation Law, Cap. 118 of the Laws of Lagos State, 1994. Sections 16, 17, 19 and 21 of this law which are relevant provide:
“16(1) Subject to the provisions of subsections (2) and (3) of this section, no action shall be brought by a State authority to recover any land after the expiration of twenty years from the date on which the right of action accrued to the State authority, or if it first accrued to some person through whom the State authority claims, to that person.
(2) The following provisions shall apply to an action by a person to recover land:
(a) subject to paragraph (b) of this subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or, if it first accrued to some person through whom he claims, to that person;
(b) if the right of action accrued to a state authority, the action may be brought at any time before the expiration of the period during which the action could have been brought by the State authority, or of twelve years from the date on which the right of action accrued to some person other than the State authority, whichever period first expires.
(3) For the purposes of this law, a right of action to recover any land which accrued to the Republic or to the Lagos State before the commencement of this Law shall be deemed to have become exercisable by an appropriate State authority on the date on which it first accrued to the Republic or to the Lagos State, as the case may be.
- Where the person bringing an action to recover land, or some person through whom he claims, have been in possession thereof and has while entitled thereto been dispossessed or has discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.
19(1) No right of action to recover land shall be deemed to accrue unless the land is in the possession (in this section referred to as adverse possession) of some person in whose favour the period of limitation can run.
(2) Where:
(a) under the provision of this Law a right of action to recover land is deemed to accrue on a certain date; and
(b) no person is in adverse possession of the land on that date; the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.
(3) Where a right of action to recover land has accrued, and thereafter, before the right of action is barred, the land ceases to be in adverse possession, the right of action shall no longer be deemed to have accrued and no fresh right of action shall be deemed to accrue unless and until the land is again taken into adverse possession. On the expiration of the period fixed by this law, for any person to bring an action to recover land, the title of that person to the land shall be extinguished.”
On a careful reading of the provisions of the Lagos State Limitation Law reproduced above, it becomes quite clear that the provisions do not merely deny the right of action in section 16 thereof but completely extinguish an existing right or title to land at the expiration of the period of limitation of twenty years for the State and twelve years for other parties from the date of the accrual of the right of action. See Ajibona v. Kolawole (1996) 10 NWLR (Pt.476) 22 at 35-36 and Akibu v. Azeez (2003) 5 NWLR (Pt.814) 643 at 667-669, where these provisions of the Lagos State Limitation Law, 1994, came under consideration by this court. The provision of the law are quite clear and unambiguous. What remains is the application of the law to the facts and circumstances of the present case in which the area of the dispute between the parties in their submissions has been narrowed down to the date on which the appellants’ cause of action in their claim for possession of two and half plots of land, damages for trespass and injunction against the respondent accrued. This issue cannot be resolved effectively without stating what a cause of action is all about. A cause of action has been defined in the Dictionary of English Law, Second Impression page 325 as;
“the fact or combination of facts which give rise to the right to sue.”
This definition had been closely adopted in many decisions of this court.
Some of these decisions are, Egbe v. Adefarasin (No.2) (1987) 1 NWLR (Pt.47) 1; Savannah Bank of Nigeria Limited v. Pan Atlantic Shipping & Transport Agencies Limited (1987) 1 NWLR (Pt.49) 212 and Thadant v.National Bank of Nigeria (1972) 1 SC 105. In a recent decision of this court in P.N. Udoh Trading Company Limited v. Abere (2001) 11 NWLR (Pt.723) 114 at 129, the term was defined thus:
“Cause of action has been defined by courts to mean a combination of facts and circumstances giving rise to the right to file a claim in court for remedy. It includes all those things which are necessary to give a right of action and every material fact which is material to be proved to entitle the plaintiff to succeed.” In the instant case, the appellants’ statement of claim as plaintiffs at the trial court and their counter-affidavit filed by them as respondents in opposing the respondent’s application challenging the jurisdiction of the trial court, are relevant in tracing the time when the appellants’ cause of action arose. Paragraph 4 of the appellants’ statement of claim which disclosed their interest in the land in dispute states:
“4. The land in dispute forms part and portion of the land sold to late D. T. Elabanjo by virtue of the Deed of Conveyance dated 5th day of November, 1969 and registered No. 19 at page 1 in Volume 1305. The survey plan of Elabanjo land and the Deed of Conveyance will be relied upon and also the composite plan of the land in dispute.”
By this paragraph, the appellants have traced their rights and interest in the land in dispute as representatives of Elabanjo family to 1969. The rights of the appellants in the land in dispute was however infringed by the respondent who was seen on the land in August 1984 as pleaded in paragraph 7 of the statement of claim as follows:
“7. The plaintiff states that when the defendant was sighted on the land in August 1984, a letter was written to the D.P.O. Pedro Station and the defendant was warned to steer clear from the land since the action in respect of the land was still pending at the Court of Appeal.”
In the appellants’ letter to the D.P.O. Pedro Station dated 15-8-1984, the appellants visibly complained of alleged acts of trespass on the land against the respondent who was not in fact merely sighted on the land but also brought caterpillar and started preparing the land with the support of hooligans and workers to put up structures thereon. To me, the combination of these facts and circumstances prevailing in August 1984, clearly gave rise to the appellants’ right to file a claim for the possession of the land in dispute, damages for trespass and injunction restraining the respondent from committing further acts of trespass on the land and not to have been contented with a complaint to the D.P.O. or wait until after 12 years to seek the same remedy in court. From the facts and circumstances therefore, I say the cause of action in this case accrued in August 1984. Even if the excuse of the appellants for their inaction is placed on the situation that litigation on the land in dispute was still going until 12-12-1986 when the dispute ended in this court, why did the appellants refuse to seek remedy in court against the respondent until 5-12-1996 nearly 10 years after the conclusion of the case which the appellants themselves stated was not between the present parties in this appeal
The result of the appellants’ failure to take appropriate action resulted in leaving the respondent in full control and possession of the two and half plots of land in dispute from August 1984 to December 1996, thereby bringing the appellants’ action into the full grip of the provisions of sections 16(2)(a) and 21 of the Limitation Law, Cap. 118 of the Laws of Lagos State, 1994 earlier quoted in this judgment.
Guided by the decision of this court in Egbe v. Adefarasin (No.2) (supra), the period of limitation in any limitation statute is determined by looking at the writ of summons and the statement of claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the writ of summons was filed. If the time on the writ of summons is beyond the period allowed by the Limitation Law, the action is statute-barred.
Looking at the writ of summons in the case at hand, the appellants’ suit claiming possession of the two and half plots of land in dispute, damages for trespass and perpetual injunction was filed on 5-12-1996. The statement of claim of the appellants who sued in a representative capacity for the Elabanjo family who acquired interest in the larger portion of land containing the land in dispute since 1969, shows that the respondent trespassed on to the land in August 1984 when she brought a caterpillar to level the land in preparation for putting up structures thereon. On these facts, to say that the ’cause of action giving the appellants the right to sue and seek remedy against the respondent who was is possession arose in August 1984, can hardly be disputed. Thus, by waiting until 5-12-1996 when their action was filed against the respondent, a period of 12 years and 4 months, the appellants’ action was, without any doubt filed outside the period of 12 years prescribed by section 16(2)(a) of the Limitation Law, Cap. 118 of the Laws of Lagos State, 1994 for action to recover any piece of land. In other words, the appellants’ action is statute-barred as rightly found by the court below. In fact the fate of the appellants does not end with the loss of their right of action alone, their title to the 2 1/2 plots of land in dispute has also been extinguished under the provisions of section 21 of the same Limitation Law. To this end, no court can look into the merit of the appellants’ suit now dead to see whether the respondent had acquired a valid title to the land in dispute or not having regard to the principles of lis pendens being relied upon in this appeal by the appellants.
In the result this appeal fails and the same is hereby dismissed.
The judgment of the court below delivered on 21-3-2001 is accordingly affirmed.
There shall be N10,000.00 costs against the appellants in favour of the respondent.
SC.386/2001
