Pan Atlantic Shipping and Transport Agencies Ltd. V. Abayomi Babatunde (2007)
LawGlobal-Hub Lead Judgment Report
ISA AYO SALAMI, OFR, J.C.A.
This is an interlocutory appeal against the ruling of the Lagos High Court delivered by per Candide – Johnson on 17th July 2003 upholding the preliminary objection brought by respondent and dismissing the suit.
The plaintiff brought an action by way of originating summons at the High Court of Lagos State claiming the following reliefs-
“1. A Declaration that the plaintiff is the owner of the land the subject matter of this suit by virtue of its legal title by way of the possession of a registered certificate of occupancy in that regard.
- A Declaration that the Defendant or any person(s) claiming under him has no proprietary interest in the plaintiffs land the subject matter of this suit.
- An ORDER OF PERPETUAL INJUNCTION restraining the Defendant whether by himself, servant, agents, privies and assigns, or howsoever from trespassing on the plaintiffs land or holding himself out as owner or erecting any structure or dealing with the plaintiff’s land in any manner whatsoever”
The respondent rather than respond by deposing to a counter-affidavit gave a notice of intention to rely on a preliminary objection on the ground that-
“This Honourable Court lacks jurisdiction to hear this suit as presently constituted, the suit is statute barred as the cause of action accrued over 15 years ago.”
The notice of intention to rely on a preliminary objection was accompanied by an affidavit. The preliminary objection was tried and was upheld. Learned trial judge found that the suit was time barred and consequently dismissed same. In doing so, learned trial judge concluded as follows
“I must state, for the record that in relying on Exhibit AB1 and 21 have taken additional” comfort in the case of Egbe v Adefarasin. (1987) 1 NWLR (Pt 47) 1, cited by Defendant’s counsel for the proposition that a court can look to the date and material in a writ of summons and statement of claim to ascertain the date when time runs.
On the foregoing analysis the lime to start counting would be 14th March 2000. Since this present suit M/287/02 was commenced on 29th April 2002 the Defendant is correct to contend that this suit as presently constituted, in seeking essentially to establish and/or protect a proprietary right or interest which LD/166/87 per Exhibit AB1 and 2 shows had been under dispute and thereat as at 14/03/88, is caught by the limitation Law Cap. 118 and plaintiffs right thereon is extinguished and barred.”
The plaintiff was dissatisfied with the decision of the learned trial judge and has appealed on three grounds of appeal to this court. Briefs of argument were, in accordance with the prentice and procedure of this court, filed and exchanged at the appellant’s and respondent’s briefs of argument.
At the hearing of the appeal, learned counsel for both parties merely adopted their respective briefs without further elaboration thereon. The two parties related issue one to grounds 2 and 3 of the grounds of appeal and related ground 1 to issue 2 thereof.
In the appellant’s brief the following two issues were framed for determination in this appeal.
“1. Whether the learned trial judge was not obliged to establish first that the court was properly seized with jurisdiction before proceeding to hear the preliminary objection
- Whether the action of the Appellant was time barred”
The respondent, on the other hand, contends that these two issues arise for determination in this appeal.
“1. Whether the observation made by the learned trial judge as to the propriety of the procedure adopted by the Appellant in commencing the action under Order 59 Rule 1 of the Lagos State (Civil Procedure) Rules, 1994 operated to effect the competence of the suit thereby robbing the court of jurisdiction.
- Whether the action of the Appellant is not statute barred”
The two formulations, apart from the wordings, are identical. Notwithstanding the similarity of the issues framed, the only issue calling for determination is the second issue framed in either briefs of argument.
The first issue deals with observations of the learned trial judge which were never resolved against the appellant. The learned trial judge at paragraph 3 of page 64 of the record of proceedings made the following observation.
“Before proceeding to a consideration of this sole issue.
I must however make the following observation on what might qualify to be potentially an abuse of the court process in this suit, but which at this stage. I shall not determined or otherwise count towards the determination of the final outcome of this present application, until the parties have a chance to address me on the points” (underlining mine)
Learned trial judge later at page 65 of the record further observed thus-
“In effect subject to a full and proper argument and consideration of the point the substance of and reliefs sought by the plaintiff’s appears prima facie to be at odds with the letter, spirit and intendment of Order 59 summary procedure. I will go no further regarding this observation than to herewith place it on record.
At the appropriate time I may be obliged to call upon the parties to address me on whether properly this suit ought not to have been commenced by a writ of summons” (underlining mine).
The two observations raised the issues of potential abuse of court process in the suit as well as that of the mode of commencing the action whether by a writ of summons instead of originating summons. Both issues touted by the learned trial judge were never determined by him. He postponed each one of them to a later date when he could hear the parties on them. The two mailers or observations qualify at best as obiter dictum of the learned trial judge. They do not qualify as ratio descedendi of the learned trial judge. Not being a ratio descedendi of the learned trial judge neither party can be aggrieved by it. An aggrieved party is one against whom a decision of a court is made. See Inspector General of Police v Adelabu 1 FSC 45 Bauchi v Dantsuake 1965 NMLR 59.
In the instant case learned trial judge left his decision in abeyance apparently to be determined if the preliminary objection fails. The postponement of decisions on them clearly shows that there are no decisions to be appealed against. There is right under the provisions of sections 241 and 242 of the constitution of the Federal Republic of Nigeria 1999 to appeal either as of right or with leave of the court if only there is a decision to be appealed against. Sections 241 and 242 of the Constitution are inter alia recited immediately hereunder-
“241(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of” Appeal as of right on the following cases …..
242-(1) Subject to the provisions of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal ” (underlining mine)
It is manifestly clear from the underlined words that there can only be right of appeal against a decision of a high court to this court. There is no provision to appeal against an anticipated decision of a high court to this court. The observations made by the learned trial judge recited to elsewhere in this judgment are not decisions that can be subject of an appeal. In not a very dissimilar situation, Akanbi J.C.A. (as he then was) in Adeniii v. Fetuga (1990) 5 NWLR (PI 150) 375, 384 while relying on the case of Deduwa & Ors. v Okorodudu (1976) NMLR 236, 246 wherein a distinction was drawn between what can properly be termed determination or a mere remark or observation of a judge as follows –
“‘……… not every observation or remark can pass for a judicial determination or decision certainly not a statement made by the court when there was not before it a triable issue.”
The crux of the appellant’s argument in this regard is that (he learned trial judge having observed that the action so commenced under Order 59 rule 1 of the Lagos High Court (Civil Procedure) Rules 1994 may have been improper, he was under an obligation to determine the propriety of the action before proceeding to determine the preliminary objection. There is no substance in this submission. Learned trial judge was no under duty to venture into the determination of the propriety of bringing the action under the provisions of Order 59 rule 1 of the Lagos High Court (Civil Procedure) Rules 1994. The position would have been probably different if the matter had been determined on the merit. The observation made by the learned trial judge as well as the preliminary objection if considered and resolved against the appellant the suit would have been, in any case, thrown out of court in limine.
Be that as it may, learned counsel for respondent respectfully ought not have joined issue with the appellant on issue 1 by identifying that issue in the respondent’s brief. All that is required of him was to question the propriety of grounds 2 and 3 of the grounds from which the issue was formulated and urge court to strike them out.
Notwithstanding that no objection was so taken, I think the court is endowed with sufficient power to consider the issue suo motu. Sec Order 6 rule 3 of the Court of Appeal Rules 2007 which provides as follows-
- Any ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted, save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this Rule may be struck out by the court of its own motion or on application by the respondent.” (underlining mine).”
Consequently grounds 2 and 3 of the grounds of appeal are hereby struck out. Issue 1 identified from the two grounds is not framed from a valid ground or grounds of appeal and is equally struck out along with the argument proffered therefore in the appellant’ brief of argument. Having struck out appellant’s issue 1, I am next to consider its outstanding issue
- It is, however, worthy of note that appellant, who identified only two issues for determination and related its three grounds of appeal to these two issues, surprisingly, in the course of arguing the issues formulated another issue at page II of its brief of argument. The new issue reads as follows:-
“Whether in view of Exhibits AB 1 & 2, the suit represented therein did not represent an unbroken period of litigation which should prevent the limitation period from running against the Appellant.”
This issue respectfully should arise from a ground of appeal attacking the following finding of the learned trial judge-
“In addition to plaintiffs other argument on adverse possession, this is its other remaining argument that since the commencement of LD/166/1987, in 1987 there has been no idle period of 12 years and, the plaintiff is not caught by Cap. 118 the Limitation Law since time does not run when litigation is pending without a break since its commencement.
This contention of the plaintiff I must admit is a totally novel and ground breaking contention counsel has not volunteered any authority for this proposition and I dare say that there can be more.
On the facts of this case it is agonizing for counsel to only now admit at this stage that LD/166/87 over the “same land existed and is presently at the Supreme Court in circumstances that may also amount to a further abuse of court process by the maintenance of two suits founded upon the same subject matter and as will be seen shortly also between relevant parties and upon the same issues.
There is more merit to the preferred submission of opposing counsel that the only exceptions such as fraudulent concealment disability, mistake prescribed in Cap 118 do not include the “idle years” exception dramatically introduced by plaintiff to seek relief from being caught by section 16 of Cap. 118″
In other words, the learned trial judge, apart from condemning the proposition of law by learned counsel for appellant made a further fundamental and far reaching finding to the effect that section 16 of Limitation Law, Cap., 118 of the Laws of Lagos State does not countenance “idle years” exception appellant suddenly sought to fall back upon. The fresh issue can therefore be tacked under the remaining issue.
On appellants’ issue 2, learned counsel for appellants submitted that to determine when the cause of action arose the court are to consider the writ of summons and statement of claim stating when the wrong giving plaintiff a cause of action was committed and by comparing that date with the date on which the writ of summons was filed: Oranyeli v FBN (2001) 6 NWLR Pt. 710, 572, 578. Learned counsel further contended that it is the originating processes that the court must look at to determine time bar before conceding that the originating process in the present action are the originating summons, statement of reliefs sought, grounds for the reliefs sought, statement of facts and the affidavit in support.
Learned counsel for appellant further submitted that learned trial judge instead of relying on the processes enumerated above relied on depended on the processes filed by respondent to come to conclusion that the action brought by appellant was time barred. He cited the case of Odubeko vs Fowler 1993 7 NWLR (Pt 308) 637. He contended that at the trial court it was the appellant’s case that, in all action commenced by originating summons, the verifying affidavit would stand as the statement of claim whilst the counter affidavit would represent the statement of defence which contention was rejected by the learned trial judge. He again submitted that the purport of the Supreme Court decision is that the court would not look at materials outside the” originating summons to determine time bar. Learned counsel further submitted that the statement of defence or the affidavit in support of the preliminary objection or even counter affidavit to the originating summons do not qualify as originating process. Learned counsel further submitted that the determination of time bar is not to be based on affidavit evidence. Learned counsel for appellant then submitted that the learned trial judge was wrong to base his finding on the affidavit in support of the preliminary objection filed by the respondent and relied on the finding in Adaji v Amodu (1992) 8 NWLR (Pt 260) 472, 479 that in determining whether or not a claim is statute barred it is the plaintiffs claim that must be looked at and not to determine same on affidavit.
I respectfully wish to observe that learned counsel for appellant is adroit but not candid. In one breathe he contended that the affidavit in support of the originating summons could be examined in another it is his contention that affidavit cannot be countenanced. If truly it is the case for the appellant that affidavit deposed to by the respondent in support of his notice of intention to rely upon a preliminary objection is an anathema he owes this court an explanation why he founded his case of “idle years” or period of active litigation on the same document. By his reliance on exhibits AB1 and 2 to fly his kite that while his appeal was still pending in the Supreme Court in suit LD/166/87 time ceases to run, he has put in issue the averments contained in the affidavit in support of the notice of intention to rely on a preliminary objection. It is, therefore, no longer open to him to contend that the averments in the said affidavit, assuming that the affidavit cannot be examined without so deciding, was improperly used by the court below. It is beyond him to approbate that the said affidavit could be used by the learned trial judge to prevent his relief from being caught by the provisions of the statute of limitation but reprobate that the same affidavit should be discountenanced in determining whether or not the suit is caught by statute of limitation. Having failed to distance itself from the said affidavit and having sought refuge under it when it found it convenient, the appellant cannot say that the learned trial judge wrongly used the affidavit even if it could not be ordinarily considered and relied upon. It has acquiesced in it.
The appellant is not entitled to rely on exhibits AB1 and 2 exhibited to the affidavit in support of this preliminary objection before the trial court and now come to the court of appeal and summersault. See Ajide v Kelani (1985) 3 NWLR (Pt 12) 248, 269 and Ikeanyi v A.C.B Ltd 1991 7 NWLR (Pt 205) 626.
Most of the argument of the appellant revolves round the consideration and the reliance placed on the process filed by the respondent particularly the affidavit in support of the notice of objection. It is more than settled by a long line of decisions both of this court and the Supreme Court that in determining statute of limitation in any cause of action which the defendant, the respondent herein alleges to be time barred the court examines the writ of summons and the statement of claim alleging the time when the wrong was committed which gave the plaintiff a cause of action and by comparing this with the time when the writ of summons was taken out. If the date of filing the action on the writ of summons is beyond the period permitted by the statute of limitation then the action is said to be time barred. See Egbe v Adefarasin (1987) 1987 1 NWLR (Pt 47) 1, Odubeko v Fowler 1993 7 NWLR (Pt 308) 637, Adaji v Amodu (Pt 260) 492, 479, (1995) 1 NWLR (pt 374) 736. 747, Ishola v SGBN (1997) 2 Bank of the North v Akorede NWLR (Pt 488) 405, 421. The question of statute of limitation must be raised, therefore, on the pleadings of the defendant. It cannot be raised at any stage such as Supreme Court: Kano v Oyeladum (1993) 3 NWLR (Pt 282) 3999, 409. The courts will therefore not rely on an averment in the statement of defence which has not been admitted by the plaintiff in a reply, tending to show that the suit, for obvious reasons, is time barred. The clear reason is that averments in pleadings are no evidence and the court would be wrongly or unfairly computing time based on the date pleaded when there has been no admission from the plaintiff nor evidence viva voce taken.
I agree with the learned counsel for the respondent that an important point to be noted and appreciated is that the suit in the instant appeal was commenced by way of originating summons. There is a major distinction between these two processes which makes it most inapposite to match the processes file in a court for resolution of a dispute where one of the procedures for bringing an action is adopted. Parties in an action instituted by a writ of summons file and exchange pleadings and adduce evidence in support of their claims or defence whereas parties in ag action commenced by originating summons support their case respectively by affidavit and counter affidavit which form the evidence parties rely upon to prove their case. Consequently while an action brought on a writ of summons cannot generally be determined “on pleadings alone the opposite is the case in a suit commenced by originating summons;” the mode of proof is affidavit evidence. The evidential value of affidavit evidence was amply demonstrated in the case Director of SSS v Agbakoba (1999) 3 N.W.L.R (pt 595) 314, 354 where Uwais C.J.N said-
“From these, it is obvious that there cannot be any pleadings where a motion on notice is brought because the deposition in the affidavit in support of the motion on notice is not the same as mere averments in the statement of claim or statement of defence which have to be supported with either viva voce evidence or documentary evidence. In the case of an affidavit accompanying the application. it is in fact the evidence in support of the motion. Similarly, an originating summons is not the same as writ of summons. In the case of former no pleadings are employed while in the case of the latter there “are pleadings in the form of statement of claim, statement of defence reply etc ” (underlining mine)
By the scenario painted in the above dictum of the Supreme Court if objection is to be raised in a statement of defence and the defendant in an action commenced by originating summons is not required to file a statement of defence how then does he raise his objection to the action? Does it follow that in an action commenced by originating summons an objection for determining in limine the issue of limitation of time is forbidden? I do not think so. It, therefore, follows” that if the defendant is not to be denied his right to raise the defence of statute of limitation in an action brought by “originating summons, a means must be found to enable him enjoy the benefit of the defence. It seems to me, therefore, that the only avenue, in the circumstance will be by way of affidavit evidence. It therefore follows that in action instituted by a writ of summons the defence should be raised in the defendants’ statement of defence whilst in the case of an action brought by originating summons a counter affidavit or an affidavit such as the one in the instant matter would be perfectly in order. Otherwise defendants in such circumstance would be unfairly denied the exercise of their right to raise the defence pegged on statute of limitation. It is trite that where there is right there must be a remedy as encapsuled in the Latin phrase of ubi jus ubi remedium. The issue has hitherto not been discussed from the perspective of an action commenced by originating summons. All the authorities cited probably relate to cases commenced by writ of summons in which pleadings are ordered, filed and exchanged. It is my respectful opinion that they are right or correct in the con Justice in which they were determined. But clearly if applied in the present con Justice it will lead to in Justice.
I am unable to agree with the submission of the learned counsel for appellant base on the case of Adaji v Amodu (supra), that (the trial court ought to have called oral evidence. This submission is predicated on the wrong assumption that the action had been commenced by a writ of summons where evidence viva voce is sine qua non. But, in the case at hand, the trial court is placed in the same pedestal as a court that has received evidence and is in a position to take a decision on the material placed before it. Being an action commenced by originating summons, by its peculiar nature, all the evidence required to determine even the substantive suit are already before the court. It will clearly lead to absurdity, in the circumstance, if the court is asked to take oral evidence to determine whether or not the action is time barred when the necessary evidence had been deposed to by the parties. I agree with the submission of the learned counsel for respondent that the learned trial judge rightly considered and relied on all the processes, including the affidavit in support of the preliminary objection as well as appellant’s counter affidavit, placed before him.
The court will only order for oral evidence to be adduced if there is conflicting affidavit. An oral evidence will be necessary or required to resolve a conflicting affidavit:” Falobi v Falobi (1976) 10 SC 1. But in the instant case there was no denial because it is the attitude of the appellant that there was nothing to be denied. There was therefore no necessity to call oral evidence as there was no conflicting affidavit. There is an exception to the general rule that oral evidence should be invited to resolve conflicting affidavit. Where, however, there are documentary as well as oral evidence before the court, it can, suo molu resolve such conflicting evidence as the documentary evidence should be used as a hangar from which to assess oral testimony. See Kimdey v Military Governor of Gongola State (1988) 2 NWLR (Pt 77) 445, Fashanu v Adekoya (1974) 6 SC 83, Winlyn Ltd v NACB Con. & Finance Co Ltd (2000) 8 NWLR (Pt 670) 600.
The affidavit evidence exhibited evidence of previous litigation between the parties which the learned trial judge examined and relied upon to determine the time appellant’s cause of action arose. Adaji’s vs Amodu (supra) was commenced on a writ of summons wherein averments in pleadings had to be established by oral evidence. The circumstances are quite different.
The appellant deposed to a counter affidavit in opposition to the counter affidavit in support of the preliminary objection. But it failed or neglected or refused to refute weighty and substantial depositions of the respondent which were supported by documentary evidence including certified true copies of the previous suit. The purpose of a counter affidavit is to put the defence of the deponent as well as deny the depositions in the affidavit it seeks to counter and such denial must be direct, specific and unequivocal. See Bedding Holdings Ltd vs NEC 1992 8 NWLR (Pt 260) 428, 436. Having refrained or omitted in his counter-affidavit to contradict the averments in the respondent’s affidavit, learned trial judge rightly equated appellant’s conduct to admission of respondent’s averments. It is settled that averment in an affidavit which is not denied is deemed admitted. In other words, such averments are deemed to be true by the court unless they are palpably false to the knowledge of the court. In a similar situation the Supreme Court held in the case of Globe Fishing Industries Ltd v Coker (1990) 11 SCNJ 56 that the trial court should have treated the facts contained in the affidavit in support of the application which was not disputed as prima facie prove for the purpose of the motion. See also Okereke v Ejiofor (1996) 3 NWLR (Pt 434) 90, 104 which renders inadequate for the purpose of controverting deposition or averment in an affidavit sweeping or general denials. Yesufu v Cooperative Bank (1989) 3 NWLR (Pt 110) 483 as well as Bedding Holdings Ltd vs NEC (supra) Soy Agencies v Metallum Ltd 1991 3 NWLR (Pt 177) 35, 42 – 43 and Long – John v Bakk (1998) 6 NWLR (Pt 555) 524, 547 – 548 cited in the respondent’s brief of argument. On these authorities, the learned trial judge held that appellant conceded the point that the subject matter in LD/166/87 and in this suit are one and the same such that it is common ground between the parties.
The appellant further submitted that with the existence of LD/166/87 now pending on appeal to the Supreme Court, the respondent failed to show idle 12 years on its part and that limitation cannot run during litigation. For this submission learned counsel for appellant relied on the “persuasive” authority of Halsbury’s Laws of England 4th Edition Volume 28 paragraph 636 and Oshobajo v. Amida (2003) 13 NWLR (Pt 685) 433. ”
The respondent contended in his response that the plea of limitation is founded on a statute which has clearly set out circumstances in which limitation can be extended: Davies v Ajibona (1994) 5 NWLR (Pt 343) 234, 256. He submitted with respect that the claim of active litigation made by the appellant is not covered by the statute and is not supported by the cases cited.
There is no substance in the submission of the learned counsel for appellant that the time which has began to run ceases to run when the parties are involved in active litigation. Where the issue of limitation of time is raised time begins to run from the date cause of action accrues. The cause of action is said to accrue when there exists a person who can sue and another who can be sued and all the facts have happened which are material to be proved to entitle the plaintiff to succeed. See Sauda v Kukawa Local Government (1991) 2 NWLR (Pt 174) 379, Ivirhiro vs. Usoh (1999) 4 NWLR (Pt.597) 41, 50. The time which had commenced to run will as a rule continue to do so even though subsequent events occur which make it impossible that an action should be brought; this rule holds good with respect to all limitation Acts. Even the fact of his death and that there is an interval between his death; and the grant of administration does not stop time from running against or in favour of the administrator. See Halsbury’s Laws of England, 4th Edition Vol 28 paragraph 825.
I agree with the submission of the learned counsel for respondent that the plea of limitation is predicated on a statute which has clearly provided for circumstances when the period may be extended. The learned trial judge adverted his mind to this exception when he found as follows in his judgment.
“There is more merit to the preferred submission of opposing counsel that the only exceptions such as fraudulent concealment, disability, mistake prescribed in Cap. 118 do not include the “idle years” exception introduced by plaintiff to seek relief from being caught by section 16 of Cap. 118.”
The Limitation Law Cap 118 of the Laws of Lagos State of Nigeria, 1994 now Cap L.67 of 2003 expressly provides for extension of limitation periods in cases of disability, acknowledgment, part payment, fraud and “mistake under various provisions of part 3. If it were the intention of the legislature of Lagos State to grant exception for period of active litigation the legislature would have so stated. I am encouraged in this view by the decision of this court per Uwaifo, JCA (as he then was) in Davies vs Ajibona (supra), at page 256 of the report, he stated thus-
It, therefore, seems to me that, in the absence of express provision preserving the period of litigation, the period of active involvement in litigation is not saved nor preserved contrary to appellants’ contention. I am respectfully of the view that in the interpretation of our statute it is not correct to look to the decision on the meaning of an English statute with a different wordings. The Supreme Court in Obadara v The President, Ibadan West District Grade B Customary Court (1964) 1 All NLR 336, 342 said –
Having regard to the origin of our legal system and statute-book, decisions on English statute will naturally carry very great weight where the wording is identical, but, to adapt what was said by Lord Herschall in the House of Lords in Bank of England v Vagliano (1991) A.C. 107. in relation to a statute which is declaratory of the common law, the proper course in construing the constitution is in the: first instance to examine the meaning of the statute, and to ask what is its natural meaning uninfluenced by any considerations derived from the law of England, and not to start with inquiring how the law of England stands and then assuming that it was probably intended to adopt it unadulterted.”
And in Nigerian Ports Authority v Ali Akar (1965) 1 All NLR 259, at Pp 263 – 264 it was state thus-
“We point out in the construction of a statute it is necessary that the words used by the statute should be considered and that the construction should not be based on any assumption that the statute is merely declaratory of a particular state of things or any existing law.”
I am guided by these two dicta from the apex Court of Nigeria. I have carefully studied the Limitation Law Cap L 67 and am persuaded that the Law is not intended to be declaratory of common law of England. In the circumstances of this case, there is no provision when time has begun to run for it to cease running against a person entitled to sue or in favour of a person capable of being sued on account of active litigation. It is not the intention of the Lagos State legislature to preserve or save cause of action for active litigation. If the legislature intended to preserve this cause of action it would have done so expressly in the manner it extended time in cases of disability acknowledgement, part payment, fraud and mistake. The persuasive authority to which the court was referred in Halsbury’s Laws of England, 4th Edition, volume 28 paragraph 636 is inapplicable. It is not part of the Laws of Lagos State for the singular reason that the legislature here railed to incorporate the provision into its law. In any case, there is no provision such as quoted in the appellant’s brief at paragraph 636 of Volume 28 of 4lh Edition of Halsbury’s Law of England. Indeed paragraphs 623 -700 deals with control of Lawful Exports and not with limitation statute. ”
The learned counsel for appellant has cited the case of Oshobajo v Amida (supra) whose circumstances are different from those of the instant appeal. The subject matter in that case was a judgment and the issue which called for determination was when time begin to run concerning the 12 years limitation within which a judgment must be enforced or executed. This court held in Oshobajo v Amida (supra) that time does not commence to run for the purpose of limitation statute in” respect of a judgment appealed against untiltle appeal is finally determined in the appellate court. This is because time can only run on a final judgment and by the same token a judgment liable to reversal cannot be subject to the incidents of final judgment. What is in issue in the instant appeal is the right or otherwise of the appellant to institute an action for recovery of land after the expiration of the 12 year limitation period and not whether as in Oshobajo v Amida (supra) a final judgment can still be executed after the expiration of its limitation period. I am further strengthened in the view that the case of Oshobajo v Amida (supra) is different from the present suit for the simple reason that this appeal is being considered under section 16(2) of Limitation Law Cap L 67 whereas the Oshobajo’s case (supra) to which the court was referred was considered and determined under the provisions of section 12(2) thereof. Both sections are not impari materia. Unless the wording of two enactments are the same, a determination on one would not form precedent for the other.
There is no substance in the submission of the learned counsel for appellant that there was no evidence upon which the trial court could base its conclusion that the respondent had been in adverse possession. It could be gleaned from the materials before the court particularly exhibit AB2 that the respondent was in adverse possession knowledge of which forced the appellant to institute suit LD/1128/85. This fact had not been disputed by the appellant. It cannot, at this stage, dispute evidence which the learned trial judge found credible and accepted by a mere submission of counsel.
Learned counsel ought to have deposed to a counter-affidavit challenging the evidence. But he could not have been able to successfully do so in view of the fact that the admission was gathered from his own pleadings, exhibit AB2. I think the appellant is stocked by it. In any case submission of counsel cannot form a substitute to evidence which might be available but was not adduced: Akinwande vs Ojeikere (1971) NMLR 91 and West African Shipping Agencies vs Kala (1978) 3 SC 22, 31 – 32
Finally, I am respectfully in agreement with the submission of the learned counsel for respondent that there must be an end to litigation so that a party ought to litigate his claim diligently and conscientiously. A party will not be permitted to litigate his claim in a manner that it perpetually harasses or vexes his opponent. A party is not entitled to pursue its remedy to the annoyance of the respondent by splitting it into bits and pieces. There is an analogy in Savage & others vs Uwaechie (1972) 3 SC 21, (1972) 1 All NLR 255 where in a previous action plaintiff claimed for specific performance of an agreement to convey certain property unsuccessfully; he was estopped later from bringing an action for payment of debt. It is in the interest of public to put an end to litigation. See Dalyop vs Oradiegwu (2000) 8 NWLR (part 669) 434.”
The only issue in the appeal is resolved against the appellant. The ground of appeal from which it is framed fails and is dismissed. The appeal, therefore, fails and is dismissed. The decision of the learned trial judge is affirmed.
The respondent, being the successful party, is entitled to the costs of this appeal which is assessed at N=30,000.00.
Other Citations: (2007)LCN/2582(CA)
