Action which is not brought within prescribed period offered by law does not give rise to a cause of action (2)
IN THE LAGOS JUDICIAL DIVISION
HOLDEN T LAGOS
ON THURSDAY THE 26TH DAY OF MARCH, 2015
BEFORE THEIR LORDSHIPS
Aminu Adamu Augie – Justice, Court of Appeal
Tijani Abubakar – Justice, Court of Appeal
Abimbola Osarugue Obaseki-Adejumo – Justice, Court of Appeal
Appeal No. CA/L/393/2002
Nigeria Airports Authority – Appellant
Jacob Ayorinde Ajibola
Mr. Dele Ojo
Mr. F.O. Olubiyi
Mr. James Erinfolami
Mrs. B.O. Amure and 18 other respondents
The Defendant is a statutory corporation whose head office and principal place of business is situate at Murtala Mohammed Airport, Domestic Wing, Ikeja.
The Plaintiff purchased his plots of land from the original owners who were evidently and openly owners in possession of the land in the village of Shasha and whose title and possession did not seem and was not seen to be challenged by the Defendant nor by any one whosoever. The Plaintiff’s parcels of land are more particularly delineated and marked ‘40’ and ‘42’ respectively in Survey Plan No. BAASS/481/LAG/90 which has been filed in this action.
The said plan is a blown up version of Plan No. L3825 being the Plan mentioned in the purported acquisition by the Fed. Govt. (sic) determine the date the Respondent acquired title to the land. The Respondent (PW4) testified that he bought his land from Abulu family in December, 1977. This is at the record; this therefore is the date he acquired title to the root of his title.
When does time begin to run in limitation of action? In limitation, it is trite that time begins to run when there is in existence person who can sue and another who can be sued. See Williams Vs Williams (2008) LPELR-3493; AQUA V. Ekanem (2008) LPE 45. The effect of the Limitation of Law of Lagos State 1994 is that it does not merely deny the right of action, it completely extinguish the existing right at the expiration of twelve years from the accrual of limit of action. In the above cited case, Per Musdapher, JSC. Williams V. Williams (supra) at page 17, paras C-E held:
‘‘It has been decided that the period of limitation is only determinable by looking at the Writ of Summons and Statement of Claim alone to ascertain the alleged date of the wrong in question which gave rise to the plaintiffs cause of action and by comparing that date with the date on which the Writ was filed. If the time pleaded in the Writ of Summons or the Statement of Claim is beyond the period allowed by the limitation law, the action is statute barred.”
According to the further amended statement of claim dated 20th December 1993. In paragraph 14 ii & iii earlier reproduced is to the effect that he bought the plots of land from the original owners in 1977, while the demolition took place in 1979, the cause of action was not in 1979, the land had been acquired since 1972, 1st notice and 1975 Federal Government Gazette No 41 Vol. 624 21st July 1975.
A cause of action has been defined in EGLE V ADEFARSIN (1987) 1 NWLR (PT 47) 1, SAVANNAH BANK OF NIGERIA LTD V PAN ATLANTIC SHIPPING & TRANSPORT AGENCIES LTD (1987) 1 NWLR (PT 47) 212, P.N UDOH TRADING CO. LTD V. ABERE (2001)11 NWLR (PT 723) 114 at 129 as: “A combination of facts and circumstances giving rise to the right to file a claim in court for remedy. In including all these things which are necessary to give a right of action and even material fact which is material to be proved to entitle the plaintiff to succeed.”
YUSUFU V DADOD (1990) 4 NWLR (PT 146) 657, ELANBANJO & ANOR V DAWODU (2006) LPELR – (110) SC. AKINBU & ORS V AZEEZ & ORS (2003) LPELR – 337 (SC) (2003) 5 NWLR (PT814) 43. I must reproduce the limitation Law of Lagos State 1973 for clarity.
S.17 “Where the person bringing an action to recover land, or some person trough whom he claims, has been in possession thereof and has discontinued his possession, the right of action shall be deemed to discontinuance. S.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 limitated can run. (2) Where – (a) Under the provisions 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.
On the expiration of the land fixed by the Law for any person to bring action to recover land, the title of that person to the land shall be extinguished.”
In AKINBU & ORS V AJEE (2003) LPER – 337 and AJIBONA v KOLAWOLE (1996) 10 NWLR 22 at 36 paras B ??/ Ogwuegbu JSC held that:
“A cumulative reading of the entire provisions of the Limitation Law 1973 and in particular, sections 16, 17, 19 & 21 thereof shows that knowledge on the part of the plaintiff is not a condition precedent to the application of the law. The knowledge of the plaintiff to the acts opf possession of the defendant is therefore immaterial. Since the words of the Limitation Law are clear and unambiguous, they must be accorded their ordinary meaning.”
Therefore Section 16(2a) of the Limitation Law states that no such action shall be brought after the expiration of the twelve years from the date on which the right of action accrued to the person brining it as if it first accrued to same person through whom he claims to that person.
The Respondent claimed through Abulu family, he bought in 1977 after the acquisition and claimed he became aware upon demolition of his house in 1978. This fact was contested, even at that, it is trite that the fact that he was not aware is irrelevant. Knowledge on the part of plaintiff is not a condition precedent.
The limitation law deems that the predecessor he bought from was aware and this fact does not stop time from running except on fraudulent concealment. See SOSAN V ADEMUYIWA (1996) 3 NWLR (pt 27) 241 at 256. Therefore the time began to run at acquisition 1972 and 1975. Appellant claimed he served the notice on Respondents on the land in 1975. Respondent contended he was no served. For the purposes of this appeal, I shall accept 1975 Corrigendum Notice as the time of acquisition. The action was filed in 1988, 16th December, the house was demolished in 1979, he waited and took no steps until 9 years later, at which time it was past 12 years. It was 15 years or at best 13 years, the implication of which is that it does not merely deny the right of action, it completely extinguishes an existing right at the expiration of 12 year from the date of the accrued of right of action.
The acquisition by Federal Government for NAAN was gazette on No 41 Vol. 69 of 21/8/75 therefore the cause of action the in instant case accrued in 1975.
Where a law prescribed a period for instituting an action, proceedings cannot be instituted after that period. See EKEOGU V ABIRI (1991) 3 NWLR (PT 179) 258.
Adekeye JSC held in the AJAYI V. ADEBIYI’s case that: “It is however trite that where the issue of limitation is varied in defence of an action, it is only proper that the issue should be addressed first as it makes no sense to decide the merid of a matter that is statute barred.”
In the event of a successful plea of limitation law against a plaintiff’s right of action, the action becomes extinguished and unmaintanable at law. See MUEMUE V. GAJI (2001) 2 NWLR (PT 607) 289.
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