Action which is not brought within prescribed period offered by law does not give rise to a cause of action
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 issue of an action being statute barred is the fulcrum of the judgment delivered by the Court of Appeal, Lagos division, in which the court held that an action which is not brought within the prescribed period offered by the provision of the law does not give rise to a cause of action. This the position of the unanimous lead judgement delivered by Abimbola Osarugue Obaseki-Adejumo, JCA with her learned brothers Amina A. Augie, JCA and Tijani Abubakar, JCA concurring while allowing the appeal.
Parties were represented by Oladosu Ogunniyi with Kambie Ereka and Adeliloye Oyeniyi for appellant and Osinaike Olanrewaju with T. Bamisile and Tajudeen Kotun for respondents.
The facts are contained in the body of the judgment.
This Appeal is against the judgment of the High Court, Lagos state delivered by B.O. Martins J. on the 8th of March, 1996. The action was commenced by Writ of Summon and a further amended statement of claim, dated 20th December, 1993 the respondents (then Plaintiff) sought amongst other reliefs:-
Declaration of that the land the subject matter of this action was, at all times material to this action, free an unencumbered, and vested only in the family from whom the plaintiff purchased his plots, and had not been acquired by any government or its agents, and remains free from any acquisition whatsoever.
Declaration of title to his plot of land with all develop that situate at No. 18, Anuoluwapo street, Shasha Ilupeju village, Alimosho in Ikeja Local Government area of Lagos State.
N21,484.00 as special and general damages for willful and wrongful destruction of property and for trespass.
Perpetual injunction restraining the defendants servants agents, privies and assignees from further acts of trespass upon the Plaintiff’s land and properties.
At the end of the trial wherein both sides called evidence and tendered documentary exhibits, the lower court found for the Respondents and entered judgment for the Respondents in respect of the reliefs sought by them. The Appellants being dissatisfied with the decision filed an appeal via Notice of Appeal dated 2nd day of April, 1996 containing 7 grounds of Appeal. The said Notice of Appeal was amended with the leave of the Court of Appeal so the current Notice of Appeal relevant to this appeal is the one filed on 20th July, 2004.
The summary of the facts leading to this appeal is that the 1st Respondent among others whose case was used as a test case claims that he is entitled to a declaration of the title to his land situate at Shasa Village, Alimosho Local Government of Ikeja. He pleaded and led in evidence that the said land was bought from the original owners of Shasa Village, whose title had not at any time prior to their purchase, been challenged. His case is that the Defendant/Appellant’s Defence of a purported acquisition of the said land is illegal null and void. He led evidence to the effect that they (the Appellants) were therefore trespassers on the said land. The learned Judge upon consolidation of all the similar cases decided to use one of the consolidated cases, as the test case, whereupon the judgment herein J.A AJIBOLA VS NIGERIAN PORTS AUTHORITY was therefore used as the test case.
The Appellant on the other hand pleaded and gave oral and documentary evidence that the disputed land was compulsorily acquired by the Federal Government in 1992 for its use ever before the Respondents took possession of the land. The Appellant’s acquisition was published in the 2 Government Gazettes Notice No. 389 of 19/2/72 contained in Gazette No. 12 Vol. 59 of 9th March, 1972 and Govt. Notice No. 1257 dated 21/7/75 contained in Federal Govt. No. 41 Vol. 62 of 21/8/75 respectively. The Appellant further claimed that it was not a trespasser but the rightful owner of the land and had published notice No. 1257 Federal Government Gazette No. 41, Vol. 62 of 27th August 1975.
The Appellant’s amended brief was dated 16th day of May 2008 and filed on 28/5/2008 but deemed on 05/07/2010; it was settled by Oladosu Ogunniyi Esq. of Messrs Oladosu Ogunniyi & Co. The Respondents’ Amended Brief was dated 4th day of June, 2008 and filed on 18/5/2012. Same was settled by Ms. Folashade Bankole-Oki of Messrs Bank-Oki, Oyesanya & Co.
The appellant formulated six issues for determination thus:-
Whether the court had jurisdiction to try the matter.
Whether the failure to join the Federal Government and the ABULU family as necessary parties (being the acquiring authority and the people who had interest in the land when it was acquired) is not fatal to the plaintiff/Respondent’s case.
Whether by the wording and the context of the provision of PLA Cap 167 a permissive and discretionary authority without time limitation is not allowed the Minister as to the procurement of a Certificate of Title.
Whether having regard to the facts, circumstances and evidence in the case, there was compliance or at least substantial compliance with the requirement of notice.
Whether limited permission to use land granted to the Plaintiffs/respondents without transferring proprietary rights over the land, as shown by the content and in the context of Ex. MMI derogates from the object of serving the public interest in its widest interpretation.
Whether in the absence of concrete evidence of valid title, the plaintiffs/respondents are entitled to a declaration and award of damages.
The respondents adopted the issues formulated by the Appellant therefore, the issues formulated by the Appellant shall be the issues for determination in this appeal.
On the first issue, Appellant contends that the trial court was bereft of jurisdiction to try the matter. Learned counsel argued on the issue of jurisdiction of the lower court on three grounds vis-à-vis:
Limitation law and Lack of Locus Standi. The action was not brought before the Lands Tribunal which at that time had jurisdiction to try such matters.
Learned counsel for the Appellant further argued on limitation of the action that PW4, J.A. Ajibola in his testimony at the lower court said he purchased his first plot in December 1977 and brought the action more than twelve years after the acquisition of the land by the Federal Government. PW4 testified that he bought the land from the Abulu Family and the land was acquired from the Abulu Family in 1977. The predecessor-in-title did not raise objection to the acquisition for over 12 years, despite the fact that development work was in progress on the said land and officials of the appellant was active and present on the land. Counsel further stated in his argument that the acquisition took place in 1972 and later there was the Federal Government Corrigendum Notice No. 1257, Gazette No. 41 Volume 62 of 21st August 1975, shown in Plan No. LSG/D299, prepared by Surveyor General, Lagos State and Federal Government Plan No. L3825 prepared by Government Surveyors and this action was instituted in 1988, more than 12 years after the acquisition.
PW4 whose house was first demolished by the Appellant in 1979 did not challenge the acquisition when he became aware of the acquisition rather, he joined others to appeal to the Appellant to have comparison on limitation of Action Law which provides that an action in respect and becomes statute barred after 12 years.
In Response, the Respondents argued that the cause of action accrued 1979 when the Respondent’s property was demolished. Respondent ?? their action in 1988; he reiterated that the fact that the acquisition as not mentioned specifically in the Respondents’ Further Amendment statement of Claim dated 20th December 1993 goes to no issue; the ?? an amendment is allowed, it takes effect from the original headings. He relied on Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (PT. 135) 688. Furtherance to his argument, he contended that the Appellant was incorrect when he said the Respondents challenged the acquisition in 1993, the time when the further amended statement of claim was filed in his own view, he stated that the amendment dates back to 1988, years after the demolition of Respondent’s property. Learned counsel for the Respondents submitted that the cause of action arose in 1979 when the property was demolished. He cited Shell Petroleum Dev. Corporation (Nig.) Ltd. V. Farah (1995) 3 NWLR (Pt. 382) 148 AT 154, where the court held that ‘‘a cause of action arises on the date of the eve whereby the cause of action becomes complete so that the aggrieved party can begin and maintain his action.”
It is trite that a determination of a statute of limitation can be gleaned from the Statement of Claim. For this reason, I shall reproduce it here.