➥ CASE SUMMARY OF:
Dr. Tosin Ajayi v. Prince (Mrs.) Olajumoke Adebiyi & Ors (2012)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
Revocation of land;
Jurisdiction.
➥ CASE FACT/HISTORY
This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on the 4th of July, 2000. The judgment of the Court Appeal affirmed the judgment of the High Court of Lagos State delivered on the 12th November, 1996.
The facts of the case are that the plaintiff Oba John Ojomo now deceased commenced an action in the High Court of Lagos State against Dr. Tosin Ajayi as 3rd defendant the Attorney-General of Lagos State as 1st defendant and the Military Governor of Lagos State as 2nd defendant. By order of the trial court, the plaintiff amended his statement of claim on the 4th December 1995, and thereupon claimed against the defendants as follows, inter alia:
(a) A declaration that the acquisition and/or revocation of his Right of occupancy by Lagos State Government of his land at Opebi Village Ikeja covered by the registered Deed of conveyance dated 7th July 1977 and registered as No.94 at pages 94 in volume 1635 Lagos State, is a nullity.
The 3rd defendant who filed a defence to the case, engaged in applying for several adjournments including filing motions to amend his statement of defence. At the stage when the plaintiff had closed his case, the 3rd defendant brought summons to dismiss or strike out the action for lack of jurisdiction on the ground that the case is statute barred by the limitation law of Lagos. Though it took the 3rd defendant three years after this suit was instituted before his statement of defence was filed, he did not plead facts raising the statute of limitation or the defence of Public Officers Protection Law Cap 114 Laws of Lagos State. The defence of Public Officers Protection Law and the Limitation Law of 1994 are special defences which in accordance with Order 17 Rule 11 of the High Court of Lagos State Civil Procedure Rules 1994 must be specially or specifically pleaded. The learned trial judge was however of the impression that the summons dated the 2nd of August 1996 brought after issues have long been joined by the parties and the plaintiff had called all his witnesses and closed his case was brought to stall the proceedings.
The learned trial judge after hearing arguments from both parties dismissed the application in its entirety and ruled that the 3rd defendant shall put up his defence and at the end of his defence he would be allowed to raise any point of law the learned senior advocate may wish to put up. The 3rd defendants counsel continued to apply for adjournments to contact the 3rd defendant. On the 27th of September, 1996 the learned trial judge refused to grant any further adjournment sought by the 3rd defendant in the matter and closed his case. On the 12th of November 1996 the learned trial judge delivered judgment and granted the reliefs sought by the plaintiff in the Amended Statement of claim (vide pages 137-147 of the record). The learned trial judge awarded the sum of N100,000 per annum with effect from 1st of January 1986 until possession is yielded.
Having been aggrieved by the decision of the learned trial judge the 3rd defendant appealed to the Court of Appeal.
The Court of Appeal further held at pg. 217 lines 8 -15 that:
“That is what happened in the instant case. The respondent and the appellant had joined issues on their pleadings. Nowhere did the appellant plead facts raising issues of Notices of Acquisition and Limitation arising out of Public Acquisition Law which he now sought to raise in his summons for directions of 2nd August 1996. Respondent had closed his case and the 3rd defendant had sought several adjournments but now brought the summons. The summons is definitely misconceived and was designed merely to halt the proceedings of the lower court”.
➥ ISSUE(S)
I. When does a cause of action accrue to a plaintiff and in this case is the action of the plaintiff/respondent statute-barred?
II. Whether the issue of jurisdiction could not be raised at any stage of the proceedings?
➥ RESOLUTION(S) OF ISSUES
[APPEAL ALLOWED]
↪️ ISSUE 1: IN APPELLANT’S FAVOUR.
[THE APPELLANT/RESPONDENT ACTION IS STATUTE-BARRED
‘The cause of action in respect of the acquisition accrued on the 16th of April 1974 when the Lagos State Government published the acquisition in the gazette. The plaintiff/respondent instituted his action at the Lagos High Court on the 31st of July 1991. By simple mathematical calculation from the date the cause of action accrued, which was the date the land was acquired by the Lagos State Government and published in the gazette on the 16th of April 1974 and the date the action was filed in 1991 is 17 years. By virtue of Section 16(2) of the Lagos State Limitation Law, the period for bringing an action for recovery of land is 12 years. The relevant section emphasised that an action for recovery of land shall not be brought after the expiration of 12 years from the date on which the right of action accrued to the person bringing it or if it accrued to some person through whom he claims to that person. An action which is not brought within the prescribed period of twelve years offends the provisions of Section 16(2) of the Lagos State Limitation Law 1994. The plaintiff/respondent’s action is consequently statute-barred having been caught by the Statute of Limitation.’
‘The officials of the Lagos State Government were spotted on the land in 1986. An action was filed in respect of the acquisition in 1991 against the Military Governor of Lagos State and the Attorney-General of Lagos State. Where a law prescribes a period for instituting an action, proceedings cannot be instituted after that period. The plaintiff/respondent was out of time by five years. Ekeogu v. Abiri (1991) 3 NWLR (pt.179) pg.258. Yabugbe v. COP (1992) 4 NWLR (pt.234) pg.162.’
‘The two lower courts fell into grave error in dismissing the summons filed by the appellant to raise the legal points of statute of limitation and locus standi by holding that legal points be raised at the conclusion of evidence on the legal reliefs sought by the plaintiff/respondent. The issue of locus standi is a condition precedent to the determination of a case on merit. Where a plaintiff has no locus standi to bring a suit, the suit becomes incompetent and the court lacks the jurisdiction to entertain it, the only order the court can make in the circumstance is that of dismissal. The two lower courts had obviously put the cart before the horse in their application of the operative principles in respect of the matter before them.’]
.
.
↪️ ISSUE 2: IN APPELLANT’S FAVOUR.
[‘It is therefore noteworthy that an application or preliminary objection seeking an order to strike out a suit for being incompetent on the ground of absence of jurisdiction is not a demurrer and therefore can be filed and taken even before the defendant files his statement of defence or without the defendant filing a statement of defence. The reason being that the issue of jurisdiction can be raised at anytime.
In addition the relevant things to be considered by the court in determining the issue of jurisdiction are the facts as deposed to in affidavits, the writ of summons and the statement of claim where one had to be filed and served. The statement of defence is not one of the relevant materials for that purpose.’]
.
.
.
✓ DECISION:
‘In view of the fact that this appeal raised an issue of jurisdiction which is sustained on the first two issues, it will not be necessary to consider the other four issues In the final analysis, there is merit in this appeal and it is hereby allowed. The judgment and orders of the two lower courts are accordingly set aside. Costs of the appeal is assessed at N50,000.00 against the plaintiff/respondent.’
➥ FURTHER DICTA:
⦿ ESSENCE OF A LIMITATION LAW: RIGHT TO ENFORCE AN ACTION NOT PERPETUAL
The essence of a limitation law is that the legal right to enforce an action is not 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 does not give rise to a cause of action. — O. O. Adekeye JSC.
⦿ YARDSTICK TO DETERMINE WHETHER CAUSE OF ACTION IS STATUTE-BARRED
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 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. — O. O. Adekeye JSC.
⦿ IMPLICATION OF A SUCCESSFUL PLEA OF LIMITATION LAW
In the event of a successful plea of limitation law against a plaintiffs right of action, the action becomes extinguished and unmaintainable at law. Muemue v. Gaji (2001) 2 NWLR (pt.697) pg.289. Egbe v. Adefarisin (1985) 1 NWLR (pt.3) pg.549. Sosan v. Ademuyiwa (1986) 2 NWLR (pt.27) pg.241. — O. O. Adekeye JSC.
⦿ GUIDING PRINCIPLES TO DETERMINE LOCUS STANDI
Locus Standi is the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting or commencing an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever.
The guiding principles to determine whether a person has locus standi or not are:
a. He must be able to show that his civil rights and obligations have been or are in danger of being infringed.
b. The fact that a person may not succeed in the action is immaterial.
c. Whether the civil rights and obligations having been infringed depends on the particulars of the case.
d. The court should not give any unduly restrictive interpretation to the expression locus standi.
The tests for the determination of the locus standi of a person are:-
a. The action must be justiciable.
b. There must be a dispute between the parties. — O. O. Adekeye JSC.
⦿ WHERE NO LOCUS STANDI, COURT CANNOT ENTERTAIN SUIT
Locus standi and jurisdiction are interwoven in the sense that locus standi goes to affect the jurisdiction of the court before which an action is brought. Thus where there is no locus standi to file an action, the court cannot properly assume jurisdiction to entertain the action. Locus standi being an issue of jurisdiction can be raised at any stage or level of the proceedings in a suit even on appeal at the Court of Appeal by any of the parties without leave of court or by the court itself suo motu. The issue can be raised, after the plaintiff has duly filed his pleadings by a motion and or in a statement of defence. Locus standi to institute proceedings in a court is not dependent on the success or merits of a case; it is a condition precedent to the determination of a case on the merits. Owodunni v. Registered Trustees of C.C.C, (2000) 6 SC (pt.111) Pg.60. Madukolu v. Nkemdilim (1962) 2 SCNLR pg.314. Klifco v. Holfmann (1996) 3 NWLR (pt.435) pg.276. — O. O. Adekeye JSC.
⦿ SITUATIONS WHERE OBJECTIONS TO JURISDICTION WILL BE TAKEN
Furthermore, an objection to jurisdiction can be taken at anytime depending on what materials are available. It would be taken in the following situations –
a. On the basis of the statement of claim or
b. On the basis of the evidence received or
c. By a motion supported by affidavit giving full facts upon which reliance is placed or
d. On the face of the writ of summons, where appropriate as to the capacity in which action was brought or against whom action is brought. — O. O. Adekeye JSC.
⦿ WHERE JUDGEMENT OF TWO LOWER COURTS ARE PERVERSE, SUPREME COURT WILL SET THEM ASIDE
The Supreme Court is always reluctant to overturn the concurrent judgments of the High Court and the Court of Appeal. Where concurrent judgments of the two lower courts appear to be perverse, occasion a miscarriage of justice, unreasonable and against the evidence adduced, or in violation of some principle of law and procedure, the Supreme Court will not allow them to stand. Bayol v. Ahamba (2001) 2 WLN 109. — O. O. Adekeye JSC.
⦿ RESPONDENT ROLE IS TO SUPPORT THE JUDGEMENT OF THE LOWER COURT
The traditional role of a respondent in an appeal is to defend the judgment but the 3rd and 4th respondents did not support the judgment of the two lower courts. — O. O. Adekeye JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Olufunlola Oyelola Adekeye, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 16 (2) of the Lagos State Limitation Law 1994 reads:-
“An action for recovery of land shall not 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 accrued to same person through who he claims to that person”.
➥ REFERENCED (CASE)
⦿ OBJECTION TO JURISDICTION VERSUS DEMURRER
In the case of National Deposit Insurance Corporation v. Central Bank of Nigeria (2002) 7 NWLR (Pt.766) pg.272 pages 296-297, this court identified the difference between demurrer and objection to jurisdiction by holding that “There is distinction between objection to Jurisdiction and demurrer. It is misleading to equate demurrer with objection to jurisdiction. It is a standing principle that in demurrer, the plaintiff must plead and it is upon that pleading that the defendant will contend that accepting all the facts pleaded to be true, the plaintiff has no cause of action or where appropriate no locus standi. The issue of jurisdiction is not a matter for demurrer proceedings. It is much more fundamental than that and does not entirely depend as such on what a plaintiff may plead as facts to prove the relief he seeks. What it involves is what will enable the plaintiff to seek a hearing in court over his grievance and get it resolved because he is able to show that the court is empowered to entertain the subject matter. It does not always follow that he must plead first in order to raise the issue of jurisdiction.”
➥ REFERENCED (OTHERS)