CORAM

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MOHAMMED MUSTAPHA JUSTICE, COURT OF APPEAL

FOLASADE AYODEJI OJO JUSTICE, COURT OF APPEAL

ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL

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PARTIES

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AISHA BELLO

APPELLANTS 

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MAIMUNA MAMA-SAMBO BELLO AND 3 ORS

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, EVIDENCE, JUDGMENT, LAND, LIMITATION LAW, PRACTICE AND PROCEDURE, PROPERTY AND CONVEYANCING

 

 

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SUMMARY OF FACTS

By a writ of summons and statement of claim filed before the lower court, the 1st Respondent sought to be declared the owner and person entitled to the statutory right of occupancy of the property at Plot 82, Victoria Island Annex, Lagos now known as No. 82, Younis Bashorun Street, Victoria Island, Lagos pursuant to the terms of Letter of Allocation No. LU/88/V.I.ANNEX/PL.82 dated 15th January 1988. The 1st Respondent also sought an order setting aside the purported grant of statutory right of occupancy and the issuance of Certificate of Occupancy No. 84/84/1988S by the Defendants to a 3rd party other than the Claimant in respect of the same property.

Upon an application by the appellant dated 30th of July, 2013, Aisha Bello was joined as the 4th defendant in the suit. Aisha Bello (the appellant) then filed a preliminary objection pursuant to section 12(1) of the Limitation Law of Lagos state of Nigeria 2004 and section 2 of the Public Officers’ Protection Act, 2017, contending by these laws that the action is incompetent, and that this court lacks jurisdiction to entertain same. The Appellant claimed that the suit as presently constituted is incompetent, thus ousting the jurisdiction of this court.

The lower court dismissed the application. Dissatisfied with the ruling the appellant appealed by a notice of appeal hence the instant appeal.

 

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HELD

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Appeal Allowed

 

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ISSUES

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1. Whether having regard to the provision of Section 2 of the Public Officers Protection Act CAP P41, Laws of the Federation of Nigeria, 2004 and Sections 12 and 16 of the Limitation Law of Lagos State CAP L67. 2004 and the state of the 1st Respondents pleadings, the jurisdiction of the lower court to hear and determine the Suit is not ousted by the failure of the 1st Respondent to commence this action within the time set down in the statute?

2. Whether having regards to the 1st Respondents pleadings, this action as presently constituted is statute barred and the lower court thereby lacks jurisdiction to entertain it?

 

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RATIONES DECIDENDI

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INTERLOCUTORY – MEANING OF INTERLOCUTORY DECISIONS – WHETHER A DECISION AFFECTING JURISDICTION IS A FINAL OR INTERLOCUTORY DECISION

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The word, “Interlocutory”‘ means interim or temporary; not constituting a final resolution of the whole controversy – Black’s Law Dictionary, 9th Edition; see also FIRST NATION AIRWAYS (SS) LTD & ANOR V. POLARIS BANK LTD (Pp. 22-23 paras. A-A) where it was held:

“Interlocutory connotes an occurrence/ happening which is provisional, temporary, interim and not a final resolution of the whole controversy. It intervenes between the commencement and the end of the suit, see N.A.O.C LTD. V. NKWEKE (2016) 7 NWLR (PT. 1512) 588; AGWU V. JULIUS BERGER (NIG.) PLC. (2019) 11 NWLR (PT. 1682) 165; C.G.C. (NIG.) LTD. V. ERONINI (2019) 14 NWLR (PT. 1692) 219.” Per OGBUINYA, J.C.A in ANIBABA V. DANA AIRLINES LTD & ANOR (Pp. 27 paras. D).

On the other hand, the supreme court in UGO V UGO (2017) 18 NWLR part 1597 page 218 emphatically stated what a final decision is, in contrast to an interlocutory decision as follows:

“once a court in considering an interlocutory application challenging its jurisdiction comes to the conclusion that it has jurisdiction to hear and determine the substantive matter, that decision is final decision of the issue of jurisdiction, as that court cannot lawfully revisit the issue again in the same proceeding. The court thereby becomes functus officio on the issue irrespective of the fact that the decision arose from an interlocutory proceeding…” – Per Mohammed Mustapha, JCA

 

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STATUTE BAR – CAUSE OF ACTION AS A BASIS FOR DETERMINING IF AN ACTION IS STATUTE BARRED – WHERE AN ACTION IS NOT COMMENCED WITHIN THE STIPULATED TIME FRAME

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The determination of whether a suit is statute barred invariably starts from, when the cause of action arose and when the suit was filed? The answer to these questions are not farfetched, because it is settled by a long line of decided cases that a cause of action is said to have arisen upon the onset of a breach or any act that warrants the victim of such action, who is adversely affected to seek redress in a court of law. This right is not at large, because it has limitations as to time, after which no legal action may be taken. This is the point at which the cause of action is said to be statute barred; see WOHEREM V. EMEREUWA (2000) 3 NWLR (Part 650) 529 at 538.

The safest method of determining the limitation period is a careful scrutiny of the writ of summons and the statement of claim alleging when the wrong was committed, which gave the plaintiff a cause of action and by comparing that date with the date on which the writ of summons was filed.

This can be done without necessarily taking evidence from witnesses, contrary to the finding of the lower court at pages 259 to 266 of the record; see BANK OF THE NORTH V. GANA (2004) LPELR-12568 (CA) (Pp. 21-23 paras. F). There is as a matter of both fact and law, neither need nor necessity for having recourse to the evidence in order to determine when the cause of action accrued. The writ of summons and statement of claim suffice to all intents and purposes.

The central pivot of the principle of law as it relates to statute bar is that once an action is not commenced within the stipulated time frame, no matter the merit of such action, the Court will not entertain same. The question whether the cause of action has merit is subject to whether the Court can admit the aggrieved litigant. Once a party does not commence the action within the time frame stated in the law, the action is dead on arrival as the party is barred statutorily from instituting the action; CIL RISK & ASSET MANAGEMENT LTD V. EKITI STATE GOVT & ORS (2020) LPELR-49565(SC) and SOSAN V. ADEMUYIWA (1986) 3 NWLR (pt.27) 241. – Per Mohammed Mustapha, JCA

 

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JURISDICTION – WHERE THE ISSUE OF A COURTS JURISDICTION IS RAISED IN ANY PROCEEDING

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The contention, on the other hand, that the appellant had admitted facts stated in the statement of claim is neither here nor there, because objection to jurisdiction can be taken, regardless of whether pleadings have been exchanged. This is so because it is settled, where the issue of a Court’s jurisdiction is raised, in any proceedings and at any stage, it must be taken first, immediately, promptly or expeditiously. See the case of FIRST CITY MERCHANT BANK LTD. & 4 ORS. V. ABIOLA & SONS BOTTLING CO. LTD. (1991) 1 NWLR (PT.165) 14 @ 27 C.A.; NALSA & TEAM ASSOCIATES V. NNPC (1996) 3 NWLR (PT.439) 621 @ 633; (1996) 3 SCNJ 50, 61; CHIEF UKWU & 3 ORS. V. CHIEF BUNGE (1997) 8 NWLR (PT.678) 527 @ 541, 542, 544; (1997) 7 SCNJ 262 @ 273; GALADIMA V. ALHAJI TAMBAI & 11 ORS. (2000) 6 SCNJ @ 200, 203 and JERIC NIG. LTD. V. UNION BANK OF NIG. PLC (2000) 12 SCNJ 184 @ 193

It is cardinal that where the jurisdiction of a Court is in issue it has to decide whether or not, it has jurisdiction itself; See also the case of SHITTA-BEY V. ATTORNEY-GENERAL OF THE FEDERATION & ANOR. (1998) 10 NWLR (PT.) 392; (1998) 7 SCNJ 264. Where the jurisdiction of the Court is challenged, that has to be resolved one way or the other promptly, without delay; See ADEIGBE V. KUSIMO (1965) 1 ANLR 248. – Per Mohammed Mustapha, JCA

 

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CERTIFICATE OF OCCUPANCY – WHERE A PERSON IS GRANTED CERTIFICATE OF OCCUPANCY

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While the contention that the certificate of occupancy in itself is not the title document in this case cannot be dismissed with the waive of a hand, it has to be understood that in the eyes of the law, once a person is granted a Certificate of Occupancy over a parcel of land, he is entitled to hold same to the exclusion of any person unless and until the Certificate of Occupancy is set aside; See: MADU V. MADU (2008) 6 NWLR (PT.1083) 296 and ISIOFA V. KONDUGA INVESTMENT (NIG) LTD & ANOR (PP. 30 PARAS. D). – Per Mohammed Mustapha, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Limitation Law of Lagos state of Nigeria CAP L67. 2004

3. Public Officers’ Protection Act, 2017

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