⦿ CASE SUMMARY OF:
Bolaji Babatunde Akinkunmi & Anor v. Alhaji Rasaq Olanrewaju Sadiq (2000) – CA
by PipAr-RAshid
⦿ LITE HOLDING
For the purpose of statute bar, the cause of action begins to run from when the cause of action arises.
⦿AREA OF LAW
– Law of Succession
⦿ TAG(S)
– Statute bar.
– Limitation of action.
⦿ PARTIES
APPELLANT
Bolaji Babatunde Akinkunmi & Anor.
v.
RESPONDENT
Alhaji Rasaq Olanrewaju Sadiq
⦿ CITATION
(2000) JELR 44142 (CA)
⦿ COURT
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
GALADIMA, J.C.A.
⦿ APPEARANCES
* FOR THE APPELLANT
* FOR THE RESPONDENT
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⦿ FACT (as relating to the issues)
On 4/3/98, plaintiff’s writ was amended praying the court to dismiss the 1st defendant’s action as being statute-barred. In the same vein on 22/1/98, the appellant as the 1st defendant by a summons on notice brought an application at the lower court under Order 23 rules 2 and 3 of the High Court of Lagos State (Civil Procedure) Rules, 1994, praying for the determination of preliminary issues of law and mixed facts and law raised in paragraphs 10 – 20 in the statement of claim and paragraphs 2 – 5 of the reply to the statement of defence of the appellant and paragraphs 26 – 29 of the reply to the statement of defence; and whether he has disclosed good defence in law to all claims and causes of action pleaded by the plaintiff in his writ of summons and statement of claim.
Other preliminary issue presented for determination by the appellant was whether the action of the respondent was statute-barred pursuant to section 16(2)(a) and 33(1)(2) Limitation Law, Cap. 118, Laws of Lagos State (supra) having regard to the following facts: (1) that Madam Nimota Ajiwun, the predecessor-in-title who was in possession died on 28/6/1969 and (2) that the 1st defendant herein has since then for a period of over 27 years been in possession of the property in dispute consisting of one shop and two rooms at No.25, Alli Street, Lagos, exercising maximum acts of ownership including putting in and ejecting tenants there from, the 2nd defendant being his tenant presently in occupation without let or hindrance or disturbance of any kind.
The learned trial Judge took arguments from the parties and in his ruling dismissed the appellant’s action as being statute-barred under sections 16(2)(a) 19(1), 21, 33(1) (2) of Limitation Laws Cap. 118 of Laws of Lagos State vol.5 1994.
Dissatisfied, the Appellant appealed to this Court on three grounds.
⦿ ISSUE(S)
1. Whether the cause of action in the suit herein accrued on 29/5/95 when the Court of Appeal in suit No.CA/L/228/93 finally determined that the Will of the late Madam Nimota Ajiwun in which she devised the 2 rooms and a shop, the property in dispute to the defendant was void, or in 1973 when Nimota Ajiwun died?
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED]
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE RESPONDENT. THAT THE RESPONDENT SUIT WAS NOT STATUTE BARRED.
RULING:
i. One can see the frustration faced by the respondent between this period. He could not have instituted an action and indeed the suit herein between 1974 and 1995 against the appellant, simply because facts which are necessary and which he needed to rely to prove, if traversed to support his right to judgment had not occurred. Between this period the High Court of Lagos State and this Court of Appeal were still adjudicating on the validity of the will of the said late Madam Nimota Ajiwun and the devise of the two rooms and the shop. My respectful view is that the facts which the respondent had to prove had not occurred between this period. These facts emerged in 1995; when the late Madam Nimota Ajiwun and the devise of the two rooms and a shop were declared void.
ii. I reiterate my earlier view that the cause of action occurred in 1995 when the suit brought by the Respondent could be effectively prosecuted by the respondent. This action having been filed on 1/4/96, I am of the opinion that the learned trial Judge was perfectly right to rule that the action was not statute-barred.
⦿ REFERENCED
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
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⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
* PROCEDURAL
The Supreme Court and indeed this court all have cause to emphasise the importance of good brief writing. There is need to make a brief legible, readable in appearance and attractive in form and presentation, above all it should not be unnecessarily lengthy and repetitive. – Galadima, JCA. Bolaji v. Sadiq (2000)
It is the issue that is argued on appeal not the grounds of appeal. When counsel argues an appeal he should rely on the issues formulated rather than the grounds of appeal because it is on the basis of the issues that the parties found their contentions. – Galadima, JCA. Bolaji v. Sadiq (2000)
* SUBSTANTIVE
What a cause of action is, has been defined as a bundle of aggregate of facts which the law will recognise as giving the plaintiff a substantive right to make a claim against the relief or remedy being sought. When every fact which is material to be proved to entitle the plaintiff to succeed or all those things necessary to give a right to a relief in law, equity have occurred, a cause of action is said to have accrued to the plaintiff. – Galadima, JCA. Bolaji v. Sadiq (2000)
To ascertain when an action is statute-barred the following enquiries must be made: (a) Seek to know when the cause of action accrued to the plaintiff. (b) Check from the writ of summons when the suit was instituted and; then (c) Ascertain from the statute in question what period of time it prescribed to bring the action. – Galadima, JCA. Bolaji v. Sadiq (2000)
