⦿ CASE SUMMARY OF:
Popoola Elebanjo v. Ganiat Dawodu  – SC
⦿ LITE HOLDING
To challenge jurisdiction of a court, the applicant need not include such in his statement of defence or file a statement of defence.
I hold that the Respondent herein had no need to file her Statement of Defence before raising the issue of jurisdiction as a preliminary point. – per Umaru Onu JSC.
⦿AREA OF LAW
– Land Law
– Filing preliminary objection.
Mr. Popoola Elabanjo
Mr. BayoElabanjo (For themselves and on behalf of late David Elebanjo Family)
Chief (Mrs) Ganiat Dawodu
 NGSC 182
⦿ LEAD JUDGEMENT DELIVERED BY:
Mahmud Mohammed, J.S.C.
* FOR THE APPELLANT
Chief G.O. Oduwole
* FOR THE RESPONDENT
John O. Odubela Esq.
⦿ FACT (as relating to the issues)
Plaintiffs claim, in the Trial Court, as follows: – (a) The Plaintiff’s (sic) claim against the Defendant is for possession of 21/2 plots of land situate, lying and being at Ifako, Bariga, Gbagada, Lagos State, the land already adjudged as the property of late David TaiwoElabanjo (the Plaintiff’s (sic) father) by the Supreme Court of Nigeria in Suit No SC/85/1985- Elabanjo vs. Tijani.
(b) Perpetual Injunction restraining the Defendant, her servants, agents and privies from further trespassing on the land. (c) N50.000.00 damages for acts of trespass.
The defendant filed a preliminary objection praying: “an Order dismissing this suit as the Honourable Court lacks the jurisdiction to entertain the suit.”
This relief was claimed by the Defendant in her Preliminary Objection on the ground that: – The action is statute barred having been brought in 1996, more than 12 years after the cause of action accrued and outside the prescribed statutory period within which the suit ought to have been instituted.
The Trial Court dismissed the preliminary objection.
This is an appeal from the decision of the Court of Appeal, Lagos Division, delivered on 21-3-2001, allowing the appeal brought to it in this case from the Ruling of the Lagos State High Court of Justice given on 15-10-1999, in which that Court struck out a preliminary objection to its jurisdiction brought under section 16 (2)(a) of the Limitation Law CAP 118 Laws of Lagos State 1994.
The Court of Appeal in its judgment allowing the appeal, set aside the Ruling of the trial High Court, sustained the preliminary objection and dismissed the Plaintiffs suit as being statute barred.
1. Whether the judgment of the lower Court was not entered in total disregard of the provisions of Order 23 Rules 1, 2 & 3 of the High Court of Lagos State (Civil Procedure) Rules 1994.
2. Whether the Lower Court was right in holding that the action of the Appellants was statute barred.
⦿ RESOLUTION OF ISSUE(S)
[APPEAL: N10,000 cost against the Appellant]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. On the face of this application, one cannot but agree entirely with the learned Counsel to the Respondent that the point of law raised by the Respondent in the application before the trial High Court is not an ordinary point of law that could have been raised under Order 23 of the Lagos State High Court (Civil Procedure) Rules 1994. The application was plainly brought under the provisions of the Limitation Law, CAP 18 of the Laws of Lagos State, 1994 to challenge the jurisdiction of the trial Court that it has no jurisdiction to entertain the Appellants’ action for their failure to bring the action within the period of 12 years prescribed by the law. As the Respondent being Defendant had perceived that the action as constituted before the trial Court against her was not worth defending, was perfectly justified in refusing to avail herself of the provisions of Order 23 of the High Court Rules, by filing her Statement of Defence before raising her objection against the jurisdiction of the trial Court. This is because the law is trite that an objection that a Court has no jurisdiction to entertain a matter or action is certainly not an ordinary point of law contemplated under Order 23 Rules 2 and 3 of the Lagos State High Court Civil Procedure Rules. Issue of jurisdiction is very fundamental. It can be raised at any stage of the proceedings in the High Court, the Court of Appeal and in this Court by the parties or suo moto by the Court itself.
ii. Taking into consideration that at the time the Respondent filed her Preliminary Objection to the jurisdiction of the trial Court to entertain the Appellants suit, not only the writ of summons and the statement of claim had been filed and served but that the Preliminary Objection was also supported by affidavit with a number of relevant documents exhibited to it together with a counter affidavit filed in opposition thereof, the fact that no Statement of Defence was filed at that stage would not have prevented the trial Court from determining the objection which is quite competent on the adequate materials already before the Court. For this reason, the trial Court was wrong to have struck out the application as rightly found by the Court below.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the Appellants letter to the D.P.O. Pedro Station dated 15-8-1984, the Appellants visibly complained of alleged acts of trespass on the land against the Respondent who was not infact merely sighted on the land but also brought caterpillar and started preparing the land with the support of hooligans and workers to put up structures thereon. To me, the combination of these facts and circumstances prevailing in August 1984, clearly gave rise to the Appellants right to file a claim for the possession of the land in dispute, damages for trespass and injunction restraining the Respondent from committing further acts of trespass on the land and not to have been contented with a complaint to the D.P.O. or wait until after 12 years to seek the same remedy in Court. From the facts and circumstances therefore, I say the cause of action in this case accrued in August 1984. Even if the excuse of the Appellants for their inaction is placed on the situation that litigation on the land in dispute was still going until 12-12-1986 when the dispute ended in this Court, why did the Appellants refuse to seek remedy in Court against the Respondent until 5-12-1996 nearly 10 years after the conclusion of the case which the Appellants themselves stated was not between the present parties in this appeal? The result of the Appellants failure to take appropriate action resulted in leaving the Respondent in full control and possession of the 2½plots of land in dispute from August 1984 to December 1996, thereby bringing the Appellants action into the full grip of the provisions of Sections 16(2)(a) and 21 of the Limitation Law CAP 118 of the Laws of Lagos State 1994 earlier quoted in this judgment.
ii. Looking at the Writ of Summons in the case at hand, the Appellants suit claming possession of the 2½ plots of land in dispute, damages for trespass and perpetual injunction was filed on 5-12-1996. The Statement of Claim of the Appellants who sued in a representative capacity for the Elabanjo family who acquired interest in the larger portion of land containing the land in dispute since 1969, shows that the Respondent trespassed on to the land in August 1984 when she brought a caterpillar to level the land in preparation for putting up structures thereon. On these facts, to say that the cause of action giving the Appellants the right to sue and seek remedy against the Respondent who was in possession arose in August 1984, can hardly be disputed. Thus, by waiting until 5-12-1996 when their action was filed against the Respondent, a period of 12 years and 4 months, the Appellants action was, without any doubt filed outside the period of 12 years prescribed by Section 16(2)(a) of the Limitation Law Cap 118 of the Laws of Lagos State, 1994 for action to recover any piece of land. In other words the Appellants action is statute-barred as rightly found by the Court below. In fact the fate of the Appellants does not end with the loss of their right of action alone, their title to the 2½ plots of land in dispute has also been extinguished under the provisions of Section 21 of the same Limitation Law. To this end, no Court can look into the merit of the Appellants suit now dead, to see whether the Respondent had acquired a valid title to the land in dispute or not having regard to the principles of Lis Pendens being relied upon in this appeal by the Appellants.
i. The crucial question to be determined in this appeal, which in fact is the pivot of the appeal, remains whether an action commenced outside the period of limitation is strictly speaking, a matter of jurisdiction of the Court before which it is instituted. In the instant case, the Respondent’s motion before the trial Court and which had earlier been reproduced in this judgment stated that the trial Court lacked the jurisdiction to entertain the action because that action was statute barred, it is necessary to bear in mind that the concept of cause of action or competence of same ought not to be confused with the jurisdiction of the Court.
ii. It is very clear that the period of limitation or limitation law affects the cause of action or validity of cause of action instituted outside the limitation period. It deals with the competence of the action so instituted, and has nothing to do with the greatest respect, with the jurisdiction or competence of the Court to decide or determine the matter. That is why the statute of limitation is regarded as a defence to an action and by the provisions of the relevant Rules of Court, it must be specifically pleaded.
iii. Learned Counsel for the Respondent submitted by way of alternative that the non-compliance by the Respondent with the rules of Court be termed a mere irregularity, which does not render the proceeding null and void. I do not agree with learned Counsel for the Respondent on the matter. The non-compliance in the instant case, in my considered opinion is not a mere irregularity but affects substantially, the rules of pleadings designed to ensure fair hearing to both parties and must be complied with so as not to defeat the aim it was designed to achieve.
i. On issue 2 which is whether the lower Court was right in holding that the action of the Appellants was statute barred, I hold the view that having resolved issue 1 in favour of the Appellants which in effect confirms the ruling of the learned trial Judge earlier reproduced in this judgment, it means in effect that the Preliminary Objection before that Court was incompetent and therefore its merits or otherwise cannot be determined without a competent application being brought to that effect. However, the submission that time does not run during the pendency of litigation is crucial and makes interesting reading. In conclusion, I hold the view that issue 2 be and is hereby discountenanced.
⦿ ENDING NOTE BY LEAD JUSTICE – Per Mahmud Mohammed JSC
S. 16(2) Limitation Law CAP 118 of the Laws of Lagos State 1994.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Petrojessica Enterprises Ltd v. Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675 at 693, Belgore J.S.C. put it plainly thus: – “Jurisdiction is the very basis on which any Tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this Court; a fortiori the Court can suo motu raise it. It is desirable that Preliminary Objection be raised early on the issue of jurisdiction; but once it is apparent to any party that the Court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity”.
In the case of Akinbi v.The Military Governor, Ondo State & Anor. (199O) 3 NWLR (Pt. 14O) 526 @ 531 – 532 C.A. it was held that: a preliminary objection on point of law challenging the validity of the institution of a suit, could only be determined at the initial stage, by reference to the pleadings, particularly the Statement of Claim. That once the issue cannot be determined on the pleadings, then the Court, ought to proceed to full trial of the case and decide the point afterwards. That a preliminary point, ceases to be one strictly speaking, once the point could not be decided without evidence being led. That in such a case, the point becomes a defence to the action. That the justiciability of an action, is decided as a preliminary point with reference to the Plaintiff’s pleading i.e. the Statement of Claim.
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Guided by the decision of this Court in Egbe v. Adefarasin (No. 2) (supra), the period of limitation in any limitation statute is determined by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave rise to the cause of action and by comparing that date with the date on which the Writ of summons was filed. If the time on the Writ of Summons is beyond the period allowed by the Limitation law, the action is statute barred. – Mahmud, JSC. Elebanjo v. Dawodu 
Of course, and this is also settled, a Preliminary question, is a question that has to be settled before going into other things. – Ogbuagu, JSC. Elebanjo v. Dawodu 
Demurrer proceeding is said to be an old English Common Law procedure employed when a party intends to challenge the pleadings of his opponent on point of law. In a demurrer proceeding, the basic essence is that the party raising same contends that even if all theallegations in the Statement of Claim are true, it still does not, in law, disclose a cause of action for the party contending to answer. – Onnoghen, JSC. Elebanjo v. Dawodu 
A cause of action usually arises as soon as the combination of facts giving the right to complain accrued or happened. – Onnoghen, JSC. Elebanjo v. Dawodu 
Surely and certainly, it is now firmly established, that a point of law can be raised on a Preliminary Objection, ifthe point of law, will be decisiveof the whole litigation. – Ogbuagu, JSC. Elebanjo v. Dawodu