Mrs. O. Adekoya Vs Federal Housing Authority (2008)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C.

This suit was begun at the Ikeja Judicial Division of the High Court of Lagos State on the 12th October 1984. The Plaintiff is the Appellant, while the Defendant is the Respondent. I shall in this judgment simply refer to them as the Appellant and Respondent respectively. The claim was for:

1. An order for specific performance of an agreement dated 25th July 1977 made between the Plaintiff as lessee of the 1st part and the Defendant as lessor of the second part whereby the Plaintiff was allocated Flat No. 11, Block 3. 4th Avenue, 402 Road, C Close, Community 1A Festac Town.
2. An order for payment of the total sum of N3,608 representing rents payable by the Plaintiff to the Defendant from August 1974 up to and including May 1984 at N44.00 monthly.

Alternatively the total sum of N10,000.00 against the Defendant as general and special damages for breach contract.

Pleadings were filed and exchanged. And the matter went on trial with quite a number of Exhibits tendered in evidence. In its judgment on the 17/7/84 the trial court per Onalaja J (as he then was) dismissed the suit on the ground that it was statute-barred, same not having been brought within six years of the accrual of the cause of action under Section 8(1)(a) of the Limitation Law of Lagos State.

Aggrieved by the said judgment, the Appellant went on appeal to the Court below. In its judgment on the 11/1/2000 the appeal was dismissed. The court also affirmed that the suit was brought after six years from the date the cause of action arose.

Still not satisfied the Appellant has come on further appeal to this court. The Notice of Appeal dated 17/2/2000 contained two grounds of appeal. Before this court the parties have through their counsel filed and exchanged their briefs of arguments. The appellant’s brief prepared by Chief Bisi Adegunle was dated and filed on the 23rd of May 2003. He also prepared the appellant’s reply brief. The respondent’s brief was prepared by LA. Emelieze (Mrs) and same was filed on the 12/8/2003. Although the Respondent formulated two issues for determination in this appeal, it is my view that there is only one issue for determination and it is whether the action was defeated by reason of the provisions of Section 8(1)(a) of the Limitation Law of Lagos State.

On behalf of the Appellant Chief Bisi Adegunle argued as follows. It was his submission that the defence founded on the Statute of Limitation being a special defence ought to be properly raise in the pleadings by reference to the precise date on which the cause of action arose and that the failure so to do defeats the operation of the Limitation Laws of Lagos State. Reliance was placed on N.N.S.L v. Ltd. P. Emenike (1987) 4 N.W.L.R. (Part 63) 77; Domingo Paul v. Mrs. FA. George (1959) 4 FSC 198 at 201; Famuyiwa v. Folawiyo & Anor (1972) 1 ALL N.L.R. (Part 2) 11 at 22-23; N.I.P.C Ltd & Anor v Bank of West Africa (1962) 1 ALL N.L.R. 556; Ochonma v. Unosi(1965) N.M.L.R. 321 and Savnnah Bank v. Pan Atlantic (1987) 1 NWLR (part 49) 212 at 215. He relied also on Order 16 Rule 11 High Court of Lagos Civil Procedure Rules. It was further submitted that since the claim is in respect of Flat 11 Block 3, 4th Avenue, 402 Road C Close Community 1A Festival Town, the Respondent’s plea of limitation in respect of the Flat at 25/26 Amuwo Odofin cannot be used to defeat the claim. In support of this submission counsel cited Ehimare & Ors v. Emhonyon (1985) 1 N.W.L.R. (Part 2) 177; Metalimpex & Ors. v. Ali Balogun & Ors (1975) 1 ALL N.L.R. 30 at 40;Total (Nig.) Ltd. v. Wilfred Nwanko & Anor. (1978) 5 SC 1 at 16-18 Overseas Construction Co. Nig. Ltd. v. Creek Enterprises (Nig.) Ltd (1985) N.W.L.R. (part 13) 407; Adimora v. Ajufo (1988) 3 N.W.L.R. (Part 80) 1 at 15;Oredoyin v.Arowolo (1989) 4 N.W.L.R. (Part 114) 172.

Chief Adegunle further submitted that the cause of action did not arise until November 1983 when the Respondent finally refused to let her into possession. He relied on Lion of Africa Insurance Co.Lid. v. S.A Fisayo (1986) 4 N.W.L.R. (Part 37) 674. The argument in the Appellant’s Reply Brief is a repetition of the points already argued.

For the Respondent, L.A. Emelieze (Mrs) made the following submissions. She referred to the Respondent’s letter of offer dated 18th July 1977 for the use and occupation of flat complete) No. 25 and 26 Badagry Crescent, Block 45, Amuwo Odofin Lagos State and the Appellant’s letter of Acceptance dated 25th July. 1977 and the payment of N116.60 in respect thereof and argued that the writ was taken out 7 years and 3 months after the cause of action arose and therefore statute barred. For the meaning of cause of action counsel relied on Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) 1 N.W.L.R. (Part 47). Learned counsel submitted that the Respondent’s letter dated 18th July 1977 did not give rise to any contract and that it was, at best, an invitation to treat. It was counsel’s further submission that negotiations between the parties did not stop the time from running. For this submission, she relied on Nwadiaro v. Shell Pet. Dev. Co. Ltd.(1990) 5 N.W.L.R. (Part 150) 322 at 338-339. With respect to the Respondent’s second issue, learned counsel argued that the amendment though sought and granted after the Appellant had closed her case, no injustice was occasioned by it. Counsel urged finally that the appeal be dismissed.

In Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) 1 N.W.L.R. (Part 47) 1 at 20 this Court Per Oputa J.S.C. explained “cause of action” as follows:

“Now let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation which gives a person a right to judicial relief.

A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In order words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right … ”

In my view a cause of action is the emergence of a factual situation which enables a party to an action in court. On the question of how to determine the period of limitation, Oputa at the same page 20 said:

“How does one determine the period of limitation The answer is simple by looking at 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 are filed. This can be done without taking oral evidence from witnesses … ”