Bolaji Babatunde Akinkunmi & Anor V. Alhaji Rasaq Olanrewaju Sadiq (2000)

LawGlobal-Hub Lead Judgment Report

GALADIMA, J.C.A.

The Respondent as plaintiff took out a writ of summons in the High Court Lagos State claiming as follows:

“1. A declaration that the property in dispute comprising a shop and two rooms at 25, Alli Street, Lagos belongs to the plaintiff Alhaji Rasaq Olanrewaju under Yoruba Native law and Custom.

2. An order of perpetual injunction restraining the 1st defendant from collecting rents in any form or manner in respect of the shop and two rooms at 25 Alli Street, Lagos.
3. Possession of the shop and two rooms,
4. Mesne profit at the rate of N500 for the shop and N250.00 for each room per month respectively from 1st June, 1990 until judgment.”

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.

Learned Counsel on behalf of the parties filed and exchanged briefs of argument. In the Appellant’s brief two issues were formulated for the determination of this court as follows:

“(1) Whether for the operation of Limitation Law probate action instituted in 1974 and concluded in 1995 between same parties can have effect on them in a claim for declaration, perpetual injunction, possession and mesne profit instituted in 1996 by one of the said same parties against the other?.

(2) Whether for the operation of limitation in trial of preliminary point of law raised in the pleading the defendant who pleaded that, he is the owner of the land in dispute and has been in possession for over 20 years need to establish again to be in adverse possession against plaintiff just claiming to be entitled to the land in dispute under Yoruba Law and Custom?.”

The respondent filed one single issue for determination thus:

“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?.”