Pan Atlantic Shipping and Transport Agencies Ltd. V. Abayomi Babatunde (2007)

LawGlobal-Hub Lead Judgment Report

ISA AYO SALAMI, OFR, J.C.A.

This is an interlocutory appeal against the ruling of the Lagos High Court delivered by per Candide – Johnson on 17th July 2003 upholding the preliminary objection brought by respondent and dismissing the suit.

The plaintiff brought an action by way of originating summons at the High Court of Lagos State claiming the following reliefs-

“1. A Declaration that the plaintiff is the owner of the land the subject matter of this suit by virtue of its legal title by way of the possession of a registered certificate of occupancy in that regard.

2. A Declaration that the Defendant or any person(s) claiming under him has no proprietary interest in the plaintiffs land the subject matter of this suit.
3. An ORDER OF PERPETUAL INJUNCTION restraining the Defendant whether by himself, servant, agents, privies and assigns, or howsoever from trespassing on the plaintiffs land or holding himself out as owner or erecting any structure or dealing with the plaintiff’s land in any manner whatsoever”

The respondent rather than respond by deposing to a counter-affidavit gave a notice of intention to rely on a preliminary objection on the ground that-

“This Honourable Court lacks jurisdiction to hear this suit as presently constituted, the suit is statute barred as the cause of action accrued over 15 years ago.”

The notice of intention to rely on a preliminary objection was accompanied by an affidavit. The preliminary objection was tried and was upheld. Learned trial judge found that the suit was time barred and consequently dismissed same. In doing so, learned trial judge concluded as follows

“I must state, for the record that in relying on Exhibit AB1 and 21 have taken additional” comfort in the case of Egbe v Adefarasin. (1987) 1 NWLR (Pt 47) 1, cited by Defendant’s counsel for the proposition that a court can look to the date and material in a writ of summons and statement of claim to ascertain the date when time runs.

On the foregoing analysis the lime to start counting would be 14th March 2000. Since this present suit M/287/02 was commenced on 29th April 2002 the Defendant is correct to contend that this suit as presently constituted, in seeking essentially to establish and/or protect a proprietary right or interest which LD/166/87 per Exhibit AB1 and 2 shows had been under dispute and thereat as at 14/03/88, is caught by the limitation Law Cap. 118 and plaintiffs right thereon is extinguished and barred.”

The plaintiff was dissatisfied with the decision of the learned trial judge and has appealed on three grounds of appeal to this court. Briefs of argument were, in accordance with the prentice and procedure of this court, filed and exchanged at the appellant’s and respondent’s briefs of argument.

At the hearing of the appeal, learned counsel for both parties merely adopted their respective briefs without further elaboration thereon. The two parties related issue one to grounds 2 and 3 of the grounds of appeal and related ground 1 to issue 2 thereof.

In the appellant’s brief the following two issues were framed for determination in this appeal.

“1. Whether the learned trial judge was not obliged to establish first that the court was properly seized with jurisdiction before proceeding to hear the preliminary objection

2. Whether the action of the Appellant was time barred”

The respondent, on the other hand, contends that these two issues arise for determination in this appeal.