MR. Mufutau Adelakun V. Mrs. Tawakalitu Akinbayo & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

The Appellant filed an appeal against the judgment of A. M. Nicol-Clay, J. delivered on 19th January, 2012 dismissing the Appellants motion on notice dated 7/9/2011 challenging the jurisdiction of the trial court on the ground that 1st -3rd Respondents suit is statute barred.

The Summary of the facts of this case is that Appellant’s motion dated and filed on 7/9/2011 for the following reliefs:

1. An order of the high court dismissing the claimant’s suit on the ground that they became statute barred.

Grounds

(i) The claimant’s suit has been caught up by the provision of Section 16(1)(a) and 21 of the Limitation Law of Lagos State 2003.

Same was supported by an affidavit of 13 paragraphs and attached for exhibits the proof together with a written address. The Respondents filed a counter affidavit of 28 paragraphs in response together with (2) exhibits wherein after arguments, the court dismissed the motion. The Appellant being dissatisfied with the same filed a Notice of Appeal dated and filed 2nd February 2012 on a sole ground.

The Appellant filed a brief of argument dated 31st October, 2014 and filed on same day; it was settled by E.A. Oyebanji, David Dansiole, Yusuf O. Oladeju all of Messrs Ade Oyedeji & Co. while the 1st -3rd Respondents filed a Notice of Preliminary Objection dated and filed on 16/5/2013 and a brief of argument dated and filed on 19/12/14 but deemed 3/3/15 settled by Oniyide Oluwaseun Esq., of M.A. Toyin Keshinro & Associates.

The Appellant filed a reply brief dated and filed on 27/2/15 but deemed 3/3/15 wherein he responded to the preliminary objection therein on paragraph 1.0-3.0. The Appellant settled an issue for determination thus:

“Whether by virtue of Section 16(2)(a) and Section 21 of the Limitation Laws of Lagos State 2003 and in the light of Government Notice No. 347 Gazette No. 13 Vol. 38 of 15/3/1998 by which Lagos State Government acquired landed properties in the central of Lagos including the property at 35 Ereko Street Lagos in 1951, the 1st -3rd Respondents action in suit No CD/895/2009 was not caught up in statute of limitation from Ground I of Notice of Appeal.”

The Respondent also formulated a sole issue thus:

“Whether the claim of the Claimants/Respondents is statute barred as alleged by the Appellant.”

The two issues for determination are in my view the same; I shall adopt the sole issue of the Appellant in that it is more specific. Before I resolve the issue in this Appeal, I must resolve the preliminary objection raised by the Respondent as it borders on jurisdiction of the court to entertain the subject matter.

The Respondent filed a Notice of Preliminary Objection and also raised same in its respondent’s brief wherein he contended that the Appellants Notice of Appeal of 2/2/12 is incompetent that it is against Section 14(1) & (2) of the Court of Appeal Act, 2004 as amended on the grounds that the Appellant failed to seek leave of Court of Appeal in respect of the interlocutory ruling dated 7/4/11 and that the said Notice of Appeal is a flagrant violation of the provisions of Section 14(1)& (2) of the Court of Appeal Act, 2004.

On the sole issue for determination:- “Is there a competent Notice of Appeal on which the Appeal can be anchored upon”, the Respondent submitted that the Appeal is not competent and cannot be anchored upon for, the interlocutory appeal which was filed without leave of court.