Alhaji Lasisi Oladipo & Ors V. Gbolahan S. Ifaleye (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment)

This appeal is over the ruling of the High Court of Ogun State which refused an application to consider in limine whether the action before it was statute barred.

The Defendants in the lower court (the Appellants in this appeal) had in their Statement of Defence pleaded that the Claimant’s action – a land matter – is statute barred. Having so pleaded, the Appellants filed a Motion on Notice before the lower court which raised the question of the matter being statute barred as a point of law. The trial court heard the Motion on Notice and delivered its ruling on 13/8/2009.

In the said ruling, the trial court decided that Order 22 rule 2 of the Ogun State High Court (Civil Procedure) Rules 2008 allows for points of law raised on the pleadings to be disposed of at or after the trial of a case and that there is no compulsion that a Judge must hear such point of law before trial. The court also decided that justice will be better served by allowing the case to proceed to trial.

Dissatisfied with the ruling, the Appellants on 27/5/2010, filed a Notice of Appeal. In it they faulted the ruling of the lower court on two grounds.

The parties filed their Briefs of Argument. The relevant Briefs are the Appellants Amended Brief of Argument dated and filed on 12/11/12 while that of the Respondent is the Respondent’s Amended Brief of Argument dated 11/3/13, filed on 19/3/13 but deemed as properly filed and served on 6/11/2013.

The appeal was heard also on 6/11/2013. The Appellants’ case was argued by Taiwo Ajiboye, while Peter Ilegogie who appeared with Leke Benwaze argued the case of the Respondent.

The Appellants identified two issues for determination in this appeal, viz –

1. Whether the trial court was right in refusing to determine the point of law raised by the Appellants to wit, that the Claimant/Respondent’s action is statute barred by force of section 16 (2) of the Limitation Law of Ogun State and whether the Claimant/Respondent’s action is statute barred. (Ground 1 of the Notice of Appeal).
2. Whether the trial court erred in law when it found that a conflict exists as to whether the subject land forms part of the Ogun State Government acquisition in 1994 and that the only way to resolve it was by having evidence thereon, notwithstanding credible and uncontradicted documentary evidence presented before it by the Appellants to the contrary. (Ground 2 of the Notice of Appeal).

The Respondent’s Counsel was in complete agreement with the two identified issues and therefore adopted them without any modification.

In arguing Issue 1, Appellants’ Counsel sub-divided the issue into two as follows:

(a) Whether the trial court was right in refusing to determine the point of law raised by the Appellants, to wit, that the Respondent’s action is statute barred by force of Section 16(2) of the Limitation Law of Ogun State.

(b) Whether the Respondent’s action is statute barred.

On Issue 1(a), Appellants’ Counsel referred us to paragraphs 5 and 8 of the Statement of Defence at page 14 of the Record of Appeal and submitted that rather than deal with the issue of jurisdiction raised in the application before it, the trial court evaded the issue and instead interpreted Order 22 rule 2 of the Ogun State High Court (Civil Procedure) Rules 2008 in a skewed manner and without any support of case law.

It was submitted that the Supreme Court in the case of Elabanjo vs. Dawodu (2006) ALL FWLR part 328 p.604 at 649 considered the provision of Order 23 of the High Court of Lagos State (Civil Procedure) Rules, 1994 which is in pari materia with Order 22 of the High Court of Ogun State (Civil Procedure) Rules 2008 and held that the apparent conflict between Order 23 of the High Court of Lagos State (Civil Procedure) Rules (1994) and Section 16 of the Limitation Law Cap. 118 Laws of Lagos State must be resolved in favour of the Limitation Law which has overriding effect. Learned Counsel submitted that the trial court had no discretion to defer the determination of the issue of the challenge of its jurisdiction.