Madam Abibat Amope V. Mallam Saliu Gambari (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

This appeal challenges the decision of the High Court of Kwara State delivered by T.S. Umar, J on 18th April, 2012.

The appellant’s claim before the lower court was for ownership of landed property situate at No. 89 AbdulAzeez Attah Road, Boboko, Ilorin, the sum of N500,000,00 damages for trespass and perpetual injunction restraining the respondent from committing further trespass upon the said property.

The respondent filed and successfully moved a notice of preliminary objection following which the lower court held that the appellant’s action was statute barred and dismissed same in its reserved and considered ruling delivered on 18th April, 2012, which is the subject of the instant appeal.

One singular issue was raised from the two grounds of appeal by both parties and that is whether, from the materials placed before the lower Court, the appellant’s action was statute barred.

The learned counsel for the appellant B.R. Gold, Esq. argued that in determining whether an action is statute barred, the statement of claim and writ of summons have to be examined. See D.A.M. & Co. Ltd. v. J.M.I. Ltd. (2007) ALL FWLR (Pt.390) P.1530 at 1543 paras C – D; Williams v. Williams (2008) ALL FWLR (Pt.433) P.1245 at 1257 paras B – C.

The learned counsel for the appellant argued that the averment in paragraph 33 of the statement of claim show that the respondent had removed the roof of the property in dispute and threatened to demolish same instead of paying the rents, collected from tenants occupying the property to the appellant as he has been doing. It was contended for the appellant that previously the dispute between the parties was only in respect of rents collected by the respondent and repossession of the property by the Appellant, which took the parties to Upper Area Court in 1999.

The learned counsel for the Appellant further argued that the respondent’s attitude as deposed in para. 33 of the statement of claim tantamount to igniting the instant dispute regarding the property in dispute, which made the Appellant to file the suit at the lower Court front-loaded with the writ of summons, a 37 paragraph statement of claim and three witnesses’ written statements on oath. The relevant paragraph 33 states thus.

“33 The Claimant avers that to their surprise on 14th October, 2011 the Defendant came to the premises in dispute with some people who are suspected to the thugs brandishing cutlass, and gun to remove the roof and the roofing sheets of the shops and attempted to demolish the shops.”

The claim earlier made in 1999 before the Upper Area Court for collection of rent by Respondent on behalf of the Appellant is completely irrelevant to the instant appeal. The relevant facts relate to the claim before the High Court of Kwara State in suit No. KWS/331/2011.

All arguments premised on the claim before the Upper Area Court will be discountenanced being irrelevant to this appeal. The only common denominator between the claim before the Upper Area Court and the one before the High Court of Kwara State is the property in question but the claims are founded on different causes of action.

The learned counsel for the Appellant argued that the Respondent’s rebellious attitude tantamount to betrayed of his authority as an agent for the collection of rent as he has been doing over the years. It does not, in anyway, entitle him to any right to the property in question. It was further argued that the appellant’s claim for declaration of title and ownership of the property situate at No. 89, Abdul-Azeez Attah Road Baboko, Ilorin and damages for trespass could not have been defeated by the Respondent’s assertion of Limitation of action see Obueke v. Nnamchi (2012) All FWLR (Pt.633) 1840 at 1860 paras. F – H; Monkom v. Odili (2010) All FWLR (Pt.536) 542 at 571 paras C – H.

The learned counsel for the Appellant further argued that the cause of action arose in 14th October, 2011 and not in 1999 as contended by the Respondent and is therefore not statute barred. See Ukiri v. Federal Civil Service Commission (2011) All FWLR (Pt.577) 783 at 793 paras D – E; Adekola v. Federal Housing Authoring (2008) All FWLR (Pt.434) 1452 at 1464 paras A -B.

The averment in paragraph 33 of the statement of claim clearly shows that the cause of action arose on the 14th October, 2011 when the Respondent removed the roof of the property in question, which was perceived by the Appellant as challenge to her title.