Mr. Popoola Elabanjo & Anor V. Chief (Mrs.) Ganiat Dawodu (2006)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C.

This is an appeal from the decision of the Court of Appeal Lagos Division, delivered on 21-3-2001, allowing the appeal brought to it in this case from the ruling of the Lagos State High Court of Justice given on 15-10-1999, in which that court struck out a preliminary objection to its jurisdiction brought under section 16(2)(a) of the Limitation Law, Cap. 118, Laws of Lagos State, 1994. The Court of Appeal in its judgment allowing the appeal, set aside the ruling of the trial High Court, sustained the preliminary objection and dismissed the plaintiffs’ suit as being statute barred. The appellants who were the plaintiffs at the trial High Court filed their action on 5-12-1996 against the respondent who was the defendant and claimed in their statement of claim paragraph 17 as below:

“17. Whereof the plaintiffs claim as follows:

(a) The plaintiff (sic) claim against the defendant is for possession of two and half plots of land situate, lying and being at Ifako, Bariga, Gbagada, Lagos State the land already adjudged as the property of late David Taiwo Elabanjo (the plaintiffs (sic) father) by the Supreme Court of Nigeria in suit No. SC/85/1985 Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952.

(b) Perpetual injunction restraining the defendant, her servants, agents and privies from further trespassing on the land.

(c) N50.000.00 damages for acts of trespass.”

On being served with the plaintiffs’ statement of claim, the defendant without filing a statement of defence to highlight the points of law in her defence to the action, filed a notice of preliminary objection challenging the jurisdiction of the trial court to entertain the suit and specifically claimed:

“1. An order dismissing this suit as the Honourable Court lacks the jurisdiction to entertain the suit.”

This relief was claimed by the defendant in her preliminary objection on the ground that:

“The action is statute barred having been brought in 1996, more than 12 years after the cause of action accrued and outside the prescribed statutory period within which the suit ought to have been instituted.”

After hearing the learned counsel on both sides on the defendant’s preliminary objection, the learned Judge struck out the objection for being incompetent in the following words:

“I refer to Order 23 rule 1 that demurrer shall not be allowed and hold that in the absence of statement of defence, the notice of preliminary objection based on statute bar (sic) is incompetent. The notice of preliminary objection dated 14-6-99 is struck out being incompetent.”

This decision was reached by the trial court without even looking into the merit of the preliminary objection clearly challenging its jurisdiction to entertain the action.

Aggrieved by this decision of the trial court, the defendant headed to the Court of Appeal, Lagos Division and filed her appeal against the ruling and raised the following two issues in her appellants’ brief of argument for the determination of the court.