Mrs. O. Adekoya Vs Federal Housing Authority (2008)
LAWGLOBAL HUB Lead Judgment Report
TABAI, J.S.C.
This suit was begun at the Ikeja Judicial Division of the High Court of Lagos State on the 12th October 1984. The Plaintiff is the Appellant, while the Defendant is the Respondent. I shall in this judgment simply refer to them as the Appellant and Respondent respectively. The claim was for:
- An order for specific performance of an agreement dated 25th July 1977 made between the Plaintiff as lessee of the 1st part and the Defendant as lessor of the second part whereby the Plaintiff was allocated Flat No. 11, Block 3. 4th Avenue, 402 Road, C Close, Community 1A Festac Town.
- An order for payment of the total sum of N3,608 representing rents payable by the Plaintiff to the Defendant from August 1974 up to and including May 1984 at N44.00 monthly.
Alternatively the total sum of N10,000.00 against the Defendant as general and special damages for breach contract.
Pleadings were filed and exchanged. And the matter went on trial with quite a number of Exhibits tendered in evidence. In its judgment on the 17/7/84 the trial court per Onalaja J (as he then was) dismissed the suit on the ground that it was statute-barred, same not having been brought within six years of the accrual of the cause of action under Section 8(1)(a) of the Limitation Law of Lagos State.
Aggrieved by the said judgment, the Appellant went on appeal to the Court below. In its judgment on the 11/1/2000 the appeal was dismissed. The court also affirmed that the suit was brought after six years from the date the cause of action arose.
Still not satisfied the Appellant has come on further appeal to this court. The Notice of Appeal dated 17/2/2000 contained two grounds of appeal. Before this court the parties have through their counsel filed and exchanged their briefs of arguments. The appellant’s brief prepared by Chief Bisi Adegunle was dated and filed on the 23rd of May 2003. He also prepared the appellant’s reply brief. The respondent’s brief was prepared by LA. Emelieze (Mrs) and same was filed on the 12/8/2003. Although the Respondent formulated two issues for determination in this appeal, it is my view that there is only one issue for determination and it is whether the action was defeated by reason of the provisions of Section 8(1)(a) of the Limitation Law of Lagos State.
On behalf of the Appellant Chief Bisi Adegunle argued as follows. It was his submission that the defence founded on the Statute of Limitation being a special defence ought to be properly raise in the pleadings by reference to the precise date on which the cause of action arose and that the failure so to do defeats the operation of the Limitation Laws of Lagos State. Reliance was placed on N.N.S.L v. Ltd. P. Emenike (1987) 4 N.W.L.R. (Part 63) 77; Domingo Paul v. Mrs. FA. George (1959) 4 FSC 198 at 201; Famuyiwa v. Folawiyo & Anor (1972) 1 ALL N.L.R. (Part 2) 11 at 22-23; N.I.P.C Ltd & Anor v Bank of West Africa (1962) 1 ALL N.L.R. 556; Ochonma v. Unosi(1965) N.M.L.R. 321 and Savnnah Bank v. Pan Atlantic (1987) 1 NWLR (part 49) 212 at 215. He relied also on Order 16 Rule 11 High Court of Lagos Civil Procedure Rules. It was further submitted that since the claim is in respect of Flat 11 Block 3, 4th Avenue, 402 Road C Close Community 1A Festival Town, the Respondent’s plea of limitation in respect of the Flat at 25/26 Amuwo Odofin cannot be used to defeat the claim. In support of this submission counsel cited Ehimare & Ors v. Emhonyon (1985) 1 N.W.L.R. (Part 2) 177; Metalimpex & Ors. v. Ali Balogun & Ors (1975) 1 ALL N.L.R. 30 at 40;Total (Nig.) Ltd. v. Wilfred Nwanko & Anor. (1978) 5 SC 1 at 16-18 Overseas Construction Co. Nig. Ltd. v. Creek Enterprises (Nig.) Ltd (1985) N.W.L.R. (part 13) 407; Adimora v. Ajufo (1988) 3 N.W.L.R. (Part 80) 1 at 15;Oredoyin v.Arowolo (1989) 4 N.W.L.R. (Part 114) 172.
Chief Adegunle further submitted that the cause of action did not arise until November 1983 when the Respondent finally refused to let her into possession. He relied on Lion of Africa Insurance Co.Lid. v. S.A Fisayo (1986) 4 N.W.L.R. (Part 37) 674. The argument in the Appellant’s Reply Brief is a repetition of the points already argued.
For the Respondent, L.A. Emelieze (Mrs) made the following submissions. She referred to the Respondent’s letter of offer dated 18th July 1977 for the use and occupation of flat complete) No. 25 and 26 Badagry Crescent, Block 45, Amuwo Odofin Lagos State and the Appellant’s letter of Acceptance dated 25th July. 1977 and the payment of N116.60 in respect thereof and argued that the writ was taken out 7 years and 3 months after the cause of action arose and therefore statute barred. For the meaning of cause of action counsel relied on Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) 1 N.W.L.R. (Part 47). Learned counsel submitted that the Respondent’s letter dated 18th July 1977 did not give rise to any contract and that it was, at best, an invitation to treat. It was counsel’s further submission that negotiations between the parties did not stop the time from running. For this submission, she relied on Nwadiaro v. Shell Pet. Dev. Co. Ltd.(1990) 5 N.W.L.R. (Part 150) 322 at 338-339. With respect to the Respondent’s second issue, learned counsel argued that the amendment though sought and granted after the Appellant had closed her case, no injustice was occasioned by it. Counsel urged finally that the appeal be dismissed.
In Fred Egbe v. Hon. Justice J.A. Adefarasin (1987) 1 N.W.L.R. (Part 47) 1 at 20 this Court Per Oputa J.S.C. explained “cause of action” as follows:
“Now let us look at the meaning of cause of action. It is admittedly an expression that defies precise definition. But it can safely be defined as the fact or facts which establish or give rise to a right of action – it is the factual situation which gives a person a right to judicial relief.
A cause of action is to be distinguished from a right of action. A right of action is the right to enforce presently a cause of action. In order words a cause of action is the operative fact or facts (the factual situation) which give rise to a right of action which itself is a remedial right … ”
In my view a cause of action is the emergence of a factual situation which enables a party to an action in court. On the question of how to determine the period of limitation, Oputa at the same page 20 said:
“How does one determine the period of limitation The answer is simple by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the Plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons are filed. This can be done without taking oral evidence from witnesses … ”
The above statement represents the correct legal principle. A plea by a Defendant in any given case that the action is statute barred is a plea which raises the issue of jurisdiction and which determinant is the Writ of Summons and the Statement of Claim. On this principle see also Alhaji Umaru Abba Tukur v. Govt. of Gongola State (1989) 4 N.W.L.R. (Part 117) 517 at 549,Nimpa v. Pyendang (1994) 7 N.W.L.R. (Part 356) 346 at 353;Anibi v. Shotimehin (1993) 3 NWLR (Part 282) 461 at 477; Izenkwe v. Nnadozie 14 WACA 361 at 363; Adeyemi v. Opeyori (1976) 9 – 10 SC 31 at 51; Western Steel Works Ltd. v. lron and Steel Workers Union of Nigeria (1987) NWLR (Part 49) 284. The claim as endorsed in the Writ of Summons relates specifically to Flat No.11 Block 3, 4th Avenue, 402 Road C Close, Community 1A Festival Town. And in paragraphs 16 and 17 of the Statement of Claim the Appellant pleaded:
“16. By letter dated 20th July, 1982 signed by the Plaintiff addressed and delivered to the Defendant the Plaintiff complained bitterly that she had not up till that date been allocated the subject matter of this action.
- By letter reference No. FHA/EST/1/5/TB.317 dated 6/9/82, the Defendant acknowledged the Plaintiff’s letter of 20/7/82 but for the first time stated that the Plaintiff’s allocation was a unit of flat in Amuwo – Odofin and not Festival Town. ”
In coming to the conclusion as to the date the cause of action accrued to the Appellant, the learned trial judge, at page 93 of the record found:-
“On the face of the writ and the pleadings the cause of Action arose on 25th July, 1977, be it in respect of the Festival Town Flat or the Amuwo-Odofin Flat.
” The lower court endorsed this finding of the learned trial judge when at page 199 of the record it held:
“Thus applying the definitions given above it can be safely concluded that there has been created a cause of action from the contract between the parties as rightly founded by the learned trial judge with the Plaintiff/Appellant as lessee and Defendant/Respondent as lessor. This cause of action created from the contractual agreement accrued from the date of the said agreement which was 25th July 1977.”
It is clear from the concurrent finding of the two courts below that the date of the contract for the lease 25/7/77 is the date the cause of action accrued to the Appellant. With respect, I do not think that finding has any legal basis. Even it is conceded that a valid contract for a lease was entered into on the 25th July 1977, a cause of action cannot be said to accrue to the Appellant unless and until there emerges a factual situation which gives her a right of action. In invoking the statute of limitation to defeat the action the two courts below made no reference to the specific claim in respect of the property at the Festival Town and completely ignored the assertion in paragraph 17 of the Statement of Claim that it was by its letter of the 6th September 1982 that the respondent stated for the first time that the allocation was in respect of a flat in Amuwo-Odofin and not Festival Town. It is clear that the decision about the action being statute barred was founded on the defence without any reference to the case of the Appellant as stated in paragraph 17 of the Statement of Claim.
On this issue it is also important to refer to the manner in which the Respondent raised the issue of the action being statute barred and on which the courts below relied for their decision. The Plaintiff’s Statement of Claim was filed on the 7th of March, 1985. The Respondent filed its Statement of Defence on or about the 23rd April, 1985. The plea of Statute of Limitation was not raised. To this Amended Statement of Defence, the Appellant filed a Reply on the 23rd October 1985. Thereafter the Respondent filed an Amended Statement of Defence on the 23rd January, 1986 and yet another on the 26th February 1986. In none of these was the issue of statute of limitation raised.
The Appellant started her testimony on the 26th June, 2006 and concluded her case on the 4th November, 1986. In other words, until the Appellant concluded her case, this vexed issue of the action being statute barred was not raised.
On the 2nd December 1986 the motion to further amend the State of Defence was filed. The issue of the action being statute barred was raised for the first time in paragraph 14(1) of the Amended Statement of Defence. The Appellant who had already filed a Reply to the Statement of Defence had no opportunity either to plead in reply or to adduce evidence in response thereto. Yet it is the very issue on which the courts below relied for their decisions.
On this Issue of when the cause of action arose, therefore, I am persuaded by the argument of learned counsel for the Appellant that the cause of action only accrued to the Appellant when the letter of the 6th September, 1982 exhibit 5 was conveyed to her. I hold therefore that the action was not caught by the provisions of the Limitation Law of Lagos State.
In contending that the appeal be allowed the Appellant claimed that she is entitled to all the reliefs claimed and urged this Court to grant the reliefs as claimed. Although some references were made to some of the exhibits in the judgment, the dismissal of the claim was predicated whole and entire on the applicability of the statute of limitation. There is noting indicating that the claim was determined on its merits. I do not think that in these circumstances this court is in a position to reach a dispassionate decision on the merits of the case. This is particularly so in view of the fact that there was, in addition to the documentary evidence, some oral testimony. It is also to be noted that the exhibits in this case are not available and not all the documents referred to in the pleadings are copied in the record of appeal.
In conclusion I hold that the decision of the courts below that the action was statute barred by reason of the provisions of Section 8(1)(a) of the Limitation Law of Lagos State is wrong and same is set aside. For the reasons which I have stated above. I hold that the action was not caught by the Limitation Law. And since the concurrent judgment of the two courts below was based wholly on the applicability of the limitation law, this appeal succeeds and is accordingly allowed. The case be and is hereby remitted back to the High Court of Lagos State for hearing and determination on the merits. Costs are assessed at N50,000 in favour of the Appellant.
SC.342/2002