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FEDERAL HOUSING AUTHORITY
COURT OF APPEAL
LAGOS JUDICIAL DIVISION
BEFORE THEIR LORDSHIPS
GEORGE ADESOLA OGUNTADE
Chief Bisi Adegunle
Respondent not represented by counsel
REAL ESTATE/LAND LAW
COMMERCIAL LAW – CONTRACT:-
PRACTICE AND PROCEDURE – Statute of Limitation – party relying on such to state such statute with all its necessary particulars.
Sanusi JCA (Reading the Leading Judgment)
This is an appeal against the decision of Honourable Justice M. 0. Onalaja (as he then was) then of Lagos State High Court delivered on 17th July 1987 in suit No. ID/729/84. By writ of Summons the plaintiff who is the appellant herein sued the defendant who is the respondent in this appeal claiming as below:
(a) An order for specific performance of an agreement dated 25th July 1977 made between the plaintiff us lessee of the 1st part and the defendant as Lessor of the 2nd part whereby the plaintiff was allocate at No. 11, Block 3, 4th Avenue, 402 Road C Close, Community IA Festival Town.
(b) An order for payment of the total sum ofN36.608.00 representing rents payable by the plaintiff the defendant from August 1974 up to and including May 1984 at 844; monthly.
Alternatively, the total sum of N 10,000 to the defendant as general and special damages for breach of the agreement.”
The facts of the case are briefly summarised as follow:-
By way of advertisement in one of the national dailies defendant company invited members of the public to apply for allocation of various types sizes of housing units (flats) at Festival Town, Badagry Road, Lagos. The applicants were to fill a proforma form accompanying same with a sum of N5. The allocation was to be made only to winners in a balloting exercise.
The plaintiff having been interested filled the necessary form and paid the prescribed fee. She also participated dated 18/7/77 the defendant/respondent made an offer of allocation to the plaintiff/appellant of flat No. II, Block 3, 4th Avenue 402 Road “C” Close, Community IA Festival Town, Badagry Road, Lagos. A formal lease agreement was executed by the parties in respect of the above mentioned identified flat on 25/ 7/77 Subsequent to that she paid a sum of N116 as deposit for rent and electricity and was issued with a receipt. But before the plaintiff/appellant took possession of the said flat the defendant informed the plaintiff that it made a mistake in offering flats at Festival Town and the plaintiff was subsequently allocated another flat situate at Nos. 25/26 Badagry Crescent. Block 45, Amuwo Odofin, Lagos vid e its letter No. FHD/ES/l/I 8317 of 18/7/77 without formally withdrawing the earlier offer made of the flat situate in Festival Town or cancelling same. Aggrieved by the decision of the defendant/respondent the plaintiff/appellant instituted an action at the lower court by filing a writ on 12th October 1984. Pleadings were filed and exchanged and trial conducted. In the cause of the proceedings the defendant successfully pleaded that the action was statute barred by virtue of provisions of Section 8(1)(a) of Limitation Law. Cap 70 Laws of Lagos State and the suit was dismissed for being filed not within 6 years as stipulated by the law. Dissatisfied with the lower courts decision the plaintiff appealed to this court urging us to set aside the judgment of the lower court.
Initially the appellant filed her brief in this court on 2/8/90 and therein identified two issues for determination distilled from the three grounds of appeal originally flied. In reaction to that the respondent filed its brief of argument on 15/ 10/90 and formulated two issues for determination therein, which are similar to those filed by the appellant in her brief. Later with leave of this court the appellant amended her notice of appeal. The amended Notice of Appeal filed on 18/6/97 contains 3 grounds of appeal. Sequel to that, she as well filed her amended Brief of Argument on 18/6/97. In the amended Brief of Argument only one issue for determination was identified.
The respondent never amended its brief of argument and was absent when oral arguments were taken in the appeal. By the rules of this court it will be taken as argued. The sole issue for determination in this appeal as identified by the appellant is was the judge right in holding plaintiffs claim defeated by reason of the provision of the Limitation laws?
This issue is the actual crux of the matter as both parties advert their minds to it. I shall therefore be guided by it in this appeal.
The learned counsel for the appellant submitted that before a party can successfully rely on limitation law so as to defeat. a cause of action such party must properly plead such statute with all its necessary particulars. See NNSL v. Emenike (1987)4 NWLR (Pt.63)77; Famuyiwa v. Fo1awyo AND Anor (1972)1 ALLNLR(Pt.2)l I at22;NlPC Ltd AND Anor Bank of west Africa (1962) 1 ALL NLR 556; Dimingo Paul v. Mrs. F. A. George (1959)4 FSC 198; Ochonma v. Unosi (1965)NMLR 321. He emphasized on the bindingness of pleading by parties. He further submitted that the plea for defence of limitation does not avail the respondent/ defendant as the defence does not relate to the claim. It is not for the court, said the learned counsel, to make a case for the parties. See Adimora v. Ajufo (1988) 3 NWLR (Pt.80) l SC at 15; Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172. He also submitted that the trial judge was wrong when be said the statute of limitation applied to flat at Festival Town or Amuwo-Odofin flat as that amounted to making a case for the respondent/defendant. See Ehimare AND Ors v. Enhonyon (1985)1 NWLR (Pt.2)177 at 184.
It was further argued on behalf of the appellant that the cause of action became complete only when the respondent told appellant that it will not convey the flat to her and that was in November 1993. For that reason therefore the action is not statute barred, concluded the learned appellants counsel. On this, he further relied on the authorities of Adimora v. Ajufo (supra) and Lion of Africa Insurance Co. Ltd v. Fisayo (1986) 4 NWLR (Pt.37) 674 CA. He finally urged us to hold that the action was not statute barred and should set aside the judgment of the lower court.
The respondents counsel in his brief submitted on this similar issue that the action is statute barred as it was brought after the period within which the plaintiff could bring this action (i.e. 6 years) has elapsed. See Egbe v. Adefarasin No.2 (1987) 1 NWLR (Pt. 47)1-25. The learned counsel for the respondent further argued that the cause of action accrued in 1977 July 25th while the writ if summons was taken out in October 1984 i.e. 7 years 3 months after the cause of action. He said the trial judge was correct in holding that time began to run as from 25th July1977 in spite of the appellants claim that there was some correspondence between the parties from 1977 to 1983. He said the offer was accepted on 25th July 1977 and it was on that day the contract agreement became concluded. See Nwadiaro v. Shell Dev. Co. Ltd. (1990)5 NWLR (Pt. 150)322: Egbe V. Adefarasin (supra). The learned counsel further argued that time will start running from the date of the cause of action in determining whether or not an action is statute barred and negotiation between parties except in situation where there exists admission of liability during such negotiations and all that remains in fulfillment of the agreement. He finally concluded his submissions by saying that the trial court was right in holding that the action was statute barred. He urged us to also so hold.
Section 8(1)(a) of Limitation Law of Lagos State Cap 70 of 1973 which was relied upon by the respondent at the lower court provides as below:-
“8(1) The following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued;
(a) action founded on simple contract
(b) actions funded on quasi-contract.”
The same Law by its Section 69 defines an “action” to include “any proceedings (other than criminal proceedings in a court established by law. The superior courts have defined cause of action in a number of decided cases. Notable among these cases is that of Fred Egbe V Hon. Justice Adefarasin (No.2) (1987) I NWLR (Pt. 47) 1-25 where Oputa JSC as he then was said thus:-
“Now let us look at the meaning of cause of action.” It is admittedly an expression that defies precised 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 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 other words a cause of action is the operative fact of facts.
(The factual situation) which give rise to a right of action which itself is a remedial right.”
See also Dosunmu v. General Manager Nigeria Railway Corporation (1942)16 NLR 81. This court also defined cause of action to mean every fact which is material to be formed to entitle the plaintiff to succeed on all those things necessary to give aright to rely in law or equity. See Amata v. Omofuna (1997)2 NWLR (Pt.485) 93 at 112/113. Ogbimi V. Ololo (1993)7 NWLR (Pt.304) 128.
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 I rightly founded by the learned trial judge with 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. The next issue now is when does the time begin to run for purpose of limitation of an action? It is trite that it is always necessary when dealing with, a limitation of statute to ascertain the exact date on which the cause of action arose. This is because time will start running right from the date the cause of action arose. It is also the responsibility of a defendant to plead and prove that an action is statute barred. See Savannah Bank of Nigeria Ltd v. Pan- Atlantic Shipping Agencies Ltd( 1987)1 NWLR (Pt.49) 212; Balogun V. Panalpina T (Nig) Ltd. (1999)1 NWLR (Pt.585)66.
The learned trial judge made this finding in his judgment.
“From the evidence adduced in the case, I hold and find as a fact that a valid contract to allocate Flat No.11, Block 3, 4th Avenue, 402 Road C, Close Community 1 A Festival Town, Lagos, was concluded by Exhibits 6 and 9 on 25th July 1977 when the plaintiff executed the standard form contract for a leasehold agreement of the defendant for its housing units in Festival, Town. By Exhibit 88 the plaintiff on 25th July 1977 accepted again from the defendant, allocation of flat 25 and 26 Badagry Crescent Amuwo Odofin to which plaintiff wrote a letter dated 27th July 1977.
Admitted as Exhibit SD wherein plaintiff requested the defendant by protest that she ought to have been given a 3 Bedroom flat at Festival Town. The defendants reply to Exhibit SB was admitted on Exhibit SD by letter of 5th August 1977 wherein the defendant explained that the allocation of Flat No.25/26 Block 45 Badagry Crescent, Amuwo Odofin was done on Government approved criteria and guidelines.
On the face of the unit 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…”
By this finding of fact by the trial court which this court has no reason to disturb, it has been established that the cause of action began to run as from 25th July 1977.1 do not see how the submission that the trial court made a case for the defendant as submitted by the appellant counsel can be tenable. On the question whether the trial court was right in holding that the action was statute barred, it is pertinent to say that a cause of action is said to be statute barred if the proceeding or action has not been brought within the period limited by the law in this case the Limitation Law of Lagos State. It is the general principle of law that where the law provides time limit within which an action can be brought such period must be respected so that no such action is brought after the time prescribed by that law. Any action brought outside the period limited by the law runs riot and violent to such provision and the action becomes incompetent or stalled and shall therefore not be entertained by the court.
See State v Ilori (1983)1 SCNLR 94 Amata v. Oniofuna (supra). It is clear and unambiguous that the writ in this case was filed at the lower court on October 12th 1984 for a cause of action that arose on 25th Jtiiy 1977. By the provisions of Section 8(1 ) (b) it was brought after the six years stipulated by the said provision and is therefore incompetent.
Thus, having closely examined the record of appeal including the judgment of the lower court I have no hesitation in concluding that the trial court was right in dismissing the suit on the ground that it was brought after six years from the date of the cause of action arose. I do not therefore see any merit in the appeal. The appeal ought to be dismissed and I accordingly dismiss it.
Parties should bear their own costs.
Cases Referred to:
Adimorah v. Ajufo (1988) 3 NWLR (Pt. 80)1
Amata v. Omofuma (1997) 2 NWLR (Pt.485) 93
Balogun v. Panalpina (Nig.) Ltd. (1999) 1 NWLR (Pt.585) 66
Dosunmu v. Nigeria Railway Corporation (1942)16 NLR 81
Egbe v. Adefarasin (1987)1 NWLR (Pt.47) 1
Ehimare v. Emhonyon (1985)1 NWLR (Pt. 2)177
Fanruviwa v. Folawiyo (1972)1 All NLR (Pt. 2)11
Lion of African Insurance Co. v. Fisayo (1986) 4 NWLR (Pt.37) 674
N .l P.C. Ltd. v. Bank of West Africa (1962)1 All NLR 556
N.N.S.L.v Emenike (1987) 4 NWLR (Pt. 63) 77
Nwadiaro V. Shell Dev. Co. Ltd. (1990) 5 NWLR (Pt. 150) 322
Ochonma v. Unosi (1965) N.M.L.R. 321
Ogbimi v. Ololo (1993)7 NWLR (Pt.304) 128
Oredovin v. Arowolo (1989) 4 NWLR (Pt. 144)172
Paul v. George (1959) SCNLR 510
Savannah Bank of Nigeria v. Pan Atlantic Shipping Agencies Ltd (1987) I NWLR(Pt.49)212
State v. Ilori (1983)1 SCNLR 94