Applicability of Limitation Law to Trespass

CASE TITLE:  OLUSANYA v. ABDULBAKI & ORS (2022) LPELR-58771(CA)

JUDGMENT DATE:  2ND JUNE, 2022

JUSTICES:  UZO IFEYINWA NDUKWE-ANYANWU, JCA

ISAIAH OLUFEMI AKEJU, JCA

KENNETH IKECHUKWU AMADI, JCA

COURT DIVISION:  ILORIN

PRACTICE AREA:  LIMITATION LAW

FACTS:

​The brief facts of the case leading to this appeal is that the Respondent (Claimants at the trial Court) via a Writ of Summons dated 13th day of November, 2015, claimed against the Appellant (Defendant at the trial Court) for declaration of title to the land in dispute and order of perpetual injunction for trespass among other claims.

The Appellant joined issues with the Respondents by filing his Statement of Defence and incorporated a Counter-Claim against the Respondents and claimed amongst others: a declaration that the Defendant is the bonafide owner in exclusive possession, occupation, and enjoyment of the land measuring 50ft X 200ft together with the two storey building erected thereon, situate, lying and being at Sango Area, Jebba Road, Ilorin close to Iya Yusuf’s Restaurant covered by the Deed of Transfer dated 6th February, 2013 and permit to alienate land of 28th, October, 1973. The summary of the Appellant’s case is that he acquired title to the disputed land through purchase from one Late Mrs. Victoria Ajibike, who bought from Daramola Olatunde, who acquired the land from Late Alhaji Tahiru Sule. The Appellant claimed Alhaji Tahiru Sule from whom he derived his title to the land purchased same from the Respondents’ predecessors.

At the close of the case, the trial Court in its judgment granted all the Respondents’ reliefs and dismissed the Appellant’s counter-claim.

Dissatisfied, the Defendant/Appellant appealed.

ISSUES:

The appeal was determined upon consideration of the issues thus:

1. Whether the suit is statute barred in accordance with the Kwara State limitation law.
2. Whether the respondents have been able to establish their claims to entitle them to the reliefs claimed as against the counter claim of the appellant.
3. Whether the respondents were trespassers on the said property in dispute occupied by the appellant.

COUNSEL SUBMISSIONS

Learned counsel for the Appellant submitted that any person after 10 years of inaction or indolence from when a cause of action had accrued, any person whose right to land has been taken away cannot recover the land. Counsel argued that it is on record and evidence that the Appellant came into possession of the disputed land, erected two storey building on the land, and that the Respondents were dispossessed or discontinued their possession some years ago, which is clearly outside the 10 years period allowed by law for the recovery of land.

Learned counsel argued that the Kwara State limitation law in its Section 3, which is the interpretation section, defined “land” to include any land held under a right occupancy or any other tenure. Submits that any other tenure includes customary tenure. Therefore, it is crystal clear that the holding of the lower Court that limitation law does not apply to customary tenure in Kwara State was made in error, and urged the Court not to allow this error to stand.

In opposition, learned counsel for the Respondent submitted that the learned trial Judge was right when he held that the Respondent’s case was not statute-barred. Counsel further submitted that the Respondents noticed the trespass on their land sometime in the year 2014 and they promptly notified the Appellant of the trespass and that the Appellant refused to heed the Respondents’ subtle demands. That this action was instituted in the trial Court in the year 2015. That the cause of action, in this case, arose in the year 2014 when the Respondents noticed the trespass on their land, which is within the time frame to commence an action

DECISION/HELD

In conclusion, the appeal was dismissed.

RATIO

1. LIMITATION LAW – LIMITATION LAW: Whether limitation law is designed to protect land grabbers and trespassers; whether trespass is a continuing act and limitation law does not apply to it

“In respect of issue 1, the definition of land in Section 3 of Kwara State Limitation Law includes any land held under a right of occupancy or any other tenure. Therefore, the provisions of Section 4 which prohibits recovery of land after the expiration of ten years from the date in which the rights of action accrued are applicable to land held under customary land. See the interpretation of Section 3 of the Ebonyi State Limitation Laws which is in pari material with Section 4 of the Kwara State Limitation Law per Agim, JCA (as he then was) in Nwiboeke & Ors v Nwokpuru (2016) LPELR – 41524 page 13 – 17 paras.

However, there are exceptions, the law has always been that a trespasser remains a trespasser see Okanu v Anoruigwe & Anor (2019) LPELR-48835. Also, in Oyebamiji v. Lawson it was held that Section 4 of the Limitation Law of Enugu State does not and cannot apply in a situation of trespass or continuing trespass. It is very important to state here that a person who enters another person’s land by force or a land grabber who takes over another person’s land and remains there for a long period cannot plead a statute of limitation after ten years of his occupation. The reason is that each day he remains on that land amounts to a fresh trespass. Since the lower Court, in this case, found and held that the Appellant trespassed on the land the subject matter of this suit, the limitation law of Kwara State cannot help him to defeat that finding of fact.” Per AMADI