WHETHER LIMITATION LAW APPLIES TO CONTINUOUS ACT OF TRESPASS

CASE TITLE: MTN v. AYINU (2023) LPELR-60810 (CA)

JUDGMENT DATE: July 28, 2023

PRACTICE AREA: LIMITATION LAW

LEAD JUDGMENT: JAMES GAMBO ABUNDAGA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on the application of the Limitation Law to act of continuing trespass

FACTS:

This appeal is against the ruling of the High Court of the Federal Capital Territory (FCT), Abuja, delivered by Hon. Justice Olukayode A. Adeniyi.

​Plaintiff/respondent claimed against the defendant/appellant, damages in trespass and perpetual injunction from further trespassing into acclaimed plot of land known as Ayinu Compound, located at Nuku Village, near Abaji Area Council, Abuja, FCT. The defendant/appellant denied the claim. It filed a
statement of defense on November 18, 2020, in which it pleaded that the trial Court lacked jurisdiction to entertain the claimant’s suit on the ground that the suit is statute barred.

Pursuant to the point of law raised in its statement of defence, the appellant filed a motion on notice in which it prayed the Court for:
“An order of this Honourable Court dismissing Suit No. FCT/HC/CV/1752/2018 THOMAS AYINU VS. MTN Nigeria Communications Limited for being statute barred and therefore incompetent, that the suit is outside the jurisdiction of this Honourable Court and an abuse of Court process

“The major contention of the appellant was that the Respondent’s suit at the trial Court, having been filed 17 years after the cause of action, is caught up by Section 15(2)(a) of the limitation Act, Cap. 522 Laws of the Federal Capital Territory, being a claim for title to land and therefore liable to be dismissed.

The trial Judge dismissed the preliminary objection. Irked by that decision, appellant appealed to the Court of Appeal

ISSUE(S) FOR DETERMINATION:

“The Court determined the appeal on a lone issue, viz: “whether the learned trial judge was not in error when he dismissed the appellant’s preliminary objection brought by a motion on notice.”

DECISION/HELD:

In the final analysis, the appeal was dismissed.

RATIOS:

• ACTION: CAUSE(S) OF ACTION: What determines a cause of action?
• ACTION: CAUSE(S) OF ACTION: What determines a cause of action and the date of accrual of the same?
• ACTION: CAUSE(S) OF ACTION: What determines a cause of action and the date of accrual of same?
• LIMITATION LAW: Whether Section 15(2) of the Limitation Act applies to an action for trespass to land, damages and injunction
• LIMITATION LAW: Position of the law regarding application of limitation law to continuous acts of trespass or legal injury and continuous effect or damage of such acts
• LIMITATION LAW: LIMITATION PERIOD: Limitation period for instituting an action on trespass; when limitation law will not apply to such action
• PRACTICE AND PROCEDURE– PRELIMINARY OBJECTION: Duty of a respondent who intends to rely on a preliminary objection to the hearing of an appeal; effect of failure
• JURISDICTIONAL ISSUES IN PRACTICE AND PROCEDURE: Whether the issue of jurisdiction must be determined first when raised