Where a defence of limitation is raised and sustained, the proper order is one of dismissal.

N. P. A. Plc v. Lotus Plastics Ltd. [2005] 19 NWLR (Pt. 959) 158 at 189 paras. F-G, per Mohammed, JSC:

“Where a defendant raises a defence that the plaintiff’s action is statute barred and the defence is sustained by the trial court, the proper order for the trial court to make is an order of dismissal of the plaintiff’s action and not to merely strike it out.”

Blogger’s Note:

You can read the full Judgment online here.

The rationale for the above principle is not far-fetched. If the Court, upon finding that an action is statute-barred, proceeds to strike same out instead of dismissing it, this automatically gives the plaintiff the right to refile the suit. Therefore, a dismissal order (which does not allow for the refiling of a suit) is the proper order which can be appealed against instead of refiling the suit. Note, when a right of action is statute-barred, there is nothing that can remedy the situation so as to enable the plaintiff litigate on it.

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