KPOLOKWU & ORS v. AKAEZE & ORS (2021)

KPOLOKWU & ORS v. AKAEZE & ORS

(2021)LCN/15089(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, March 17, 2021

CA/AS/316/2014

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

MR. DUMEBI KPOLOKWU 2. MR. JIDEUCHE ALLANAH 3. MR. CHIKE ALLANAH 4. MR. IWEGBU KPOLOKWU 5. MR. PATRICK ALLANAH 6. MR. VICTOR ONUORAH KPOLOKWU APPELANT(S)

And

MR. VICTOR OBIAYA AKAEZE 2. OGBUESHI CHIEDU ALLANAH 3. MR. CHIADIKA KPOLOKWU (For Themselves And On Behalf Of Obi-Okonya Family Excluding The Defendants) 4. MR. OSAKWE KANAYO RESPONDENT(S)

RATIO

WHETHER PARTIES AND THEIR COUNSEL MUST BE CONSISTENT IN THEIR SUBMISSIONS

Parties and their counsel, just like the Courts must be consistent in their submissions; they cannot blow hot and cold at the same time. See KELANI VS AJADI (1985) 1 SC1. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

WHETHER TITLE BY PRESCRIPTION IS UNKNOWN TO LAND HELD UNDER CUSTOMARY TENURE

… the decision of the apex Court in ODEKILEKUN V. HASSAN & ANOR. (1997) 54 LRCN 2819 referred to by the Respondents’ learned counsel has more than settled the lone issue. Therein Iguh, JSC stated: “I think it ought to be pointed out on this issue of adverse long possession that it is trite that title by prescription is completely unknown to land held under customary tenure. See MOGAJI v. CADBURY (1985) 2 N.W.L.R. (Pt. 77) 383. In this connection a distinction must be drawn between land held under customary tenure and land held under statutory law. Whereas there is nothing like prescriptive title over land held under customary tenure, that mode of title is certainly cognizable in respect of land held under statutory law. Indeed, the application of the provisions of the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959 is specifically excluded in all actions in respect of title to land held by customary tenure. This is made clear by the provisions of Section 1 (2) of the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959 which stipulates as follows:- “1 (2) Nothing in this law shall affect actions in respect of the title of land or any interest held by customary tenure or in respect of any matter which is subject to the jurisdiction of a customary Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.” Accordingly, it is indisputable that the provisions of the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959, particularly Sections 6(2) and 16 thereof, which prescribe title by prescription, clearly do not affect actions in respect of title to or any interest in land held under customary tenure. They, however, govern actions in respect of title to land held under statutory law. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): The Appellants with the 4th Respondent herein were, at the suit of 1st – 3rd respondents against them sued for sundry declaratory and injunctive reliefs relating to and appertaining the allocations and grants of portions of the parties family land to them as Defendants contrary to Asaba Native Law and Custom binding on the parties.

The said action brought in a representative capacity for the Obi-Okanya family sought for the nullification of the said allocations made before 2002.

The Appellants filed their Statement of Defence and raised the preliminary objection that the action was barred on the ground that it was caught by the statute of limitation having been filed more than 10 years after the accrual of the cause of action and liable to be struck out.

In resume, it suffices to state that the parties herein are all members of the same family – i.e. the Obi-Okonya family of Umuekwo, Umuaji Quarters, Asaba, Delta State.
The Appellant as Plaintiffs had claimed as follows:

A declaration that the claims by the defendants to

various parcels or portions of Obi Okonya family layout on the basis of allocations/grants made to them by late Ogbueski Kanayo Kpolokwu in his capacity as the head/acting head of Obi Okonya family before 2020 are illegal, null and void as they are contrary to Asaba native law and custom as he was not the head of the family and lacked the capacity to make the allocations/grants.
2. An order of Court setting aside all the allocations/grants to portions Obi Okonya family layout made to all the defendants before 2002 by late Obueshi Kanayo Kpolukwu.
3. A declaration that plots 1, 12, 13, 14, 15, 19, 24, 27, 30, 31, 39, 41 and 42 in Obi Okonya family layout in Umuekwo village, Umuaji Quarter, Asaba purportedly allocated to the defendants by Ogbueshi Kanayo Kpolukwu before 2002 are the property of Obi Okanya family of Umuekwo village, Umuaji Quarter, Asaba.
4. An order of perpetual injunction restraining the defendants by themselves, their agents, privies and servants from further laying claim to personal ownership of any of the said parcels of land or doing anything on them or in respect of them which inconsistent with the parties Obi Okonya

family’s proprietary or possessory rights over same.
5. Any other order or such further orders as the honourable Court may deem fir to make in the interest of justice.
After a consideration of the objection and upon the written address of the Appellants/Applicants who were Defendants that the action fell squarely within the canopy of Section 1(2) of the Limitation Law of Delta State which states that “nothing in this law affects actions in respect of the title to land or any interest held by customary tenure”, the learned trial Chief Judge on the 30th May, 2014 dismissed the objection as isolated from the statement of defence and argued in the Motion on Notice filed on 7th November, 2013 in the following words, inter alia “It lacks merit and it shall be dismissed and it is hereby dismissed. This Court is competent and has jurisdiction to hear and determine this suit. The action is not statute barred.”
Upon its Notice of Appeal filed on 13th June, 2014 and contained on pages 142-143 of the Record of Appeal, the Appellants raised 3 (three) Ground of Appeal thus:
3. GROUNDS OF APPEAL
ERROR IN LAW
The

GROUNDS OF APPEAL
ERROR IN LAW
The learned trial Judge erred in law when he held that the land in dispute is held under customary tenure and thus, not statute barred, thereby dismissing the Appellants’ objection on jurisdiction.
PARTICULARS OF ERROR
i. It is evident from the 1st-3rd respondents’ case that the cause of action was rooted which the Court below found as a fact.
ii. For land to be held under customary tenure, there must be a tenurial relationship which includes the term of holding such a land a point which the Court below missed.
iii. The said allocation to the Appellants being an absolute grant has no tenurial essence and cannot be described as land held under customary tenure as wrongly held by the learned trial Judge.
iv. The 1st-3rd respondents’ action was statute barred and the Court below lacks the jurisdiction to entertain it.

RELIEF SOUGHT FROM THE COURT OF APPEAL
That the appeal be allowed and an order setting aside the ruling of the Court below and in its stead striking out the action of the 1st, 2nd and 3rd respondents for being statute barred.

Following the timeous filling of the Notice and the prompt transmission of the Record of Appeal in this Appeal on 27th June, 2014; the Appellant by its learned counsel then proceeded to file its Appellants’ Brief of Argument on 4th November, 2014 at 11.30am. Appellants also filed another Appellants’ Brief of Argument on 28th November, 2019.

The 1st Respondents filed their brief of argument on 11th March, 2019, to which an Appellants’ Reply Brief was filed on 19th September, 2020.
These processes were filed pursuant to leave of this Court granted regularising same.

At the hearing of the appeal on 18th January, 2021, the parties adopted their respective briefs of argument, wherefore the Appellants by their Brief of Argument settled by C. O. Erondu Esq. of counsel, the sole issue thus:
Whether the learned trial Judge was right in dismissing the preliminary objection of the Appellant by holding that the statute of limitation is not applicable to the 1st – 3rd respondents’ cause of action.

Arguing the sole issue in justification of the stand that the action ought not to have been dismissed for being statute barred and want of jurisdiction: The learned counsel, C. O. Erondu, Esq.

for the Appellants submitted that the cause of action had accrued before the filing of the action in 2013. That the cause of action arose in 2002.

Appellants’ counsel relies on Section 3 of the Limitation Law Vol. 3 Cap. 52 of the Laws of Delta State 2008 which provides as follows:
“No action shall be brought by any person to recover any land after the expiration of ten years from the date on which the cause accrued to him or if it first accrued to some person through whom he claims to that person” for his stand and says that the respondents only “quickly took cover under Section (1)(2) of the Limitation Law” to contend to the contrary.
The learned counsel submitted that the learned trial Judge was in grave error by dismissing a well-founded jurisdictional point and according to learned counsel, “had brought a subliminal point to a despairing law in his analysis. The counsel contends that “pontification on the basic principles of statutory interpretation was needless, and though taken, that the Judge at the trial had made any attempt to apply the principles of statutory interpretation to “Customary

Tenure”; and that the correct provisions is Section 1(2) of the Limitation Law and not Section 2 of the said law as erroneously canvassed by the Respondents and the Court bellow.”

That the conclusion of the Court below was sweeping and barren and left the interpretation a begging issue.
The learned counsel submits that the Limitation law uses the word “Customary Tenure” rather than Customary Law which has a wider connotation and covers every action regulated by incidents of customary law.

The learned counsel submits in apparent disgust that what “Customary Tenure” is, was not defined by the trial Judge – whom, he accused of leaving the point in abeyance.

However, the learned counsel reproduced the definition as in the Black’s Law Dictionary 6th Edition at Pp 1469-1470 thus:
“Tenure is the direct result of feudalism which separated the dominium directum (the dominion of the soil) which is placed mediately or immediately in the crown from the dominion utile (the possessory title) the right to the use and profit in the soil designated by the term ‘(sei sin)’ which is the highest interest a subject can acquire or a term of holding land.

That customary tenure is a tenurial relationship between an over lord and a subject during the feudal dispensation or landlord and tenant in the contemporize time in respect of the real estate.
Counsel concedes that the relationship must be regulated by the extant custom of the situs of the real estate.

That in this tenorial relationship, the tenant has tenurial duty to pay rent for the purpose of enjoying peaceful right to the property for the period of the tenancy subject to good behaviour while the landlord has allodial right. SHELL PET. DEV. COY. OF NIGERIA LTD. V. AMADI & ORS (2010) 13 NWLR PT. 1210, 82 135 PARAS. E-G; BASSEY VS BASSY (2009) 12 NWLR (PT. 1156) 617 relied upon.

It was also contended that every tenurial relationship must involve the manner or right of holding office or property and the period of holding the said property. Relies on the New Webster’s Dictionary of the English Language Int. Edition P. 1019 and insists that customary tenure as enshrined in the limitation law is only referable to a customary tenancy which has an inherent time element and between a landlord and a tenant in respect of real estate.

Relies on OGUNLADE VS. ADELEYE (1992) 10 SCNJ 58 AT 68 per Omo, J. where customary custom with the incident of the payment of isakole by tenant to his landlord was held to be excluded from the Limitation Law of Western Nigeria; 1959.

That there was no incident of customary tenure; and that respondents were only querying grants of family land to members under Asaba Native Law and Custom, which counsel contended was an absolute grant.
That customary tenure was merely a species of interest under customary law.

Alluding to INYANG VS. REGISTERED TRUSTEES OF THE 1ST CENTURY GOSPEL CHURCH (2006) ALL FWLR (PT. 314) 278, 293, PARAS. H-B; AYORINDE & ORS. V. SOGUNRO & ORS. (2012) ALL FWLR 636 403 AND JINADU VS. ESUROMBI-ARO (2005) 14 NWLR (PT. 944) 142, 200 as cases that the limitation law was excluded because they were based on customary law claims of Isakole and incidents of forfeiture under customary law.

That in this matter on appeal, the Judge erred in holding that the statute of limitation was inapplicable and that the objection was wrongly dismissed. That this issue be resolved in the Appellants’ favour and the objection be upheld and the suit at the trial Court be struck out.
That this appeal be allowed and the Ruling of the trial Court set aside.

The 1st-3rd Respondents’ learned counsel, O. W. Chibuogwu Esq., by the Brief of Argument dated 26th February, 2019 and filed on 11th March, 2019 raises the issue thus:
“Whether the lower Court was wrong in holding that the land in dispute in this case was held by customary tenure and so that action of the Respondents was not statute-barred under the Limitation Law, Cap. L11, Laws of Delta State, 2006.”

In arguing to the contrary, the Respondents learned counsel referred to Section 1(2) of the Limitation Law, Cap. L11 Laws of Delta State which provides thus:
“Nothing in this law affects actions in respect of the title to land or any interest in land held by customary tenure.”

Submits that the word “Tenure” was an English word which must be given its ordinary grammatical meaning as did the lower Court. The learned counsel in this respect relies on the definition at page 1019 of the

Webster’s Dictionary of English Language (International Edition) 1997 thus:
“The act manner or right of holding office or property especially real estate.
ii The period of holding this.”

Learned counsel, therefore contends that from the guide in the use of the Dictionary relied upon by both counsel, it is not correct as the Appellants are contending that the word means or refers to only holdings/interest in the land between landlords and tenants for definite or limited periods. That this is so as there is Anglo-French and Old French variants of the definitions in the dictionary.
Counsel contends that “Title to land or interest in land held by customary tenure” means title to land or interest in land held by customary right or in a customary manner.

That the land was held by customary right was beyond peradventure as it was inherited by the parties according to Asaba Native Law and Custom from their ancestor, Obi Okonya who died intestate. That the land was held and managed by customary right by the head of the parties family and in exercise of that right that he allocates and grants same to the parties family members.

That Appellants had averred that they were allocated the respective plots in dispute by Ogbueshi Kanayo Kpolukwu, the alleged acting Head of the parties family pursuant to the right vested in him by custom to manage the family land. Referred to paragraphs 7-14 of the Appellants’ Statement of Defence at pages 57-58 of the record.

The learned counsel relying on ODEKILEKUN VS HASSAN & ANOR (1997) 54 LRCN 2819, 2848 BH, per Iguh, JSC.
“In any event, the appellants’ plea of statute-bar in this case is a sheer gamble aimed at misleading the honourable Court into scuttling the hearing of the respondents’ family’s “irrefutable” claim to the plots in dispute. This is so as, on 1/11/2005, the High Court in Suit No. A/111/99 declared the plots in dispute and other parts of the parties’ family land the property of the parties’ family. See pages 25 and 31 of the record. The appeal against the refusal of the High Court to set aside the allocations made by the land committee was decided by this Court on 11/12/2012. This Court set aside the allocations thus further affirming the family’s exclusive title to the land. See page 46

of the record.
With the said pronouncements, it ought to have been clear to the 1st – 3rd appellants that being among the named claimants in Suit No. A/111/99, the appellants in Appeal No. CA/B/370/2006 and members of the parties’ family bound by the pronouncements therein by virtue of the doctrine of Estoppel by record or conduct, it cannot be heard from them that any part of the land in dispute is their personal property, let alone being theirs before 1999 when Suit No. A/111 /99 was filed. The 4th – 6th appellants cannot also be heard to be making the same claim as they are also bound by the decisions in the said cases. If the plots were their personal property before 1999, why did the 1st – 3rd appellants join in asking the Court in Suit No. A/111/99 to declare same the property of the parties’ family. For the 4th – 6th appellants who were not named claimants/appellants in the said matters, why did they not apply to join in the suit in order to stake their claims to the portions of the land in dispute they now say was their personal property long before 1999? If they could not, for any reason, apply to be joined in the suit, why have they

not appealed the judgments till date as interested parties or applied to set same aside insofar as it affects their rights? If litigation to restore the family’s ownership of the land ended in 2012 and the parties’ family’s title was affirmed, when did the alleged adverse possession of the appellants start to warrant their plea of statute-bar?”

Submits that it was settled that the phrase “customary tenure” is as submitted by the Respondents.
That even the Black’s Law Dictionary meaning, the learned counsel wondered why the Appellants’ counsel harped on the feudal connotation of the word “Tenure” when he should appreciate that Nigerian land holding concept of freehold ownership of land exists in contra distinction to the alien concept of tenure in fiefdom being employed.

The learned counsel has pointed that the Appellants’ endless harping on the concept of Ishakole as an interest held by customary tenure as decided in OGUNLADE V. ADELEYE (1992) 10 SCNJ 58, 68 and other cases cited by them was a grossly misconceived red – herring in the path of this Court that title to land also covers grants and freeholds of the kind that the Appellants alleged that they have.

The learned counsel contends that every word used in an enactment must be given its purport and meaning; as the legislature would be deemed not to intend tautology or super fluity in the use of words or phrases or provisions in an enactment.
EFFIOM V STATE (1995) 1 SCNJ 1 AT 32-33, see CAMPTEL VS DEASON LTD (1996) 6 M.A.C. 213 AT 221H-222A per Uwaifo:
“It must be born in mind that words are not used in a statute without meaning as there is presumption against super fluity or tautology…..the rule that a meaning should, if possible, be given to every word in a statute implies that unless there is a good reason to the contrary, the words add something which would not be there if the words were left out…..”

That the objection was a mere sophistry intended to scuttle the hearing of the Respondents’ family’s irrefutable claim to the plots in dispute.
In conclusion, the Respondents’ counsel tersely concluded thus:
“In any event, the appellants’ plea of statute-bar in this case is a sheer gamble aimed at misleading the

honourable Court into scuttling the hearing of the respondents’ family’s “irrefutable” claim to the plots in dispute. This is so as, on 1/11/2005, the High Court in Suit No. A/111/99 declared the plots in dispute and other parts of the parties’ family land the property of the parties’ family. See pages 25 and 31 of the record. The appeal against the refusal of the High Court to set aside the allocations made by the land committee was decided by this Court on 11/12/2012. This Court set aside the allocations, thus, further affirming the family’s exclusive title to the land. See page 46 of the record.
With the said pronouncements, it ought to have been clear to the 1st – 3rd appellants that being among the named claimants in Suit No. A/111/99, the appellants in Appeal No. CA/B/370/2006 and members of the parties’ family bound by the pronouncements therein by virtue of the doctrine of Estoppel by record or conduct, it cannot be heard from them that any part of the land in dispute is their personal property, let alone being theirs before 1999 when Suit No. A/111 /99 was filed. The 4th – 6th appellants cannot also be heard to be making the same claim as

they are also bound by the decisions in the said cases. If the plots were their personal property before 1999, why did the 1st – 3rd appellants join in asking the Court in Suit No. A/111/99 to declare same the property of the parties’ family. For the 4th – 6th appellants who were not named claimants/appellants in the said matters, why did they not apply to join in the suit in order to stake their claims to the portions of the land in dispute they now say was their personal property long before 1999? If they could not, for any reason, apply to be joined in the suit, why have they not appealed the judgments till date as interested parties or applied to set same aside insofar as it affects their rights? If litigation to restore the family’s ownership of the land ended in 2012 and the parties’ family’s title was affirmed, when did the alleged adverse possession of the appellants start to warrant their plea of statute-bar?”

The Appellant’s Reply Brief of Argument filed on 15th September, 2020 reiterates not new issues of law but an insistence on its position as taken in its Appellant’s Brief of Argument.

Pertinently, the Appellants submits that it was indisputable that the facts of the case have no features of customary tenure/tenancy as these are family members who have equal rights to the family property. Therefore, that the exemption in the limitation law is inapplicable to this case.

It was also submitted that submission in reference to Suit No. A/111/99 and CA/B/370/2006 cannot be validly made without a Respondents’ Notice as according to the learned counsel, it was a way of asking that the judgment of the Court below be affirmed on other grounds. That without a Respondent’s Notice, the argument thereof raised became incompetent. Order 9 Rules 1&2 of the Court of Appeal Rules 2016, ESSIEN V. DIAMOND BANK (NIG.) PLC & ANOR (2009) 17 NWLR (PT. 1171) 466, 479-480, PAR G-C; NSIRIM V. AMADI (2016) S NWLR (PT. 1504) 42, 59.

RESOLUTION OF THE SOLE ISSUE
The Appeal shall be decided on the sole issue for determination as aptly and succinctly put in the 1st-3rd Respondents’ Brief of Argument.

Its resolution will, perforce answer the Appellants’ issue.
The Respondents’ issue as phrased captures holistically and aptly the

Ground and particulars of Appeal and the Ruling/Judgment of the trial Court complained against. I, therefore, adopt same in my determination of this appeal.

The bone of contention in this appeal and right from the trial Court is on whether, the land in dispute (the subject of the litigation and appeal herein, is subject or held under customary tenure.
2. The meaning of the phrase – “Customary tenure”
3. The applicability or other wise of the Limitation Law of Delta State, 2008 to the land and suit between the parties herein.
This appeal is surely a thin one that has by brilliant academic artistry and theoretical antics been ballooned beyond the settled position of the law and the intendment of the statute of Limitation Section 1(2) thereof the Delta State of Nigeria.

The 1st-3rd Respondents herein had claimed against the Defendants, now Appellants as follows:
(a) A declaration that the claims by the defendants to various parcels or portions of Obi Okonye family layout on the basis of allocations/grants made to them by late Ogbueshi Kanayo Kpolukwu in his capacity as the head/acting head of Obi Okonya family

before 2002 are illegal, null and void as they are contrary to Asaba native law and custom as he was not the head of the family and lack the capacity to make the allocations/grants.
(b) An order of Court setting aside all the allocations/grants of portions Obi Okonya family layout made to all the defendants before 2002 by late Ogbueshi Kanayo Kpolukuw.
(c) A declaration that plots 1, 12, 13, 14, 15, 19, 24, 26, 27, 30, 31, 32, 39, 41 and 42 in Obi Okonya family layout in Umuekwo village, Umuaji Quater, Asaba purportedly allocated to the defendants by Ogbueshi Kanayo Kpolukwu before 2002 are the property of Obi Okonya family of Umuekwo village, Umuaji Quarter, Asaba.
(d) An order of perpetual injunction restraining the defendants by themselves, their agents, privies and servants from further laying claim to personal ownership of any of the said parcels of land or doing anything on them or in respect of them which is inconsistent with the parties’ Obi Okonya family’s proprietary or possessory rights over same.
(e) Any other order or such further orders as the honourable Court may deem fit to make in the interest of justice.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The aggrieved, who complained as plaintiffs had taken out a suit at the trial Court, against the Appellants herein. Whatever was the status of the parties, whether as land owners jointly or communally or some as tenants or not; or even if lessees, grantors, lessors, or anything, it is patently trite, that in the interpretation of a statute, the words therein where they are clear and unambiguous, should be given their simple grammatical literal interpretation. See BUHARI VS. OBASANJO (2005) ALL FWLR (PT. 258) 1614.
Where, however, the literal meaning could occasion in justice or incapable of clarity, then the intention of the legislature or lawmaker must be deciphered
See …
In the Section 2 of the Limitation Law, Cap. LII Laws of Delta State, 2008 in point, thus: “Nothing in this law affects actions in respect of the title to land or any interests in lands held by customary tenure.”
The relevant and determinant is the subject property and its character or nature or specie as a title to land. That is to say, it is both the character of the lis or property and its

holding and the nature of the claimant’s right as also is the nature of the interests claimed or asserted in an action in respect thereof.
That means that where the property and its title as asserted by the claimant is covered by customary law it has a customary tenure or character or nature.
In the same vein, if a Defendant, whatever maybe his manner of interest or right which stems from or accrues from custom or entitlement vide or by fact of custom, it is one contemplated by the Limitation Law and is excluded by the Section 2 thereof in its exclusion of the application of the Limitation Law to actions relating thereto.
I am fully persuaded, therefore, by the 1st-3rd Respondents’ learned counsel when he submitted relying on COMPTEL V. DEXSON LTD. (supra) per Uwaifo, JCA (later JSC) that words are not intended for superfluity or tautology. The phrases “title to land” or “any interest in lands” refer to both the Claimants and Defendants. In this wise, the claimants/respondents title as a family and Defendants/Appellants’ interest as members of the family. The intention of the lawmaker/draughtsman as

relating to the Respondents could not have been that they can only sue as landlord over tenants, for they as a family unit have a right over their communal or family property and the question of customary tenure cannot be cannalysed within the strait-jacket of a time-bound or delimited relationship with a member of the family, as sought to be argued by the Appellants. Appellants’ point of concern appears clear from their Reply Brief wherein they insists that the relationship of the parties have no trace of customary tenure/customary law as after all, they are all members of the same family with equal rights to the family property.
Herein, lies the misconception that anchored and fuelled the objection! It is not the Respondents’ case that the land is not a family property. It is not their case that the Appellants are customary tenants of the Respondents or the Obi Okanya family, represented by the respondents herein. No! far from it!
It is simply that the subject land and dealings in respect thereof is held and governed by the custom of the parties.

The 1st – 3rd Respondents’ counsel is correct in arguing that customary tenure is synonymous with customary law and as used in the Limitation law.
The 1st – 3rd Respondents’ counsel has eloquently referred to the pleadings of the parties and clearly as to the subject land being the subject of inheritance (intestate) under Native Law and Customs of the parties and the fact that the parties were all agreed that the land was held and managed by the Head of the family and principal members; and that allocations and grants of the portions of the land were made by the family in accordance with their custom and tradition. Even the averment of the Appellants on grant to them by an Acting Head of the family pursuant to his power under their family custom was an affirmation that the land and their interest was being governed by Customary Tenure or Law.
Indeed, the legal right to live and stay on the land or house which is a variant of the meaning of the word ‘Tenure’ in the Oxford Advanced Learner’s Dictionary New 9th Edition page 1615 is what they assert and such lands and or assertions of rights bordering on custom as a right, is what “customary tenure” entails.

So, leases, tenancies are only ‘a specie’ of Customary Tenure. Though, it was submitted by the Appellants’ learned counsel in his earlier insistence that “Customary Tenure” was the same as “Customary Tenancies” and not therefore covered by the exception in the Limitation Law, indeed, customary tenancy is a possible incident or could be created from customary tenure, but they are not necessarily co-terminus or the exclusive incidents or offsprings thereof. Parties and their counsel, just like the Courts must be consistent in their submissions; they cannot blow hot and cold at the same time. See KELANI VS AJADI (1985) 1 SC1.
The reliance on the argument that it is a specie of customary law that gives the parties equal rights to the land as family members and that Appellants cannot be shut out shows that the action can be maintained anytime by them, in spite the limitation law. That is also the Respondent’s position; i.e. that their action cannot be held to be statute barred. Hence, the invocation of the exception to the statute of limitation as relating to its applicability to the subject land and parties/claims; and the application by the trial Court of the said law.

Why the complaint on the said Ruling of the trial Judge as eruditely made in accordance with the law? Shorn of all the verbiage of parties, the decision of the apex Court in ODEKILEKUN V. HASSAN & ANOR. (1997) 54 LRCN 2819 referred to by the Respondents’ learned counsel has more than settled the lone issue. Therein Iguh, JSC stated:
“I think it ought to be pointed out on this issue of adverse long possession that it is trite that title by prescription is completely unknown to land held under customary tenure. See MOGAJI v. CADBURY (1985) 2 N.W.L.R. (Pt. 77) 383. In this connection a distinction must be drawn between land held under customary tenure and land held under statutory law. Whereas there is nothing like prescriptive title over land held under customary tenure, that mode of title is certainly cognizable in respect of land held under statutory law. Indeed, the application of the provisions of the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959 is specifically excluded in all actions in respect of title to land held by customary tenure. This is made clear by the provisions of

Section 1 (2) of the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959 which stipulates as follows:-
“1 (2) Nothing in this law shall affect actions in respect of the title of land or any interest held by customary tenure or in respect of any matter which is subject to the jurisdiction of a customary Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.”
Accordingly, it is indisputable that the provisions of the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959, particularly Sections 6(2) and 16 thereof, which prescribe title by prescription, clearly do not affect actions in respect of title to or any interest in land held under customary tenure. They, however, govern actions in respect of title to land held under statutory law.
In the present case, the land in dispute forms part of a large parcel of land vested in Salu Kayaoja by virtue of a Deed of Conveyance dated the 16th November, 1916, Exhibit D4. It is therefore not land held under customary tenure. Consequently, the Limitation Law, Cap. 64, Laws of Western Nigeria, 1959 does therefore apply to the land in

dispute which was at all material times held under a registered Conveyance.”
underlining and emboldening ours for emphasis
Clearly, therefore, the apex Court recognises the words customary tenure as meaning customary law. Land held under customary tenure has been held to be excluded in the application of the limitation law. That law does not govern such lands and title or interest claimed there under. I am afraid, the learned counsel for the Appellant seeks, may be, wittingly or maybe innocently to draw this Court to the landmine of deliberate belligerence and judicial impertinence as was condemned by the apex Court in DALHATU V. C.O.P. 2005 LRCN/SULEIMAN VS C.O.P. 2006 LRCN where the High Court Ishag Bello, J refused to follow the decision of the Supreme Court and was called a misfit for the Bench.
Here counsel insists on reliance on OKONKWO & ANOR V. OKOLO (1988) 2 NWLR (PT. 79) 632 C-F where the Supreme Court did not hold that customary tenure was not the same thing as customary law, but simply wondered why the concept was imported into our customary law transactions of “sale” and “grant” which were sufficient on their own.

In the face of the specific authority in point and which is not at all in conflict with any subsequent or earlier position it had taken, can this Court tinker with the Odekilekun case (supra)? I cannot. Even if Okonkwo & Anor. V Okolo (supra) were understood as deciding as urged by the Appellants’ counsel, now on the authority of the case of OSUDE VS. AZODO (2017) 15 NWLR PT. 1588, SC 21. It has been superseded and departed from and we are bound by the later decision of 1997 supra.

Being bound, therefore, as aforesaid the issue argued is resolved in favour of the 1st – 3rd Respondents and against the Appellants.
The raising of all other arguments on the strength, import or otherwise of the reference to the judgments in Suit No. A/111/99 and CA/B/370/06, even if genuine and sound, are now mere exercise in academic prowess in the circumstance; just as the Reply thereto. I shall not embark on the determination of points of law pregnant with potential prejudicial effect on the merit of whatever actions that may be taken; this Court is not a legal Adviser and the life issue in the Appeal grounding the objection and Ruling thereon having been resolved.

I should observe, however, that it is unfair on Judges that counsel would seek to even subtly or subterfugedly denigrate the trial Court in their submissions as seen in some portions of the Appellants’ Brief of Argument.

The query of the exercise of interpretative skills and use of words should be within the modicum of decorum and honour befitting our common institution of liberty and civilisation. Division of labour between the role of counsel and Judge/Courts and as between client and counsel as ministers and officers in the temple of justice must not be lost sight of. I note the words “this is a Court of law”; ‘conclusion is sweeping and barren leaving the interpretation a begging issue.’ It must be emphasised as used, are in point.
The Court is competent and has the jurisdiction to determine the suit which is not statute barred.

The Ruling of the trial Court in Suit No. A/176/2013 delivered on 30th May, 2014 between the parties herein dismissing the Appellants’ objection that the suit was statute barred pursuant to S. 1(2) of the Limitation Law of Delta State Cap. 1 is affirmed.
The Appeal against same is dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother, DANJUMA. JCA, which has just been delivered. I agree with the reasoning and conclusion therein.

Section 3 of the Limitation Law of Delta State provides:
“No action shall be brought by any person to recover land after the expiration of ten years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims, to that person.”
Section 1(2) of the same law provides an exception to the application of the limitation above as follows:
“Nothing in this law affects actions in respect of the title to land or any interest held by customary tenure or in respect of any mater(sic) which is subject to the jurisdiction of a customary Court relating to marriage, family status, guardianship of children, inheritance or disposition of property on death.”
Appellant’s counsel contended that the phrase “customary tenure” is restricted in meaning and applies only to a tenurial relationship between an overlord

and a subject during the feudal dispensation or landlord and tenant in the contemporary time in respect of real estate. This cannot be and is not correct.
The phrase “tenure” is defined as
“The act, right, manner or form of holding (such as landed property. a position or an office).”- Merriem-Webster Dictionary online.
The holding may be ownership of the land or tenancy. The phrase does not admit any restrictive meaning as suggested by appellant’s counsel.
In HUEBNER v. AERONAUTICAL INDUSTRIAL ENGINEERING AND PROJECT MANAGEMENT CO. LTD (2017) 14 NWLR (PT. 1586) 397,434 Aka’ahs, JSC, stated that:
“The term land tenure is derived from the Latin word tenere which means “to hold”. Land is of fundamental importance in traditional Nigerian Society, and is communally owned, although family or corporate ownership existed side by side with communal ownership.”
From the foregoing it can be safely said that – “land tenure” includes ownership of land. Thus, customary land tenure includes the concept of customary ownership of land. The point in issue has been put to rest in ODEKILEKUN v. HASSAN (1997) 54 LRCN 2819 by Iguh,

JSC. whose exposition has been copiously set out in my learned brother’s judgment. I do not need to re-state it here.
The definition contained in the Black’s Law Dictionary 6th Edition relied upon by appellant’s counsel is the direct result of feudalism and is unsuitable to our clime especially the southern part where feudalism is or was not a common phenomenon. Rather, communal or family ownership and subsequently individual ownership were/are the main features.

It is for the foregoing reasons and the more comprehensive reasons set out in the lead judgment of my learned brother that I hold that the appeal is completely devoid of merit. I also dismiss the same.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, JCA, and I am in agreement with reasoning and conclusion reached in the judgment therein. The Appeal is hereby is dismissed.

Appearances:

O. Erondu, Esq. For Appellant(s)

W. Chibuogwu, Esq. – for 1st -3rd Respondents.
G. A. I. Mowah, Esq. – for 4th Respondent. For Respondent(s)