STERLING PLANTATION AND PROCESSING COMPANY LIMITED v. CHIEF SOLOMON AKOTEYON AGBOSU & ORS
(2013)LCN/6507(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of November, 2013
CA/L/07/2008
RATIO
WORDS AND PHRASES: CAUSE OF ACTION
A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to sue and it consists of two elements, viz, the wrongful act of the defendant which gives the plaintiff his cause of complaint, and the consequent damage. In other words, it is factual situation which a plaintiff relies upon to support his claim recognized by law as giving rise to a substantive right capable of being claimed or enforced against a defendant. See AGBANELO VS UNION BANK OF NIGERIA LTD (2004) 4 SC (PT.1) 233, EMIATOR VS NIGERIA ARMY (1999) 12 NWLR (PT.631) 362. ASABORO VS PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; AKANDE VS ADISA (2004) ALL NWLR (PT.236) 413; ADESOKAN VS ADEGOROLU (1977) 3 NWLR (PT.493) 261:-.
IN WOHEREM vs EMERUWA (2004) ALL FWLR (PT.221) 570. It was held by the supreme court per Iguh JSC at page 1581 that:-
“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached.”
However, the tenure of a right or cause of action is not at large or interminable. The period for the enforcement of such right of action expires or ends on the date or time frame that the statute of limitation proclaims that no such legal action or proceedings may lawfully be commenced by an aggrieved party. Thus were a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or solidly instituted after the expiration of the prescribed period. Consequently, an action instituted after the expiration of the period prescribed by law is said to be statute barred because time begins to run for the purpose of the limitation law from the date the cause of action accrues. See OGUNKO VS SHELLE (2004) 6 NWLR (PT.868) 17; SPDC (NIG) LTD Vs FARAH (1995) 3 NWLR (PT.382) 148 and ASABORO vs PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; AJAYI VS ADEBIYI (2012) 11 NWLR (PT.1310) 137. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
ISSUE FOR DETERMINATION: WHETHER AN ISSUE FOR DETERMINATION NOT RAISED FROM A GROUND OF APPEAL MAY BE CONSIDERED BY AN APPEAL COURT
It is a trite principle of law that an issue for determination which has no reference to or not raised from any ground of appeal would not be considered by an appellate court. Where an issue formulated for determination in an appeal is neither related nor can be distilled from each or all of the grounds of appeal, the issue is said to be unarguable and it is to all intents and purposes incompetent with the resultant effect of being struck out. See ARAKA VS. EGBUE (2003) 15 NSCQR 150; IFEDIORA VS. UMEH (1988) 2 NWLR (PT.74) 5; NWADIKE VS. IBEKWE (1987) 4 NWLR (PT.67) 718; MODUPE VS. THE STATE (1988) 1 NWLR (PT.87) 130; SHITTU VS. FASHAWE (2005) 14 NWLR (PT.946) 671. Per SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
J.C.A. Justice of The Court of Appeal of Nigeria
Between
STERLING PLANTATION AND PROCESSING COMPANY LIMITED Appellant(s)
AND
1. CHIEF SOLOMON AKOTEYON AGBOSU
(Baale of Topo Community)
2. ALHAJI ABUDU SAKA
3. MR. NOAH ASHAKA
4. MR. SALIU SANUSI
(for themselves and as representatives of the Topo Community)
5. THE BOARD OF TRUSTEES OF THE CATHOLIC MISSION OF NIGERIA
6. LAGOS STATE GOVERNMENT
7. R. T. BRISCOE PLC Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered by H. A. O. Abiru J. on 17-4-2007 in suit No.ID/1725/2001. Wherein judgment was entered in favour of the claimants.
The claimants (now the 1st – 4th Respondents) had by a writ of summons and statement of claim dated 9 – 8-2001 brought an action in the High court of Lagos state, against the 1st, 2nd, 3rd and 4th defendants (now appellants) and 5th, 6th and 7th Respondents). By paragraph 12 of their amended statement of claim dated 24-1-2007 they claimed against the defendants as follows.
WHEREUPON the plaintiffs claim as follows:
1. “A DECLARATION that the Topo community is presently and immediately entitled to the reversion and/or possession of the piece or parcel of land more particularly described in the Lease Agreement dated the 14th June 1924 and registered as No.90/439/Vol.144 in the Lands Registry at Ikeja by virtue of said Lease having been abandoned by the 1st Defendant to whom it was granted.
2. “PAYMENT by the 1st, 2nd and 3rd Defendants to Topo Community of the arrears of rent owed but unpaid since the beginning of the third 30 years of the lease on the 6th of June, 1984 up till 1982 when the lease was abandoned.
3. “PAYMENT by the 4th Defendant of Mesne profit at the same rate as the prescribed rent with effect from 1982 the date when it first entered the said piece or parcel of land for the purpose of exploiting its coconut plantation without any claim of right.
The 6th Respondent as 2nd defendant at the Lower Court filed an 11 paragraph statement of defence dated 8-2-2002. The appellant as 4th defendant also filed its own statement of defence dated 15/5/2002. The 1st and 3rd defendants, (now 5th and 7th Respondents did not file any pleadings or participate in the trial at the lower court.
Briefly put, the case for the 1st to 4th Respondents as claimants in the Lower Court was that they are the owners of the land in dispute from time immemorial and sometime in 1924 they granted a lease of ninety years over the land in favour of the 5th Respondent as evidenced by a lease Agreement dated 14/6/1924 and Registered as No 90 at page 439 in volume 144 of the Deeds Register at the Lands Registry office in Lagos. Rent for the lease was put at forty pounds per annum for the first 30 years and thirty pounds per annum for the second thirty years and twenty pounds for the last. The first two thirty years of between 1924 and 1954 and 1954 to 1984 have been paid while that of 1984 to 2014 is still pending. However in the early 1960s the 5th Respondent surrendered the land to the then Government of western Nigeria. The Lagos State Government subsequently transferred the land to the 7th Respondent sometime in 1982 and the 7th Respondent in turn transferred it to the appellant. The 5th Respondent still has a cemetery and a primary school on the land but when some years back rent was demanded, they said that they are no longer on the land. The 6th Respondent on the other hand claimed to have acquired the land sometime in 1972 and denied transferring the land to the 7th Respondent. They also pleaded that the suit is statute barred and the claimant guilty of acquiescence. The Appellant also denied all the claims of the 1st to 4th Respondents and contended that it bought the land in dispute from a Receiver/Manager in an open market and has the relevant documents to prove it.
At the trial, the 1st to 4th Respondents called two witnesses and tendered two exhibits in evidence. The 6th Respondent called one witness and tendered one exhibit in evidence. The appellant did not lead any evidence in support of its pleadings.
At the conclusion of the trial and adoption of written address by counsel who participated in the trial, the Lower Court in its Judgment which was in favour of the 1st to 4th Respondents as claimant held as follows:
In conclusion, judgment is hereby entered in this suit as follows;
(i) It is hereby declared that the Topo Community is entitled to the present and immediate reversion and possession of the piece or parcel of land more particularly described in the Lease Agreement dated the 14th of June, 1924 and registered as No. 90 at page 439 in Volume 144 of the Register Deeds in the Lands Registry at Ikeja by reason of the said lease having been abandoned by the first Defendant to whom it was granted.
(ii) The Claimants’ claim for the payment by the first, second and third Defendants to Topo Community of the arrears of rent owed but unpaid since the beginning of the third thirty years of the lease on the 6th of June, 1984 up till 1982 when the lease was abandoned fails and it is hereby dismissed.
(iii) The Claimants’ claim for the payment of mesne profit by the fourth Defendant at the same rate as the prescribed rent on the lease agreement with effect from 1982 the date when it first entered the said piece or parcel of land for the purpose of exploiting its coconut plantation without any claim fails and it is hereby dismissed.
(iv) The first, second, third and fourth Defendants, either by themselves, their agents, assigns and privies, are hereby restrained from disturbing, interfering with or in any way hindering the Claimants from taking possession and/or from enjoying and maintaining a peaceable possession of the land in dispute.
(v) Each party shall bear its costs of this action.
These shall be the orders of this Court.
Being aggrieved with the outcome of the Suit, the Appellant filed a notice of appeal dated 27-4-2007. Another amended Notice of Appeal was filed on 30-3-2010. The current Notice of appeal is however the further Amended Notice of Appeal dated and filed on 8-2-2013. It has eight grounds of appeal which shorn of their particulars reads thus:-
3.1 The learned trial judge erred in law and acted without jurisdiction when he adjudicated on the suit instituted by the 1st – 4th RESPONDENTS which is statute barred.
3.2 The learned trial judge erred in law when he held that:
“The second Defendant raised the defences of limitation of action and laches and acquiescence in its statement of defence but no evidence was led on them by its witness and counsel to the second Defendant did not address on either of them in his written address …. The defences would be treated as abandoned in the instant case.”
3.3 The learned trial judge erred in law and acted without jurisdiction when he made an order restraining the first, second, third and fourth Defendants from disturbing, interfering with or in any way hindering the Claimants from taking possession and/or from enjoying and maintaining a peaceable possession of the land in dispute.
3.4 The learned trial judge erred in law when he held that:
“‘The evidence of the two Claimant witnesses that the first Defendant abandoned possession of the land in dispute in the 1960s and had since not returned thereon was unchallenged and not contradicted. The testimony of the first Claimant witness that the first Defendant neglected to pay the rents due on the lease for the last third of the period of the lease, 1984 to 2014 and that when they demanded for the payment, the first Defendant informed them that it has since given up the lease who also unchallenged and not contradicted. This Court will accept them as true and correct. The Court finds and holds that these actions of the first Defendant amounted to a surrender of the lease contained in Exhibit P2.”
And thereby occasioned a miscarriage of justice.
3.5 The learned trial judge erred in law when he held that:
“In view of the failure of the second, third and fourth Defendants to show the presence of any legal or equitable interest which inhered in any of them over the land in dispute…….. the Claimants are entitled to accept the surrender of lease as contained in EXHIBIT P2 by the first Defendant and to treat the lease as terminated……”
3.6 The learned trial judge erred in law when he held:
“The first Defendant abandoned the lease and possession of the land in dispute in the 1960s and this court found that these amounted to a surrender of the lease. The Claimants accepted the surrender and claimed for immediate reversion and possession of the land in dispute on this basis….”
3.7 The learned trial judge erred in law when he said:
‘The two Claimants witnesses testified that the fourth Defendant was presently the person on the land harvesting the coconuts thereon and they did not know how the fourth Defendant got to the land and that apart from the primary school and cemetery of the first Defendant still on a portion of the land, the Defendant had completely abandoned possession of the land.”
3.8 The learned trial judge erred in law when he held that the Claimants are entitled to their claim for the immediate reversion and possession of the land in dispute.
The 6th Respondent also filed a notice of cross/appeal dated 29-3-2010 and filed on 30-3-2010. It has two grounds of appeal.
In accordance with the Rules of this Court parties subsequently filed and exchanged their briefs of argument. The amended appellants’ brief of argument is dated 8-2-2013. The 1st to 4th Respondents brief is dated 11-3-13 and filed on 14-3-13. The appellant reply to the 1st – 4th Respondent brief is dated and filed on 28-3-2013.
The other Respondents did not file brief of argument. However the 5th Respondent/Cross appellant filed an amended brief of argument based on the grounds of the cross appeal. It is dated 12-3-2013 and filed on 19/3/2013.
The 1st to 4th Respondents filed reply to the cross appellant brief. It is dated 27/3/2013 and filed on 29-4-2013.
On the main appeal, the appellant formulated four issues for determination fr.om the eight grounds of appeal. They are:-
(1) Whether from the totality of the case presented by 1st – 4th Respondents the Suit is statute barred having regard to the provisions of section 16(2) of the Limitation Law of Lagos State.
(2) Whether the learned trial judge was right when he granted an order of injunction against the appellant in respect of the Land in dispute.
(3) Whether there is any legal evidence on record to justify the finding of the trial court that ‘these action of the first defendant amounted to a surrender of the lease contained in EXHIBIT P2.’
(4) Whether on the state of the pleadings and evidence adduced at the trial court the 1st – 4th Respondents are entitled to the declaration for immediate reversion and possession of the Land in dispute granted by the learned trial judge.
For the 1st to 4th Respondents, four issues were also formulated for determination as follows:-
(1) Whether the appellant whom by her pleading was an adverse possessor against the 1st defendant lessee under the lease of 1924 which expires in 2014 could at any time before expiry acquire title or right of possession as a squatter in whose favour time has run against the 1st to 4th Respondents the Lessor or Reversioners.
(2) Whether in the light of the pleading and the evidence it as not compelling to find either that the 1st defendant has been dispossessed of or that she has continued the lease of 1924 and if so, whether the learned trial judge was not right to grant the relief sought in the amended claim for –
A declaration that the Topo community is presently and immediately entitled to the reversion and/or possession of the piece or parcel of land more particularly described in the lease agreement dated 14th June 1924 and registered as No 90/439/VOL 144 of the Lands Registry at Ikeja by virtue of the said lease having been abandoned by the 1st defendant to whom it was granted.
(3)Whether the learned trial judge was not right in making an order for injunction against all the parties in the final judgment though it was not retained on the claimants 1st – 4th Respondents reliefs on its amended claim.
(4) Whether the appellant having pleaded a parallel title or adverse possession against the 1st defendant and/or the claimant for which it supplied no proof could make a case for and depend at the case made for 1st defendant in this court.
Learned counsel for the appellant had in the appellants reply brief challenged the competence of issues 1, 2 and 4 as raised in the 1st to 4th Respondents brief of argument. His contention is that it is not permissible for a respondent who did not file a cross appeal or Respondents Notice to formulate issues not related to the grounds of appeal. He added that where such issues are formulated by a party and they are not covered by any ground of appeal the court has a duty to strike out the flawed issues for want of competence and discountenance the arguments canvassed there from. He relied on the following authorities: OKOYE VS. N. C. & F. CO. LTD (1991) 6 NWLR (PT.199) 501 at 532 – 533; OLOWO SAGO vs. ADEBANJO (1988) 4 NWLR (PT.88) 225; NZEEKWU VS. NJEKWU (1989) 2 NWLR (PT.104) 37 at 422.
ADELUSOLA VS. AKINDE (2004) 12 NWLR (PT.887) 295 at 311. AFRICAN PETROLEUM LTD VS. OWODUNNI (1991) 8 NWLR (PT.210) 391 and SHA (JNR) VS. KWAN (2000) 8 NWLR (PT 670) 685 at 700.
It is a trite principle of law that an issue for determination which has no reference to or not raised from any ground of appeal would not be considered by an appellate court. Where an issue formulated for determination in an appeal is neither related nor can be distilled from each or all of the grounds of appeal, the issue is said to be unarguable and it is to all intents and purposes incompetent with the resultant effect of being struck out. See ARAKA VS. EGBUE (2003) 15 NSCQR 150; IFEDIORA VS. UMEH (1988) 2 NWLR (PT.74) 5; NWADIKE VS. IBEKWE (1987) 4 NWLR (PT.67) 718; MODUPE VS. THE STATE (1988) 1 NWLR (PT.87) 130; SHITTU VS. FASHAWE (2005) 14 NWLR (PT.946) 671.
In NZEKWU VS. NZEKWU (1989) 2 NWLR (PT 104) 373, the Supreme Court per Nnaemeka Agu JSC held at page 422 thus-
“This court has said a number of time that a respondent who has neither cross appealed nor given a respondents notice has not got on unbridled freedom of raising issues for determination which have no relevance to the grounds of Appeal filed.”
The case of ADELUSOLA vs. AKINDE cited supra by learned counsel for the appellant is also instructive. At page 311 the Supreme Court per EDOZIE JSC held that:-
“It is no doubt, a correct statement of law that an issue for determination in an appeal which is not related to or derived from any of the grounds of Appeal challenging the judgment appealed against is incompetent and must be discountenanced together with argument advanced there under in the consideration of the Appeal.”
I have taken a cursory look at the eight grounds of appeal filed by the appellant as contained in the further Amended Notice of Appeal dated and filed on 8/2/2013 and relate them to the issues 1 and 2 formulated by the 1st to 4th Respondents in their brief of argument and I seem to find no connection between them. In other words, the said issues 1 and 2 to my mind are not related or derived from any of the eight grounds of appeal filed by the appellant. Incidentally, the 1st to 4th Respondents did not cross appeal neither was any Respondents Notice of intention to contend filed. This renders the said issue 1 and 2 raised in the 1st to 4th Respondents brief of argument, incompetent and they are hereby discountenanced together with argument advanced in support thereto.
In the circumstance, the only issues left to be considered in the 1st to 4th Respondents brief are issues 3 and 4.
The said issues 3 and 4 are similar to the appellants issue 2 and 4. I will adopt the four issues formulated by the appellant in the consideration of this appeal.
ISSUE 1
Dwelling on this issue, learned counsel for the appellant referred to section 16(2) of the Limitation Law of Lagos State and the reliefs sought in the 1st to 4th Respondents Amended Statement of claim to submit that the reliefs sought was aimed at recovering the Land referred to in the lease dated 14/6/1924 and therefore falls within the purview of section 16(2) of the Limitation Law of Lagos State.
He also cited the case of WOHEREM VS. EMERUWA (2004) 13 NWLR (PT.890) 398 at 416 and ELABANJO VS DAWODU as authorities in determining the date when a cause of action is deemed to arise. Learned counsel also referred to the averments in paragraphs 5, 6, 13 and 16 of the Amended statement of claim dated 24/1/2007 for the purpose of ascertaining when the cause of this action arose. He then submitted that the cause of action of the Topo Community in respect of the disputed land accrued in 1982 when the 6th Respondent transferred their land to the 7th Respondent who took adverse possession of the land and remain thereon until it was transferred to the appellant. He referred to the evidence of CW1 who under cross examination stated that as at 1982 they became aware of the presence of 7th Respondent on the Land and proposed to go to court but no action was taken.
Learned counsel then submitted that this suit is caught by the limitation law because the 1st – 4th Respondents became aware of the presence of the 7th Respondent on the Land in 1982 but did nothing till the year 2001 that is after 19 years before they brought this action and this is beyond the 12 years limit allowed by law.
Learned counsel cited in support the authorities of AJAYI vs. ADEBIYI (2012) 11 NWLR (Pt.1310) 137 at 169 and WILLIAMS VS. WILLIAMS (2008)10 NWLR (PT.1095) 364 at 390 – 391.
On the finding of the learned trial judged that evidence ought to be led in respect of the defence of limitation law as contained in the 6th Respondents pleadings, learned counsel contended that such finding is untenable and amounts to an error of law. He relied on the authority of OLAGUNJU vs. PHCN (2011) 10 NWLR (PT.1254) 113 at 126 and 129.
He added that, from the averments in the 1st to 4th Respondents amended statement of claim and the evidence of CW1, all the materials required to determine the issue of limitation were before the trial court which then made it unnecessary for the 6th Respondent to adduce evidence in support of the defence of statute of limitation raised in the statement of defence.
A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to sue and it consists of two elements, viz, the wrongful act of the defendant which gives the plaintiff his cause of complaint, and the consequent damage. In other words, it is factual situation which a plaintiff relies upon to support his claim recognized by law as giving rise to a substantive right capable of being claimed or enforced against a defendant. See AGBANELO VS UNION BANK OF NIGERIA LTD (2004) 4 SC (PT.1) 233, EMIATOR VS NIGERIA ARMY (1999) 12 NWLR (PT.631) 362. ASABORO VS PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; AKANDE VS ADISA (2004) ALL NWLR (PT.236) 413; ADESOKAN VS ADEGOROLU (1977) 3 NWLR (PT.493) 261:-.
IN WOHEREM vs EMERUWA (2004) ALL FWLR (PT.221) 570. It was held by the supreme court per Iguh JSC at page 1581 that:-
“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached.”
However, the tenure of a right or cause of action is not at large or interminable. The period for the enforcement of such right of action expires or ends on the date or time frame that the statute of limitation proclaims that no such legal action or proceedings may lawfully be commenced by an aggrieved party. Thus were a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or solidly instituted after the expiration of the prescribed period. Consequently, an action instituted after the expiration of the period prescribed by law is said to be statute barred because time begins to run for the purpose of the limitation law from the date the cause of action accrues. See OGUNKO VS SHELLE (2004) 6 NWLR (PT.868) 17; SPDC (NIG) LTD Vs FARAH (1995) 3 NWLR (PT.382) 148 and ASABORO vs PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; AJAYI VS ADEBIYI (2012) 11 NWLR (PT.1310) 137.
In ascertaining the time when the cause of action accrued for the purpose of a limitation law, the court only looks at the writ of summons and the statement of claim which contains averments as to when the wrong committed by the defendant took place and compare it with the date when the writ of summons was filed. Where it is apparent in the statement of claim that the time pleaded is beyond the period allowed by the limitation law, it renders the suit incompetent for being statute barred. See ELABANJO VS DAWODU (2006) 15 NWLR (PT.1001) 76 and WOHEREM Vs EMERUWA supra. In the instant case the writ of summons was filed in the Lower Court by the 1st – 4th Respondents on 9-8-2001. It was accompanied with their statement of claim which was subsequently amended vide the amended statement of claim dated 24-1-2007. In Paragraphs 5, 6, 13, 16 and 21 of the said Amended Statement of Claim it was averred thus:-
(5) The 3rd defendant is a registered company who by virtue of a transfer or purported transfer of the subject of this suit had possession and use of the land since 1982 until the date it purported to transfer the land in dispute to the 4th defendant.
(6) The 4th defendant is also a registered company which carries on business on the land as at now as a purported transfer from the 3rd defendant.
(13) In 1960 or thereabout, the 1st defendant, without the consent of the Topo community surrendered or transferred possession of the land above described to the then western Nigeria government.
(16) The 2nd defendant purported to transfer the land to the 3rd defendant, sometimes in 1982, without at any time before or after their revoking the title of the Topo community to the land.
(21) The defendants have since the purported surrender or transfer to the Western Region not paid the rent reserved in the lease Agreement for the last 30 years of the lease.
The appellant in its statement of defence particularly in paragraph 10 averred as follows:-
10: The 2nd defendant shall at the trial rely on the following preliminary points of law:
10:1 That the cause of action arose in 1982
10:2 That the actions as statute barred
10:3 That the plaintiffs have acquiesced over their right to the land in dispute.
Now Section 16(2) of the Limitation Law of Lagos State provides thus:-
(2) The following provisions shall apply to an action by a person to recover land.
(a) Subject to paragraph (b) of this Subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it first accrued to some person through whom he claims, through that person”.
Addressing the issue of limitation in his judgment, the learned trial judge at page 241 of the Record held thus:-
“The second defendant raised the defence of limitation of action and laches and acquiescence in its statement of defence but no evidence was led on it by its witness and counsel to the second defendant did not address on either of them in his written address. It is trite that pleading is synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case and as such a defendant who seeks to rely on a defence to demolish the case against him must produce adequate credible evidence in averment or the pleading would be deemed abandoned, see Durosaro vs Ayorinde (2005) 8 NWLR (PT.927) 407, Shittu vs Fashawe (2005) 14 NWLR (Pt.946) 671 and Arabambi vs Advance Beverages Industries Ltd (2005) 19 NWLR (Pt.959) 1. The defences would be treated as abandoned in the instant case.”
Learned counsel for the appellant had challenged this holding of the Lower Court as being untenable and cited in support the Supreme Court case of OLAGUNJU vs PHCN (2011) 10 NWLR (PT.1254) 13 at 116.
I am inclined to agree with this stance by learned counsel and authorities abound to support it.
In OLAGUNJU VS PHCN supra the Supreme court per ONNOGHEN JSC held thus at Page 126
“I hold the considered view that a defendant who pleads the defence of statute of limitation need not call or adduce evidence if the facts needed to establish the defence can be gleaned or contained or opponent in the case presented by the plaintiff as the defendant can rely on the plaintiffs case to successfully establish the defence as in the instant case”.
Aloma Mukhtar JSC (as he then was) added strength to this view by positing thus at Page 129
“It is a fact that evidence was not adduced by the defendants but it is also a fact that the materials required to determine the issue of limitation have already been supplied by the plaintiffs in their statement of claim and other court processes”.
In KOLO VS. FBN PLC (2003) 3 NWLR (PT.806) 216
It was held that the statement of claim is recognized as a matter of law as the first place to look at to determine if there be a cause of action and when it accrued.
In MILITARY ADMINISTRATOR EKITI STATE VS ALADEYELU & ORS (2007) 14 NWLR (PT.1055) 619. The Supreme Court relying on its earlier decision in WOHEREM Vs EMERUWA (2004) 3 NWIR (PT 890) 398 at 417 held that for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim only. See also AMUSAN vs OBIDEYI (2005) 14 NWLR (PT.945) (2008) 11 NWLR (PT.1099) 539.
At the Court of Appeal level, numerous decisions have be given along the same line. In GBADEHAN vs KILADEJO (2011) LPELR (8911) at page 27. This court held per Kekere Ekun JCA (as he then was) that:-
“It is correct, as submitted by learned counsel for the appellant, relying on the case of Savannah Bank Vs Pan Atlantic (1987) 1 NWLR (PT.49) 212 at 259 C – H and Woherem Vs Emeruwa (2004) 13 NWLR (PT.890) 238, that the onus of pleading and proving that an action is statute barred lies on the defendant. However, having so pleaded, in order to determine the issue, it is the writ of summons and statement of claim that would be considered by the court”.
(Underlining for emphasis)
See also ABOYEJI VS LATEJU (2011) LPELR (3572).
In the instant case, the Appellant raised the defence that the action was statute barred, in paragraph 10 of its statement of defence but the learned trial judge without addressing same before proceeding with the trial, held that the defence would be treated as abandoned because no evidence was led on it by its witnesses and counsel did not argue on it in his written address. He relied on the cases of SHITTU VS FASHAWE supra DUROSARO VS BEVERAGES INDUSTRIES LTD supra. I have read the reports on the cases and they indeed stated the correct position of the law, that where a defendant fails to give evidence at the trial, his statement of defence is deemed abandoned. But the said authorities do not apply to the instant case bearing in mind that a defence that an action is statute barred is a challenge on the jurisdiction of the court to hear the suit. In ADEKOYA VS FEDERAL HOUSING AUTHORITY supra the Supreme Court held inter alia, that a plea in any given case that an action is statute barred is a plea which raises the issue of jurisdiction and which determinant is the writ of summons and the statement of claim. Also in NDUKA VS OGBONNA (2010) LPELR at page 11- 12, this court per SANUSI JCA held thus:-
“Being an issue of jurisdiction therefore, a court of low confronted with such question on whether on action is statute barred or not is duty bound to determine the issue first and if it finds out that it is statute barred, it should merely dismiss the suit, since no amount of resort to its merit could resuscitate it”.
The learned trial judge in this case ignored or failed to carry out that duty of first examining the writ of summons and statement of claim in order to determine whether the action was statute barred and consequently the status of his jurisdiction to entertain the suit. It appears he got mixed up with the defence of acqiuesance which was raised together with that of limitation. For acqiuesance, the reasoning and conclusion would have stood on a firm ground. But he ought to have distinguished one from the other as different principles of law apply to them.
If the learned trial judge had examined the writ of summons and the statement of claim with particular reference to paragraphs 16, it would have come out clearly that the cause of action arose in 1982. The writ of summons show that this action was filed in the year 2001, that is 19 years after the cause of action arose. This period no doubt falls outside the 12 years limit imposed by Section 16(2) of the Limitation Law of Lagos State.
What is more, the evidence elicited from the 4th Respondent who testified as CW1 is important. It reads:-
“The Topo Community was aware of the taken (sic) but we did not take any action. This Lagos state Government did not acquire the land from the Topo community. We are aware that the 1st defendant surrendered the lease dated 1895 to the Government as directed in Exhibit P2. We became aware of the presence of the 4th defendant on the land in 1982.”
This piece of evidence confirms the averment in paragraph 16 of the Statement of Claim and ought to constitute a ground for not ignoring the fact there was a defence that the action was statute barred.
It could be argued that the Reversionary interest having not expired, statute of limitation cannot apply to the 1st to 4th Respondents case. My answer to that is to the effect that the right of action of a reversioner can arise wherein there is an injury or threat to his interest and he may do so at once without waiting until his future estate falls in possession. In other words, there are instances when the holder of a reversionary right over a land may take necessary action to protect his interest on the land without waiting for the residue of the lease to expire. For instance where there is a permanent injury to his interest. See SOLEH BONEH Vs OVERSEAS (NIG) LTD (1989) NWLR (PT 99) 549 and OKOLO VS UZOKA (1978) 1 LRN 192 at 192.
I will venture to add that such right to sue by a reversioner can arise where there is an apparent threat to the ownership of the land such as in the instant case.
On the whole I find that from a perusal of the writ of summons and the amended statement of claim the cause of action in this suit accrued in 1982 but the said suit was instituted in 2001 which is 19 years apart. This being outside the 12 years period allowed by section 16(2) of the limitation law of Lagos State, the suit No ID/1725/2001 filed by the 1st to 4th Respondents in the High court of Lagos state on 17th August 200L was statute Barred. This issue No 1 is therefore resolved in favour of the appellant.
Having resolved issue 1 in favour of the appellant by holding that the suit in the Lower Court was statute barred, it will be totally unnecessary to go into the consideration of the other issues raised in the briefs of argument. It will amount to an academic exercise because ab initio the Lower Court lacks the jurisdiction to entertain the suit. On the whole, I hold that this appeal succeeds and is hereby allowed. Suit No ID/1725/2001 is statute barred and is hereby dismissed. The judgment of the Lower Court delivered by H. A. O. Abiru J. on 17th April 2007 in suit No ID/1725/2001 is hereby set aside.
I make no order as to cost.
CROSS APPEAL
On the cross appeal, two issues were formulated for determination in the cross/appellant’s brief as follows:-
(1) Whether a point of law to wit: statute of limitation raised in a statement of defence can be deemed abandoned because no oral evidence was led in support.
(2) Whether or not the parcel of land compulsorily acquired by Exhibit A1 covered the whole of Topo village.
For the 1st – 4th cross Respondent, four issues were formulated for consideration in their brief of argument as follows:-
(i) Whether the trial judge was not right in holding that the 2nd defendant/cross appellant had abandoned her plea that the claimant’s action was statute barred.
(ii) Whether the cross appellant and/or her transferees could acquire prescriptive Title as against the 1st-4th Respondent.
(iii) On whom lies the burden of proving that the land in dispute was acquired.
(iv) Whether that party has discharged the burden.
Learned counsel for the 1st – 4th cross/respondents aligned his issues 1 & 2 to answer cross appellants issue 1 while their issues 3 & 4 where aligned to answer cross appellants issue 2.
In the light of the above, I will adopt the issues raised in the cross appellants brief in the consideration of this cross appeal.
ISSUE NO 1
Cross appellants submissions on this issue are contained in pages 3 to 7 of the brief of argument while the response by the 1st to 4th cross respondents are contained in paragraphs 3.01 to 3.19 of their brief of arguments.
I have earlier in the main appeal decided on a similar issue while considering issue 1 as raised by the appellant. I hereby adopt my reasoning’s and conclusions contained therein and I accordingly resolve issue 1 in favour of the cross appellant.
Having so decided that the action was statute barred I find that to embark on the consideration of cross appellants issue 2 and 1st to 4th cross respondents issues 3 and 4 will be a futile exercise because the Lower Court from the onset had no jurisdiction to entertain the suit.
I therefore hold that this Cross appeal succeeds and is hereby allowed. Suit No.ID/1725/2001 is statute barred and as accordingly dismissed.
The judgment of the High court of Lagos state delivered by H. A. O. Abiru J. on 17th April 2007 is hereby set aside.
I make no order as to cost.
AMINA A. AUGIE, J.C.A.: I have read the read Judgment just delivered by my learned brother, Oseji, JCA, and I agree with his reasoning and conclusions. He covered the entire field, and I will only add that the overriding purpose of a limitation law is said to be “interest reipublicae ut si finis litium”, i.e. that litigation shall be automatically stifled after a fixed length of time, irrespective (for the most part) of the merits of a particular case’ Another factor is the desirability of preventing plaintiffs from prosecuting stale demands on one hand, and protecting Defendants from disturbance after a long lapse of time when they have grown accustomed to their position or maybe have lost the evidence to defend it, on the other hand – see Atunrase v. Sunmola (1985) 1 NWLR (Pt.1) 105. Whatever be the basis, there is a general consensus from available authorities that all limitation laws have the negative effect of closing the doors of the court against the plaintiff – See Eboigbe v. NNPC (1994) 5 NWLR (Pt.347) 649, where Kalgo, JSC, observed-
“where an action is statute barred, a Plaintiff, who might have loses the right had a cause of action, to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such an action has elapsed”.
And AG (Fed.) v. Sode (1990) 1 NWLR (Pt.128) 500, where same Court held –
“It is true that courts guard their jurisdiction jealously and will not lightly surrender to a provision taking away their jurisdiction. It is, however, well settled that where the words of a statute as to the jurisdiction of the Courts are clear and unambiguous, they must be given effect. But it is also well-settled that the exercise of a right of action is derived from the fundamental law of the law or any statute specifically conferring such right. The Court can only assume jurisdiction with respect to a right to action, and cannot assume jurisdiction unless the plaintiff, who has brought the action before it, has a right of action”. (Per Karibi-Whyte, JSC)
In this case, the Lower Court erred in assuming jurisdiction over a suit that was, clearly, statute barred. I also allow the Appeal and Cross appeal, and I abide by the orders in the lead Judgment including no costs.
JOSEPH SHAGBAOR IKYEGH. J.C.A.: I had the honour of reading in draft the elaborate judgment
prepared by my learned brother, Samuel Chukwudumebi Oseji, J.C.A., with which I am in agreement and adopt as my judgment in the appeal with these few words, by way of emphasis.
Precious time and scarce judicial time would have been saved if the court below had taken and decided the defence of time bar of the action pleaded in paragraph 10 of the statement of defence as a threshold issue without waiting for evidence to be taken at the plenary trial of the action.
All that was required at that point in time was to examine the time the action was filed per the application for a writ of summons and the date the act(s) that gave rise to the cause of arose as stated in the statement of claim and calculate the time therefrom whether the action was filed outside the twelve years time frame in section 16(2)(a) and (b) of the Limitation Law of Lagos State and was, on that account, statute barred; which would have saved time and costs for the parties and the court.
For the reason above and the far-reaching reasons in the lead judgment I too see substance in the appeal and the cross-appeal and hereby allow both the appeal and the cross-appeal on ground of time-bar of the action as succinctly held in the lead judgment and abide by the consequential orders contained in the lead judgment.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered by H. A. O. Abiru J. on 17-4-2007 in suit No.ID/1725/2001. Wherein judgment was entered in favour of the claimants.
The claimants (now the 1st – 4th Respondents) had by a writ of summons and statement of claim dated 9 – 8-2001 brought an action in the High court of Lagos state, against the 1st, 2nd, 3rd and 4th defendants (now appellants) and 5th, 6th and 7th Respondents). By paragraph 12 of their amended statement of claim dated 24-1-2007 they claimed against the defendants as follows.
WHEREUPON the plaintiffs claim as follows:
1. “A DECLARATION that the Topo community is presently and immediately entitled to the reversion and/or possession of the piece or parcel of land more particularly described in the Lease Agreement dated the 14th June 1924 and registered as No.90/439/Vol.144 in the Lands Registry at Ikeja by virtue of said Lease having been abandoned by the 1st Defendant to whom it was granted.
2. “PAYMENT by the 1st, 2nd and 3rd Defendants to Topo Community of the arrears of rent owed but unpaid since the beginning of the third 30 years of the lease on the 6th of June, 1984 up till 1982 when the lease was abandoned.
3. “PAYMENT by the 4th Defendant of Mesne profit at the same rate as the prescribed rent with effect from 1982 the date when it first entered the said piece or parcel of land for the purpose of exploiting its coconut plantation without any claim of right.
The 6th Respondent as 2nd defendant at the Lower Court filed an 11 paragraph statement of defence dated 8-2-2002. The appellant as 4th defendant also filed its own statement of defence dated 15/5/2002. The 1st and 3rd defendants, (now 5th and 7th Respondents did not file any pleadings or participate in the trial at the lower court.
Briefly put, the case for the 1st to 4th Respondents as claimants in the Lower Court was that they are the owners of the land in dispute from time immemorial and sometime in 1924 they granted a lease of ninety years over the land in favour of the 5th Respondent as evidenced by a lease Agreement dated 14/6/1924 and Registered as No 90 at page 439 in volume 144 of the Deeds Register at the Lands Registry office in Lagos. Rent for the lease was put at forty pounds per annum for the first 30 years and thirty pounds per annum for the second thirty years and twenty pounds for the last. The first two thirty years of between 1924 and 1954 and 1954 to 1984 have been paid while that of 1984 to 2014 is still pending. However in the early 1960s the 5th Respondent surrendered the land to the then Government of western Nigeria. The Lagos State Government subsequently transferred the land to the 7th Respondent sometime in 1982 and the 7th Respondent in turn transferred it to the appellant. The 5th Respondent still has a cemetery and a primary school on the land but when some years back rent was demanded, they said that they are no longer on the land. The 6th Respondent on the other hand claimed to have acquired the land sometime in 1972 and denied transferring the land to the 7th Respondent. They also pleaded that the suit is statute barred and the claimant guilty of acquiescence. The Appellant also denied all the claims of the 1st to 4th Respondents and contended that it bought the land in dispute from a Receiver/Manager in an open market and has the relevant documents to prove it.
At the trial, the 1st to 4th Respondents called two witnesses and tendered two exhibits in evidence. The 6th Respondent called one witness and tendered one exhibit in evidence. The appellant did not lead any evidence in support of its pleadings.
At the conclusion of the trial and adoption of written address by counsel who participated in the trial, the Lower Court in its Judgment which was in favour of the 1st to 4th Respondents as claimant held as follows:
In conclusion, judgment is hereby entered in this suit as follows;
(i) It is hereby declared that the Topo Community is entitled to the present and immediate reversion and possession of the piece or parcel of land more particularly described in the Lease Agreement dated the 14th of June, 1924 and registered as No. 90 at page 439 in Volume 144 of the Register Deeds in the Lands Registry at Ikeja by reason of the said lease having been abandoned by the first Defendant to whom it was granted.
(ii) The Claimants’ claim for the payment by the first, second and third Defendants to Topo Community of the arrears of rent owed but unpaid since the beginning of the third thirty years of the lease on the 6th of June, 1984 up till 1982 when the lease was abandoned fails and it is hereby dismissed.
(iii) The Claimants’ claim for the payment of mesne profit by the fourth Defendant at the same rate as the prescribed rent on the lease agreement with effect from 1982 the date when it first entered the said piece or parcel of land for the purpose of exploiting its coconut plantation without any claim fails and it is hereby dismissed.
(iv) The first, second, third and fourth Defendants, either by themselves, their agents, assigns and privies, are hereby restrained from disturbing, interfering with or in any way hindering the Claimants from taking possession and/or from enjoying and maintaining a peaceable possession of the land in dispute.
(v) Each party shall bear its costs of this action.
These shall be the orders of this Court.
Being aggrieved with the outcome of the Suit, the Appellant filed a notice of appeal dated 27-4-2007. Another amended Notice of Appeal was filed on 30-3-2010. The current Notice of appeal is however the further Amended Notice of Appeal dated and filed on 8-2-2013. It has eight grounds of appeal which shorn of their particulars reads thus:-
3.1 The learned trial judge erred in law and acted without jurisdiction when he adjudicated on the suit instituted by the 1st – 4th RESPONDENTS which is statute barred.
3.2 The learned trial judge erred in law when he held that:
“The second Defendant raised the defences of limitation of action and laches and acquiescence in its statement of defence but no evidence was led on them by its witness and counsel to the second Defendant did not address on either of them in his written address …. The defences would be treated as abandoned in the instant case.”
3.3 The learned trial judge erred in law and acted without jurisdiction when he made an order restraining the first, second, third and fourth Defendants from disturbing, interfering with or in any way hindering the Claimants from taking possession and/or from enjoying and maintaining a peaceable possession of the land in dispute.
3.4 The learned trial judge erred in law when he held that:
“‘The evidence of the two Claimant witnesses that the first Defendant abandoned possession of the land in dispute in the 1960s and had since not returned thereon was unchallenged and not contradicted. The testimony of the first Claimant witness that the first Defendant neglected to pay the rents due on the lease for the last third of the period of the lease, 1984 to 2014 and that when they demanded for the payment, the first Defendant informed them that it has since given up the lease who also unchallenged and not contradicted. This Court will accept them as true and correct. The Court finds and holds that these actions of the first Defendant amounted to a surrender of the lease contained in Exhibit P2.”
And thereby occasioned a miscarriage of justice.
3.5 The learned trial judge erred in law when he held that:
“In view of the failure of the second, third and fourth Defendants to show the presence of any legal or equitable interest which inhered in any of them over the land in dispute…….. the Claimants are entitled to accept the surrender of lease as contained in EXHIBIT P2 by the first Defendant and to treat the lease as terminated……”
3.6 The learned trial judge erred in law when he held:
“The first Defendant abandoned the lease and possession of the land in dispute in the 1960s and this court found that these amounted to a surrender of the lease. The Claimants accepted the surrender and claimed for immediate reversion and possession of the land in dispute on this basis….”
3.7 The learned trial judge erred in law when he said:
‘The two Claimants witnesses testified that the fourth Defendant was presently the person on the land harvesting the coconuts thereon and they did not know how the fourth Defendant got to the land and that apart from the primary school and cemetery of the first Defendant still on a portion of the land, the Defendant had completely abandoned possession of the land.”
3.8 The learned trial judge erred in law when he held that the Claimants are entitled to their claim for the immediate reversion and possession of the land in dispute.
The 6th Respondent also filed a notice of cross/appeal dated 29-3-2010 and filed on 30-3-2010. It has two grounds of appeal.
In accordance with the Rules of this Court parties subsequently filed and exchanged their briefs of argument. The amended appellants’ brief of argument is dated 8-2-2013. The 1st to 4th Respondents brief is dated 11-3-13 and filed on 14-3-13. The appellant reply to the 1st – 4th Respondent brief is dated and filed on 28-3-2013.
The other Respondents did not file brief of argument. However the 5th Respondent/Cross appellant filed an amended brief of argument based on the grounds of the cross appeal. It is dated 12-3-2013 and filed on 19/3/2013.
The 1st to 4th Respondents filed reply to the cross appellant brief. It is dated 27/3/2013 and filed on 29-4-2013.
On the main appeal, the appellant formulated four issues for determination fr.om the eight grounds of appeal. They are:-
(1) Whether from the totality of the case presented by 1st – 4th Respondents the Suit is statute barred having regard to the provisions of section 16(2) of the Limitation Law of Lagos State.
(2) Whether the learned trial judge was right when he granted an order of injunction against the appellant in respect of the Land in dispute.
(3) Whether there is any legal evidence on record to justify the finding of the trial court that ‘these action of the first defendant amounted to a surrender of the lease contained in EXHIBIT P2.’
(4) Whether on the state of the pleadings and evidence adduced at the trial court the 1st – 4th Respondents are entitled to the declaration for immediate reversion and possession of the Land in dispute granted by the learned trial judge.
For the 1st to 4th Respondents, four issues were also formulated for determination as follows:-
(1) Whether the appellant whom by her pleading was an adverse possessor against the 1st defendant lessee under the lease of 1924 which expires in 2014 could at any time before expiry acquire title or right of possession as a squatter in whose favour time has run against the 1st to 4th Respondents the Lessor or Reversioners.
(2) Whether in the light of the pleading and the evidence it as not compelling to find either that the 1st defendant has been dispossessed of or that she has continued the lease of 1924 and if so, whether the learned trial judge was not right to grant the relief sought in the amended claim for –
A declaration that the Topo community is presently and immediately entitled to the reversion and/or possession of the piece or parcel of land more particularly described in the lease agreement dated 14th June 1924 and registered as No 90/439/VOL 144 of the Lands Registry at Ikeja by virtue of the said lease having been abandoned by the 1st defendant to whom it was granted.
(3)Whether the learned trial judge was not right in making an order for injunction against all the parties in the final judgment though it was not retained on the claimants 1st – 4th Respondents reliefs on its amended claim.
(4) Whether the appellant having pleaded a parallel title or adverse possession against the 1st defendant and/or the claimant for which it supplied no proof could make a case for and depend at the case made for 1st defendant in this court.
Learned counsel for the appellant had in the appellants reply brief challenged the competence of issues 1, 2 and 4 as raised in the 1st to 4th Respondents brief of argument. His contention is that it is not permissible for a respondent who did not file a cross appeal or Respondents Notice to formulate issues not related to the grounds of appeal. He added that where such issues are formulated by a party and they are not covered by any ground of appeal the court has a duty to strike out the flawed issues for want of competence and discountenance the arguments canvassed there from. He relied on the following authorities: OKOYE VS. N. C. & F. CO. LTD (1991) 6 NWLR (PT.199) 501 at 532 – 533; OLOWO SAGO vs. ADEBANJO (1988) 4 NWLR (PT.88) 225; NZEEKWU VS. NJEKWU (1989) 2 NWLR (PT.104) 37 at 422.
ADELUSOLA VS. AKINDE (2004) 12 NWLR (PT.887) 295 at 311. AFRICAN PETROLEUM LTD VS. OWODUNNI (1991) 8 NWLR (PT.210) 391 and SHA (JNR) VS. KWAN (2000) 8 NWLR (PT 670) 685 at 700.
It is a trite principle of law that an issue for determination which has no reference to or not raised from any ground of appeal would not be considered by an appellate court. Where an issue formulated for determination in an appeal is neither related nor can be distilled from each or all of the grounds of appeal, the issue is said to be unarguable and it is to all intents and purposes incompetent with the resultant effect of being struck out. See ARAKA VS. EGBUE (2003) 15 NSCQR 150; IFEDIORA VS. UMEH (1988) 2 NWLR (PT.74) 5; NWADIKE VS. IBEKWE (1987) 4 NWLR (PT.67) 718; MODUPE VS. THE STATE (1988) 1 NWLR (PT.87) 130; SHITTU VS. FASHAWE (2005) 14 NWLR (PT.946) 671.
In NZEKWU VS. NZEKWU (1989) 2 NWLR (PT 104) 373, the Supreme Court per Nnaemeka Agu JSC held at page 422 thus-
“This court has said a number of time that a respondent who has neither cross appealed nor given a respondents notice has not got on unbridled freedom of raising issues for determination which have no relevance to the grounds of Appeal filed.”
The case of ADELUSOLA vs. AKINDE cited supra by learned counsel for the appellant is also instructive. At page 311 the Supreme Court per EDOZIE JSC held that:-
“It is no doubt, a correct statement of law that an issue for determination in an appeal which is not related to or derived from any of the grounds of Appeal challenging the judgment appealed against is incompetent and must be discountenanced together with argument advanced there under in the consideration of the Appeal.”
I have taken a cursory look at the eight grounds of appeal filed by the appellant as contained in the further Amended Notice of Appeal dated and filed on 8/2/2013 and relate them to the issues 1 and 2 formulated by the 1st to 4th Respondents in their brief of argument and I seem to find no connection between them. In other words, the said issues 1 and 2 to my mind are not related or derived from any of the eight grounds of appeal filed by the appellant. Incidentally, the 1st to 4th Respondents did not cross appeal neither was any Respondents Notice of intention to contend filed. This renders the said issue 1 and 2 raised in the 1st to 4th Respondents brief of argument, incompetent and they are hereby discountenanced together with argument advanced in support thereto.
In the circumstance, the only issues left to be considered in the 1st to 4th Respondents brief are issues 3 and 4.
The said issues 3 and 4 are similar to the appellants issue 2 and 4. I will adopt the four issues formulated by the appellant in the consideration of this appeal.
ISSUE 1
Dwelling on this issue, learned counsel for the appellant referred to section 16(2) of the Limitation Law of Lagos State and the reliefs sought in the 1st to 4th Respondents Amended Statement of claim to submit that the reliefs sought was aimed at recovering the Land referred to in the lease dated 14/6/1924 and therefore falls within the purview of section 16(2) of the Limitation Law of Lagos State.
He also cited the case of WOHEREM VS. EMERUWA (2004) 13 NWLR (PT.890) 398 at 416 and ELABANJO VS DAWODU as authorities in determining the date when a cause of action is deemed to arise. Learned counsel also referred to the averments in paragraphs 5, 6, 13 and 16 of the Amended statement of claim dated 24/1/2007 for the purpose of ascertaining when the cause of this action arose. He then submitted that the cause of action of the Topo Community in respect of the disputed land accrued in 1982 when the 6th Respondent transferred their land to the 7th Respondent who took adverse possession of the land and remain thereon until it was transferred to the appellant. He referred to the evidence of CW1 who under cross examination stated that as at 1982 they became aware of the presence of 7th Respondent on the Land and proposed to go to court but no action was taken.
Learned counsel then submitted that this suit is caught by the limitation law because the 1st – 4th Respondents became aware of the presence of the 7th Respondent on the Land in 1982 but did nothing till the year 2001 that is after 19 years before they brought this action and this is beyond the 12 years limit allowed by law.
Learned counsel cited in support the authorities of AJAYI vs. ADEBIYI (2012) 11 NWLR (Pt.1310) 137 at 169 and WILLIAMS VS. WILLIAMS (2008)10 NWLR (PT.1095) 364 at 390 – 391.
On the finding of the learned trial judged that evidence ought to be led in respect of the defence of limitation law as contained in the 6th Respondents pleadings, learned counsel contended that such finding is untenable and amounts to an error of law. He relied on the authority of OLAGUNJU vs. PHCN (2011) 10 NWLR (PT.1254) 113 at 126 and 129.
He added that, from the averments in the 1st to 4th Respondents amended statement of claim and the evidence of CW1, all the materials required to determine the issue of limitation were before the trial court which then made it unnecessary for the 6th Respondent to adduce evidence in support of the defence of statute of limitation raised in the statement of defence.
A cause of action is the entire set of circumstances giving rise to an enforceable claim. It is the fact or combination of facts, which gives rise to sue and it consists of two elements, viz, the wrongful act of the defendant which gives the plaintiff his cause of complaint, and the consequent damage. In other words, it is factual situation which a plaintiff relies upon to support his claim recognized by law as giving rise to a substantive right capable of being claimed or enforced against a defendant. See AGBANELO VS UNION BANK OF NIGERIA LTD (2004) 4 SC (PT.1) 233, EMIATOR VS NIGERIA ARMY (1999) 12 NWLR (PT.631) 362. ASABORO VS PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; AKANDE VS ADISA (2004) ALL NWLR (PT.236) 413; ADESOKAN VS ADEGOROLU (1977) 3 NWLR (PT.493) 261:-.
IN WOHEREM vs EMERUWA (2004) ALL FWLR (PT.221) 570. It was held by the supreme court per Iguh JSC at page 1581 that:-
“It cannot be disputed that a cause of action matures or arises on a date or from the time when a breach of any duty or act occurs which warrants the person thereby injured or the victim who is adversely affected by such breach to take a court action in assertion or protection of his legal right that has been breached.”
However, the tenure of a right or cause of action is not at large or interminable. The period for the enforcement of such right of action expires or ends on the date or time frame that the statute of limitation proclaims that no such legal action or proceedings may lawfully be commenced by an aggrieved party. Thus were a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or solidly instituted after the expiration of the prescribed period. Consequently, an action instituted after the expiration of the period prescribed by law is said to be statute barred because time begins to run for the purpose of the limitation law from the date the cause of action accrues. See OGUNKO VS SHELLE (2004) 6 NWLR (PT.868) 17; SPDC (NIG) LTD Vs FARAH (1995) 3 NWLR (PT.382) 148 and ASABORO vs PAN OCEAN OIL (NIG) LTD (2006) 4 NWLR (PT.971) 595; AJAYI VS ADEBIYI (2012) 11 NWLR (PT.1310) 137.
In ascertaining the time when the cause of action accrued for the purpose of a limitation law, the court only looks at the writ of summons and the statement of claim which contains averments as to when the wrong committed by the defendant took place and compare it with the date when the writ of summons was filed. Where it is apparent in the statement of claim that the time pleaded is beyond the period allowed by the limitation law, it renders the suit incompetent for being statute barred. See ELABANJO VS DAWODU (2006) 15 NWLR (PT.1001) 76 and WOHEREM Vs EMERUWA supra. In the instant case the writ of summons was filed in the Lower Court by the 1st – 4th Respondents on 9-8-2001. It was accompanied with their statement of claim which was subsequently amended vide the amended statement of claim dated 24-1-2007. In Paragraphs 5, 6, 13, 16 and 21 of the said Amended Statement of Claim it was averred thus:-
(5) The 3rd defendant is a registered company who by virtue of a transfer or purported transfer of the subject of this suit had possession and use of the land since 1982 until the date it purported to transfer the land in dispute to the 4th defendant.
(6) The 4th defendant is also a registered company which carries on business on the land as at now as a purported transfer from the 3rd defendant.
(13) In 1960 or thereabout, the 1st defendant, without the consent of the Topo community surrendered or transferred possession of the land above described to the then western Nigeria government.
(16) The 2nd defendant purported to transfer the land to the 3rd defendant, sometimes in 1982, without at any time before or after their revoking the title of the Topo community to the land.
(21) The defendants have since the purported surrender or transfer to the Western Region not paid the rent reserved in the lease Agreement for the last 30 years of the lease.
The appellant in its statement of defence particularly in paragraph 10 averred as follows:-
10: The 2nd defendant shall at the trial rely on the following preliminary points of law:
10:1 That the cause of action arose in 1982
10:2 That the actions as statute barred
10:3 That the plaintiffs have acquiesced over their right to the land in dispute.
Now Section 16(2) of the Limitation Law of Lagos State provides thus:-
(2) The following provisions shall apply to an action by a person to recover land.
(a) Subject to paragraph (b) of this Subsection, no such action shall be brought after the expiration of twelve years from the date on which the right of action accrued to the person bringing it or if it first accrued to some person through whom he claims, through that person”.
Addressing the issue of limitation in his judgment, the learned trial judge at page 241 of the Record held thus:-
“The second defendant raised the defence of limitation of action and laches and acquiescence in its statement of defence but no evidence was led on it by its witness and counsel to the second defendant did not address on either of them in his written address. It is trite that pleading is synonymous with evidence and so cannot be construed as such in the determination of the merit or otherwise of a case and as such a defendant who seeks to rely on a defence to demolish the case against him must produce adequate credible evidence in averment or the pleading would be deemed abandoned, see Durosaro vs Ayorinde (2005) 8 NWLR (PT.927) 407, Shittu vs Fashawe (2005) 14 NWLR (Pt.946) 671 and Arabambi vs Advance Beverages Industries Ltd (2005) 19 NWLR (Pt.959) 1. The defences would be treated as abandoned in the instant case.”
Learned counsel for the appellant had challenged this holding of the Lower Court as being untenable and cited in support the Supreme Court case of OLAGUNJU vs PHCN (2011) 10 NWLR (PT.1254) 13 at 116.
I am inclined to agree with this stance by learned counsel and authorities abound to support it.
In OLAGUNJU VS PHCN supra the Supreme court per ONNOGHEN JSC held thus at Page 126
“I hold the considered view that a defendant who pleads the defence of statute of limitation need not call or adduce evidence if the facts needed to establish the defence can be gleaned or contained or opponent in the case presented by the plaintiff as the defendant can rely on the plaintiffs case to successfully establish the defence as in the instant case”.
Aloma Mukhtar JSC (as he then was) added strength to this view by positing thus at Page 129
“It is a fact that evidence was not adduced by the defendants but it is also a fact that the materials required to determine the issue of limitation have already been supplied by the plaintiffs in their statement of claim and other court processes”.
In KOLO VS. FBN PLC (2003) 3 NWLR (PT.806) 216
It was held that the statement of claim is recognized as a matter of law as the first place to look at to determine if there be a cause of action and when it accrued.
In MILITARY ADMINISTRATOR EKITI STATE VS ALADEYELU & ORS (2007) 14 NWLR (PT.1055) 619. The Supreme Court relying on its earlier decision in WOHEREM Vs EMERUWA (2004) 3 NWIR (PT 890) 398 at 417 held that for the purpose of determining whether or not an action is statute barred, the period of limitation is determined by looking at the writ of summons and the statement of claim only. See also AMUSAN vs OBIDEYI (2005) 14 NWLR (PT.945) (2008) 11 NWLR (PT.1099) 539.
At the Court of Appeal level, numerous decisions have be given along the same line. In GBADEHAN vs KILADEJO (2011) LPELR (8911) at page 27. This court held per Kekere Ekun JCA (as he then was) that:-
“It is correct, as submitted by learned counsel for the appellant, relying on the case of Savannah Bank Vs Pan Atlantic (1987) 1 NWLR (PT.49) 212 at 259 C – H and Woherem Vs Emeruwa (2004) 13 NWLR (PT.890) 238, that the onus of pleading and proving that an action is statute barred lies on the defendant. However, having so pleaded, in order to determine the issue, it is the writ of summons and statement of claim that would be considered by the court”.
(Underlining for emphasis)
See also ABOYEJI VS LATEJU (2011) LPELR (3572).
In the instant case, the Appellant raised the defence that the action was statute barred, in paragraph 10 of its statement of defence but the learned trial judge without addressing same before proceeding with the trial, held that the defence would be treated as abandoned because no evidence was led on it by its witnesses and counsel did not argue on it in his written address. He relied on the cases of SHITTU VS FASHAWE supra DUROSARO VS BEVERAGES INDUSTRIES LTD supra. I have read the reports on the cases and they indeed stated the correct position of the law, that where a defendant fails to give evidence at the trial, his statement of defence is deemed abandoned. But the said authorities do not apply to the instant case bearing in mind that a defence that an action is statute barred is a challenge on the jurisdiction of the court to hear the suit. In ADEKOYA VS FEDERAL HOUSING AUTHORITY supra the Supreme Court held inter alia, that a plea in any given case that an action is statute barred is a plea which raises the issue of jurisdiction and which determinant is the writ of summons and the statement of claim. Also in NDUKA VS OGBONNA (2010) LPELR at page 11- 12, this court per SANUSI JCA held thus:-
“Being an issue of jurisdiction therefore, a court of low confronted with such question on whether on action is statute barred or not is duty bound to determine the issue first and if it finds out that it is statute barred, it should merely dismiss the suit, since no amount of resort to its merit could resuscitate it”.
The learned trial judge in this case ignored or failed to carry out that duty of first examining the writ of summons and statement of claim in order to determine whether the action was statute barred and consequently the status of his jurisdiction to entertain the suit. It appears he got mixed up with the defence of acqiuesance which was raised together with that of limitation. For acqiuesance, the reasoning and conclusion would have stood on a firm ground. But he ought to have distinguished one from the other as different principles of law apply to them.
If the learned trial judge had examined the writ of summons and the statement of claim with particular reference to paragraphs 16, it would have come out clearly that the cause of action arose in 1982. The writ of summons show that this action was filed in the year 2001, that is 19 years after the cause of action arose. This period no doubt falls outside the 12 years limit imposed by Section 16(2) of the Limitation Law of Lagos State.
What is more, the evidence elicited from the 4th Respondent who testified as CW1 is important. It reads:-
“The Topo Community was aware of the taken (sic) but we did not take any action. This Lagos state Government did not acquire the land from the Topo community. We are aware that the 1st defendant surrendered the lease dated 1895 to the Government as directed in Exhibit P2. We became aware of the presence of the 4th defendant on the land in 1982.”
This piece of evidence confirms the averment in paragraph 16 of the Statement of Claim and ought to constitute a ground for not ignoring the fact there was a defence that the action was statute barred.
It could be argued that the Reversionary interest having not expired, statute of limitation cannot apply to the 1st to 4th Respondents case. My answer to that is to the effect that the right of action of a reversioner can arise wherein there is an injury or threat to his interest and he may do so at once without waiting until his future estate falls in possession. In other words, there are instances when the holder of a reversionary right over a land may take necessary action to protect his interest on the land without waiting for the residue of the lease to expire. For instance where there is a permanent injury to his interest. See SOLEH BONEH Vs OVERSEAS (NIG) LTD (1989) NWLR (PT 99) 549 and OKOLO VS UZOKA (1978) 1 LRN 192 at 192.
I will venture to add that such right to sue by a reversioner can arise where there is an apparent threat to the ownership of the land such as in the instant case.
On the whole I find that from a perusal of the writ of summons and the amended statement of claim the cause of action in this suit accrued in 1982 but the said suit was instituted in 2001 which is 19 years apart. This being outside the 12 years period allowed by section 16(2) of the limitation law of Lagos State, the suit No ID/1725/2001 filed by the 1st to 4th Respondents in the High court of Lagos state on 17th August 200L was statute Barred. This issue No 1 is therefore resolved in favour of the appellant.
Having resolved issue 1 in favour of the appellant by holding that the suit in the Lower Court was statute barred, it will be totally unnecessary to go into the consideration of the other issues raised in the briefs of argument. It will amount to an academic exercise because ab initio the Lower Court lacks the jurisdiction to entertain the suit. On the whole, I hold that this appeal succeeds and is hereby allowed. Suit No ID/1725/2001 is statute barred and is hereby dismissed. The judgment of the Lower Court delivered by H. A. O. Abiru J. on 17th April 2007 in suit No ID/1725/2001 is hereby set aside.
I make no order as to cost.
CROSS APPEAL
On the cross appeal, two issues were formulated for determination in the cross/appellant’s brief as follows:-
(1) Whether a point of law to wit: statute of limitation raised in a statement of defence can be deemed abandoned because no oral evidence was led in support.
(2) Whether or not the parcel of land compulsorily acquired by Exhibit A1 covered the whole of Topo village.
For the 1st – 4th cross Respondent, four issues were formulated for consideration in their brief of argument as follows:-
(i) Whether the trial judge was not right in holding that the 2nd defendant/cross appellant had abandoned her plea that the claimant’s action was statute barred.
(ii) Whether the cross appellant and/or her transferees could acquire prescriptive Title as against the 1st-4th Respondent.
(iii) On whom lies the burden of proving that the land in dispute was acquired.
(iv) Whether that party has discharged the burden.
Learned counsel for the 1st – 4th cross/respondents aligned his issues 1 & 2 to answer cross appellants issue 1 while their issues 3 & 4 where aligned to answer cross appellants issue 2.
In the light of the above, I will adopt the issues raised in the cross appellants brief in the consideration of this cross appeal.
ISSUE NO 1
Cross appellants submissions on this issue are contained in pages 3 to 7 of the brief of argument while the response by the 1st to 4th cross respondents are contained in paragraphs 3.01 to 3.19 of their brief of arguments.
I have earlier in the main appeal decided on a similar issue while considering issue 1 as raised by the appellant. I hereby adopt my reasoning’s and conclusions contained therein and I accordingly resolve issue 1 in favour of the cross appellant.
Having so decided that the action was statute barred I find that to embark on the consideration of cross appellants issue 2 and 1st to 4th cross respondents issues 3 and 4 will be a futile exercise because the Lower Court from the onset had no jurisdiction to entertain the suit.
I therefore hold that this Cross appeal succeeds and is hereby allowed. Suit No.ID/1725/2001 is statute barred and as accordingly dismissed.
The judgment of the High court of Lagos state delivered by H. A. O. Abiru J. on 17th April 2007 is hereby set aside.
I make no order as to cost.
AMINA A. AUGIE, J.C.A.: I have read the read Judgment just delivered by my learned brother, Oseji, JCA, and I agree with his reasoning and conclusions. He covered the entire field, and I will only add that the overriding purpose of a limitation law is said to be “interest reipublicae ut si finis litium”, i.e. that litigation shall be automatically stifled after a fixed length of time, irrespective (for the most part) of the merits of a particular case’ Another factor is the desirability of preventing plaintiffs from prosecuting stale demands on one hand, and protecting Defendants from disturbance after a long lapse of time when they have grown accustomed to their position or maybe have lost the evidence to defend it, on the other hand – see Atunrase v. Sunmola (1985) 1 NWLR (Pt.1) 105. Whatever be the basis, there is a general consensus from available authorities that all limitation laws have the negative effect of closing the doors of the court against the plaintiff – See Eboigbe v. NNPC (1994) 5 NWLR (Pt.347) 649, where Kalgo, JSC, observed-
“where an action is statute barred, a Plaintiff, who might have loses the right had a cause of action, to enforce the cause of action by judicial process because the period of limitation laid down by the limitation law for instituting such an action has elapsed”.
And AG (Fed.) v. Sode (1990) 1 NWLR (Pt.128) 500, where same Court held –
“It is true that courts guard their jurisdiction jealously and will not lightly surrender to a provision taking away their jurisdiction. It is, however, well settled that where the words of a statute as to the jurisdiction of the Courts are clear and unambiguous, they must be given effect. But it is also well-settled that the exercise of a right of action is derived from the fundamental law of the law or any statute specifically conferring such right. The Court can only assume jurisdiction with respect to a right to action, and cannot assume jurisdiction unless the plaintiff, who has brought the action before it, has a right of action”. (Per Karibi-Whyte, JSC)
In this case, the Lower Court erred in assuming jurisdiction over a suit that was, clearly, statute barred. I also allow the Appeal and Cross appeal, and I abide by the orders in the lead Judgment including no costs.
JOSEPH SHAGBAOR IKYEGH. J.C.A.: I had the honour of reading in draft the elaborate judgment
prepared by my learned brother, Samuel Chukwudumebi Oseji, J.C.A., with which I am in agreement and adopt as my judgment in the appeal with these few words, by way of emphasis.
Precious time and scarce judicial time would have been saved if the court below had taken and decided the defence of time bar of the action pleaded in paragraph 10 of the statement of defence as a threshold issue without waiting for evidence to be taken at the plenary trial of the action.
All that was required at that point in time was to examine the time the action was filed per the application for a writ of summons and the date the act(s) that gave rise to the cause of arose as stated in the statement of claim and calculate the time therefrom whether the action was filed outside the twelve years time frame in section 16(2)(a) and (b) of the Limitation Law of Lagos State and was, on that account, statute barred; which would have saved time and costs for the parties and the court.
For the reason above and the far-reaching reasons in the lead judgment I too see substance in the appeal and the cross-appeal and hereby allow both the appeal and the cross-appeal on ground of time-bar of the action as succinctly held in the lead judgment and abide by the consequential orders contained in the lead judgment.
Appearances
Okechukwu Tagboo DikeFor Appellant
AND
Dr. H. A. Olaniyan with Kola Faniran for the 1st – 4th Respondents.
Adebayo Saliu Asst. Director (MOJ) Lagos for 6th Resp./Cross appellant’sFor Respondent
