ALHAJA SAMIAT KOTUN & ORS v. MRS A. ALAKA & ORS
(2019)LCN/12652(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/L/1077M/2013
RATIO
ACTION: WHERE AN ACTION IS STATUTE BARRED
“The question that must therefore be answered is whether the matter is indeed statute barred. Section 16 of the Limitation law of Lagos State, indeed limits the period within which an action concerning declaration of title to land may be brought to 12 years. I agree with the Respondents Counsel that the cause of action incontrovertibly arose in the year 1988 when the Respondents predecessor in title expressly denied any form of tenancy or otherwise to the Appellants. The case was brought before the lower Court in 2005, a period of 17 years from the time the cause of action arose. This means that the action is statute barred and any proceedings conducted thereon is a nullity.
See:A.G. OF ADAMAWA STATE & ORS v. A.G. OF THE FEDERATION (2014) LPELR-23221(SC); OBIKA v. OBIKA (2018) LPELR-43965(CA); and BAKARI v. COLLEGE OF EDUCATION HONG & ANOR (2017) LPELR-43634(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
LAND LAW: THE ISSUE OF IDENTITY OF A DISPUTED LAND
“The above principle of law was expounded by the Supreme Court in the case of OKONKWO & ORS. V. OKONKWO & ORS. (2010) LPELR-9357(SC) (P. 36, paras. F-G), where per Adekeye JSC, it held thus: ‘In a claim for ownership of land, the plaintiff must prove the identity of a disputed land failing which his claim must collapse. The issue of identity of a disputed land must be ascertained with certainty. Dike v. Okoloedo (1999) 10 NWLR pt. 623 pg. 359, Ogun v. Akinyelu (2004) 18 NWLR pt. 905 pg. 362. Eleh v. Anyadike (1999) 5 NWLR pt. 603 pg. 454.’ See: GARBA & ORS v. CHIBIRI & ORS (2013) LPELR-22614(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
LAND LAW: WAYS OF PROVING TITLE TO LAND
“The means of proving title to land in Nigeria are well settled. The Supreme Court restated the extant principle of law with regards to the methods via which ownership of land may be proven in the case of AJIBULU v. AJAYI (2013) LPELR-21860(SC) (Pp. 21-22, paras. D-B) per Ogunbiyi JSC, thus:
“It is well settled in our legal system that proof of title must be established through one of the five ways as laid down in the case of Idundun Vs. Okumagba (1976) 9 – 10 SC.223 which are as follows:- (1) By traditional history or evidence or; (2) By documents of title; (3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or (4) By acts of long enjoyment and possession of the land and; (5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute. The burden placed on the plaintiff is to prove at least one of the five ways and not conjunctively. The same principle was also applied in the cases of Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt.7) p.373, Alli v. Alesinloye (2000) 6 NWLR (pt.40) p.117, Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) p, 562 and Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) 370.” Per OGUNBIYI, J.S.C. (Pp. 21-22, paras. D-B). See:OKORIEOCHA & ANOR v. EMERENI & ORS (2016) LPELR-40043(CA); and OGUNNIYI & ORS v. ADEYEMI (2018) LPELR-44406(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1. ALHAJA SAMIAT KOTUN
2. MR. MURITALA KOTUN
3. MR. MOJIDI SHONIBARE
(For themselves and on behalf of the children and descendants of late Karimu Kotun)Appellant(s)
AND
1. MRS. A. ALAKA
2. MRS. AKOLADE
3. MR. TAIWORespondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos State in SUIT NO: LD/1527/05 delivered by Honourable Justice A.A. Oyebanji on 19th December, 2012, wherein the Court gave a decision in favour of the Respondents
The material facts leading to this appeal, are that the Appellants acting on the belief that they are entitled to declaration of title to land, brought an action before the lower Court via a Writ of Summons dated 16th September, 2005, seeking the following:
1. A Declaration that the Claimants are the owners of the property situate at 2 Desalu compound, Ebute Metta, Lagos having inherited same from their grand father Alhaji Karimu Kotun, the original owner of the land covered by conveyance dated 22nd day of November, 1917 and registered as No 96 page 322 volume 119 at the Lands Registry in Lagos and are therefore entitled to undisturbed possession of same.
2. A Declaration that the Certificate of occupancy purportedly obtained by the Defendants in respect of the said land is null and void and of no effect whatsoever since a valid and subsisting registered title had earlier been obtained on same by the Claimants predecessor in title.
3. An order granting possession of the said land to the Claimants.
4. An order of perpetual injunction restraining the Defendants, their servants, agents and privies from further use and occupation of the land.
Both parties filed other requisite processes, with the Respondents bringing a Counterclaim alongside their Amended Statement of Defence dated 26th May, 2010, via which they claimed the following:
1. A Declaration of title in favour of the 1st Defendant to the Statutory Right of Occupancy to all that piece or parcel of land measuring 386.796 sq. meters covered by the Certificate of Occupancy registered as No. 95/95/1993E and situate at 3-5 Abule Nla Road, Ebute Meta, Lagos, State, with its dimensions and abuttals more particularly delineated and shown verged RED on Survey Plan No. JO 269/78 dated 20/3/78 and annexed to the Certificate of Occupancy dated 02/06/1993 issued in favour of the 1st Defendant.
2. A perpetual injunction restraining the Claimants, their agents, servants, privies or howsoever named from entering, trespassing on; claiming any rights to or in and/or interfering in any way whatsoever, with the 1st Defendants rights, interest, peaceable possession and/or quiet enjoyment of all that piece or parcel of land measuring approximately 386.796 sq. meters covered by the Certificate of Occupancy dated 02/06/1993 registered as No. 95/95/1993E and situate at 3-5 Abule Nla Road, Ebute Meta, Lagos, State, with its dimensions and abuttals more particularly delineated and shown verged RED on Survey Plan No. JO 269/78 dated 20/3/78 and annexed to the aforesaid Certificate of Occupancy.
Upon the conclusion of a full trial, the Court on 19th December, 2012, dismissed the claims of the Appellants and granted the counterclaim of the Respondents.
Dissatisfied with the decision, the Appellants filed an appeal vide a Notice of Appeal dated 17th January, 2017.
The Appellants Brief of Argument settled by Shina Agbesusi Esq., of Shina Agbesusi & Co., is dated and filed on 17th January, 2017. The Appellants Reply Brief is dated and filed on 21st November, 2018 but deemed as properly filed on 28th November, 2018.
Appellants counsel formulated two issues for determination to wit:
1. Whether having regard to the pleadings and evidence before the learned trial Judge there was an issue joined on the identity of the land in dispute (Ground 1)
2. Whether on the totality of the evidence adduced before the Court, the learned trial Judge was right in law when she granted the 1st Defendants counter-claim. (Ground 2)
On the other hand, the Respondents Brief of Argument settled by Segun Fowowe Esq., of Segun Fowowe & Co., is dated and filed on 5th December, 2017, but deemed properly filed on 28th November, 2018. Respondents counsel formulated three issues for determination to wit:
1. Whether the Appellants case is statute barred by the Limitation Law of the Laws of Lagos State, 2003 Vol. 5 Cap, L67 and any (purported) right claimed by the Appellants in respect thereof is extinguished by the said law, the Appellants not having instituted their action in the lower Court within 12 years after the cause of action arose.
2. Whether the Appellants discharged the burden of proof required of them by law to entitle them to a declaration of title to the land in dispute.
3. Whether the Respondents proved their counter-claim in the lower Court to entitle the 1st Respondent to a declaration of title to the land in dispute.
The Respondents filed a Notice of Preliminary Objection dated 21st September, 2018 and filed on 12th October, 2018, objecting to the jurisdiction of this Court to hear this appeal on the following grounds:
1. The case instituted by the Appellants in the lower Court was statute barred by virtue of the facts pleaded by the Respondents in paragraphs 41 & 44 of their Amended statement of Defence and counter-claim dated 26/5/2010.
2. The lower Court did not, at all, consider the said facts pleaded in the said paragraphs 41 & 44 in its judgment dated 19/12/12 against which the Appellants herein lodged this appeal via their 3rd Amended Notice of Appeal dated 17/01/2017.
3. If, in its judgment, the lower Court had considered the facts pleaded in the said paragraphs 41 and 44, the lower Court would have dismissed the Appellants case in limine, on the ground that the case is statute barred and the Court consequently lacks jurisdiction to entertain same.
ISSUE I:
WHETHER THE APPELLANTS CASE IS STATUTE BARRED BY THE LIMITATION LAW OF THE LAWS OF LAGOS STATE, 2003 VOL. 5 CAP, L67 AND ANY (PURPORTED) RIGHT CLAIMED BY THE APPELLANTS IN RESPECT THEREOF IS EXTINGUISHED BY THE SAID LAW, THE APPELLANTS NOT HAVING INSTITUTED THEIR ACTION IN THE LOWER COURT WITHIN 12 YEARS AFTER THE CAUSE OF ACTION AROSE.
Learned counsel for the Respondents argued that the Appellants right to institute the action at the trial Court had been extinguished by Section 16(2)(a) Limitation Law of the Laws of Lagos State, 2003 Vol. 5 Cap, L67, as the Appellants failed to bring the action within 12 years prescribed by said law, hence Appellants case at trial ought to have been dismissed and Appellants appeal should be dismissed.
He relied onMichael Obiefuna v. Alexander Okoye (1961) 1 All NLR; Fred Egbe v. Adefarasin (1985) 1 NWLR (Pt.3) 549; Fadare v. AG Oyo State (1982) NSCC 643; Elabanjo v. Dawodu (2006) 50 WRN pg. 79 at 140; and Ajibona v. Kolawole (1996) 10 NWLR Pt. 476 p.22 Pp 34 and 35, paras G, H, A, B, C.
Learned counsel sought to substantiate the above by arguing that the cause of action in this appeal arose in the year 1988, where by a letter dated 29th August, 1988 (Exhibit B), the Appellants purported Predecessor in Title sought to recover possession of the property in dispute, to which the Respondents replied and denied Appellants claim via a letter dated 5th October, 1988.
Counsel submitted that the learned trial Judge was wrong to have refused to entertain the Respondents prayer for striking out of Appellants suit for being statute barred, on the grounds that the issue had been decided at an earlier stage of the trial, because the arguments in the decision in the ruling dated 2nd March, 2007, which the trial Court was referring to, was hinged on the Certificate of Occupancy dated 2nd June, 1993 issued to the 1st Respondent and not the letters in 1988.
On the other hand, learned counsel for the Appellants argued that the Notice of Preliminary Objection raised by the Respondents is incompetent, as it is not based on any of the grounds upon which a preliminary objection against an appeal may be brought, but is based on the purported failure of the trial Court to determine a point of law, which ought to have been brought by way of a cross appeal.
He relied on the following:
Okereke v. James (2012) 16 NWLR (Pt.1326) 339; Akeredolu v. Mimiko (2014) 1 NWLR (Pt.1388) 402; and Baker Marina Contractors Inc v. Danos and Curole Marina Contractors Inc (2001) 7 NWLR (Pt.712) 337 at 350 paras G-H.
Learned counsel also argued that the appellate jurisdiction is limited to decisions of the trial Court and where a point is argued but not decided by a lower Court, the hands of this Court is tied in respect of such point.
He cited the case of Chief PU Ejowhomu v. Edok-Etek Mandilas Limited (1986) 5 NWLR (Pt.39).
RESOLUTION
There is no doubt that a Preliminary Objection is a veritable means of truncating the full hearing of a matter on grounds of law, which operate to the effect that the matter ought not be heard by the particular Court in question. The Supreme Court in the case of EFET v. INEC & ORS (2011) LPELR-8109(SC)(Pp.20-21, Paras F-B)per
Muhammad, J.S.C., held thus:
“The aim/essence of a preliminary objection is to terminate at infancy, or as it were, to nip it at the bud, without dissipating unnecessary energies in considering an unworthy or fruitless matter in a Court’s proceedings. It, in other words, forecloses hearing of the matter in order to save time. See: YARO V. AREWA CONSTRUCTION LTD. & ORS. [2007] 6 SCNJ 418. The fulcrum of the objection against this appeal is that it would amount to futility as the bottom of the subject matter at the trial Court, that is, the reliefs sought for, exist no more, having been withdrawn and same struck out by the trial Court, has been knocked off.” See:IHEDIOHA v. OKOROCHA (2015) LPELR-25645(CA); and UNITY BANK PLC v. OLATUNJI (2013) LPELR-20305(CA).
Appellants counsel has argued strenuously why Respondents objection should not be entertained, hence the question that must first be answered is whether the preliminary objection is competent.
Order 10 of the Court of Appeal Rules 2016, governs preliminary objections and did not limit the scope of its application. It merely gives a condition of 3 clear days notice, so as not to catch the Appellant by surprise. Over time, the Courts have identified matters which may not be brought by way of preliminary objection, which are mainly matters that are not weighty enough to affect the appeal as a whole.
This is what the Supreme Court was driving at in the case of KENTE v. ISHAKU & ORS (2017) LPELR-42077(SC)(P. 19, Paras. C-F) per KEKERE-EKUN, J.S.C.
“Where a preliminary objection is raised to the hearing of an appeal, the purpose is to truncate the hearing of the appeal in limine. In other words the challenge must be so fundamental as to affect the competence of the entire appeal. Where the objection will not fully dispose of the appeal, a preliminary objection is not the proper approach. Where there are valid grounds that can sustain the appeal what the respondent should do is to file a motion seeking to strike out the incompetent grounds of appeal. See: Odunukwe Vs Ofomata (2010) 18 NWLR (pt. 1225), 404; N.D.I.C. Vs Oranu (2001) 18 NWLR (pt. 744) 183; Dada Vs Dosunmu (2006) 18 NWLR (Pt. 1010) 134.”
There is no doubt that the matter which the Respondents have brought by means of preliminary objection is one that may be brought by such process, as it is a matter that dwells on jurisdiction. It is trite law that jurisdiction is a matter that may be brought at any stage and constitutes a valid ground for a preliminary objection.
See: KENSAL FARMS LIMITED & ANOR. v. NIGERCAT CONSTRUCTION COMPANY (2013) LPELR-20162(CA).
The question that must therefore be answered is whether the matter is indeed statute barred. Section 16 of the Limitation law of Lagos State, indeed limits the period within which an action concerning declaration of title to land may be brought to 12 years. I agree with the Respondents Counsel that the cause of action incontrovertibly arose in the year 1988 when the Respondents predecessor in title expressly denied any form of tenancy or otherwise to the Appellants. The case was brought before the lower Court in 2005, a period of 17 years from the time the cause of action arose. This means that the action is statute barred and any proceedings conducted thereon is a nullity.
See:A.G. OF ADAMAWA STATE & ORS v. A.G. OF THE FEDERATION (2014) LPELR-23221(SC); OBIKA v. OBIKA (2018) LPELR-43965(CA); and BAKARI v. COLLEGE OF EDUCATION HONG & ANOR (2017) LPELR-43634(CA).
In the circumstances I find merit in the Preliminary Objection, uphold same and dismiss the action instituted by the Appellants in the lower Court for lack of jurisdiction.
The consequence of my ruling above ought to mark the end of this judgment, but being mindful of the fact that this is an intermediate Court, whose decision is subject to review I will proceed to determine the substantive issues.
ISSUE TWO:
WHETHER THE APPELLANTS DISCHARGED THE BURDEN OF PROOF REQUIRED OF THEM BY LAW TO ENTITLE THEM TO A DECLARATION OF TITLE TO THE LAND IN DISPUTE.
Learned counsel for the Appellants argued that the issue of identity of the land in dispute did not arise at trial, and that it was wrong for the trial Court to raise the issue, as both parties were in agreement with regards to the identity of the land, with ownership of the property being what was in contention. He further argued that the foregoing is made clear by several instances in the Respondents pleadings wherein the Respondents referred to the land as the property in dispute and the fact that both parties agreed on certain features of the land, such as the presence of a mud house on same.
He relied on Section 123 of the Evidence Act 2011; Maigari v. Mailafiya (2011) 1 NWLR (Pt.1228) 379; Bunge v. Governor of River State (2006) 12 NWLR (Pt.995) 573 at 599-600 paras H-A; and Alechenu v. Oshoke (2002) 9 NWLR (Pt.773) at 521.
Learned counsel also argued that the mere fact that the Appellants described the property in dispute as 2 Desalu Compound, Ebute-Metta, Lagos State, whereas the Respondents described same as 3-5 Abule ??l?? Road, ??b??t?? Metta, does not mean that the parties had joined issues as to the identity of the land.
Learned counsel then submitted that in light of the above, it was wrong for the trial Court to dismiss the claim of the Appellants solely on the grounds of non identification, and that if the Court had properly evaluated the evidence, it would have found in favour of the Appellants who tendered a Deed of Conveyance dated 22nd November, 1917 and registered as No. 96 page 322 Volume 119.
On other hand, learned counsel for the Respondents argued that the Appellants failed to prove their title to the land in dispute, in a manner that would entitle them to a declaration of title thereto.
He relied on the cases of Idundun v. Okumagba (1976) 9 & 10 SC 227 at 245; Adelumo v. Oganla (2008) 39 WRN pg 89 at 96 lines 30-45; and Nwokidu v. Okanu (2010) 26 WRN pg. 23.
Learned counsel also argued that Appellants failure to place before the trial Court evidence that clearly identifies the land in dispute, a condition precedent for proof of title, whose only exception is admission by the Defendant, is not present in this appeal, as the Respondents denied the fact that the property in dispute is situate at 2 Desalu Compound, Ebutte Meta, Lagos as claimed by the Appellants, but stated both in their Statement of Defence and during cross examination of their Witness that the property is situate at 3-5 Abule-Nla Road, Ebute Metta, Lagos.
He relied on Nwokorobia v. Nwogu (2009) 50 WRN pg. 1; Ekpemupolo v. Edremoda (2009) 32 WRN pg.1; Aremu v. Adetoro (supra).
In the reply brief, learned counsel for the Appellants made the following submissions:
1. The Respondents never raised the issue of identity at trial;
2. The fact that the Respondents are Counterclaimants shows the dispute is about the same land.
3. Pleadings show that both parties are referring to the same land, with distinctive features such as the AHA tree and mud house.
4. The trial Court did not evaluate Appellants evidence but hinged its decision on the alleged failure of the Appellants to identify the land.
5. It is settled law that where the identity of land is in dispute, the Defendant must raise the issue in the Statement of Defence.
6. The decision of the Supreme Court in Nwokidu v. Okan (supra) relied upon by the Respondents actually forms the basis of the Appellants arguments.
He relied on the cases of Ojo v. Azama (2001) 4 NWLR (Pt.702) 57 at 68; Aromire v. Awoyemi (1972) NSCC 113 at 121; and Ilona v. Idakwo (2003) 11 NWLR (Pt.830) 53 at 85.
RESOLUTION
The general principle of law with regards to establishing the identity of land claimed in an action for declaration of title to land is that the identity of land must be clearly and unambiguously established before the Court may grant a declaration or injunction in relation to the land in dispute.
The above principle of law was expounded by the Supreme Court in the case of OKONKWO & ORS. V. OKONKWO & ORS. (2010) LPELR-9357(SC) (P. 36, paras. F-G), where per Adekeye JSC, it held thus:
“In a claim for ownership of land, the plaintiff must prove the identity of a disputed land failing which his claim must collapse. The issue of identity of a disputed land must be ascertained with certainty. Dike v. Okoloedo (1999) 10 NWLR pt. 623 pg. 359, Ogun v. Akinyelu (2004) 18 NWLR pt. 905 pg. 362. Eleh v. Anyadike (1999) 5 NWLR pt. 603 pg. 454.”
See: GARBA & ORS v. CHIBIRI & ORS (2013) LPELR-22614(CA).
As rightly argued by Appellants counsel, there is no need to establish the identity of a land or property in dispute where both parties have knowledge of the land which is being disputed and have not put the identity of the land in issue. It is also a settled principle of law that the only way for the identity of the land to be in issue is where the Defendant expressly denies the identity of the land as claimed by the claimant or gives a contradictory description of same.
In line with the above principles, the Apex Court in the case of ANYANWU & ORS. V. UZOWUAKA & ORS. (2009) LPELR-515(SC)(Pp. 34-35, paras. E-C) per Tabai JSC, held thus:
“In NWOBODO EZEUDU & ORS v ISAAC OBIAGWU (1986) 2 NWLR (Part 21) 208 at 220 this Court, Per Oputa JSC, spoke of the circumstances when an issue of identity of land can appropriately be said to be raised. The Court said: “The identity of land in dispute will be in issue, if, and only if, the Defendants in their Statement of Defence made it one – that is if they disputed specifically either the area or the size or the location or the features shown on the Plaintiffs’ plan. When such is the case then the identity of the land becomes an issue. We have in our Courts almost tacitly accepted that it is a ritual in land cases for the Plaintiff to prove the features on the boundary and call all boundary men before it can be held that he has established the identity of the land in dispute. This erroneous belief accounts for a good deal of delays in land cases. The onus on the Plaintiff is an onus to prove an issue. Where therefore the identity of the land is not an issue, there, I will make bold to say that the mere production of the Plaintiffs’ plan is enough to establish the identity of the land. In fact in such cases the plan can and should be tendered by consent.”
See: PADA v. GALADIMA & ANOR (2017) LPELR-42761(SC); ADEKUNLE v. IBRU (2018) LPELR-44119(CA); and WULGO v. KATIYA (2018) LPELR-44084(CA).
A calm look at the pleadings of the parties to this appeal at the trial Court reveals that the Respondents indeed put the identity of the land in issue, by first describing it by a different address and also stating that the Appellants were not owners of their land, but a neighbouring land. Thus location was in dispute.
The findings of the trial Court with regards to the issue of identity is found at page 108 of the records and same is herein reproduced thus:
42. The Defendants aver that the said Mr. Salami Alabi occupied a distinct and separate property next to the property in dispute and acknowledged the ownership of the property in dispute by the Defendants aforesaid predecessors in title.
In her witness disposition DW1 testified thus:
The property in dispute is situate at 3-5 Abule Nla Road, Ebute-Metta Lagos. I know the Defendants are neighbours thereat
In their reply to the Statement of Defence and Defence to Counter-claim though no evidence was led in proof thereof, the Claimant averred thus:
The Claimants aver further that number 3/5 Abule Nla Road is at the beginning of the street, a long way from the property in dispute
Clearly, the identity of the land in dispute is in issue. The parties are not ad idem on the identity of the land in dispute, the burden was therefore on the Claimants claiming title, to prove the identity of the land.
I agree with the above findings of the trial Court. If the Appellants believe that they are the owners of No. 2 Desalu compound, Ebute Metta, Lagos, they ought to have placed before the Court, cogent evidence showing their entitlement to same.
This issue is consequently resolved in favour of the Respondents.
ISSUE THREE:
WHETHER THE RESPONDENTS PROVED THEIR COUNTER-CLAIM IN THE LOWER COURT TO ENTITLE THE 1ST RESPONDENT TO A DECLARATION OF TITLE TO THE LAND IN DISPUTE.
Learned counsel for the Appellants argued that the learned trial Judge ought to have dismissed the Respondents counterclaim upon her finding that the 1925 conveyance, which is the Respondents root of title has no probative value.
Learned counsel also argued that it was wrong for the trial Court to grant the counterclaims of the Respondents based on a survey plan attached to the Certificate of Occupancy presented by the Respondents, as a survey plan cannot convey a valid root of title.
He relied on the cases of Buhari v. INEC (2008) 18 NWLR (Pt.1120) 246 at 414 paras G-H; Echenim Ofume v. Isaac Ngbeke (1994) 4 NWLR (Pt.341) 746; Nnadozie v. Omesu (1996) 5 NWLR (Pt.446) 126 paras C-D; and Idundun v. Okumagba (1976) 10 NSCC 445 at 453.
He submitted that the declaration of title in favour of the Respondents by the trial Court was wrong, as the learned trial Judge failed to make any finding on the title of the Respondents, but chiefly based its decision on the fact that the Appellants did not controvert the counterclaim of the Respondents, a fact which will not ordinarily or automatically grant the Respondents title to the land, as a claim for declaration succeeds or fails on its own.
He cited the cases of Gbadamosi v. Tolani (2011) 5 NWLR (Pt.1240) 352 at 369-370 paras H-A; Ogbonna v. AG Imo State (1992) 1 NWLR (Pt.220) 647 at 698 para. E; Dim v. Enemuo (2009) 10 NWLR (Pt.1149); Nelsger v. Department of Health and Social Welfare (1973) 3 AER 444 at 457; and Adu v. Gbadamosi (2009) 6 NWLR (Pt.1136) 110 at 127 paras H-A.
On the other hand, learned counsel for the Respondents argued that the Respondents led sufficient evidence to entitle them to a declaration of title, including a purchase receipt (Exhibit A) issued to Respondents 1st Predecessor in title in 17th January, 1925; a Certificate of Occupancy (Exhibit B 6) issued in favour of the 1st Respondent on 2nd June, 1993; Bundle of Rent Receipts (Exhibit B 2) issued by the Respondents to their Tenants over several decades in respect of the property; and several Demand Notices issued to the Respondents by Lagos Town Council in respect of the land.
Learned counsel also argued that the learned trial Judge rightly stated the effect of a Certificate of Occupancy on a claim of title to land and properly applied same to the case at trial.
RESOLUTION
The means of proving title to land in Nigeria are well settled. The Supreme Court restated the extant principle of law with regards to the methods via which ownership of land may be proven in the case of AJIBULU v. AJAYI (2013) LPELR-21860(SC) (Pp. 21-22, paras. D-B) per Ogunbiyi JSC, thus:
“It is well settled in our legal system that proof of title must be established through one of the five ways as laid down in the case of Idundun Vs. Okumagba (1976) 9 – 10 SC.223 which are as follows:- (1) By traditional history or evidence or; (2) By documents of title; (3) By various acts of ownership, numerous and positive and extending over a length of time as to warrant the inference of ownership or (4) By acts of long enjoyment and possession of the land and; (5) By proof of possession of adjacent land in circumstances which renders it probable that the owner of such adjacent land would in addition be the owner of the land in dispute. The burden placed on the plaintiff is to prove at least one of the five ways and not conjunctively. The same principle was also applied in the cases of Mogaji v. Cadbury Ltd. (1985) 2 NWLR (Pt.7) p.373, Alli v. Alesinloye (2000) 6 NWLR (pt.40) p.117, Olohunde v. Adeyoju (2000) 10 NWLR (Pt.676) p, 562 and Adesanya v. Aderonmu (2000) 9 NWLR (Pt.672) 370.” Per OGUNBIYI, J.S.C. (Pp. 21-22, paras. D-B). See:OKORIEOCHA & ANOR v. EMERENI & ORS (2016) LPELR-40043(CA); and OGUNNIYI & ORS v. ADEYEMI (2018) LPELR-44406(CA).
Appellants counsel has attacked the decision of the lower Court granting declaration of title in favour of the Respondents primarily on the grounds that the trial Court granted said declaration because of Appellants failure to bring a defence. A look at the records reveal that this is not the case. What happened is that the trial Judge, after guiding himself with the correct principles of law with regards to proof of title, found that in the circumstances of the case at trial, the certificate of occupancy sufficed to established the Respondents as the owners of the land properly identified and described therein, as it raised a prima facie case in their favour, which was not displaced.
The law with regards to certificate of occupancy is not that it cannot back a claim for declaration of ownership, it is that it would back such claim unless a better title is shown by the opposing party.
The Supreme Court recently restated this principle in the case of KOLO v. LAWAN (2018) LPELR-44378(SC)(Pp. 17-28, Paras. D-F), thus:
“In reviewing the evidence adduced by both parties, in particular, the appellant who had the burden to prove that he is entitled to the declaration of title of the land in dispute as he sought, the trial Court found that the appellant was relying on Exhibits A, B and C to prove his title to the land in dispute. Exhibit C is the Certificate of Occupancy issued by the Government of Borno State. The trial Court had found and rightly too, that a Certificate of Occupancy is only a prima facie evidence of title. And that it is a presumption of title which could be rebutted by a better title established by another person claiming the land.
See: WHITE DIAMONDS PROPERTY DEVELOPMENT CO. LTD v. TRADE WHEELS LTD (2018) LPELR-44572(CA); and SALIHU v. GINDAS(2018) LPELR-44006(CA).
The Appellants failed to show a better title to the property situate at No3-5 Abule Nla Ebutte Metta and as such, the lower Courts decision granting ownership of the land to the Respondents on the basis of a certificate of occupancy is sound and unassailable.
This issue is consequently resolved in favour of the Respondents.
In summation the Appeal fails and is dismissed. The Appellants case in the lower Court is hereby dismissed for being statute barred.
I make no order as to costs.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgment written by my learned brother Jamilu Yammama Tukur, J C A, in this appeal, I agree with him that the appeal on the basis of the preliminary objection that the Appellants’ action was statute barred and on the merit of the issues canvassed, is doomed and bound to fail. Admittedly, the Appellant’s action in respect of the land in question was instituted in 2005 when the cause of action by way of denial of ownership, happened and arose in 1988. The provisions of 16(2)(a) of the Limitation Law of Lagos State, prescribed that actions for recovery of land in the state shall be commenced or initiated within twelve (12) years from the date the cause of action arose, otherwise it shall not be brought. The provisions therefore provided a limited period of time within which such actions could be taken before a Court of law and when they are not taken within such time, the right to do so becomes extinguished by operation of the law for being statute barred.
The time started to run for the purpose of limitation period, from the date the cause of action arose and the right to sue accrued to a party and once the prescribed period of time for the commencement of the action expires before it was taken, it automatically becomes statute barred by the provisions of the relevant limitation law/statute. A. G. Rivers State v. A.G.Bayelsa State (2013) 3 NWLR (1340) 123; Yare v. N.S.W. & I.C (2013) 12 NWLR (1367) 173; Adejumo v. Olawaiye (2014) 12 NWLR (1421) 252, Ibrahim v. Lawal (2015) 17 NWLR (1489) 490.
Undoubtedly, the Appellants’ action was statute barred since it was commenced after the expiration of the period of twelve (12) years stipulated by the limitation law within which it could have validly been brought.
On the merit, the proof required for declaration of title to land is on the balance of probabilities or preponderance of evidence and the Appellants did not effectively challenge and discredit the Certificate of Occupancy put in evidence by the Respondents in proof of their counter claim. The evidence was sufficient to warrant the grant of the counter claim by the High Court. See Section 134 of the Evidence Act 2011 and Adewuyi v. Odukwe (2000) NWLR (654) 616 Jija v. Shande (2005) 9 NWLR (931) 543: Omiyale V. Macaulay (2009) 7 NWLR (1141) 599
For the above and the reasons set out in the lead judgement, I join in dismissing the appeal in the terms set out therein.
JOSEPH SHAGBAOR IKYEGH. J.C.A.: I agree with the lucid judgment prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., which I had the honour of reading in advance.
Appearances:
S.O. AgbesusiFor Appellant(s)
Segun Fowowe with him, S.R. AliyoFor Respondent(s)
