MR. MUFUTAU ADELAKUN v. MRS. TAWAKALITU AKINBAYO & ORS (2015)

MR. MUFUTAU ADELAKUN v. MRS. TAWAKALITU AKINBAYO & ORS

(2015)LCN/7884(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 3rd day of June, 2015

CA/L/71M/2013

RATIO

APPEAL: GROUNDS OF APPEAL; IDENTIFYING GROUNDS OF APPEAL

Both counsel have cited cases on how to identify the grounds which has been helping wherein it is trite that on grounds of mixed law & facts or facts where the appellant failed to seek leave to appeal, the court lacks jurisdiction to entertain an appeal. See AJIBODE & ORS v PEDRO & Anr (1992) NWLR (PT. 241) 257; TILBURY CONST. COM LTD & ANOR v OGUNIYI (1988) NWLR (PT. 74) 64; OJOME v MOMEDU (111) 1983 3 SC 173; EVISI v IDIKA (1987) 4 NWLR (PT. 803) 511. In AGBAMU v D.K. OFILLI (2004) 5 NWLR (PT. 867) 540 the court held that: “Complaints of error emanating from the conclusion on undisputed fact are a ground of law. However, if the error complained of is founded on disputed facts and by the complaint, the correctness of the ascertained facts is being challenged the ground is of mixed facts and law.”See OJUKWU v. KANE (2000) 15 NWLR (PT. 691) 516; EZEDI v. ABOY (2000) 9 NWLR (PT. 672) 23; OGLECHI & ORS v. ONACHIE & ORS. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES:

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

MR. MUFUTAU ADELAKUN – Appellant(s)

AND

1. MRS. TAWAKALITU AKINBAYO
2. MR. SANYA GEORGE
3. MR. OWEN ADEBOWALE WILLIAMS (DECEASED)
(For themselves and on Behalf of Charles Williams’ Family)
4. URBAN RENEWAL AUTHORITY
5. SCOT BABATUNDE WILLIAMS
6. OWEN ADEBOWALE OLUMIDE WILLAMS
7. NATHANIEL ADESEYE IGE GRILLO
8. TAIYE MOGAJI
9. DISU MOGAJI – Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): The Appellant filed an appeal against the judgment of A. M. Nicol-Clay, J. delivered on 19th January, 2012 dismissing the Appellants motion on notice dated 7/9/2011 challenging the jurisdiction of the trial court on the ground that 1st -3rd Respondents suit is statute barred.

The Summary of the facts of this case is that Appellant’s motion dated and filed on 7/9/2011 for the following reliefs:
1. An order of the high court dismissing the claimant’s suit on the ground that they became statute barred.

Grounds
(i) The claimant’s suit has been caught up by the provision of Section 16(1)(a) and 21 of the Limitation Law of Lagos State 2003.

Same was supported by an affidavit of 13 paragraphs and attached for exhibits the proof together with a written address. The Respondents filed a counter affidavit of 28 paragraphs in response together with (2) exhibits wherein after arguments, the court dismissed the motion. The Appellant being dissatisfied with the same filed a Notice of Appeal dated and filed 2nd February 2012 on a sole ground.

The Appellant filed a brief of argument dated 31st October, 2014 and filed on same day; it was settled by E.A. Oyebanji, David Dansiole, Yusuf O. Oladeju all of Messrs Ade Oyedeji & Co. while the 1st -3rd Respondents filed a Notice of Preliminary Objection dated and filed on 16/5/2013 and a brief of argument dated and filed on 19/12/14 but deemed 3/3/15 settled by Oniyide Oluwaseun Esq., of M.A. Toyin Keshinro & Associates.

The Appellant filed a reply brief dated and filed on 27/2/15 but deemed 3/3/15 wherein he responded to the preliminary objection therein on paragraph 1.0-3.0. The Appellant settled an issue for determination thus:
“Whether by virtue of Section 16(2)(a) and Section 21 of the Limitation Laws of Lagos State 2003 and in the light of Government Notice No. 347 Gazette No. 13 Vol. 38 of 15/3/1998 by which Lagos State Government acquired landed properties in the central of Lagos including the property at 35 Ereko Street Lagos in 1951, the 1st -3rd Respondents action in suit No CD/895/2009 was not caught up in statute of limitation from Ground I of Notice of Appeal.”

The Respondent also formulated a sole issue thus:
“Whether the claim of the Claimants/Respondents is statute barred as alleged by the Appellant.”

The two issues for determination are in my view the same; I shall adopt the sole issue of the Appellant in that it is more specific. Before I resolve the issue in this Appeal, I must resolve the preliminary objection raised by the Respondent as it borders on jurisdiction of the court to entertain the subject matter.

The Respondent filed a Notice of Preliminary Objection and also raised same in its respondent’s brief wherein he contended that the Appellants Notice of Appeal of 2/2/12 is incompetent that it is against Section 14(1) & (2) of the Court of Appeal Act, 2004 as amended on the grounds that the Appellant failed to seek leave of Court of Appeal in respect of the interlocutory ruling dated 7/4/11 and that the said Notice of Appeal is a flagrant violation of the provisions of Section 14(1)& (2) of the Court of Appeal Act, 2004.

On the sole issue for determination:- “Is there a competent Notice of Appeal on which the Appeal can be anchored upon”, the Respondent submitted that the Appeal is not competent and cannot be anchored upon for, the interlocutory appeal which was filed without leave of court.

He referred to Section 14(1) & (2) of Court of Appeal Act 2004, as amended and Section 241(1)(b) of 1999 Constitution (as amended) that appeal, shall lie from decision of a High Court to the Court of Appeal as of right if the ground of appeal is based on a question of law i.e. in criminal or civil trial proceeding. However other appeals not specifically mentioned therein by virtue of Section 242 of the Constitution shall be with leave of the Lower Court or Court of Appeal.

He contended that the sole ground of Appeal is on mixed law and facts and thus leave of court is mandatory, that this is not a final decision. He referred to PAUL NWADIKE & ORS v. C. IBEKWE & ORS (2004) 24 WRN 32 @ 32; OKOYE v. THE CHIEF LANDS OFFICER OF RIVERS OF NIGERIA & ORS (2005) 43 WRN 1 @ 5; FAMUYIWA v. PRINCE ABIODUN ADEREMI ADEFETUNTI & ORS (2005) 45-68 @ 74.

In reply, the Appellant counsel objected to the Notice of Preliminary Objection and formulated an issue thereon:
“Whether the grounds of Appeal contained in the Notice of Appeal dated 2nd February 2012 contain grounds of fact and/or mixed law and fact which requires the Appellant to seek leave before filing same”

Appellant submitted that the Preliminary objection is ill-conceived in law, incompetent and a deliberate attempt to mislead the court and should be dismissed.

He referred to Section 241(1)b of the Constitution that the grounds of appeal are competent because:
(i) The two grounds of appeal in this case involve the questions of law alone.
(ii) The decision appealed against is a decision in a civil proceedings and that they can appeal as of right where the ground of appeal involve question of law alone, and it becomes immaterial that the decision is an interlocutory one.

Appellant submitted that the ground of appeal is one of law alone and that he referred to critical distinction as set out in case of Dr. ABDULLAHI BABA ABDUL v. CPC (2013) 5 -7 MJSC (PT. 11) at 27-29; NJEMANZE V NJEMANZE (2013) 2 -3 MJSC (PT 11) 30 @ 46-49. And that the case of the Appellant is in first criteria which is the situation when upon examination of grounds of appeal to see whether they reveal a misunderstanding by the Lower Court of the law or misapplication of the law to the facts already proved evaluated. While secondly it is a situation where a ground complains of misunderstanding by the Lower Court of the laws or misapplication of the law to the facts already proved or admitted, it is a ground of law.

That the grounds of Appeal clearly reveals a misunderstanding by the Lower Court of Section 16(2)(a) and 21 of Limitation Law of Lagos State and/or a misapplication of the provision of Section 241(1)b of the Constitution to the 1st -3rd Respondents’ suit when the court held that it is not statute barred.

That ground 1 has nothing to do with evaluation or assessment of facts and evidence by trial court as no such evaluation of evidence or assessment of facts before the court was done by the trial court leading to the decision of the trial court.

That the error of law complained about in ground 1 of the Appellants Notice of Appeal is further manifested in the failure of the trial court to interpret and/or consider the provisions of Section 16(2)(a) of Limitation Law of Lagos State in the light of the acquisition by the Lagos State of the landed properties in the area of Lagos including the property at 35 Ereko Street Lagos, the subject matter of the suit.

The Preliminary Objection against the ground of appeal is reproduced hereunder:
“(1) The learned trial judge erred in law when he held that the respondent’s suit is not caught by the statute of limitation.
Particulars
(i) By virtue of section 16(1) (a) and section 21 of Limitation Law of Lagos State 2003 any action relating to land must be commenced within a period of 12 years.
(ii) By virtue of Government Notice No. 374 Gazette No 13 Vol. 38 of 1st March 1951 and extra ordinary Gazette No 15 Vol. 8 of 21 April 1975, the property in dispute was acquired by the Lagos State Government thereby diversify the respondents of any title therein
(iii) By virtue of the acquisition Notice gazetted by the Lagos State Government over the disputed property, the Lower Court lacked the jurisdiction to entertain the suit of the Respondents same having been caught by the limitation law.”

I shall dwell on the issue for determination formulated by the 1st -3rd Respondents –
“is there a competent notice of appeal on which the Appeal can be anchored upon?”

Section 14(1) & (2) of Court of Appeal Act 2004 (as amended) provides that:
“1. Where in the exercise by the High Court of Lagos State or as the case may be the Federal High Court of its original jurisdiction an interlocutory order or decision is made in the course of any suit or matter, an appeal shall be by leave of that court or of the Court of Appeal lie to the court of Appeal but no appeal shall lie from order made ex parte, or by consent of the parties or relations only to costs.
2. Nothing in subsection (1) of this section shall be construed so as to authorise an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.”

While Sections 241(1)(b) and Section 242 of the 1999 Constitution envisage that appeal shall be to the Court of Appeal as of right if the grounds is based on a question of law, while it is not in dispute that the appeal is on interlocutory appeal from the decision of the High Court.

The point of disagreement is whether the sole ground is a ground of law, facts or mixed facts.

In AGBAMU v D.K. OFILLI (2004) 5 NWLR (PT. 867) 540 the court held that:
“Complaints of error emanating from the conclusion on undisputed fact are a ground of law. However, if the error complained of is founded on disputed facts and by the complaint, the correctness of the ascertained facts is being challenged the ground is of mixed facts and law.”
See OJUKWU v. KANE (2000) 15 NWLR (PT. 691) 516; EZEDI v. ABOY (2000) 9 NWLR (PT. 672) 23; OGLECHI & ORS v. ONACHIE & ORS

It is pertinent to state that the matter had just scaled pre-trial conference stage when the motion challenging jurisdiction was filed, evidence had not also been adduced. However, I shall reproduce the statement of claim, reliefs and relevant paragraphs of the supporting affidavit and counter affidavit for better understanding.

The claims contained in the Statement of Claim are as follows:
“WHEREOF the claimants’ claims are as follows:-
(1) A DECLARATION that all that piece or parcel of land known and styled 35 Ereko Street and 6 and 8 Obun Eko Street, Lagos covered by Title Deed No. LO2822 registered at the Lagos State Land Registry belongs to Charles Williams Family
(2) A DECLARATION that the Title Deed No. LO2822 issued in favour of Charles Williams and registered in the Land Registry of Lagos State is valid and subsisting.
(3) AN AWARD of N2,000,000 (Two Million Naira) as general damages against the Defendant for trespass committed by the Defendant on the landed property.
(4) A PERPETUAL INJUNCTION restraining the Defendant, whether by itself, its Servants, Agents, Privies and/or anybody whatsoever acting for or on its behalf from further and continued trespass on the property in dispute.”

AFFIDAVIT
“9. That the Claimant herein instituted an action against the 1st Defendant (Urban Renewal Authority) challenging the acquisition and claiming ownership of the property at 33 Ereko Street, Lagos by a Writ of Summons and Statement of Claim filed on the 4th day of June, 2009. A copy of the Claimants Writ of Summons with Statement of Claim is hereby attached and marked as exhibit “EA7″.
10. That I am aware that the law stipulates a period of 12 years to an aggrieved person for challenging such act as the acquisition of property by the State authority.
11. That the acquisition of the property at 33 Ereko Street, Lagos was carried out in 1951 and further gazette in 1975 and the Claimant’s suit was instituted about 58 years after the government acquisition was carried out.
12. That the 2nd Defendant herein as Applicant have been granted authority to redevelop the property, subject matter of this suit, after due confirmation of the acquisition of the property by the Lagos State Urban Renewal Authority”.

COUNTER AFFIDAVIT
“17. That in further response to paragraph 10, Urban Renewal gave us clearance in 2006 and Lagos State Development and Property Corporation in its letter dated 29th March, 2010 also gave us approval that the land is not acquired.
18. That we also rely on our documents i.e. Lagos State of Nigeria Official Gazette extra-ordinary No. 6 of 7th February, 1983 part B which enumerated properties acquired by Lagos State Government and the property in dispute is not included, the said document is also in well of the court in our motion dated the 3rd day of August, 2011”.

Following the guidelines so stated in the precedents cited above; the particulars in a ground explains the very nature of complaints, especially particulars II & III, it is trite that facts as contained in the statement of claim must be evaluated to see if indeed that period of 12 years has elapsed, also whether indeed there is dispute as to whether the notice and gazette of divested the Respondent of any title or the approval issued to the Appellant -specifically in the property in dispute, the claims will be seen together with affidavit evidence filed in support of the preliminary objection at the Lower Court.

It calls for evaluation of facts which are disputed before the application of the notice/ground of appeal in the appeal, especially as the learned trial judge found “….there is no clear evidence to the fact that the property was acquired”. Therefore it would certainly involve evaluations of what was “unclear”.

Finally if both facts are undisputed, then the law applies. In all of this, when examining the grounds of appeal it is not the designation “error in law” that determines whether it is law, mixed law or facts, but the essence of the ground; it is the reality of the complaint evaluated in that name that determines what the particular ground involves. See ABIDOYE v. AKOREDE (2001) 6 NWLR (PT. 709) 463; NEPA v. EZE (2001) 3 NWLR (PT. 701) 606; EZEOBI v. ABANG (2000) 15 NWLR (PT. 691) 516.

From the Statement of claim, affidavit and counter affidavit, it is clear that there are only disputed facts of whether the property in dispute was acquired or not or acquired and later released (though not requiring evidence at this stage), it calls for questioning the evaluation of facts by the Lower Court before application of the law in which case it would amount to a question of mixed law and facts. After all, the statement of claim determines whether an action is statue barred.

In cases of grounds of appeal which are of mixed law and facts require leave of court mandatorily. In this case, it is not in dispute that the Appellant did not obtain leave from the Lower Court; seeking and obtaining leave to appeal is a constitutional request which is provided therefore failure to obtain one makes the ground of appeal incompetent since it is the sole ground of appeal, it therefore leaves the appeal no ground to anchor on. It is incompetent and hereby struck out. See AKWIKWU MOTORS & ORS v. SANGONUGA (1984) 5 SC 184 @ 186.

The appeal having no leg to stand, the Court of Appeal lacks jurisdiction to entertain such an appeal.

Preliminary Objection succeeds and is upheld. Appeal is struck out.

Cost of N50,000.00 (Fifty Thousand Naira Only) to Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in print the judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A., in which I concur with nothing useful to add.

CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A. O. OBASEKI-ADEJUMO JCA. I agree with his Lordship’s reasoning and conclusions. I abide by the consequential orders including the orders as to costs.

Appearances

E.A. Oyebanji with S.C. Eznibe For Appellant

AND

Oluwaseun Onyide for 1st -3rd Respondents For Respondent