OTERI HOLDINGS LTD v. OLUWA & ORS
(2020) LCN/4949(SC)
In The Supreme Court
On Friday, December 18, 2020
SC.636/2015
Before Our Lordships:
Olabode Rhodes-Vivour Justice of the Supreme Court of Nigeria
Musa Dattijo Muhammad Justice of the Supreme Court of Nigeria
Kudirat Motonmori Olatokunbo Kekere-Ekun Justice of the Supreme Court of Nigeria
Amina Adamu Augie Justice of the Supreme Court of Nigeria
Ejembi Eko Justice of the Supreme Court of Nigeria
Between
OTERI HOLDINGS LTD APPELANT(S)
And
- CHIEF MUKAILA KOLAWOLE OLUWA 2. DR. AKEEM OSENI 3. MR. JAIYE OLUWA 4. ALHAJI IMAM ISHOLA AKAPO 5. ENGR. WAHEED BAKARE OLUWA 6. CHIEF NASIRU OLUWA 7. PRINCE BABAJIDE SUMONU 8. MR. ABIODUN TIJANI OLUWA 9. MR. S. SALISU OLUWA 10. ALHAJI AKEEM OTOTO 11. DR. MONDIU BABATUNDE SARUMI (For Themselves And On Behalf Of The Oluwa Chieftaincy Family Of Lagos And Apapa) RESPONDENT(S)
RATIO
WHETHER OR NOT ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL
It is trite that Issues for Determination formulated in a Brief must arise out of and be related to the Grounds of Appeal relied upon in support of the Appeal and any Issue not encompassed by nor relating to the Ground(s) must be struck out.
An issue for determination does not exist independently. It derives its legitimacy from a ground of appeal, and without the concrete support of the ground of appeal, the issue for determination collapses completely and must be struck out or ignored – see Agbaka V. Amadi (1998) 11 NWLR (Pt 572) 16 and WAEC V. Adeyanju (2008) 9 NWLR (Pt 1092) 270, wherein Mohammed, JSC (as he then was) said:
An appellate Court can only decide an appeal on issues raised on the grounds of appeal filed – – In this respect, any argument in the brief of argument in support of such issues not arising from the grounds of appeal, will be discountenanced by the Court in the determination of the appeal as stated in Momodu V. Momoh (1991) 1 NWLR (Pt. 169) 620 – 621.
In Momodu V. Momoh (supra), Uwais, JSC (as he then was), stated as follows:
Issues for determination formulated in a Brief must be based on the ground or grounds of appeal filed by the Parties – – If they are not related to any ground of appeal, then they become irrelevant and go to no issue. Any argument in the brief in support of such issues will be discountenanced by the Court.
In this case, it goes without saying that the Respondents’ Issue 1 formulated from their Preliminary Objection is incompetent and the arguments in their Brief related to the said Issue 1 go to no issue, and they will be discountenanced by this Court. PER AUGIE,J.S.C.
DISTINGUISHING A GROUND OF FACT OR MIXED LAW AND FACT FROM A GROUND OF LAW
Admittedly, it is not easy to distinguish a ground of fact or mixed law and fact from a ground of law, which can sustain an appeal, without leave. But it is settled that where a ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, it would be a question of law; where it requires questioning the evaluation of facts before the application of the law, it would amount to a question of mixed law and fact – see Ononuju V. AG Anambra State (2009) 10 NWLR (Pt 1148) 182, Ogbechie V. Onochie (1986) 1 NWLR (Pt. 23) 484, and Metal Const. (W.A.) Ltd. v. D. A. Migliore & Ors (supra), wherein Obaseki, JSC, made the distinction clear thus Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. – – – Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding. PER AUGIE,J.S.C.
AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The land dispute that led to this Appeal calls into question the dichotomy between Nigerian Customary Law and the received English Law, in relation to land matters.
In 1970, a dispute within the Oluwa Chieftaincy Family of Lagos and Apapa, over the number of branches that constitute the Family, led to the institution of Suit No. LD/828/70 at the Lagos State High Court. While that Suit was pending, the Family, represented by the then Oluwa and Head of Oluwa Chieftaincy Family, and six principal members of the Family, leased a portion of its landed property at Industrial Road, off Kirikiri Road, Apapa, to the Appellant, who took possession.
The said Lease dated 31/12/1975, was registered in the Register of Deeds kept at the Land Registry, Ikeja, Lagos, as No. 53 at page 53 in Volume 1533.
On 15/5/1987, Thomas, J., delivered his Judgment in Suit No. LD/828/70, wherein he concluded that “there are 5 Branches of the Oluwa Chieftaincy Family, namely, (1) Asalu (2) Odofin (3) Idewu (4) Faro and (5) Amore”. The Defendants, who claimed that there were three branches of the Family, and not five, appealed to the Court of Appeal, but the Appeal was dismissed for lack of diligent prosecution.
By an Application dated 30/9/1989, they attempted to restore the Appeal, but the Court of Appeal refused the Application in its Ruling delivered on 22/3/1990, and they appealed to the Supreme Court with a Notice of Appeal dated 31/5/1990. But the Appeal was withdrawn, and it was accordingly dismissed on 26/9/1992.
On 25/11/2004, the Lagos State Government approved the appointment of the first Appellant herein, who is from the Odofin Branch of the said Oluwa Family, as the new Oluwa of Lagos and Apapa, and he then constituted and inaugurated a fresh Executive of the Family with members drawn from all the five Branches. The Respondents requested a meeting with the Appellant to discuss the Lease, and when it refused to meet with them, they filed the action that led to this Appeal.
In the said action, filed by way of an Originating Summons dated 22/9/2011, the Respondents herein, as Claimants, prayed the High Court of Lagos State for:
An Order that they do recover possession of ALL THAT Parcel of Land at Apapa covering an approximate area of 5832 acres along the Industrial Road off Kirikiri Road, Apapa, Lagos, covered by Survey Plan No. AAW/U175 dated 19/5/1960.
In the Counter-Affidavit to Originating Summons, filed by Appellant as Defendant, it was averred in paragraph 7 – “that the action of the Claimants for the recovery of possession in respect of the Deed of Lease dated 31/12/1975 is statute barred.”
After the adoption of Written Addresses, the learned trial Judge, Alogba, J., raised the Issue of lis pendens. He requested parties to address him on it, which they complied with, and after the adoption of Written Addresses on the said Issue, the learned trial Judge delivered Judgment on 28/6/2013, wherein he held that –
Both learned counsel are agreed that the cause in this matter is the recovery of land. Whose land? The Oluwa Chieftaincy Family land, in whose possession – Defendant’s possession – how possession derived by Lease in 1975 from the Claimants family representatives as then constituted. Why claim by Claimants – now – because there was a squabble on the constitution of the Family representation or how Family was comprised. What’s the final decision on that – the Supreme Court’s Judgment of 1992 striking out the Appeal from the 1975 (sic) Judgment of the High Court – Coram Olusola Thomas J (as he then was) – that the Family was made up of five Branches. Afortiori, as from the date of the Supreme Court of Nigeria Judgment of 1992 the coast became clear for whoever in the Claimant’s family, who wished to challenge disposition of the Family’s land based on the three Branches representation, which was upturned by the High Court in favour of five Branches. By the provisions of Section 16(2)(a) of the Limitation law, such intending Claimants have up to 12 years from the date of the SCN Judgment on the issue in 1992. That will last up to sometime in 2004; 25/9/2004. Claimant’s Family did not take steps against the Defendant until 2011 when it began asking it to come and discuss the issue of the Lease of 1975. The Family eventually filed this action on 22/11/2011. That’s about 7 years after the cause of action had lapsed by operation of law. Accordingly, it is an inescapable conclusion that this action is statute barred and afortiori incompetent.
The learned trial Judge concluded as follows on the said issue of lis pendens that:
The 1970 case was not about the sale of any real property or the one in issue here, nor was recovery of possession or declaration of title, the cause of that action. Those factors missing, it is therefore, an inescapable conclusion that the Doctrine does not apply in this case, and I so hold.
He dismissed the action for being statute barred. The Respondents then appealed to the Court of Appeal, and in allowing the Appeal, the Court of Appeal held that:
The accrual of the cause of action of the Appellants dates back to when the disputed land had devolved unto them as descendants of Ahmodu Tijani (late Oluwa of Lagos and Apapa). On a cumulative reading of the entire provisions of the Limitation Law of Lagos, the right of the Appellants to this action is not extinguished and their existing right not affected at the expiration of twelve years from the accrual of the right of action. I find strength in this position from the Supreme Court’s case of OGUNLADE V ADELEYE (1992) 8 NWLR (Pt. 260) 409; (1992) 10 SCNJ 58. The Supreme Court stated as follows:
“Is noteworthy as regards application or otherwise of any Limitation Law to matters of land tenure under customary law. Therein, it was held inter alia that Section 1(2) of the Limitation Law of Western Nigeria, 1959 excludes from its operation any claim for “ishakole” which is an interest held under customary tenure. The resultant effect of this ratio was that the Plaintiff/Respondent in the case finally succeeded in his claim for arrears of “ishakole” for the whole of 28 years claimed which had earlier been dismissed by the High Court (sitting as an Appellate Court) on the ground that the claim was statute barred by virtue of Section 4(4) of the Limitation Law of Western Nigeria, 1959, which was not read together with Section 1(2) of the same law referred to supra”.
I find the decision of the Supreme Court in Ogunlade V Adeleye (Supra) on all fours with the instant appeal. In the instant appeal, the learned trial Judge failed to read the provisions of Section 16 (2) (a) together with Section 68(1) of the Limitation Law (Supra) to determine the Appellants’ customary rights to the land in dispute, and therefore to arrive at the correct verdict, that they are not debarred from claiming their customary rights to the land, forming the subject matter of this appeal, especially in view of Section 68(1) of the same Law. The Appellants’ action is not caught up by the Statute of Limitation Law.”
On the Issue of whether the doctrine of lis pendens applied, it held as follows –
The Appellants’ claim being claim to recover parcel of land, is a claim to real property, and thus the doctrine of lis pendens applies, as against to what personal property stands for. The doctrine of lis pendens clearly applies to the claim of the Appellants before the lower Court. I resolve Issue No. 2 in favour of the Appellants. On the whole therefore, having resolved the two Issues in the Appeal in favour of the Appellants, the Appeal is meritorious and it is hereby allowed. The Judgment of the High Court of Lagos State coram: K. O. Alogba, J., in Suit No. M/836/2011 delivered on 28/6/2013 is hereby set aside by this Court. This Court makes the following Orders:
1) This case is remitted back to Hon. Chief Judge of Lagos State to be heard on the merit before another Judge.
2) No Order as to costs.
The Appellant has now appealed to this Court with a Notice of Appeal containing three Grounds of Appeal that are being challenged by the Respondents. However, the Appellant has formulated the following two Issues for Determination in its Brief:
1. Whether the learned Justices of the Court of Appeal were right in holding that the provisions of Section 68 (1) of the Limitation Law of Lagos State is applicable to the Deed of Lease dated 31/12/1975 executed under the general law by the head and principal members of the Respondents’ Family.
2. Whether the learned Justices of the Court of Appeal were right when their lordships held that the doctrine of “lis pendens” applied to the claim of the Respondents before the trial Court.
The Respondents formulated three Issues for Determination in their Brief; that is:
(i) Whether on a consideration of their Notice of Preliminary Objection, the Appellant’s Notice of Appeal dated 21/7/2015 but filed on 22/7/2015 ought not to be dismissed as incompetent to originate an appeal against the Judgment of the lower Court;
(ii) Whether the learned Justices of the Court of Appeal were not right in their Judgment that the matter to which the Respondents’ suit against Appellant was predicated, is the customary right of the Respondents, as the descendants of Amodu Tijani, to the land dispute and that Section 68(1) of the Limitation Law of Lagos State accordingly makes the Limitation periods provided for in Section 16 of the said Limitation Law non-applicable to the Suit; and
(iii) Whether the Learned Justices of the Court of Appeal were not correct in their determination that the doctrine of lis pendens applies to the Respondents’ claim before the Court of first instance as the said claim was a claim for real property.
In its Reply Brief, the Appellant argued that the Respondents’ Issue 1 did not arise from the Grounds of Appeal, but is based on their Notice of Preliminary Objection, and citing Rivers State V. Specialist Consult (2005) 2 SC (Pt. 1) 121 at 140, James V. INEC (2015) 2-3 SC 99 at 161 and Carlen (Nig.) Ltd. V. Unijos (1994) 1 NWLR (Pt. 323) 631, it submitted that the said Issue is incompetent because it was not based on any issue arising from the Grounds of Appeal and same ought to be struck out. It urged this Court to strike out the Issue for being incompetent.
The Appellant is right; Preliminary Objections and Issues for Determination cannot be spoken of together; they do not have a common meeting ground, and they have been aptly described as “strange bed fellows” – see Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1, wherein Chukwuma-Eneh JSC, explained that –
Preliminary objection strictly speaking runs counter to the intendment of issues for determination in the claims before the Courts in the sense that it aborts, indeed forecloses hearing of the case in limine and if upheld, terminates the case; it automatically puts an end to the case without determining the rights of the Parties – while issue for determination presupposes that the case is, all things being equal, on course for the hearing. An issue for determination is a combination of facts and the law on a particular point, which when decided, affects the fate of the appeal – it must relate to the grounds of appeal – – The two are more or less strange bedfellows; and so, for a preliminary objection to be dressed in the garb given to it here is strange and improper.
In effect, the determination of a preliminary objection to the hearing of an appeal is not a hearing of the appeal, which can only
be considered based on issues for determination, formulated from the grounds of appeal – see Carlen (Nig.) Ltd. V. UNIJOS (supra), cited by the Appellant, where Ogundare, JSC, stated as follows:
It is trite that Issues for Determination formulated in a Brief must arise out of and be related to the Grounds of Appeal relied upon in support of the Appeal and any Issue not encompassed by nor relating to the Ground(s) must be struck out.
An issue for determination does not exist independently. It derives its legitimacy from a ground of appeal, and without the concrete support of the ground of appeal, the issue for determination collapses completely and must be struck out or ignored – see Agbaka V. Amadi (1998) 11 NWLR (Pt 572) 16 and WAEC V. Adeyanju (2008) 9 NWLR (Pt 1092) 270, wherein Mohammed, JSC (as he then was) said:
An appellate Court can only decide an appeal on issues raised on the grounds of appeal filed – – In this respect, any argument in the brief of argument in support of such issues not arising from the grounds of appeal, will be discountenanced by the Court in the determination of the appeal as stated in Momodu V. Momoh (1991) 1 NWLR (Pt. 169) 620 – 621.
In Momodu V. Momoh (supra), Uwais, JSC (as he then was), stated as follows:
Issues for determination formulated in a Brief must be based on the ground or grounds of appeal filed by the Parties – – If they are not related to any ground of appeal, then they become irrelevant and go to no issue. Any argument in the brief in support of such issues will be discountenanced by the Court.
In this case, it goes without saying that the Respondents’ Issue 1 formulated from their Preliminary Objection is incompetent and the arguments in their Brief related to the said Issue 1 go to no issue, and they will be discountenanced by this Court.
In the event that this Court was willing to consider the issue, the Appellant made submissions thereon in its Reply Brief. However, with the Respondents’ arguments out of the window, its submissions have no legs to stand on, therefore, they will also be ignored. Be that as it may, the Preliminary Objection, if upheld, touches on the jurisdiction of this Court to hear the Appeal and must be looked at.
The Respondents challenged the competency of this Appeal on the grounds that Appellant did not obtain leave of the Court below or this Court before it filed its Appeal against the Judgment of the Court below; and all the Grounds of Appeal contained in its Notice of Appeal are grounds of fact or of mixed fact and law.
It is trite law that where a ground of appeal involves questions of fact or mixed law and fact, “failure to obtain leave renders the appeal incompetent and it will be thrown out” – Garuba V. Omokhodion (2011) 6-7 SC (Pt. V) 89. It is also settled that it is relevant and crucial to construe the ground of appeal together with the particulars of error alleged, because its classification as a ground of law can only give competence to an appeal without leave, if the nature of the misdirection or error clearly stated in the particulars bears out the category assigned – see Metal Construction (W. A.) Ltd. V. D. A. Migliore & Ors (1990) 1 NWLR (Pt. 126) 299. In this case, the Grounds of Appeal, with their Particulars, complain as follows –
GROUND 1:
The learned Justices of the Court of Appeal misdirected themselves on the facts when they held that:
“Coming back to the instant Appeal, the basic facts that have not been disputed from the record is that the Appellants have shown that their customary right in respect of the land in dispute devolved on them as descendants of Amodu Tijani (the late Oluwa of Lagos and Apapa). From the record, it is not shown that the Respondent disputed the fact that the land belongs to the Oluwa Chieftaincy Family. Their claim to the disputed land therefore is customary.”
PARTICULARS OF ERROR
1. The claim of the Respondents based on the Originating Summons was for the possession of the Land granted to the Appellant by the Respondents’ Family based on a Deed of Lease dated 31/12/1975 and Registered as No. 53 at page 53 Volume 1533 at the Lands Registry in Lagos.
2. The ground for possession was that the said deed was invalid having been granted by the then Chief Oluwa and three (3) of the five (5) branches of the Oluwa Family.
3. The claim before the learned trial Judge and by extension of Court of Appeal was not in respect of any customary right but on the validity of the said lease.
GROUND 2
The learned Justices of the Court of Appeal erred in law when they hold that:- “On a cumulative reading of the entire provisions of Limitation Law of Lagos, the right of the Appellants to this action is not extinguished and their existing right not affected at the expiration of 12 years from the accrual of the right of action.”
PARTICULARS OF ERROR
1. The dispute between the parties was based on a Deed of Lease dated 31/12/1975 and Registered as 53/53/1533 at the Lands Registry, Lagos.
2. The provisions of Section 68(2) of the Limitation Law of Lagos State is restricted to rights held under customary law before its enactment in 1966.
3. Customary land law application to any transaction is determined by the nature of the tenure.
4. A Deed of Lease is not a customary tenure holding caught by the provisions of Section 68(2) of the Limitation Law of Lagos State.
5. The Deed of Lease, the subject matter of this suit was executed on 31/12/1975 well after the enactment and coming into operation of the Limitation Law of Lagos State.
6. The action challenging the validity of the deed of lease was commenced on 22/9/2011.
7. The right to challenge the validity of the Deed of Lease by the two remaining branches allegedly excluded in the execution of the deed in 1975 arose in 1999 when their position as branches in the Respondents’ family was finally resolved.
8. The decision of this Court in OGUNLADE V. ADELEYE (1992) 8 NWLR (Pt. 206) 409 is inapplicable to this case.
GROUND 3
The learned Justices of the Court of Appeal erred in law when their lordships held:
“From the above definition, the Appellants claim being claim to recover parcel of land, is a claim to a real property and thus the doctrine of lis pendens applies, as against to what personal property stands for. The doctrine of lis pendens clearly applies to the claim of the Appellants before the lower Court.”
PARTICULARS OF ERROR
1. The doctrine of lis pendens applies to transaction conducted during the pendens of an action.
2. The present action was instituted on 22/9/2011
3. The Deed of Lease, the subject matter of the suit was executed on 31/12/1975.
4. The Deed of Lease was not executed during the pendency of the present suit.
5. The suit pending in 1975 when the deed of lease was executed had nothing to do with real proper and/or declaration of title, so the doctrine of lis pendens does not apply to it.
6. The Learned Justices of the Court of Appeal were in error in stating that the doctrine of lis pendens applies to the case at the trial Court when all the conditions precedent to the application of the doctrine were not satisfied contrary to the decision of this Honourable Court in Alhaji Bua V. Bashiru Dauda (2003) 6 SC. (PT. 11) 120 and Oronti V. Onigbanjo (2012) 5 SC 63.
Admittedly, it is not easy to distinguish a ground of fact or mixed law and fact from a ground of law, which can sustain an appeal, without leave. But it is settled that where a ground of appeal reveals a misunderstanding by the lower Court of the law or a misapplication by it of the law to the proved or admitted facts, it would be a question of law; where it requires questioning the evaluation of facts before the application of the law, it would amount to a question of mixed law and fact – see Ononuju V. AG Anambra State (2009) 10 NWLR (Pt 1148) 182, Ogbechie V. Onochie (1986) 1 NWLR (Pt. 23) 484, and Metal Const. (W.A.) Ltd. v. D. A. Migliore & Ors (supra), wherein Obaseki, JSC, made the distinction clear thus -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Matters of fact have to be ascertained, failing admission, by competent and relevant evidence given by witnesses, experts or provided by deeds, records, reports, etc. – – – Matters of law have to be ascertained, failing admission, by interpretation of statutes, cases and other authoritative sources of law aided by argument of counsel to parties in the litigation. An appeal on matters of fact allows investigation at the hearing of the appeal of the evidence and the proper inferences from it whereas an appeal on a point of law limits consideration of the appeal to such questions as to whether facts admitted or held proved, justify or permit by rules of Court a particular decision or disposal of the case before the Court. In a secondary sense, any matter to be decided on evidence and inference therefrom is a matter of fact and other matters are matters of law. A decision of a trial Judge is normally a mixed finding.
In this case, in Ground 1 of the Grounds of Appeal, the Appellant complained that “the learned Justices of the Court of Appeal misdirected themselves on the facts” when it concluded inter alia that “their claim to the disputed land – – is customary”, because the Appellant did not dispute “the fact that the land belongs to the Oluwa Chieftaincy Family”, and when construed together with its Particulars of Error, it is clear that the Appellant is challenging the evaluation of facts by the Court below before the application of the law, which makes it a ground of mixed law and fact.
Ground 2 of the Grounds of Appeal, on the other hand, is a ground of law, because it involves the interpretation and application of a Statute of Limitation, and it is settled that interpretation of documents or statutes is a question of law – see Ogbonna V. A.G, Imo State & Ors (1992) 1 NWLR (Pt. 220) 647, Ogbechie V. Onochie (supra) and Nwadike V. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 744.
Ground 3 of the Grounds of Appeal is also a ground of law because it raises the question of whether the said doctrine of lis pendens, which is a legal principle, applies to the Respondents’ claim. Thus, two out of the three Grounds of Appeal are grounds of law, and that is more than sufficient to sustain this Appeal – see Nwaolisah V. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600 and Mohammed V. Olawunmi (1990) 2 NWLR (Pt. 133) 458, wherein Obaseki, JSC, explained that:
If there are many grounds of appeal filed and only one of the grounds is a ground of law alone, that ground is sufficient to sustain the appeal if no leave is obtained. The other grounds are incompetent and will be struck out.
In this case, Ground 1 of the Grounds of Appeal is incompetent and is struck out. However, Ground 2 and Ground 3 are competent grounds of appeal, therefore, this Appeal is saved, and the Respondents’ Preliminary Objection is overruled.
Coming to the main Appeal, the Court of Appeal found that the trial Court failed to read the provisions of Sections 16 (2) (a) and 68(1) of the Limitation Law of Lagos State together, and it thereby arrived at the wrong verdict in this case. The said Section 16 (2) (a) of the Limitation law of Lagos State provides that –
(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 is first accrued to some persons through whom he claims, to that person.
Section 68 (1) of the same Limitation Law of Lagos State further provides that:
Subject to the provisions of Subsection (2) of this Section, this law shall not apply to actions in respect of any matter which immediately before the commencement of this law, was regulated by customary law.
The Appellant’s Issue 1 questions whether the Court of Appeal was right that the above provisions of Section 68 (1) of the Limitation Law is applicable to the Deed of Lease executed under the general law by the Head and principal members of the Respondents’ Family. It cited the following authorities on Limitation Laws –
Williams V. Williams (2008) 4-5 SC (Pt. II) 253 at 266
NPA Plc. V. Lotus Plastics Ltd. (2005) 12 SC (Pt. 1) 19 at 35
Ajibona V. Kolawole (1996) 10 NWLR (Pt. 476) 22 at 37
George V. Sonekan (1997) 3 NWLR (Pt. 495) 618 at 623
And argued that for the provisions of Section 68(1) of the Limitation Law to apply, the transaction in question must be regulated by customary law; that the framers of the said Section 68(1) could not have intended that owners of land held under native law and custom, cannot for all purposes transact outside customary law; and that it will amount to an absurdity if Section 68 (1) is construed to mean that customary land owners are denied the right to transact outside customary law.
It submitted, citing A.G., Adamawa State V A.G., Fed. (2014) 4-6 SC 127 and Williams V. Williams (supra), that three conditions play a prominent role in determining whether an action is caught by a Statute of Limitation, and these are:
(a) The cause of action;
(b) When the cause of action accrued; and
(c) When the action became statute barred.
It examined the conditions under the following headings [pages 10-23 of its Brief]:
CAUSE OF ACTION
STATUS OF GRANT
WHEN THE CAUSE OF ACTION ACCRUED
WHEN THE ACTION BECAME STATUTE BARRED
In a nutshell, the Appellant contends that the cause of action was not in respect of any customary tenure between the Parties but arose out of the Deed of Lease that is governed by the general law; that the cause of action accrued on 26/2/1992 when this Court by its decision in Appeal No SC/253/1991 paved the way for any aggrieved branch of the Respondents’ Family to commence an action against it to recover possession of the land acquired by the Deed of Lease of 1975; that the action became statute barred on 25/9/2004, when any aggrieved member of that Family failed to bring any action to challenge its possession of the land in dispute; and that the Limitation Law is applicable to the Suit, subject matter of this Appeal.
The Respondents however argued that the Court of Appeal’s conclusion “was orthodox and correct”; that their claim was for possession of land held under Native Law and Custom, which is why it is covered by the provisions of Section 68(1) of the Limitation Law, wherein the words used are “in respect of any matter”, that Section 68(1) makes no reference to “cause of action”, so it is the underlying nature of the matter that must be looked into and not simply the cause of action.
They submitted that it is trite law that in construing provisions of a statute, clear and unambiguous words must be given their natural and ordinary meaning, except where it would lead to absurdity or injustice, citing A.G., Fed. V. Guardian Newspaper (1999) 9 NWLR (Pt 618) 187, Adewunmi V. A.G., Ekiti State (2002) 2 NWLR (Pt 751) 474; Agbaje V. Fashola (2008) 6 NWLR (Pt. 1082) 90; Amobi V. Nzegwu (2014) 2 NWLR (Pt. 1392) 510; that since their claim was on a matter, regulated by the customary law, Section 68(1) applies to it; and that the Court of Appeal is right that Ogunlade V. Adeleye (supra), was on all fours with this case.
The overriding purpose of limitation laws is expressed in the Latin phrase – interest rei publicae ut sit finis litium, that litigation shall be automatically stifled after a fixed length of time, irrespective of the merits of a particular case. Another factor is the desirability of preventing Plaintiffs from prosecuting stale demands, and protecting Defendants from disturbance after a long lapse of time when they have grown accustomed to their position or lost the evidence to defend it – see Eboigbe V. NNPC (1994) 5 NWLR (Pt. 347) 649, where Kalgo, JSC, stated that:
Where an action is statute barred, a Plaintiff, who might have had a cause of action, loses the right 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,
See also Amadi V. INEC (2012) LPELR-7831(SC), wherein it was held as follows:
The purport and essence of a limitation law is that where a Statute of Limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute-barred. The essence is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute barred if legal proceedings cannot be commenced in respect of same because the period laid down by the Limitation Law had elapsed.
In other words, a limitation law prescribes a period within which an action must be commenced, and so, a Plaintiff, who might otherwise have had a cause of action, loses the right to enforce it by judicial process, as the period of time laid down by the limitation law for instituting such an action has elapsed – see Oba J. A. Aremo II V. Adekanye & Ors (2004) 13 NWLR (Pt 891) 572 SC, wherein this Court held that the rationale or justification for the existence of statutes of limitation, includes:
That long dormant claims have more of cruelty than justice in them;
That a Defendant might have lost the evidence to disprove a stale claim; and
That persons with good causes should pursue them with reasonable diligence.
In this case, the bone of contention is whether the action filed by the Respondents is statute barred because the cause of action arose from the Deed of Lease dated 31/12/1975, which is governed by the general law, or that it is not statute barred, because their claim was for possession of land held under native law and custom.
The first question that comes to mind is what is the nature of the transaction? Under Nigerian Law, land can be validly transferred and validly acquired in two distinct ways either by (i) customary law; or (ii) under the received English law. The Respondents averred as follows in paragraph 3 of their supporting Affidavit:
The Claimants are the descendants of Amadu Tijani Oluwa of Lagos, who sued and won against the British in 1924, the case that vested ALL of the land in issue in the Oluwa Chieftaincy Family as Family land at Apapa and environ as owners under Native Law and Custom from time immemorial.
But the Appellant averred in paragraph 5 (v), (ix) (x) of its Counter-Affidavit that:
v. The Defendant became seized of the property in dispute by virtue of the Deed of Lease dated 31/12/1975 granted it by the Oluwa Chieftaincy Family.
xi. The said Deed of Lease was validly entered into and executed by Chief Sulaimon Babatunde Oluwa as Head and Chief Oluwa of the Oluwa Chieftaincy Family and the principal members acting for and behalf of the entire Oluwa Chieftaincy Family and not for or on behalf of any branch of Oluwa Family or on behalf of the Family Council.
xii. The Defendant is occupying the land in issue with the consent of the Oluwa Chieftaincy Family by virtue of the said Deed of Lease dated 31/12/1975.
It is necessary to make the distinction as to (1) Nature under which land is held – the said land of the Respondent is held under Customary Land Law and (2) Nature under which the said land is transacted – either in a lease, tenancy or alienation – transaction was executed under General Law as evidenced by the Deed of Lease. By nature, the land is customary land devolved on Respondents as descendants of Amodu Tijani, and as pleaded by the Appellant, the lease of the said Customary Land, which is his proof of a root of title, was transacted under the General Law.
It is settled that the requirements guiding the transaction of customary land are distinct from that under General Law – see Aghenhen V. Waghoreghor (1974) 1 SC 1, cited by the Appellant, Isiba V. Hanson (1964) 1 All NLR 8, and Abioye V. Yakubu (1991) 5 NWLR (Pt. 190) 130, wherein Obaseki, JSC, stated:
The holding of the customary tenant is not a gift. The land is not borrowed or given as a loan; the land is not given for a definite term; hence, he is in a different category from a lessee. It is a grant upon terms and conditions agreed with the owners. Provided he keeps to the conditions of the grant and payment of tribute, he can enjoy possession of his holding from year to year in perpetuity – – – The tenant, no matter how long he is on the land, cannot acquire ownership — – He is liable to incur forfeiture and lose his tenancy on breach of the terms and conditions, particularly alienation without consent.
In this case, the Court below failed to grasp the salient nuances of the principles applicable to customary tenancy as distinct from a lease; the distinction is as clear as night and day. It is a cardinal principle of customary land law that a customary tenant’s interest in land goes on and on in perpetuity until the tenancy is forfeited, while one of the essential elements of a lease is certainty of term. In other words, customary tenancy is different from the English concept of a lease, which can be invalidated for lack of certainty of term, as certainty of term is not essential for the creation of a customary tenancy – see Aghenhen V. Waghoreghor (supra).
Now, the Court below relied upon the case of Ogunlade V. Adeleye (1992) 8 NWLR (Pt 260) 409 SC, which it said was on all fours with this case. However, in that case, Respondent claimed arrears of tribute (Isakole) for twenty-eight years payable by the Appellant as “customary tenant’ of the Respondent. In this case, the Respondents, who held the land under customary law, claimed the recovery of the land that had been leased to the Appellant by members of the same Family.
The case of Ogunlade V. Adeleye (supra), relied upon by the Court below, is clearly not on all fours with this case. The Appellant is not a “customary tenant”, rather the Respondents’ Family represented by the then Oluwa of Lagos and other principal members of the same Family, leased the land in dispute to the Appellant.
A lease is an exact legal transaction affecting an estate and for it to be valid, both the commencement and the maximum duration of the term must be either certain or capable of being rendered certain before the lease takes effect – see Brossette Manufacturing (Nig.) Ltd. V. WS Ola Ilemobola Ltd. (2007) 14 NWLR (1053) 109 SC, and Okechukwu V. Onuorah (2000) 15 NWLR (Pt 691) 597 SC.
So, what is the applicable law? Obviously, the root of title to the Appellant’s possession of the land in dispute is traced to the transaction under General Law. The Respondent never claimed that the transaction was executed otherwise and any reference to customary law was only as to the holding of the land; and not the transaction with the Appellant. So, the applicable law is the General Law – Comm. for Land and Housing, Kwara State V. Atanda (2007) 2 NWLR (PT. 1018) 360.
Having established that the applicable law in this case is the General Law; not the Customary Law, the next question is when did the cause of action arise?
A cause of action is the bundle or aggregate of facts that gives the Plaintiff a substantive right to make the claim for the relief being sought. It consists of the wrongful act of the Defendant, which gives the Plaintiff his cause of complaint, and the consequent damage – see Adesokan V. Adegorolu (1997) 3 NWLR (Pt. 493) 26 SC, Agbanelo V. UBN (2000) 4 SC (Pt. 1) 233, A.G., Fed. V. ANPP (2003) 12 SCNJ 67 and Cookey V. Fombo (2005) 15 NWLR (Pt. 947) 182 SC.
In this case, it is clear from the timelines that the cause of action had nothing whatsoever to do with the ownership or devolution of the land to the Respondents. The disagreement over whether the Oluwa Chieftaincy Family had three Branches or five Branches, led to the Suit that was filed in 1970. While the Suit was pending, the Head and principal members of the Family, comprising of only three Branches, leased a portion of the Family’s land, the land in dispute, to the Appellant in 1975.
In his Judgment delivered on 15/51/987, the learned trial Judge in that Suit, held that the Oluwa Chieftaincy Family was made up five Branches; and not three. The Party that lost appealed to Court of Appeal. The Appeal was struck out for lack of diligent prosecution, and the Application to restore the Appeal was refused. The Appellant appealed to this Court, but when the matter came up on 26/9/1992, the Appeal was withdrawn and dismissed, therefore, the litigation ended that day.
At this point, the Oluwa Chieftaincy Family was made up of five Branches, as determined by Thomas, J., in the 1970 Suit. But the Oluwa Chieftaincy Family, as constituted, did not attempt to bring up the issue of the lease with the Appellant.
In my view, which is consistent with the decision of the learned trial Judge, it would not have been out of place at that point for the Oluwa Chieftaincy Family, to reconstitute the committee of the Family in line with the decision of Thomas, J; review the contracts entered by the Family, when there were only three Branches; ratify or take steps to void the contracts executed if it so considered it desirable. But the recognized five branches of the Oluwa Chieftaincy Family did not disturb the transaction with the Appellant, and it was only in 2011, nineteen years later, that they filed the action to recover possession of the said land from the Appellant.
In the circumstances of this case, it is as clear as day that the provisions of Section 16 (2) (a) of the said Limitation Law of Lagos State, applies to this case. The subject matter of the litigation is a land situated in Lagos State, and it follows that the Respondents had twelve years to institute the action against the Appellant “to recover possession” of the land leased to it by the Oluwa Chieftaincy Family.
After the Appeal was dismissed by this Court in 1992, they could have taken steps to challenge the validity of the Deed of Lease, but they did nothing and only sought a remedy, nineteen years after. I agree with the learned trial Judge that –
As from the date of the Supreme Court of Nigeria Judgement in 1992 the coast became clear for whoever in the Claimant’s Family who wished to challenge disposition of the Family’s land, based on the three branches representation, which was upturned by the High Court in favour of five branches.
The long and short of it is that the learned trial Judge was right that the action filed by the Respondents to recover the land from the Appellant was statute-barred. This Issue is therefore resolved in favour of the Appellant. Since that is the case, it is of no effect to consider Issue 2 on lis pendens, merely for academic purposes.
In the circumstances, there is merit in this Appeal, and it is hereby allowed. The decision of the Court below is, therefore, set aside, and the Judgement of the trial Coud is hereby restored. One Million Naira costs awarded to the Appellant, to be paid by the Respondents.
Cross Appeal
In view of the decision in the main Appeal that the action filed at the trial Court is statute-barred, this Court lacks jurisdiction to entertain the Cross-Appeal filed by the Respondents/Cross Appellants challenging the decision of the Court of Appeal on the Issue dealing with lis pendens. The Cross-Appeal is therefore struck out.
The main Appeal is allowed and the Cross-Appeal is struck out.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the benefit of reading in draft the leading judgment of my learned brother, AUGIE JSC I agree with the reasoning and conclusions.
The main appeal is allowed with N1 million costs in favour of the Appellant, while the Cross Appeal is struck out.
MUSA DATTIJO MUHAMMAD, J.S.C.: I read in advance the lead judgment of my learned brother AMINA ADAMU AUGIE JSC just delivered. I entirely agree with the reasoning and conclusion in the said judgment that the appeal has merit and that it be allowed.
An attempt at restating the principles applicable to the dispute the appeal raises, by way of emphasis, is hereunder made. And what is the dispute?
The appellant had acquired a leasehold over a portion of land belonging to the respondents family. This was in 1975. He took possession following the transfer of the piece of land to him by the then leadership of the family – the Oluwa chieftaincy family of Lagos State. The family had gone to Court by 1970, in Suit No. LD/828/70, to determine the number of branches that made up the family. Oluwa J of the Lagos State High Court on the 15/5/1987 decided, contrary to the three branches some of the respondents asserted, that the family is made up of five branches. Their appeal to the Court of Appeal was dismissed for want of diligent prosecution in the Court’s ruling dated 23rd March, 1990. A further appeal to the Supreme Court against the Court of Appeal’s ruling, on its being withdrawn, was dismissed by the apex Court on 26t September 1992.
Some nineteen years after, the respondents commenced the action that brought about the instant appeal at the Lagos State High Court on 22nd September 2011 seeking to recover the piece of land the family leased to the appellant vide a deed dated 31st December 1975.
The appellant countered that respondents’ action was statute barred.
The trial Court inter-alia held:
“Afortiori, as from the date of the Supreme Court of Nigeria Judgment of 1992, the coast became clear for whoever in the Claimant’s family, who wishes to challenge disposition of the Family’s land based on the three Branches representation, which was upturned by the High Court in favour of five Branches. By the provisions of Section 16(2)(a) of the Limitation Law, such intending Claimants have up to 12 years from the date of the SCN Judgment on the issue in 1992. That will last up to sometime in 2004; 25/9/2004. Claimant’s Family did not take steps against the Defendant until 2011, when it began asking it to coma and discuss the issue of the Lease of 1975. The Family eventually filed this action on 22/11/2011. That about 7 years after the cause of action had lapsed by operation of law. Accordingly, it is an inescapable conclusion that this action is statute barred and afortiori incompetent.”
The Court of Appeal, the lower Court, in the appeal against the foregoing held differently inter-alia thus:-
“The accrual of the cause of action of the Appellants date back to when the disputed land devolved unto them as descendants of Ahmodu Tijani (late Oluwa of Lagos and Apapa). On a cumulative reading of the entire provisions of the Limitation Law of Lagos State, the right of the Appellants to this action is not extinguished and their existing right is affected at the expiration of twelve years from the accrual of the right of action…
I find the decision of the Supreme Court in OGUNLADE V. ADELEYE on all fours with the instant appeal.
In the instant appeal, the learned trial judge failed to read the provision of Section 16(2)(a) together with Section 68(1) of the Limitation Law (supra) to determine the appellants contrary rights to the land in disputed, and therefore to arrive at the correct verdict, that they are not barred from claiming their customary rights to the land, forming the subject matter of their appeal especially in view of Section 68(1) of the same law. The Appellants action is not caught up by the statute of Limitation Law.” (Underlining supplied for emphasis).
I hasten to restate that cases are only authorities for what they decided. See UWUA UDO V. STATE (2016) LPELR – 40721 (SC) and THOMAS V. FEDERAL JUDICIAL SERVICE COMMISSION (2016) LPELR – 48124 (SC).
In GODWIN UGWUANYI V. NICON INSURANCE PLC (2013) LPELR — 20092 (SC) at page 63 of the law report, I dwelt on the principle thus:-
“…Cases remain authorities only for what they decided. Thus, an earlier of this Court will only bind the Court and subordinate Courts in a subsequent case if the facts and the law which inform the earlier decision are the same or similar to those in the subsequent case. Where, therefore, the facts and/or the legislation which are to inform the decision in the subsequent case differ from those which informed the Court’s earlier decision the earlier decision cannot serve as a precedent to the subsequent one. See CLEMENT V. IWUANYANWU (1989) 3 NWLR (PT 107) 39 and OLAFISOYE V. FRN (2004) 4 NWLR (PT 864) 580.” (Underlining supplied for emphasis).
In the instant case, the respondents have blindly argued that since the lower Court is guided by this Court’s decision in OGUNLADE V. ADELEYE (1992) 8 NWLR (PT 260) 409, the Court’s decision appealed against cannot be disturbed. It must be asked what this Court’s decision in OGUNLADE V. ADELEYE (supra) is and if the lower Court has indeed been properly guided by the said decision.
Learned respondents’ counsel is on a firm wicket that by the rules of precedent, the decision in OGUNLADE V. ADELEYE (supra) does not rule the facts of the case that brought about the instant appeal.
It must outrightly be pointed out that an obiter dictum of the Supreme Court neither binds the Court itself nor subordinate Courts. Only the Court’s ratio decidendi in a given case has binding authority on the Court as well as lower Courts. Even though the apex Court’s obiter-dictum may have considerable weight in determining the subsequent cases in Courts, it remains persuasive. It is long settled, therefore, that an obiter dictum is not a conclusive authority. However, when the apex Court adopts and makes its obiter- dictum a ratio – decidendi in a subsequent case, the obiter dictum having acquired the force of a ratio decidendi becomes binding. See VICTOR ROSSEK & ORS V. AFRICAN CONTINENTAL BANK AND ANOR (1993) 8 NWLR (PT 312) 382, 7UP BOTTLING CO LTD & ORS V. ABIOLA & SONS (NIG) LTD (1995) 3 SCNJ 37 at 49 and MRS. MATILDA ADERONKE DAIRO V. UNION BANK OF NIGERIA PLC & ANOR (2007) LPELR – 913 (SC).
Now, the respondent in OGUNLADE V. ADELEYE had by a respondent’s notice sought the variation of the findings of the Court of Appeal by this Court on the basis of an issue that reads:-
“Whether or not the law of limitation applies to matters of land tenure under Customary Law.”
Dwelling on the issue, this Court proceeded thus:-
“The question that now arises is whether the respondent can properly canvass the issue by raising same, by way of a respondent’s notice under Order 8 Rule 3. That notice as filed by the respondent, seeks a variation of the judgment of the Court below. It does not, and cannot, ask that the judgment (be it a finding or a ratio) be set aside.
…The consequence of this failure must be the judgment cannot be given to the respondent as prayed since this prayer is not properly placed before this Court.” (Underling supplied for emphasis).
All the same, the Court authoritatively hinted by way of conclusion:
“This Court, as stated earlier in its consideration of Section 4(4) of the Limitation Act, cannot close its eyes to the clear and unequivocal provisions of Section 1(2) of that Law. In view of that provision which excludes matters such as the one presently on appeal from the operation of the Limitation Law (supra) the appeal of the appellant must fail.”
Now, Sections 16(2)(a) and 68(1) of the Lagos State Limitation Law which the lower Court says the non-consideration of which jointly, by the trial Court led to the latter’s perverse decision and by virtue of which the appellant herein insists back respondents’ action provide:-
“Section 16(2) (a) of the Limitation Law of Lagos State provides that-
(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 is first accrued to some persons through whom he claims, to that person.
Section 68 (1) further provides:
Subject to the provisions of subsection (2) of this Section, this law shall not apply to actions in respect of any matter which immediately before the commencement of this law, was regulated by customary law.”
Are the respondents’ in support for the lower Court’s decision that the issue in dispute between the parties borders on customary law well founded? Certainly not. Ingenius as their argument is, a leasehold is not a matter in the domain of customary law such that same is exempted from the application of the Lagos State statute of limitation on the basis of Section 68(1) of the law. I so hold. It follows that any action filed outside the period envisaged under Section 16(2) (a) of the law is incompetent. Same cannot be proceeded upon by a Court of law or tribunal.
In the case at hand, the respondents were in position to assert their right over the land conveyed to the appellant by 1992 on the dismissal of their appeal by this Court and the settlement of the constitution of the family. They commenced their action about 19 years thereafter. The lower Court is wrong to have held to the contrary of the trial Court’s finding that respondents’ action is statute barred.
For the foregoing and the fuller reasons adumbrated in the lead judgment, I find merit in the appeal and allow same. The lower Court’s perverse judgment is set aside and the trial Court’s judgment restored. I abide by the order on costs made in the lead judgment.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: My learned brother, AMINA ADAMU AUGIE, JSC obliged me with a copy of the judgment just delivered. His Lordship has competently and comprehensively dealt with the salient issues in this appeal and I agree with the reasoning and conclusion therein. There is no doubt that the respondents in this case slept on their rights. The essence of the claim before the trial High Court was a challenge to the validity of the Deed of Lease executed between 3 branches of the respondents’ family and the appellant. As eloquently demonstrated in the lead judgment, the claim had nothing to do with Customary Law. The Deed of Lease was executed under the General Law.
The learned trial Judge was correct when he held that the cause of action accrued in 1992 upon the striking out of the appeal before this Court filed by the Oluwa Chieftaincy family, challenging the striking out of their appeal by the Court of Appeal against the judgment of the Lagos State High Court delivered on 5th May 1987 in suit ID/826170. With the striking out of the appeal before the Supreme Court on 26th September 1992 upon its withdrawal by the then appellants, the judgment of Thomas, J. declaring that there are 5 branches of the family remained extant.
A cause of action is said to accrue when there is in existence a set of facts giving rise to a right to sue and a person who can be sued and all facts have happened which are material to be proved to entitle the plaintiff to succeed. See: Hassan vs Aliyu (2010) 17 NWLR (Pt.1223) 547; Atiba Iyalamu Savings & Loans Ltd Vs Suberu & Anor (2018) 13 NWLR (Pt. 1637) 387; Afolayan vs Ogunrinde (1990) 1 NWLR (Pt. 127) 269 @ 382 F-H.
As of 26th September 1992, the Supreme Court had placed a final stamp on the judgment of Thomas, J. to the effect that there were 5 branches of the Oluwa Chieftaincy family and not 3. It follows therefore, that as of that date there was a set of facts in existence, giving the 5 branches of the family the right to sue the appellant on the basis that the Deed of Lease executed in its favour was not executed by the recognised 5 branches of the family.
Instead of taking immediate action, the family waited until the appointment of the 1st respondent as the Oluwa of Lagos and Apapa and the inauguration of a new Executive. It took a further 7 years after his appointment before the suit was filed at the High Court of Lagos State in 2011.
Section 16(2)(a) of the Limitation Law of Lagos State provides:
“16(2) The following provisions shall apply to an action by a person to recover land.
(a) Subject to paragraph (b) of this subsection, no 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 fit first accrued to some persons through whom he claims, to that person.”
The filing of the suit in 2011 was done more than 19 years after the cause of action accrued. The learned trial Judge was right when he held that the suit was statute barred. The Court below erred in holding that the exception in Section 68 (1) of the law applies to this case.
For the more comprehensive reasoning in the lead judgment, I find merit in the appeal and I allow it.
Having held that the suit is statute barred, I agree with my learned brother that a consideration of the Cross Appeal has become academic. It is accordingly struck out.
In conclusion, the Main Appeal is allowed with N1 Million costs in favour of the appellant, while the Cross Appeal is struck out.
EJEMBI EKO, J.S.C.: The main issue in the appeal is whether the suit of the Respondents at the trial Court was statute barred? The issue raised suo motu by the trial Court as to: whether the alienation of the family land by way of a Deed of Lease entered into (in 1975) during the pendency of the suit No. LD/826/70 wherein Thomas, J. delivered his judgment on 15th May, 1987, which neither put in abeyance, nor suspend the disputed leasehold, was created lis pendens was not the raison d’etre of the trial Court’s decision. Agreed, the suit No. LD/826/70 was filed in 1970. The Deed of Lease was created in 1975.
The question: whether the lease was created lis pendens was not an issue inter partes at the trial Court. The learned trial Judge raised it suo motu and invited the parties to address him on it. And they did. The issue however, was not the basis for the trial Court’s obiter dictum, having no status of ratio decidendi and which having not decided any live issue in the matter between the parties in litigation, is not appealable: NDP v. INEC (2012) LPELR – 19722 (SC); ABACHA v. FAWEHINMI (2000) 6 NWLR (pt. 600) 228 at 351; ORUGBO v. UNA (2002) 9 – 10 SC 61. Accordingly, Ground 1 of the Notice of Appeal complaining about the lease being made lis pendens, which was a mere obiter dictum at the trial, clearly has raised a non-issue either here or at the lower Court.
The Respondents filed Notice of Preliminary Objection wherein they challenged the competence of the Notice of Appeal on the grounds that the grounds therein raised are issues of fact or mixed law and fact for which the Appellant did not first seek and obtain leave before filing them. Only the first ground, raising issue of pure facts, is defective. The other two grounds raise issues of law for which, under Section 233(2) of the Constitution, no leave is necessary.
My learned brother, AMINA ADAMU AUGIE, JSC had dismissed the contention in the Preliminary Objection. I hereby endorse that dismissal.
It is clear from Exhibit F1 dated 12th May, 2011 that the Respondents, as claimants, were aware of the disputed Deed of Lease executed since 31st December, 1975. They issued Exhibit F1 — a notice inviting the lessee, the Defendant/Appellant, to a meeting for mutual discussion to review the Deed of Lease. The Appellant refused or failed to attend the meeting.
The suit, the subject of the Originating Summons taken out on 22nd September, 2011, sought, to wrest from the Defendant/Appellant possession of the demised property vide the 1975 Deed of Lease. The suit was filed 36 years after the Deed of Lease which no doubt created, by way of alienation, an encumbrance on the Family Property. The suit was filed 24 years after judgment of Thomas, J. in suit No. LD/826/70 delivered on 15th My, 1987 – Exhibit A.
A deed takes effect from the time of its delivery, and not necessarily from the day it is stated to have been made or executed: AWOJUGBAGBE LIGHT INDUSTRIES LTD v. P. N. CHINUKWE & ANOR (1995) 4 NWLR (pt. 390) 379 (SC). The deed of lease, as the disputed instant, is sufficient evidence of the title or interest it created in favour of the grantee or lessees. It is one of the recognised ways of proving title: IDUNDUN v. OKUMAGBA (1976) 6 SC 227: NWADIKE v. IBEKWE (1987) 4 NWLR (pt. 67) 718 (SC); ROMAINE v. ROMAINE (1992) 4 NWLR (pt. 238) 650 (SC).
Even if the respondent, who are no doubt members of the Chieftaincy Family that executed the 1975 Deed of Lease in favour of the defendant/Appellant, considered the lease or the conveyance voidable, the fact remains that the lease remained in full force and effect until it is set aside;
ERIC ORDOR v. JAMES NWOSU & ANOR (1974) 12 SC 103; ROMAINE v. ROMAINE (supra). The Deed of Lease had created, as against the Plaintiffs/Respondents, adverse title in favour of lessee/Appellant who was the defendant at the trial.
The cause of action, in my firm view, accrued to the Respondent from 1975 when the Deed of Lease creating the encumbrance that was adverse, supposedly, to the interest being now protected by the Respondents, was executed. The period of 36 years was rather inordinate.
The Respondents have resorted to customary law to avoid the effect of Section 16(2)(a) of the Limitation Law. The principle established in AWO v. COOKEY-GAM (1913) 2 NLR 100 is that the Court will not invoke the principle of customary law to dispossess another of land held of the benefactor’s family for a reasonable length of time at the instance of the latter family. Possession, no matter how long, though cannot be the basis of asserting title. However, in long possession by virtue of a contract cannot be defeated by a mere resort to customary law without more. The party invoking customary law must be seen to act timeously as the plaintiff did in HAAV v. KUNDU (1997) 5 NWLR (pt. 505) 313 (SC) — when he lodged his protests all along. Delay defeats equity.
In the instant case, the Appellant had been in undisturbed possession of the demised land for upward of thirty-six (36) years on the authority of the Deed of Lease executed between the Appellant Company and the Oluwa Chieftaincy Family — the indubitable family the Respondents belong. Equity follows the law and will not allow the Respondents resort to and invoke principles of customary law in order perpetrate injustice or iniquity. In any case the disputed Deed of Lease was not governed by principles of customary law, but the general law.
The suit of the Plaintiffs/Respondents was statute barred by operation of Section 16(2)(a) of the Limitation Law of Lagos State that prescribed twelve years period within which an action for recovery of title to land may be filed. I agree with the lead judgment that the Respondents’ right to enforce whatever imaginable cause of action, which right had accrued to them for thirty-six years before the suit was filed, had become stale, extinguished and unenforceable. I will allow the appeal as I endorse the lead judgment just delivered.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The decision of the trial Court striking out the suit of the Plaintiff/Respondents for being statute barred is hereby reinstated. Consequently, the little flame in the cross-appeal is hereby snuffed and the cross-appeal struck out.
All consequential orders in the lead judgment are hereby endorsed and adopted by me.
Appeal allowed.
Appearances:
I. A. OVBAGBEDIA ESQ. For Appellant(s)
ADEBAYO OYAGBOLA ESQ. For Respondent(s)
