DANGOTE INDUSTRIES LTD & ANOR v. ARAGBADA & ORS
(2022)LCN/16365(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Wednesday, February 23, 2022
CA/L/1225/2019
Before Our Lordships:
Obietonbara Owupele Daniel-Kalio Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
AdebukunolaAdeotiIbironkeBanjokoJustice of the Court of Appeal
Between
1. DANGOTE INDUSTRIES LIMITED 2. DANGOTE INDUSTRIES FREE ZONE DEVELOPMENT COMPANY LIMITED APPELANT(S)
And
1. MR. RASAK IDOWU ARAGBADA 2. CHIEF TIRIMISIYU ADEBOTE OGIDAN (For Themselves And On Behalf Of The ApenaOgunpo Family Of Eto Village) 3. ATTORNEY-GENERAL OF LAGOS STATE RESPONDENT(S)
RATIO:
THE LIMITATION OF PARTICULAR CONDUCT BY A STATUTE GIVES A TIME LIMIT
The limitation of particular conduct by a statute gives a time limit during which certain actions or steps should be taken and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. See the recent decision of the Supreme Court in the case of Aguma vs. APC & Ors (2021) LPELR -55927 (SC). Indeed, when an action is deemed statute barred, it implies that by the provision of the applicable law, the cause of action of the plaintiff is not capable of being enforced in a Court of law. MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE PERIOD OF LIMITATION IS DETERMINABLE BY LOOKING AT THE WRIT OF SUMMONS
In ascertaining whether a suit is statute barred, the Court is only enjoined to examine and consider the claimant’s writ of summons and the averments contained in the statement of claim evidencing the time the cause of action accrued and compare that date with that on which the originating processes were filed by the claimant. In Woherem JP. vs. Emereuwa&Ors (2004) LPELR-3500 (SC) at 16, paras E – G, the Supreme Court, per Iguh, JSC held that: “The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date when the wrong in question which gave rise to the plaintiff’s cause of action wascommitted and by comparing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the Limitation Law, the action is statute-barred.”
See also Hassan vs. Aliyu & Ors (2010) LPELR-1357 (SC); Military Administrator, Ekiti State vs. Aladeyelu (2007) ALL FWLR (Pt. 369) 1195 at 1218-1219 (SC). MUHAMMAD IBRAHIM SIRAJO, J.C.A.
APPLICATION BY WAY OF PRELIMINARY OBJECTION FOR THE DISMISSAL OF SUIT MAY BE MADE ON POINTS OF LAW
In the case of Woherem JP. Vs. Emereuwa&Ors., the Supreme Court did not mince words when it held as follows:
“The principle of law is well established that an application by way of a preliminary objection for the dismissal of a suit in limine may be made on points of law and where there are no facts in dispute for the purpose of determining such an objection. See Bello Adegoke Foko and Ors v. OladokunFoko and Anor(1968) NMLR 441. The applicant relies only on the facts as stated by the plaintiff in his writ of summons and statement of claim. The facts stated by the plaintiff in his writ of summons and statement of claim are for that purpose deemed to have been admitted by the defendant/applicant. See Ayanboye v. Balogun(1990) 5 NWLR (Pt. 151) 392 at 407. Where, however, disputes as to facts appear on the pleadings of the parties, as is the case in the present application, it is only open to a defendant to raise a preliminary objection on the face of the plaintiff’s writ of summons if the said defendant accepts the plaintiff’s averments of fact either on the writ of summons or on his statement of claim but submits that even in those circumstances no cause of action would appear to have been disclosed or that the Court has no jurisdiction to entertain the suit or that the action is statute-barred by virtue of some Limitation Law. MUHAMMAD IBRAHIM SIRAJO, J.C.A.
THE COURTS MUST GUARD AGAINST PRE-EMPTING LIVE ISSUES
The position of the law as judicially approved by the Supreme Court in the case of Ovunwo vs. Woko (2011) LPELR-2841; (2011) 17 NWLR (Pt. 1277) 522 is that Courts must guard against pre-empting or pre-determining such live issues that are to be resolved or settled at the trial of the substantive suit. See also Adetono & Ors vs. Zenith International Bank Plc (2011) LPELR-8237 (SC) (2011) 18 NWLR (part 1279) 627 at 646; Akinrimisi vs. Maerks Nig. Ltd & Anor(2013) LPELR-20179 (SC);Otti & Anor vs. Ogah & Ors (2017) LPELR-41986 (SC). MUHAMMAD IBRAHIM SIRAJO, J.C.A.
DETERMINATION OF THE ENTIRE CASE BY THE TRIAL COURT
Where the parties joined issues which cannot be conveniently determined in limine or at an interlocutory stage except more evidence is adduced by the parties, especially as the suit leading to the present appeal, which was commenced by way of Writ of Summons, it is my humble opinion that the trial Court ought to have declined to make findings or take decisions at that stage on the basis of the Appellant’s preliminary objections when more evidence had not been called in the substantive suit. If made pronouncement on the substance of the matter, even before evidence was led and arguments of counsel marshalled on the substantive suit, the trial Court would have determined the entire case in limine and/or at an interlocutory state. I call in aid, the cases of CIL RISK & ASSET MANAGEMENT LTD VS EKITI STATE GOVT. & ORS (2020) LPELR-49565(SC), BAKARE VS BAKARE (2012) 16 NWLR 29 AT 49-50, PARAS H-D. ADEBUKOLA ADEOTI IBIRONKE BANJOKO, J.C.A
MUHAMMAD IBRAHIM SIRAJO, J.C.A. (Delivering the Leading Judgment): The present appeal emanates from the decision contained in the ruling delivered by the High Court of Lagos State, Coram: Honourable Justice G. A. Safari on 20th December, 2018, in Suit No. EPD/5104LMW/2017. At the lower Court, the 1st and 2nd Respondents had by a writ of summons and statement of claim contained at pages 4 to 12 of the Record of Appeal, sought the following reliefs against the Appellants and 3rd Respondent as Defendants:
i. A declaration that the ApenaOgunpodo family is the owner under native law and custom of all that land measuring 216.4-2 acres shown in survey plan no. ASC/3276/LA/2000 dated 19/12/2000 drawn by F. A. Ogunbadejo licensed surveyor and the said family is entitled to a right of occupancy in respect thereof.
ii. Possession of the said land.
iii. An injunction restraining the Defendants, their servants, agents and privies from further entry unto the said land.
iv. General damages of N500,000,000.
v. Special damages of N1,202,329,512 for loss of use of the land in the years 2009 to 2016 based on the annual rental values for 2009 to 2016.
1. Exemplary damages of N5,000,000,000.
Upon receipt of the originating processes, the Appellants herein filed a notice of preliminary objection dated 23rd November, 2017, challenging the jurisdiction of the Court to entertain the suit, on the grounds that (a) the suit is statute barred; (b) the cause of action has been compromised; and (c) the 1st and 2nd Respondents’ claim can only be founded on a memorandum of understanding dated July 22, 2008. Arguments were taken on the preliminary objection and on the 20th December, 2018, the Court found no merit in the preliminary objection, holding that the 1st and 2nd Respondents’ action is not statute barred.
Naturally dissatisfied with the decision, the Appellants have approached this Court to ventilate their grievances vide a Notice of Appeal contained at pages 201 to 203 of the Record of Appeal, with two grounds of appeal. In compliance with the practice in this Court, the parties filed and exchanged their respective Briefs of Argument. In the Appellants’ Brief of Argument dated March 13, 2020, and filed on March 17, 2020, but deemed properly filed on 20th January, 2021, learnedcounsel for the Appellant formulated a sole issue, to wit:
“Whether or not the lower Court had jurisdiction to entertain this matter?”
In the Brief of Argument dated 12th January, 2021 but deemed 20th January, 2021 filed on behalf of the 1st and 2nd Respondents, a sole issue was formulated for determination as follows:
“Whether the 1st and 2nd Respondents’ action is statute barred?”
A reply Brief of Argument dated 9th February, 2021 and filed on 11th February, 2021 was also filed in response to the 1st and 2nd Respondents’ Brief of Argument by the Appellants.
Meanwhile, a Brief of Argument dated 24th September, 2021 was filed on behalf of the 3rd Respondent. Curiously, rather than canvass arguments in support of the judgment, the 3rd Respondent’s counsel made submissions in support of the Appellants’ position in the appeal and urged the Court to resolve the sole issue in the appeal in favour of the Appellants. Now, the Apex Court has stated in a plethora of cases that the traditional role of a Respondent to an appeal is to defend the judgment appealed against. If he wants to depart fromthis role by attacking the said judgment in any way, he is obliged by the rules to file a cross-appeal as the 1st and 2nd Respondents have done in this case. See Lafia Local Government vs. The Executive Government Nasarawa State &Ors (2012) LPELR-20602 (SC); Dangana& Anor vs. Usman&Ors (2012) LPELR-25012 (SC); Kayili vs. Yilbuk&Ors (2015) LPELR-24323 (SC); Agi vs. PDP &Ors(2016) LPELR-42578 (SC). Therefore, the 3rd Respondent’s role in this appeal is ignoble and arguments canvassed by him in his Brief of Argument amounts to freaky advocacy liable to be discountenanced and are hereby discountenanced.
Arguments
Appellants’ counsel submitted that the 1st and 2nd Respondents’ action has become statute barred since it was commenced about twenty (20) years after the revocation of their customary right of occupancy in 1993. Referring to Section 16 (2) (a) and 21 of the Limitation Law of Lagos State, 2003, counsel submitted that the suit ought to have been instituted within twelve (12) years after the revocation of their right by the Lagos State Government. The cases of Elabanjo vs. Dawodu (2006) 15 NWLR(Pt.1001) 76 at 121-122; Ajibona vs. Kolawole (1996) 10 NWLR (Pt.476) 22; Egbe vs. Adefarasin (1987) 1 NWLR (Pt.47) 1; Adekoya vs. F.H.A. (2008) 11 NWLR (Pt.1099) 539 at 552; Eboigbe vs. NNPC (1994) 5 NWLR (Pt.347) 649 referred to. It is the further submission of counsel that in determining whether a suit is statute barred, the Court will consider the Writ of Summons and Statement of Claim to ascertain the alleged date of the wrong in question which gave rise to the Respondent’s cause of action and by comparing that date with the date the matter was filed.
Learned counsel further submitted that even if it is conceded that the revocation notice did not provide further and better particulars of the villages contained in the notice, the Respondents’ window to challenge the revocation notice opened in 1993, when same was made and published. It was the submission of counsel that knowledge of the acquisition by the Respondents is immaterial to a plea of limitation law. The case of Madukolu vs. Nkemdilim (1962) NSCC 375 and Sokoto State Government vs. Kamdex (Nig.) Limited (2007) 7 NWLR (Pt.1034) 466 at 495 were relied upon to argue that the Court lacks the jurisdiction to entertain the action since the suit is statute barred.
Learned counsel also noted that the Respondents are parties and privies to the memorandum of understanding dated 22nd July, 2008 (Exhibit D4), which covers the land which was acquired in 1993 by the Lagos State Government. It was noted that the 1st and 2nd Respondents compromised their rights and consented to the use of their lands in the development of the Lekki Free Trade Zone project. It is the submission of learned counsel that the issue of proper acquisition has been subsumed, compromised and waived by the agreement for the development of the Lekki Free Trade Zone project contained in Exhibit D4. Counsel therefore argued that having compromised their rights, the 1st and 2nd Respondents’ cause of action is founded on Exhibit D4, relying on the decision in the cases of Abey vs. Alex (1999) 14 NWLR (Pt.638); Obayiuwana vs. Ede (1998) 1 NWLR (Pt.535) 670 at 678. Learned counsel finally relied on the case of Osun State INEC vs. NCP (2013) 3-4 MJSC (Pt.1) 1 at 20 and other cases, to submit that the present action based on the issue of acquisition is an abuse of Court process.
On the part of the 1st and 2nd Respondents, the cases of Agi vs. Eno (2010) 5 NWLR (Pt.1188) 626 at 641; Mobil Producing Nigeria Unlimited vs. Uwemedimo (2006) All FWLR (Pt.313) 116 at 133-134; Woherem vs. Emereuwa (2004) 3 NWLR (Pt.890) 398; and JFS Investments Limited vs. Brawal Shipping Lines Limited (2010) 18 NWLR (Pt. 1225) 445 were relied upon by counsel on the position of the law on limitation of action and what the Court considers in determining whether an action is statute barred. Learned counsel noted that the lower Court found that the 1993 revocation notice excluded established villages and since the 1st and 2nd Respondents’ lands are located within the established villages, the 1st and 2nd Respondents’ cause of action accrued in 2008 when the 3rd Respondent entered the lands and not in 1993 when the revocation notice was made. Counsel for the 1st and 2nd Respondents noted that since ground one of the Appellants’ Notice of Appeal does not relate to the ratio decidendi of the lower Court, the arguments canvassed thereon should be discountenanced, citing the case of Saraki vs. Kotoye (1992) 3 NSCC 331. It was also submitted that no leave was obtained by the Appellants before making the submissions contained in paragraph 3.9 of the Appellants’ brief to the effect that the land was mentioned in the revocation notice as part of the lands whose title was revoked by the Lagos State Government and that the 1st and 2nd Respondents acknowledge the adverse interest in the land in paragraphs 10 and 11 of the Statement of Claim.
It was further submitted that the Appellants failed to establish that the cause of action in this case accrued in 1993 since it is evident that the disputed land and other established villages within the schedule perimeter outlined in the revocation notice were not part of the land acquired by the Lagos State Government. Counsel further argued that contrary to the Appellants’ argument that the 1st and 2nd Respondents had constructive notice of the revocation notice upon its publication in 1993, the law is that a cause of action can only accrue upon the service of the revocation notice and not upon publication, relying on the cases of Olatunji vs. AG, Oyo State (1994) LPELR-14116, CSS Bookshops Limited vs. The Registered Trustees of Muslim Community in Rivers State(2006) 4 SCNJ 310. He also restated that the publication and constructive notice of the revocation did not arise in this case since the 1st and 2nd Respondents’ lands in pre-existing villages were exempted from the 1993 revocation notices.
It is the final submission of counsel that the argument that the present action ought to be dismissed owing to the execution of Exhibit D4 should be discountenanced by this Court as it is unrelated to the question as to whether the 1st and 2nd Respondents’ cause of action was statute barred, and does not emanate from any of the two grounds of appeal contained in the Notice of Appeal found at pages 201 to 203 of the Record of Appeal.
I have taken a quick glance at the said grounds of appeal and I am in agreement with the 1st and 2nd Respondents’ counsel that the argument canvassed on this leg of the appeal by the Appellants in their Appellant’s Brief of Argument has no leg to stand since it does not relate to an issue which emanates from the grounds of appeal. The two grounds of appeal relate to complaint bordering on the decision of the learned trial judge that the1st and 2nd Respondents’ suit was not statute barred, and there is no complaint in connection with the issue of compromise of the 1st and 2nd Respondents vide Exhibit D4. Therefore, the entire arguments canvassed in paragraphs 3.19 to 3.24 of the Appellants’ Brief of Argument shall be and are hereby discountenanced.
In the reply brief, Appellants’ counsel submitted that contrary to the submission of the 1st and 2nd Respondents’ counsel, the arguments canvassed in paragraph 3.9 of their brief was captured in their reply on point of law to the 1st and 2nd Respondents’ counter-affidavit filed at the lower Court and contained at pages 185 to 188 of the Record of Appeal. Learned counsel further submitted that the cases relied upon by the 1st and 2nd Respondents on service of notice are inapplicable to this case. He noted that the 1st and 2nd Respondents never contested service of the revocation notice, but the crux of their claim is that the revocation notice excluded established villages, covered by their lands.
Resolution
The crux of the Appellants’ complaint in this appeal is that considering the undisputed facts before it, the lower Court ought to have concluded that the 1st and 2nd Respondents’ action is statute barred and therefore declined jurisdiction to entertain the suit. It is essentially the Appellants’ case that the cause of action in the suit accrued in 1993 when the Lagos State Government revoked the 1st and 2nd Respondents’ customary rights of occupancy in the subject land. The Appellants argued that since the suit was not commenced within the 12 years prescribed under Section 16 (2) (a) and 21 of the Limitation Law of Lagos State, it is statute barred.
The limitation of particular conduct by a statute gives a time limit during which certain actions or steps should be taken and one is barred from taking action after the period specified in the statute. Any action taken after or outside the specified limit or period is of no avail and has no valid effect. See the recent decision of the Supreme Court in the case of Aguma vs. APC & Ors (2021) LPELR -55927 (SC). Indeed, when an action is deemed statute barred, it implies that by the provision of the applicable law, the cause of action of the plaintiff is not capable of being enforced in a Court of law.
The law is that for the purpose of statute of limitation, time begins to run from the date the cause of action accrues.
A cause of action is the fact or aggregate of facts, which establish or give rise to a right of action. It is a factual situation, which gives a person a right to judicial relief. It is thus the factual situation stated by the plaintiff which if proved, will entitle him to a remedy against the Defendant.
In ascertaining whether a suit is statute barred, the Court is only enjoined to examine and consider the claimant’s writ of summons and the averments contained in the statement of claim evidencing the time the cause of action accrued and compare that date with that on which the originating processes were filed by the claimant. In Woherem JP. vs. Emereuwa & Ors (2004) LPELR-3500 (SC) at 16, paras E – G, the Supreme Court, per Iguh, JSC held that: “The law is firmly settled that the period of limitation is determinable by looking at the writ of summons and the statement of claim only to ascertain the alleged date when the wrong in question which gave rise to the plaintiff’s cause of action was committed and by comparing such date with the date on which the writ of summons was filed. If the time pleaded in the writ of summons or statement of claim is beyond the period allowed by the Limitation Law, the action is statute-barred.”
See also Hassan vs. Aliyu & Ors (2010) LPELR-1357 (SC); Military Administrator, Ekiti State vs. Aladeyelu (2007) ALL FWLR (Pt. 369) 1195 at 1218-1219 (SC).
I have examined the 1st and 2nd Respondents’ Writ of Summons and the Statement of Claim in this case. From the claims as endorsed on the originating processes, as well as the averments in the Statement of Claim, the 1st and 2nd Respondents’ cause of action in this case and when the cause of action arose is summed up in the paragraphs highlighted below:
“9. As at the date of Notice No. 36 of 1993 published in the Lagos State of Nigeria Official Gazette No. 20 Vol. 26 of 1993:
i. The suit land was an established settlement and village inhabited by a community made up of the Claimant Family, the Tubeko Family and many tenants of the former. The Claimant Family retained its dominion and control over the suit land….
11. Although Eto Village (the suit land) was within the perimeter outlined in the schedule, the notice excluded villages and towns and other communities and settlements established before the date of the notice.
12. The said notice did not provide further and better particulars of villages, towns, communities or settlements established as at the date of the notice in its schedule….
13. The said notice did not revoke the Claimant Family’s right of occupancy over the suit land.
14. The said notice was not served on the Claimant Family.
16. In late 2008, the LSG claiming it had revoked the Claimant Family’s right of occupancy, entered unto the suit land with earth moving equipment and machines and proceeded to demolish the houses thereon and lay waste (sic) the entire village.
17. The LSG evicted members of the Claimant Family, the Tubeko Family and tenants of the former from the suit land…
23. The utilization of land within the scheduled perimeter for the building of an oil refinery by the 2nd and 3rd Defendants is outside the public purposes set out in Revocation Notice No. 36 of 1993.
24. The 2ndand 3rd Defendants were aware that the utilization of land within the scheduled perimeter for the building of an oil refinery was outside the public purposes set out in revocation notice no. 36 of 1993.
25. The 2nd and 3rd Defendants were aware that the LSG did not revoke the rights of occupancy in respect of the villages before the LSG gave them possession and granted them a right of occupancy in respect thereof…”
From the above averments, it is obvious that the 1st and 2nd Respondents’ case is that their lands do not form part of the lands compulsorily acquired by the Lagos State Government vide the 1993 revocation notice, since their lands fall within established villages exempted under the revocation notice. The 1st and 2nd Respondents also claimed that they were not served with the said revocation notice, presumably in contravention of the provisions of the Land Use Act. There is also the allegation that the acquired lands were not used for the purpose for which it was purportedly acquired. According to the 1st and 2nd Respondents, the interference in their interests did not arise until sometime in 2008 when the Lagos StateGovernment allegedly trespassed unto their lands and evicted them. It is on this basis that the 1st and 2nd Respondents commenced the action leading to the present appeal.
The learned trial judge considered the above facts in reaching the conclusion that the 1st and 2nd Respondents’ suit is not statute-barred. The learned trial judge held at pages 198 of the record of appeal thus:
“There is no doubt from the foregoing that the 1993 revocation of rights of occupancy by the Lagos State Government did not affect established villages, towns and settlement and in so far as the Claimants/Respondents have made this averments [sic] in their statement of claim and same has been supported by Exhibit D2 attached to the affidavit in support of the Defendants/Applicants motion, I agree with the Claimants/Respondents that the 1993 revocation did not affect the land in dispute and therefore hold that the cause of action in this suit did not accrue in 1993…
I also hold that by the foregoing holding by this Court, the Claimants’ cause of action did not accrue in 1993 but in 2008 when the 2nd and 3rd Defendants allegedly entered theland. Therefore, computation of time began to run from 2008.
Since this suit was filed in 2017, I hold that the 12 years period provided for the Claimants/Respondents to file this action has not lapsed when they filed the action. I accordingly hold that this action is not caught by the Limitation Law and is therefore not statute barred….”
It needs to be emphasized that the question as to whether the said land falls outside the lands acquired by the Lagos State Government vide the 1993 revocation notice, cannot be conclusively determined at the preliminary stage of the proceedings. It is a live and substantive issue, which can only be determined upon plenary trial. In other words, the question as to whether the 1st and 2nd Respondents’ land/village is in fact an established village must be resolved before the Court can determine the effect of the revocation notice on the 1st and 2nd Respondents’ cause of action, and this Court cannot determine same at this stage. A fortiori, the question of the validity of the revocation notice, particularly as to whether the said notice was properly served on the 1st and 2nd Respondents andthe allegation that the land was not used for the purpose for which it was acquired, can only be determined after plenary trial. In the case of Woherem JP. Vs. Emereuwa&Ors., the Supreme Court did not mince words when it held as follows:
“The principle of law is well established that an application by way of a preliminary objection for the dismissal of a suit in limine may be made on points of law and where there are no facts in dispute for the purpose of determining such an objection. See Bello Adegoke Foko and Ors v. OladokunFoko and Anor(1968) NMLR 441. The applicant relies only on the facts as stated by the plaintiff in his writ of summons and statement of claim. The facts stated by the plaintiff in his writ of summons and statement of claim are for that purpose deemed to have been admitted by the defendant/applicant. See Ayanboye v. Balogun(1990) 5 NWLR (Pt. 151) 392 at 407. Where, however, disputes as to facts appear on the pleadings of the parties, as is the case in the present application, it is only open to a defendant to raise a preliminary objection on the face of the plaintiff’s writ of summons if the said defendantaccepts the plaintiff’s averments of fact either on the writ of summons or on his statement of claim but submits that even in those circumstances no cause of action would appear to have been disclosed or that the Court has no jurisdiction to entertain the suit or that the action is statute-barred by virtue of some Limitation Law. But, if facts exist, which must first be adduced in or established by evidence to enable a point of law to be sustained, the preliminary objection may not properly be taken. See Banjo and others v. Eternal Sacred Order of Cherubim and Seraphim (1975) 3 SC 37. Similarly, if the facts to sustain the preliminary point are obscure or at large, a preliminary objection may not properly be taken. A matter, therefore, which is raised by way of a preliminary point but which may be answered if evidence is adduced cannot be properly raised as a preliminary objection. Such a matter is more properly answered by evidence during the trial and shall constitute an issue for determination at the trial…”
By the averments contained in the statement of claim, particularly paragraph 11 thereof, the 1st and 2nd Respondents concededthat even though their village wherein their land is located, falls within the perimeter outlined in the schedule to the revocation notice, the said notice excluded established villages and settlements. The 1st and 2nd Respondents also copiously pleaded facts showing that their village is an established village excluded by the said notice. As it stands, the issue as to whether the 1st and 2nd Respondents’ land falls within the lands acquired by the Lagos Statement Government by the 1993 revocation notice, is an issue that must be left for the substantive trial of the dispute. In the same vein, since the issue forms the foundation of the 1st and 2nd Respondents’ case, it cannot be predetermined. The position of the law as judicially approved by the Supreme Court in the case of Ovunwo vs. Woko (2011) LPELR-2841; (2011) 17 NWLR (Pt. 1277) 522 is that Courts must guard against pre-empting or pre-determining such live issues that are to be resolved or settled at the trial of the substantive suit. See also Adetono&Ors vs. Zenith International Bank Plc (2011) LPELR-8237 (SC) (2011) 18 NWLR (part 1279) 627 at 646; Akinrimisi vs. Maerks Nig. Ltd & Anor(2013) LPELR-20179 (SC);Otti&Anor vs. Ogah&Ors (2017) LPELR-41986 (SC).
Even though the facts relied upon by the Appellants as to when the Appellants’ cause of action arose – upon publication of the revocation notice in 1993 – appeared in the statement of claim, I am constrained to hold that the question as to whether the 1st and 2nd Respondents’ suit is statute barred cannot be conclusively determined since there are other facts which must be considered and can more properly be answered when evidence is adduced at the trial and therefore constitute issues for determination in the substantive matter. It is therefore my firm view that the learned counsel was in grave error when it gratuitously proceeded into the merits of the substantive suit in a preliminary objection when evidence on the facts in issue is yet to be led.
In the circumstance, I find no merit in the Appellants’ appeal and I dismiss it accordingly. The ruling of the lower Court is affirmed. The suit is remitted to Chief Judge of Lagos State for re-assignment and trial on the merits by another Judge of the Court other than Honourable Justice G. A.Safari. I make no order as to costs.
CROSS-APPEAL
By a Notice of cross-appeal filed on 3rd February, 2021, the 1st and 2nd Respondents as Cross-Appellants appealed against part of the decision of the lower Court, on two grounds. In compliance with the rules of this Court, the Cross-Appellants filed and exchanged Briefs of Argument with the 3rd Respondent in the main appeal, who is also the 3rd Cross-Respondent in this cross-appeal.
In the Cross-Appellants’ Brief of Argument filed on 22nd March, 2021, two issues were formulated as follows:
1. Whether the learned pre-trial judge should have considered and upheld the Claimants’ contention that the failure of the 1993 Notice to spell out and capture the precise location and boundaries of the area(s) it sought to acquire in 1993 rendered it inadequate, invalid, null and void ab initio on its face as a notice of acquisition and incapable of supporting the 2nd and 3rd Defendants’ statute barred application instead of holding as he did that the 1993 Notice was valid and subsisting?
2. Whether the learned pre-trial judge should have held that the Claimants were deemed to havenotice of the 1993 Notice on its publication in 1993 without proof of service in accordance with Section 44 of the LUA having been established at trial by the 2nd and 3rd Defendants?
The 3rd Cross-Respondent’s Brief of Argument is dated and filed on 24th September, 2021. Two issues were distilled thus:
1. Whether the pre-trial judge was right in upholding the validity and subsistence of the 1993 notice of revocation? (Distilled from ground 2 of the notice of cross-appeal dated 3rd February, 2021).
2. Whether ground one of the Cross-Appellants’ grounds of appeal flow from the ruling of the lower Court?
A reply brief dated 1st November, 2021 was filed by the Cross-Appellants in response to the 3rd Cross-Respondent’s Brief of Argument.
Arguments
Cross-Appellants’ counsel noted that even though the 1993 revocation notice sought to acquire land described in the schedule contained therein, and also excluded established villages, towns and settlements, the said notice failed to spell out and capture the precise location and boundaries of the excluded villages, towns and settlements or capture the precise locationand boundaries of the actual area sought to be acquired by it. Counsel submitted that by reason of the imprecise description, the notice is invalid, null and void since it was not in conformity with section 28 of the Land Use Act. The cases of Nigerian Engineering Works Limited vs. Denap Limited (2001) NWLR (part 746) 726; AG. Bendel vs. Aideyan (1989) 4 NWLR (part 118) 646; Provost Lagos State College of Education vs. Dr. Kolawole Edun (2004) 6 NWLR (part 870) 476; McKenzie vs. Minister of Lands (2011) WASC 336; Obikoya vs. Governor of Lagos State (1987) 1 NWLR (part 50) 385 at 404 and Olatunji vs. Governor of Oyo State(1994) LPELR – 14116 were relied upon to argue that a notice of acquisition must be specific and precise as to the property acquired.
It is the further submission of counsel that due to the imprecise description of the land sought to be acquired, the 1993 revocation notice is null and void and did not need to be set aside. Learned counsel also submitted that the notice cannot, therefore, give rise to adverse possession by the Governor by virtue of Section 28(6) of the Land Use Act nor give rise to the commencement of limitation period in favour of the Governor in accordance with Section 19 of the Limitation Law. He relied on the cases of Mcfoy vs. UAC Limited (1961) 3 WLR 1405 PC at 1409; Bello vs. Diocesan Synod of Lagos &Ors. (1975) 3 SC 13; Alhaji Labaran Nakyauta vs. Alhaji Ibrahim Maikama& Anor (1972) 6 SC 51 at 78; Ononuju vs. A.G. Anambra (2009) 10 NWLR (part 1148) 182; Goldmark (Nig.) Limited vs. Ibafon Co. Limited (2012) 10 NWLR (part 1308) 291 in aid of the submission.
Cross-Appellants’ counsel submitted that the lower Court ought to have made a pronouncement on the validity of the 1993 Notice and the merit of the statute barred application of the 2nd and 3rd Defendants, citing the case ofK. Akpene vs. Barclays Bank of Nigeria Limited & Anor. (1977) 1 SC 47 at 58 – 59. Reference was made to the fact that the 1st and 2nd Cross-Respondents’ objection on ground of statute barred was brought under Order 22 of the High Court of Lagos State (Civil Procedure) Rules, 2019 and the cases ofBest (Nig) Limited vs. B.H. (Nig.) Limited (2011) LPELR – 776 (SC), to submit that the Cross-Appellants have a constitutional right to a considerationof their contention and a decision thereon. Counsel finally urged this Court to invoke its powers under Section 16 of the Court of Appeal Act, 2004 to make an order dismissing the 1st and 2nd Cross-Respondents’ statute barred application on the ground that the 1993 notice was a nullity and same did not give rise to a cause of action in 1993.
On the second issue, Cross-Appellants’ counsel submitted that neither publication nor constructive notice are modes of notification specified by Section 44 of the Land Use Act and therefore have no legal effect. It was further submitted that failure to serve a notice of acquisition on an owner/occupier in accordance with Section 44 of the Land Use Act renders such acquisition null and void, relying on the case of CSS Bookshops Limited vs. RTMCRS (2006) 11 NWLR (Pt.992) 530; AG, Bendel vs. Aideyan (supra); Olatunji vs. Military Governor of Oyo State (supra) and other cases. Learned counsel submitted that in consideration of a challenge to its jurisdiction, the lower Court was bound to accept as true pending trial the allegation of facts contained in the statement of claim that the 3rd Cross-Respondentfailed to serve any notice of revocation on the Cross-Appellants, citing, among other cases, Woherem vs. Emereuwa (2004) 13 NWLR (part 890) 398.
On the first issue formulated in the Cross-Respondent’s Brief of Argument, it was argued by the Cross-Respondent’s counsel that only proven owners and occupiers of a land can challenge the validity of the acquisition of a land, relying on the case of Goldmark (Nig.) Limited &Ors vs. Ibafon Co. Limited &Ors(2012) LPELR 9349 (SC). Counsel relied on the cases of Hamanda&Ors. vs. Ojuekun (2018) LPELR – 44858 (CA); APC vs. Umar &Ors. (2019) LPELR – 47296 (SC) to submit that the issue that was resolved at the lower Court is basically that of limitation of statutes (jurisdiction) and it will be unethical of the Cross-Appellants to point this Court to the direction of the substantive suit.
He also submitted that, by paragraph 10 and 11 of the statement of claim, it is obvious that the Cross-Appellants were aware of the 1993 acquisition and their grouse is as to whether their village which forms part of the land described in the revocation notice contained in thegazette is affected. Counsel noted that since the gazette is a public document, everyone is deemed to have public knowledge of same. She also submitted that the Court can take judicial notice of facts that are of common knowledge, relying on the decision of this Court in the case of Gangum vs. Dosunmu (2019) LPELR – 47853 (CA). She further submitted that the decision of the pre-trial Judge that the Cross-Appellants have constructive notice of the acquisition, has not determined the suit but rather the Judge only considered the gazette on the face of it and that in determining ownership of the land, evidence has to be led. Counsel finally submitted that the suit was still at the preliminary stage when the objection was filed and the Court has not had opportunity of determining the substantive suit, since evidence had not been led by parties.
On the second issue, learned counsel submitted that the first issue formulated by the Cross-Appellants from ground one of the Notice of Cross-Appeal does not relate to the decision of the lower Court. Counsel relied on the decision of the Supreme Court in Contract Resources Nigeria Limited vs. Standard Trust Bank Limited(2013) LPELR – 19934 (SC) 15, paras A – C; and Achonu vs. Okuwobi (2017) LPELR – 42102 (SC) 44 – 45, paras G – C, to submit that every ground of appeal must arise from the decision appealed. He urged the Court to discountenance ground one of the Notice of Cross-Appeal.
In the reply brief, Cross-Appellants’ counsel submitted that the Cross-Appellants are entitled to appeal against the failure of the lower Court to consider their contention that the 1993 revocation notice failed to properly describe the specific location and boundaries of the lands acquired. Reliance was placed on the cases of Ogundare vs. Ogunlowo (1997) 6 NWLR (part 509) 360; Ejikeme vs. Amaechi (1998) 3 NWLR (part 542) 456.
In response to the 3rd Cross-Respondent’s argument on the first issue, counsel contended that the statute barred application presumes the title of the Claimants and it is on this basis that the 1st and 2nd Cross Respondents as applicants contended that even if there was a cause of action, same is statute barred. Counsel further submitted that the proven title of the Cross-Appellants or their occupation of thedisputed land and the question of locus standi were irrelevant to the determination of the statute barred application or whether the pre-trial Judge could fix the Cross-Appellants with constructive notice of the 1993 revocation notice.
It was further submitted that the statement of claim is the relevant document to be considered by the Court and no paragraph therein suggests that the Cross-Appellants has knowledge of the publication of the revocation notice in 1993. It was also submitted that the 1993 revocation notice has not been shown to be a notorious fact which the Court can take judicial notice. In addition, it was the submission of counsel, relying on Olatunji vs. Governor of Oyo State (supra), that for a valid acquisition, publication and constructive notice cannot substitute actual service on the owner or occupier of the land. He argued that the allegation of non-service of the 1993 notice in the statement of claim dictated the postponement of the issue to trial where the Cross-Respondents had the onus of proving service of the notice in accordance with Section 28(6) and 44 of the Land Use Act. He noted that the pre-trial imputation ofconstructive notice, which fixed the accrual of the Cross-Appellants’ cause of action at the time of publication in 1993 is prejudicial to the Cross-Appellants and they are therefore entitled to file this cross-appeal, citing Akporue& Anor vs. Okei (1973) 12 SC 137; Orewere&Ors vs. Abiegbe&Ors(1973) 3 ECSLR 1164 at 1167.
Resolution
The first point to be considered and addressed borders on the 3rd Cross-Respondent’s contention that the complaint in ground one of the Cross-Appellants’ Notice of cross-appeal does not emanate from the decision of the lower Court. I must say that this contention is evidently misconceived. It is obvious that the Cross Appellants’ complaint in ground one relates to the failure of the pre-trial Judge to consider their contention on an issue properly placed before it and make pronouncement thereon. As the learned counsel for the Cross-Appellants rightly submitted, the Cross-Appellants are entitled as of law to appeal against the failure of the pre-trial Judge to make pronouncement on the issue before it. The Supreme Court in the case of Ogundare vs. Ogunlowo (supra), per Belgore,JSC held that in the absence of a decision on a point that has been canvassed at the trial Court, the course open to the party aggrieved is to appeal against that non-decision. See also Saude vs. Abdullahi (1989) 4 NWLR (Pt.116) 387 and Adesokan v. Adetunji (1994) 5 NWLR (Pt.346) 540.
It must be pointed out that the crux of the Cross-Appellants’ cross-appeal relates to the purported invalidity or nullity of the 1993 notice of revocation. According to the Cross-Appellants, since the aforesaid notice failed to properly specify the precise location and boundaries of the lands it sought to acquire, it is null and void ab initio and incapable of sustaining the objection that the 1st and 2nd Cross-Appellants’ suit is statute barred. In the same vein, Cross-Appellants contended that in the absence of service of revocation notice on the Cross-Appellants, they cannot be deemed to have constructive notice of the acquisition of their land by the Lagos State Government.
Interestingly, counsel for both the Cross-Appellants and the 3rd Cross-Respondent conceded the fundamental point that the issues in this cross-appeal are of such nature that are atbest reserved for determination after trial. See the arguments canvassed in paragraphs 7.2 to 7.11 of the Cross Appellants’ reply brief and paragraphs 4.3 to 4.8 of the 3rd Cross Respondent’s Brief of Argument.
I have, in the course of determining the merit of the main appeal filed at the instance of the 1st and 2nd Cross-Respondents, stated that the question of the validity of the revocation notice, particularly as to whether the said notice was properly served on the 1st and 2nd Appellants and the allegation that the Cross-Appellants’ land falls within established villages excluded from acquisition by the revocation notice of 1993, can only be determined after full dress trial. My reasoning for this conclusion is fortified by the statement of law expressed by the Supreme Court in similar circumstances in the case of Woherem JP. vs. Emereuwa&Ors (supra), where the Apex Court admonished that where facts exist, which must first be adduced in or established by evidence to enable a point of law to be sustained, the preliminary objection may not properly be taken. It was further held that
“a matter, therefore, which israised by way of a preliminary point but which may be answered if evidence is adduced cannot be properly raised as a preliminary objection. Such a matter is more properly answered by evidence during the trial and shall constitute an issue for determination at the trial…”
As earlier noted, the foundation of the Cross-Appellants’ contention relates to facts that can only be established by evidence. It will therefore be hasty to make any pronouncement touching on the validity of the revocation notice at this stage of the proceedings.
In the same terms as in the main appeal initiated by the 1st and 2nd Cross-Respondents, I see no merit in this cross-appeal and I dismiss it. The suit is remitted to Chief Judge of Lagos State for re-assignment and trial on the merits by a Judge of the Court other than Honourable Justice G. A. Safari.
Parties to bear their respective costs.
OBIETONBARA OWUPELE DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother, MUHAMMAD IBRAHIM SIRAJO, JCA and I agree with my Lord’s reasoning and conclusion. After considering when the cause of action accrued and comparing it with when the suit wasfiled at the lower Court, the lower Court came to the right decision that the action was not statute barred. A statute of limitation removes the right of action, the right of enforcement, the right to judicial relief and leaves a Plaintiff/Claimant with a bare and empty cause of action. See EGBE v. ADEFARASIN (1987)1 NWLR part 47 p.1 at p. 21. Since the action is not statute barred, the cause of action remains existential. It is therefore necessary for the lower Court to consider issues before it that it failed to make pronouncements on. It is accordingly necessary that the suit be remitted to the Chief Judge of Lagos State for the suit to be re-assigned to another judge, other than G. A. Safari, J for trial.
ADEBUKOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had earlier carefully gone through the draft copy of the judgment just delivered by my learned brother, MUHAMMAD IBRAHIM SIRAJO, JCA, and found that he has justly resolved all the issues involved in this instant appeal.
Where the parties joined issues which cannot be conveniently determined in limine or at an interlocutory stage except more evidence is adduced by the parties, especially as the suit leadingto the present appeal, which was commenced by way of Writ of Summons, it is my humble opinion that the trial Court ought to have declined to make findings or take decisions at that stage on the basis of the Appellant’s preliminary objections when more evidence had not been called in the substantive suit. If made pronouncement on the substance of the matter, even before evidence was led and arguments of counsel marshalled on the substantive suit, the trial Court would have determined the entire case in limine and/or at an interlocutory state. I call in aid, the cases of CIL RISK & ASSET MANAGEMENT LTD VS EKITI STATE GOVT. & ORS (2020) LPELR-49565(SC), BAKARE VS BAKARE (2012) 16 NWLR 29 AT 49-50, PARAS H-D.
Premised on the foregoing and the careful analysis done by my learned brother, I agree with the reasoning and conclusion reached by my learned brother and also abide by the decision made.
No order is made as to cost.
Appearances:
I. David Nkire For Appellant(s)
D. Oluwa – for 1st and 2nd Respondents
A.O. Muheeb – for 3rd Respondent For Respondent(s)
