Chief Samuel Omole & Ors V. Lawrence Ayo Oloruntimehin & Anor (2005)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE, J.C.A.
The Appellants were the Plaintiffs in the lower Court, who had sued the Defendants now Respondents, seeking for a declaration of title, trespass and general damages, For the sake of clarity, I reproduce the claim of the Plaintiffs before the Customary Court Ekiti East Grade 1, as follows:-
“(a) A declaration that the piece or parcel of land senate lying and being along Ajowa road Omuo Oke Ekiti East Local Government, which said Piece or parcel of land is known and called Atanlegbewa is the property of Arufe Community under and by virtue of Omuo native Law and custom and thence entitled to the Customary right of occupancy.
(b) An order nullifying the land allocation certificate or any other document howsoever relating to or connected with the said piece or parcel of land Issued to the defendants or any of them or any other person whatsoever or their agents, privies, servants or any other person purporting to derive title from the defendants by Ekiti East Allocation committee or any other person, body or government functionary either in Ekiti East Local Government or Ekiti State Government purporting to confer title of the land on the defendants.
(c) N2,000.00 General Damages for trespass committed and still being committed by the defendants on the said land.
Claim not admitted by the defendants”.
The Defendants in that court denied the claims. Evidence produced by both, Plaintiffs called three witnesses. Two witnesses testified for the Defendants. The court visited the locus in quo and some observations were made by the court on page 13 of the record dated 3019/98. It appears that learned Counsel to both parties did not deem it fit to address the court.
On 14th day of October, 1998, judgment was entered in favour of the Defendants and struck out the suit filed by the Plaintiffs. On page 18 of the Record the Senior President of that court Mr. D. C. Dada and a member Omole Esq. says:-
“From the evidence of the second defendant it is clear she does not need the land for her child or herself because she has built her own house and that of her son in under construction.”
Rather, she is fighting for the land for the entire family of her husband. One question strike this court, why has the entire family not made use or develop the land since 1946 which is about 52 years ago? The court believes that failure of the Oloruntimehin family to develop the disputed land makes the Arufe community wants to claim the land back for their own community wants to claim the land back for their own community use. From all the above observations, the court believes that a plot of the whole land is in dispute and the other plot is vacant. The only area in dispute is the surveyed plot and it belongs to the defendants.
COURT ORDER:- It has been established that the disputed Plot is that of the Oloruntimehims. The case is hereby struck out”.
The Plaintiffs therein appealed to the High Court of Justice Ekiti State, holden at Ikale. Notice of Appeal containing for grounds of appeal were filed together with additional ground of appeal with the leave of the lower Court.
Learned Counsel to both parties addressed the court. Ruling was reserved on whether or not grounds 2, 3 and 4 of the additional grounds of Appeal are competent. On 29/9/99, ruling was given holding that those grounds in question are competent. See page 36 where Kayode Bamisile J. says:-
“It therefore seems to me that the interest of justice demands that parties in appropriate cases, should be afforded a reasonable opportunity for their rights determined on the merit so long as the equities of the matter are not defeated and no injustice to the other party is hereby occasioned. See also, the case of Abiegbe and others Vs. Ilugbodume and other (1983) NSCC page 26 consequently Grounds 2, 3 & 4 filed and argue (sic) as additional grounds of appeal is hereby granted and deemed as properly filed and served on the respondent”.
After the ruling learned Judge of the lower Court considered the main appeal and concluded that his court has no jurisdiction to try the case as the Plaintiffs action was caught off by Section 6(2) of the Limitation Laws which in effect affects the jurisdiction of that court. On page 59 he says:-
“On the whole, I hold that the defendants are covered by Section 6(2) or the Limitation Laws and ns this affects the jurisdiction of the court, there is no need to consider other grounds of Appeal. Consequently, I dismiss this Appeal and affirm the ruling of the lower Court, i.e., Customary court Omouo-Ekiti given on 14/10/98, in Suit No. CC/41/98.”
Having been aggrieved the Appellants therein appealed to this court on a Notice of Appeal containing Five grounds of appeal.
In compliance with Order 6 RR 2 & 4 of the Court of Appeal Rules both counsel filed their respective briefs of argument. The Plaintiffs/Appellants formulated 2 issues as follows:-
“(i) Whether or not, the Limitation Law or Ondo State is applicable to this case having regard to the claim before the court.
(ii) Whether the Court of Appeal can review the evidence adduced in the court of first instance and give judgment as the lower court ought to have done”.
The Respondent in turn distilled three issues for our consideration of the appeal, they are reproduced thus:-
“(a) Whether or not, the lower court was right in holding that Limitation law of Ondo State 1978 as applicable to Ekiti State affects this case having regard to the evidence of the parties.
(b) Whether the Respondents abandoned the land in dispute since it was granted to them in 1946 by Arufe Community to warrant any reversionary interest to Arufe Community.
(c) Whether the judgment of the trial Court is against the weight of evidence to warrant a review of it by the appellate Court and who is entitled to title to land where there are two claimants”.
On the 1st issue, the Appellants’ complaint is that the land in dispute was held under native law and custom how can section 6(2) of the Limitation Law of Ondo State apply to this matter. This matter should be excluded.
In arguing issue No. 1, learned Counsel for the Appellants Mr. Ogidan, contended that the claim of the Plaintiffs in the Writ of Summons was related to or based on a disputed land held under native law and custom of OMO-EKITI. Section 1(2) of the Limitation Law Cap 61, Laws of Ondo State as applicable to Ekiti State excludes this case from the ambit of the Limitation Law in matters relating to land held under native law and custom. The lower court, counsel submitted, was in gross error in law to have held that the Limitation Law of Ondo State, 1978 is applicable in this case.
I have considered the claims and evidence adduced by both parties. I have considered the Limitation Law Cap. 61 Laws of Ondo State applicable in Ekiti State Section 1 (2) thereof and hold that it was wrong for the trial Court, i.e. High Court of Justice Ekiti State to have held that the Limitation Law covered the Defendants now Respondents, since the Plaintiffs now appellants instituted as action outside the statutory period allowed by the law within which to file an action. The law stipulates a period of 12 years when the cause of action arose. The Defendants claimed that the land was granted them by the Plaintiffs’ community in 1946, and they were in possession since then. The Plaintiffs did not institute action until in 1998 far beyond the 12 years. On that score, the learned trial Judge held that the Limitation applied to cover the position of the Defendants now Respondents.
There is no doubt that the cause of action might have arisen since 1946. And where applicable the Plaintiffs’ right, which did not file action until 1998, becomes extinguished by virtue of the provisions of the Limitation Law of 1978 of Ondo State.
By virtue of Section 6(2) of the Limitation Law, Cap.6, of Ondo State, 1978, no action shall be brought by any other person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.Before I proceed further, I wish to state three reasons why the decision of the lower Court cannot stand for being perverse:-
(a) The said cause of action, if any, accrued in 1946.
(b) The Limitation Law of 1978 was promulgated in 1978, after the so called right of action accrued; and
(c) That the land the subject matter of the suit before the Lower Court was held under the customary/native law”.
The cause of action of the Plaintiffs if any accrued before the promulgation of this Law in 1978. It may therefore be irrelevant not to talk of applicability of same in this mutter.
The learned trial Judge, with respect, failed to make further research to determine whether this Limitation Law applies to this land which is subject to Native law and custom. This Limitation Law does not give the Defendants now Respondents any licence to escape litigation. Section 1(2) of the Limitation Law Cap. 61 Laws of Ondo State 1978, as applicable in Ekiti State, provides thus:-
“(2) Nothing in this Law affects actions in respect of the title to land or any interest in land held by Customary tenure or in respect or in respect of any matter which is subject to the jurisdiction of a Customary Court relating to marriage, family status, guardianship of children inheritance of disposition of property on death”.
Consequently, and in view of the evidence and pleading in the lower court, I am of the firm view that the lower Court was palpably wrong in failing to consider that the Limitation Law does not apply to the land dispute the title of which was under the Customary law and again, it was incorrect to state that the said Limitation Law covered the Defendants before him. It is clear that unfortunately the learned trial Judge reached his decision per incuriam. That being the case his decision is wrong and perverse.
Accordingly, I allow this appeal and order for a retrial before another court with the requisite jurisdiction where full trial will be concluded. N5,000.00 costs to the Appellants.
Other Citations: (2005)LCN/1782(CA)
