David Ogunlade Vs Ezekiel Adeleye (1992)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C.

In Suit No. AC/l3/77 filed at the Ekiti North Grade 1 Customary Court, the plaintiff/respondent claimed from the defendant/appellant

“(a) 56 tins of palm oil at the current value

(b) 1,400 kolanuts at the current value

(c) N28.00

all being the twenty-eight (28) years arrears of Tribute (Isakole) payable to the plaintiff by the defendant as customary tenant of the plaintiff in respect of plaintiffs’ land at Orimo farmland, Aiyedun-Ekiti………. ”

In view of the submissions of defendant/appellant’s counsel before us it is necessary to state that under the heading “claim” at page 1 of the record of proceedings, the following paragraphs follow:

“By the judgment of the Ikole Native Court on 2nd July, 1948 in case No. 113/48 the defendant was ordered to be paying the plaintiff two tins of palm-oil, 50 kolanuts and N1.00 (one naira) annually as Isakole.

The said judgment was confirmed on appeal by the Ekiti Divisional Court and later by the court of the Resident of Ondo Province. However, the defendant has refused till now to pay any Isakole despite repeated demands. The value of the land is N300.00. Plaintiff therefore claims as per summons.”

After hearing the parties the Customary Court, in its judgment dismissed the plaintiffs claim on the grounds that (i) that plaintiff was guilty of undue delay – 29 years, before taking any steps to enforce the judgment it obtained in 1948 against the defendant, and (ii) that the case had been overtaken by the Land Use Act 1978, which vested all lands in the State Government. The plaintiff/respondent was dissatisfied with that judgment, and appealed to the High Court of Ondo State against same.

By its judgment dated 10/12/81, the High Court dismissed the appeal of the plaintiff/respondent on the ground that the claim was statute barred. It considered the issues of delay and the applicability of the Land Use Act 1978. On the first, it held that since the claim was based on the 1948 judgment it was caught by section 4(4) of the Limitation Law, Cap.64 of the Laws of Western Nigeria. On the second issue the court held the view that the Land Use Act 1978, did not deprive the plaintiff of his legal rights which had accrued before that Act came into operation. The plaintiff/respondent, still dissatisfied appeal led to the Court of Appeal.

The Court of Appeal in its judgment agreed with the High Court that the claim was caught by section 4(4) of the Limitation law (supra) but did not share the view of the High Court that the effect of that section is to bar the claim of the plaintiff/respondent for the whole 28 years. On the contrary it held that since the effect of the 1948 judgment was to fix the annual Isakole to be paid by the defendant each year (when it becomes due), each yearly payment is independent of the other, and therefore only the Isakole due for 12 years calculating backwards from 1976 (the 1977 payment not being due when the action was filed) were claimable and enforceable. The court therefore partly allowed the plaintiff/respondents appeal by giving him judgment for arrears of Isakole for the years 1964 to 1976. It also confirmed the decision of the High Court on the effect of the Land Use Act 1978. This time, the defendant appealed to this court against the judgment of the court below. The plaintiff/respondent, however filed on 17/3/88, a notice (as respondent) of his intention to contend that the decision of the Court of Appeal be varied pursuant to the provisions of Order 8 Rule 3 of the Rules of Court of Supreme Court, 1985.

Briefs were filed and exchanged by the parties to this appeal, and oral arguments adduced in expatiation of same. The defendant/appellant (referred to hereafter as “appellant” only) set out only one issue for determination as follows:”

Does not the order of the Court of Appeal that the defendant pay part of the judgment debt awarded by the Ikole Native Court in Suit No. 113/48 of 1948 given on the 2nd day of July, 1948 amount to ordering the enforcement of the said judgment by an action instituted more than twelve years after the date of the judgment sought to be enforced.”