Dr. Charles Oladeinde Williams V Madam Olaitan Williams (2008)
LAWGLOBAL HUB Lead Judgment Report
MUSDAPHER, J.S.C.
The appellant herein and one Alexander Odu Williams [now deceased] were parties to a lease. The appellant took the lease of the property situated at No. 31, Little Road, Yaba Lagos for 50 years. The lease was dated and was to commence from the 5th day of July, 1976. By clause 11 of the lease it was recognized that there were tenants on the demised property but the responsibility of ejecting the tenants was placed on the appellant. In suit No. 86/85, before the Magistrate Court of Lagos State, the appellant instituted a recovery of premises action against the respondent the only occupant remaining on the premises. The action was dismissed on the 29/8/1991 on the grounds of jurisdiction. On the 1st of June, 1992, the appellant herein filed an Originating Summons before the High Court of Lagos State claiming against the respondent herein the following reliefs:-
“1. A declaration that the applicant as against the respondent for herself and as heir of one late Odu Williams, is the person entitled to the possession of the property situate at and known as No. 37, Little Road, Yaba Lagos under the lease registered as Title No. 11879.
- A declaration that the applicant has not forfeited his rights and any entitlement whatsoever under the lease registered as Title No. 11879.
- An Order construing the lease and declaring that the lease registered as Title No.1 1879 in the Lands Registry in the office at Alausa, Ikeja is still valid and subsisting.”
The Originating Summons was supported by an affidavit attached to which were certified true copies of the lease agreement dated the 5/7/1976 and the judgment of the Chief Magistrate Court in suit 86/85. There was also a further affidavit in support of the Originating Summons filed on the 9/10/1992.
Upon the service of the Originating Summons on the respondent, she filed a Notice of Preliminary Objection under Order 22 Rules 3 and 4 of the High Court of Lagos State [Civil Procedure] Rules 1972 and asked the Court for the following orders:-
“1. That the case of the applicant/respondent be dismissed as Lagos State High Court has no jurisdiction, by virtue of sections 16 (2) (a) and 21 of the Limitation Law Cap 70, Laws of Lagos State.
- That the action be dismissed as It is vexatious, oppressive and an abuse of the process of the Court.
- That the judgment of the Chief Magistrate Court, Yaba in suit No. 86/85 constitutes a res judicata.”
The grounds upon which the respondent relied for the preliminary objection were;-
“i. Respondent/applicant as per Exhibit “WILLY B” attached to the application of the applicant/ respondent had been in possession since 1970, assuming her possession became adverse in 1976 which is not conceded (sic) by 1992, she had been in continuous adverse possession for 16 years, therefore this honourable court lacks jurisdiction as the action is statute barred.
ii. Claim for possession was refused at the Chief Magistrate Court Yaba on 29/8/1991 almost a year ago, no appeal court has set it aside, it constitutes (sic) a res judicata; expressing an intention to appeal is an abuse of the process of the Court.
iii That the applicant has not come to this Honourable Court with clean hands, and he who comes to equity must come with clean hands.
iv. That deponent does not have the authority of the applicant to swear to the affidavit.”
After hearing the learned counsel of the parties, the learned trial judge in his ruling delivered on the 17/3/1994 dismissed the objection. The respondent felt aggrieved with the dismissal of the preliminary objection and filed a Notice of Appeal.
In the meanwhile argument was heard by the learned trial judge on the main claim of the Originating Summons and in a judgment delivered on the 21/5/1995, the trial judge found merit in the Summons and accordingly granted the reliefs sought by the applicant, the appellant herein. The respondent felt unhappy also with the decision and has filed a second Notice of Appeal. The two appeals were later consolidated by an order of the Court of Appeal. After its consideration of the issues submitted in the two appeals, the Court of Appeal per Aderemi J.C.A [as he then was] who read the lead judgment which was concurred by Oguntade J.C.A. and Chukwuma-Eneh J.C.A. [both as they were then] concluded thus:-
“…… having regard to all I have been saying, the two appeals that have been consolidated by order of this court, are substantially, meritorious having regard to my treatment of the provision of the Statute of Limitation. They are therefore allowed. The ruling of the court below delivered on the 17/3/1994 whereby the trial judge held that it has jurisdiction to entertain the suit and consequently dismissed the preliminary objection is hereby set aside. In its place, I make an order upholding the preliminary objection and consequently, dismissing the action in toto. Similarly the judgment of the court below delivered on 21st March, 1995 granting the three reliefs claimed by the applicant/respondent per the Originating Summons is hereby set aside. In its place, is an order dismissing the suit in toto……”
Now, the appellant felt unhappy with the two decisions and has now appealed to this court. The notice of appeal contains five grounds of appeal. In his brief of argument for the appellant, the learned counsel for the appellant has identified and formulated 4 issues arising for the determination of the appeal. The issues read:-
(i) Whether the 1st appeal before the Court of Appeal [i.e appeal on the ruling of the trial judge delivered on the 11th day of March, 1994 was valid.
(ii) Whether the Originating Summons before the trial judge was statute barred or whether the appellant’s cause of action arose from the 5th July 1978.
(iii) Whether the trial judge went into serious error by granting possession of the property in dispute to the appellant upon the Originating Summons.
(iv) Whether the lease of the appellant is still subsisting or not.”
At the hearing of the appeal, the learned counsel for the appellant withdrew issue No.1 and consequently issue No.1 and all the arguments canvassed in that behalf in the appellant’s brief from the beginning of Paragraph 3 at page 3 to page 4 were struck out and discountenanced by me. Before I discuss the remaining three issues, I think it is convenient at this stage to briefly state the facts. The appellant claimed to have obtained a 50 year renewable lease from the late father of the respondent in respect of the property known as and situate at No. 37, Little Road Yaba. The lease commenced from the 5th of July, 1976. It is claimed that the respondent and one of her sisters were living on the property at the commencement of the lease and that the appellant allowed them to live on the property with the understanding that they would vacate whenever the appellant wanted. When he asked the respondent to vacate the premises she refused and he had to take an action for the possession of the property at the Magistrate Court Yaba – that is the aforesaid suit No. 86/85. In the course of the proceedings before the Magistrate Court in 1985, the respondent herein as the defendant claimed that the appellant has forfeited the lease or that the lease never existed. The respondent further claimed that the property was given to her by her late father and that she was never aware of the lease the appellant was claiming. The case of the appellant was dismissed by the Magistrate on the grounds of lack of jurisdiction. The appellant indicated his intention to appeal against the decision but he never did. It was about 7 years later on the 1/6/1992 that the appellant applied by Originating Summons before the High Court for the reliefs recited above. The respondent on the 24/6/1992 filed the Notice of Preliminary Objection the terms of which were also recited above in this judgment. The main complaint of the respondent was that the action of the appellant as per the Originating Summons was statute barred and that the lease the applicant was claiming was no longer in existence. As mentioned above, the learned trial judge rejected the preliminary objection in a ruling delivered on the 17/3/1994. The respondent filed a Notice of Appeal against the said ruling that is the first appeal. Later, the learned trial judge heard argument of counsel on the claims on Originating Summons and in his judgments delivered on 21/5/1995 found for the appellant. The respondent filed the 2nd appeal in the Court of Appeal. The Court of Appeal as mentioned above, upheld the preliminary objection and allowed the Ist appeal. It also allowed the 2nd appeal in consequence of allowing the Ist appeal. I shall now discuss the remaining three issues:-
Issue No.2
This arose from the decision of Court of Appeal when it held that the suit filed by the appellant before the trial Court on the 2/6/1994 was statute barred. The Court per Aderemi J.C.A. (as he then was) held:-
“…… It is now a well established principle of law that the period of limitation for any claim begins to run when the cause of action accrues. If the person to whom the right incures fails to seek a redress by filing an action within the period prescribed by law, his claim is then said to be statute barred.”
The learned justice reproduced clauses 10 and 11 of the lease in which the appellant was to build a structure on the land within two years from the 5/7/1976 and also to be solely responsible for ejecting any tenants on the land. The learned justice continued to say that the appellant on his own free will, has allowed the adverse possession of the respondent to remain unmolested in the property for a period spanning over twelve years without complaining or resisting her adverse possession. By section 6(2) and 21 of the Limitation Law of Lagos State, the claim became statute barred. It is argued for the appellant that there was no evidence to suggest that the appellant’s cause of action arose on the 5/7/1976. It is submitted that the respondent did not establish the evidence that the cause of action arose in 1976. There was no evidence of any complaint against the appellant for not erecting the buildings as required by the lease. The appellant argued that he allowed the respondent to remain on the premises for a time and later when she refused to vacate the land he went to the Magistrate Court to recover possession. It is argued that the cause of action only arose in 1991 when the appellant went to court. Learned counsel relied on the cases of Lasisi Fadare & Others v. Attorney-General of Oyo State (1982) ALL NLR 26 at 37, U.B.A. Plc v. B.T.L Ind Ltd [2006] 12 SC 63 at 76. The court should have looked at the date of the suit in court and compare it with the date of the alleged wrong doing see Fred Egbe v. Adefarasin [1987] 1 NSCC 1. It is further argued that by section 134 (1) of the Evidence Act the burden of establishing when the time began to run is always on the person relying on the legal defence of laches. See Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport Agencies Ltd & Anor. [1987] 1 NSCC 67 AT 80, in the instant case the respondent did not establish this. It is again argued that the fact of the action in suit No. 86/85 is deemed in law to be acts of possession on the part of the appellant vide Ababio II v. Priest in Charge Cattholic Mission [1935] 2 WACA 381 Udeze & Others v. Chidebe & Others [1990] 1 NSCC 123.” It cannot be said that respondent remained in exclusive possession without any interference. There must be evidence to show that the title registered has been extinguished by the limitation law. See section 62 of the Lands Registration Law.
The learned counsel for the respondent on the other hand argued that the lower court was right to have upheld the preliminary objection that the claims of the appellant in the Originating Summons before the trial court were statute barred. The appellant waited from 5/7/1976 until 1/6/1992 when he went to the right court to seek redress. Learned counsel refers to section 16 (2) and 21 of Limitation Law of Lagos State and submitted that the rights of the appellant became extinguished by operation of law. It is submitted that the appellant himself provided the evidence of the date of accrual of the cause of action by attaching the lease to the Originating Summons. The lease commenced from 5/7/1976 and that the appellant was to eject the tenants and erect structures on the land within two years. The content of the lease and the affidavit in support of the Originating Summons supplied all the evidence needed see Uwawah & Others v. Boyo & Others [1971] NMLR 233 Strouds v. Strouds [1963] 3 ALL ER 539. Fred Egbe v. Adefarasin (supra). It is submitted that the appellant since the signing of the lease knew that there were tenants on the land and that he was to build a structure on the land and did not do the right thing to claim possession until 1992. After a period of 16 years when the cause of action accrued. Learned counsel referred to the case of Koney v. U.T.C Ltd 2 WACA 188. It is submitted that the appellant having supplied the evidence of the date of the accrual of the cause of action and the time when he took the proper action for possession, the respondent need not give any evidence on that score. Learned counsel referred to Uwawah v. Boyo (supra) Strouds v. StroudsT (supra) Archibong v. Ita [1954] 14 WACA 520. The respondent has the right to rely on the documents filed by the appellant to establish her objection to the Originating Summons see In Re hichilife 1895 1 CH. 117. Now, the general principle of law is that where the law provides for the bringing of an action within a prescribed period in respect of a cause of action, accruing to the plaintiff, proceedings shall not be brought after the period prescribed by law. See Obiefuna v. Okoye [1961] ALL NLR 357. An action brought outside the prescribed period offends the section of the law and does not give any cause of action. Now section 16 (2) of the Lagos State Limitation law provides:-
“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 occurred to the person bringing it……”
Now, how does one determine the period of limitation in a particular case In Egbe v. Adefarasin (supra) OPUTA J.S.C stated:-
“The answer is simple by looking at the Writ of Summons and the Statement of Claim alleging when the wrong was committed which gave the plaintiff a cause of action and by comparing that date with the date on which the Writ of Summons was filed. This can be done without taking oral evidence. If the time on the writ is beyond the period allowed by the Limitation Law then the action is statute barred.”
See also Texaco Panama Incorp v. Shell [2002] 2 SC (Pt. 11) 1 at 25, Fadare v. Attorney General of Oyo State (supra);Board of Trade v. Cayner, Iryine & Co. Ltd. [1927] AC 610 where it was held:-
“Time, therefore begins to run when there is in existence a person who can sue and another who can be sued, and all facts have happened which are material to be proved to entitle the plaintiff to succeed.”See Jallco Ltd v. Owoniboys Technical Serv. Ltd [1995] 4 NWLR (Pt 391) 534 at 547. It is also the law that ignorance of the statutory limitation provision by the plaintiff is of no moment. See Cartledge v. E.Jopling and Sons Ltd (1963) A.C. 758, Sanda Kukawa Local Government [1991] 2 NWLR (Pt 174) 379 at 389. Bakare v. Coker (1935) 12 NLR 31 Green v. Owo [1936] 13 NLR 43.
There is no doubt that it is ordinarily the defendant who raises the preliminary objection who should establish that the action is statute barred see Savannah Bank of Nigeria Ltd v. Pan Atlantic Shipping and Transport Agencies Ltd (supra), but where on the face of the Writ of Summons the date of the wrong committed is clear, a comparison can be made with that date and the date when the cause of action was taken to court. In the present case, the appellant took the lease on the 5/7/1976 when the property was demised to him and by a clause on the lease, he was responsible for ejecting all the persons on the land, and the lease commenced immediately i.e the appellant was to have immediate possession. The appellant was not only to eject the tenants but also to erect a structure within two years on the land. In my view, the lower court was right when it held that the statute of limitation applied on the evidence supplied by the appellant himself and as Oputa J.S.C said in the Egbe v. Adefrasin (supra) “that there is no need for oral evidence.” It has been decided that the period of limitation is only determinable by looking at the Writ of Summons and Statement of Claim alone to ascertain the alleged date of the wrong in question which gave rise to the plaintiffs cause of action and by comparing that date with the date on which the Writ was filed. If the time pleaded in the Writ of Summons or the Statement of Claim is beyond the period allowed by the limitation law, the action is statute barred. See Woherem v. Emereuwa [2004] 13 NWLR (Pt 890) 398. Solomon v. African Steamship Co. [1979] 9 NLR 99. Koney v. U.T.C (supra).
Another point that ought to be borne in mind is that the application of the respondent as defendant, before the trial court was by way of preliminary objection for the dismissal of the appellant’s suit in limine on the ground of Limitation Law of Lagos State. The principle of law is well established that an application by way of preliminary objection for the dismissal of a suit in limine may be on points of law and when there are no facts in dispute for the purposes of determining such objection see Foko v. Foko [1968] NMLR 441. The respondent in the instant case relied only on the fact stated by the appellant in the Originating Summons. The respondent needed not file any affidavit nor prove the date of the accrual of the cause of action nor the date when the writ or the claim was issued. The court can look at the documents filed by the appellant and compute the period of limitation. See Woherem case supra. See also Aremo II v. Adekanye [2004] 13 NWLR (Pt. 891) 572. Where an action is statute barred, a plaintiff who might otherwise have had a cause of action loses the right to enforce it by judicial process because the period of time laid down has elapsed. See Eboigbe v. N.N.P.C [1994] 5 NWLR (Pt 347) 649, Odubeko v. Fowler (supra) Sanda v. Kukawa Local Government (supra), Ekeogu v. Aliri[1991] 3 NWLR (Pt 179) 258.
Now, the appellant by his Originating Summons was seized of the demised land by the terms of the lease on 5/7/1976. He had the responsibility of ejecting the tenants therein. He was also bound by the terms of the lease to erect a building within 2 years of the commencement of the lease. He did not do any thing. He allowed the respondent to remain on the property from 1976 without any valid complaint until 1996 when he took this action. By the provisions of the limitation law, such an action cannot be brought after the expiration of 12 years from the date the right of action accrued. In my view, the Court of Appeal was right in determining that the claim of the appellant was caught by the provisions of the limitation law of Lagos State. I accordingly resolve issue No.2 against the appellant.
Issues 3 and 4
After the determination of the 1st appeal on the question of whether the appellant’s suit was statute barred or not and while considering the 2nd appeal dealing with the issue of whether the appellant was entitled to the reliefs sought in Originating Summons or not, the Court of Appeal per Aderemi, J.C.A. as he then was stated at page 234 of the printed record thus:-
“Having regard to what I have been saying about the first appeal No. CAIL/80/95 the second appeal No. CAIL/309/96 with which it has been consolidated may appear to be academic.”
It was having regard to the decision of the Court on the applicability of the Statute of Limitation that the appellant’s arguments in Issues Nos. 3 and 4 are non sequitur.
The determination of such issues one way or the other will serve no purpose, since it is adjudged that the claims of the appellant are statute barred and unenforceable. In the language of the respondent is entitled to costs assessed at the limitation law “no such action shall be brought…..” accordingly, the issue of how such an action was treated and the result arrived at does not of necessity arise. I accordingly do not deem it necessary or worthwhile to discuss Issues 3 and 4. Suffice it for me to dismiss the appeal and affirm the decision of the Court of Appeal. the respondent is entitle to costs assessed at N50,000.00.
ONU, J.S.C.: The appellant as plaintiff (by no means a relation of the defendant) commenced by way of originating summons against the defendant/respondent the following reliefs: –
“1. A declaration that the Applicant as against the Respondent for herself and as heir of the late Odu Williams, is the person entitled to the possession of the property situate at and known as No.37,Little Road, Yaba, Lagos under the Lease Registered (sic) as Title No: No.11879.
- A declaration that the Applicant has not forfeited his rights and any entitlement (sic) whatsoever under the lease Registered as Title No: No 11879.
- An order construing the Lease and declaration that the Lease registered as Title No: NO.11879 in Lands. Registry in the office at Alausa, Ikeja is still valid and subsisting.”
The affidavit In support of the originating summons containing several material depositions inter alia was filed in support thereof.
The Respondent claimed in the course of the case that she is entitled to the property as her father had given it to her and that she was never aware of the lease.
A notice of preliminary objection raised by the respondent pursuant thereto was dismissed for lacking in merit; consequently the originating summons was heard with the learned trial judge granting the reliefs sought therein.
Consequent upon the ruling and the judgment, appeals that were later consolidated were filed at the Court of Appeal, which upheld the notice of preliminary objection, and set aside the judgment on the originating summons. The appeal herein is against the aforementioned decisions. In an amended brief of argument, the appellant formulated the following issues for determination:
(i) Whether the 1st Appeal before the Court of Appeal (i.e the Appeal from the Ruling of the trial Judge delivered on the 17th of March, 1994) was valid.
(ii) Whether the originating summons before the trial Judge was statute barred or whether the Appellant’s cause of action arose from 5th July, 1978.
(iii) Whether the trial Judge went into, serious error by granting possession of the property in dispute to the Appellant upon the originating summons.
(iv) Whether the Lease of the Appellant is subsisting or not.
The Appellant as transpired, abandoned Issue (i) and as issue (ii) dominates the remaining two issues, namely, issues (iii) and (iv) in both scope and content, my consideration of it herein, I think, will suffice to provide answers thereto.
The argument proffered by the learned counsel for the appellant that there was no available evidence before the lower courts to suggest that the appellant’s cause of action arose on 5/7/78 is of no purport. This is because before the trial court, was the lease signed by the appellant and the deceased lessor, Leopold Alexander Odu Williams, exhibited as Exhibit “A” to the affidavit in support of the originating summons. The lease dated 5/7/78 was as to completion date, but this was not to be since the building was not erected. This obligation not having been fulfilled by the appellant who was the lessee, resulted in a breach of the agreement at that stage and the cause of action arose at that date of 5/7/78 in spite of the refusal of the respondent to vacate the premises, which the appellant alleged necessitated the breach. This reason notwithstanding, the appellant should have taken appropriate action to facilitate the ejection of the respondent from the property immediately after signing the lease of agreement, for he would be the looser if she continued to be on the premises. The appellant was definitely not diligent in ensuring to keep his own side of the agreement. As a matter of fact the lessee could have instituted an action against the appellant if he happened to be still alive.
The term “cause of action” was judicially defined by the Supreme Court, applying Read v. Brown (1289) 122 QBD 128 at 131, per Lord Esher M. R. and in Lasisi Fadare & Ors. v. Attorney- General of Oyo State (1982) 4 S.C. 1 at page 7 per Aniagolu, J.S.C as “denoting every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the court.”See also Egbe v. Adefarasin (1985) 1 NWLR (part 3) 549 and Thomas v. Olufosoye (1986) 1 NWLR. (Pt. 18) 689; Okechukwu Adimora v. Nanyelugo Ajufo & Ors. (1988) 3 NWLR (Pt. 80) 1 at 17 and D.B.A. PIc. v. B.T.L. Industries Ltd. (2006) 12 S.C. 63.
In the instant case, since the cause of action arose in 1978, and this case was not commenced until in 1992, then it was caught by the Limitation Law of Lagos State which stipulates the following:-
“16(2) The following provisions shall apply to an action by a person to recover land –
(a) Subject to paragraph (b) of the sub-section 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 through whom he claims, to that person”.
The intervening period when carefully computed leaves one with 14 years before the action was instituted, hence it had expired. Thus, going back to the learned counsel for the appellant’s contention that there was no evidence upon which the lower court based its finding that the action was statute barred, I decline to subscribe to the argument most especially as there was definitely evidence to support it, both in the supporting affidavit and the lease agreement exhibited and marked Exhibit ‘A’.
It is for these reasons and more profound ones contained in the leading judgment of my learned brother Musdapher, J.S.C that I too unhesitatingly dismiss this appeal as lacking in merit and no iota of substance.
SC.304/2002
